■% illi m r ■ j 1 > f 5 J HENRY JOHNSTON THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW c^ 'U THE LAW VENDORS AND PURCHASERS €?statt0. CONCISE AND PRACTICAL TREATISE OF THE LAW OF VENDORS AND PURCHASERS ESTATES. BON^ FIDEI VENDITOREM, NEC COMMODORUM SPEM AUGERE, NEC INCOMMODORUM COGNITIONEM OBSCURARE OPORTET. Valerius Maximus, 1. vii. c. 11. BY EDWARD SUGDEN. (NOW LORD ST. LEONARDS.) THE THIRTEENTH EDITION. LONDON: H. SWEET, 1, CHANCERY LANE, FLEET STREET; liato BoofeSElIer axxH ^uhlietipr: HODGES, SMITH & CO., GRAFTON STREET, DUBLIN. 1857. T LONDON: PRINIF.D nv HENUV HA.NSAilD, NEAH LI NCOLN'S-INN FIELDS. PilEl ACE. After the lapse of half a century since the first pub- lication of this work, I am about to send forth a Thirteenth Edition of it. Determined at my outset in life to write a book, I was dehghted when I hit upon the subject now before the reader — the Law of Vendors and Purchasers. The title promised well, and many portions of the law had not previously been embodied in any treatise. Modern law treatises were indeed few at that period. When this work was announced for publication, nearly the universal opinion was that it would be a failure, as the subjects to be considered were too multifarious for one treatise. Nothino- dismayed, I laboured diligently, and, with the aid of Lincoln's Inn Library, in which a considerable portion of the book was written — for my own shelves were but scantily furnished — I at length finished the work in its original shape. My courage then failed me The expense of publication was certain ; and success, I thought, more than doubtful ; and it was not without some difficulty that I could be persuaded to refrain from committing the manuscript to the flames, and to join with a bookseller in incurring the risk of pub- lishing it at half profit and loss, as it is termed. As soon as the book was printed, another bookseller bought my interest in the Edition, and thus relieved me from my obligations. The amount I received as the price of the Edition was small. [ iv ] but I have never since received any sum with anything approaching to the same satisfaction. The book was cer- tainly the foundation of my early success in life. It was published in February 1805, and the Edition was sold at once. The Second Edition, which was in royal 8vo., greatly enlarged, was published on the 1st of June 1806. Both these editions were published before I was called to the Bar. The next, the Third Edition, was published in 1808, and it was the first which was divided into sections, with the placita numbered. The Fourth was published at the end of November 1813 ; and in the advertisement prefixed to it (*), I alluded to the difficulties of preparing it from the great accumulation of cases, and intimated the probability that I should not be able to undertake any further Edition. Nevertheless, the previous labours were forgotten, and new Editions continued to appear; the Fifth in the beginning of September 1818 ; the Sixth in June 1822; the Seventh in May 1826; the Eighth on the 1st of January 1830 ; the Ninth in May 1834, in 2 vols, royal 8vo. All these six Editions were published whilst I was in full practice at the Bar, and could ill afford (*) Advertisement to the Fourth Edition. When the last Edition of this work was published the Author did not anticipate that another would be so soon called for. He has, perhaps, been slow in obeying the summons, but the great quantity of new matter which has been introduced into the present Edition will, he hopes, be considered as some atonement for the delay. To prepare the book for the Press has not been a slight task. The great accumulation of cases in all the Courts on the various subjects discussed by the writer was sufficient to deter even a laborious man from attempting to embody them in a work previously written. For himself, the Author cannot venture to say that his industry or oppor- tunities will ever again allow him to attempt to renew tlie labour. As the work at present stands, the writer is led to believe that no case of importance lias escaped him, and he has reason to think that not even a dictum on the subject since the book was first undertaken has eluded his researches. Some allowances are due to a performance of so general a nature as the present, written before the age of 22, under circumstances by no means favourable ; and the grafts upon the original stock, if they add to its value in fruit, are not likely to improve its symmetry. [ V ] the time required to re-edit the work. When I returned from Ireland in 1835, and had, for the first time in my professional life, full leisure, I revised the whole of the work with great care, and published an Edition of it — the Tenth — with numerous additions, in November 1839, in 3 vols, royal 8vo. In several of the Editions it was stated, that, in order to prevent a too frequent repetition of them, the number of copies had, at the several periods, been considerably increased ; but still the work became out of print at the usual time. Whilst I was yet for the second time in office in Ireland, I prepared and on the 1st of May 1846 I published the Eleventh Edition, compressed into two volumes. At length there arose a demand for a more concise view of the subject, and in order to meet it, I reduced the work, with the exception of the Chapter on the Real Property Statutes, which was expanded into an Essay and published separately, into one common 8vo. volume, and in that form published it in June 1851, as a Concise and Practical View of the subject, but, of course, with the cases and statutes brought down to that period. That Edition, which in truth was the Twelfth of the work in a compressed form, has in its turn been absorbed by the Profession. I had not found it possible to compress the great mass of matter in the Eleventh Edition into the smaller one, without the sacrifice of some important subjects, and of many discussions which gave to the original work its character as a Treatise. When, there- fore, the present Edition was called for — the last that I can expect to publish — I determined to restore the work to its original shape as a Treatise, and at the same time to pre- serve its character as a Concise and Practical View. The Profession will judge whether I have succeeded. To accom- plish this object I have spared neither time nor labour. They only can judge of the labour and time required for such a task who are in the habit of perusing all the volu- [ vi ] minous reports of our mnny Courts. The last Edition con- tained some 500 cases which were not quoted in the Eleventh Edition, and upwards of 1,200 cases are included in this Edition which were not in the Twelfth. The legislative alterations in the law have greatly added to the lahour of every new Edition, and have several times altered the very phraseology of the law. If it were allowable to doubt in 1803, when the work was first announced, whether the Law of Vendors and Purchasers could be made the subject of one Treatise, it seems to admit of no doubt that no man could in 1856 hope to write upon the subject at large from his own researches and upon his own resources. This branch of the law is indeed an extensive one, and the number of autho- rities referred to is very large. The reader will bear in mind that this collection of cases is the fruit of upwards of half a centuiy of research and labour. Every case cited I have perused in the original report, and every line of the book has been written by myself. I doubt not that there are errors which have escaped me ; but I have endeavoured to leave behind me this, my first work, in a shape in some sense worthy of the acceptance of the Members of the Profession to which I have the honour to belong, and I know by a long experience that I may safely rely on their indulgence. St. L. Boyle Farm, 10 January 1857. CONTENTS. INTRODUCTION. 1 . Vendors' liability to disclose defects — where the purchaser has kiiow- ledfje, or they are patent— they must 7iof be concealed . . . .p. 1 2. Sale subject to all faults .... 2 3. Random praise by vendor. — False statement of value ; small fine; speedy vacancy ; rich meadoic . 2 4. No deceit, unless party off his guard 3 5. False statement of valuation fatal : so of rent 3 6. Misrepresentations by a stranger . 4 7. Misrepresentations and non-disclo- sures by a purchaser — must not mislead the seller — nor conceal a death ichich adds to value ... 4 8. Concealment of incun.hrances and defects in title — by attorney . . o 9. Same attorney for both sides . . 5 10. Attorney may not disclose defect to party interested 5 11. Obligation of grantor of annuity ■ 5 12. Necessity for investigation of title 5 13. Purchasers bound by covenants in lease 6 14. Inquiry after incumbrances . . . 6 15. Where a purchaser may take pos- session 6 17. Purchaser of equitable rights . . 7 1 8. Succession duty 7 19. Title to be investigated before sale 7 CHAPTER I. OF SALES BY AUCTION AND PRIVATE CONTRACT. 1. Sale without reserve; puffing avoids it : right to bid once : private reservation . . . . p 2. Several puffers, or one as a screw, fatal 3. But one bidder may be appointed — without notice 4. Sub-purchaser 9 SECTION I. OF PUFFING. 5. Purchaser not to deter bidders . 9 6. Sale damaged by supposed puffers not enforced 9 7. Puffer bidding for wrong estate 9 not bound in equity .... 10 8. Sale by lottery illegal .... 10 9 9. Sales by auction by Judges or chief clerks 10 SECTION II. OF THE PARTICULARS AND CONDITIONS OF SALE. 1. 2. 3. 4. 6. 6. 7. 8. 11. 12. 13. Bidding may be countermanded . j). 1 1 Condition against it 11 Sale 7(ndcr Act of Parliament . 12 Conditions favourably construed . 12 Liability of purchaser of part to annuity on the whole . . . , 12 Obscure conditions 12 "In this particular" .... Cannot be contradicted at sale Purchaser bound by previous linow- ledge Good title implied: all interest included Condition to take a defective title 12 12 13 14 14 14. I nstancesrohere purchase mot boundf'iQ 15. Condition to accept bond . . . 1(? 16. Condition to avoid sale if title defective 16 17. Condition to deliver objections within a time fixed 17 18. Condition that recitals should be evidence 17 19. Misrepresentation of property . 17 20. Effect of condition to rescind sale 18 21. Description of estate: free public- house 18 22. Description. — House in Regency- square, Brighton \t a CONTENTS. 24.-, 25. I Right of way : Plans . . . 19,20 26j 25. Part not to be found 19 20.1 .„ >Easpmenfs. — 'Well. — Drains . 20,24 4U. J 27. Intended improvetncnts . ... 20 28. Lights 21 29. Wall 21 30. Bending of lease at auction . . 21 31. Buildings removed 21 32. Evidence of identity 21 33. Covenants against trades ... 21 35. Covenants in lease. — Public-house 21 36. Fen land : taxes 22 38. Waterloo Bridge annuity : power to redeem, not stated .... 22 39. Power of purchase not stated . . 22 40. Tenant holding adversely ... 22 41. Wood 22 42. Clear yearly rent 22 43. Condition that niisdescriptio7i not to avoid sale, does not extend to fraudulent description. — Borough town 22 AA. " Ground rent" 23 45. " Brick built" 23 46. Mistake in the mimher. — Part sold not in lease 23 47. Business house 24 48. Building ground 24 49. Title resting on easements over other lands 24 50. Where value cannot be estimated : contingency 24 52. Effect generally of error not fraudu- lent, upon the condition ... 25 53. Timber 25 Tlmber-llhe trees to he paid for . 26 Timber on copyholds which cannot be cut 26 Purchase of term sans waste . . 26 Fixtures 26 Deeds not to be jjroduced ... 27 Purchaser of largest lot to have the deeds 27 Searches, §'C 28 Attested copies 28 Condition depriving purchaser of a covenant to produce .... 28 '\Condition that cestuls que trust J shouldjiot concur . — Mis-statement, 29 Landlord's title 29 Renewable leaseholds — compensa- tion 29 Sale by assignees : bankrupt not to concur- — Mis-statement of title 30 1 Liability of purchaser ofleaseholds, 30 "1 Where purchaser not bound to j covenant not to build . ... 31 Conveyance. — Surrenders. — Fines and fees 31 , Forfeiture of deposit, and right to re-sell 31 Stipulated damages 32 , Forfeiture of deposit under condi- tion. — Where there is no such coJiditlon, qu 32 Re-sale if bankruptcy- — Seller's lien, 33 Ti?ne allowed to purchaser . . 33 Benefit of usual conditions. — Title{a) 34 Agreements to be signed ... 34 Auctioneer may bind purchaser and seller 34 36 36 36 37 11. SECTION III. OF AUCTIONEERS AND AGENTS, AND OF THE DEPOSIT AND PURCHASE-MONEY. A gent to sell not entitled to receive the money 38 A uctioneer cannot give credit . . 38 Set-off 39 Remittajice by seller's direction . 39 Purchaser may stop his check, if contract void : effect of accept- ance by seller of check ... 39 Must not pay agent before the fixed time 39 Seller's direction to pay third person binding 40 . Deposit is part payment ... 40 . Auctioneer to retain it till con- tract completed 40 . Interpleader by auctioneer in equity, 40 . Same at laio 41 Jul-., N. S., 1011. 1. Auctioneer cannot delegate: sale of his oicn estate: trustee no com- mission p. 36 2. Auctioneer liable, if no authority 36 3. If sale defeated by his negligence, not entitled to commission : an- swerable for misdescription . . 4. Revocation of auctioneer's autho- rity 5. Amount of commusion on sale 6. Amount for finding a purchaser . 7. When it is payable : revocation of authority 37 8. Agent bidding bey oyid his autJiorlty 37 9. Disputes beticeen principal and agent as to the latter' s authority 38 .0. Conditional sale by agent ... 38 (rt) See Hoy v. Smitliers, 2 16, 17. CONTENTS. IX 23. Equituhle pleas at law of set-off . 42 24. Loss by insolveiicy of (uict'toneer fills on seller: where uii inortijtujor, 42 2o. Trustees not liable for auctioneer's ■insolvency 42 20. Auctioneer liable ^uhere pri7ici])al not disclosed 42 27. Not liable to interest ; may pay to insolvent principal .... 42 28. Payment to agent payment to principal 42 29. Deposit invested by Court, at risk of seller 43 30. Proposed arrangement for disposal of deposit 31. M'liere loss by sale of stock cannot he thrown on purchaser . 32. Forfeited deposit on sale of set- tled estate 33. Seller not bound by investment tvilhout his assent 34. Waiver of jiayinent of deposit 35. No election to forfeit deposit : forfeiture relieved against . . 30. Seller to repay deposit, although his bill dismissed SECTION IV. OF SALES IJY PRIVATE CONTRACT. 1. Printed conditions and agreemerd, p. 45 2. Written agreement ; letters ... 45 3. Previous representations at an end, 45 4. Unless there be fraud . . . • . 40 5. Purchase completed by agent bind- ing, although contract not in ivriting 40 G. Where agent binds himself; per- sonal undertaking by solicitor . 40 7. Attested copies of parcels where sale is in lots 40 8. Contract to procure a purchaser . 9. Waiver of contract on compromise by the other party with his cre- ditors 10. Purchaser liable for nuisance on the estate 11. Liability of purchaser and seller as bettveen each other .... 12. Seller hound to leave support to part sold 43 43 44 44 44 44 44 47 47 47 47 SECTION V. OF SALES BY PARTIES NOT BEING OWNERS. 2. Valuatio7i of property ... p. 48 4. May sell privately, or by auction, 49 5. Insolvent's estates to be sold by auction 49 G. Assignees of bankrujjts not to de- lay sale 49 7. Sale hy private contract not with- in authority to sell by auction : acts of agents 49 8. Sale in lots 50 9. Sale by auction valid, although not at full j^rice 50 10. "J Trustees inust use reasonable 1 1 . /" diUgence 50 12. Time of sale 50 13. Where sale will be stopped ... 51 10. False represe7itaiio?i by trustees . 51 17. Conditions of sale 51 19. Where assignees may buy in . . 52 Where they may have a reserved bidding 52 Where damages against the assig- nees fall on the estate : contract by creditors' assignee binding on official assignee 52 22. Sale hy creditors' assignees ... 52 23. Assignees putting up an estate . 52 25. Deposit repaid xoithout a bill filed, 63 20 21 20. Biddings for bankrupt's estate opened 27. Poiver to mortgagee to sell . . . 28. Expenses 30. What is proper notice .... 31. Mortgagee cannot bid and con- duct sale 34. Liability to make a good title . . 35. And compensation for misdescrip- tion 30. Cannot sell to themselves . . . 37. Trustee of legal estate to con- vey to trustees to sell .... 38. Tenant for life, ichen entitled to rents 39. Sales by trustees under poivcrs of sale and exchange Cannot be controlled ; how to sell. Sale and new purchase hy tenant for life Contract of trustees binds the estate Trustee's liability, for misapplica- tion of purchase- money — to costs 44. Time for sale limited, extended by equity 45. Irregular sale supported . . . 40. 41. 42. 43. 53 63 53 54 54 54 64 65 65 55 50 60 50 50 50 50 CONTENTS. CHAPTER II. OP SALES TO hailway companies. 1. RaUirays Clauses Consolidation Act; Lands Clauses Consolida- tion Act P- 2. Powers to purchase 3. Purcliases by private contract 4. Price for land or for not opposing, 5. Company hound by contract of promoters : ultra vires doctrine, C). Purchase of additional land by jjrivate contract 7. Sales by compuhlon : price : mines, 8. Notice a contract as between ven- dor and jmr chaser: second notice: specific performance .... 9. Hill V. Great Northern Baihcay ComjHiny 10. Effect of notice: (piantity of land: jjrice 11. Company must nipyly for abstract, 12. How purchase -money is to be paid, 13. Conveyance after deposit of price, 14. Refusal to accept the money, or to 59 G2 G3 65 66 convey, or want of title, §"C. ; ap jiUcationfor the money . , IT}. Vendor's covenants for title IG. Whei-e the sale converts the estate into persotialty 66 17. Where the Company may enter: effect of entry : deposit ... 67 18. Eiitry before or after the pre- scribed time 67 19. Remedies against Company: man- damus : injunction 68 20. Enactments as to costs .... 68 21. Decisions thereon 69 22. Costs of conveyance from infant heir or devisee 71 23. Entry to make spoil banks, S,-c. : Company compellable to pur- chase 24. Where Interest payable by Com- pany : loss by bankers .... 25. Purchaser from Company subject to a co7idition 72 72 72 CHAPTER III. OK SALES UNDER THE AUTHORITY OF THE COURTS OF EQUITY (I). SECTION I. OF THE PROCEEDINGS FROM THE 1. Power to sell in suits .... p. 2. Poicc.r to sell in foreclosure suits, 3. Sale U7idcr direction of Judge 4. Title to be first examined . . . 5. Charges for abstracts, conditions, answering queries 6. Opinion of conveyancing counsel . 7. Verification of conveyance . . . 8. Amount of deposit 9. Reserved bidding 10. Advertisements 1 1 . Direction for sale, how carried out, 12. Particidars of sale 13. Compensation for misrepresenta- tion 14. Appointment of auctioneer . . . 1 0. Mortgagee not to conduct sale . . IG. How sale conducted 17. Best bidder ......... 18. Deposit ADVERTISEMENTS TO THE CONVEYANCE. 73 73 73 74 74 74 75 75 75 75 76 76 76 76 77 77 78 78 19. Fraud by puffing 78 20. Verbal declarations by atictioneer, 78 21. Substitution of another as pur- chaser 78 22. Re-sale at a jjrofit 78 24. Proceedings after sale .... 79 25. Contract not complete till confirm- ation. How report is confirmed . 26. Loss by fire, ^'C, in the interim . 27. Proceedings lohere purchaser holds back 28. Bidding by insane person void 29. Proceedings at chambers . . . Payment of purchase-money and possession 81 Incumbrances, how paid off . . 81 Possession from previous (ptarter- day 82 35. Mortgagee's right when jnirchaser, 82 37. Purchaser's right to life annuity, 82 30. 31. 33. (I) For the practice in Ireland, see Purcli. 7S, lllli edit. CONTENTS. XI 38. And to a life interest .... 82 39. Purchase of reversion falleii in . 83 40. Purchaser's right to a colliery . 83 41. Court alone gives possession . . 83 42. Preparation, S^-c., of conveyance . 83 43. Objections to title 84 44. Equitable title 84 45. Purchaser cannot bring an action, 84 46. Costs to purchaser tohere title bad, 84 47. Who is to pay them 85 48. Costs of reference of title ... 85 50. Delay in making nut title ... 85 51. Death of purchaser before con- veyance 85 52. Rights of incumbrancers ... 80 53. Sale contrary to order void . . 80 55. Sale not vnthln statute of frauds, 80 57. Purchaser restrained from ivaste, 86 58. Indemnity against reut and cove- nants 87 59. Conveyance by incompetent, ^-c, persons 87 60. Tmprovemeyits before sale con- firmed 87 GZ. Decree a security to jnirchaser . 87 65. Judgment creditors affected . . 88 66. Improper payments to tenants for life 89 67. lord Bandon v. Becher ... 89 68. Vans Agneio v. Stewart ... 89 SECTION II. OF OPENING THE BIDDINGS, AND OF Opening biddings p. 90 j 17. Advance required 91 18. Timber valued 92 j Operation of Vice-Chancellor's ; 19. certificate 92 | When certificate confirmed, ad- i 20. vance of price not sufficient . . 92 | Fraud sufficient 93 j 21. Costs of first inirchaser .... 93 Re-allotment upo7i re-sale . . . 93 I 22. Person present at sale may open it 94 | Sham biddings 94 I 23. Person opening not repaid his costs, 94 i 25. Where lots, all to be opened. — | 26. Opening sale of lots to different j piirchasers . 94 j RESCINDING THE CONTRACT. Substitution of sub-purchaser . . 95 Return of stock on rescinding contract 95 Inequitable sale rescinded. But not a hard bargain 95 Unless there is mistake; and no delay 95 Bad title discovered before convey- ance, money returned .... 95 Solicitor bound, although only buying in 96 Remedy against executors ... 96 Sale by private contract not opened, 96 No costs to purchaser of extended estate, although no title ... 96 CHAPTER IV. OP PAROL AGREEMENTS: GENERAL CONSTRUCTION OF STATUTE. SECTION 1. Construction of first section . . p. 97 2. Construction of fourth section . . 97 3. Statute of 8 .^' 9 Vict 98 4. Parol license valid 98 5. Void agreement may operate as a license 99 SECTION II. OF THE FOURTH SECTION. 1. Extends to interests created de novo, p. 99 3. Exclusive riyht to vesture xclthin it. — Growing crops, as grass. — Or groiolng poles, undericood, timber, 100 5. But not wheat 100 6. Nor trees sold as wood . . . . 1 00 7. Nor potatoes. — Turnips. — Hops. — Crops between tenants. — Fixtures 100 8. But void sale, if credited, bmdhig, 101 9. Mining company shares wlthinAtli section. — Not railway shares . 101 10. Entire parol agreement for realty and personalty ioholly void . , 102 b2 xu CONTENTS. SECTION III. Ol'' THE FORM AN'D r^IGXA'. Si(jiintiin' h)j jiiiitij to he chanji'd tmffickut 1). 103 Bldtih for seller's name fatal . 104 \- II 010 the other party may hehotmd^ , lieceipts and letters sufficient. — Stainping letters 105 , Offers in writing binding . . . 105 , Unless there he fraud .... 106 Simple acceptance linding , . 106 , Conditional offer 107 , Posting letter 107 , Offei- may he retracted before ac- ceptance 107 , Where special acceptance neces- sary 107 }Iteceipt or letter must specify f 107 all the terms • \]08 Consideration shoidd appear . . 108 . Trifling omission fatal . . . . 109 y Omissions supplied by reference flOO j to other loritlngs Llll TURK OF TIIR AGREEMENT. •2G. Instructions fir contract not sufficiently referred, to . . . 27. Bankruptcy discharges offer . . 31. What amounts to an adoption of an unsigned agreement . . 32. Insufficient references to other papers 33. Boyce v. Green 34. Wayit of signature not supplied by letter abandoning an agree- ment 35. Referenceto different contract in- sufficient 36."^ Auctioneer'' s receipt, entry, S^-c, 37./ binding 38."\ go f Letters to third persons binding, 40. Bonds of reference to surveyor . 41. Rent rolls, abstracts, 'D LIABILITIES 1. Where 23urchaser liable to existing mortgage debt: new statute , p. 1G3 2. Stopping proceedings ill ejectment, 164 3. Further advances to mortgagor after a sale by him 1G4 4. Redemption of mortgages on dis- tinct estates 1G4 5. Loss of mortgage deed. — Produc- tion of mortgage deed . . . . 165 G. Assignee of mortgagee subject to the account 165 ?. Annuity the price of an estate, how to be secured 1 65 8. Purchaser to indemnify against charges; as where he buys a lease, or an equity of redemption — Liability of sub-purchaser . . . 165 II. ARISING OUT OF CONTRACTS. Legal and equitable rights in the Crown 106 Agreement to give real security en- forced 166 Purchaser of legacy entitled to stock investment 1G8 Fraud i7i sale of life policy . . . 166 Where power to re-purchase makes a loan 166 Payment to be made on condition, 166 Re-purchase on a condition . . . 167 Notice to purchase binding under Act of Parliament 167 Right of tenant for life of lease- hold to purchase-money . . . 1G7 Purchaser hound by grant of stewardship for life .... 167 SECTION III. 5. G. 7. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. OF SPECIFIC Specific performance by Court of Review .... = ... p. 168 Heir at law of vendor bound . . 168 Infant heir of vendor — Devisees in strict settlement of vendor . . 168 Heir or devisee of vendor after decree for sale of debts . . . 169 Parties to suit, trustees after decree, 170 Parties bound by decree for sale — Vesting order 170 Orders liable to stamp duty . . 171 Purchaser of any lot may apply for vesting order 171 Tenant in tail — Provisions by statute 171 Tenants in tail of copy/wlds — Infant trustee 172 Doiveress 172 Joint tenant 172 Feme covert 172 Where she has a power .... 1 72 Decree against the husband . . 172 Feme covert with separate estate jmrchasing or selling . . . . 173 Lunatic; effect of lunacy on con- tract or deposit 174 Trustees under power .... 175 Infant: contracts: sales . . . 175 No specif c performance of tenancy from year to year : executors . 1 75 Sale of annuity, stock, <^*c. . . . 175 Discretionary — Misrepresentation by purchaser 176 PERFORMANCE. 24. Harris v. Kemble 176 25. Statements of amount of fine: undue advantage 176 26. Intoxication 177 27. Seller in prison for debt . . . 177 28. Seller turning purchaser out of possession 177 29. Bill filed before the time ... 177 31. Where the action is lost — Damages recoverable at laxo — Hardship! of sale iqjon seller — Want of com- petency 178 32. Mortgagee with power of sale selling of ter foreclosure . . . 178 33. Modification of contract . . . 178 34. Uncertainty 178 35.1 Where part cannot be enforced ri79 1 186 179 59./ 36. Purchase of lease or tmderlease 37. Sale of reversion, rent, tenant not known : no person liable to covenants ........ 179 38. Suppressio veri; suggestio falsi . 179 39. Mistake 179 40. Sur^jrise 180 41. Fraudulent misrepresentation . . 180 42. Sale by agent contrary to authority 1 81 43. Breach of trust 181 44. Discretionary power in trustees — Sale by tenant for life . . . . 181 45. Seller with an interest selling as agent to trustee 181 b4 XVI 46 CONTENTS. Want of title — Sfrniir/er .selliny — No niutualilt/ 181 47. Where title can be made yood . 182 ^'i. Purchaser may accept the title . 182 49. Seller not com2)ellcd to settle another estate 183 50. Equitable title 183 b\. Purchaser nominal contractor . 183 62. Philips and Duke of Buckingham, 183 53. Seller pretending to be an agent . 1 84 54. Sale of annuity for lives not named, 184 55. Specific performance where no action will lie 184 57. Penalty: specific performance . 185 58. Penalty : action 185 GO. Powers of Common Law Courts in the nature of equitable jurisdic- tion 186 SECTION IV. OF THE KEMEUIES 1-OR I. The remedy in equity. Vendor's right p. 187 Special case under Act .... 188 Claim under new orders . . . 188 Proceedings by claim 189 9 10 11. 12. 13. 14. 15. 16. 19. 20. 22. 23. 189 190 190 191 Abolition of Masters : chamber bu- siness : new modes of procedure, Appeals from chief clerk . . . Injunction at law : damages . . rDii'ections on specific pcrform- J ance : proceedings at chambers \on title : further directions : decree : discovery : documents, Decree on motion 192 Injunction to j)revent injury . . 192 Reference of title 193 Purchase money ordered into Court, 193 Where not 194 Seller ordered to pay in deposit . 195 Multifariousness: sale in lots . 195 Receivers, agents not projjer parties, 195 Nor adverse claimants — Mort- gagee not a j)roper party . . . Plaintiff proving different agree- ment Upon dismissal of bill, no account. Damages to purchaser .... No compensation for defective title, New defence by jjurchaser . Seller cutting ornamental timber jjcnding suit 197 195 196 196 196 196 197 BREACH OF CONTRACT. II. Tlie remedy at law. 33. Action by jmrchaser for fraud after decree 197 34. Party having waived, cannot bring action after decree . . . 197 35. Nor ichere bill dismissed for leant of title 197 36. Actions by parties after bill dis- missed 197 37. For costs 198 38. A second action not allowed . . 198 40. Mojiey had and received . . . 198 43. No damages for loss of bargain . 199 44. Loss by selling out of the funds . 199 45. Interest on deposit 199 46. Expenses of investigating title . 199 47. Particulars of fact and law . . 199 48. Extent of damages to seller . . 200 49. Action by heir or executor of purchaser 200 50. Delivery of agreement to be stamped 200 51. Agreement by letters, one stamj) . 201 52. Mutual covenants 201 53. Seller to execute conveyance be- fore action 201 54. Purchaser to tender conveyance and purchase money .... 202 55. Unless there is a bad title, or seller has re-sold 202 57. Ne exeat 203 58. Mandamus : specific performance at law 203 SECTION V. OF RESCINDING AND OF CONFIRMING A CONTRACT. 3. 1. Notice of rescinding .... p. 204 2. Doctrine of rescinding a contract, 204 - \ Misrepresentations , 8. J ^ 1206 4. Concealment of a fact by a pur- chaser 204 5. Dealing unduly with jmrchaser . 205 6. Fraud necessary 205 7. Seller believing his own misrepre- seiitation 206 9. Rescinding a conveyance for un- reasonableness of price . . . 206 10. For inadequacy 206 11. Because trustee sold to himself . 206 12. Where by mistake a man bought his own estate 206 CONTENTS. XVll 14. Effect of imprnpcrly charging fraud, 207 15. Because defect in title concealed . 207 16. Where a pu7'chaser by tnisfake gets a larger interest .... 207 17. Eviction not necessary to relief . 207 18. Because remainder sold had been barred 208 \Q. Action of deceit 208 20. Dobell V. Stevens 208 2 1 . Act ion for money had and received, 209 22. Fuller v. Wilson 209 23. Cornfoot v. Fowkc 210 24. Ride in equity 211 25. Purchaser's general remedy , . 211 2G. Acquiescence bars right . . . 211 27. Time enlarged for payment of interest 211 28. Limited ti77ie to take objection . 211 29. Confrmation releases right . . 212 30. Although new circumstance of fraud discovered 212 31. Acquiescence tvhere fraud and opp7'essio7i 212 32. Confirmationwherefraud: whether fraudulent transaction can be purged Relief against sub-purchaser . . Requisites to valid confirmation . Time a bar to relief Statutory bar : equitable bar . . 'yPi'ofit and loss by stock: inte- J rest 213, Purchaser, how charged . . . Occupation rent : improvements . Not interest vpo7i interest . . . . Repai7's after notice of defect in title Conversi07i of shop into pi'ivate house Power of Court where bill is dis- inissed After an injunctio7i : intei-est . . Re-transfer ofsu77is after o'cvei'sal of decree — No i7iterest iipon costs — Power of Court after re- versal, and cause remitted . . . Bill dismissed after decree, upon defe7idant's default .... , Whether 2}urchase-i7ioncy can be followed 212 212 212 213 213 214 213 214 214 214 214 214 214 215 215 215 CHAPTER VI. OF THE TIME ALLOWED TO COMPLETE THE CONTRACT. SECTION I. OF THE MATERIALITY OF TIME 1. Lunar or calendar months . . p. 21G 2. Time essence of contract at law . 21G 4. Langv. Gale 217 5. Observations upon it 217 6. Where no time fixed ; rights nf i^endor 218 7. Waived at law 219 9. Waived or e7ilarged by writing or parol 219 10, Where not 7naterial in equity . . 219 SECTION II. OF DELAYS OCCASIONED BY THE NEGLECT OF EITHER PARTY. 1. Ti7ne ?'?» equity, a bar — Diligence necessa7-y in equity — In equity both pai'ties must be active — Waiver by receipt of abstract after the day p 2. Where re7idor loses his re7nedy — There must be gross negligence . 3. Time required for repairs, or to get possession 221 219 220 4. Effect of delay by purchaser — Un • willi7ig purchaser 221 5. Reversion sold : time important . 221 6. Or if sale is to pay debts, 6fc. — Or by ecclesiastical coi-porafion, 221 7. Abandoimient of contract after decree 222 XVlll CONTENTS. SECTION III. OF DELAYS OCCA&IONED BY THE STATE OF THE TITLE. 1. Delay through title not material, p. 222 2. Vendor should file a bill Pro' curiny title after filing bill . . 222 3. In equity, time ailoived .... 223 4. Purchaser not bound where new suit necessary — Or an account of debts to be taken 223 5. Title should be at date of certificate, 224 0. Purchaser proceeding with know- ledge of defect 224 7. Acceptance of abstract with notice, 224 8. Dormant treaty 225 9. Title too late after purchaser has abandoned — Delay in filing a bill, 225 10. Waiver of time by vendor . . . 225 11. By purchaser, and new delay . . 225 12. Vendor may rescind contract where money cannot be paid .... 225 Time in equity may be essence of contract 226 Time made of the essence against the purchaser : delay by the vendor When not of essence, time may be fixed by notice Parkin v. Thorold Roberts v. Berry Time for delivery of objections: means to perfect abstract . . . 229 19. Reference as to time 229 20. Waiver of time in payment con- fined to one instalment . . . 229 21. Rule in equity where no time limited 229 14. 15. 16. 17. 18. 227 227 228 228 CHAPTER VII. OF THE CONSIDERATION. SECTION I. OF UNREASONABLE AND IN Uyireasonable price, yet specific performance p. 230 Unless there befraudor concealment, 231 Or there is gross inadequacy — Fall in value immaterial .... 231 Purchaser seldom relieved after co7iveyance 231 Inadequacy of jirice no bar — Sale by auction 231 Life annuity 231 Concealment by purchaser . . . 231 Misrepresentation by purchaser . 232 Both parties ignorant of value . 232 Seller seldom relieved after con- veyance : gross inadequacy . . 232 Unless ignorant of right, and pur- chaser aware of it — Or advantage taken of distress — Additional consideration of love and affection, 233 Heir dealing for expectancy fa- voured 233 Although unprovided for . . , 234 Purchaser to prove adequacy . . 234 Dealings between father and son . 234 Sellers of reversions not heirs — Bulk of estate sold reversionary, 234 Loan under mask of trading : King V. Hamlet 234 Where sale of reversion valid — ADEQUATE CONSIDERATIONS. Gowland v. De Faria : value by the tables, and market price . . 235 21. Evidence of surveyors .... 235 22. Sale by auction valid — Or where person in possession joins . . . 236 23. Where contingency cannot be va- lued 236 24. Mis-statement of consideration . 236 25. Hotv adequacy to be shown . . 237 26. Delay and confirmation .... 237 27. Sale set aside, upon what terms . 237 28. Improvements allowed for . . . 237 29. Price to be fixed by arbitrators — ! Cannot delegate authority . . 237 30. Where Court ivill fix the price . 238 31. Not where parties chosen — Umpire, 238 I 32. Ap2}ointment to be communicated, 238 ! 33. Failure by arbitration : death — I Nomination of arbitrator cannot be comjyelled 239 34. Where award after death of party binding 239 35. Acquiescence in informal award — Injunction refused, where autho- rity revoked 239 36. Statutory aids to arbitraments . 239 37. Right to appoint neiv arbitrators . 240 38. Right to appoint an umpire . . 240 39. Attachment .- action 240 CONTENTS. XIX SECTION II. OF THE FAILURE OF THE CONSIDEUATION BEFORE THE CONVEYANCE. 1. Purchaser to bear loss by fire, Sfc, after contract p. 241 2. Not where jiurchase under decree not confirmed absolute . . . 241 3. After confirmation, liable fior con- sequences of house falling . . 241 4-1 '■Purchaser entitled to benefit, 241, 243 5. Validity of title 242 G. Wyvill V. Bishop of Exeter: 2)re- sentation 242 Deeds destroyed by fire .... 243 Lives droppiny in 243 Sale for life annuity: purchaser entitled though life drops . . . 243 Necessity of paymeiit, or tender of payment due 244 Where seller may retain estate and purchase-money .... 244 Sale of life annuity enforced though life drops 245 13. Seller to become tenant .... 246 10 11 12 CHAPTER VIII. 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 1. Sale of lease for more years than seller has p. 2 1 y. Substantial stateme7it sufficient . 5. Small deficiency of term : sale good in equity 7. Effect of suit after sale, to rectify the lease sold 8. Underlease sold as original lease . i). Whether purchaser of old lease bound to take a netv one . . . 10. Or seller to grant underlease vho sold the whole lease .... 11. Where purchaser may object to liability as assignee .... 12. Rent and interest on sale of lease- holds 13. Purchaser of freehold not bound to take leasehold 15. Nor copyhold 16. But seller selling freehold or copy- hold bound 17. Purchaser of copyhold not bound to take freehold 18. Sale partly freehold and partly leasehold 20. Seller obtaining a renewed lease after the contract 24. Reversionary interests not forced upon purchaser of possession . 26. Com2)ensation for roads not made, NOT 247 247 248 248 248 249 250 250 250 250 251 251 251 251 252 252 253 THE 27. 28. 29. 30. 31. 32. 33. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. INTEREST WHICH HE SOLD. Purchaser may take partial interests, Dale V. Lister Milligan v. Cooke Indemnity not compelled • . . Contract upon mistake of interests, Lawrenson v. Butler .... Sale by tenant for life, i(c. not par- tially enforced against purchaser. Lord Eldon's opinion of jiw>'~ cJiaser's right against seller . . Thomas \ . Dering : right denied . Remainder-man selling fee in pos- session bound Trustees selling contrary to ob- ligation Effect of expenditure by purchaser. Misrepresentation by purchaser . Void lease '. . . Rights incapable of compensation. Acquiescence by 2)urchaser . Right of common not disclosed — Limited right, and unlimited sold — Sheepwalk represented as freehold Right to dig mines — Easements . Charge of repairs of chancel . . Fee-farm rent: at law .... Quit rent : in equity — Rentcharge in equity No indemnity Quit-rents less than stated . . . 253 253 254 254 254 254 255 255 255 257 257 257 257 257 258 258 258 258 258 258 259 259 259 XX CONTENT.S. SECTION II. OF WANT or TITLE TO A PART Mistake as to mhat is sold — Uucev tain property p. 2G0 Wafit of title to part fatal at law — Separate valuations .... 'JCO Enforced partially against 2>u>'- chaser where part small . . . 261 Want of title to approach — Condi- tion 2G1 Want of title to strip hetwcen the house and road 2G1 Sale of house and wharf . . . 2C1 Not binding on pm^chaser ichcre portion large — Purchaser'' s right against seller where no title to large part 2G2 ^Not hound to take shares . . . 2G2 But may elect to do so .... 2G2 Right reserved to rescind if want of title 2G3 Wheatley v. Sladc, semhle against purchaser's right to shares . . 2G3 OR TO A SHARK OK THE E.STATK. ' 14. Jones \.Eva7is. Croomev. Lediard. , Wa)it of title to shares or part . 261 15. Contract by 07ie tenant in common, 264 ; 16. Mutual contracts 264 j 17. Lease containing more than held j under it 2C4 I 18. Sale inlots good as to those with title, 265 ' 19. Unless complicated with the rest — Right of common 265 20. Rule acted ttjjon at law .... 265 21. Right of way 265 22. Lord Kenyan' s doctrine — The pre- sent rule 265 23. Where the seller has not all the tithes he sells 266 24. Where the estate is not tithe free, 266 29. Commutation of tithes by statute, 267 30. Land-tax and tithe-rent charge . 266 31. Purchaser freed from, land-tax redeemed irhei'c conditions am- biguous 268 32. Purchaser's right bound by his conduct 268 SECTION III. or DEFECTS IN THE QUANTITY OF THE ESTATE. 1. Compensation for deficiency . p. 2G9 2. Though not sold by the acre . . 269 3. Lands conveyed by estimation . 269 4. Condition excluding compoisation, 269 5. Co7itract for sale by estimation — By estimation, more or less — Ex- cess — Deficiency not to be an- swered for 269 6. Fraudulent statement .... 270 7. Purchaser's knowledge of estate . 270 8. About the quantify stated: plan . 270 9. Principle of abatement .... 270 10. Where quantity greatly exceeds that sold 270 11. Sale not in the lump 271 12. Lands shown to purchaser, but excepted in conveyance . . . 271 13. Sale by particular, and part omit- ted 271 14. Where more is conveyed than icas sold 271 16. Contract not evidence as to what 2)asscs by the conveyance . . . 271 17. General description: copyholds . 271 18. Contents of an acre: old law . . 271 19. Customary acres 272 20. Contents of an acre : new law . . 272 21. Contracts, how affected by statute, 21'2 SECTION IV. OF DEFECTS IN THE QUALITY OF THE ESTATE, Caveat emptor p. 27.3, 278 2.^ 21.J ■3. Right of way not stated . ... 273 4. Legge v. Croker 273 6. Gibson v. D'Este 273 6. Sale after contract with railway . 274 7i Uncommonly rich water meadow . 275 8. Residence for a respectable family, 27o 0. House in different county — IVhere house will not answe7'for purpose intended 275 10. IVhere ptirchaser supposed convey- ance u-ould operate differently . 27-3 11. False descrijytion 275 12. Of state of repair 276 13. Notice to repair not disclosed . . 276 14. Where purchaser knoics the de- scriptioji is false 27G CONTENTS. XXI 15. Description not lindlng, if pur- chaser hare not full Joio wledge ( I ), 270 10. Statement of annual produce of woods 277 17. Error for and against the seller . 277 1 8. Repairs not subject of compensation ■when possession required — Cut- ting doirn ornamental or ordi- nary timber after contract . . 277 19. Faults in a mine do hoi avoid the contract 277 20. Latent defect which purchaser can- not discover — Sale with all faults, 277 21. The scienter 278 22. In the case of title 279 23. Concealment of defect .... 279 24. Purchaser waiving his right . . 279 CHAPTER IX. OF AGREEMENTS TO ACCErT A TITLE, AND OF WAIVING OBJECTIONS TO TITLE, AND OF THE REMEDIES WHERE THE TITLE IS IN DISPUTE. SECTION I. 280 281 282 282 G. 7. 8. 9. 10. 11. 12. 13. 15. IG. 17. 18. 19. 20. 21. OF AGREEMENTS TO ACCEPT Right to good title, although seller claims tinder purchaser . . p, General right to good title — Con- dition to accept the title as it is, Must be free from ambiguity . Stipulation as to title, where no representative of legal estate Sale under power without the notice required 282 Pre-emption: title 283 Clarh V. Faux 283 Corrall v. Cuttell 284 Sale of benefit of proposal : tolls . 284 Parties bound to fair performance of conditions 285 Contract to be void if purchaser's counsel object to title .... Solicitor buying from client with a title which he accepted . . . Possession a ivaiver of objections — Should be put in issue . . . Waiver a question of fact — For- cible possession by purchaser . Right of sporting first disclosed in abstract 28G Possessioti ivith long delay, a ivaiver, 286 Although purchaser swear he did not mean it 287 Lease by a purchaser to one in possession 287 Possession under contract nowaiver, 287 Or with vendor's conciirrence . 287 A TITLE, AND OF WAIVING OBJECTIONS. 23. And acts of ownersliip do not bind, 24. Reselling where a waiver . 2G. Or preparation of conveyance . 28. Notice of limited title binding 29. Purchaser not bound by his coun- set's opinion 30. Nor by his solicitor's statement to counsel, if seller file a hill — Waiver by counsel 31. Objection taken when too late to be remedied, a device .... 32. Purchaser accepting abstract may prove title bad 33. Waiver of objections to title, but not to proof 34. Acquiescence a waiver .... 37. Possession : interest and costs 38. Seller turning purchaser out of possession, hasno equity — Waiver restricted by subsequent acts 40. Waiver, and then bad title pro- duced 41. Purchaser rejecting title, should relinquish possession .... 42. Purchaser keeping back one ob- jection 43. Opinion taken on title, no waiver of collateral objection .... 44. Authority of agent to waive . . 45. Letter by solicitor's clerk, ivithout authority 287 288 288 289 289 285 28G 286 286 289 289 289 289 289 290 290 290 290 290 291 291 291 SECTION II. OF TITLE : IN SUITS IN EQUITY. 5. Or ivhere seller can clear up ob- jections G. Objections to report of title . . 7. Purchaser plaintiff, and there is no title Seller ivith equitable estate . p. 292 Doubtful title 292 Reference of title 292 Reference back ivhere new fact . 292 (I) This should bt collected i 293 293 291 p. 27 -J XXll CONTENTS. in. 17. 18. 19. 20. 21. 22. 23. 24. 26. Statement in hill of want of title, Olijections considered by Court . Reference of title vpon motion Unless other questions raised . . Not frivolous Vendor's delay — Dismissal of hill. Purchaser after answer enforced may make any defence, although title referred Objections under the new practice, What may be referred .... Decree without reference tvhere delay Deposit ordered into Court New evidence upon the reference, Report or certificate where legal estate outstanding Pendency of a suit for the estate. Report of conditional title bad . Where exception should stand over. Purchaser not to file a cross bill if title bad 294 294 294 294 295 295 295 295 295 295 295 296 296 296 296 296 296 27. Opinion of conveyancing counsel . 297 28. Bad title, no decree for jnirchaser, 297 29. Purchaser may take bad title . 297 30. Seller obtaining good title after conveyance 297 31. Man buying his own estate . . . 298 32. Sale of a remainder already barred 298 .33. Purchaser neglecting to examine title 298 34. Sale of pretended title— Sale of estate contracted for, good . . 298 35. Sale of estate if it shall be devised to seller, valid 298 36. Salefor a lottery illegal: purchase- money 299 37. Conveyance to multiply votes . . 299 38. Champerty — Maintenance . . . 299 39. Sale of advoivson whilst incumbent in extremis 299 40. Slander of title 299 SECTION III. 1. Injunction until Master's report of title p. 2. Title to be jiroved bad .... ^.'\ Damages.— None for loss of bar- f 4. J gain I, .5. What expenses may be recovered, 6. No damages for loss by the funds, 7. Interest on deposit recoverable . 8. And expenses of investigating title, 9. But not as money had and receiv- ed, Sfc IN ACTIONS AT LAW. 10. Costs of survey 303 300 12. Right of action in purchaser's 300 personal representative . . . 303 300 13. Costs as between attorney and 301 clie7it 304 302 14. Particular of objections of law . 304 302 15. Averments by seller of title . . 304 302 16. Tender of conveyance unnecessary 302 if title bad 304 17. Seller restrained from bringing an 303 action after bill dismissed . . 304 CHAPTER X. OF THE TITLE WHICH A PURCHASER MAY BEQUIEE. SECTION I. OF THE ROOT OF THE TITLE, AND 1 . Sixty years : old rule ... p. 2. Not altered by new law . . . 3 "1 .' yWhere earlier title can be required, 4. J 5. New statute of limitations . . . 6. Lay tithes 8. Modus 9. Advowson 10. Lessor's title must be produced . 1 1 . Unless I he purchaser kneiv it could not be produced OF THE TITLE TO VARIOUS DESCRIPTIONS PROPERTY. 305 12. Or he agree to ivaive it . . . . 305 13. A purchaser may show the title is bad aliunde 14. Bisltoji's title not required . . \i>. Root of lessor's title . . . . 16. Renewable leaseholds .... 17. Root of that title 18. Leasehold title 19. Lessor's consent to be obtained by seller — Covenants broken , . 20. Equitable title OF 308 306 306 306 307 307 307 307 308 308 308 308 309 309 310 310 CONTENTS. xxni 21. 22. 23. 24. 2G. 27. 28. 29.- 30. 31.. 82. 33. 34. 35. 36. 37. Title to enfranchised copyhold . 310 To estate taken in exchange . . 310 To allotments under Inclosure Acts 310 To exchanges under inclosures . 31 1 2'o exchanges iti common yields . 311 To allotments where made gene- rally 311 Sale before award — Liability to fencing, planting, ^c. . . . 311 I Where award carries the legal f estate 312 Cautions to be observed in pur- chasing allotments — Exchanges, 312 Possession before the award . . 313 Where jmrcliaser not entitled to allotment 313 Title to strips of land . . . . 313 To encroachnenls 313 To easements 313 To pews wilh a messuage . . . 313 To mining shares 314 To railway shares : calls . . . 314 Tenant in common selling to co- tenant must produce elder title to entirety 314 Assignees of ban/erupt must jjro- duce a good title 314 Purchase of chose in action : notice to be given 314 Notice unnecessary against subse- quent insolvency 315 What notice necessary .... 315 Notice xinnecsssary where no sub- sequent notice 315 Notice to purchaser binding . . 315 Does not apply to equity of re- demption of estate: Railway shares 315 Liabilities of 2)urcliaser of chose in action 316 SECTION 11. OF A TITLE WITH 1. little subject to a charge, bad . p. 316 2. Fee farm rents on estates sold and others: title bad. — Purchaser not bound to take indemnity . 316 3.'yPoiver of re-entry in lessor not a C 317 9./ subject of indemnity . . ,X 318 4. Like power, sale in lots, and an indemnity to seller .... 317 AN INDEMNITY. 5. Arbitrator cannot awardindemnity , 318 6. Seller not bound to give indemnity, 318 7 ) ^^Apportioned rent 318 9.1 Stipulation for a charge on one > lot as an indemnify. — Repair 10. J of chancel 318 11. Nature of indemnity 319 SECTION III. OF DOUBTFUL TITLES. 1. Title to be sifted p. 320 2. Purchaser favoured : Cases to courts of laiv. — Doubtful title not enforced in equity . . . 320 4.1 r 321 >House of Lords adopts the 7'ule .'. 5. What is a doubtful title . . . 321 6. Moody V. Walters. Biscoe v. Perkins. — Biscoe v. Wilks . . 322 9. Purchaser buying-in the adverse title 323 I. Of good and doubtful Titles in equity. 11. Title under destruction of contin- gent remainders or Statute of Limitations, good. — So where Crown is barred 323 12. To strips of land 325 13. Against a claim for vendor's lien, 326 14. Bare possibility no objection . . 326 1 5. Nor suggestions : or suspicions . 32G 16. Mines reserved to Croivn. — Mines iinder common .• ichere no objec- tion 326 But if mines, title bad .... 327 Or regulations as to planting, &(c. 327 Susjiicion of fraud in aj)pointment to child 327 Bill filed by adverse claimant . . 327 Existing right an objection . . 327 General description of parcels . 328 Effect of notice to second pur- chaser 328 Reversion : incumbrances . . . 328 Sale under power in mortgage . 328 Bankruptcy 329 Seller's title under a conveyance from his son 329 1 Equitable title bouglit under de- J cree valid 329 Not as against sub-jjurchaser . 330 Purchaser going in before Master, 330 XXIV CONTENTS. 34. Infant heir of seller 330 30. Iiifmit trustee Acts 330 37. Presumption of conveyance, or of surrender of term 331 II. ()f'j,'()0(l and doiibtl'ul Titles at law. 38. Good titles at law. — Doubtful title not recognised 332 39. But adverse right fatal .... 332 40. Equitable objections allowed at laiv, 332 41. Seller must have the legal estate . 333 42. Sale by executor before decree in administration suit .... 333 III. Titles depending upon questions of fact. 43. Fact not admitting of proof . . 333 44."! Deed depending upon extrinsic 45. J circumstances 333 334 334 334 334 4G. Doubt raised by devise of shares where entirety sold .... 47. Nouaille v. Greemvood .... 40. Title dejjending upon proof of party answering a description . . . 50. Doubtful reference by codicil to a will 51 . Construction of ill-penned shifting clause : residence 335 52. Laio decided, yet unsettled . . 335 53. Judgments : notice ..... 335 54. Issue upon ^iedigree 335 55. Doubt as to legitimacy .... 335 57. Doubtful fact at lata .... 336 CHAPTER XI. 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. 1. Commencement of abstract . . p. 336 2. Purchaser entitled to an abstract, 336 ^.'\ Abstract of ancient deeds cannot 5. / be required 337 4. Hoiv it should be written — Hoiv headed 337 5. What deeds should be abstracted, 337 G. Printed copies of inclosure Act . 337 7. Description of parties .... 338 8. Recitals 338 9. Witnessing part 338 10. Granting part 338 11. Parcels— Map 338 12. Exception 338 13. Habendum 338 14. Limitations and uses 338 15. Provisoes for cessor 339 16. Trusts 339 17. Powers 339 18. Covenants 339 19. Executions : attestations . . . 339 20. Receijjt 339 21. Registry 339 22. Intestacy 339 23. Leasehold title 340 24. Renewable leaseholds .... 340 25. Attendant terms 340 26. Descent 340 27. Wills 340 28. Acts of Parliament 340 29. Judgments and Crown debts . . 340 30. Decrees 340 31. Fiats in bankruptcy 340 32. Liability of seller^ s solicitor . , 341 33. Purchaser's solicitor to examine the abstract 341 34. Where examination may be de- layed 341 ] . Perusal at one sitting . , 3. Notes 342 4. Opinion book 342 5. Parcels 343 6. Dates : new laws 343 7. Evidence 343 8. Office copies, extracts, probates, &rc 343 SECTION II. OF PERUSING ABSTRACTS. . p. 342 I 9. Pedigree: certificates: receipts . 344 10. Registry : enrolment : execution : attestation 344 1 1 . Negative answers 344 12. Searches 345 13. Court rolls 345 14. Expense of searches 345 15. Power of attorney 345 CONTENTS. XXV 16. Evidence p. 346 17. Evidence admitted, and hoxv acted upon 346 18. Formal evidence 346 19. What formal evidence notrequired, 346 20. Weight of evidence 347 21. Presumptions admitted .... 347 22. Negative evidence 347 f-^Pedigrees {^'l 24. Recitals 348 26. Register of birth, &^c 349 ^1 . Presumptions of legitimacy . . 349 28. Title by descent 349 29. Declarations in proof of title . . 350 30. Certificate of broker 3.j0 31. Opinion of conveyancing counsel . 350 32. CounseVs opinion not binding on purchaser. Counsel and solici- tors bound to secrecy .... 350 SECTION III. OF THE ABSTRACT, AND OF COMPARING IT WITH THE DOCUMENTS. Abstract when complete . Although incumbrances exist , p. 351 f 351 r jnimuayii iitvumu/ uiiLCS tu,tsc, . .'> n-cy Effect of facts which require evi- dence 351 Where the contest is whether the legal estate is outstanding — Where it is admitted .... Tenant in tail need not bar the entail before completion . . . Abstract to show a good title — Exception under conditions . . N'o ijiquiry in suit whether perfect. Acceptance of abstract .... Restricted abstract by contract . Of the title of a tenant in common. For what pmposes abstract deli- vered — Purchaser's property in it Right to opinion 056 Seller to produce the deeds . . 356 Place for examination .... 356 At a third person's — At a distance, seller to pay expense — So in sale by Court 357 353 353 354 354 355 355 355 355 18. Agent in London to examine ab- stract . 357 19. Southby v. Hull : verifying ab- stract 358 20. Purchaser not bound to go to record offices 358 21. Grant from the Crotcn: impropri- ate tithes: tithe reritcharges . 358 22. Notice to purchaser of place of production 358 23. Seller having covenant to jjroduce deeds must jjroduce them . . . 358 24. Promise to produce deeds . . . 358 25. Deeds burned after examination . 359 26. Coynes of court roll 359 27. Abstract to be examined before purchaser act as owner . . . 359 28. Expense of exainination where no title 359 29. Purchaser 7ieglecting to call for deeds for examination .... 359 80. Expense of contract includes mak- ing out title 359 SECTION IV. OF A purchaser's RIGHT TO THE DEEDS. 1. Title deeds go with the inheritance — Pledge by seller of conveyance, an escrow p. 360 2. Right of purchaser to folloiv the deeds 361 3. Deeds left with purchaser to jjre- pare conveyance 361 4. Sale of part without stijnilation . 361 5. Where seller is under covenant to ])7'oduce 361 6. Leaving deeds in seller's custody . 361 7. Arrangement u-here estate in mort- gage 362 8. Deposit of deed, ivhere sufficient . 362 9. Nature of evidence 362 10. Assignments lost 363 11. Lease for a year lost .... 363 12. Recitals as evidence 363 13. Evidence where deeds lost or de- stroyed 363 14. Title without deeds 364 15. Seller to execute neiv conveyance if old one burnt 364 16. Whether covenant to produce is within covenant for further as- surance 364 17. Purchaser's right to evidence after conveyance 304 18. Relieved if fraud, i;c. .... 364 C XXVI CONTENTS. 19. Execution of title-deeds not to be proved p. 364 20. Laythoarp v. Bryant .... 365 21. Will to tie produced though seller heir 365 22. Not to he proved against heir , . 365 23. Whether the deeds are trans/erred with the seisin 366 24. Grant of deeds ...... 367 25. Yea v. Field 367 SECTION V. OF THE PRODUCTION OF DEEDS IN EQUITY AND AT LAW. Settlement relating to property of several owners : partition . . p. Right of purchaser where he has no covenant to jjrodtice . . . Tenants in common, Sfc. . . . Holder of deeds becoming mort- gagee Vested remainder-man and pur- chaser under him 369 368 369 369 369 370 6. Contingent remainder-man . . 370 l.'y Mortgagee in fee under tenant for 8. J life, with the deeds .... 9. Production of deeds in a suit, where the conveyance is im- peached 370 10. Production at law 371 11. Mortgagee consenting to sate . . 371 SECTION VI. OF ATTESTED COPIES AND COVENANTS TO PROD^TCE DEEDS. 1. Purchaser entitled to attested copies — Unless on record — And of them if in seller's custody . p. 372 2. Covenant to produce copies of court roll — Cooper y . ILmery . 374 3. Or bargain and sale enrolled . . Wlo 4. Right to attested copies not ex- cluded by agreement to produce deeds 375 5. Purchaser entitled to covenant to produce 375 6. Who is to covenant 376 7. Sellers though assignees . . . 376 8. Negative evidence 376 9. Equitable right to production in- sufficient 377 10. Seller having only a covenant to produce 377 11. Proviso to determine covenant . 377 12. Covenant, how framed as to copies, 377 13. What deeds it should comjjrise . 377 14. Whether a covenant to produce can be enforced under covenant for further assurance .... 377 15. By whom to be entered into — The covenant runs with the land pur- chased — Whether with the land retained — Rule in equity . . 377 CHAPTER XII. OF THE NEW LAWS OF REAL PROPERTY, AS CONNECTED WITH TITLE. SECTION I. OF TITLE WITH REFERENCE TO DOWER, DESCENT, AND WILLS. 379 380 381 381 I. Of Dower. 1 . Dower of trustee's ivife . . . \ 2. Doicer of equitable estates . . 3. Eviction of dotver lands not nolo material to purchaser .... 4. Exceptions out of new dower act, 5. New right of doiver — Husband's power over dower by disposition, 382 6. Covenants binding in equity — Pur- chaser's inquiry 382 II. Of Descent. 7. Descent to be traced from the purchaser — Actual seisin unne- cessary 382 8. Descent to be proved to exclude title as purchaser 382 9. Son of illegitimate father . . . 382 10. Heir, though devisee, to take by descent : grantor or his heirs also 383 11. Descent from brother or sister — Lineal ancestors heirs to issue — Male line before the female — Preference of mother of more remote male ancestor .... 383 12. Half-blood admitted — Attainder not an impediment 383 13. Limits of act 383 CONTENTS. XXVH 14. Possessio fratris abolished . . p. 384 15. Examination of pcdujrec . . , 384 16. Children born abroad of a mother, natural-born subject — Wife of natural-born subject, Sfc, natu- ralized 384 III. As to Wills. 17. What may be disposed of by will — Will to speak, when — Lapsed devises fall into residue — Cojjy- hold and leasehold pass with freehold under yeneral devise — So estates subject to general powers Fee passes without words of limitation — Die with- out issue, Sfc. — Estates tail, 8fc. — 7iot to lapse 384 18. Revocation and revival of wills . 385 SECTION II. OP TITLE UNDER TENANT IN TAIL (I). 386 11. New law : 3 <^ 4 Will. 4, c. 74.— Where defects in existing reco- veries are amended — Ancient de- mesne — Court ivithout jurisdic- tion — Errors apparent from deed amended in fines — So in reco- veries — How acted upon — Re- coveries defective rendered valid p, Tenant in tail can acquire the fee simple — Estates tail in contin- gency or divested — Confirmation of voidable estate 388 Protector 388 Where a seller of a remainder may bar it 388 Base fee may still be acquired by tenant in tail in remainder . . 388 Poiver of protector absolute — His consent necessary Uncontrol- lable — Consent cannot be revoked — Married woman''s consent as protector 389 Contracts by tenant in tail of no force, except as against himself. How assurance is to be enrolled, ^'c. — Married ivoman tenant in tail Protector how to consent . . . Equitable jurisdiction excluded — Equitable estates tail — Base fee independently of act — Confirma- tion of voidable estate .... Estates pur autre vie and chattels, excluded 390 389 389 389 390 12. Purchaser's title under the act — Legal and equitable tenants in tail 13. 0/" copyholds — How to convey : consent of protectors Where the consent is not by deed . . 14. Equitable tenant in tail of cojjy- holds — Prior purchaser without notice protected — Enrolment 15. Poioer of commissioners of bank- rupt over estates tail and base fees 16. Consent of protector -. bankruptcy, 17. Base fee in imr chaser enlarged by act 18. Where voidable estate confirmed by act of commissioner — Saving of right of a purchaser without express notice 19. Bankrupt's estate 20. Dispositions by married women — Power of married woman not tenant in tail — May release right of doiver ........ 21. Powers: deeds: married ivomen, 22. Surrenders of copyholds by mar- ried ivomen — Power to dispense with husband's concurrence (II), 23. Enrolment, &(c. of deeds executed by her as tenant in tail, pro- tector, or owner 24. May disclaim by deed : disposition of contingent interests .... 25. Operation of enrolment — Confiict- ing rights qf purchasers . . . 390 391 391 392 392 392 392 393 393 393 393 394 394 394 1. Right extinguished . . . . p, 395 2. Twenty years a bar 396 3. Mere possession sufficient . . . 396 SECTION III. OF A TITLE BY NON-CLAIM. 4 When time accrues 396 Where party has been in posses- sion — Where a deceased person (I) 4 & 5 Will. 4, c. 92, for Ireland ; Sugd. Essay on St.it. 249. (II) In second line of pi. 22, strike out " and," and insert " in." c2 xxvm CONTENTS. was last in jjossession — Where a grantor was last in 2)OSsession — Trustee of term .... p. 30G G. Where any payment has been made to a mortgagee .... 397 7. Summary — Twenty years a bar, although case not within the instances stated Rent newly created by will 397 8. Reversionary estate, and no jws- session Executory devises Forfeiture, or breach of condi- tion — Remainder-man may ivait till possession fall — Concurrent rights 398 9. Administrator 398 10. Tenant at will, possession by . . 398 11. Tenant from year to year without lease in tcriting, possession by . 399 12. Tenant tinder lease at a rent of 20 /., or more, jiossession by . . 399 13. Possession by coparcener, and the like, or by heir 399 14. Acknowledgment of title in writing, 400 15. Savings Forty years the full period 400 16. Imperfect conveyance by husband and wife 400 17. Forty years not a perfect bar . . 401 18. Bar of tenant in tail bars re- mainder — Where time has run against him — Where he dies be- fore time is out Possession under an imperfect assurance by him — Does not operate re- trospectively Base fees, hoio affected — Voidable fees . . . 401 19. Bars in equity same period as at law : express trusts : concealed frauds 402 20. Charities 402 21. Filing a bill — Appoiiitment of re- ceiver — Acquiescence, lifC • • 403 22. Mortgagor out of possession — Acknowledgment 403 23. Wheremortgageeis tenant for life, 403 24. Time for sjnritual and eleemosy- nary corporations 403 25. Advowsons — One hundred years full period 403 26. Twenty years a bar of money secured upon land, &fc., or legacy Vendor's lien Judgment creditor barred 404 27. Legacy become a trust — Judgment creditor 404 28. Doxcer, rent or interest .... 405 30. Judgments 405 31. Interest 405 32. Moduses or exemptions, thirty years ; sixty years Corpora- tions sole 406 33. Decrees — 1^7iat time excluded . 406 34. Disabilities 407 35. Tithe Commutation Act . . . 407 36. Lights, tiventy years .... 407 37. Rights of common, Sfc, thirty years : sixty years 407 38. Ways, watercourses, twenty years : forty years 408 39. Time, how to be computed . . . 408 40. Nature of enjoyment 408 41. Tenancy for life 409 43. Presumptio7i inadmissible . . . 409 44. Title to a purchaser 409 SECTION IV. OF THE NEW LAWS RELATING TO DEEDS AND TERMS OF YEARS ; AND TOWERS. 8 (^ 9 Vict. c. 106; lease for a year; feoffment ; leases, assignments, surrenders ; exchange, jiartition ; "give," or "grant" ; stranger to deed; indenting deed; conveyance of contingenqies, (^'c. ; disclaimer by married woman ; contingent remainders saved; inerged rever- sion p. 410 2. 8 ^ 9 Vict. c. 112; merger of at- tendant terms 411 3. Object of the Act 411 4. 12 (^- 13 Vict. c. 26; 13 4-14 Vict. c. 1 7 ; giving validity to certain void leases under powers . . . 412 5. Poivers of sale in Court of Chancery over settled estates . , . t . 412 CONTENTS. XXIX CHAPTER XIII. OF SEARCHING FOR INCUMBRANCES AND OF RELIEF AGAINST INCUMURANCES. SECTION I. OF SEARCHING FOR INCUMBRANCES. 1. Judgments mtist be stated in ab- stracts p. 414 2. Under the old lata, judgments after payment of purchase-money not binding 071 purchaser .... 414 3. Forth V. Duke of Norfolk ... 413 4. Operation of contract onjudgments under old laiv 415 5. Judgments bound estate contracted for 415 6. Mortgagee without 7iotice buying equity of redemption 7iot bound by judgments 415 [ Trust estate, how far liable: trust I for sale ; purchaser 7iot liable : I Lodge v. Lyseley : Foster v. [_ Blackstone 416 Purchaser without notice pro- tected by a term 417 After-purchased lands bou7id . . 418 Judgments defeated by an appoint- ment 418 Judgment creditors U7ider a decree, 418 Old judgme7iis : equity of redemp- tion of a term not bou?id . . . 418 Purchaser with notice bound by undocketed judgment .... 418 Moiety only bou7id, unless two judgments of the same term . . 418 Judgments under the New Law : 19. Bind the whole estate, legal or equitable, a7id copyholds and general poivers — A7i actual charge and bind issue and othe7's who could be ba7'red .... 419 20. Palati7ie courts registry : inferior courts 420 Decrees, S(c. equal to judgtnent . 420 Operation of Act 421 Leaseholds bound at laiv and in equity 421 So an annuity 421 And a mortgage : mortgages paid off 421 26. A7id binds surviving joint tenant . 422 27. Operation on powers 422 28. And on estates tail and remainder, 422 29. Operation of act as a charge . . 422 7. to 11. 12. 13. 14. 15. 16. 17. 18. 30. But p7'ior equitable mortgage, or the like, preferred 31. To bind a ptirchaser must be regis- tered : nature of registry . . 32. And re-registered every five years : explained 33. Shaw V. Neale ,- Beavan v. Lord Oxford 34. Notice not bi7iding of judgment not registered or re-registered . 35. Effect of notice under 1 iS,' 2 Vict. c. 110, and 2 Vict. c. II— Pur- chaser protected — A7id under 3 .S,- 4 Vict. c. 82 36. Operation of stat7ites—When re- gistered judgments bind — Judg- ment after payme7it of purchase- money still not binding — Effect of contract 37. Pm-chaser ivithout notice, a mort- gagee, protected 38. Trust estate, how far liable . . 39. Trust for sale, purchaser not liable 40. Purchaser without noticeprotected by a p7'ior legal estate .... 41. Judgments 7iot defeated by an appoi7itme7it : ptirchaser .■ . . 42. Leaseholds : equity of redemption, 43. Copyholds 44. Search for jttdgmenis .... 45. Although a register county . . 46. Judg7nents against tenant in tail, 47. Purchasers before the \st of Octo- ber, 1838, protected .... 48. Whe7i search should be tnade . . 49. Forfeiture of charge by taking per- son in execution 50. Judgments against bankrupts . . 51. Sloper v. Fish 52. Sha7-pe v. Roahde 53. Search against banhmpts . . . 54. A7id against insolvents .... 55. Mistakes in registry 56. Co7itribution 57. Remedy against any part . . . 58. Cowt 7nay enter up satisfactioii . 59. Search for insolve7icy a7id bank- 7-uptcy . c 3 423 423 425 426 427 427 428 429 429 429 429 429 429 430 430 431 431 431 431 432 432 432 433 433 433 433 433 434 434 434 XXX CONTENTS. 60. Enrolment of proceedings . . p. 61. Protection to purchasers against unregistered certificates of ap- pointment of assignees . . • 62. Of certificate of conformity . . 63. Search for lis pendens . . . . 64. Search for Croivn debts, SfC. . . 66. Protection against Crown debts by term 67. Accountant's estate, how charged, 68. What sales binding on Crown . . 69. Simple contract debtor to Crown . 70. Notice, how far material . . . 71. Collector of taxes 435 72. Search for substitution for fines and recoveries deeds (I) . . . Search of registry of deeds . . Wills registered or unregistered — Leaseholds Where registry unnecessary . , Judgments — Binding leaseholds . When search should be made . . Search for annuities Solicitor's liability for neglect Chief clerk's and registrar's Ha- bility Inquiry of tenant 435 435 435 436 436 436 437 437 437 437 73. 74. 75. 76. 77. 78. 79. 80. 81. 438 438 438 438 438 439 439 439 439 439 SECTION II. OF BELIEF FROM INCUMBRANCES. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. Seller to pay off incumhrances p. 440 Unless purchaser has agreed to accept a cove7iant 440 Purchaser may recover, though money paid, if conveyance not perfected 440 Eviction after conveyance not relieved against 441 Urmston v. Pate 441 Title under forged instrument . 442 Matthews v. Rollings : erroneous, 442 Neglect of purchaser .... 442 Legacy a charge unpaid : remedy, 442 Covenants of earlier vendors . . 442 No relief though money secured . 442 Or sale by the court 443 Unless in case of misrepresentation, 443 Concealment of defect in title . . 443 Purchase rvith all faults of title . 443 Issue directed 444 Relief where concealment . . . 444 No lien on p^irchase-^noney after appropriation 444 21 . Fund appropriated against a claim, liable for the real claim . . . 445 22. Payment by purchaser to a cre- ditor of vendor 445 23. Purchaser puisne mortgagee, and purchase-money insufficient to clear the estate 445 24. Purchase of incumbrances by third person — How far binding on purchaser 446 25. Purchase of incumbrances by pur- chaser of estate 446 26. Misrepresentation that mortgage- money is charged on other jrro- perty 446 27. Succession duties : liability of purchaser 446 28. Seller buying in interests after conveyance, a trustee for pur- chaser 447 CHAPTER XIV. OF THE CONVEYANCE AND COVENANTS FOR TITLE. SECTION I. OF THE CONVEYANCE. 1. Expense where incumbrancers join thrown on seller .... p. 448 2. Parties agreed upon, must join although not necessary . . . 448 3. Form of conveyance — Recital . . 449 4. Legal estate in trustee or mort- gagee 449 5. Quantities of parcels .... 449 6. Grant of deeds 449 7. Covenants 449 (I) In first line of pi. 72, strike out "Common Pleas," and insert "Cliancery;" and in line tiiree strike out " there of," and insert " in the Common Pleas for." CONTENTS. XXXI 12 8. Disentailing deed, when to be exe- cuted p 9. Legal estate inpersons under disa- bility 0. Conveyances by married women . 1, Charges by seller after contract to sell 450 Notice of incumbrance after pay- ment and before conveyance 13. Statement of objection to title 1 4. Mistake in conveyance corrected 15. Alteration in draft should be com- municated 451 When conveyance may be pre- pared Discovery of defect before engross- ment Eviction before execution . . . 19. Preparation of conveyance relying upon a promise by seller . . . Bad title, no conveyance need be prepared 451 Conveyance to lessee determines covenants in lease 451 Expense of conveyance falls on purchaser: of execution on seller, 451 Purchaser pays for surrender and 16 17 18 20, 21 22 449 449 450 450 450 451 451 451 451 451 23 admittance : expenses under Trustee Act 452 24. Bargain and sale under power to sell copyhold 452 25. Sale in lots where vesting order required 452 26. Seller to convey or surrender, not by attorney 452 27. Seller not bound to appoint attor- ney 453 28. Expenses of reinvesting price of a settled estate 453 29. Draft beloiigs to purchaser . . 453 30. So deed imperfectly executed , . 453 31. Or deed executed by seller where contract is rescinded, as parch- ments 453 32. But it may be cancelled — Pur- chaser's lien on deeds — Seller's attorney has no lien on convey- ance 454 33. Seller no lien at law after absolute co7iveyance 454 34. Conveyance should be registered . 454 35. Short statute conveyance . . . 454 36. Execution of conveyance — Pay- ment of purchase-money . . . 455 SECTION II. OF STAMPS. 1. Instruments may be stamped, so as to exclude doubt — Unstamped or improperly, on payment of penalty p. 455 2. Payment of duty and penalty in court; evidence 456 3. The ad valorem duty on convey- ances on sales 456 4. How to be paid : — 1 . Where seve- ral purchasers and property con- veyed in parts by one or several deeds. — 2. Where the convey- ance is immediate to a sub- purchaser. — 3. Or to several sub- pttrchasers. — 5. Conveyance by purchaser to sub-purchaser, and the conveyance by the original seller to the sub-purchaser. — 6. Where several sellers of distinct properties convey to a purchaser by one deed. — 7. Where the con- sideration is a mortgage or other debt 456 5. Duty payable on mortgage money, though purchaser not liable to it, 457 6. Duty attaches on timber, fixtures, Sfc 457 7. Annuities, the consideration duty attaches 458 8. Where improperstamps are valid, 458 9. What is the principal deed . . 458 10. Agreements not to be stamped as conveyances 458 11. False statement of consideration does not avoid the deed . . . 459 12. Price may be reduced to save duty, 459 13. Apportionment of consideration . 459 14. One set of stamps only to convey- ance 459 15. Unless other estates or matter not incident 460 17. Junction of third person to enter into covenant requires no further stamp 460 18. Endorsements, S^c. to be counted, 460 19. Inventory also 460 20. Attornment requires no stamp . 461 21. Ad valorem duty sufficient, though less than! I. 15 *• 461 22. Conveyance with mortgage requires two stamps 461 23. Award under enclosure does not require ad valorem stanq) : as- signment by sheriff does . . . 461 c 4 XXXll 24. Whilst execution in fieri, altera' tions and re-executions valid irithout new stamps .... 461 25. Progressive duty, ivhere not payable, 401 CONTENTS. I 26. Receipt stamp ; contract stamp . 461 I 27. Seller to obtain proper stamp to an agreement for lease . . . 4G1 SECTION III. OF COVENANTS FOR TITLE. Attorney answerable to seller for improper covenants ... p. 462 Usual covenants 462 Synonymotis covenants .... 462 Agreement to take bad title with covenants 462 5. Right to covenants iinder agree- ment 462 6. Vendor who bought covenants against himself only — Even though he retains the deeds . . 463 7. Vendor who did not buy covenants against last purchaser . . . 463 8. Restricted in equity 463 9. No covenants for title tvhere estate sold under will for debts, SfC— Or by a court of equity . . . 10. Practice in those cases .... 11. Purchaser entitled to covenants if parties entitled to the money 12. Or the debts are paid .... 13. No covenants upon sales by the Crown or assignees .... 14. Practice as to bankrupts . . . 15. Tenant for life to covenant . . 16. Husband covenants on sale of wife's estate 17. Trustees, only no act to encumber, 18. Purchaser not entitled to unbroken chain of covenants 19. Short form of statute covenants . 463 464 464 464 464 464 464 464 464 464 461 CHAPTER XV. OF THE CONSTRUCTION OF COVENANTS FOR TITLE. SECTION I. WHAT COVENANTS RUN WITH THE LAND. 1. Covenants for title are real ones; right of assignees, heirs and executors p. 2. Right of devisees to action . . 3. Such covenants run with term of years 4. Operation of 32 H. S, on cestuis que use 5. Covenants run tvith the seisin . 6. Do not run where covenantee is cestui que use, and afterwards appoints — Brit do where assig- nee takes the estate of cestui que use 7. R- P. Commissioners contra 8. Covenants with appointee run loith the land 10. JBut not where a potcer is created by a poicer 11. Roach y. Wadham: appointment defeats estate and covenants with it 12. Distinction as to the legal seisin, 14. 465 16. 466 466 17. 18. 466 19. 467 20. 21. 467 23. 467 25. 468 468 26. 469 27. 469 28. Whether there must be privity in vendors covenanting .... 470 Privity of estate. — Assignee of lessee bound by and entitled to covenajits with lessee ; 32 H. 8., 470 Assignee of reversion . . . . 471 Webb V. Russell : privity of estate, 472 Purchaser's covenants with the seller, a mortgagor .... 473 85-9 Vict. c. 106; continuing reversion 473 Purchaser entitled to covenant against lessee 473 Covenant to reside, whether it hinds a purchaser 473 Opinion of R. P. C. as to cove- ^^ nants by a stranger running ^ with the land 474 Coke's opinion : partition : cove- nanthya prior toperform divine service : Pakenham's case . . 474 State of authorities .... 476 Manor : Home's case .... 476 CONTENTS. XXXUl 477 477 478 30, Parson covenanting : 6 H. 4 .p. 477 31, Keppell v. Bailey: purchaser covenanting to keep a shop, S^-c. 32, King v. Jones : covenant by hus- band of mortgagor . . . . 33, Vivyan v. Arthur : suit to mill . 34, Blihies v. Branch : rent created by seller's conveyance : covenant by purchaser does not run with it, 478 37, Rent created by ivay of use, cove- nant loith grantee does not nin. — Whether a covenant to pay with a grantee of a rent will run with it. — Covenant to pay mortgage- money does not run. — Nor does covenant by assignee to assignor to pay retit and indemnify , , 38, Covenants in gross, hoiofar bind- ing 39, Where for further assurance, xvill be specifically enforced . . . 40, Where the seller's remaining lands are bound by covenants . 41, Grant of imitercourse, with cove- nant to cleanse it 481 479 481 481 481 42, Brewster v. Kidgell : covenant to pay rent in fee does not bind assignee of land, qa 481 43, Roach V. Wadhum: against Holt's opinion. — Opinion of R. P. C. on Roach v, Wadham , , . 483 44, Roach v, Wadham explained . 483 45, Result 484 4G, Covenant to produce deeds . . 484 47, Covenants not to build on lands, §-c. whether they rim with the land : bind in equity , , . . 484 48, Covenant by lessor for right of pre-emption of other land does not run 485 49, Nor similar covenant by lessee . 485 50, Nor covenant to contribute to ex- 2)ense of establishing a modus . 486 51, Collins V, Plumb: covenant by purchaser of well not to sell the water 486 52, Preston's opinion, that theremedy under covenants cannot be ap- jjortioned. — Observations contra, 486 SECTION II. TO AVHAT ACTS COVENANTS FOR TITLE EXTEND. 1. Five distinct covenants : covenant where the seller has a poiver, p, 487 3. Do not extend to tortious evic- tions — Unless the party is named 488 4. Or the seller himself assert his title 488 5. Or the covenant embrace pre- tended claims. — Suit in equity a disturhaiice 488 6. Jerritt v. W^eare. — Observations ■upon it 488 7. Covenant for right to convey ex- tends to capacity to grant . . 439 8. Whose entry is a breach cohere the covenant is against persons claiming by the means, title, &;c. of covenantor 489 (Or by or through his acts or \' means: act not proceeding from covenantor 489 11. 12 13 Appointee a person claiming un- der covenantor 490 Quit-rents incident to tenure within general covenant . . . 490 Arrear by default: Hoices v. Brushfield. — Observations upon it 490 14, Defaxdt includes persons whom the covenantor might have barred : Lady Cavan v. Pulte- ney 490 15. Arrear of land tax 491 IG, Covenant by trustee: permitted or suffered, or been jjarty or privy to 491 17, Default does not include persons whom covenantor had not the power to bar: Woodhouse v, Jenkins 492 Covenant confined to the estate conveyed 492 18. SECTION III. EXTENT OF RESTRICTIVE WORDS. 2. General covenants not cut doion without clear intention . . p. 3. Restrictive words to first cove- 493 7ia7it extend to all having the same object 493 Covenant for quiet enjoyment XXXIV where general : Howell v. J?i- ckurds p. 494 G, Nind v. Marshall 494 7. Young v. Ralncock 495 8. First general covenaiit not re- strained by other limited ones . 495 9. Smith V. Compton 49G CONTENTS. 10 General covenant does not en- large subsequent limited one . 11. Or where covenants are of divers natures — For title and value . 13. Equity reforms general covenants entered into hy mistahe . . . 496 49G 497 SECTION IV. OF THE REMEDY UNDER COVENANTS FOR TITLE. 10. 11. 12. 13. u. Action for damages on eviction, p. 497 But no relief unless within the covenant, or fraud 497 What is a breach 498 Damages ivhere copyhold and not freehold 498 Breach although no estate passed . 498 Purchaser may tvait fill eviction . 498 Damages under covenant for fur- ther assurance 498 Interest 499 Purchaser's remedy under cove- nants where he has mortgaged . 499 Improvements and buildings . . 499 Contingent incumbrance . . . 499 Effect of want of notice to seller from, purchaser of adverse suit . 499 Bankruptcy, ^*c. no bar of cove- nant for title. — Action against devisees 499 Specific pierformance of covenant for further assurance .... 500 15. Seller bound to confirm, although breach of a covenant by 2>ur- chaser 16. Dujdicate of conveyance : cove- nant to produce deeds .... 17. Pelief against assignees .... 18. Relief in equity against covenants for title 19. Judgments, &^c 20. Limited time for further assu- rance 21 . Unnecessary act cannot be required 22. Costs to be tendered 23. Assurance to be devised by cotinsel or party. — What time is allowed for the execution of a further assurance 24. Bond cannot be required . . , 25.'! What covenants may be required 27./ in assurance 26. Where a trustee conveys by way of further assurance .... 500 500 500 500 501 501 501 501 501 502 502 502 CHAPTER XVI. OF SATISFIED TEEMS. 1. Cesser of terms under 8^9 Vict. p. 2. Nature of attendant term . . . 4. Union of term and inheritance a merger 5. Unless freehold in auter di'oit . . 6. Particularly if union by act in law, 7. Tenant by the curtesy and termor, 8. Executor having a term and buy- ing the fee 9. Freeholder in his oicn right and termor in auierAroitnomergei — Freeholder marrying the ter- mor — Grant by lessee to the wife of lessor 1 0. Purchase of freehold by termor in right of his wife 11. Lessee aj^points freeholder execu- tor no merger 503 604 504 604 504 605 506 506 506 12. Years may merge in years — Term saved where termor releasee, i^c. to uses 506 13. Resuscitation of term or creation of new one 506 1 4. Laiv V. Urlwin 507 15. Observations thereon 507 16. Provisoes for cessor 508 17. Presumption of surrender . . . 508 18. 8 li)* Vict. c. 1 12, directing terms to cease 508 ^O.'XProtection afforded by term — Not f 609 24. J against Crown debt . . . . I, 510 21. Unless term not assigned for Crown debtor 510 22. Against dower — But term must have been assigned 510 25. Freer v. Hesse 511 CONTENTS. XXXV 26. 27. Term in gross attends ly implica- tion if it would merge bij union, p. 511 Although there is an intervening term to ivhich purchaser is en- titled — And a nominal reversion is left outstanding but no charge, 511 28. Implication mag be rebutted . . 512 29. The new statute 512 CHAPTER XVII. OF INTEREST, DETERIORATION AND COSTS. SECTION I. OF INTEREST AND DETERIORATION. I. Of Interest: 1. Purchaser to take profits and pay interest from time fixed for com- pletion — So of a reversion . . p. 2. Even if money lie dead if pur- chaser in default 3. Contra if seller cause delay . . 4. Possession gives right to interest . 5. Where a receiver is appointed 0. Rule not universal 8. Possession taken and abandoned . 9. Objection to title — Agreement to pay interest on possession re- scinded if long delay — Acqui- escence in delay 10. Interest excluded by agreement to repay costs and charges . . . 1 1 . Interest on timber money . . . 12. Rents and interest on sale of estate in j)Ossession by the Court . . 1 3. Same on sale of reversion . . 14. Trefusis v. Lord Clinton . • 15. Delay where there is a peppercorn rent IG. Delay where a lease is sold . . 17. Annuity sold by the Court . . . 18. Annuity sold by private contract . 19. Written agreement to pay interest, 20. Rests 21. Lessee under optioti, buying fee, interest in lieu of rent .... 22. Seller answerable for rent not re- ceived from wilful default . . 23. Where interest on rents . . . 24. Delay in vendor : if interest ex- ceed rents no interest: seller takes rents 25. Effect of stijmlation to pay interest during delay — Jones v. Mtidd — Portman v. Mill 2G. Esdaile v. Stephenson — Monk v. Huskisson : unforeseen or un- ai'oidable obstacles 27. Birch v. Podmore : unavoidable obstacle— De Visme v. De Visme, 28. 29. 30. 513 32. 514 33. 514 514 34. 515 515 35. 51G 36. 37. 38. 51G 39. 41. 517 517 42. 43. 517 517 44. 518 45. 518 46. 518 518 47. 518 518 48. 518 50. 519 51. 519 519 >19 519 520 620 52, 53, 54 55 56 67 Gl Widdall V. Nixon 521 Result: culpable delay of seller . 522 Present state of law 522 Oxenden v. Lord Exmouth: any cause : wilful default .... 523 Public-house with good-will, stock, &fc 523 Purchaser not to pay interest on deposit 524 Nor the seller if contract proceed, 624 Interest on money left with pur- chaser to pay incumbrances . . 524 Interest at law 624 Not against auctioneer .... 624 Statute of limitations .... 625 Vendor to pay interest on money lying ready if no title .... 525 3 (^ 4 Will. 4, c. 42, s. 28 . . . 525 Interest on opening biddings . . 525 Unless unnecessary examination of title affects right to interest . . 526 Investment, at whose risk . . . 526 Return of deposit and interest where seller's bill dismissed . . 526 Injunction : no interest on instal- ments of interest ..... 526 Effect of Court's suspending pay- ment of interest 526 Reversal in D. P. : instalments of interest not due 526 Reversal : re-transfer of stock and dividends or j)rice ivithout in- terest 627 , Reversal : repayment of costs ivithout interest 527 Interest and rent ivhere sale to trustee set aside 627 . Not interest on rents, ichere . . 627 . Occupation rent with rests . . . 627 . Usury : purchase, not loan . . 627 . Five per cent, at law, four per cent, in equity 528 . Agreement to pay five per cent. revived 529 XXXVl CONTENTS. II. Of Deterioration ; 62. Delay in seller: compensation for deterioration p. ^29 63. Not after possession by purchaser 529 64. Interest on amoimt 529 65. Securing crops, 8^-c. during dispute, 529 66. Felling ornamental timber . . . 529 Or coppice wood 529 67 68. Windfalls 69. Failure of tenants 70. Seller cannot claim for improve- ments after contract .... 71. Loss from agreement by purchaser with tenant 72. Mistake in interest : receipt in con- veyance 530 530 530 530 530 10 11 1. Costs at law and In equity : trus- tees p. 531 2. In equity, do notfolloic the event of the cause 531 3. Purchaser's bill : no title . . . 531 5. Vendor's bill: no title and mls- representation ^31 6. Vendor's hill : no title .... 532 7. Report of good title, but con- sidered too doubtful .... 532 8. Costs of objections abandoned at the hearing 532 9. Bad title only prime), facie case for costs Costs of objections overruled, loliere report is against the title Improper suit by seller proper one by purchaser 532 12. Opinion at law against the title after Master's report contra . 13. Opinion at law in favour of title, but on general view held bad . 14. Good title not till after bill filed, 15. Costs of case at law for the title after Master's report also for it, 533 16. Title made contrary to abstract : purchaser's acquiescence . . . 17. Untenable grounds on both sides, 18. Costs of appeal ichere title doubt- ful • 19. Purchaser may talce fair objec- tion — Oipnion of counsel does not save costs — Where purchaser is misled 534 20. Point decided in a former cause 534 SECTION ll. OF COSTS. 21 . Doubtful fact found against pur- 532 532 532 533 533 533 533 34 chaser 534 22. Necessary and unnecessary evi- dence required 534 23. Materiality of further abstracts considered 534 24. Where purchaser might have had the evidence 535 25. Purchasa' insisting contract Is at an end 535 20. Suit occasioned by purchaser's un- founded claim 535 28. Lots, and a good title to some, and all refused 536 29. Possession by purchaser . . . 537 30. Set-off : deposit and costs . . . 537 31. Suit occasioned by trustee . . . 537 32. Costs of unnecessary action . . 537 33. Purchaser's conduct dishonour' 34. 537 Objection taken after icaiver . . 538 35. Inadequate price 538 36. Improper allegation of fraud, ^t. 538 37. Claim by jilalntiff contrary to the contract 538 39. Suit to make a title : death of 40. seller 538 Suit occasioned by sellej-'s inis- 41. 538 Incumbrances preventing a title. 538 43. Costs of sale by courts of equity . 539 44 Dismissal of bill with costs by House of Lords 539 45 Motion to pay out jmrchase- money 539 CHAPTER XVIII. OF THE OBLIGATION OF A rUKCHASER TO SEE TO THE APPLICATION OF THE PURCHASE-MONEY. .' "^ I ')■ Sale of more than required valid 541 L541 4.J 4. Not bound where trust is for debts generally — Or for debts aiid j legacies — Whether bound after :41 I deci-ee 641 '\Pur chase from heir or devisee 1. As to real estate: 2. Purchaser liable to legacies on scheduled debts CONTENTS. XXXVll Not bound where infants or un- \ born issue entitled .... p. Char Qc for an infant at inajorlty Not bound where money is to he applied upon trusts — Or pur- pose undefined Or money to be invested . . . Charge equal to trust .... Poiocr by implication .... Charge af annuities .... Existing charges Where debts and legacies are not intended to he paid .... Charge of debts exoiierates pur- chaser in all cases, senib. . . Fraudulent sale 7 <5f 8 Vict. c. 76; trustees' re- ceipts to be discharges : repealed by 8 §' 9 Vict. c. 106 . . . . Trust to raise deficiency of per- sonal estatcypurchaser not liable Contra of a power . . ' . , Hoio such a power should be given Modes of seeing to the payment of debts, ^c Implied poicer to vary securities Dealings by trustees with the estate before sale 542 542 543 543 543 543 543 544 544 544 545 545 545 545 546 546 546 24. Payment to one of several trus- tees bad : receipt by all, contra 546 25. Assignment of policy with power to receive 547 26. Effect of contract on trust for sale, S)C 547 27. What trustees should give receipt — Disclaimer 547 28. New trustee by conveyance . . 548 29. Distinction betweenrecclpt under power of attorney and under receipt clause 548 30. Mortgage to tico : receipt of sur- vivor 548 31. Neio trustee appointed by Court 548 32. Payment of money to solicitor or agent 549 33. Payment upon solicitor's under- taking 549 II. As to leaseholds : 34. Purchaser of leasehold not hound tosee debts paid— Executor can- not sell for his own debts . . 550 35. Sale at undervalue — Fraud . . 550 36. Laches by legatee 550 87. Sale by executor of leasehold sj)e- clfically bequeathed .... 551 CHAPTER XIX. OF THE vendor's LIEN ON THE ESTATE FOR THE PURCHASE-MONEY UNPAID THE DISCHARGE OF IT BY TAKING OTHER SECURITIES. 1. Vendor's lien p. 552 2. Purchaser's Hen 552 rVeridor'slien, although agreeme7it'\ rr„ \ for bond during the seller's life: ( ^.. ' L Winter \. Lord Alison . . .■> 4. A"o lien where conveyance in con- slderatlon of covenants : Clarke V. Roylc 553 5. Clarke v. Poyle not overrided . 553 6. Mortgage to third person with seller's consent : no lien . . . 554 7. Bonds jclth sureties 554 8. Covenant by purchaser and surety, and consent required to re-sale — Conveyance for bond; no lien : Parrot v. Sweetland . . 554 9. Intention not important . . . 555 10. Money to be paid after re-sale : no Hen 555 11. Independent security : no lien — As upon stock — Mortgage of another estate, or of estate sold for part 555 12. A bond and mortgage of part of estate : no lien 13. Bond or note does not destroy Hen, 14. Effect of a covenant 15. Annuity the price, whether bond or note excludes the lien . . . 16. Part left with one trustee ivhere several sell 17. Lien of trustees on new purchase by tenant for life 18. Lien for part and none for rest, 19. Set-off against assignees . . 20. Action and suit by the seller at the same time not allowed . 21. Declai-atlon to prevent Hen . . 22. Assets marshalled 23. Contributio)i 24. Vendor keeping the deeds . 25. Lien prevails against whom . . 20. Possession of seller as lessee not notice 27. Assignees of banlirupt bound by lien .556 556 5.S6 556 558 558 558 559 559 559 559 500 500 560 560 501 XXXVlll CONTENTS. 28. Sale under lien p. 501 20. Lien on plant : bankruptcij . . 501 J30. Creditors under com^eijance bound 501 31. Qui prior est tempore imtlor est jure 501 32. Equitable mortgagee by deposit of deeds overreaches lien . . . 5G2 33. Priorities according to time . . 562 34. Deposit of deeds binds the Croivn, 502 35. Security for purchase-money to third person 562 36. Assignment of lien 662 38. Barred by non-claim .... 663 CHAPTER XX. OF TUE PERSONS INCAPABLE OF PURCHASING. SECTION I. OF PERSONS INCAPABLE OF PURCHASING. 1 . The several incapacities 563 2. Parishioners, iifc. — Parson and churchwardens in London . . 563 3. Aliens purchase for benefit of Crown — Denizen may purchase and hold — Office found — Felons and traitors — Corporations . . 564 4. Infants may at age waive a pur- chase — Femes covert : husband's dissent — Contract to j'urchase by feme covert with separate estate — Fe7ne covert buying with husband's autJiority — Lunatics — Roman Catholics 564 SECTION II. OF PURCHASES BY TRUSTEES, AGENTS, &C. Trustees, S(c. inca2)able of pur- chasiny p. \Purchases by agents .... 3. J 4. Agent buying his otvn estate for principal 6. Execution creditor may buy . . 7. So may mortgagee— Unless a trus- tee of a power to sell .... 8. Attorney cannot buy from client . 9. Arbitrator cannot buy claims . . 10. Prohibition extends to buying as agent 11. Although by atiction or before a Master 12. Guardian and ward 13. Relation of trustee pur chasing 14. Tenant for life purchasing under his power of sale 15. Trustee relitiquishing their office — Trustee for creditors: majo- rity of creditors 16. Trustee may buy from cestui qui trust when confidence at an end — Authority from attorney to fjuy 566 567 567 507 567 568 568 568 569 569 509 570 370 570 17. Attorney may buy from client at arm's length 570 19. How purchase to be effected where cestui que trust not sui juris . 571 20. Mortgagee relieved against jmr- chase 571 21. Estate not re-sold to be re-con- veyed 571 22. Terms upon which ptirchase is set aside ivhere estate is re-sold . . 571 23. New sale 571 24. hi lots 572 25. Rise in funds ivhere money in- vested 572 26. Allowance for repairs, i^-c. — Old buildings ]mlled down . . . . 572 27. Rise in funds no ohjection to relief 572 28. Increased 2)rice, to be paid to cestui que trust 572 29. Costs 572 31. Purchasers with notice bound by the equity 572 32. Acquiescence 573 33. Laches : creditors — Knowledge of cestui que trust 573 34. Confirmation 573 CONTENTS. XXXIX CHAPTER XXI. OF JOINT rURCIIASES ; PURCHASES IN THE NAMES OF THIRD PERSONS ; AND PUR- CHASES WITH TRUST MONEV : AND OF THE PERFORMANCE OF A COVENANT TO PURCHASE AND SETTLE AN ESTATE. SECTION I. OF JOINT PURCHASES, AND PURCHASES IN THE NAMES OF THIRD PERSONS, 1. Equal or unequal advance of pur- chase-money — Expenditure on repairs by one — Severance of joint tenancy in equity — Inpart- nership, no survivorship in equity — Building-leases to two . . p. 574 3. Issue directed whether purchase for trade 575 4. No jxirtition whilst common ob- ject unperformed 575 5. Contract to sell to tioo — Parol evidence inadmissible that one was the purchaser — Abatements on incumbrances enure to both — So a new lease to one .... G. Covenant to pay mortgage-money, 7. Convey a7ice to one, trust for the other 2jroved by letters 8. Desisting to treat in favour of another 9. Where upon completion of convey- ance by one, the other must ac- cept the title, i^c 57G 9a. Purchase in the name of stranger a trust — Clear proof required . 10, Evidence from alleged owtier's poverty — Conveyance by one to another as purchaser, lien only for purchase-money . . . 575 575 57G 57G 577 578 11. Unless some written evidence to prove trust 12. Parol express trust 2}revents re- sulting trtist — Parol evidence in favour of alleged trustee . . . 13. Purchase by agent — Conviction of agent of perjury 14. Purchase in the name of a child, no trust — Copyholds for lives . 15. Child already advanced — Child treated as a trustee from the first IG. Possession by the father Ex- penditure by the father for re- pairs 17. Subsequent declaration of trust by father inoperative — Election 18. Conveyance to sever joint-tenancy 19. Purchase in the joint names of father and son, an advancement, 20. Operation of 27 Eliz. — And of Bankrupt Acts 21. Purchase by grandfather in the name of grandchild .... 22. Purchase by husband in the name of wife 23. Purchase by trader in the name of wife or child 578 578 578 578 579 579 580 680 580 580 581 581 581 SECTION II. OF PURCHASES WITH TRUST-MONEY : AND OF THE PERFORMANCE OF A COVENANT TO PURCHASE AND SETTLE AN ESTATE. 7 1. Purchase by trustee or executor with assets in his own name . p. 582 2. Parol evidence 682 3. If bound to invest in land, presump- tion accordingly — Unless he claimed the money — Purchase by executor of mortgagee of equity of redemption 583 4. Purchase by personivho has agreed to purchase and settle lands, a performance — Although pur- chase only partial 683 5. Or trustees were to buy — Or coth- sent required . 583 C. Lands and money taken in ex- change liable 583 Where descended lands go in per- formance of covenant .... 584 8. "I What estates u-ill satisfy the 9. J covenant 584 10. Improper investment may be fol- lowed 584 1 1 . Value how to be taken .... 685 12. Additional sum invested : improve- ments on advancemetit . . . 685 Where covenant is a lien . . . 685 Where a covenant to settle is con- fined to an existing contract to purchase 585 15. Renewals, Sfc. by trustees . . . 685 13. 14. xl CONTENTS. CHAPTER XXII. OF TUE PROTECTION AND RELIEF AFFORDED TO PURCHASERS BY STATUTES. SECTION I. OF FRAUDULENT AND VOLUNTARY SETTLEJIENTS, AND SETTLEMENTS AVITH POWERS OF REVOCATION. 1. 27 Eliz. c. 4 : fraudulent convey- ances void against purchaser — So conveyance with power of re- vocation in grantor _ ... p. 586 2. Act extends to copyholds: mort- gagee a purchaser — King — Ade- quacy of purchaser's considera- tion — Purchaser must buy an existing interest 58G 3. Fraudulent conveyances void though not made by the vendor 587 4. Purchaser under secondvoluntary grantee preferred to first volun- tary grantee 587 5. Binds the Crown 588 6. Voluntary settlements are void against purchaser 588 7. Deposit of deeds 588 8. Conveyance to wife or children voluntary 588 9. Purchase in name of wife or child 580 10. Settlement prior to marriage not voluntary 589 11. Marriage coiisideration runs through the settlement — Ho^v far marriage consideration ex- tends to collaterals — Remaind- ers to collaterals not supjjoried though settlor tenant in tail — Re-settlement by two, ow the survival Settlement of wo- man's estate 589 14 17 12. Settlement supported by additional portion, 8fc. — Or by wife's con- currence in destroying another settlement 590 13. Separation with deed of indemnity — Settlement of personal estate binding 591 Purchase for and conveyance by seller to charity 591 Stranger not aided in equity . . 591 Voluntary settlement good by mat- ter ex post facto 592 Applied to equitable rights— Mar- riage upoji the faith of voluntary settlement 592 18. Settlement for valuable considera- tion apparently voluntary . . 592 19. Contract to sell by voluntary settlor enforced for purchaser — Vendor cannot enforce the agreement 592 20. Suit to enforce voluntary settle- ment : sale by settlor .... 593 21. Powers of revocation ; partial power— Power with colourable conditions — Binding powers — Settlement with power void, al- though made for valuable con- sideration 593 22. Future power, and sale before the day — Extinguishment of power inoperative 593 SECTION II. OF PROTECTION FROM CHARITABLE USES. 1 . Purchaser without noticeprotected — Inadequate consideration — Rentcharge ...... p. 594 2. Notice to first purchaser binds all, 594 3. And length of possession will not support his title 595 SECTION III. OF PROTECTION FROM ACTS OF BANKRUPTCY AND FROM JUDGMENTS, CROWN DEBTS, AND LIS PENDENS. 1. Purchasers without notice pro- tected— Purchasers with notice, after twelve months from bank- ruptcy p. 595 2. Notice to agerit of corporation, S{c., sufficient 596 3. What is not notice 593 4. Defects in proceedings not to af' CONTENTS. Xll fvct purchasers after a limited time p. 597 5. Bankrupts' estates vest in assignees — Copyholds 597 6. Agreement iy bankrupt to pur- chase may be ordered to be de- livered up — Bankrupt may be ordered to join in conveyance . 597 7. Certificate of appointment of as- signees to be registered . . . 597 8. Judgments, Crown debts, Lis pen- dens 598 SECTION IV. OF PROTECTION FROM UNREGISTERED DEEDS, ETC. 1 . Deeds and wills in York, Kingston- upon-Hull, and Middlesex to be registered p. 598 2. Deeds not registered void against purchasers — So devises — And judgments 599 3. An appointment must be registered — So must a lease, although as- signment of it is registered — Assignment of legacy not . . 599 4. Settlement by a woman must be registered to jjrevent charges by her husband — Two successive grants without registry, and grant by the second grantee to one who registers 599 6. Further advance by mortgagee without notice of second regis- tered mortgage, valid — Pwr- chaser without notice not bound by prior equitable registered incumbrance — Purchaser with notice bound by unregistered deed 599 6. Operation of Irish Act on equitable estates GOO 7. Memorial, how to be framed — A witness to the deed must be a tvitness to the memorial — Ex- ecution of memorial by repre- sentatives — Deed of corporation — Writs of execution, &(c. 8. Necessary contents of memorial > Description of j) arc els . . 600 . 601 / 601 '1.602 12. Copyholds excepted : leases by li- cence — Leases at rack-rent ex- cepted — So leases not beyond twenty-one years with possession and occupation : sale: mortgage — Serjeant's Inn exce^ited . . Registry of appointments of as- signees of insolvents and bank- rupts 602 603 SECTION V. OF PROTECTION FROM DEFECTS IN RECOVERIES, AND FROM DEFECTS IN SALES FOR LAND-TAX, AND OF PURCHASES BY ROMAN CATHOLICS. Purchaser protected against defect of record or of recovery deed, p. Provisions in 3 ^* 4 Will. 4, c. 74, in favour of purchasers . . . Defective sales for land-tax ren- dered valid . 604 604 604 4. Power to commissioners for taxes to confirm sales for land-tax - 605 5. Extent of power 605 6. Purchaser with notice .... •GOG 7. Purchases by Roman Catholics . 606 CHAPTER XXIII. OF EQUITABLE RELIEF AND PROTECTION. SECTION I. OF EQUITABLE RELIEF AND PROTECTION WHERE THE PURCHASER HAS NO NOTICE. 2. Purchaser protected although equitable title a forged instru- ment p. 607 3. May avail himself of satisfied charges — Where he has the best right to call for legal estate . 607 4. First mortgagee with notice con' veying to third 608 d xlli CONTENTS. u. Priorities according to time in equities p. 608 6. Lease and release : no estoppel . G08 7. Assignee of purchase-money can- not tack 609 8. No protectionfrom estate in a trus- tee upon an express trust . . 609 9. Fraud in others, or accident, no ground of relief against pur- chaser : no discovery of writings 609 10. Trustee refusing to act against a purchaser — Dormant incum- brances relieved, against . . . 609 11. So defective execution of power — But not a power by will where estate sold 610 12. Production of deed with evidence on its face of fraud, enforced . 610 1 3. Mistake, 8fc. of conveying parties no jjrejudice to purchaser . . 610 14. Unless objection not fairly stated — If a general statement, party is bound 610 16. All rights of conveying parties pass 611 17. Party ivith right encouraging another to buy binds his right — So where the representation is by mistake 611 1 8. So where an incumbrance is denied .- liability of trustees .... 612 19. Incumbrancer not bound to give notice to purchaser .... 612 20. Vendor, his heirs and assignees, to make good defective convey- ance — So judgment creditors . 612 21. Even a subsequent title bound — Whether this is a personal equity , 612 22. Conveyance by wrong person . . 613 23. Contingent remainder conveyed to a purchaser and destroyed, sel- ler's subsequent title is to make it good 613 24. Equity between trustees of renew- able leaseholds and purchaser . 613 25. No relief against solemnities under Act of Parliament 613 26. Equal equities : contribution by several purchasers to judgment debts 613 27. Purchaser of part relieved against concealed incumbrance, by the other part 614 28. Barnes v. Racster 614 29. Purchase set aside : allowance for improvements 614 30. Unless fraud 614 31. No remedy if evicted at law . . 615 32. Prior incumbrancer purchasing lets in puisne ones 615 33. Mortgagee buying after agreement for lease bound by it . . . . 615 34. How prior incumbrances should be kept on foot, on purchase . . 615 35. Bill to perpetuate testimony upon claims to a reversion .... 615 SECTION 11. OF THE EFFECT OF NOTICE. 1. Notice binds a jmrchaser . . p. 616 2. Purchaser tvith notice bound by parol agreement for a lease . . 616 3. So by an agreement as to a judg- ment 616 4. Purchaser whose consent is neces- sary to validity of a lease, not bound by notice 617 5. Wood V. Lord Londonderry . . 6. Right of legatee against seller 7. Purchaser bound by void estate where he buys subject to it — So he cannot impeach anmiity . , 8. Vendor may set aside leases for fraud after sale of fee : qu. . . 9. Lease under power at inadequate 618 618 618 619 rent apparent -. sale of reversion voidable 619 10. Purchase under decree obtained by fraud 619 11. Notice before payment or execu- tion of conveyance sufficient . . 619 13. Notice at time of procuring an estate to j)rotect, inoperative . 620 14. Purchaser without notice safe, although seller to him bought with notice — Purchaser may buy with notice of a purchaser who bought without G20 15. Trustee selling and re-purchasing, bound 620 16. Notice of voluntary settlement not binding 620 CONTENTS. xliii CHAPTER XXIV. OF NOTICE. SECTION I. WHAT AMOUNTS TO NOTICE. 9. 10. 11. 12. 14. 15. 16. 17. 18. 19. 20. 21, 22, 23, Actual or constructive ... p. 621 Actual notice : vague reports — General claim — Must be in the same transaction 621 Constructive notice ..... 622 Notice to counsel, Sfc. is con- structive notice — So to country solicitor — Although purchase under a decree 622 Subsequent assent to purchase . 622 Binding, although counsel, Sfc. em- ployed partially only — Party acting for himself ivithout know- ledge bound as if a solicitor employed 623 Notice to counsel, Sfc. must be in the same transaction — Unless acts are connected, or previous act is remembered 623 Notice to solicitor of purchaser not also solicitor for seller — Solicitor committing fraud on seller, and acting for purchaser, the latter not bound .... 623 Public statute notice : private not, 624 Lis pendens notice — What is a sufficient lis pendens — Laches . 624 Bill dismissed, and appeal to D. P., 624 Purchaser pendente lite filing a bill 624 Effect of pendency of suit on the seller's rights 625 Decrees not notice — Unless to ac- count, or the like 625 Lis pendens, unless registered, will not bind ivithout express notice, 625 Judgments, though docketed, not notice 625 Nor deeds registered — Search, notice to the extent ofit. . . 625 Act or commission of bankruptcy not notice — Purchaser ivithout notice not bound by secret act of bankruptcy 626 Sufficient ground for inquiry, no- tice : legal estate : title deeds . 626 Buying of an agent 626 Notice of tenancy, notice of lease, or of purchase by tenant . . . 626 I The cases considered .... 627 24. 25. 26. 27. 41, 42 45 But notice of a past tenancy unimr portant~Iften.ant is under-lessee, purchaser need not inquire fur- ther Lien of tenant as seller not binding where conveyance is with a re- ceipt Notice of right to easement . . Statement that a bond or warrant of attorney existed, notice of equitable mortgage: Penny v. Watts Purchaser not inquiring for deeds bound by a deposit : Whitbread V. Jordan Observations on it Dryden v. Frost Effect of not inquiring for deeds . Notice of deed misrepresented Notice of contract for redemption of land-tax being by an infant . Notice of a covenant to rebuild after afire Purchaser of improper charity lease — Notice of invalid lease inoperative 'at law Notice of tenancy not notice of lessor's title — Want of possession in seller not notice of adverse title Recital, 8fc. leading to other facts binding Eland v. Eland Purchase from heir with notice of a will Unusual receipt indorsed, notice: solicitor committing fraud and acting for purchaser .... Notice of bills for purchase- money, notice of lien: advowson: notice of lunacy One estate liable in equity to clear another of incumbrances : notice of deed binds .... Hamilton v. Royse But notice of contemplated deed not sufficient Purchaser from husband under settlement bound by the tvife's equities 628 628 629 629 629 030 630 631 631 632 632 633 633 633 634 634 634 C34 035 635 (i35 63: xliv CONTENTS. 47. Ambiguous recitals, mere sus- picion of fraud not notice . p. 636 48. Court rolls not notice, semble . . 636 49. Steward of manor has notice of the admissions 636 50. Effect of notice of mortgage title . '637 51. Witnessing a deed not notice . . 637 52. Improper settlement under articles : the latter, how far binding on a purchaser 637 SECTION II. OF THE PROOF OF NOTICE. 1. Not to be proved by counsel, &fc., p. 638 2. Nor can he produce the pur- chaser's documents .... 638 '^.'\ Opinions may be withheld: old 4./ cases 638 6. Communications to attorney for both parties — Communications by mistake to person not an attorney, not protected . . . 639 6. Attorney a witness must prove deed— Map 639 7. Communications upon sales and purchases protected : advising on title 639 8. Purchaser how charged in ac- count 640 CHAPTER XXV. OF PLEADING A PURCHASE. 1. Ground of plea p. 640 3. Must he sworn : answer overrul- ing or supporting plea . . . 640 4. Deeds of purchase to be stated . 641 5. Averment of seisin 641 6. And of possessioti : reversion . . 641 7. And of payment of price . . . 642 8. And denial of notice .... 642 9. And particular' instances to be denied specially : possession of papers 642 10. Where general denial of notice sufficient 643 11. Notice to be denied by answer also, 643 13. Plea no protection where want of due diligence 643 14. Decree after an issue and then appeal to Dom. Proc 643 15. Plea protects against a legal title, 644 16. But relief given to a legal mort- gagee 644 17. And injunction to prevent the in- stitution of a clerk 645 [ xlv ] INDEX TO CASES CITED OR INTRODUCED. Paere. . . 541 415, 423 . . 376 629, 637 4, 231, 536 , . 610 , . 79 A. ABBOT V. Gibbs . ■ V. Sti'atton . Abbott V. Darnell . V. Geraghty . V. Sworder 3, Abdy V. Loveday . Aberdeen v. Watlin Aberdeen Ry. Co. v. Blakie, 5G6 Acherley v. Acherley . . . 577 Ackroyd v. Smith . . ^74,477 Acland i>. Gainsford , 44,519 I'. Gaisford .... 528 Acton V. Pierce . . . .184 Adams v. Blackwall, &c. Ry. Co. . . 59,62,64,175 V. Broke 182 V. Fairbain . . . .139 V. Heathcote . . .194 V. Taunton , 324 n., 547 V. Weare 230 A damson v. Evitt .... 5 Adderley v. Dixon . . . 1 75 Addies' Charity, ex parte . 64 Addis V. Campbell . 212, 234, 370, 610 Addison ». Dawson . . . 565 Agar V. Mackley .... 239 Ahearne v. Hogan . . . 237 Aicken ». Macklin . 434,613 Aldborough, Lord v. Trye . 234 Alder v. Boyle 37 Aldrich v. Cooper . 559 n., 560 Aldridge v. Westbrook . . 86 Alexander «;. Crosbie, 140, 143, 289,328,355,304,417 ex parte 566 Allen V. Anthony .... 626 V. Bennet, 103, 104, 111, 115, 119 V. Bower 126 iJ. Cameron . . . .141 v. Knight . . . 609, 631 V. Martin 329 Alley V. Deschamps . 219, 221 Allerton, in re 393 AUeyn v. Alleyn . 153, 154, 161 Alleyne v. Alleyne . . . 679 Alpass V. Watkins . . 332 n. Alsop V. Lord Oxford . . 367 V. Patten 126 Page. Alston V. Eastern Counties Ry. Co 67 n. V. Grant 47 Altliam's case 140 Altham, Lord, v. Earl of Anglesea .... 578 Althorp, ex parte .... 70 Alven V. Bond 93 Alvanley v. Kinnaird, 86, 260 Ambrose v. Ambrose, 40, 78, 577 Amcourt v. Elever . . . 201 Amy's case 6 Anclay ?». Lewis . . . 146 n. Anderson v. Higgins . 15, 306 V. Wallace .... 238 Anderton v. Arrowsmith . 499 Andrew v. Andrew (Jur.), 156, 158 (3 Sim.) 292 V. Wrigley . 550, 551, 620 Andrew's case 272 Andrews v. Emerson ... 91 V. Hailes 313 V. Paradise .... 498 Angelo, inre . . . 170,331 Angier v. Stannard ... 56 Anglesea, Ld., v. Annesley . 139 Annesley v. Ashurst ... 86 V. Muggeridge (MS.) . 633 V. Muggridge . . 41, 42 Anon. 1 Bro. C. C. 168 . . 232 2 Cha. Ca. 19 . . . 443 Id. 53 173 Id. 101 641 Id. 136 626 Id. 161 643 Id. 208 607 Chan. 7 Sept.l8()3, MS. 326 Chan.22Julyl806,MS.80n. ■ Chan. 1 6 J uly 1 8 1 6, M S. 83, 194 Carth. 15 .... 674 Fonbl. n. (r), 1 Tre. Eq 211,250 2 Freem. 106 . 269, 440, 441 Id. 128 . . . 124,579 Id. 137 626 Id. 155 168 Dougl. 384 .. . 142 n. 9 Ha. App. 11 . . .189 9 Ha. App. 58 . . . 191 Anon. 1 Hay. & Jo. 719 . 93 -^ 3 Mad. 494 .... 91 6 Mad. 10 .... 61 Moo. 179 . . . .481 n. Mose, 96 . . . 641, 643 Id. 246 165 Old Steyne, Brighton, case 647 1 Salk. D. P. 153 . 542 n. Sel. Cha. Ca. 57 1 Str. 95 . . . 1 Vent. 361 . . 2 Vent. 361, No. . . 582 . . 140 . 98,99 2, 416, 624 . . 577 . . 624 . . 93 . 91,93 . . 80 . . 91 . . ib. 126, 127 . . 93 Id. 361, No. 3 1 Vern. 318 IVes.j. 286 Id. 453 . 2Ves.j. 335 Id. 487 . 5Ves. 148 6 Ves. 470 Id. 513 . 6Vin.Abr.522, pi. 38 . 126, 127, 137 Id. 523, pi. 40 . 126, 127 Anson, Lord, v, Hodges . 526 V. Lee 298 V. Towgood . 80, 83, 241 Anstruther v. East of Fife Ky. Co 68 n, .^ppleton V. Binks .... 46 Appowel V. Monnoux . . 473 Ardglasse, Ld., v. Muschamp, 233 Armiger ?>. Clark . . 182,187 Armitage v. Askham ... 7 1 Arnald v. Arnald . . 156, 161 Arnell v. Bean .... 595 n. Arnndell, Lady, v. Phipps , 581 Ascough V. Johnson . . . 447 Ashe, in re 8 Ashley v. Baillie . . 622, 623 Ashurst V. Mill 143 Ash worth v. Mounsey . 16, 328 .Aston V. Aston 641 V. Curzon .... 643 Atcherley V.' Vernon . 146,153 Atchison v. Dickson . . 241 n. Atherstone v. Bostock . . 201 Athowe f. Heming . . .471 Atkins V. Rowe .... 676 Atkins V. Dehnege . 623, 634 e xlvi INDEX TO CASES CITED OR INTRODUCED. Page. Atkinson's estate, in re . . U-26 Attenborough I). Edwardcs . 131 Atterbiiry v. Wallis {b) . . 6213 Attorney-Gen. v. Andrew . 418 • V. Backliouso . . . (>33 V. Bagg 579 V. Briggs 72 V. Brown 4G0 r. Clirist Church . . 515 V. Christ's Hospital . 595 V. Lord Clarendon . . 56G V. Commissioners of Woods and Forests, 142 ?». Corporation ot'Liidlow 525 V. Corporation of Newark, 85 V. Corporation of New- castle 591 r.Cox . IGG, 325,445,440 V. Davey 403 V. Day, H6, 120,121, 102, 2G2 V. Lord Dudley . . .569 1'. East. Count. Ry. Co., 68 V. Ellison 372 V. Evelme Hosjiital . 611 ■ V. Flint 402 V. Forster 141 V. Gower . . . 622, 642 V. Lord Gower . . . 595 V. Hall 594 V. Magdalen College . 403 V. Parker 141 V. Pearee . . . 445, 446 V. Persse 402 V. Potter 551 V. Prince of Wales . 371 ■ tJ. Sands . . . 504,506 V. Sitwell 131 V. Stephens . , 622, 627 V. Vigor 155 V. Wilkins . . 403, 644 Attwood V. Small, 204,207,208, 211 V. Taylor . . 525, 526, 629 Aubrey v. Denny .... 92 V. Fisher 26 Aubrey's estate, in re . 62, 71 Austen v. Halsey . . . 559 n. Austin V. Cham1)ers . . 38, 568 V. Croome .... 360 • V. Llewellyn .... 401 Avame v. Brown . . 296, 353 Aveling v. Knipe .... 574 Averall v. Wade, .482 n., 612, G14 Awbry v. Keen .... 441 Ayles V. Cox (22 L. T.) . .171 V. Cox (16Bea.) . 23, 251 V. Cox (17 Bea.) . . 452 Aylesford's, Earl of, case . 123 Aylett ?;. Ashton .... 318 Ayliffe v. Murray .... 570 B. Page. Back V. Andrews .... 581 V. Kett 155 Bacon v. Simpson . . . 241 Badcock, ex ])arte . . . 566 Badcly v. Vigurs .... 487 Baden v. Earl of Pembroke, 148 Bage, ex parte 5G6 Baglehole «. Walters . . .277 Baikie v. Chandless . . . 439 Bailey v. Appleyard . 408, 409 V. Collett . 453, 614, 517 V. Ekins 543 V. Richardson . . . 626 V. Watkins .... 567 BainfTs, &c. of Tewkesbury V. Bricknell . . .141 Baillie v. Chaigneau . . . 91 Jackson 87 «. Lockhart .... 152 Bainbridge v. Wade . . ,103 Baker v. Bent 236 V. Bradley . . . .234 V. Bulstrode .... 501 V. Carter 672 v. Dibbin 328 V. Harris 489 ~ — V. Henderson . . . 3C1 V. Morgan .... 87 V. Payne 144 V. Read . . . 432, 573 V. Souter 88 Balch V. Symes . . . .370 Baldey v. Parker .... 265 Baldwin w. Belcher . 153,416 V. Boulter .... 244 V. Rochfort .... 237 Balfour v. W elland . 543, 644 Balgney v. H anal ton . . 582 Bali V. Burnford . . . .691 V.Harris . .540,543,545 Ballard I). Way .... 22 Balls V. Margrave Bally V. Wells . , 369 466, 473 n., 480 n., 482 Balmanno v. Lumley . 264, 294, 313 Bam ford 1'. Watts .... 539 Banbury, Ld., v. Briscoe, 368, 371 n. Bancks v. Ollerton . . .393 Bandon, Ld., v. Becher, 88, 89, 560 i Bandy ?;. Cartwright . . 410 n. Banks v. Banks .... 91 V. Sutton .... 610n. Bannatyne v. Leader . . . 372 Banner v. Jackson . . . 638 Barber i;. Morris . . . . lOG Barclay, ex parte .... 27 Page. Barclay v. Raine,324n., 377, 378, 379 n. Bardell v. Speats . - . . 11 Barford v. Barford . . .189 Bargate v. Shortridge . - 60 Barham (c) v. Lord Clarendon, 164, 683, 589 V. Lord Thanet . . .164 Barker r. Damer . . 471,472 V. Duke of Devonshire, 641 V. Greenwood ... 39 V. Harper .... 82 V. Hill 148 V. Holford .... 80 V. North Staff. Ry.Co. . 6, 7 V. Richardson . . .313 V. Roe 615 V. Smarks .... 669 V. Vansommer . . . 234 Barley v. Walford . . . 611 n. Barnard v. Hunter . . . 191 Barnardiston, Sir John, v. Lingood .... 233 Barnell, ex parte .... 566 Barnford v. Shuttleworth . 199 Barnes v. Crowe . . . .155 V. Kacster .... 614 Barnett v. Weston . . . 608 Barnewall v. Harris, 305, 327, 331 Barnfatiier v. Jordan . . 565 Barnhart v. Greenshields, 622, 633 Barns v. Canning .... 624 Barnwell ?;. Harris . 259,318 Barr ii. Gibson . . . 298 n. Barraud i'. Archer . . 6, 22 Barrett, ex parte .... 65 V. Bermingham ... 88 V. Birmingham . . . 405 V. Blake 88 V. Gomeserra . 123, 231 V. Ring 257 Barrington, ex parte . 287, 2!)5 c. Home 172 Barry w. Lord Barrymore . 118 V. Harding .... 164 V. Marriott .... 64 Barston v. Kilvingston . .143 Bartlett v. Pickersgill, 1 22, 678 V. Purnell . . . 13, 119 V. Randall . . . . 1 28 V. Salmon (I) . .23, 260 V. Tuchin 218 Barton I'. Ld. Downes, 261,320 V. Fitzgerald . . 493, 494 V. Latour . . . .87, 539 V. Vanheythusen . . 681 Bascawen v. (^ook . 479 n., 481 Basevi v. Serra 635 Baskett v. Cave .... 122 (6) 25 L. J., N. S., 792, varied. (c) Misprinted " Barpam " in p. 583. (I) In this case of Bartlett v. Salmon, the bill, upon the appeal, was dismissed without prejudice to any action which the plaintiff; the purchaser, might be advised to bring, (i I)e Ge. Mac. & Gor. 33. The clrfcndant, the seller, then pro- secuted his action on the I. O. U. for 70/., which was tried before Jervis, C. J., at Guildhall, and the jury, after a view, found a verdict for the defendant, the purohaser. Thereupon the latter obtained out of the Court of Chancery the 701. whicli he had paid in on obtaining the interim injunction, and the seller repaid to him the 3 /. wliich he had paid as a deposit ; so that the contract was, in effect, ultimately rescinded. I am hidebted to Mr. Joshua Williams for this note. The case is reported in (i De Ge. Mac. & Gor. 33. INDEX TO CASES CITED Oil INTRODUCED. xlvii Pago. Ba,s,sct V. Noswortliy . 607, 042 Bassibrd v. Blakesley . . n7() Bastard's case 310 Batclielor v. Middleton . . 403 Bateman v. Philips V. Shore . Bates th Bonner • V. Brothers , Battersbee v. Farriiigton Battcrsby v. iiochfort Battishill v. Reed . . . Bau"h V. Price 103, 200, 370 . 575 n. 82,92,94 . . 420 690 599 409 212, 233, 237, C)14 234, 237 . . 260 . . 284 Bawtree v. Watson Baxendale v. Scale Baxter v. Conolly (a) V. Lewis 202 Bayley v. Wilkins .... 446 Bay lis v. Newton .... 580 Baynham v. Guy's Ilosiiital, 141 Bayuton, ex parte .... 566 Beaden v. King . 570, 605, 606, 638 Beale v. Sanders .... 30 V. Symonds .... 244 Beardmcr v. London, &c. By. Co 61 n. BeatnifF v. Smith .... 599 Beatson u. Beatson . . .591 Beaufort, Duke of, v. Glynn, 196, 453 V. Patrick . . . .616 V. Phillips . 226, 420 ii. Beaufoy, in re 65 Beaumont v. Braniley . .143 V. Dukes 20 ex parte 52 V. Mountain .... 344 Beavan i'. M'Donnell . 174, 565 V. Lord Oxford, 425 n., 426, 430 n., 433 Bebb V. Bunny Becliinall v. Arnold Beckett ?\ Cordley . . . Beckford v. Recktbrd . . V. Wildman .... Beddoes, ex parte .... Bedford v. Backhouse . . • V. Forbes Bedford, Duke of, v. Lord Abercorn .... V. British Museum Beech v. Keep 592 Beere v. Head . 418, 419 n., 428 78, 518 . 609 . 637 . 578 . 370 . 69 . 599 . 424 143 485 Beete v. Bidgood Beevor v. Simpson Begbio r. Crook Belch V. Harvey . Belchier v. Butler . V. Renforth . t'. Reynolds . Bell V. Bell . . . V. Carter . . V. Cundall . 527 . . . 286 . . .547 . . .655 . . . 608 . . . ()08 185,238,239 . . .619 .53n., 166 . . .609 I'age. 139,221 575 n. . 365 . 234 . 303 578 668 247 578 568, 572 582 592 601 Bell V. Howard . . V. Phynn . . . Bellamy v. Liversidge V. Sabine . . . Bellas V. llarmer . . Bellasis, Lady, v. Compton Bellew V. Russell . . Bel worth v. Hassell . Benbow v. Townsend Bennet, ex parte . 666, I V. Mayhew . . V. Mus^^rove . . Bennet's case . . . Bennet College v. Cary, 44, 182, 297, 531 Bennett v. Bernard . . . 403 ex parte . 566, 568, 67 1 , 572 V. Fowler . . . 294, 531 V. (Jlossop .... 372 V. llarnell .... 87 V. Inuoldsby .... 364 V. Powell 430 V. Rees . . . 295, 354 ij. Smith 10 r. Lord Tankerville . 15(i V. Wheeler .... 78 V. Wornack .... 22 Bennett's estate, in i-e . 75 n. Bensley v. Burdou . 298, 449, 608 n., 613 Benson ij. Glastonbury, C. C, 194 V. Laml) . . . 230, 448 V. Paull 186 Bentley r. Craven . 85, 248, 286, 327 Benyon v. Collins . . . .541 Berkeley v. Dauh .... 296 Berkeley Peerage case . . 347 Bernal v. Donegal .... 233 Bernard v. Drought . 345, 361 Beruey v. Harvey . . 324 n. V. Pitt 233 Berrington v. Evans . . . 404 Berrisford v. Mihvard . .611 Berry t\ Armisted . . 5, 205 V. Johnson . ... 85 V. Storey 202 Berry v. Young, 28, 40, 21 7, 220, 373, 370 Besant I'. Richards . . .131 Bessonct v. Robins ... 76 Best V. Stamford . . . . 51 1 Bethune i>. I'^arebrother . .199 Betiswoi th, Dr. v. D. and C. of St. Paul's . . .185 Bevan v. Bevau .... 81 Bevant v. Pope .... 380 Bexwell v. t hristie ... 8 Bickerton v. Burrell . . .199 Bickford v. Parson (6) . . 472 Bickham v. Crutwell . . . 1 64 Biddle i\ Perkins . . . 3'i5 n. Biddulph ?;. St. John . 599,637 Bidlake 17. Arundel . . 561 u. Page. Biederman v. Seymour . . 383 Bii'gs V. Rowe - .... 04 Bignold, Sam., ex parte . . 54 Billing r. Wehh . . . .169 Bingham v. Bingham, 206, 298 V. Clanmorris . . . 647 Binks V. Lord Rokeby, 207, 28(i, 516, 529, 541 Binstead ». Coleman . 123,129 Birce r. Bletchley . . .114 Birch V. Blagrove .... 680 V. Dawson .... 27 V. Joy 614 r. Podmore . . 621,623 V. Wright . . . .152 Birch's, General, case . 91, 526 Bird V. Bass 434 - — V. Boulter .... 120 V. Fox .... 545,631 Birkenhead, &c. Ry. Co., in re 70 Birmingham v. Burke . . 500 Birmingham, &c. Ry Co. v. Reg 63 Bisco V. Earl of Banbury . 633 Biscoe V. Brett 294 ?;. Perkins . . 322,616 V. Wilks . . 322, 534, 616 Blachtbrd v. Kirkpatrick . 287 Blackljoard v. Lindigren . 80 Blackburn v. Gregson 556, 501 V. Scholes .... 39 V. Smith, 17, 150, 198, 305, 338, 354 V. Stace 193 Blackham v. Pugh . . .299 Blacket t\ Lanulands . . 641 Blacklowv. Laws . 17,88,286 Blades v. Blades .... 599 Blagden v. Bradbear . 106, 108, 110, 112, 119, 120, 121 n. Blake, ex parte . . . .173 V. Sir E. Hungerford, 610, 607 V. Hyland . . . .687 in re 169 V. Phiun 317 Blakely v. Brady .... 591 Blakeney v. Bagott . 233, 619 Blakesley 17. Whieldoii . .166 Blakeston i\ Martyn . . . 434 Blakey v. Porter .... 200 Blancliard v. Bridges . . 20 Bland v. Crowley .... 60 Blankley v. Winstanley . . 141 Blatchibrd v. Mayor of Ply- mouth 494 Blaxland v. Blaxland . . 74 Bleakley r. Smith . . 108,115 Blennerhasset v. Day . . 568 i\ M'Namara . . . 519 V. Pierson . . . .138 Elewitt, in the matter of . 388 Bligh V. Brent .... 575 n. Bliss V. Collins . . . ,318 (a) Add Kintrea v. Preston, 25 L. J., N. S., 287 ; 1 Hurl. & Nor. 357. (W 5 C. 13. 920 ; add it to n. {b) in p. 472. xlviii INDEX TO CASES CITED OR INTRODUCED. Page. Bloomfield v. Eyre . . 504 n. Blore V. Sutton . lOU, 110, 118, lf)(i Blosso V. Lord Clanniorris, 85, 323, 324 n., 534 Blouut u. Blount . 515,517, 653, (554 V. Peiirman .... 4(i0 V. Great Southern and Western Ry. Co., 72, 515 Bloye's, in re, trust, 506, 507, 568 Bludell V. Stanley . . 268 n. Blundell v. Brettargh . . 239 Blunden v. Desart . . . 361 Blythe v. Elmherst . 294, 295 Roardman v. Mostyn, 126, 127 Boden, in re 331 Bodington v. Great Western Ry. Co 177 Bodmin, Lady, v. Vende- bendy 642 Boelim V. Wood, 203, 227, 294 Bold V. Hutchinson . . .143 Bolingbroke's, Lord, case . 257 Bolton r. Corjioration of Liverpool .... 038 Bolton, Lord, v. Tomlin . . 97 Bond V. Kent 556 V. England .... 164 V. Warden .... 39 Bone V. Cook 51 Bonner v. Johnston . 193, 194 Bonnett v. Sadler . . . .183 Bonney v. Ridgard . . . 550 Boone v. Eyre 217 V. Mitchell .... 4.58 Boothby i-. Boothby . 236, 237 V. Walker . . . .193 Borell ?'. Dann 49 Borough V. Williamson . 419 n. Bostock V. North Stafford. Ry. Co 60 Boswell V. Mendham, 327, 329 Boughton V. Jewell . . . 375 Bourn v. Bourn . . . . 91 Bouvei'ie, ex parte ... 70 Bovey v. Smith .... 620 Bo\ie's, Sir Ralph, ease . . 590 Bowen v. Evans . 86, 88, 89, 608, 644 V. Ku-wan . . 233, 237 V. Morris ... 46, 1 04 Bower v. Cooper . 14, 165, 231 Bowers v. Cator . . . .123 Bowes V. Heaps .... 237 Bowlby V. Bell 202 Bowles V. Atkinson . . . 278 V. Rogers . . 33, 146, 226, 501 V. Stewart . . 5, 371 n. V. Waller . . . 259, 318 Bowyer v. Bright . . . .261 Boycer. Green . 101,106,108, 112 Boydr. Belton . . Oil, 612 — — V. Higgiuson . . . 403 Pago. Boydell v. Drummond . .111 V. Manby 73 Boyer v. Blackwell, 92, 94, 266 n. Boyes v. Liddell .... 294 Boyle, ex parte .... 433 L'oyman v. Gutch . . . 332 n. Boyse v. Rosboro' . . . 305 Boys V. Ancell 32 V. Ayerst 107 D, Williams . . . .140 Brace v. Duchess of Marlbo- rough . 418, 608, 643 Bracebridge v. Cook V. Heald . . . Bradford v. Belfield . Bradley v. Holdsworth ?'. Munton . . Bradshaw v. Bennett 506 . 97 n. . . 549 . . 102 183, 452 .12,13, 201, 525 V. Bradshaw, 140, 193, 195 ex parte 69 V. Fane .... 325 n. V. IVUdgeley .... 528 Braithwaite v. Bi'itain . . 544 Braithwaite's trust, in re . 69 Brakespear r. Innes . . . 598 Bramby v. Teal . . . .194 Brampton v. Barker . . . 642 Bramley v. Alt 8 Bramwell v. Lucas . . . 639 Branch v. Browne . . .170 Brand v. Ackerman . . . 638 Brandling v. Plummer, 18, 276 Brandlyn v. Ord .... 620 Brandon v. Brandon . . .314 Branmer's estate, in re . . 70 Brasier v. Hudson . . . 548 Brattr.Ems,30, 199,300,302,055 Braybroke.Lordr. Inskip, 325 n., 326, 336, 450, 548, 610 Bray v. Chandler .... 37 Br aye, Lady, ex parte . . 65 Breadalbane, Marquis of, v. Marquis of Chandos . 144 Brealey v. Collins, 3, 232, 248 Bree v. Holbech, 441, 442, 443 Breedon v. Breedon . . . 542 Brenen i\ Preston . . . 321 Brennan v. Bolton . . .124 Bret V. Sawbridgo . 504, 655 Brett V. Beales ..... 344 V. Marsh 445 Brewer v. Hill .... 480 n. Brewster v. Kidgell, 430, 480, 481 Breynton v. London and North Western Ry. Co., 20 Briant v. Busk .... 532 Brice v. Stokes 51 Bridge v. Bridge .... 592 Bridger ». Rice . . 50, 181 V. Penfold .... 92 V. Wickens .... 73 Bridges v. Robinson . . . 524 V. Fisher 10 Brig's case (I'alra.), 182,297,300, 440 Page. Brighton and South Coast Ry., in re .... 71 Bright's trust, in re, 69, 314, 634 V. Walker .... 409 V. Wall 409 Brindley v. Woodhouse . . 363 Bringloe v. Goodson . 348, 363 Brinkley f. Hann . . . .177 Bristow V. Wood, 325 n., 485, 646 British Museum case, 486, 646 Brockelbank v. Whitehaven Ry. Co 62 Brodie v. St. Paul . . .109 Brook V. Biggs . . . .152 Earl V. Bulkeley . .616 V. Rawl 299 Brooke v. .... 293 Brooke, Ld., v. Rounthwaite, 22, 26, 276 Brookes v. Ld. Whitworth, 195 Brookfield v. Bradley Brookman v, Rothschild Brooks V. Day V. Snaith . Broom v. Broom Broome v. Monck Bromitt v. Moor . Brothers v. Bence Brotherton v. Hatt Broughton v. Conway Brown, in re V. Brown . V. Carter . V. Fenton . ■ • V. Frost . V. Gibbs . V. Jones . V. Kelty . 11. Lake V. Newall . V. Oakshott V. Paull . V. Pegg . V. Raindle V. Stead . V. Stepney V. Storey . Browne v. Amyot V. Cavendish V. Bishop of Cork V. Fenton . . V. Odea . . r. Southhouse Browning r. \\'i'ight Bruce v. Bainbridge V. Rogers . . Bryan v. Lewis Bryant v. White . V. Busk . 243, 359, 364 Brymer v. Thames, Sec. Ry. Co 130,201 Bryson j;. Warwick, &c. Canal Company .... 59 Bubb's case 148 Buck V. Lodge 194 92 567 . . 439 . . 91 . 575 n. 15.3, 161, 162, 163 . . 189 . . 037 . . 622 . . 494 344, 385 . . 493 . . 592 . 2, 42 . 192 n. . . 610 589, 590 193, 195 83 214 638 30 461 172 615 440 152 152 417 403 2, 251, 528 . 614 . 524 43, 488 . 532 . 233 . 182 . 385 INDEX TO CASES CITED Oil INTRODUCED. xVix. Vac Bucklioiise V. Crossby, 103,105, 139 Buckhurst's, Lord, case, 360 ii., 403 Buckland r. Pocknell . . 558 Buckle V. Mitchell . . . 59:2 Buckley v. Dawson (a) . . 300 V. Lanauzc . . . . 633 Buckley's trust, iu re . . 543 Buckniaster i>. Ilarrop, 119, 120, 126, 102 Bucks, &.C. Ry. Co., in re, G4, 70 Bugden v. Bignold . 614, 636 Bulkeley v. Hope . 268, 605 n. Bulkley v. Wiltbrd . . . 570 Bull V. Allen . . . . . 195 V. Manners . . . 174 n. . . 37 Buller V. Buller . . . . 164 Bullin V Fletcher . . . . 154 V. Waterhouse . . . 593 Bullock V. Bullock . . . 330 V. Sadlier . . . 585, 042 V. Thorne . . . . 593 Bulmer v. Alison . . . 80 n. Bulteel V. Lord Abinger, 49, 50 Buubury v. Bunbuiy . 638, 639 V. Fuller . . . 267, 396 Bunney v. Poyntz . . 556 Bunting v. Stonnard . . . 550 Burdon ?;. Browning . . . 122 V. Kennedy . . . . 416 Burgess v. Wheate, 244, 245 n. Bui'gh V. Francis . . . . 612 V. Wolf . . . • . 610 Burg's, Lady, case . . 592 Burke v. Crosbie . . . . 87 V. Dawson . . . . 592 V. Greene . . . . . 299 V. Smith 221 Burkinsliaw v. Birmingham, . Gerteken . . . fill Cory ton v. Ilellier . .14-2 n. Coslake v. Tilt 222 Cosscr V. Collinge . . . 1 79 Costello, re 78 Coster I). Baring . . 18(5,348 ■ V. Tunior 223 Costigan v. Plastler, 178, 183, 292 Cothay v. Sydenham . . . 635 Cotter V. Layer . . . .156 Cotterell v. Ilanipson . . 541 V. Horner .... 590 Cottington v. Fletcher, 121 n, 578 Cottle 7j. M'arrington . . 599 n. Cotton V. Cotton . . . 324 n. • V. Everall . . . 541 n. V. King 589 V. Lee 103 V. Scudamore . . 27, 376 Cottrcll V. Huglies, 412, 508, 509 V. Watkius, 31,9, 350, 364 Coussmaker v. Scwell, 306, 863, 655 Covorley v. Burrell . . 22, 248 Coward v. Odingsale . . . 221 Cowell V. Simpson . . . 556 Cowgill V. Ld. Oxmantoun, 224, 324 n. Cowley V. Watts . . 106, 308 Cowpc V. Bakewell . . . 521 Counter v. Macpherson . 80, 241 Cousing i;. Vasey ... . 192 Cox V. Jiateman .... 582 V. Chamberlain . . 534 V. Cox 543 • V. Dolman .... 397 r. King . . . 313,500 1). Middleton . 108,179 w. Paxton .... 583 Crahb v. Crabb .... 580 Craddock v. Piper . . . 329 Crafts f. Tritton . . . .166 Cragg w. Holme . . . .177 Craig V. Hopkins .... 441 ex parte 188 Crane v. Drake .... 550 Craven, ex parte .... 70 Crawshay v. Maule . . 575 n. Crayford v. (Jraytbrd . . 497 Creagh v. Blood . . . 1 74 n. Crewe v. Dicken, 320, 324 n., 547 Cripps V. Jee 578 V. Reade . . . 440, 441 Crisilee v. Bolton .... 32 Crisp V. Heath 416 ■ V. Pratt . . . . 581 n. Crockford v. Alexander, 148, 192 V. Winter .... 525 Crofton,.in re 157 V. Onnsby • 592, 616, 626 Crofts V. Middleton, 172, 173, 394, 491, 589, 609 n., 611 Crofts V. Wilkinson . . .616 Croly V. Callaghan . . 561 n. Crompton v. Ld. Melbourne, 445 Croome v. Lediard, 133, 134, 264, 535 Crop V. Norton, 182, 183, 292, 297, 576, 577 n., 578 Crosbie?;, Tooke . . . .184 Crosby v. Middleton , . .144 V. Percy 365 t;. Wadswortl) . 97,99,100 Cross V. Faustenditch . . 593 Crosse v. Duke of Beaufort . 519 V. Genl. Rev. &c. So- ciety 54 V. Keene 26 V. Laurence .... 26 V. Youny: 488 496 42 348 37: Crossfield v. Morrison Crosskey v. IMills . . Crouch V. Hooper Crow V. Tyrrell . . Crowder v. Austin ... 8 Crowe It. Ballard . . 213,570 Croyston v. Banes . . .121 Cruse ?i. Nowell . 16, 54, 325 n. Crutchley v. Jerningham, 193, 195 Crystal Palace Ry. Co. v. Divers 65, 69 Cubbidge v. Boatwright . 550 Cucklield Burial Board, in re 58 Cuffi;. Plall 56 V Penn ] 29 Culley V. Taylerson . 39ti, 899 Culpepper v. Aston, 541, 545, 624 Culpepper's case 609 Cunningham v. Williams . 80 Curling V. Flight, 292, 293, 295, 314 V. Shuttleworth Curre v. Bowyer . Currer v. Walkley Currio v. Nind . . . Curson v. Belworthy, Curtis V. Marq. of Buck- ingham 192 V. Created . . . .201 V. Price 87 • V. Spitty 487 Curwyn v. Milner .... 233 Cuthbert v. Baker^ . . 542 n. Cutler V. Simons . . . .194 Cutts, ex parte . . 120, 168 V. Salmon ... 8, 568 V. Thodey, 18, 153, 212, 225, 229 D. Dakin v. Cope . . . 524, 534 Dalby v. Pullen . . 223, 262 Dale, ex i)<'U'te 561 V. Hamilton, 38, 574, 575 n., 576 e 4 . 332 n. . . 158 . 542 n. 586, 589 206, 207 Page. Dale V. Lister 253 V. Sollett 198 Dalton V. Hammond . . . 452 Daly V. Duggan .... 239 Daniel f. Adams, 49, 118, 172, 173,181 Daniels v. Davison, 148, 1 53, 1 96, 251, 626, 634 Darby v. Darby . . . 575 n, D'Arcy v. Blake . . . .510 V. D'Arcy .... 212 Daicy iJ. Hall 44() Dare J). Tucker . . .28,373 Darkin v. Darkin .... 581 V. Marye 82 Darley v Singleton . . . 233 Darlington v. Hamilton, 6, 23, 249,291,308, 317,628 Darris's case 153 Davall V. New River Co. . 244 Davenport t\ Bishopp . . 593 Davey v. Wilier .... 381 Davidson v. Gardner, 172, 568 n. Davie v. Beardsham, 146, 153, 154 Davies v. Austen . . 314, 316 V. Cooper, 4, 231, 232, 234 236, 244 V. D'Arcy .... 387 V. Davies 637 in re 387 r. Jones 173 — — ■ V. Lowndes . V. Penton V. Thomas V. Vernon Davis's case Davis, ex parte ?'. Lord Dysai't . . 347 . . 185 140, 633 . . 368 . . 152 . . 568 . . 369 V. Hone 178 i: Jones 136 V. Ld. Strathmore . .418 V. Symonds. 129, 130, 131, 139,176,537,575 V. Thomas . . . .167 Davy V. Barber . 514, 517, 652 Davys v. Howard .... 584 Dawes v. Betts . . 6, 293, 628 V. King 3 Dav.'son v. Baldwin . . . 482 V. Brinckman . . .251 ■ I'. Dawson . . 78, 158 n. V. Dyer . . . . . 201 1;. Ellis . . . . 115 n. V. Massey . . . . 569 V. Yates . . . . . 211 Day V. Arundel . . 641,642 V. Finn . • . . . 269 V. Newman . . 206, 231 Deacon v. Smith . . 583, 584 Dean and Chap, of Dur- ham, ex i)arte . . 523 Deane ?'. Rastron . . 232 J3earle v. Hall . . . 314,316 Dearman v. Wyche . . . 404 De Beil v. Thomson . . . 119 lii INDEX TO CASES CITED OR INTRODUCED. Page. De Bernales v. Fuller . . 525 V. Wood 525 Deg V. Deg 577 n. De Graves v. Smith ... 4 De Havilland v. Bowerbank, 525 Delaeour v. Freeman . . 601 Delane v. Delane .... 578 Deller v. Prickett ... 41 De Moleyn's, Sir John, case, 418 De Montmorency v. Deve- reux 212 Dempsey v. Dempsey (a) . 81 Dendy v. Simpson . 313, 326 Denew t>. Daverell . . 29,36 Denn t). CartwTight . . .616 V. Kemeys .... 507 Denning v. Henderson . 81 , 521 Densem (b) v. Elworthy, 542 n. Denton r. Davies .... 583 V. Seward, or Stewart, 1 23 n., 196 Denys v. Shuckburgh . 396, n. Derby Canal Co. v. Wilmot, 432 Desart, Ld., v. Goddard . 124 Desborough v. Harris . . 547 De Sewhanberg v. Buchanan, 206 De Vaux v. Steinkeller . . 4 Devenish w. Brown . , .177 Deverell v. Ld. Bolton, 289, 303, 307 n. De Vismo v. De Visme, 514, 517, 521 Dew V. Clarke 168 . . 79 . . 581 233, 235 . . 328 . . 16 . . 125 542, 550 Dewell V. Tufnell . Dewey v. Bayntum Dews V. Brandt Dibbin v. Baker . Dick V. Donald Dickenson v. Adams V. Dickenson V. Heron, 225, 516 n.,'528, 533 Dicker v. Jackson .... 202 Digby V. Browne .... 93 V. Irvine 416 Digs V. Boys 624 Dike V. Ricks 545 Dillon, Ld., v. Costelloe .610 V. Cruise . . . 402, 404 Dimes v. Grand June. Canal Co 612 Dimsdale v. Dimsdale . . 234 Dinn v. Grant 552 Dinning v. Henderson . . 65 Dixon i;. Astley . . 193,287 V. Gayfere, 165, 402, 558 V. Jackson .... 69 V. Wilkinson . . .619 Dobell V. Hutchinson, 24, 105, 111,199,218 V. Stevens Dobson V. Leadbeater Dodd V. Acklom . . Doe V. Abel . . . V. Allsop . . . V. Andrews . . 3,208 . 641 . 98 158 n. . 599 . 639 Page. Page. Doe V. Archbishop of York . 396 Doe V. Needs . . . . 140 n. V. Archer . . . . 619 V. Neeld . . . 312,313 V, Barton . . . . . 152 V. North Staffor d Ry. V. Benham, or Billett, 399 Co. . . . . 64,67 V. Benson . . . . 130 V. Oxendon . . . 140 V . Blackburn . . 383 V. Oxenham . . . 399 V. Bold . . . . . 399 V. Page . . ■ V. Pearsey . . . .399 V. Bottriell . . , . 586 . . .313 V. Boulton . . . . 150 V. Pedgi'iph . . . 117 V. Bramston . . . . 400 V. Perkins . . . . 6 V. Breach . . . 150 V. Pett . . V. Philips . . 505 V. Brighlwen . . 331 . . .605 r. Brooks . . 363, 507 V. Philhpps, 39 7, 399, 460 V. Brydges . . . . 376 V. Preston . . . 461 V. Burdett . . . . 637 V. Price . • 412, 509 V. Burt . . 140 V. Protheroe V. Pullen . . . . .298 V. Calvert . . . . 331 . . .150 V. Caperton . . . . 151 V. Reid . . . . 478 n. V. Carter . . 151 , 395, 399 V. Rock . . U )0, 151, 399 V, Chamberlaine . . 150 V. Rolfe . . . , .590 . . 418 V. Routledge V. Rowe . . 5f 587, 592 V. Davies, 325 n., 331, 348 ^5, 587,°588 V. Edgai' . . . 151,313 V. Rusham . . . .587 V. Edmonds . 398, 400 V. Samples . . 371 n. V. Edwards . . . . 461 V. Saunders . . . .312 V. Evans, 49, 416, 417, 435 V. Sayer . . . . 150 . . 385 V. Seaton . . V. Smith . . 453, 638 V EjTC . . .397 . . .150 V. Gai'diner . . . . 396 V. Smyth . . . . .547 V. Gower . . , . . 399 V. Stanion . 1 V. Stone . . V. Thompson 4, 148, 150 . . 461 . . .449 V. Gi'eenhill . .. . . 416 . 152,399 V. Groves . . . . 399 V. Tidbury . , . .313 V. Harris . . . . . 385 V. Waller . . . 150 V. Hayley . . . 478 n. V. Watkins . . . . 640 V. Helder . . . 417, 508 V. Webber . . . .587 V. Hellard . . . . 313 V. Weston . . .460 V. Lord Hertford . . 639 V. Wheeler . . . 461 V. Hinde . . . 399 V. Wilkins . V. Williams . . . . 344 V, Hogg . . . . . 600 396, 397 V. Hopkins . . . . 588 V. Willis . . . . .312 V. Horrocks . . . . 399 V. Woodroffe . . 399 V. Jackson . . . . 150 V. Woodward . . 605 n. V. James . . 372 n., 587 Doherty v. Waterfor d and V. Jones, 412, 418, 509, Lim. Ry. Co. . . 187 512 Dolman v. Nokes . 5 5, 179, 612 V. Langdon . . . . 508 Doloret v. Rothschild , 176, 222 V. Lawder . . . . 150 Dolton V. Hewen . . 543,545 — iy. Lea .... . . 130 Domville v. Ben-ingi V. Lamb . . on, 77, 92 V. Leeds, &c. Ry. Co., 62, . . 188 64, 67, 150 Don V. Lippmann . . 240 V. Lewis . . . 587, 589 Donaldson v. Donalds ,on . 591 V. Liversedge . . 398 Donegal, Ld., v. Greg ' . .207 V. Lutfkin . . 617, 633 Donnellan v. Read . . .121 V. Manchester Ry Co. Donohoe v. Conrahy . . 576 64,67 Donovan v. Fricker 213, 214, V. Manning . . . . 588 527 V. Maple . . . . . 340 Doo V. London, &c . Ry. V. Martin . . . . 5, 593 Co. . . . . 59,62 V. Martyr . . 588, 592 Doody V. H'ggins . . 542 n. V. Massey . . . . 397 Doran v. Wiltsliii'e . . 543 • V. Micklem . . . 142 n. Dorin v. Harvey . . . 295 ». Miller . . . . . 150 Dorrett v. Meux . . 349 n. V. Motfet . . . . . 410 Doughty V. Bowman . 478 n. V. Moore . . . . . 399 Douglas V. Whitrong . . .157 V. Moulsdale, 398, 412, 509 V. Yallop . . . 439 (a) Misprinted " Demprey.' (b) Misprinted " Dearem," in p. 542. INDEX TO CASES CITED OR INTRODUCED, liii Page. Douglasse v. Waad . 589, 692 Dover, Warden, &c. v. S. E. Ry. Co. . . 61 n. Dowell V. Dew . 124, 172, G19 Dowle V. Lucy 78 Dowling ?;. Legh .... 527 V. Hudson .... 542 V. Maguire . 114, 173, 565 Downe, Lord, v. Mon-is . . 504 Downes v. Glazebrook . . 568 Downman v. Williams . . 46 Dowse V. Dcrivall . . . 51 1 Doyley v. Countess of Powis, 43,78 Drake v. West . . . Drant v. Vause . . Drapers' Co. v. Yardley Drayson v. Pocock Drew V. Lord Norbury Drewe v. Corp . . . V. Hanson . . Dring v. Greetham . Driver v. Cholmondeley Drought V. Eustace . V. Jones . . . 193 157 633 549 624 251,327 266 n. . 540 . 37 . 236 77, 405 Drury v. Man 452 Dryden v. Frost . 562, 622, 630, Drysdale v. Mace 631 . 15, 16,276, 282, 308, 634 Duck V. Braddyll .... 459 Duckenfield v. Wluchcott . 2 Duckle V. Baines . . . .162 Dudgeon v. Thomson . . 38 Dudley v. Dudley . . .510 V. Foliott 488 Duffell V. Wilson .... 247 Duffield V. Elwes .... 79 75. Scott 499 Du Houi'melin v. Sheldon . 564 Duke V. Burnett . 14, 15, 285 Dumbell, ex parte . . . 566 Dumoncel v. Dumoncel . 564 Dunbai- v. Tredennick, 213, 573, 616 Duncan v. Cafo . . 40, 287 V. Thomas . . . .107 Duncli V. Kent 541 Duncombe V. Mayer . . 371 n. Duncuft 2>. Albrecht . 102,176 D unman, ex parte ... 49 Dunne v. Doran .... 540 V. Ferguson . . . .101 Duuster v. Ld. Glengall, 316, 423 Durham, Bishop of, ex parte, 70 Dursley, Ld., v. Fitzhar- dinge 615 Dutch V. Wai-ren . , . .198 Du Vigier v. Lee . . 405, 406 Dyer v. Dyer . . . 577, 580 V. Hai-grave, 221,250,276, 518 V. Pulteney . . . .153 Dyke v. Sylvester . . . 326 Dykes v. Blake . . 19, 265 V. Taylor 87 Dyson v. Hornby .... 514 E. Eads V. Williams . . . .225 Earl V. Baxter . . . 309, 363 Early v. Garrett, 210, 277, 279, 441, 443 East Anglian Ry. Co. v. East. Count. Rv. Co. 60 East. Co. Ry. Co. i;."Tuff- nell 71 East Grimsted's case . 594, 622 East India Company v. Cla- vell 592 V. Donald . . . .184 V. Hensley .... 38 V. Vincent . . . .612 Eaton V. Lyon 141 V. Sanxter . 148, 418, 453, 547 Ebrand v. Dancer . . .581 Eccles 17. Cheyne . . . .189 Ecclesiastical Commis. v. London and S. W. Ry. Co 58 n. V. Ld. 81igo .... 406 Echliffz;. Baldwin . . .192 Edden v. Read .... 199 Eden v. Blake 13 Sir John, v. Ld. Bute, 140 Edgeworth v. Edgeworth . 88 Edlin V. Batalay .... 614 Edman v. Allen .... 218 Edmonds v, Millett . . 158 n. Edwards v. Brown . . . 235 V. Burt . . . 234, 235 • V. Edwards .... 578 ex parte 609 V. Fashion .... 574 V. Gd.Jn. Ry. Co. . . 59 V. Harvey, 56, 335, 531, 532 V. Heather . . . .231 V. Hodding .... 40 V. Jones 591 V. M'Leay, 205, 207, 208, 213,214, 444 . . 670 . . 42 . . 293 . . 103 . . 80 . . 65 . .2,3 644, 634 . . 294 V. Meyriek V. Peake . . Egerton v. Jones . V. Matthews . Eggington v. Flavel Egreraont, Ld., in re Ekins V. Tresham . I'Uand V. Eland . . Eldridge v. Porter Ellard 15. Lord Llandaff . 176 178, 297 V. Cooper Ellerthorpe, in re Elliot V. Brown V. Edwards 659 . . .331 . . .574 332 n., 554, 560 . 578, 580 . . . 62 V. Elliot . in re . . Elliott V. Merryman, 541, 543, 550, 551 ■ V. Turner .... 69 Ellis V. Arnison . . . .312 Ellison's estate, in re • . . 69 Page. Elmore v. Kingscoto . . . 108 Elsey V. Lutyens .... 600 Elworthy 15. Billing ... 77 Ely, Dean of, v. Bliss . . 400 Dean and Chapter of, V. Cash . . . 396, 406 Emanuel v. Dane . . . .145 Emery v. Grocock, 325 n., 331, 332, 347, 535 V. Pickering .... 295 V. Wase, 172, 173, 232, 238 Emmerson v. Heelis, 34, 1 01 , 1 12, 117, 118, 119,265 Emuss ?;. Smith . 100,384,660 Enraght v. Fitzgerald . .514 Errington v. Annesley Esdaile v. Oxenham . V. Stephenson . 293 Espey V. Lake . . Esron v. Nicholas . Essex V. Baugh V. Essex . . Estofte V. Vaughan Eton Coll., ex parte Etty V. Bridges Evans v. Bicknell . V. Brown . . V. Collins V. Elliot . . V. Edmonds . t'. Evans . . V. Griffith V. Jones . . V. Llewellyn V. Prothero V. Roberts V. Tweedy V. Vaughan Evelyn v. Evelyn V. Templer Ewer V. Corbet Ewing V. Osbaldeston Exeter (Marquis of) March, of Exeter Eyles V. Ellis . , Eyi'e V. Dolphin V. Dunsford , V. Iveson . , w. Popham Eyston v. Simonds Eyton V. Dicken , 45 175 453, 454 223, 259, 519, 5-20 . 207 . 175 . 600 158 n. . 360 64. 70 . '314 . 611 . 233 . 4 . 152 . 4 586 n. . 234 . 611 206, 233 i, 105, 461 100, 101 552 490 164 588 550 653 143 . . 39 599, 643 . . 4 . . 121 . 121 n. 182, 223 . . 328 Fagg's case 609 Fagg V. Dobie 30 Fain v. Ayers, 364, 369, 378 n., 379 u., 500 Faine v. Brown . . . .178 Fairlield v. Birch . 590 n., 655 Falkner v. Grace .... 321 Falmouth, Ld., v. Thomas, 100, 102 Fane v. Spencer .... 308 Farebrother v. Prattent . . 40 V. Simmons .... 120 liv INDEX TO CASES CITED OR INTRODUCED. Pa-e. Farebi'otlier v. Wclchman . 42 Farjjuson r. Maitlaiul . . 2iVi Farley v. Briaiit . . . .4!)!) Farlow v. Weildon ... 92 Farmer t-. Robinson . . .119 V. Warden .... 2:54 Farquhar v. Farley . . . .')25 Vavvov V. Billing . . . .812 u. Ilutehiiison . . 372 n. ». Nightingiile . 198,247 • V. Lord Winterton, 100,538 Farrow v. Rees . 370, 015, 029 Farwell i\ Seale . . . .310 Fausset r. Carpenter . . Oil F\'iwell V. Ileelis . . 550, 501 Featherstonhaugh v. Fenwick, 183,575 Fector, ex parte ... 44, 53 V. Philpott . . 438, 502 Fee V. Cobine 100 Fell V. Chamberlain, 122, 130, 578 Fellowes v. Clay . . 400, 407 V. Lord Gwydyr, 183, 184 Fencott i\ Clarke .... 370 Fennelly i\ Anderson, 173, 182, 281 Fenner v. Taylor .... 591 Fenton v. Browne, 23, 177, 250, 270 Feoffees of Heriot's Hospital ?;. Gibson . . 20,110 Fereday v. Wightwick . 575 n. Feret v. Hill 3 Fergus i\ Gore 92 Ferguson v. Tadman . . . 529 Fermor's case ()19 Feme i\ Bullock . . . .124 Ferrall ?». Boyle . . . .105 Ferrars v. Cherry, 592, 020, 033 Ferrors v. Fermor . . . 500 Fewster v. Turner . . 20, 190 Ffooks V. South Wn. Ry. Co. 07,314 Field V. Roland . 104, 118, (iiO V. Moore 393 Fielder v. Higginson . 85, 533 r. Studley . . 143, 497 Fife i\ Clayton', 13, 130, 190, 313, 530 Filder v. Bellingham ... 94 Fildes V. Hooker, 292, 307 n., 317 Fillingham v. Bromley . . 335 Finch V. Finch .'i79 V. A' ewiiham . . . 024 V. Shaw, 370, 023, 029, 044, 045 V. Ld. AVinchelsea . . 414 Fingal, or Pengal, Ld., v. Russ 125 Fiott V. Mullins ... 309 n. Firth V- Greenwood . . . 221 Fislie r. Rogers .... 452 Fisher r. Barry , 320, 324 n. V. Bridges . . . .299 Page. Fitzger;ild v. Fauconberge, 623 V. Foster 8 n. V. Lane 88 Fitzhugh ?'. Bennington, 502 n. Flack V. Downing College, 452 Fleetwood, Sir Gerard's, case, 417 V. Green . 287, 29. ex parte .... Fleming v. Buchanan Fletcher v. Rogers . . V. Sidley 581 Fleureau v. Thornhill . 182, 199 297, 525 Flight V. Barton . . . . 1 79 V. Bentley . . . .152 ». Bolland . . 175,182 V. Booth . 18, 21 , 24, 290, 291 V. Robinson . . 038, 039 537 430 540 188 V. Thomas Flinn v. Calow . Flint V. Brandon V. Woodin . Flood V. Finlay Flower v. Hartopp V. Walker . .... 407 .... 152 .... 175 9, 30, 179, 28(! . . . . 132 . 21, 85 . . 3.50 Floyd V. Bethill .... 272 ?i. Bnckland . . . .123 Floyer v. Sherard .... 233 Fludyer v. Cocker, 280, 515, 510, 534 Flureau v. Thornhill . 300, 301, 302 Fohaine's, Lady, case . .140 Foley V. Hill 043 V. Percival . . . .148 Foligno V. Martin . . 80 n. 215 Fooks, in re 07 V. Wilts, &c. Ry. Co. 07 Foord V. Wilson .... 494 Foot V. Selway 130 Forbes, Ld. v. Deniston . . 59!) V. Peacock . . 533, 544 Ford V. Compton . . . . 1 05 V. Peering . . .371 n. V. Ryan 543 V. Stuart 589 V. White . 000, 020, 025 V. Yates 130 Fordyce v. Ford, 220, 252, 290 Fcn-rester r. Ld. Leigh . . 575 Forshall v. Coles, 418, 439, 055 Forster v. Hale, 111, 120, 128, 570 V. Hoggart . 15, 219, 283 V. Thompson . . . 403 Forsyth v. Bristowe . . . 400 Fort z>. Clarke . . 324 n., 348 Forte V. Vine 488 Forteblow v. Shirley . 258, 510 Fortescue v. M'Kone . . . 404 Forth r. Duke of Norfolk .415 Fosbrooke v. Balguy . 583, 585 Foster V. Blackstone . 315, 417 (a) Misprinted " Hope," in p. 009. Page. Foster v. Charles .... 4 V. Dejicon .... 529 V. F'oster . . . . .301 V. Handley .... 504 V. Ilargreaves . . .314 in re 450 V. M'Mahon . , .419 V. Mapes 488 F'ountain v. Cook .... 506 - — V. Young 639 Fourdrin v. Gowdey . . . 504 Fournier v. Edwards . .193 Fowle V. Freeman . . 103, 114 p. Welsh 488 Fowler v. Bayldon . . 542 n. V. Ward 194 ■ ■ V. Willoughby . . .101 Fowlowe V. Amcoats . . . 229 F'ox V. Birch 194 ■ V. Bishop of Chester . 299 V. Mackreth . . 566,572 V. Wright . . . .236 Foxcraft v. Lister . . . .123 Frail v. Ellis . . . 555, 634 Frame v. Dawson .... 124 Francis v. Wigzell . . . 505 Francklyn, ex parte ... 64 I'ranklin v. Ld. Brownlow . 146 V. Miller . . . 217,329 Franklvn v. Lamond, 34, 42, 203 Eraser \'. Wood . . . . 223 Frazer v. Jones .... 608 Freebody v. P§rry . . .194 Freeman i\ Baker . . 4, 277 Freemen, &c. of Sunderland, ex parte 65 Freer v. Hesse (a) . 24, 261. 328, 335, 412, 425, 426, 509, 51 1 , 533, 535. 620. r. Rimner Freme i\ Wright , French v. French , Frere v. Moore Frewen v. Relfe Frost ?'. Beavan Fruhling v. Sehroeder I'ry V. Noble . . V. Porter . . Fryer v. Flood . . Fuet V. Hill . . . Fulford V. Fulford Fullagar r. Clark . Fuller V. Abrahams V. Benett . . V. Wilson Fursdon v. Clogg . Fui'y V. Smith . . Fyson v. Kitton G. . . 12 .14,281 . 581 n. 562, 608 . . 172 . . 174 199, 525 172,381 . . 622 . 581 n. . . 210 . . 385 . . 294 . . 9 . . 623 , 3, 40, 209 . . 400 599, 002 . . lU Gabriel v. Smith ... 27, 29 Gaby v. Driver . . 36, 46, 524 Gage V. Newmarket, kc. Ry. Co 59,60 INDEX TO CASES CITED OR INTRODUCED. Iv Paft-e. Gainsford v. Griffith , . . 495 Gale V. Gale 385 Galliers v. Allen . . GO, 158 Galton V. Einuss . . . 9, 57(5 V. Hancock . . . .154 Gape V. Handley .... 141 (iarbrand r. Allen . . . 5G5 Gardiner v. Blessinton . . 003 Gardner, ex parte . . . 2-J4 V. Ld. Townshend . . 583 Gardoni, ex parte .... 103 Garlick v. Lawson . . .188 Gainistone v. Gaunt . . .175 Garnoiis ?). Swift .... 200 Garrard t\ Girling . . . 132 V. Tuck . 31 1, 397, 399, 508 Garret v. Noble .... 50 Garrett v. Lord Besborough, 139, 225 Garrick i\ Earl Camden . 82 Garstone v. Edwards . . 92 Garth v. Ward 024 Garthshore v. Chalie . „ . 583 Gartside v. Isherwood . . 233 Gascoigne v. Thwing . . 577 n. Gaskarth ?'. Ld. Lowther . 106 162,528 Gaskell v. Durdin . . . 624 Gaston v. Frankham . 286, 307 Gee?;. Pearse . . 17,44,221 Gell V. Vermeduin . . .168 ij. Watson . . 270,5-20 George ». Milbanke . 316,692 • V. Pritchard .... 307 Gerard v. O'Reilly . . .623 Gerhard v. Hates . . . 3, 611 Gervais v. Edwards . . .186 Ghost V. Waller .... 56 Gibbins v. Board of Asylum, 1 1 4 Gibbons v. Baddal . 556, 560 Gibson i>. Clarke . . 193,194, 325 n. 347 V. D'Este . 207, 208, 273, 622 n, V. Goldsmid . . 202, 500, 562, 612 V. Jeyes 570 — — V. L(L Montfort . .153 V. Russell .... 237 V. Smith 271 V. Spurrier, . 258, 265 n. 336 . 74 88,619 . 194 838, 363 . 567 . 542 . 200 . 73 581 n. . 452 . 201 . 119 V. Wool lard . Giffard v. Hort Gill V. Watson . . Gillett V. Abbott . V. Peppercorne Gillibrand v. Goold . Ginger v. Bayly . . Girdlestone v. Lavender Glaister v. Hewer . . Glass V. Richardson . Glazebrook v. Woodrow Glengall, Ld., v. Barnard Page. Glengall, Ld., «. Thynno . 114 Glover v. Hall . . . 372 n. Glyn V. Locke 543 Godson i\ Turner .... 289 Going V. Earrell .... 624 GoMsmid v. Stonehewer, 542 n. Goldsmith v. Russell . 581 n. Goldson D. Gardiner . . . 624 Golel)orn ?». Alcock . . . 607 Gom])ertz r . . . 294 V. Bartlett .... 2 Gooch's case 585 Goodall P. Little ... .639 V. Pickford .... 95 V. Skerratt . . . .401 Gooday v. Colchester, &c. Ry. Co 60, 63 Goods V. Burton . 361, 454, 652 V. West 189 Goodinge v. Goodinge . . 140 Goodright v. Glazier . . 156 r. Hodges .... 678 V. Moses 589 V. Sales 511 V. Swymmer . . . 331 Goodson V. Ellison . . . 449 Goodtitle v. Meredith . .155 V. Morgan . . 298, 442 V. Nunn 201 V. Pope 1 64 ?>. Saville . . . . 158 n. Goodwin v. Clarke . . . 203 V. Fielding . 50, 1 13, 232 V. Lightbody, 146, 147,218 Goold V. White . . .17, 347 Goom V. Aflalo («) . . .117 Gordon v. Ball . . . .294 V. Crawford .... 233 Lord William , v. Mar- quis of Hertford . .132 V. Mahony . 225, 227, 290 V. Shaw 643 V. Trevelyan . . .109 Gore, ex parte 567 V. Bowser, . 41 6, 41 7, 421 , 430 V. Stacpoole ... 83 V. Wiglesworth . . .616 Gorge's, Lady, case . 678, 579 580 Goring, ex parte .... 49 Gorely v. Gorely (b) /P^ Gorman v. Salisbury . . . 139 Gorton v. Sir T. Chanip- neys 326 Gosbell u. Archer . 112,116, 120, 199, 303 Goss V. Ld. Nugent . 130, 136, 139 640 233 597 71 Page. Governors of Oakham, &c. Schools, ex parte . 70 Govett V. Richmond . . . 611 Gowan v. Tighe .... 82 Gowland v. De Faria . 234, 235, 237 Grafton, Duke of, ?•. London and Birndng. Ry. Co., 388 Graham v. Graham . . . 609 V. Musson . 108, 118, 120 V. Oliver . . . 181,255 V. Sime 452 Grainge, ex parte .... 65 Granger o. Worms ... 21 Grant v. Ellis 396 V. Mills 666 r. Muut . . . 276,278 t>. Yea 388 Graves v. Weld . . . .100 V. Wright .... 44 Gray v. Briscoe .... 498 V. Cuthbertson . . 478 n. V. Gray .... 80 n. r. Gutteridge . . 40,46 V. Liverpool, &c. Ry. Co 61 n. Great N. Ry. Co. ex parte, 67, 69 V Lancash.,&c. Ry.Co., 67 Great South., &c. Ry. Co., in re, 70 Greaves v. Ashliu . . . 32, 1 29 439 . 46 . 597 158 n. . 540 . 327 146,162,175 221 Gough V. Stedman . . Gould V. Okenden . , V. Shoyer .... V. Stafford. Ry. Co. Gomlay v. Duke of Somer- set 238 Green v. Jackson . V. Kopke V. Laurie . . V. Low . • r. Lowes . V. Pulsibrd . V. Smith V. Wood Greenaway v. Adams Greene r. Cramer \\ Lambert . — — r. O'Kearney Greenhalgh v. Manch. Pxy. Co. Greenliill v. Greenhill Greenlaw i'. King . Greensladc r. Dare Greenwood v. Cluircliill V. Penny . . V. RothwcU . V. Sutherland V. Taylor . . V. Titterington Gregg V. Glover . V. Wells . . Gregory v. Gregory V. Mighell . V. Spencer . Gregson v. Riddle Gresley v. Mousley Greswohl v. Marshara Greville v. Da Costa Grey v. Friar . . , Lord, V. Lady Grey . 579 Griffin V. Clowes . 549, 516 n. . . 196 . . 113 . . 511 . . 589 &c. . . 67 . . 163 570, 638 636, 645 523 155 371 188 166,445 238 95 611 573 123,238 . 296 . 226 372 n. 416,626 199, 209 . . 217 (a) Misprinted " Atfulo." (6) 1 Hull. & Nor. 144 : add this case to n. (r), p. 186. M INDEX TO CASES CITED Oil INTUODUCED. Griffin v. Stanhope V. Taylor . . Griffiths. 11 eat on . V. Matthews . V. Young . . Griffitlis V. Ilatchard Grissell v. Peto Groom v. Booth Page. 590, 503 17;} ol8 313 101 , 28 19 15,29,281, 543, 540 Grove v. Bastard . 327, 365, 300, 514, 530 V. West 313 V. Young . . 327, 360 G rover v. Ilugell . . 537, 670 Groves V. Groves .... 577 Growsock v. Smith . 202 n. 518 Grugeon v. Gerrard . . 105 n. Guest V. Homfray, 220, 225, 248 Guinness J?. Burr . . . .152 Gully V. Bishop of Exeter . 588, 591 Gulton V. Emuss .... 9 Gunnis v. Erhart . 12, 13, 130 Gunter t). Halsey . . 114,123 Gurney v. Ld. Oranmore . 032 GwilUm V. Stone . 197, 307 n. Gwynne, ex parte .... 44 V. Heaton . 233, 235, 237 Gyde, ex parte 33 H. Haddon's case 173 Hadley v. Baxendale . . 297 Hagedorn v. Laing . . 33, 218 Haigi>. Hogan . 152, 473 n. Haigh V. De La Cour . .145 Halcot V. Markant . . .582 Haldenby v. SpofForth . .51 Hall V. Adkinson . . . .609 V. Betty . . . 281, 307 ex parte 589 V. Hallet 572 V. Hardy . . 172, 173, 184 V. Jenkinson . . .193 V, Laver 287 V. Noyes . . . 566, 573 V. Smith . 6, 221, 027, 034 V. Vaughan .... 151 V. Warren . 1 74, 1 83, 238 Hall's estate .... 349 n. Hallen-j. llunder . . .101 Hallett V. Middleton . 364, 500 Hallewell v. Morrell . 202, 304 Hallings v. Connard . . .501 Halsey w. Grant .... 317 Hamer's(«) Devisee's case . 499, 540 Hamil v. Stokes . . . .316 Hamilton v. Ball .... 78 V. Clements . . . .233 V. Denny 575 V. Grant 182 V. Lyster 643 V. Royse . . . 622, 635 V. Worley .... 164 Hamilton v. Wright . Hammond ». Hill . V. Toulmin . . Hanbury v. Litchfield Handcock v. Ilandcock Ilanford v. Moseley Hanger v. Eyles . Hanks v. Pulling . Hanley v. Cassan . Hannian v. Riley . Hanning v. Ferrers Hansard v. Hardy Hanslip v. Padwick Hanson v. Beverley - — — ex i)arte . . V. Keating V. Lake {b) . V. Roberdeau Harborough, ex parte Harcourt v. Knowel V. Ramsbottom Harding v. Ambler V. Crethorn . V. Harding . V. Nelthorpe . V. Suffolk . . Hardingham v. Nicholls Page, 500, 507 490 499 253 014 559 230, 248 . 15 . 39 542 n. . Oil . 037 . 302 . 540 . 561 . 450 . 71 42, 44 . 09 . 609 . 239 . 530 . 637 . 80 443, 444 . . 140 612 Hardman v. Ellames, 372 n., 643 V. Willcock . . . 42 n. Hardwicke, Ld., ex parte . 70, 518 1>. Mynd . . . 541,548 Ld., V. Lord Sandys, 513 Ld., V. Vernon . 507, 571 Hardy v. Reeves . . 637, 043 Hardy's estate, in re . . . 70 Hare V. Cater 487 V. Horton 27 V. Shearwood . 142, 144 Harell, ex parte .... 400 Harford v. Purrier . 241, 530 Hargrave v. Le Breton . . 299 Hargreaves v. Bothwell . . 023 Z5. Wright 195 Harman v. Forster . . .015 Harner's case 499 Harnett v. Yeilding, 178, 179, 183, 255, 297 Harnor v. Groves . . . .130 Harrington, Sir John, v. Garroway . . . .417 V. Hoggart . . 524, 525 V. Long 299 V. Price , . . 301, 563 V. Rydcar .... 498 V. Wheeler .... 221 HaiTis V, Davison .... 421 V. Furgusson . . . 574 V. Hill 372 n. V. Ingledew .... 643 V. Kemble . . . 4, 1 76 V. Mott 174 V. Pugh 416 Harrison v. Coppard, 364, 305, 368, 538 V. Duignan .... 403 Page. Harrison, ox parte . . . 506 V. Forth 620 V. Guest . . . 233, 623 V. Harrison . . . .148 V. Southcote .... 556 V. Wright . . . .185 Harryman v. Collins . 633, 635 Hartley v. Pchall,325n., 332 n., 478 n. V. Smith 333 V. Wilkinson , . , .121 Ilartly v. O'Flaherty, 434, 008, 013 Hartopp 11. Ilartopp . . , 234 Hartridge V. Warwick . . 407 Hartwright v. Fereday . . 400 Harvey v. Ashley .... 035 V. Graham . . . .137 Sir Thomas, v. Mon- tague 625 V. Phillips .... 303 V. Younge .... 2 Harvy v. Woodhouse . . . 009 Harwood v. Bland, 200, 288, 289, 290 V. Wallis . . . Hasker v. Sutton . , Hastie v. Couturier . Hastings v. Wilson . Hatchell v. Cremorne Hatton V. Gray . , V. Jones . . . V. Waddy 142 323 231 53 610 103 587 482 n., 051 Hatton's, Sir Chi'istophei;, case 436 Haughton ». Morton. . .112 Havelock v. Geddes . 201, 217 Havens v. Middleton . . 326 Hawkcs V. E. C. Ry. Co 59, 00, 03, 182 Hawkins, ex parte . . 00, 158 V. Gathercole . 420, 639 r. Holmes . . 117,126 V. Kemp . . . 202, 547 V. Rutt 39 I lawley, in re 62 Hay ?;. Willoughby . . .188 Hay's will, in re ... . 169 Haycraft v. Creasy . 4, 611 n. Haydon v. Bell .... 288 Hayes v. Bailey, 317, 319, 508, 526, 532 V. Bickerstaff . 488, 489 V. Caryll 221 V. Kingdome . . . 574 V. Woodley .... 396 Haynes v. Forshaw . . . 550 V. Hare . . 45, 142, 144 Hayward v. Lomax . . . 445 Head v. Egerton .... 641 Headen v. Rosher .... 235 Headley v. Roadhead . . 559 Heald v. Kenworthy ... 39 Heap V. Tonge 590 Heaphy v. Hill .... 227 Heard I). Wadham, 201, 202 n. (a) Misprinted " Harner's case," p. 499. (6) Add, Hawkins v. Perry, 25 L. J., N, S., 656. INDEX TO CASES CITED OR INTRODUCED. Ivii Page. Hcarno ?'. Botelcrs . 55G, 500 1). Jaincs 105 V. Tenant 219 V. Tomlin . 7, 149, 247 Heath v. Heath . 320, 324 n. Hcathcote «. N. S Ry. Co. 62 n. V. Paignon .... 233 Hegan v. Johnson . . . 150 Heisier v. Clark .... 592 Heler.Ld. Bexley, 403,418,508 Helshani v. Langley . . . 181 Heming v. Aubei- . . . .170 Hemming iJ. Mayo . . .189 V. Spiers 348 Henderson v. Barnewall . 119 r. Wild .... 661 n. Henkle v. The Royal Ex- change Ass. Off., 142, 144 Henry v. Smith .... 405 Hepworth i\ Heslop ... 86 Herbert's, Sir William, case, 434 Herbert, ex parte .... 626 Hercy v. Ferrers . 369, 372 n. Heme v. Meers .... 233 Heron v. Heron . . 234, 582 V. Treyne 501 Plerrios v. Jenkins . . . 323 Herring v. Clobcry . . . 640 Hertford, Marquis of, v. Boore 225 Hervey v. Smith .... 629 Hesse v. Briant .... 568 V. Stevenson, 143, 490, 496 Hewison v. Negus . . . 589 Hewitt, ex parte .... 572 V. Loosemore, 622, 623, 630 Heylyn t). Heylyn . . .165 Hibbert v. Shee .... 247 Hickford v. Machin . . . 418 Hicks V. Hankin .... 38 V. Morant ... 6, 605 Sir H., V. Philips, 230, 261 V. Sallett 402 Hickson v. Aylward ... 6 V. Collis 418 Hidev. Hide .... 84 n. Hiern v. Mill . . . 626, 631 Higgins V. Shaw . . 544, 625 V. The York Buildings Company . . . .416 Higginson v. Clowes, 13, 14, 26, 109, 120, 130, 131, 132, 179,196,260. Hill V. Adams, or Swannock V. Lyford . . . .510 V. Bishop of Exeter, 587, 688, 591 V, Browne .... 446 V. Buckley , 55, 180, 181, 263, 264, 269, 270 V. Gomme .... 579 V. Gray 184 V. Great N. Ry. Co. . 63 V, Morgan .... 531 '- V. Simpson * . . . 550 V. Stawell 404 Page, Hill V. Worsley .... 624 Hillary r. \\'aller, 331, 325 n., 347 Ililliard v. Gambol . . .237 Hills V. CroU 186 Hilton V. Barrow .... 297 Hincksman v. Smith . . . 235 Hinde v. Wliitehouse, 108, 110, 112, 119, 120 Hinder v. Streeten ... 71 Ilindle v. Dakins . . . 81, 82 Hindley v. Roadhead . 559 n. Hine v. Dodd . . 699, 623 Hinton v. Hinton .... 172 Hiorns v. llolton . . . 634 Hipwellz;. Knight, 216,225,227 Hitchcock V. Giddings, 208, 298, 442 Hitch ins v. Lauder . . . 298 Hitchman v. Walton . . 27 Hithcox V. Sedgwick, 609, 607, 626 HoadIy». M'Lain . . .111 Hoai-e V. Parker .... 641 Ilobliouse V. Hamilton . . 600 Hobs V. Norton . . . .611 Hobson V. Bell, 17, 60, 51, 64, 229, 293, 315, 350 V. Mellond .... 367 V. IMiddleton .... 492 or Hopson v. Trevor . 186 Hoby I'. Roebuck . . . .121 Hocking v. Acraman . . 596 Hodder v. Ruffin ... 78, 95 Hodge, ex parte .... 70 Hodges V. Croydon Canal Company .... 405 V. Horsfali .... 140 V- Jones 91 V, Lord Litchfield, 198,199, 200, 302, 303, 304, 359, 431 Hodgkinson v. Cooper, 306, 309 Hodgson V. Dean .... 625 V, Le Bret V. Shaw Hogg V. Snaith . . Hoggart V. Cutts . . V. Scott . . . Hoghton V. Hoghton Holcroft, Ly., v. Smith Holden v. Calcraft Holdsworth v. Holdsworth, 659 n., 560 Holford V. Phipps .... 449 Holland v. Clark .... 406 V. Eyre 106 V. Hill 330 V. King 85 Hollick, ex parte .... 66 Hollis V. Edwards . . 97 n., 98 V. Whiting, or Edwards, 123 Holm an, ex parte . . . .331 V. Loynes .... 244 Holmes v. Ailsbie .... 363 V. Baddeley .... 638 V- Blogg 564 Vt Buckley . . . .481 (a) Misprinted " Morris" in page 5!4. Page. Holmes v. Custanco 611 n., 637 V. Tutton ... 40, 432 Ilolroyd v. Wyatt, 87, 92, 51 7 Holt?;. Ilolt 511 Holwood V. Bailey . . . 635 Honeycomb v. Waldron . 599 Honvman v. Marryat, 106, 107 Hood V. Pimm .... 139 Hooper, ex parte . . . .125 V. Eyles . . . . 677 n. V- Goodwin .... 94 V. Ilamsbottam . 361, 563 Hopcroft V. Hickman . . 238 Hope V. Atkins .... 129 V. Booth ... 33, 151 V. Liddoll, 67, 88, 402, 549, 613, 634, 644 Hopkins v. Grazebrook, 301, 302 V. Tanqueray . . 3 n., 9 Hore V. Smith 69 Horford v. Wilson ... 47 Horlock V. Smith .... 586 Horn V. Horn 640 V. Wingfield . . 136, 3.?7 Home's case 476 Horner's estate, in re . . 66 Horniblow r. Shirley . . . 317 Horsefall, ex parte . . . 463 Hosier v. Read .... 131 Hotham v. Somerville . . 433 Houghton, ex parte . . . 677 V. Houghton . . . 676 n. V. Morton . . . .112 Houlditch V. Ld. Donegal .613 How V. Stiles 506 V. Weldon . . . .609 Howard's est., in re . . . 381 Howard?;. Braithwaite . .118 V. Castle 8 V. Ducane, 326 n., 326, 570 V. Hopkins . 4, 179, 185 ?;. Wright 131 Howarth v. Deem . 550 n., 633 '/•. Powell . . 650 n., 633 V. Smith 335 Howden, Ld., v. Simpson . 69 Howe V. Howe 577 Howell V. George, 173, 178, 183 V. Howell .... 640 V. Kightley . .17, 84, 93 V. Richards .... 494 Howes V. Lrushfield . 490, 491 Howkins v. Jackson . . . 143 Howland v. Norris(«) . 258, 259, 266,614 Hoy V. Smithers, Contents, viii. Hubert ?;. Treherne, 1 14, 116, 117 ?'. Turner 116 Huddlestone v. Briscoe, 105, 106 Hudson V. Bartram . . . 226 Hughes V. Bennett . . . 497 ex parte, • . 86, 567, 571, 572, 614 V. Garner 643 V. (iarth 642 V. Kearney . . 524, 656 Iviii INDEX TO CASES CITED OH INTRODUCED. Page. Hughes V. Kelly . 404, 405, 4U(i V. Lipscoinbc ... 91 V. Lumley . . . . 4.')1 • V. Morris .... 40, 52 V. Parker 247 V. lloltotham . . . 50f) V. Wells 82 V. Williams . . 012, 014 V. Wynne 3.'>7 Hull (ft) V. Vaughan . . . 151 and Selliy Hy. Co. v. N. E. Ry. Co 525 Ilnlm V. [Sandys . . . .314 Huhne v. Heygate Humble v. Bill — V. Humble V. Hunter V. Langton Hume V. lientlcy . . 155 . . 541,550 .... 78 ... 42, 40 .... 314 . 14, 15, 281, 2!J0, 308, 309 Humphreys v. Hollis . 172 n. V. Pensam . . . .587 Humphries v. Home . . 520 ■ V. Roberts .... 03 Hungate z\ Hungato . . . 577 Hungerford v. Earle . . . 593 in re 58, 09 Hunt u. Bishop . . . .015 V. Coles 410 V. Danvers .... 488 V. Hewitt . . . 309 n. V. Remuaiit . . . 411 n. V. Silk 198 Hunter v. Daniel, 201, 220, 229, 299 ex parte .... 32, 33 V. Noekolds .... 400 V. Wilsons . . .241 n. Huntington, Ld., v. Mildmay, 300 Hurd V. Fletcher .... 490 Hurley v. Baker .... 40 Hutchins v. Hutchins . . 91 Hutchinson v. Bell ... 4 V. East Lan. Ry. Co. . 07 ex parte 53 V. Manch. &c. Ry. Co., 07 V. Morley 40 Huthwaite's case .... 428 Hutton V. Mansell ... Hi Hyde v. Atkinson , . 580 n. V. Dallaway (4 Bea.), 16,323 V. Dallaway (2 Ha.) , 403 V. Edwards .... (!2 ■ V. Price 525 I'. Wrench Hylliard, ex parte ] 0rts .... 550 Keatos v. Ld. Cadogan, 184, 279 Keatiiigo v. Keatingo . . 84 Keecli V. Hall .... 307 n. Keen V. Stukeley .... 230 Keene v. Deaidon . . . 331 Kekewicli i\ Manning, 590, 591 Kelly V. Wtibstei- . . . .101 Kelsack v. Nicholson . 371 n. Kelsall V. Bennett . . . 042 Kelson r. Kelson . ... 592 Kemp V. Sober .... 485 Kemp V. West End, &c. Wy. Co 01 Kemys ?'. Proctor . . .119 Kenbold v. Roadkniglit . .150 Kendal ?7. Beckett . 190,234 Kendall, ex parte .... 49 ,. V. Hnlls 023 Kendar v. Milward . . . 582 Keudray v. Ilodsoii ... 40 Kenn o. (Jorbet .... 323 Kennedy w. Daly, 88, 414, 019, 020 V. Green, 341, 370, 010, 022, 023, 034 Kenney t'. Wenham {a) or Wexbam . 187,231,245, 518 Kenny v. Browne . . 014, 030 Kenworthy c.Scbofield, 109, 110, 112, 110, 119, 120 Kenyon r. Sutton . . . .154 Keogh V. Keogli, 223, 293, 290 Keon /'. Magawly .... 542 Keppell V. Bailey {b), 473, 474, 477, 485 n., 480 n., 047, 048, 050, 051. Ker I'. Clobery . 105, 207, 558 V. Ld. Dungannon . 508 Kerrison v. Dorrien . . . 5S8 Kershaw v. Kalow ... 53 Ketsey's case 504 Keyse z\ lleydon . . . .191 i\ Powell .... 390 n. Kidder v. West .... 498 Killick ('. Flcxney . . . 500 Kilpin c. Kil|)in .... 579 Kinderly v. Jervis . . . 540 Kine i: Balfe 123 King, The, r. Boston . 122, 578 ('. Dalby 578 • i\ Gregory .... 85 V. Holland . . . . 504 V. Hungerford Market Co 107 V. Pedly 47 V. Smith . . 437, 509, 055 King L\ Brewer . . . .591 ■ . V. Denison .... 579 ex parte 104 (a) "Wexhani" in the Report, "Wenham" in the Index fo it. "Kenney" is misprinted "Kennedy" in p. 245, and «' Wunliam*' is misprinted "Wrenliam" in p. 518. Page. Page. King V. Hamlet . . 234, 055 Lami)on v. Corkc . 01 n. • V. Ileenan . . . . 54 Lancash. & York Ry. Co., 331 in re . . . 70 w. Jones, 400,477,498,499 Lancaster, &c. Ky. Co. v. V. King . 200, 295, 297 London &N.W.Ry. Co., 00 V. Leach . . .109 Landon ?•. Morris . . . . 025 V. IMoody . . . . . 311 Lane v. Debenliam . . 10, 548 i\ Savery . .213, 234, 2.30, V. Uigliton . . . . 582 508 — — r. Goudge . . . 142 n. V. Turner . . . 168,330 V. Jackson . . 025, 044 V. Wightman . . 250 V. Smith . . . . . 147 r. Wilson . . 227, 270 Lanesborough, Lady, v Ld. Kingdomo i\ Bridges . . 581 Kilmaine . . . . 042 Kingdon r. Nottle . . 400 Lang V. Gale . . . 210,217 Kingsley r. Young 311,312 Langlielde v. Hodges . . 678 Kingsinill r. Millard , . . 313 Langford i\ Brighton, &c. Kinnaird, Ld., v. Christie . 28 Ry. Co. . . . . . 08 Kinsman v. Kinsman, 024, 025 — .— V. Pitt .... 154,101 Kirk V. Clark . . . . . 592 Langhorne v. Harland . . 430 V. Wel)b . . . . . 682 Langley i\ Brown . . . . 144 Kirkman r. Booth . . 30 V. Ld. Oxibrd, 541 n., 551 Kirk wood r. Lloyd 323, 833 V. Fisher . . . . . 570 Kirtland v. Pounsett, 7 150, 303 Langstroth v. Toulmin . . 38 Kirwan i\ Blake . . . . 224 Langton v. Horton . 415, 423 Kitchin ?•. Bartcli . . . . 141 V. Langton . . . . 105 Klinitz c. Surry . . . . 40 Lanham v. Pirie {d) . . . 023 Knatchbull i'. Grueber, 177, 201, Lansdown v. Elderton . . 80 288, 290 V. Lansdown 200, 298 Kniglit V. Barber . . . . 40 Lansdowne v. Beauman . . 88 r. Boughton r. Crockibrd, 100, . . 152 115,20.3, Lant r. Peace . . . 401 Lanyon i\ Toogood . . . 102 451 Larkin v. Ld. llosse . 312, 327 r. Marjoribanks . . 507 Larlett v. Cliiie . . . . 73 V. Marquess of Water- Lassels v. Catterton . . . 502 ford .... 038, 039 Latey, ex parte . . . . 550 Knollys v. Alcock . . . . 150 Latham, ex parte . . . . 231 V. Shepherd . . 1.57,100 Latimer r. Batson . . 681 Knott, ex parte . . 008, 020 Latouche r. Ld. Uunsany . 51)9 -v. Wise . . . Knowles i\ Micliel . 371 n. . . 101 Latt r. Booth . . 175 Laurie r. Laurie . . . . OOo Knox V. Kelly . . 404, 419 n. Lautour, ex parte . . . . 009 Lavender v. Blackstone . 693 V. Stanton . . . . 542 L. Law V. Bagwell . . . . 402 ■ • r. Urlwin . . 248, 507 Lacey, ex parte, 500, 507, 571, Lawder v. Blackford . . . 178 572 Lawes j). Benn<'tt . . 157, 100 V. Ingle, 445, 450 , 502, 009 Lawless v. Mansfield . . . 508 Lachliin xk Reynolds, 22, 82, 85 Lawrence v. Halliday . . 92 Lackington r. Elliott . . 147 V- Knowles . . . 52, 219 Lacon v. Mertins, 123, 12.5, 102, Lawrenson v. liutler . . . 254 519, 552 Lawson v. Langley . . 408 Lade r. Lade . . . Lahey v. Bell . . . . . 577 . . 78 I'. Laude . . . 130 Laytlioarj) v. Bryant, 104, 306 Laird r. IMm . 200, 201, 202 Ld. Braybrooke r. Inskip . 010 Lake r.Craddock . . 574 Lea V. Barber . . . . . 102 i\ Currie . . . . . 384 Leach v. Dean • . . . . 692 r. Gibson . . . . . 574 17. Mnllctt . . . . 24 Lamas v. Baily . . . . 570 Leader v. Ahearne . . on Lambert v. Bainton (c) . 608 n. Leake v. Leake . . . . 41.'> Lambert i\ Hogcrs . . 309 IK Morrice . . 123, 125 Lamond r. DavuU . . 32 Leakins v. Clissell . . . 2 Lamplugb v. Hebden . . 195 Leathern v. Allen, 16, 281, 310, c. Lamplugb . . 579 317 (h) Add, AcUroyd v. Smith, 9 C. B. 689. (f) Misprinted "Rainton;" the correct page in 1 Cli. Ca. is 199. (d) Misprinted " Price." Ix INDEX TO CASES CITED OR INTRODUCED. Lechmere v. Brasier . Page. 85, 223 V. Earl of Carlisle, 583, 584, 585 V. Lechmere . . . 655 Lee and Hemingway, Lee V. Arnold . . . in re, 240 . . 473 ex paiie . . . . 53 V. Green . 420 n., 581 n. V. Hewlett . . 315 V. Munn . . . 303 V. Risden . . 101 Leech v. Leech 508, 542 Lees V. Nuttall . . 38 Lefi-oy V. Lee . . . 152 t!. Lefi'oy , . 92,94 Legal V. Miller . . 137 Legg V. Belfast, &c. Ry. Co., 61 Legge V. Croker . . 273, 278 Leigh V. Winter .... 593 Leland v. Griffith .... 92 Leman, ex parte .... 609 V. Whitley .... 578 Lempster, Ld., v .Ld. Pom- fret . . . 369, 371 n. Lench v. Lench, 577 n., 578 Lenehan v. M'Cabe, 600, 622, 623 Le Neve v. Le Neve, 599, 622 Lenham ». May . . 211,444 Lennard v. Robinson . . 46 Lennon D. Napper . 178,219 Leonard v. Leonard . 206, 298 Leroux V. Brown . . 103,113 Leslie v. Tompson, 269, 270, 271 Lesturgeon d. Martin . . 289 Lethbridge v. Kirkman, 14, 33 n. 270, 281 Lever, Sir Darcy, v, Andrews, 577 Levy V. Haw 198 • V. Lindo 226 V. Pendergrass ... 12 Lewes v. Hill 584 Lewin v. Guest, 266, 352,534, 537 Lewis V. Bond 626 V. (Campbell .... 466 V. Duncombe . • • 422 ex parte . . . 52, 566 n. V. Fielding .... 644 r. Hillman . . 567,568 V. Lane 577 t?. Ld. Lechmere, 187,221, 226, 230 V. Loxhara .... 531 V. Madocks .... 583 V. Nicholson ... 46 V. South Wales (a) Ry. Co 72, 518 V. Thomas . . 400, 402 Lichden v. Winsmore . . 504 Lidbetter v. Smith ... 79 LifFord's case .... 381 n. Lightburne v. Swift ... 87 Lightfoot V. Heron . . .177 Lill V. Robinson .... 533 Lilly V. Robinson . . . 581 n. Lincoln, Ld.,?'.Arcedeckne . 320 Lincoln Railw. Act, in re . 66 Page. Linden, ex parte . . . 552 n. Lindsay v. Lynch, 109, 124, 126 V. Talbot .... 638 Lindsey v. Gt. N. Ry. Co. . 59 Linehan v. Cotter . . . 253 LinAvood, ex parte . . . 566 Lister v. Lister .... 572 V. Turner . . . .592 Lister's Hosp., in re ... 71 Little, ex parte .... 30 Little Steeping, Rector of, ex pte 65 Litchfield v. Brown . 52 1 , 535 Livesey v. Harding . . .371 Liverpool Dock Acts, in re, 70 Liverpool, &c. Ry., in re . 70 Livingston v. Ralli . . . 239 Llewellyn v. Badeley . 372 n. Lloyd V. Baldwin . . 541, 542 V. Collett . . 220, 528 V. Crispe . . . 281,310 ex parte . . . 27,316 V. Johnes .... 87 V. Jones 519 V. Lloyd . 172, 217, 3S0 V. Read . . . 579, 581 V- Ripjnngale . . . 227 V. Spillet . . . . 577 n. V. Tomkies .... 488 V. Wilkes 225 Loaring, ex parte .... 556 Lobb i>. Stanley . , 115,117 Lock V. Be Burgh . . . 152 Lockey v. Lockey . . .123 Lockington's case . . . 387 Lockwood, ex pte. ... 64 Lodge I'. Lyseley . . . .416 London and Bir. Ry. Co. ?>. Winter . 126, 132, 182 London Bridge Acts, in re, 66, 453, 464 London and Brighton Ry. Co., in re . . . . 69 London Dock Co., in re . . 393 London and N. W. Ry. Co. V. Cor. of Lancaster, 64 n. London and North W. Ry. Co., in re .... 70 London and South. Ry. Co., in re 67 , 446 271,328,535 , 248 Long V. Clopton f. Collier . i: Fletcher Longchamps r. Fawcett Longtield, ex pte. Longstaft' i'. IVIeagoe . Longworth's est., in re Lord V. Colvin . . . ■ ?•. Lord . . . i\ Stephens . . Lougher v. Williams . Lovegi'ove v. Cooper . Lovell V. Hicks, 180, 205, Loveridge v. Cooper . 140 . 64 . 27 . 69 . 190 86, 96 246, 529 466 91 213, 444 314 Low V. Barehard . * . . 233 Page. Lowe V. Carpenter . . . 407 V. Manners .... 295 V. Swift 128 Lowes V. Lush, 146, 329, 333, 325 n., 544 Lowndes v. Bray, 203, 304, 311 V. Lane .177, 266, 273, 277 Lowther, Sir James, v. Lady Andover. . . 225,514 V. Carleton . 609, 620, 623 V. Carrill 117 V. Lowther . 231, 550, 566 Loyd V. Griffith . . 84, 463 Loyes i'. Rutherford . . . 276 Lucas V. Bond 166 i\ Dennison .... 403 ex parte 52 V. James, 1, 47, 106, 107, 115 Ludlow, Mayor of, v. Charl- ton 118 Luffkin t'.Nunn . . . .617 Lukey i\ Higgs . 31,485 i:. O'Donnell . 232, 528 Lumley v. Ileisbeck . . .152 Lumsden v. Fraser . . .148 Lush V. Wilkinson . . .581 Lusk's est., in re . . . .381 Luther r. Kidby . . . .154 Lutkins v. Leigh . 569 n., 560 Lutwych i: Winford . . . 87 Luxton i\ Robinson . . .304 Lyddal v. Weston . . . . 326 Lynch v. Joyce . . . 87 Lyndsay i: Lynch . . . 132 Lyne v. Lyne . . .616 Lynn v. Chaters . . . .556 Lysney v. Selby, 3, 298, 307 n,. 442 Lyster v. Dolland . . 416, 574 V. Mahony . . . .380 M. Maberley v. Robins, 332 n., 525 Macartney v. Blackwood . 527 Macbride v. Weekes . 222, 227 M'Cann r. Forbes . . 43, 514 M'Carthy r. Ld. Kingston . 314 Macclesfield, Ld.,r. Blake . 94 M'CuUoch v. Cotbach . . 94 V. Gregory, 79, 91, 96, 344, 443 M'Donald r. Hanson . . .314 Macdonald v. Walker . . 320 Maedonnell v. Harding . . 549 M'Donnell v. M'Kinty, 396 n. M'Fadden v. Jenkyns . . 591 M'Ghee v. Morgan . . . 233 Macgi-egor i'. Deal, &c. Ry. Co 60 M'Gregor, ex parte . . 54, 77 M'Intosh r. G. W. Ry. Co., 369 n. 372 n. (a) Misprinted "Western" for "Wales," in n.p. 72. INDEX TO CASES CITED OR INTRODUCED. l.xi Pagre. Mackintosh v. Barber . . 55 V. Townsend . . 575 n. Mackrell v. Hunt, 85, 365, 517 Mackreth v. Mai'lar . . . 225 V. Symmons, 552, 554, 555, 556 n., 558 n., 560, 562 Mackinnon r. Stewart . . 420 Maclean v. Dunn . . . .120 M'Leod V. Drummond . . 550 M'Lure v. Ripley . . . .210 M'Minn v. M'Connell, 436, 439 MacNamara v. Arthur, 197, 304 1\ Williams . , . .195 MacNeill i\ Cahill . . . 233 M'Neillie v. Acton . , . 544 M'Nicol V. Kay .... 535 M'Queen z?. Farquhar, 261, 327, 528, 534, 636 Maddeford v. A ustwick . . 282 Maddison v. Andrews . . 578 Maddox v. Maddox . . . 622 Madeley v. Booth . . .23, 249 Magdalen Coll. case . 587, 588 Magee v. Atkinson ... 46 Magennis v. Fallon, 2, 85, 197, 223, 275, 277, 291, 296, 334, 526, 529. Magnay v. Edwards . 471, 472 Magi-ane v. Ai'chbold, 180, 185 Maguire v. Armstrong . .619 V. Nicholson . . . 581 n. Main v. Melbourn, 40, 125, 221 Maitland v. Wilson . . . G42 Major v. Gowland . . . 156 v. Ward, 158 n., 311, 328 Majoribanks v. Hovenden, 622, 623 Malachy v. Soper .... 299 Malcolm v. Chai-lesworth, 599, 610 Maiden v. Fyson . . 198, 531 V. Menill 610 Malingr. Hill . . . 321,534 M alius V. Freeman . 10,180 Malpas V. Ackland . . . 633 IMaltby v. Christie ... 36 V. Russell .... 551 Man V. Ricketts . . . . 81 Manchester, &c. Ry. Co., in re . . . 70,71,160 Manchester, &c. Ry. Co. v. Gt. North. Ry. Co. . 321 Mandeno v. Mandeno . . 73 Mangles v, Dixon . 314 n., 316 Mann v. Stephens . . 485, 651 Manners v. Fui'ze .... 91 Manning, ex parte, 514, 517, 652 ■ v. Bailey 27 V. Phelps .... 396 Manningford i'. Toleman, 663, 683 Manser v. Back, 13, 21, 36, 133 V. Dix . . . . 638, 639 Manser's case . . . . 601 n. Mansfield, Ld., v. Ogle . . 397 Marcon v. Bloxam . . 165 n. Page. Marfell «. Rudge .... 81 Margareson v. Saxton . 695 n. Maigraviiie of Anspach v. Noel . . 287, 295, 537 IMarkby, in re 152 Marlow v. Smith . . 320, 329 Marsh, ex parte .... 667 Marshall v. Collett . . .610 V. Davies 189 V. Frank 641 V. Lynn 136 V. Powell 217 ■ t'. Sladden .... 66 Marston v. Roe -118, 153, 385 Martin v. Cotter, 6, 18, 252, 3-26, 327, 627, 628 1-. D'Arcy . . . 4t9n. in re 65 V. Martin 588 V. Mitchell, 104, 172, 173, 176 V. Pycroft . . . .132 V. Sedgwick . . . 315 V. Smith . . . 202, 304 Maitin and Oi'msby, in re . 53 Martindale v. Booth . . . 581 V. Smith 218 Martyn v. Clue .... 472 V. Macnamara . . . 495 Maryon «. Carter . . 167,218 Mason v. Armitage, 10, 119, 120, 180 V. Cole 20 V. Corder . . 249, 250, 31 V. Franklin . . . .195 Massey «. Batwell . . .416 Mather v. Frtiser .... 27 V. Priestman ... 49 Mathison v. Clarke ... 54 Matthejtv v. Bowler, 657, 558 n. ?;.' Osborne . . . .159 Matthews v. Dana . . . 294 V. HoUings . . 440, 442 • V. Jones . . . 540, 637 V. Stubbs 78 V. Wallwyn . . . .165 Matthieu. Edwards . . .328 Mattock V. Hunt . . . .247 IK Kinglake .... 202 Maundrell o. Rlaundiell . 510 Mavmsell I'. White . . .111 Maurice v. Wainwright . . 81 Maw ?). Topham .... 266 Mayfield v. Wadsley, 100, 101, 102 Maynard's, Serj., case, 440, 441 Mayne v. Macai-tney ... 92 Mayor, &c. of Basingstoke V. Ld. Bolton . .313 Mayor of Berwick-on Tweed V. Oswald . . . .139 Mayor of Congleton». Patte- son ....... 486 Mayor, &c. of Norwich v. Norfolk Ky. Co. . . 60 Mayor v. Steward .... 480 Mead v. Ld. Norbury . 324 n. Page. Mead v. Lord Orrery . . 650 Meadows v. Duchess of Kingston .... 643 V. Tanner . 8 Mears v. Best . . . 73 Mease v. Mease . . 129 Mechelem v. Wallace 102 Meder v. Bu-t . . . 643 Medley v. Horton . . 615 Medlicot v. O'Donel, 213, 234, 573 Meek v. Kettlewell . 691 Melling v. Bird . . 65 V. Leak . . . 3y7 Mellish V. Brooks . . 405 V. Mellish . . . 142 n. V. Motteux . . 277 Merceron v. Dowson . 487 Meredith v. Saunders 233 Meres v. Ansell . . 129 Merry v. Abney . . 622 Mertens v. Adcock 32 Mertins v. Joliffe . . 620 ,633 Metcalf t). Clough 40 V Scholey • . 416 ]M etcalfe v. Pulvertoft, 592, 593, 625 Metherell, ex parte . 65 Meux V. Bell . . . 315 V. Maltby . . 626 V. Smith . 434 Meynall v. Gai'raway 620 Meynell v. Sartees 110 ,123 126, 274 ,612 Meyrick, in re . . . 331 Miclielson v. Wallace 98 Micklethwaite v. Nig htin- gale .... 131 Middlemore v. Goodale 466 Middleton, Ld., v. Eyre . 109 n. V. Wilson . . 109 Middleton v. Spicer . 148 Midland Cs. Ry. Co., in re 65 V, Oswin . (i6 V. Rice . . . 71 V. Westcomb , 71 Mildmay v. Hungerford 275 V. Mildmay . . . 642 Miles V. Dawson . . . 3 72 n. V. Langley . . 628 Mi 'field, in re . . . 169 Mill V. Commissioners oi New Forest , 408 V. Hill . . . 699 Millard's case . . . 609 ,642 Miller v. Blandist 124 Millican v. Vanderplunk, 80, 83, 87, 96 Milligan v. Cooke .... 254 Mills V. Auriol . . . . 499 ■ V. Harris . . ... 30 V. Oddy . . . . 25,39 V. Osborne . . . . 542 Milner v. Horton . . . .496 V. Mills . . . 153, 161 Milnes v. Branch, 478, 480, 480 n. V. Gery ..... 238 Ixii INDEX TO CASES CITED OR INTRODUCED. Page. MihvartU>.EailofThanet,219,-225 Minchin v. Nance .... 629 Mines Royal, Society, v. Magnay . . . .186 Minet, ex parte .... 103 V. Leman . . . .31:5 IMinor, ex parte . . 7'J, 241 Mirehouse v. iScaife . • . 640 IMirfin, in re 394 Mitchell V. Hayne ... 41 V. Neale . . . 3-20, 453 V. Newell 70 Mitford v. Mitford . . Mittelholzer v. Fullartou Mocatta v. Murgatroyd . Moggridge v. Jones . . Molesworth v. Opie 635 454 6.i7 202 94 V. Robbins .... 361 70, 569 . . 98 . . 130 . . 314 14,281 626, 642 . . 570 . . 665 Molineux, ex parte . Mollet V. Brayne . . Mollett V. Wackarbarth Molloy V. French . . V. Sterne . . . Molony v. Kernan V. L'Estrange Molton V. Camboux . Monck V. Huskisson, 325, 520 n. Money v. Jorden .... 4 Monro v. Taylor, 15, 139, 141, 229, 251, 252, 514, 635 Montague v. JeSeries . .156 Montesquieu v. Sandys . . 670 Montford, Ld., v. Ld. Cado- gan 613 Monypenny v. Bristow . . 155 Moody V. Dean and Chap. of Wells . . . 606 n. V. Walters .... 322 Moor V. Mayhow .... 642 V. Raisbeck . . 160, 161 Moore v. Bennett .... 633 V. Creed 299 ■ V. Edwards .... 121 V. Foley 141 V. Greg 31 V. Mayhew . . . .619 V. Rawson .... 313 Morecock v. Dickens . . 699 Morgan, ex parte . 666 n. 571 V. Gurley .... 227 V. Holford, 105, 162, 163 — — V. Milraan, 58, 62, 175, 238 V. Pike 456 V. Rainsford . . . .182 . r. Shaw . . . 193,294 V. Tedeastle .... 272 Morice V. Bishop of Dur- ham 92 Morison v. Tumour . 115, 117 Morley v. Attenborough, 281 n. r. Cook . . 17, 18, 361 Morony v. O'Dea .... 237 jMorphett v. Jones . . .123 Morrell, ex parte . . . 661 n. Monet V. Paske .... 446 Morris v. Barrett .... 574 r. Clarkson .... 329 Page. Morris V. Davies .... 349 V. Edgington . . . 498 V. Ellis 403 V. Kearsley . 16, 314, 355 V. M'Neil .... 203 V. Morris 385 V. Preston .... 258 V. Stephenson . . .173 w. Timmins . . 211,239 Morrough v. Power . . . 404 Morse v. Faulkener, 298, 612, 61 3 V. Merest .... 239 V. Royal, 212, 213, 237, 673 V. Tucker 500 Morshead, Sir John, u. Frede- rick .... 95, 655 Mortimer v. Capper, 231, 244, 245 V. Ireland .... 549 i;. Orchard, 12.3, 126, 132 V. Shortall . . . .143 Mortlock V. Butler, 56, 86, 118, 175, 181 n. 206, 231, 232, 254, 255. W.Kentish . . . .312 Moses V. M'Farlan . Mosley v. Hide . , Moss V. Gallimore V. Harter . . . V. Matthews . 32 Moth V. Atwood . . Mountford v. Scot Mower v. Orr . Moxhay v. Inderwick , 198 . 29 . 152 . 143 44, 294 . 237 . 622 . 385 30, 31, 485, 652 124 574 87 579, 580 . . 208 Moyl V. Home . . Moyse v. Gyles Mullins V. Townsend Mumma v. Mumma Mummery v. Paul Mundy v. JolifFe . 126, 128, 132 Mum'oe v NewTy, &c , Ry. Co 62 Hunt V. Shrewsbury, &c., Ry. Co 60 . 579 . 21 600 n. 466 n. . 667 . 37 Murless v. Franklin . Murley v. M'Dermott Murphy v. Leader V. Ford . . . V. O'Shea . . . Murray v. Currie . . V. Palmer, 213, 214, 233, 237, 573 Muscot V. Ballet .... 498 Musgi-ave V. Dashwood . .172 Muskerry v. Chinnery . .619 Mussell y. Cooke . . . .112 Muston ?;. Bradshaw . . .195 Mutts V. Kancie .... 650 Myddleton v. Lord Kenyon, 691 Myers v. Watson . 20, 131, 180 Myim V. Jolifle . . 38, 639 N. Nagle V. Ahern .... 461 V. Baylor 177 Page. Nairn v. Prowse . 656, 562, 589 Napper v. Lord Allington . 500 Nash V. Aston . 489, 498, 501 V. Coates .... 324 n. V. Hodgson .... 400 in re 69 V. Palmer 488 V. Turner 365 r..Wor. Imp. Com. . 63 National Ex. Co. v. Drew, 210, 211 n. Neal i\ Morris 166 V. Viney 102 Neale v. Mackenzie . . .181 V. Parkin 269 Neap V. Abbott . 179, 180, 260 Neate v. Duke of Marl- borough . . . .418 Needham v. Beaumont . . 687 Needier y. Wright . . .616 Neesom I,'. Claa-kson . 214,370, 583, 634 Neeves V. Burrage . 333,551 Nelson v. Aldridge ... 36 V. Bridges . . . .196 W.Nelson. . . 143,271 Nelthorpe v. Holgate . 17, 163, 183,195,257,629 V. Pennyman ... 96 Nepean v. Doe 396 Nervin v. Munns . . 488, 493 Newall V. Smith .... 534 Newbold i>. Roadknight . 161 Newby v. Paynter, 17, 29, 264 Newell V. Ward .... 543 Newham t\ May . . . .197 Newland v. .... 432 Newman v. Kent .... 442 V. Rogers 221 V. Warner .... 549 New])ort's, Andrew, case . 502 Newstead v. Searles . 589, 622 Newton, ex parte .... 70 V. Hunt 236 V. Preston . 577 n., 578 Nias V. The Nor. and East. Ry. Co. . . . ■ . . 638 Nicholls (,'. How . Nichols V. Gould . Nicholson v. Hooper V. Knapp . . Nicloson V. Wordswor 294, 324 n Nicoll V. Chambers Nind V. Marshall . Nixon, ex parte V. Hamilton . V. May oh . . V. Robinson . Noble V. Cass . . V. King Noel V. Bewley . V. Hoy . . V. Jevon . V. Ward . V. Weston Noke V. Awder . . . 436 234, 237 . . 611 . . 193 ■th . 290, ., 531, 547 15, 269 494 63 623 372 633 500 493 331,613 182, 293 . . 380 . . 370 330, 453 . . 466 INDEX TO CASES CITED OR INTRODUCED. Ixiii Page. Nokes V. Ld. Kilmorey, 221, -i-io Norfolk, Duke of, v. Worthy . 1 8, 23,42,46, 199,270, 27 U Norman v. Foster .... 496 V. Stiby iiOO Norman by, Marquis of, v. Duke of Devon. 115, 185 Non-is V. Ld. D. Stuart . . 625 V. Le Neve . . 573, 622 North British Ry, Co. v. Tod 20 North V. Langton . . . .511 North of England Banking Co., in re . . Northampton Gas L. 314 Co. i\ Parnell . . . 238 Northwick, ex parte . . . 64 Norton v. HeiTon . . . . 46 V. Mascall . , . . 184 V. Steinkopf . . . . 192 V. White 196 Norwich, Mayor of, v. iS'or- folk Ry. Co. . . . 60 Nott V. Hill . . . . 233 237 V. Riccard . . 15 225 • V. Sliirley 154 Nouaille v. Flight . 14, 250, 259, 281 317 V. Greenwood, 306, 32 5 n., 334 Noiirse v. Yarworth . . . 504 Nugent V. Gilford . . . . 550 Nulkes V. Dav 416 Nurse i-. Lord Seymour . . 186 Nm-tou V. Nurton . . . . 550 o. 419 n. . 85 . 93 . 135 . 432 1.58 n. O'Brien v. Scott . . O'Conner v. Kirwan . O'Connor v. Richards V. Spaight . . O'Dell I'. Wake . . Ogden i: Battams Ogilvie V. Foljambe, 13, 106. 108, 113, 117,308 O'Gorman r. Comyn . . . 592 O'Hara i\ Chaine .... 83 V. Creagh 404 V. O'Neil 577 O'HerUhy v. Hedges, 109, 124, 126, 183 O'Kell V. Whittaker O'Kelly V. Bodkin Oldlield r. Round . Oldin V. Sam borne Oliver v. Court . . 207, 251 404, 405 . 9, 273 . . 569 , . 567 Olliver ??. King .... 581 a. Omerod v. Hardman, 135, 223, 542 O'Neal V. Mead . 559 n., 560 Onions v. Tyrer . . . .156 Onley v. Gardiner .... 408 Onslow V. Ld. Londes- borough . . 376,377 Page. Ord V. Noel .... 50, 181 O'Reilly v. Thompson . .124 Orlebar i\ Fletcher . 146,432 Orme v. Broughton, 200, 303, 466 V. Wriglit 53 Orniond, Ld., i\ Anderson, 108 O'Rourke v. Percival, 104, 297 Ortread I'. Round . . . .173 Osbaldeston v. Asketv, 296, 327, 533 Of born v. Lea 612 Osborne r. Foreman ... 92 V. Harvey . . 27, 287 V. Smith 613 Osgood V. Strode .... 590 Ossulston, Ld., t: Deverell, 307 n. O'Toole V. Browne . . .384 Otter V. Ld. Vaux, 568, 613, 615 Ouseley v. Anstruther . 81, 585 Overton v. Bannister . .611 Ovey ?;. Leighton . . 641, 643 Owen V. Body .... 581 n. V. Davies, 105, 174, 514, 518 V. Foulks ... 94, 566 V. Gooch 42 r. Thomas . . 109,113 Oxenden v. Ld. Falmouth, 523, 535 V. Skinner . 324 n., 332 n. Oxenham v. Esdaile . 454, 552 Oxford, Ld., v. Lady Rod- Ley 164 Oxley V.Lee 592 Oxwiek V. Brockett . . .271 V. Plumer .... 633 Packhouse v. Middleton . 482 Page V. Adam, 16, 18, 285, 543, 544 I'. Broom 54 in re . . . . 524,539 V. Lever 641 Paget V. Foley 405 Paine v. Meller, 220, 224, 241, 242, 243, 305, 317 Painter v. Newby . 29, 254, 271 Pakenham's case . . 475,477 Palk, Sir L., v. Skinner . 408 Palmer v. Algeo .... 404 ex parte 69 V. Goren (a) S/o V. Temple . 32, 40, 198 Palmerston, Ld., ex parte . 70 Papillon V. Voice . . . 371 n. Pai-amore v. Greenslade, 31,241 452 Parker v. Blythmore . . 644 V. Brooke .... 637 V. Carter . . 587, 589, 608 V. Farebrother ... 36 V. Frith 222 V. Mitchell . . 407, 408 Page. Parker v. Rolls .... 439 V. Sergeant .... 588 V. Smith . . • . .124 y. Staniland . . . .101 Parkes, ex parte .... 555 Parkhmst v. Lowten . . . 638 Parkin t'. Thorold, 136,227,228 Parkins v. Titus .... 4.52 Parks V. White .... 566 V. Wilson . . . .185 Parnther v. Gaitskill ... 40 Pari" V. Eliason .... 592 Parrott v. Sweetland, 553, 555 Parry v. Carwarden . . . 592 V. Deere 459 V. Frame 361 V. Smith . . . 523, 639 iJ. Wright . . . .615 Parsons v. Freeman . . .154 Parteriche v. Powlet . . .129 Pai'tington, ex parte . 53, 92 n. V. Woodcock . . .152 Partridge v. Usborne . . 3 Pasley v. Freeman ... 4 Fasmore, ex parte ... 64 Patching v. Dubbins . . 485 Pater v. Baker 299 Paterson v. Long . 21, 195, 318 Paton V. Brebner .... 254 V. Rogers . 293, 294, 519 Patterson v. Slaughter . .644 Paul V. Wilkins . . . .147 Paul, Sii- H. V. Bu-m. &c. Ry. Co. Pawle V. Gun . Payne v. Cave . V. Compton V. Shedden Peachy's case . Peacock v. Burt V, Evans • 43, 72 . 46 . 11 . 644 . 408 577 n. . 608 235, 237 (a) 25 L. J., N. , 841 iulfl fliis case to n. (?) f 2 V. Penson, 20, 1 78, 195, 253 Peake, ex parte .... 556 Pearce v. Att.-Gen. . . . 1(16 V. Newlyn .... 636 V. Pearce . . 95, 638, 639 Pearse v. Pearse . . 638, 639 Pearson v. Lane .... 323 V. Morgan . . . .611 V. Pearson .... 94 Peart v. Bushell . . .46, 550 Pechel, Sir John, v. Fowler, 51 Peck V. Cardwell .... 575 Peers v. Ceeley .... 55 V. Lambert .... 262 Pegg z^. Wisden, 157, 158 n., 227, 228, 287, 288, 295 Peles V. Jervies .... 493 Pell V. Stephens .... 46 Pelly V. Maddin .... 577 r. Wathen . . 361,454 Pember v. Mathers, 13, 30, 142, 143, 145, 165 Penn v. Glover 488 Pennell v. Stephens . . . 597 Penniall v. Harborue, 249 n., 332 I p. 310. Ijtiv INDEX TO CASES CITED OR INTRODUCED. PiiR-e. Pennill v. Hallett . . 584, o85 Pennington v. Beecliy . . (J4:5 Penny v. Penny . . . .189 r. Watts, 6-20, G28, 029, n44 Penruddock v. Hammond , (>;58, G:39 813 :i-21 547 . 56(;n. . . (!2:5 207, -261 . . 59 394,419 . . 488 . . 99 . . 1G7 . . 583 . . 445 614,015 . . 195 Co. . 59 397, 402 . . 27 . . 2G9 583, 584 . . G38 . . 361 16,117,119 404, 405 . . 11 . 142 n. Pepper v. Barnard Peppei'coi-n v. Peacock V. Wayman . Pei'kes, ex parte . Perkins r. Bradley V. Ede . . . Perk's estate, in re Perrin, in re Perry v. Edwards . ■ V. Fitzhowe . V. Meddowcroft V. Phelips Peters v. Anderson Peterson v. Hickman Petre r. Buncombe Ld.,!). E. C. Ry V. Petre . Petrie v. Dawson . Pettitt V. Mitchell . Phayre v. Perce . Phelps V. Prew Philips V. Robinson PhilUmore ?;. Barry, 1 Pliillipo V. Munnings Phillips V. Bistolli . V. Chamberlain V. Duke of Buckingham, 183, 184 V. Everard . . , .175 r. Fielding . . 201,004 in re ... . 418, 422 ■ V. Phillips . . . 575 n. • • V. Redhil (134 ■ V. Sarjent 167 V. Vaughan .... 446 Phillpotts V. Phillpotts . . 299 Phipps V. Sculthorpe ... 98 Picard v. Mitchell ... 69 Pickering v. Dowson . . 45, 277 V. Lord Shelborne . . 306 V Noyes 372 Pickett V. Loggon .... 233 Pierce v. Scott 545 Piers V. Piers .... 78, 88 Piggott i». Waller . . 154,155 Pike V. Stephens .... 597 V. Viijers . 2, 3, 207, 23 1 , 444, 5(JG V. Wilson 36 Pilmoi-e u. Hood . . 184,208 Pimm V. Insall . . . 75, 540 Pincliin v. London, &c. Ry. Co 68, 485 Pincke v. Curteis, 202 n., 224, 266 Pindar v. Wadsworth . . 3-27 Pinnington v. Galland . 19 n. Pitcau-ne v. Ogbom-ne . 137, 144 Pitchers v. Edney ... t 41 Pitt r. Cholmondley . . .511 V. Donovan .... 299 Page. ,. US 481 n. . 620 . 498 Parish . 407 . 505 . 405 323 n., 532 . . 164 ; . 85 Hick- , . 582 . . 580 . . 315 Pitt V. Pitt . . . V. Williams . Pitts V. Ed( Iph . . Plant V. James . . Plasterers' Co. V. Clerks' Co. Piatt, Lady, v. Sleap Playfair v. Cooper Playford i\ Hoare . Plowden v.. Hyde . Plamtre v. O'Dell . Plymouth, Earl of, v man . . . Pole V. Pole . . . Pole's trusts . . PoUexfen v. Moore, 146, 528, 55-2, 559 n., 5C0 Polyblank v. Hawkins Pomeroy, ex parte Poole V. Coates ex parte . V. Hill , . V. Rudd . V. Shergold, 231, 241, 266, 359, 529 Pooleyr. Budd . . . .176 Pope V. Biggs 152 I'. Ld. Duncannon . . 239 V. Garland . 6, 19, 22, 259, 627 V. Harris 178 ». Roots . 231,242,244 V. Simpson .... 221 Popham V. Eyre, 109, 126, 183, 222 Popple V. Henson . . . 226 Porcher v. Gardner . . .218 Pordage v. Cole .... 40 Port of Londoii Ass.Co.case, 6 Portarlington, Ld., v. Soulby, 641 Porter's, Gregory, estate . 174 Portman v. Mill . 259, 269, 296, 620 504 . . 53 . .154 583, 585 201,202 . . 43 Portmore, Ld., v. Bunu . . 466 . . .371 V. Morris . . . . 144 V. Tavlor . . . 234, 235 Pott V. Todhunter . . . 592 Potter V. Potter . . 154 V. Sanders . . 107, 153 . . . 236 V. Webb . . . . 220 Poulter V. Killingbecl :: . . 100 Poultney v. Holmes . . 99 n. Pounsett V. Fuller 301, 302 Powdrell v. Jones . . 381,584 Powell V. Dillon . 110,626 V. Divett . . . . 130 V. Doubble . . . 23 V. Edmunds . .13,130 V. Jessopp . . .102 V. Lovegrove . 168 n. V. Martyr . . 514, 534 V. Matthews . . 172, 389 V. Powell . . . . 330 V. South Wales Ry. Co., 259 (a) Add a reference to 5 Clark, C05. Page. Power V. Standish . . '. 635 Powers V. Fowler . . . .108 Poynder v- G. N. By. Co. . 67 Prance v. Sympson . . . 400 Prankerd v. Prankeid . . 679 Pratt V. Colt 416 V. Thomas .... 460 Prendergast v. Eyre . 82, 252, 259, 261,317 V. Turton 575 Prestage v. Langford . . 569 Preston v. Barker . . . . 91 V. Carr 638 V. Liverpool, &c. Ry. Co.(rt) 60 V. Merceau .... 129 V. Tubbin . 623, 624, 625 n. Price V. Asheton . . . . 1 09 V. Berrington . 174 n., 207 V. Blakemore . . 56, 558 V. Byrn 669 v. Carver . . . 170,330 V. Dyer . 134, 135, 137, 276 V. Griffith . . 108, 264 V. Littlewood . , .313 V. Macaulay . 18, 23, 24, 208 V. Moxon 93 V. North . 18, 86, 95, 270 V. Price . 94, 504, 643 n. V. Strange . 320, 324 n. V. Williams .... 202 Priddy v. Rose 316 Prideaux v. Prideaux . . 92 Prideux v. Gibbin .... 154 Prince v. Cooper .... 73 Prior V. Penpraze . . 415,612 Pritchard v. Ovey . . 184, 238 V. Quinchaut . . .143 Probert, inre . . . 171,331 Procter v. Cooper .... 626 Proctor V. Johnson . . . 493 V. Warren . . . .581 Prodgers v. Langham . . 692 Propert w. Parker . . 116,179 Prosser v. Edmnnds . . . 298 V. Watts . . . 363, 364 Pryce v. Bury 389 Prytharch v. Havard . . .169 Pulvertoft V. Pulvertoft . . 593 Pm'cell V. Blennerhasset . 403 ■ V. Kelly . . . 573, 640 Purvis V. Rayer . 307 n., 308 Pye i\ Daubuz 600 ex parte 691 Pyke V. Northwood 158 n., 193 V. Williams . . . .123 Pyncent v. Pyncent . . 371 n. Pyrke v. Waddingham . . 320 Q. Quaintrell v. Wright . . .140 Queen, The, ?;. Ambergate, 6lC. Ky. Co. . 62, 68 n. INDEX TO CASES CITED OR INTRODUCED. Ixv Page. Queen, The, v. Birmingham, &c. Ry. Co. . . 62, 68 V. Ellis 418 V. Eton College . . . 460 V. G. Western Ry. Co., 68 n. V. Ir. S. East. Ry . Co. . 68 V. Lan.&YorkRy.Co., 68 n. V. Leeds, «kc. Ry. Co. . 62 V. London & Green. Ry. Co 58 V. L. & N. W. Ry. Co., 61, 62,68 V. Lord of Manor of Houghton . . . 452 n. V. Manchester, &;c. Ry. Co 58 n. V. Regr. of Middx., 600, 602 V. S. Devon Ry. Co. . 68 V. S. W. Ry. Co. . . 64 V. York & North Mid. Ry. Co. . . . 68, 68 n. • V. Wing 314 Quincey, ex parte .... 27 R. Rabbett v. Raikes .... 26 Radcliffe v. Fursraan . , . 638 V. Warrington . 218, 219, 220, 307 n. Radford v. Wilson . . .643 Radnor, Ld.. v. Shafto . 168 n., 162 Radnor, Laly, or Bodmin, v. Rotherham, or Ven- debendy .... Railstone v. York, &c. Ry, Co. . . . Rainy v. Vernon , Raleigh's, Sir Walter, Ralph, ex parte Ramsbottona v. Gosden V. Mortley V. Tuubridge Ramsden v. Hylton V. Manch. &c. E Ramsey v. Eaton . Ranclitf t>. Parkyns Randall v. Errington V. Hall , . V. Morgan V. Randall V. Rigby . . Ranken v. Docks, &:c. Ry. Co. . . . 58 n., 63 Rann w. Hughes . . . .115 Rappener v. Wright . . . 456 Rastel V. Hutchinson, 122, 578 Ratcliffe w. Bleasly . . .371 Rawlins v. Burgis . . . .154 Rawson, ex parte .... 609 Raymond v. Webb ... 86 Rayner v. Grote . . . -199 ■ V. Julian 195 Ilea V. Williams . . 574, 655 510 62 . . 37 ise . 580 . . 31 . . 132 112,114 . . 114 . , 590 Co., 07 . . 596 637, 640 571,572 . . 20 676, 590 . 575 n. . . 479 Rector of S. Collingham, ex parte . . . . 70 n., 297 Redding (J. Wilkes . . .123 Reddy v. Williams . . . 626 Redington v. Redington . 577, 579, 580 Reece v. Ti-y ... 638. 639 Reed v. Williams .... 637 Reeves v. Gill 448 V. Reeves .... 371 n. Reid,- ex parte 629 Shergold Reilly v. Fitzgerald . Remington v. Deverall Renforth v. Ironside . Retallick v, Hawkes . Revell V. Hussey . . V. Revell .... Rex V, Bellringer . . . V. Commissioners London Docks V. Cracroft . . . V. Dunston . . , V. Hungerford M. C V. Inhabitants of Had- denham 564 V. Inhabitants of Horn- don V. Inhabitants of Lain- don V. Inhabitants of Pres- ton V. lahabitants of Scam- monden 129 V. Inhabitants of Stan- don 98 V. Inhabitants of Wick- ham 129 V. Lamb . . . 436, 509 V. Lord of Manor of Henilon 452 V. Lord of Manor of 610 . . 347 . . 165 . . 608 . . 200 176, 241 . 419 n. . . 141 of , 66 . 96 . 122 . 62 98 129 456 Oundle . . V. Manch. Com. V. Marsh . . V. Miller . . V. Osbourne . V. Smith . . V. Snow . . V. Varlo • . V. Withers Reynell v. Long . V. Sprye . . Reynolds v. Blake • ex parte . . V. Nelson (a) 452 62 V. Waring . , Rhodes j\ Baker . V. Bullard V. Ibbotson . Riccard v. Blamire Rice V. Rice . . . . Rich V. Jackson . . v. Rich . . . Richards i'. Atty.-Gen 141 141 436, 510 147 141 638 366 . 178, 638 ... 85 566 n., 572 . 197,204, 227 . 126, 128 100 492 15, 190, 282 369 n. . 562 135, 144 . 497 , 66 Page. Richards 17. Barton .302,351, 414, 453 V. Fry 407 V. Hayward . . . .105 V, Jackson .... 638 V. Porter 108 Richardson v. Ilorton . . 540 V. M'Causland, 557, 558 n. V. Mitchell . . . .641 83 468, 481 . . 576 677,578 . . 253 277 94 579 150 I, 608 n, 401 157 V. Ward . . Riddell v. Riddell . Riddle v. Emerson Rider v. Kidder Ridgway v. Gray • V. Sneyd . . . . . - . . V. Wharton, 1 1 0, 1 1 8, 1 22, 123 Ridlerjj. Ridler .... 665 Rigby V. IVlacNamara Right V. Bawden . . V. Beard . . . V. Bucknell . 449, Himington v. Cannon Ripley v. Waterwortb . . Rippingall v. Lloyd, 18, 219, 358 Risney v. Selby .... 3 Rist V. Hobson 105 Roach V. Wadham . 467, 468, 469, 470, 478, 483 Roake v. Kidd, 320, 323, 324 n, Rob i\ Butterwick , . 143,451 Roberts v. Berry . . . .228 V. Brett 201 V. Marchant .... 196 V. Massey . . 43, 44, 514 V. Rowlands .... 200 -v. Snell 318 V. Tunstall .... 573 V. Wyatt . .18, 285, 356 Robertson v. Gt. West. Ry. Co 195 V. Skelton, 79, 80, 83, 241, 518, 521 Robinson v. Anderton . 440 n. V. Briggs , 5, 56, 622, 623, 634 V. Davison .... 608 V. Harman . . 301, 525 V. Hedge or Hedger, 417, 420, 433 V. Lowater . 541, 545 n. V. Macdonnell . . . 459 V. Milner 296 V. Musgrove . . . 20, 51 V. Page . 134, 135, 139 V. Rutter 40 V. Stowell 219 V. Sykes 585 V. Wall 8 V. Wood 330 i\ Woodward . . .431 Robson i\ Kemp . . 638, 639 Rochard v. Fulton . . .315 Roche V. Cullen . . , .40,5 V. O'Brien, 212, 213, 237, 573 Rochfort V. Ld. Belvidere, 164 (a) Add, Nott v. Riccard, 2 Jut., N. S., I03S. IXTI IKDEX TO CASES CITED OR INTRODUCED. Roe V. Mitton, PaRe. 589, 590 n., 5i)l 578 105 592 99 20-2 143 152 191 544 C44 541 540 473 88, 423 226, 501 . 332 n. 119, 121 V. Pophain V. Soley . . Roddy r. M'illiams Rofl'ey I'. Henderson V. Sliallcross . Rogers r. Earl . . v. Humphreys V. Jlort . . v. Rogers . . v. Sealo . . IK Skillicorne Rolfe r. Chester . Roll i\ Osborne Rolleston ?•. Morton Rome V. Young Romilly i\ James . Rondeau v. Wyatt Rooko V. Ld. Kensington . 142 Rooper V, Coombes, 218, 307 n. V. Hamson . .315, 506 Roots V, Ld. Dormer . . . 265 Rosamond v. Ld. Melsington, 144 Rose V. Calland, 266, 320, 324 n., 532 —— V. Cunynghame, 108, 113, 154, 155, 102 Ross, ex parte 420 V. Boards . . . 254, 318 Ld., V. Sth-ling . . . 222 Roswell V. Vaughan, 298, 307 n., 442 Rotherham r. Flynn . . .615 Routledge v. Grant, 11, 106, 107 Rowe V. May 42 V. Roach 299 V. Teed 121 Rowley v. Adams . 522, 575 n. Rownti'ee v. Jacob . . 561 n. Rucker v. Cammeyer, 118, 119 Rumsey v. Rumsey Rundal v. Everest . Rushbrook v. Hood Rushton V. Craven Rushworth's case . Russell V. Plaice . Rutland's, Lady, case Rutledge i: Rut ledge Rutley v. Gill . . Rutter V. MaiTiott Ryall r. Ryall . . Ryder v. Gower • V. Wager . . Ryland v- Smith . Ryle c. Brown . . v. Swindells . 74 . 32 . 460 320 n. . 269 . 551 . 138 . 153 . 81 . 81 . 578 . 93 . 156 . 581 . 235 . 232 S. Sacheverel v. Bagnol , . . 366 Saddi\JMalden,i2iC.Ry. Co., 01 n. Sadlier r. Biggs .... 364 Sainsbury v. Jones, 195. 196, 199 ■ V. Matthews . . . .101 Sainter v. Ferguson . . .185 Page. St. Alban's, Duke of, r. Shore, 185, 201, 203,304 St. George's Packet Co., in re 540 St. John, Ld., v. Boughton, 400, 404 St. John, Ld., v. Lady St. John 591 St. John V. Bishop of VVinton, 154 St. Paul V. Birm., &c. Ry. Co., 72 Sale V. Crompton .... 433 Sahsbury v. Hatcher . . .182 Ld., V. Wilkinson . . 524 Ld., V. G. N. Ry. Co., 63, 68 Salkeld r. Johnston . 406,407 Salmon v. Bradshaw . . . 498 V. Cutts . . . 568, 573 . V. Randall .... 61 Salomon v. Laing .... 60 Saloway v. Strawbridge . , 53 Salter v. Cavanagh . . . 402 Salters' Company v. J ay . . 407 Saltoun, Ly., v. Pliilips . 307 n. Sampson v. Easterby . . 481 n. i\ Swettenham . . . 372 Sanders T'. Deligne . . .511 v. Guy .... 80 n. V. Richards . 324 n., 328 V. Wakefield . . . .103 Sanderson v. Cockermouth Ry. Co. ... 58, 179 V. Walker . . 509, 572 Sandys v. Hodgson . . . 61 1 Sansom v. Rhodes . . . 218 Saunders v. Boroughs • 569 n. V. Cramer 100 V. Dehew 009 V. Gray 80 V. Ld. Annesley . 206, 298 V. Musgi-ave . . . .150 Saunderson v. J ackson, 111, 115 Savage v. CaiToll, 124, 126, 128, 102, 583 V. Foster . , V. Humble V. Taylor . , V. Whitbread Savery v. King (a) Saiille V. Saville , . Savory v. Underwood Sawj-er v. Birchmore Say v. Barwick . . Say and Seal's, Ld., case Oil . . 550 150,014 . . 402 329, 570, 573 95, 230 . . 351 . . 039 . . 177 639 Sayles f. Blane . . 170,314 Scargill i: Harry .... 307 Scawin v. Scawin .... 579 Schmaling v. Thomlinson . 30 Schneider r. Heath . 18,277 ?>. Norris 115 Schreiber v. Creed, 20, 485, 646 Schi'oder v. Schroder . . .154 Schwinge v. Lond. and Black, Ry. Co 64 Scoones f. Morrell . 313,535 Page. . 531 . 100 . 512 . 591 . 213 230, 550, 016 2,275 . 28 , 512 . 183 91, 92 3, 346, 395 416 403 32 Scorbrough v. Burton Scorell V. BoxaW . Scot V. FenhouUet Scott I'. Bell I'. Davis . V. Dunbar . V. Hanson V. Jackman V. Knox . V. Langstaffe V. ^'esbit . V. Nixon . V. Scholey V. Scott V. Tyler 550 r. Walker . . . . 349 n. Scrafton v. Quincey . . . 599 Scroope t\ Scroope . . . 580 Scully V. Delany . . . .299 Seabourne v. Powell . . . 500 Seaforth, Ld., ex parte . . 33 Seagood ?;. Meale, 108,113,125 Seaman i\ Price . . . .100 V. Vawdi-ey, 258, 320, 327 Seaton v. Booth, 150, 151, 205 V. Mapp, 15, 222, 227, 281 Seddon v. Senate . . 488, 493 Sedgwick «. Hargrave . .173 Selby t;. Selby , . . 116,500 Selkrig v. Davies . . . 575 n. Sellick V. Trevor . . 15, 308 Selsey, Ltl., v. Rhoades . . 508 Senhouse v. Chi-istian . . 575 V. Earle . . . 592, 637 Seton V. Slade, 103, 153, 202 n., 220, 224, 226 Sevier v. Greenway . . . 1 66 Sewai'd v. W^illock, 202, 203, 218, 304, 451 Sewel V. Johnson .... 95 V. Walker 234 Seymour v. Nosworth . . 642 Shackleton v. SutcUtfe, 24, 258, 261, 276 Shadforth v. Temple . . ,158 Shaftesbury, Ld., v. Arrow- smith 372 Shales t;. Shales . . 579,580 Shallcross v. Weaver . . ,371 Shannon v. Bradsti'eet, 56, 128, Shapland v. Smith, Sharland v. Leifchild Sharp V. Adock V- Page V. Soulby , Sharpe v. Roahde Shaw, ex parte , V. Borrer . V. Botley , V. Fisher . V. Jakeman v. Neale , V. Thacki'ay V. Wright Shears, ox jiai-te 175 320, 323 n. 14, 354 324 n. . 357 . 581 433, 534 64 543 595 176,314 143 426 177 330 65 (a) Add, 5 Clark, 627. INDEX TO CASES CITED OR INTRODUCED. Ixvii Pafje. Sheffield v. Ld. Mulgrave . 223, 320, 324 Shell V. Incor Soc. . . . 39G SliL'lburne v. Inchiquin, 140, 142, 144 Sheldon v. Cox . . . 599, 622 Sh.'Uy V. Nash 236 Shelmai-dine v. Harrop . .165 Shelton v. Livius .... 13 Slienton v. Jordan . . . 1 85 Si-epherd v. Hall .... 459 V. Kain 277 V. Keatley . 15, 284, 308, 355 Sheppard v. Doolan . . 84, 323 V. Duke 405 ■ V. Gosnold .... 141 V. Wilson 542 Sherly v. Fagg 609 Sherry v. Oke 199 Sherwln v. Shakspeare, 352, 354, 518, 522, 523, 530, 535 Sherwood v. Beveridge or BuiTidge ... 85, 91 V. Robins . . 25, 236 Shine V. Gough, 510, 608, 614 Shipman v. Thompson . . 453 Shippey t;. Derrison . 110,114, 117 Shirley, Ann, ex parte, 394, 450 V. Davies 275 V. SU-atton . 2, 179, 231, 279 V. Watts 417 Shore v. Collett , 362, 368, 369 Short V. Kalloway .... 499 Shovel, Sir Cloudesley, v. Bogan 269 Shrewsbury, Ld., v. Gould . 492 V. Lady Shrewsbury . 44, 162 Shrewsbury, &c. Ry. Co. v. Loudon, &c. Ry. Co. 59 Sibbald v. Lowrie .' . . 287 Sibbering v. Ld. Balcarras, 236, 237, 403 Sibson V. Fletcher . . .610 Sibthorp v. Brunei . . . 202 Siddon v. Charnells . . . 609 Sidebotham ». Barring-ton . 223, 293, 353, 533 ex parte . . 6, 287, 295 Sidmouth v. Sidmouth . . 579 Sidny v. Banger .... 566 Siggers v. Evans . . . 581 n. Sikes V. Lister 148 Simmons v. CorneUus . .124 Simms v. Marryat . . 332 n. Simon v. Motivos . 42, 119, 120 Simpson v. Clayton . . 478 n. V. Ld. Howden . . 59 V. Lancaster, &c. Ry. Co 62 V. Margitson . 37, 141, 216 V. Morlfy 430 V. Sadd . . 287, 307 n. Sinclair v. Jackson Siree v. Kirwan Sitwell V. Bernard SkarftJ. Soulby Skeats v. Skeats . Skeeles v. Shearly Skelton's case . . Skerratt v. Nor. Staf Co. . . . Skett V. Whitmore Skinner, in re . . V. M'Douall . V. Stacy . . Skipwith V. Shu'ley Slack V. Sharpe Slaney v. Wade Sleddon v. Cruikshank Sleeman, in re . Sloane v. Cadogan Sloman v. Heme Sloper V. Fish, . Page. . 404 . 12 . 65 681 n. . 579 . 418 . 295 Ry. 62 578 52 109,122 164 363 30 348 102 412 691,655 . . 638 320, 324 n., 432, 538 Small V. .Attwood . 3, 179, 213, 214, 215, 233, 287, 444, 526, 527, 539, 573. V. Marwood .... 547 Smart v. Harding . . .100 V. Prujeau .... 155 t'. Sanders .... 453 Smartle v. Penhallow . . 579 Smith V- Adams . . . .381 V. Baker , . . 577,613 V. Duke of Beaufort . 372 V. Bm-nam . . 220, 224 V. Ld. Camelford . . 577 V. Capron . 179, 196, 310 V. Chichester . . .361 V. Clarke 8, 9 V. Compton . 495, 496, 499 V. Constant V. Cooke . V. Deacon V. Dearmer V. Death . 189 . . 371 n. . . .585 . . .165 325 n., 334 V. Sir T. Dolman, 224, 515 V. Dublin and Bray Ry. Co 63 V. Ellis ex parte . V. Garland ■ V. Guy on . V. Hibbard V. Jackson . V. JefFryes V. Leigh . . V. Lloyd, 42, 193 V. Low . . V. Nelson . . V. Phillips V. Rosewell . V. Skelton V. Smith . . V. Smith (Ir.) V. Spencer V. Spooner . , . 16, 282 . ... 65 ... 593 . 541, 542 n. 148, 365, 528, 552 . . 193 . . 140 . . 633 267, 396 n. . . 626 Page. Smith V. Surman, 100, 101, 106 V. Thomas .... 400 615 610 615 315 397 381 299 V. Tolcher V. Tombs . V. Trowsdale V. Turner . V. Ward . V. Watson Sir W., V. Wheeler V. Wilkinson V. Woodhouse V. Wyley . . Snag's case . . . Sneesby v. Thorne Snelling r. Squint Snow V. Booth . . Sober v. Kemp Solomon ?>. Turner Sorrel v. Carpenter Souter V. Drake Southby V. Hutt . 267 . 102 . 139 . 124 567 n. . 113 . 547 . 577 . 201 . 461 . 642 181,550 625 397 614 145 624 281,307 6, 16, 27, 289, 295, 358 V. Stonehouse . . 371 n. Southcomb v. Bishop of Ex- eter . . .44, 225, 290 South Eastern Ry. Co. v. Knott . . . .62,180 South Sea Co. v. D'Oliff . 143 South Wales Ry. Co., ex parte 67 V. Wythes (a) . . 62 n. South Yorks. &;c. Ry. Co., in re 68 Sowarsby v. Lacy .... 542 Sowden v. Sowden . . . 683 Sowerby v. Brooks • . . 626 Spackman v. Gt. Western Ry. Co. , .... 58 Spalding v. Shalmer . . . 541 Sparkman v. Timbrell . . 499 Sparrow I). Cooper . 168 n. V, Oxford, &c. Ry. Co., 68, 62 Spartati v. Benecke . 130, 202 Speldt V. Lechmere . . .613 Spence v. Hogg . . . .153 Spenceley v. Schidenbui-gh . 639 Spencer v. Boyes .... 481 V. Marriott .... 490 V. Topham . 570, 622, 623 Spencer's case . Sperling v. Trevor Spickernell v. Hotham Spiller V. Spiller . . V. Westlake . . Spittle V. Lavender . Spoonei''s este., in re . Spratley v. Griffiths . Spratt V. Hobhouse . V. Jeffijry . 14, 16, 281, 308 Sproule V. Prior . . 559, 560 Spunner v. Walsh . 6, 248, 626 Spurrier r. Elderton . . 40, 525 V. Fitzgerald . . . .122 ■D.Hancock . . 221,243 V. Mayoss .... 627 466, 472, 474 328 400 192 202 46 69 233 697 (a) 5 Dc Ge. Miic. & Gov. 8S0: add this case to n. (/)), p. 179. Ixviii INDEX TO CASES CITED OR INTRODUCED. Page. . 231 . '20 . 615 100, .'504 . 328 . 5GG . . 88 . 502 . 103 . 210 62 202 266 Squire v. Ba1. Townend . . . .411 Urch V. Walker .... 547 Urmston v. Pate . . . .441 Uxbridge, Ld., v. Stani- land 478 V. Vale V. Davenport ... 78 Van V. Corpe . . . 137, 179 Vancouver v. Bliss, 6, 258, 266, 296, 531, 532 Vane v. Ld. Barnard, 440, 498, 623 Vandelem' v. Blagrave . . 649 Vansagnew v. Stewart . 88, 89 Vansittart v. Barber . . . 372 V. Collier 79 t\ James 94 Vaughan v. Hancock . . 102 V. Magill . . . . 6, 628 V. Vanderstigen . . 611 Vauxhall B. Co., v. Earl Spencer 59 Vawser v. Jeffrey . . . 156 Veal V. Nicholls . . . .460 Verner?;. Winstanley, 166, 233 Verney, Ld., v. Carding . 616 Vernon, ex parte . . . .577 V. Keys 4 V. Smith 478 V. Stephens .... 44 Vesey v. Elwood ... 80, 83 Vickers v. Cowell .... 574 V. Scott 55 Vigers v. Pike 205 Vigier V. Lee 404 Vignolles v. Bowen, 6, 24, 247, 628 Villiers v. Villiers .... 504 Vincent v. Going, 78, 80, 83, 405 ~ .92 . 404 . 124 . 638 . 131 472, 478 - V. Thwaites V. Willington Voll V. Smith . . Volant V. Soyer Vouillon V. States . Vyvyan v. Arthur . W. Waddilove v. Barnett Waddington v. Bristow 152 101 (a) Misprinted "Taye," in p. 591. (6) Misprinted " Tyler," in p. 623. Ixx INDEX TO CASES CITED OR INTRODUCED. Wade V. Bowling .... 238 V. Paget 500 Wagstafl'w. Read .... 642 Wain V. Warlters .... 103 Wainewi'ight, in re . . . 388 Wake t5. Wake . . . .170 Wakefield i'. Brown . . 473 n. V. Newton .... 361 Wakeman v. Duchess of Rut- land . . 84, 365, 463 Walcott tJ. Condon . . .615 V. Lynch . . . 153, 415 Waldi-on v. Forester . 517, 528 V. Sloper 631 Walker v. Aston . . . .170 • V. Bartlett . . 30, 314 V. Barnes 166 V. Burrows . . . 581 n. V. Constable, 119, 120, 199 — V. East. Counties Ry. Co. . . . 62, 64, 238 ex parte 67 V. Flamstead . 541, 624 in re 69 V. Jeffreys .... 222 ' V. Lady Beauchamp . 347 V. London, &c. Ry. Co., 58 V. Moore . 300, 302, 359 V. Prestwick .... 560 V. Smallwood, 51, 643, 624 ■ V. Walker .... 131 V. Wildman .... 638 Walker's case 470 Wall V. Bright 157 ■ V. Stubbs 232 Wallace v. Cooke .... 453 V. Ld. Donegal , 600, 610, 613, 625 . . 234 . . 118 . . 200 266, 267, 295 149, 290, 515, 533 — — V. Harrison .... 99 V. Sarel («) . 83, 517, 521 V. Woodyear . . . 287 Wallwyn v. Lee, 370, 609, 640, 641 Walond v. Walond ... 92 Walpole, Ld., v. Ld. Chol- mondeley . . . .140 Walsh, in re 337 V. Whitcomb . . . 453 Walsingham, Lord, v. Good- ricke . . . 638, 639 Walter v. Maunde . . 6, 318 Walters v. Morgan . . .121 Walton V. Stanford . . .619 Waltham's case, Ld., 329, 330 Wanby v. Sawbridge . . 121 Warbui-ton v. Loveland, 587, 599 V. Sandys .... 182 V. Hill 315 Ward I'. Cooke . . . . 92, 93 V. Wallace . Waller v. Hendon . V. Horsfall . Wallinger v. Hilbert Wallis V. Bastard Page. Ward V. Garnons .... 363 V. Hai"tpole .... 670 V. Moore 154 Ld,, V. Oxford, &c. Ry. Co. . . 39, 60, 72 V. Trathem .... 85 V. Ward 316 Warde v. Jeffery, 220, 224, 226 V. Warde . . . 585, 639 Wardle v. Carter . . . .236 Ware v. Bickerton . . . 499 V. Ld. Egmont, 606, 622, 632 ??. Watson .... 93 Waring tJ. Hoggart . .18,21 V. Ward 164 17. Manchester, &c.,Ry. Co 179 Warn v. Bickford . . . .501 Warneford i\ Thompson, 325 n. Warner v. Willington, 106, 107, 112 Warner's case 563 Wanen v. Bateman . 317,318 V. Howe 461 V. Richai-dson . 286, 288, 290 Warrick v. Warrick . 623, 637 Wai-wick V. Bruce . . . 101 V. Noakes .... 39 Waterloo Bridge case . . 247 Waters v. Groom . . 567, 568 Watkins v. Cheek . . . 544 ' V. Hatchett . . . .641 Watlington v. Waldron . . 26 Watson V. Ld. Charlemont, 210 V. Marston . . . .178 V. Spratley . . . .102 V. Reid 225 V. Upton 193 Watt V. Evans 124 V. Grove 566 Watts V. Cresswell . . .611 ex parte 49 V. Fullarton . . . ,154 ■ V, Kancy 550 V. Martin 93 V. Porter . . 316, 430 n. V. Symes 615 Way u. Yally 471 Wayttv. Allen . . . 38,655 Webb V. Austin . . . .351 V. Byng 384 — — V. Direct London and Ports. Ry. Co., 60, 62 V. Lugar . . . 626, 633 V. Paternoster ... 99 V. Haycock .... 347 • V. Ledsam .... 547 V. Rorke 567 V. Russell, 472, 473, 476, 505 V. Webb ... . 371 n. Webber v. Jones .... 84 Webster v. S. E. Ry. Co. . 68 Webster, in re 69 Weddall v. Nixon Wedderburne v. CaiT Wedgwood v. Adams Weir V. Chamley . . Welford v. Beazeley . 366, 521 . . 118 . . 178 . 85, 327 113, 116, 637 . 583 325 n. Wellesley v. Wellesley West V. Berney . . V. Reid . . 630, 631 , 632 V. Vincent .... 94 Westbrook v. Blythe, 421, 430, 431 Western v. Perrin . . . 539 V. Russell, 103, 110, 111, 162,231,253 West India Dock Company V. The Mayor audCor- poration of London . 576 West London Uy. Co. v. Lon- don and North Wes- tern Ry. Co. . 66, 487 Weston V. Berkeley . . . 643 V. Filer 170 Wetherell v. Bellwood . . 407 V. Weighill .... 407 Whale V. Booth .... 556 Whaley r. Bagenel . 113,123 Whalley I). Whalley . 233,614 Whatman v. Gibson . 485, 651 Wheate v. Hall . 320, 324 n. Wheatley v. Slade . . 253, 263 Wheeler v. Bramah ... 52 V. Collier . . . 8, 9, 104 zj. D'Esterre . . . .123 W.Newton . . 115,173 V. Wright 281 Whelpdale v. Cookson . . 570 Whichcote i'. Bramston . . 235 V. Lawi-ence .... 573 Whitackre tJ.Whitackre, 226, 666 Whitbread v. Brockliurst, 121, 123 V. Jordan 374 Whitchurch v. Bevls, 114, 121 n., 123 V. Whitchurch, 504, 511, 512 Whitcomb v. Minchin . . 566 Whitcote V. Lawrence, 666, 569 White V. Anderson . . .144 V. Bartlett .... 42 V. Baylor 432 V. Bradshaw .... 19 V. Cuddon . 2, 12, 25, 50, 55,181,277 V. Damon .... 231 V. Foljambe,307n.,3l4,532 V. Hillacre V. Nutt , V. Proctor V. Stringer r. Wakefield, V. White V. Wilson White's case 164, 166 n. . . .241 . 116,119 . 689, 609 658,661,629 . . .154 . . 91,92 . . .178 Whitfield V. Fausset . 316, 366 (a) In p. 517 misquoted as "Sard"; in p. 521, as "Saul." INDEX TO CASES CITED OR INTRODUCED, Ixxi Page. Whitfield V. Lequetre . . 85 Whitmel v. Fan-el . . . .185 Whiimore v. Walker . . .152 Wbitaker v. Whitaker, 162, 163 Whittington v. Corder . . 260 Wliitworth V. Da-vis . • . 146 V. Gaugain . . 415,423 Whorwood v. Simpson, 221, 232 ■ V. Whorwood . 583, 584 Wickenden v. Rayson . . 1 65 Wickham v. Everest . . .193 V. Nicholson ... 73 Wigg V. Wigg 619 Wiggins V. Lord .... 40 Wilbraham v. Livesey . . 626 Wilcocks V. Wilcocks . . 583 Wild V. Lockhart .... 86 Wilde V. Fort, 217, 218, 303, 332 n., 437, 619 V. Waters .... 27 Wildgoose v. Weyland . .621 Wilding V. Andrews ... 83 Wilker (a) v. Bodington, 510, 626 Wilkins v. Fry 30 V. Lynch 510 Wilkinson, ex pai'te ... 64 V. Fowkes .... 671 V. Hai-tley .... 29 V. Lloyd 310 V. Sti-inger . . 189, 190 V. Torkington . . . 245 Wilks V. Davis 239 V. Groom 42 V. Smith 202 V. Wilks 584 Willan r. Willan .... 180 Willcox V. BeUaers, 296 324 n., 532 Willett V. Clarke, 16, 218, 283, 332 n. Willey V. S. E. Ry. Co. . . 67 William V. Higden . , .197 V. Nevill 124 Williams v. Attenborough, 83, 92 V. Bland . . 284, 325, n. •^ V. Burrell . . 472, 489 V. Busby 592 V. Carter 182 V. Craddock .... 418 V. Edwards, 17, 44, 227, 263, 285, 637, 538 V. Higden .... 253 in re 147 V. Lambe 644 — — V. Llewellyn .... 568 V. Millington ... 38 V. Morgan . . . .271 V. Owen 167 V. Protheroe (b) . . 299 V. Shaw . . . 150, 196 V. S. Wales Ry. Co. . 67 V. Springfield . . . 446 — — V. Thompson, or Bon- ham 226 V. Wace 78 Page. WilHams v. Williams, 105, 222, 643 Williamson V. Curtis . . "'. 541 V. Jeffreys . . . .192 u. Seaber . . . 571,572 v. Wootton . . . .186 Willie V. Lugg 164 Willis V. Bank of England, 595, 697 V. Bridge 469 V. Brown 418 V. Commissioners of Appeals in Prize Causes 524 V. Jernegan V. Latham V. Willis . Willoughby v. Willoughby, 607 Wills V. Sti'adling Wilmot V. Pike V. Wilkinson, 281,451, 458 Wilson V. Allen .... 534 ' V. Bennett .... 549 V. Carey 18 V. Clapham .... 519 V. Eden 384 V, Foreman .... 582 V. Forster .... 372 V. Greenwood ... 77 V. Hart 118 V. Keane ..... 175 V. Knubley .... 499 V. RastaU 638 V. Short 298 ?;. Wilson . . 202,310 v.Wormol . . 417,592 Wilton V. Dunn . . . .152 Wiltshear v. Cottrell ... 27 Wiltshire ?'. Sims .... 38 Winch V. Winchester, 133, 269, 270, 532 Winchester, Bp. of, v. Paine .... 634, 624 Windsor, &c. Ry., in re . . 69 Winged v. Lefebury, 148,184, 616 Wingfield v. Tharp . . .312 Winship v. Hudspeth . . 408 Winter v. Ld. Anson, 552, 553, 554, 655, 557, 558 n., 560, 623. 233 567 677,678 123, 124 315 V. Blades . . . . . 514 V. Brockwell . . . 98,99 V. Devreux . . . . 173 V. Homan . . . . 420 . . 385 Winterbottom v. Ingl lam, 150, 151 Wire V. Pemberton . . . 118 Wisden v. Wisden 384, 385 . , 169 V. Ponsonby . . 85, 317 Wiseman v. Beake . . 234 Wiseman's case . . 587, 588 Withers v. Pinchard . . . 173 V. Withers . . . . 677 Withy V. Cottle, 175 , 187, 294 Wodehouse v. Farebrother, 137, 186 Wolseley v. Cox .... 460 Wolveridge v. Steward . . 31 Wood, in the matter of . . 388 V. Abrey . . . 236, 237 r. Beetlestone . 169,170 V. Bernal 224 V. Bu-ch 576 V. Copper Mines Co. . 186 V. Court 356 V. Dixie .... 581 n. V. Downes, 212, 213, 570, 573 V. Griffith . 153, 166, 253, 298 V. Hannan .... 546 — — V. Lake 99 V. Lambirth .... 296 i V. Lead bitter (c) . . 99 V. Ld. Londonderi'y . 618 V. Machu . 230, 294, 295 V. Manley .... 34 V. Midgley, 97, 110, 111, 113, 123 V. Norman .... 576 — — V. Patteson . . . 175 V. Richardson . . 181 V. Scarth . . . . 132 V. White . . . . 195 Woodcock, in re . . . 394 Woodgate v. Woodgate . 540 Woodhouse v. Jenkins . 492 V. Meredith . . . 566 Woodie's case . . . . 688 Woodman v. MoiTell . 680 Woodroffe v. Allen . 234, 235 V. Titterton . . . 295 Woods V. Huntingford . 164 V. Woods . . . . 638 Woodward v. Miller . . . 8 Woodyatt v. Gresley . . 636 Woollam V. Hearn . 131 Woolley's est. . . . 70 Worcester, Bishop of, V. Parker . . . . 609 Worley v. Frampton . . 464 Worrall v. Jacob . . . 691 Worsley v. S. Devon Ry. Co., 67 V. Ld. Scarborough, 623, 624, 625 Wortham v. Pemberton . . 450 V. Ld. Dacre .... 72 Worthuigton V.Morgan, 362,661, 629, 631 ». WaiTington, 14,16,283, 302, 460 Wotton I'. Cooke . . . 502 n. Wray v. Steele . . . 577, 578 V. Wilhams .... 510 Wren v. Kirton . . 83, 569 Wright V. Bigg .... 38 V. Bond 294 V. Colls 150 V. Dannah . . . .119 ex parte 613 (a) Misprinted "Wilkie," in p. 510. (J) Add, Bodkin v. Kelly, 5 Ir. C. L. R. 287. (c) Add, Coleman v. Foster, 1 Hurl. & Nor. 37. Ixxii INDEX TO CASES CITED OR INTRODUCED. Wriglit V. Fearnley V. Goff , , V. Griffith . V. Holdgate . V. Howard, V. Maundei" V. Mayer . . V. Snowe . . ■ V. Vanderplank — V. Wellesley . V. Williams . V. Wilson . . Wrightson v. Hudson 595 142 287 349 222, 251, 538 49 638 175,611 (a) 234 226 407 25 599 Wrigley v. Sykes Wrixon v. Vize, 322, 545 n. 396, 402, 403, 404 . . 38,118 , ... 600 Wyatt V. Allen . . V. Bai'well Wynn v. Williams, 344, 510, 543, 587 Wynne v. Griffith, 195, 296, 353 Page. Wynne v. Morgan . . 223, 534 ». Price . . . 176,314 ^. Styan 403 V. Thomas .... 453 Wyse, in re 397 V. Myers 152 Wythe V. Henniker . . . 560 Wythes v. Lee . 54, 245 n., 552 Wyvill V. Bishop of Exeter, 242, 244, 536 Y, Yallop, ex parte .... 613 Yates V. Farebrother . . 41 V. Gardiner .... 202 V. Plumbe .... 369 Yea V. Field .... 367, 368 Yeavely v. Yeavely . . . 624 Yonge V. Fane 165 tj. Reynell . . . .178 York V. Eaton 574 (a) 25 L. J., N. S., 753, affirmed. Page. York and N. M. Ry. Co. v. Hudson . . . 77 n. ■ Buildings Company v. Mackenzie, 566,569,571, 573 Young V. Clerk, 4, 179, 231, 232 V. Guy 549 V. Radford .... 506 V. Raincock . . 449,495 V. Roberts .... 53 V. Ld. Waterpark, 397, 405 V. White 39 V. Young 143 Yoimge V. Buncombe . . 193 Yoimghusband v. Gisbome, 421 Zagury v. Furnell Zouchr. Swaine 241 600 ERRATA. Page 216j note (a), for " maginal," read! " marginal ;" and fur " Jo," read " Yo.' Page 365, 12th line, for " things old,'/ read " thing sold." Page 510, note (z), strike out " S. And see the notes to the Contents and to the Index to Cases. Harrison v. Guest, p. 233, 623 i/ now reported in 6 De Ge. Mac. & Gor. 424. THE LAW OF YENDOES AND PURCHASERS OF ESTATES. INTRODUCTION. 1. Vendors' Uah'dity to disclose defects — where the purchaser has knoiclcdge, or they ai-e jmtent — they must not be concealed. 2. Sale subject to allfaidts. 3. Raudompj-aise by vendor. — False state- ment of value; small fine; speedy vacancy; rich meadow. 4. No deceit, tmless party off his guard. 5. False statement of valuation fatal : so of rent. 6. Misrepresentations by a stranger, 7. Misrepresentations and non-disclosures by a purchaser — must not mislead the seller — nor conceal a death lohicli adds to value. Concealment of incumbrances and de- fects in title — by attorney. Same attorney for both sides. Attorney may not disclose defect to party interested- Obligation of grantor of annuity. Necessity for investigation of title. Purchasers bound by covenants in lease. Inquiry after incumbrances. Where a purchaser may take posses- sion. Purchaser of equitable rights. Succession duty. Title to he investigated before sale. Moral writers insist that a vendor is bound, in foro conscienticE, t/1/W-.6lX- to acquaint a purchaser Avith the defects of the subject of the con- tract (tt). Our law does not entirely coincide with this strict precept of morality (5). If a person enter into a contract, with fidl know- ledge of all the defects in the estate, the question cannot arise : scicntia enim utrinque par pares facit contrahentes (c). 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 compensation for them {d). And even if the purchaser was ignorant of the defects, and the vendor was (a) Cic. de Off. 3. 13; Grotius de Jure Deuteronomy, xxv, 14; 1 Paley's Mor. Belli ac Pacis, 1. 2, c. 12, s. 19; Puffen- Phil. bk. 3, ch. 7. dorf de Jm-e Naturoe ct Gentium, 1. 5, {h) Vide infra, cb. 8. c. 3, s. 2; Puffeudorf de Off. 1. 1, c. 15, s, (c) Grotius et Puffendorf, sup. 3; Valerius Maximus, 1. 8, c. 11, et vide {d) Lucas v. James, 7 Ha. 418. 2 CONCEALMENT OF DEFECTS BY SELLERS. acquainted with them, and did not disclose them to the purchaser ; yet, if they were jxitent, and could have been discovered by a vigilant man, no relief will be granted against the vendor ; and equity foUoAVS 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 aid of a court of equity : and it is conceived, that he could not sustain an action against the purchaser for a breach of the contract (e). 2. If a vendor know that there is a latent defect in his estate, which the purchaser could not 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 (/"). Nor can a seller knowingly refer to an ignorant agent ; and he would be bound by a fraudulent representa- tion or a fraudulent concealment by his agent (y). 3. Our law adopts the rule of the civil law — " simplex commendatio non ohligat'''' ; if the seller merely made use of those expressions, Avhich are usual to sellers, who praise at random the goods which they are desirous to sell, the buyer could not procure the sale to be dissolved (A). 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 purchaser was thereby induced to purchase it, and was deceived in the value ii). Neither can a purchaser obtain any relief against a vendor for false affirmation of value ili) ; for 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 Jine, the jmrchaser was not allowed any abatement, although the fine was considerable, and the steward of the estate had remonstrated with the vendor, before the sale, upon his false description (/). A statement in the particulars of an advowson, that an avoidance of the preferment was likely to occur soon, operates simply as a caution to put the purchaser upon making inquiries {iii). So a statement, that the property is uncommonly rich water-meadow land, will not annul the contract, although the land is imperfectly watered {n). And mere puff, as that a house is fit for a resj)ectable family, is entitled to no weight (o). (e) Shirley v. Stratton, 1 Bro. C. C. 140 ; {h) Harvey v. Young, Yelv. 20 ; Dueken- 4 Tail, 785. field v. Whiciicott, 2 Ch. C. 204 ; Ekins v. if) Post, ch, 8, s. 4. Tresham, 1 Lev. 102 ; 1 Sid. 146, as {fj) FuUer v. Wilson, 3 Q. B, 58. G8 ; Leakins v. Clissell. Sugd, II, of L, 644; Cornfoot v. Fowke, (/) Brown v. Fenton, MS. 14 Ves. 144; 6 Mee. & Wei. 3o8, et qu. White v. Cuddon, 8 Cla. & Fin. 766; Sugd. . (/i) r Dom. 85; Chandelor v. Lopus, H. ofL. 589; 5 De Ge. Mac. & Gor. 107. Cro. J. 4; Pike v. Vigers, 2 Dru. & Wal. {m) Trower u. Newcome, 3 Mer. 704. 266; Gompertz i;. Bai-tlett, 2 E. & B. 840; (??) Scott v. Hanson, 1 Sim. 13. 2 Eq. R. 17,7. (o) Mageunis v. Fallon, 2 Mol. 561. {i) 1 R9. Abr. 101, pi. 16; I Sid. 14G. MISREPEESENTATIONS OF VALUE OR RENT. 3 4. In an action of deceit, it is not sufficient to show that the vendor was guilty of a misrepresentation — for example, that he represented 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 practised for the purpose of throwing the party off his guard, and preventing him from being watchful (/>) (I). But if a seller affirm that a life for which the property is holden is a healthy one, although he has recently insured the life at a rate exceeding the highest charged for a healthy life of the same age, he cannot enforce the contract in equity {q). 5. And if a vendor affirm, that the estate was valued by persons of judgment, at a greater price than it actually was, and the purchaser act upon such misrepresentation, the vendor cannot compel the execu- tion of the contract in equity (r), nor Avould he, it should seem, be permitted to maintain an action for non-performance of the agreement; but a seller is not bound to communicate to the purchaser the result of a recent valuation {s). A remedy Avill lie against a vendor for falsely afhrming that a greater rent is paid for the estate than is actually reserved (t), because that is a circumstance within his own knowledge ; and this although the purchaser did not depend upon the statement, but inquired Avhatthe estate let for (u). In the latter case, liowever, a juiy would probably give but trifling damages. And (x) if the party to whom the representations were made himself resorted to the proper means of verification before he entered into the contract, it may appear that he relied upon the result of his own investigation and inquiry, and not upon the representations made to him by the other party (II). A seller is not bound to inform a purchaser that u2:)on the tenant's complaint the full amount of the rent has not been ip) Dawes w. King, 1 Stark. Ca.TS; Gei-- {t) Ekins v. Tresham, 1 Lev. 10-2; Lys- hard v. Bates, 2 Q. B. 476. ney v. Selby, 2 Ld. Raym. 1118; 1 Salk. (17) Brealey v. Collins, You. 317, inf.ch. 211, as Risuey v. Selby; DobcU d. Stevens, 4, s. 5 ; cli. G, s. 1. 3 Bar. & Cres. G23 ; Small v. Attwood, Yo. (r) Buxton V. Cooper, 3 Atk. 383 ; Par- 407 ; Fuller v. Wilson, 3 Q. B. 58. G8. 1009, triilge V. Usborne, H llus. 195 ; Small v. Att- 2'ost, cli. 5, s. 5. wood, Yo. 407 ; 6 Cla. & Fin. 232; Pike v. {u) Lysney v. Selby, ?/&i sup. Vigers, 2 Dru. & Wal. 1. (a,-) Clapham v. Shillito, 7 Bea. 14G ; Jen- (a>) Abbott V. Sworder, 4 De Ge. & Sma. nings v. Bi>oughton, 17 Bca. 234; 5 De Ge. 448. Mac. & Gor. 12G. (I) A demise tvith possession to one who represented that he must have the apartments for the business of a perfumer, whereas he intended tliem for a brothel, was held to be collateral to the contract, and not to avoid the lease. It was supposed there was a remedy in equity ; sed qu. the false representation would have excused the lessor from performing the contract. Feret v. Hill, 16 C. B. 207; sec id. Oil. (II) For what in reference to a horse previously to a sale by auction amounts to repre- sentation only, and not to warranty, see Hopkins v. Tanqueray, 15 C. B. 130. a2 4 MISKEPKESENTATIONS BY rURCHASERS. enforced (y). This, therefore, Is an inquiry which a purchaser should always make, 6. It seems that the same remedy will He against a person not interested in the property, for making a false rei^resentation to a pur- chaser of value or rent, as might be resorted to in case such person Avere owner of the estate {z) ; but the statement must be made fraudulently, that is, with an intention to deceive ; whether it be to favour 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 («). And it will be sufficient proof of fraud to show, that the fact, as represented, is false ; and that the person making the representation had a knowledge of a fact contrary to it (i). And it has been said, that it makes no difference whether A. falsely asserted to be true that which he knew to be false, or merely asserted that to be true of the truth or flxlsehood of which he had no know- ledge (c). But if the representation amount to an assurance only of a man's ability to answer an obligation, it must, to be binding, be \\\ Avriting (c?). 7. A purcliaser is not liable to an action of deceit for misrepresent- ing the seller's chance of sale, or the probability of his getting a better price for his commodity than the price which such proposed buyer offers {e). Nor is a purchaser bound to acquaint the vendor with any latent advantage in the estate : for instance, if a purchaser has dis- covered 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 (/). But a very little is sufficient to affect the application of this principle. If, it has been said, a single word be dropped which tends to mislead the vendor, that principle will not be allowed to operate {(j). And equity will not interfere in favour of a purchaser who has misrepresented the estate to any person who had a desire of purchasing it (]i). So 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 {%). (rj) Abbott V. Sworder, 4 De Ge, & Sina. (6) BiuTowes v. Lock, 10 Ves. 470, 448. (c) Evans v. Edmonds, 13 C. B. 777. (~) Pasley v. Freeman, 3 T. Rep. 51; (rf) 9 Geo.4, c. 14, s. 6; Swan r. Philips, Eyre v. Dunsford, 1 Ea. 318 ; Bx pte. Carr, 3 Nev, & Per. 447 ; 8 Ad. & El. 457 ; De- 3 Ves. & Be. 108 ; see 6 Sco. 840. vaux v. Steinkeller, 6 Bin. N. C. 84. (a) Haycraft v. Creasy, 2 Ea. 92 ; Tapp (e) Vernon v. Keys, 12 Ea. 632. V. Lee, 3 Bos. & Pul. 367 ; 6 Ves. 186 ; 13 (/) 2 Bro. C. C. 420. Ves. 134; 12 Ea. 634, n.; Hutchinson v. (g) Per Lord Eldon, Jac. 178. Bell, 1 Tau. 0.58 ; De Graves r. Smith, 2 Ca. (h) Howard v. Hopkyns, 2 Atk. 371; 533 ; Foster v. Charles, 7 Bin. 106; 4 Moo. Young v. Clerk, Pre. C. 538. & P. 61 and 741 ; Corbetti?. Brown, 2 Moo. (i) Tm'ner v. Harvey, Jac. 169; Davies & Mai. 108; 5 Car. & P. 363; Freeman v. v. Cooper, 5 My. & Cra. 270; HaiTis v. Baker, 5 Bar. & Ad 797 ; Evans v. Collins, Kemble, 1 Sim. 128, reversed by L. C. and 5 Ad. & El. 804 ; Money v. Jorden, 15 Bea. in D. P. 372; Bushby v. Ellis, 17 Bea. 283. CONCEALMENT OF DEFECTS IN TITLE. 5 > And even at law, if a man seeking to buy a life policy, conceal his knowledge of the extreme danger in which the life is, he cannot main- tain any title to the policy (/t). 8. The same rules apply to incumbrances and defects in the title to an estate as to defects in the estate itself. The vendor is bound to deliver to tlie purchaser the instrument by which the incumbrances 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 seller knows and conceals a fact material to the title, relief cannot be refused to the purchaser (I). And the same rule extends to the attorney of the vendor of an estate who knows of incumbrances on the estate (m). 9. The same observation applies to the attorney or agent of the 7T~jf / -^^4iA purchaser. The same attorney ought not to be employed by both ^ parties {n). For notice (o) 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 the estate lie in a register county, and no incumbrance appear on the register ( jo). In one case {ff), a purchaser lost an estate, for which he gave nearly 8,000 /. by employing the vendor's attorney, who Avas priv}'- to a fraudulent dis- position of the purchase-money. 10. Of course a man's attorney is not at liljcrty 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 the owner was aware that the attorney was also concerned for the other party (r). The seller's attorney should be cautious not to obtain any undue advantage of the purchaser behind his solicitor's back ; such an advantage cannot be retained, and, if fraudulent, the court would rescind the contract is). 11. But to return, the grantor of an annuity is not bound to lay open to the intended grantee all the circumstances of his situation : he is only bound to give honest 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 if). 12. With the exception of a vendor, or his agent, suppressing an incumbrance, or a defect in the title, a purchaser cannot obtain relief against a vendor for any incumbrance, or defect in the title, to which liis covenants do not extend ; and therefore if a j)urchaser neglect to (Ji) Jones V. Kecne, 2 Moo. & Ro. 348. {q) Doe v. Martin, 4 T. Rep. 39; Hicks (Z) Coop. 312. V. Morant, 3 Yo. & Jer. 280 ; 2 Dow & Cla. (m) 1 Ves. 96; 6 Ves. 193; Burrowes 414; Bowles ??. Stewart, 1 Sch. & Lef. 227 ; V. Lock, 10 Ves. 470; Bowles v. Stewart, Robinson v. Briggs, 1 Sma. & Gif. 188. 1 Sch. & Lef. 227. (r) Taylor v. Blacklow, 3 Bin. N. C. 235. (7*) G Ves. 631, n.; 3 Jo. & Lat. 16. (s) Berry v. Arniistead, 2 Ke. 221. (o) Inf. ch. 24. Xt) A damson r. Evitt, 2 Rus. & My. 66. (/i) Inf. ch. 22, 23, 24. A3 6 PURCHASER TAKING POSSESSION. have the title investigated, or his counsel overlook any defect in it, he may be without a remedy (m). 13. Where it is stated upon a sale, even by auction, that the estate is in lease, and there is no 7nisrepresentatlon, the purchaser will not be entitled to any compensation, although there are covenants in the lease contrary to the custom of the country ; because whoever buys with notice of a lease is held conusant of all its contents (j;); but there must be no misrepresentation. This rule has been carried too far {y); but no person having notice of any lease, or that the estate is in the occupation of tenants, should sign a contract for purchase of the estate without first seeing the leases, unless the vendor will stipu^ late that they contain such covenants only as are justified by the custom of the country. 14. 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 before witnesses, who should take a note of Avhat passes {z), at the same 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 permit him to enforce his demand against the purchaser («). 15. The purchaser should not take possession of the estate until every obstacle in way of the title is removed, lest the act should be deemed an acceptance of the title (b). If a purchaser take possession of and enjoy the property, it is the duty of the court to make every reasonable presumption in favour of the validity of the contract (e). Where a purchaser, after delivery of the abstract, which disclosed a reservation of a right of sporting not noticed in the particulars, upon his application, was let into possession, and paid the greater part of the pm*chase-money, without objection, and apologised for not send- ing the draft of the conveyance, his conduct was considered as a waiver of the objection ; and although a clerk of the seller's solicitor wrote in answer to the purchaser's applications for compensation that a reasonable compensation would be allowed, yet this was not deemed binding, as he had no authority to make such an offer (d). (ii) Post, ch. 13. (b) 3 P. Wms. 193 ; Calcraft v. Roebuck, (x) Hall V. Smith, MS.j 14 Ves. 42G; 1 Ves. j. 22G; 12 Ves. 27; Vancouver v. Walter v. Maunde, 1 Ja. & Wal. 181 ; Bar- Bliss, 11 Ves. 464; Ex pte. Sidebotham, 1 raud V. Ai-cher, 2 Sim. 437 ; Pope v. Gar- Mon. & Ayr. 655; 2 Mon. & Ayr, 146, jwst, land, 4 Yo. & Col. 394. cli. 9. (y) See Martin v. Cotter, 3 Jo. k. Lat. (c) Port of London Ass. Co. case, 5 De 496; Stewart r. Lord Conyngham, 1 Ir. Ge. Mae. & Gor. 481. Cha. R. 545; Darlington v. Hamilton, 1 {d) Burnell v. Browu, 1 Ja. & Wal. 168; Kay, 550, inf. ch. 23, s. 2. Southby ?>. Hutt, 2 My. & Cra. 207 ; Spunner (z) Doe V. Perkins, 3 T. Rep. 749; Bur- ii. Walsh, 10 Ir. Eq. R. 597; Vignolles v. rough V. Mai-tin, 2 Ca. 112. Bowen, 12 Ir. Eq. R. 194, ctqu.; Vaughan («) Ibbottson V. Rhodes, 2 Ver. 554 ; v.. Magill, id. 200. 207 ; Dawes v. Betts, 12 Amy's case, 2 Ch. C. 128 ; Hickson v. Ayl- Jur. 412. 709. wai-d, 3 Mol. 1. INVESTIGATION OP TITLE. 7 1 6. A piirclia.ser 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 ob- jections to the title, he will not be bound to pay any rent for the estate, even if the occupation of it has been beneficial to him (e). 17. A purchaser of an equitable right should inquire of the trus- tee, 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 (/). When the contract is completed, the purchaser should give notice of the sale to the trustee, which would make him liable in equity should he convey the legal estate to any subsequent purchaser ; and in the cases of choses in action, for example, it would give the purchaser a priority over any former purchaser or incumbrancer, who had neglected the same precaution (^). 18. It is now necessary that a purchaser should see that the succes- sion duty has been paid where the interest purchased is liable to that duty(^). 19. In many cases it may be advisable to have the title investigated previously to a sale. If there should be any defect in the title wliicb cannot be cured, it would be known only to the agents and counsel of the vendor. This has lately been provided for in sales by the Court of Chancery. 20. In considering throughout this division the distinction betweett law and equity, it should now be kept in view that equitable defences may, as we shall hereafter see to a limited extent, be admitted at law. (e) Hearne v. Tomlin, Peak. Ca. 192; (/) Burrowes v. Lock, 10 Ves. 470. Kirtland v. Pouusett, 2 Tau. 145; Stevens v. (g) Inf. cli. 10, s. 1 ; cli. 23, s. 1. Guppy, 3 Rus. 171 ; inf. (//) IG & 17 Vict. c. 51, i7if ch. 12, s. 2. a4 OF PUFFING. [CII.l. S.T. CHAPTER I. OF SALES BY AUCTION AND PRIVATE CONTRACT. SECTION I. i^- Jo rJ/ /^'tAc //^ Qp PUFFING. y/]?i^i4/fS- J. Sale without reserve; puffing avoids It : right to bid once: jyrlvate reservation. 2. Several jniffers, or one as a screiv, fatal. 3. But one bidder may be appointed — tvlthout notice. 4. Sub-purchaser. 5. Purchaser not to deter bidders. G. Sale damaged by supposed pvffers not enforced, 7. Puffer bidding for wrong estate not bound in equity. 8. Sale by lottery Illegal. 9. Sales by auction by Judges or chief clerics. 1. WiiERE It is stated that the estate is to be sold nnthout reserve ^ 7^.2/::/^^^ 2/ the sale will be void against a purchaser, if any person be employed as a puffer, and actually bid at the sale («). And the reservation of a right for the auctioneer to bid once, excludes the right to employ a puffer (J); nor can a reserve be made privately in favour of a third person, if the estate do not fetch more than a given sum, for that is in effect to prevent a sale at a price below the sum fixed upon (c). Thus far is clear, but great authorities have differed upon the right of a seller to privately appoint even one person to bid, al- though within a fixed limit, and only to prevent a sale at an under- value (I). Clearly the same rule ought to prevail at law and in equity. Yet whilst the seller's right is firmly established to this extent in equity (rZ), at law the rule has been la;d down otherwise,, by Lord Mansfield in Bexwell v. Christie (^), by Lord Kenyon in Howard v. Castle (/), by Lord Tenterden at nid j)rius in Wheeler v. Collier (^), and their view has been adopted by other Judges Qi). (a) Meadows v. Tanner, 5 Mad. 34 ; Tlior- nett V. Haines, 15 Mee. & Wei. 3G7 ; Cutts V. Salmon, 10 Jur. 623. (J)) Rex V. Marsh, 3 Yo. & Jcr. 331 ; Crowder v. Austin, 3 Bin. 3G8 ; 11 Moo. 283. (c) Robinsonr. Wall, lOBea.Cl; 2 Phil. 372; in re Ashe, 4 Ir. Ch. R. .091. {d) Conolly v. Parsons, 3 Ves. 625, n., in which no judgment was given, MS. ; Bramley v. Alt, 3 Ves. 620 j Smith v. Clarke, 12 Ves. 477 ; Thornett v. Haines, 15 Mee. & Wei. 367 ; Woodward v. Miller, 2 Col. 279 ; Twining v. Morrice, 2 Bro. C. C. 331. (e) Cow]!. 395. (/) 6 T. Rep. 642, m. ; 3 T. Rep. 93. 95. {g) 1 Ca. 123. {h) Rex V. Marsh, 3 Yo. & Jer. 331 (II); Crowder v. Austin, 3 Bin. 368; Thornett v. Haines, 15 Mee. & Wei. 3G7. (I) In Fitzgerald v. Forster, 31 July 1813, the Vice-Chancellor seemed rather of opinion that the appointment of one puffer was in no case bad. (II) By the conditions, power was reserved to A. to make one bidding, but no more; nnd if the highest bidder, the sale to be void ; a puffer was thus by implicjition prohibited. The rule was mis-stated. CII. 1. S. I.] OF rUFFING. 9 It would require a decision of the House of Lords to overrule the cases in equity, and it is highly desirable that the courts of law should adopt the equitable rule, restricted as it now is. In a late case (^) at law, upon the sale of a horse by auction, without a warranty, it was doubted whether a previous private warranty to a person who became an unsuccessful bidder would not avoid the sale to a third party ; for it was like puffing, and In a sale by auction all have a right to suppose they are bidding upon equal terms. 2. And if several puffers are employed, the sale Is clearly bad (k), or If one person Is employed to screw up the price (/). 3. Where public notice has been given, the contract will be bind- ing 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 (m). And it has been considered to be no fraud for a vendor, being also the auctioneer, when a party comes to him, and makes an Inquiry Avhether the property will be sold for a given sum, to say that it probably would, or [and] afterwards to fix the reserved bidding at that sum (w). 4. Although an original purchaser will not be bound where a fraud has been practised 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 (o), 5. 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 Avill not be binding. 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 111 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 hio-her bidding, amountlno;, how- ever, to only one-fourth of the prime cost of the barge, it was held that there was no legal sale (p). But one person may legally bind himself not to bid against another (q). 6. And where the seller's known agent bid at the sale for the pur- chaser, and was considered a puffer, which deterred other bidders, a specific performance was refused (r) ; so even where a real i:)urchascr (i) Hopkins v. Tanqneray, 15 C. B. 130, the purchaser did not know at the time that sed qu. tlie auctioneer was the owner. (/.•) Smith V. Clarke, 12 Ves. 483; 8 T. (&) See 12 Ves. 484. Rep. 93, 05; Wlieeler i% Collier, 1 Moo. & {p) Fuller v. Abraham?, 3 Bro. & Bin, Mai. 123. 116; G Moo. 3IG. (0 12 Ves. 483. {q) Galton v. Emnss, 1 Col. 243. {m) Oldfiold V. Round, 5 Ves. 508. (r) Twininp; v. Morris, 2 Bro. C. C. 32G ; (w.) Flint V. Woodin, Ha. G18 ; but qn. posf, eh. 5, s. 3. 10 OF PUFFING. [CH. 1. S. II. was considered as a puffer, and the actual puffer neglected to bid the appointed sum, the coiui. refused to interfere (s). 7. These instances are in favour of the seller. Where a puffer by mistake bid for the Avrong estate, which was knocked down to him, equity left the seller to his remedy at law (t). But if a puffer allege that he is the vendor's agent, and fail in proof, he will be compelled to complete tlie purchase (u). 8. Lands, &c., cannot legally be sold by lottery; and if a sale be made of any property for the purpose, to the seller's knowledge, of being sold by way of lottery, the transaction would be illegal, and no action could be brought to recover the purchase-money ; and if the purchase-money were secured by deed of covenant, it could not be recovered (x). 9. The 15 & 16 Yict. c. 87, s. 42, provided that the Masters or their chief clerks, and every other person appointed by the Master, may sell by auction under any decree or order of the court, without licence, and not subject to dvity. And now the powers possessed formerly by the Masters may be exercised by the Master of the Rolls and Vice-Chancellors respectively ( ?/) ; so that it would seem that their chief clerks, if employed to sell, would not be liable to duty (I). The sales, however, are now made by auctioneers appointed by the court in the common way. (s) Mason v. Armitage, 13Ves. 25; post, («) Bennett v. Smith, 16 Jur. 421. ch. 4, s. 3. (a") Bridges v. Fisher, 2 Com. L. R. 928. (t) MaUns v. Freeman, 2 Kee. 25. iy) 15 & 1 6 Vict. c. 80, s. 36. (I) Throughout this worli, the reader should bear in mind that the office of Master is abolished, and the authority of the Master of the Rolls and the Vice-Cliancellors, Avith then- chief clerks, substituted for the Masters, witli the addition of authority in chambers. 15 & 16 Vict. c. 80. SECTION II. OF THE PARTICULARS AND CONDITIONS OF SALE. 1. Bidding may he countermnnded. 2. Condition against it. 3. Sale under Act of Parllamejit. 4. Conditions favourahly construed. 5. Liability of pii7'chaser of jiart to un- nuity on the whole. 6. Obscure conditions. 7. " In this particular." 8. Cannot be contradicted at sale. 13. Condition to take a defective title. 14. Instances xohere purchaser not bound. 15. Condition to accept bond. 16. Condition to avoid sale if title defective. 17. Condition to deliver objections icithin a time fixed. 18. Condition that recitals should be evi- dence. 19. Misrepresentation of property. 11. Purchaserhoundbypreviousknoioledge. . 20. Effect of condition to rescind sale. 12. Goodtitlc Implied: cdl interest included, i 21. Descrlptionof estate : free public-house. CII. 1. S. II.] COUNTERMAND OF BIDDING. n 22. Descr'qjtion. — House in Regency- square, Brifjhton. 24, 5. yUlght of way: Plans. Part not to he found. [■ Easements. — Well. — Drains. Intended improvements. Lights. Wall. Heading if lease at auction. Buildings removed. Evidence of identity. Covenants against trades. Covenants in Lease. — Public-house. Fen land: taxes. Waterloo Bridge annuity: jjotvcr to redeem, not stated. Power of purchase not stated. . Tenant holding adversely- . Wood. . Clear yearly rent. . Condition that misdescription not to avoid sale, docs not extend to frau- dulent description. — Borough toxon. . " Ground rent." . « Brieli. huilt." , Mistake in the number. — Part sold not in lease. , Business house. . Building ground. . Title resting on easements over other lands. . Where value cannot be estimated: con- tingency. . Effect generally of error not fraudulent, tipon the condition. ii3, 54. 55. 5G. 67. 58. 59. 00. Gl. G2. 63. 64. G5. GO. G7. G8. m. 70. 71. 72. 73. 74. 75. 7G. 77, 78, 79. 81, Timber. Timber-like trees to be paid for. Timber on copyholds which cannot be cut. Purchase of term sans waste. Fixtures. Deeds not to be jtroduced. Purchaser of largest lot to have the deeds. Searches, §-c. Attested copies. Condition depriving jmrchaser of a covenant to produce. yCondition that cestuis que trust J should not concur. — Mis-statement. Landlord's title. Ileneivable leaseholds — compensation. Sale by assignees: hanlirupt not to con' cur. — Mis-statcnient of title. Liability of jmrchaser of leaseholds. 1 J "I Where j^urchaser not bound to covC' j nant not to build. Conveyance. — Surrenders. — Fines and fees. Forfeiture of deposit, and right to re- sell. Stijndated damages. Forfeiture of deposit under condition. ■ — Wherethere is no such condition, qu. Re-sale if bankruptcy. — Seller's lien. Time allowed to purchase?: Benefit of usual conditions. — Title. Agreements to be signed. Auctioneer may bind purchaser and seller. The particulars and conditions of sale {a) next claim our attention. We may premise that whatever Is done by the auctioneer will be held to be done by the principal {])). 1. A bidding at a sale by auction may be countennanded at any time before the lot is actually knocked down (c). The retraction must be made loud enough to be heard by the auctioneer {d). 2. A condition that no person shall retract his bldthng was originally suggested to me by the case of Payne v. Cave, and it has now be- come a common condition. But I always thought it one that could (a) Form of them, App. Purch. No. 1, {b) Bardell v. Spinks, 2 Car. & Kir. 646. (c) Payne v. Cave, 3 T. Rep. 14S ; Rout- ledge V. Grant, 4 Bin. 653; 1 Mo. & Pay. 717. As to good.?, see Phillips v. Bistolli, 3 Dow, & Ry. 822. {d) Jones v. Nanney, M'Clel. 39; 13 Pri. 102, 103. 12 VERBAL CONTRADICTIONS. [cn. l.S. II. not be enforced. In Jones v. Nanney {e), Mr. Baron Wood sug- gested the difficulties : that to hold that an action would lie on an implied undertaking not to retract, would be an invasion of the sta- tute 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 condition so as to avoid the statute. But such a con- dition in a sale by order of the court is binding on the persons who consent to the sale and upon their agents (/). 3. Although trustees sell under an Act of Parliament which pre- scribes that after certain acts the last bidder is to be the purchaser, yet the trustees as between them and the bidders may superadd other conditions (^). 4. The Judges will so construe conditions of sale as to collect the meaning of the parties, without encumbering themselves with the technical meaning of the words. Therefore a stipulation that the pur- chaser should pay a rent before a lease was granted is valid, although the money could not strictly be called a rent (h). 5. Where an estate was subject to an annual rentcharge, and part of it was sold upon a general statement, that the lots were subject to an annuity for the life of a lady then aged near 60 years, it was held in the Lords, reversing the decree in the court below, that the pur- chaser's portion was only liable to its due proportion of the annuity with the rest of the estate, and that an agreement for the purchaser to bear exclusively the whole of the annuity would not be made out by ascertaining that the lot was worth more than the price paid for it, although made liable to the whole of the annuity (?'). 6. If the condition is obscurely worded, and in connexion with the particulars of sale is far from giving a clear and accurate description of the property to the apprehension of ordinary persons, it may be a ground for relieving the purchaser from his bargain (A). 7. If a condition provide compensation for any mistake in the description of the lots or for any error or mistatement " in this par- ticular," the latter words will be construed " in these jiarticulars," so as to embrace an error in the particulars (Z), 8. The auctioneer cannot contradict the particulars and conditions at the time of sale ; such verbal declarations, — the babble of the auction room (m), — being inadmissible as evidence. If the estate is in the particulars of sale stated to be free from all incumhrances (?«), (e) 13 Pri. 99. {k) See 1 Yo. & Col. C. C. Gfi3. (/) Freer v. Rimner, 14 Sim. 391. {I) White v. Cuddon, 8 Cla. & Fin. 7G6 ; [g) Levy v. PendorgTass, 2 Bea. 4ir>. 4 Yo. & Col. 25; Sugd. H. of L. 591. (/t) City of London v. Dias, Woodfall's (m) 1 Ja. & Wal. G39. L.&T. 301 ;»{/. ch. 4, where the purchaser (w) Gunnis v. Erhart, ] II. Bla. 289; becomes tenant. Jones i\ Edney, 3 Ca. 285, 28G ; Bradshaw (0 Siree v. Kirwan, 9 Cla. & Fin. 71G; i\ Bennett, 5 Car. & Pa. 48. Sugd. H. of L. Cas. G67. CII. l.S. II.] VERBAL CONTIIADICTIONS. 15 the seller cannot in un action prove that the auctioneer declared from his pulpit that it was charged in any manner. And this rule prevails in favour as well of the seller as of the purchaser (o), and equally to a sub-sale ; therefore, if A buy at a sale after a fonnal explanation at the sale, which was heard by B, and then re-sell to B, the first declaration is no more binding upon B than upon A, and A cannot enforce the contract, as explained by the auctioneer, against B (p). 9. The same rule of course prevails in equity, where the person setting up the parol evidence is plaintiff. The particular, in one case, was equivocal as to the words ; but it was clear the purchaser Avas 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 declaration at the sale was distinctly proved ; but it Avas determined that the parol evidence was not admissible {(j). Nor when the seller is plaintiff can parol evidence be admitted 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 {i'). Neither an ambiguity nor a mistake can be corrected verbally. If the particulars state the estate to be held for three lives, but one drop before the sale, the auctioneer's statement of the fact cannot be received (s). 10. But a question has been raised, Avhcther, if by a collateral re- presentation a party be induced to enter into a written agreement, difierent from such representation, he may not have an action on the case for the fraud practised to lay asleep his prudence {t). 11. If the purchaser have particular personal information given him, the parol evidence may be admitted (u). It may therefore be proved that the purchaser perused the original lease before the sale (.r), as that does not contradict the particulars of sale ; but it would be difficult to act upon the evidence at law, against a direct statement in the i)articulars. For the reading the lease at an auction by the auc- tioneer is no excuse for a misdescription of the terms of the lease m the particulars of sale (?/). Such evidence may be used in cqiiity as a defence against the specific performance, if the parol variation was (o) Powell V. Edmunds, 12 Ea. 6. (0 Powell v. Edmunds, 12 Ea. 6; Bart- {p) Shelton r. Livius, 2 Cro. & Jer. 411 : lett r. Purnell, 4 Ad. & El. 792; a case of where the contract is valid, althou{,^h not in goods, and a bidding under agreement ; the wi'iting, the evidence is admissible ; Eden seller was plaintiff. V. Blake, 13 Mee. «fc Wei. Gl4 ; Manser v. (u) Gunnis v. Erhart, 1 II. Bla. 289; Back, G Ha. 443, where some of the parti- Pember v. INIathers, 1 Bro. C. C. 52 ; Fife v. culars were altered without the purchaser's Clayton, 13 Ves. 54G, where the particular knowledge. was altered before the sale. Ogilvie v. Fol- (q) Jenkinson v. Pepys, 6 Ves. 330; 15 jambe, 3 Mer. 53. Ves. 521 . (x) Bradshaw v. Bennett, 5 Car. & Pa. 48. (7-) Higginson v. Clowes. 15 Ves. 515, wf. (ij) Sec 1 Bin. N. C. 379. (s) Bradshaw v. Bennett, 5 Car. & Pa, 48. 14: CONDITIONS TO ACCEPT THE TITLE. [CH. 1. S. II. in favour of the defendant, and the pLalntiff seek a performance in specie according to the Avritten agreement {z). y 12. It should be borne in mind that in contracts for the sale of real y^'' ' / estate, an agreement to make a good title is always implied, unless the liability is expressly excluded («). And an agreement generally to sell, not expressing the interest in the subject, includes all the vendor's interest (i). 13. A condition upon a sale by assignees v/ho had a defective title, that the purchaser should have an assignment of the bankrupt's inter- est under such title as he lately held the same, an abstract of which might be seen, was held in Freme v. Wright to be a sale only of such title as the assignees had (c). And in Spratt v. Jeffery (rf), an agree- ment to sell two leases and the trade, as the sdlcr held the same for the term, and the purchaser was to accept an assignment without requiring the lessor's title, was held to preclude the j^urchaser from objecting to the lessor's title. And under an agreement to accept the title without dispute, the purchaser was held bound, although the legal estate was outstanding in a mortgagee (e). And a condition that the lessor's title would not be shown and should not be inquired into, ])recluded the purchaser from shov/ing that the lessor's title was invalid (/"). Where the sale was by devisees in trust, of a house and also a fee-farm rent out of other houses of 1 /. 1 5. per annum, and it was stated that the lot was subject to an apportioned fee-&rm rent of 1 1. \s., and the abstract was to commence with deeds of 1816 (the conveyance to the testator), and no evidence was to be required of the receipt or payment or existence of the two ground-rents of 1 Z. 1 s. each, other than that disclosed by the conveyance to the testator which was then produced, nor should any objection be taken to the title in consequence of the non-payment or non-receipt of either of the said rents; it was held that the condition compelled the purchaser to accept the title, although the sellers stated that the rent of 1 /. Is. charged on the lot sold was never paid by the deceased, and that the other rent was never received by him. It Avas open, it was said, to {z) Higgiuson v. Clowes, nil sup. Martindale, 1 Yo. & Col. C. C. 058; Noiiaille (fir) Doe V. Stauion, 1 Mee. & Wei. 701; r. Flight,? Bea. 521; Lethbridge d. Kii'kman, Sharland v. Leiichild, 10 Ad. & El. 52S); 25 L. J., N. S., 8i), Worthington v. Warrington, 5 C. B. G3G (^d) 10 Bar. & Cres. 249 (I), [the paging is incon-ect]. (^) j^^^^^ ^.^ Burnett, 2 Col. 337. (b) Bower v. Cooper, 2 Ha. 408 ; infra. (c) 4 Mad. 3G4; post, ch. 9; MoUoy v. Sterne, 1 Dru. & Wal. 585, et qu. ; Taylor v. if) Hume V. Bentley, 5 De Ge. & Sma. 520. (I) By the purchase of a bad lease the party may derive the same benefit as if it were good, and if he cannot, the lessee or liis assignee has a remedy over against the gi-antor of the lease. The plaintiff, therefore, may either have the premises for the two terms for Avhich tliey were demised, or an equivalent compensation ; per Baylcy, J,, 10 B. &c C. p. 260; qUi this doctrine, and qu. the right to recover upon eviction. CII. 1. S. II.] CONDITIONS AS TO TITLE. 15 the purchaser to show that the rent had never existed, or had been alienated by the testator, but he took his chance of being able to substantiate the right to the rent ; it was not unlawful for the sellers to sell that chance valeat quantum {(/), Where the conditions stated tliat the seller had only an e([uitjible interest, and that the purchaser was to accept such title as he could convey, the purchaser was not alloAved to avoid the contract on the ground of the legal estate being outstanding, as the seller had the equitable interest {k). And a refu- sal by the seller's agents to insert a stipulation in the contract for a good and marketable title, of course, was held to bind the purchaser to the actual conditions under which the agents offered only to make a good title according to the conditions (z). And where an estate was sold generally as partly freehold and partly leasehold, it was held that the purchaser was bound by the contract, although the bounda- ries were open to question — a plan and a scale were annexed to the lease, and a less quantity was stated in the plan than the scale would give {k). Of course a seller may by express condition bind a pur- chaser to complete, although the quantity expressed to be sold is greater tlian what appears in the muniments of title, and although no identity is shown beyond what can be collected from them (/). The Judges have differed about Spratt v. Jeffery. It is said to be reconcilable with later cases (m), but some have not approved of it(w), and it would probably not be followed. All agree that a stipulation of this _^^ ^ nature should be free from aml^iguity (o), and the seller will be held ^ //- -^ a^a. j- strictly to the representation of the title which the purchaser is bound / by the conditions to accept (p). In later cases it has been held, that a condition that the seller should not be liable to produce the lessor's title, did not exclude the purchaser from showing aliunde that the title was bad (^q). So if the vendor stipulate that he shall not be bound to produce a title prior to the last conveyance, yet if he produce a defective title on the face of the abstract, the purchaser may reject it (r). Where it was doubtful whether a power to sell in a mortgage was not destroyed by a transfer of the mortgage, a condition that the purchaser should not require the mortgagor's concurrence was held ig) Hanks v. Pulling, 2 Jur., N. S., 688. (o) Shepherd v. Keatley, uhi sup. ; Sea- (/t) Ashworth v. Mounsey, 9 Ex. 175. ton v. Mapp, 2 Col. 556 ; Groom v. Booth, (i) Ilyde u. Dallaway, 4 Bea. 606; 6 Jur. 1 Drew. 548; Drysdaler. Mace, 2 Sma. & 119. Gif. 225; Ashworth v. Mounsey, 2 Com. L. (7e) Monro r. Taylor, 8 Ha. 51, seep. 66; R. 418; Rhodes v, Ihhetson, 4 De Ge. 3 Mac. & Gor. 713 ; the purchaser was hesides Mac. & Gor. 787. bound to take such title as the seller brought. (;0 Forster v. Haggart, 15 Q B. 155; 14 (0 Nicoll V. Chambers, 11 C. B. 996. Jur. 757 ; see 8 C. B. 477 ; Nottr. Riccard, {tn) Duke v. Burnett, 2 Col. 337. 26 L. T. 267 ; Hume v. Bentlcy, 5 De Ge. & {n) Shepherd v. Keatley, 1 Cro. Me. & Ros. Sma. 520 ; j)ost. 117 ; 4 Tyr. 571 ; 5 Bar. & Ad. 1002 ; 3 Yo. (?) Shepherd v. Keatley, 1 Cro. Me. & & Col. 418 ; Anderson v. Higgins, 1 Jo. & Ros. 117 ; 4 Tyr. 571 ; Drysdale v. Mace, 2 Lat. 718; Leatham v. Allen, 1 Ir. Ch. R. Sma. & Gif. 225 ; 5 De Ge. Mac. & Gor. 103. 683, see p. 695. 706. (j) Sellick v. Trevor, 11 Mee. & Wei. 732. 16 CONDITIONS AS TO TITLE. [CH. 1. S. II. not to be binding on him (s). A statement of the title to a leasehold which Avas silent as to the legal estate not being represented, but required " the purchaser to be satisfied with an assignment from the sellers, who were executors of the beneficial interest," was held not to bind the purchaser to dispense Avith the legal estate (t). 14. Nor will a description of the seller's interest, as " that it was understood that he was possessed of the property for two lives," pre- clude the purchaser from requiring a title during the lives (^^). A condition upon the sale of a reversion, that the statement in a deed of 1839 that a life annuity " granted in 1824 had not been paid or claimed for eight years, &c., should be conclusive evidence of the fiict of such annuity having determined, and of the cesser of the term for securing the same," was held not to be binding on the purchaser, as it appeared that the annuity was granted out of the reversion, and was for four lives and the lives and life of the survivors and survivor of them, of which one at least was still living (.r). So a stipulation to execute and deliver a valid disposition of the property to the purcha- ser, and to deliver to him certain specified deeds, " which are all the title-deeds in the seller's possession," does not bar the purchaser's right to a good title, or limit him to the title under the specified deeds (?/). .^~. And where a condition j^rovided for a good title, a subsequent restric- V ^ tion as to the delivery of title-deeds, and the non-production of any other than those in his possession, &c. v.^as held not to limit the right to a good title {£). 15. If a man agree to complete upon having a good title, or a bond to complete the title, he, of course, must pay the money and accept the bond if a title cannot be made(«); but such a stipulation may mean that a bond is to be accepted if the title cannot, at the time, be completed, provided that the vendor has the power to complete it {h). So a purchaser may bind himself to take an indemnity against a deed turning out to be genuine, which is stated by the seller to be a forgery, and not to object to the deed, and his remedy will be under the indemnity only, although a jury find that the deed was the deed of the seller (c). 16. A condition that the seller may annul the contract, and return the deposit, if objections are made by the purchaser, and not removed within a fixed time, enables the seller to avoid the sale if the pur- chaser, under a mistake in law, raise an objection which cannot be maintained {d). But where it was stipulated that after delivery of (*) Cruse V. Nowell, 2 Jur., X. S., 53G. {z) Southby v. Hutt, 2 My. & Cra. 207. (0 Smith V. Ellis, 14 Jur. G82. («) Willett r. Clark, 10 Pri. 207. (?<) Worthington v. Wamngton, 5 C. B. \b) Clark v. Faux, 2 Rus. 320. 636. (c) Corrall c. Cottell, 4 Mee. & Wei. 734; {x) Drysdale v. Mace, 2 Sma. & Gif. 225; Cattell r. Con-all, 3 Yo. & Col. 413. t> De Ge. Mac. & Gor. 103. {d) Page v. Adam, 4 Bea. 2GD; Lane v. (y) Dick V. Donald, 1 Bl., N. S., Goo; Debeuham, 17 Jiu-. 1000; see pi. 72, post. Morris v, Kearsley, 2 Yo. & Col. 139. CII. 1. S. II.] KECITALS SHOULD BE EVIDENCE. 17 objections to the title within a time limited the vendor should be at liberty to vacate the sale and return the deposit only, it was held that this condition was confined to title, and did not extend to an objection that the lease sold was not renewable by custom, as stated in the conditions (e). A condition that if the counsel of the pur- chaser should be of opinion that a marketable title could not be made, the agreement should be cancelled, is a binding one (/) ; but of course it must not be abused. And a like condition would not enable a seller to rescind the contract where there is a life estate in a third person, of which the seller was aware, although he sold the fee (f/). 17. A condition that all objections to the title must be delivered yf^ J^f/^ within a given time or are to be deemed waived, is, of course, bind- ing {li), and time may be made of the essence of the contract. Such '^ a condition means after the delivery of a perfect 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 pre- cluded from taking objections which arise out of evidence called for before the time limited {K). And if such objections were justified by the new evidence, the purchaser it should seem would not be limited to the time mentioned in the condition. 18. Where a condition of sale of a copyhold estate provided that all statements and recitals in any of the title-deeds, &c., should be considered satisfactory evidence of the facts stated or recited, a state- ment in an admittance that A had then lately been admitted there tenant in tail according to the custom of the manor, was held to bind the purchaser as far as the statement that A was admitted tenant in tail ; but it was considered doubtful whether he was bound by the statement that such admission was according to the custom of the manor, because that is not a single fact, but rather a deduction from a series of facts (/). A condition upon a sale of a leasehold stipulated that the possession under the lease should be deemed conclusive evi- dence of the due performance, or sufficient waiver of any breach of the covenants in the lease iqi to the completion of the sale, Avas held to cover a breach of covenant to insure (which gave the lessor a right of re-entry) before the sale, but not a like breach after the sale, although, of course, before the completion of the sale, as the Court would not sanction the making a provision to apply to future breaches of covenant (r/i). 19. A misrepresentation of the nature of the property which does (e) Newbyr.Paynter,17 Jur.483; 1 Eq. (i) Hobson v. Bell, 2 Bca. 17; Gee v. H. 173 ; 11 Ha. 26. Pearse, 2 De Ge. & Sma. 325. (/) Williams v. Edwards, 2 Sim.78 ; inf. (k) Blacklow v. Laws, 2 Ha. 40 ; Moi-ley ch. 9. V. Cook, 2 Ha. 100. (g) Nelthoi'pe v. Holgate, 1 Col. C. 203. (/) Goold r. White, 1 Kay, 693. (/<) Blackbimi v. Smith, 2 Ex. 783. (»() Howellr. Kightley,2Jnr.,N.S.,455. 18 DESCRIPTION OF ESTATE. [CH. 1. S.II. not affect the title, may be made a defence to a claim for specific performance, although the time has elapsed for objecting to the title (71). 20. A stipulation in a contract that in case the vendor cannot Yl/../jffO deduce a good title, or if the purchaser shall not pay the money on S'J^l 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 make a title : but it is not sufficient for him to s«y that he cannot (0). And where the seller reserves a power to rescind the contract instead of answer- i/li/' St/^ irig objections to the title, yet if he once elect to answer, he is pre- / eluded from afterwards rescinding the contract (/>) ; and the same rule would apply where the condition limits the purchaser's right to J : make objections ((/). The seller, of course, would not be permitted y^\ to deliver a false abstract in order to enable him to avoid the con- ; tract ; and if he insist that he has the right to rescind the contract, he cannot at the same time retain the deposit (r). /yi^-^ifl '^^' "^^^^ estate cannot be too minutely described in the particu- lars ; for although it is impossible that all the little particulars rela- tive 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 executed {s) ; yet if a person, however imcon- versant in the actual situation of his estate, will give a description, he must be bound by it {£). The particulars are, in truth, like a description in a policy of insurance, and the buyer knows nothing but what the party communicates {11). Conditions of sale stated a house to be " a free public-house " {x). 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 stated that the cove- nant had been decided to be bad, and declared that he sold this a free public-house. A bidder, therefore, was not bound to attend to the clauses of the lease, and the purchaser recovered his deposit. 22. But a purchaser is bound to inquire ; therefore, where a house known as 39, Regency-square, Brighton, was sold in London to a {n) Price v. Macaulay, 2 De Ge. Mac. & (.?) 1 Ves. j, 224 j Price v. North, 2 Yo. Gor. 339. & Col. G20. (0) Roberts v. Wyatt, 2 Tau. 268; Rip- {t) See 1 Ves. j. 213; Schneiders. Heath, pingall V. Lloyd, 2 Nev. & Man, 410 ; Page 3 Ca. 506 ; ch. 8, s. 3, 4, inf. V. Adam, 4 Bea. 269; Malins v. Freeman, (m) 3 Smith, 439; Duke of Norfolk ?>. 4 Bin. N. C. 395 ; Wilson v. Carey, 10 Mee. Worthy, 1 Ca. 337, -post ; Waring v. Hog- & Wei. 641. gart, 1 Ry. & Moo. 39; Martin v. Cotter, 3 (p) Tanner w. Smith, 10 Sim. 410; 4 Jm'. Jo. & Lat. 496; Brandhng v. Plummer, 2 310 ; Morley v. Cook, 2 Ha. 106. Drew. 427. (5) Cutts V. Thodey, 13 Sim, 206, (x) Jones v. Edney, 3 Ca. 284; Flight v. (r) 2 Ha, 111, 110. Booth, 1 Bin. N. S. 370. CH. 1. S. II.] DESCRirTION OF ESTATE. 19 purchaser who had not seen the property, he was held to his bargain without compensation, altliough tlie house was not really in the square, but was in a side street leading from that square to another street (?/). Yet, in a case where the purchaser only knew the pro- perty from the particulars, which described it as a house. No. 58, on the north side of Pall Mall, and opposite Marlborough House, whereas it was not in Pall Mall, but at the back of No. 57 in that street, to which it had access through a long passage, formerly part of No. 57, and under which there were cellars, which the seller claimed, and above it the floor of No. 57, and this passage communicated with the street, and the house was numbered 58, the Vice-Chancellor was of opinion, that if the purchaser had not waived the objection, he might have set aside the contract on account of the misdescription. And although the purchaser had waived the objection to the position of the house and its entrance, yet, as the passage Avas not deemed a safe and proper one, the purchaser was still held to be entitled to be released from the contract (z). 23. But Avhere it appeared upon the sale of a ground lease of a house, subject to an under-lease, that the particular house was not comprised in the under-lease, but another house had, by mistake, been inserted in the place of it, and the seller had it in his power to rectify the mistake, the purchaser's objection, of course, was not allowed to prevail («). 24. Plans should be so framed as to convey clear information to the ordinary class of persons who frequent sales by auction. Although a lot Avas sold, subject to the same rights of way (I) as Avere enjoyed under the leases of certain houses, and a lease was to be seen at the attorney's office, and Avas produced at the sale, yet, as a plan was referred to, upon which was clearly marked one way over the lot, but no trace of the right of Avay in the leases, the purchaser, Avho might have been misled by the plan, was held not to be bound by the sale {b). The existence of the Avay Avas not sufficiently disclosed to ^ ^^ ' ^^7 make it clear to persons of ordinary vigilance and caution. So a plan not shoAving an objectionable projection of one house over another, of which the purchaser Avas ignorant, avoided the sale (c). 25. If a plot Avhich is referred to on a plan does not exist, or cannot be discovered, the purchaser is not bound by a condition that (y) White V. Bradshaw, 16 Jur. 738, scd (~) Stanton v. Tattersall, 1 Sma. & Gif. qu. The seller was of coui-se aware that 529. the houses were in no proper sense in the («) Grissell v. Peto, 2 Sma. & Gif. 39. square. The original numbering of the (b) Dykes v. Blake, 4 Bin. N. C. 463. houses as if in the square was a fi'audulent (c) Pope r. Garland, 4 Yo. & Col. 403, misdescription. (I) A pui-chaser should ascertain that no way of necessity exists over his lot. One may pass or be reserved without express words. I'ennington v. Galland, 1 Com. L, R. 819. B 2 20 DESCRIPTION OF ESTATE. [CH. l.S. II. it Avas presumed he would be able, by inquiry, to ascertain its true situation, and that he Avas to accept it by the description only in the conveyance of it, as the seller could not properly identify it {d). t/f^.^^3 26. The mere exhibition of the plan of a ncAV street, at the time of the sale of a ncAV 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 con- tract is silent on that head {e) ; but conditions of sale may amount to a contract to form particular roads (/). An accurate plan does not amount to more than a view of the property, and therefore upon the sale of a lot, easements exhibited over other lots may not entitle the purchaser of the first lot to object to a transfer of the other lots Avitliout a reservation of the easements in his favour. In the case in Avhich this Avas said (//), the plaintiff, in a suit for specific performance with a compensation, purchased Lot 1, the Acorn Inn. There was a sale plan. Upon one of the lots not purchased by him was a well ; upon another a reservoir; then upon the plan a line Avas draAvn con- necting the Avell Avith the reservoir, and another line connecting the reservoir with the inn. The first-mentioned line denoted a stone drain by Avhich the Avater Avas conveyed to the reservoir, the other line represented a pipe running from the reservoir to the kitchen of the inn. The seller conveyed the other lots to the purchasers with- out any reservation or stipulation in favour of Lot l,as to the supply of Avater, and it Avas held that he Avas entitled to do so, and that the purchaser Avas not entitled to compensation ; but it Avas not of course decided Avhether the purchaser of Lot 1 had any remedy against the other purchasers. This case is open to observation, and it proves that a man should expressly stipulate for the easements exhibited on the face of a plan, as enjoyed Avith the property he proposes to purchase. 27. Representations of intended improvements by building, upon the faith of Avhich a purchaser may have contracted, may be a ground for refusing a specific performance against him, although he could not insist upon them as part of the contract (/i). In one case it Avas considered that a stipulation in a conveyance that the purchaser should make a certain footpath, Avas too vague to be enforced (/') ; but this seems to have been too doubtful a title to be forced on a purchaser. {(X) Robinson I', MusgTovc, 2 Moo. & Ro. N. W. R. C, C. Coop. C, 108; Squire v. 92. Campbell, ib. ; 1 My. & Cra. 459. (e) Feoff. Ilei-iot's Hosp. v. Gibson, 2 (/) Peacock v. Penson, 11 Bea. 355; Dow, 301 ; Compton v. Ricliavds, 1 Pri. 27; Mason v. Cole, 4 Ex. 375. Beaumont v. Dukes, Jac. 422; Blanchard ({/) Fewster w. Turnei*, G Jur. 1 44 ; Ran- V. Bridges, 4 Ad. & El. 17G; Schreiber v. /. Tod, 12 Cla. & Fin. 722; Breynton v. L. ^ (i) Taylor v. Gilbertson, 2 Drew. 391. CII. l.S. II.] LIGHTS. WALL. LEASES. TRADES. 21 28. If a house be sold with all the lights belonghiji; 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 (k). 29. IVliere 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 cir- culated in the sale-room before and at the time of sale, and was seen by the party against Avhom 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 purchaser (I). 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 (m). 31. And where a lease is sold by auction, the purchaser Is not bound to complete his purchase if any part of the buildings demised have been removed, although he heard the lease read, and the par- ticulars did not comprise the building in question (?j). ^ 32. Although it be stipulated that no further evidence of identity JltrrSS U-^. of parcels shall be required, yet such proof may be required, if the descriptions in the title-deeds differ from each other, and from the particulars of sale (o). 33. And where the original lease contained a power of re-entry if certain trades were carried on, 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 pur- chaser was allowed to recover his deposit (/?). 34. This proves that a purchaser must not be misled ; and although, as we have seen, the reference to a lease binds the purchaser (*/), yet unusual covenants should be stated in the conditions. 35. But 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, (/e) Swanborowgh tj. Coventry, 9 Bin. 305; 1 Bin. N. C. 379; Tomkins v. White, 3 2 Moo. & S. 362. Smith, 435. {I) Murley v. M'Dermott, 3 Nev. & Per. (o) Flower v. Hartopp, 6 Bea. 470. 35(i; 8 Ad. & El. 138. Ip) Waring v. Hoggart, 1 Ry. & Mo, (m) 1 Bin. N. C. 379; Jones v. Edncy, 39; see Flight r. Booth, 1 Bin. N. C. 370, SHp. ; Paterson v. Long, 6 Bea. 590 ; Man- inf. ser V. Back, 6 Ha. 443. {q) Sup. p. G ; Paterson v. Long, 6 Bea. (n) Granger v. Worms, 4 Ca. 83; see 690. b3 22 CONDITION ABOUT MISDESCRIPTIONS. [CH. 1. S. II. sewers' rate, and all other taxes, and a proviso for re-entry if any- business but that of a victualler should be carried on in the house (r). 36. So where the estate was described as fen land (s), and the taxes which the landlord allowed to the tenant were stated, but there was no statement of the taxes which the tenant paid in common with other tenants of fen land, the purchaser did not obtain a compensa- tion (t). 37. But if there be a misrepresentation, of course the purchaser would be entitled, according to the circumstances, to compensation, or to avoid or resist the contract. 38. Wliere 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 recovered liis deposit, for sellers should l)e strictly bound to disclose the real nature of the subject of the contract (m), 39. So where leasehold houses were sold by auction and described as a well-secured rental for about fifteen years, with reversionary interest, and no notice was taken of an Act of Parliament which gave power to a company to purchase the property, the purchaser was not bound by the sale, for he did not contract for the mere right to compensation {x). 40. Where a house was sold by the court, and described to be in the occupation of J., at a rental of 42/. per annum, and it was stipu- lated that the purchaser should be entitled, on payment of his pur- chase-money, to the rents from the next quarter day, and it appeared that A was not the tenant of the vendors, but was in occupation adversely to them, the purchaser was released from his contract, although the vendors offered to bring an ejectment against A in case of her refusal to attorn (?/). 41. And where a lot was described as a wood generally, yet an incorrect statement In the particulars of the average size of the trees prevented the seller from enforcing the contract, even with a com- pensation under the common condition, because there was no repre- sentation as to the numl3er of trees {z). 42. " Clear" yearly rent. In an agreement between buyer and seller, means clear of all outgoings. Incumbrances, and extraordinary charges, not according to the custom of the country, as tithes, poor-rates, church rates, &c., which are natural charges on the tenant (a). 43. It is common for sellers to guard against misdescriptions and (r) Bennett v. Wornack, 7 Bar. & Cres. (x) Ballard v. Way, 1 Mee. & Wei, 520. G27 ; 1 Man. & Ry. 644. (y) Laclilan v. Reynolds, 1 Kay, 52. (s) Barraurt v. Archer, 2 Sim. 433 ; 2 (z) Lord Brooke v. Rownthwaite, 5 Ha. Rus. & My. 751. 298. (0 See Lord Townsend ?•. Granger, 2 («) Earl of TjTConnel i;. Duke of Aucas- Shn. 43G ; Pope v. Garland, 4 Yo. & Col. 394, tei-, Amb. 237 ; 2 Ves. 500. (?<) Coverley v. Bun'ell, jjost, c. 8. en. 1. S. II.] CONDITION ABOUT MISDESCRIPTIONS. 23 errors by an express condition that they sliall not annul tlie sale, but that a compensation shall be given for the difference in value. Such a condition, however, does not extend to fraudulent errors. Where the estate Avas stated in the particulars to be about one mile from Horsham, a borough toion, and it was between three and four miles from that place, it was ruled that the condition was meant to guard against unintentional errors, not to compel the purchaser to complete the contract if he had been designedly misled, and the purchaser recovered his deposit (Z»). 44. In Stewart v. AUiston (c), where a lease at rack-rent was de- scribed as one at a ground-rent, Lord Eldon treated the case just as if there had been no such condition as above. 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 compensa- tion. And where the sale was of an original lease, and the title was to a derivative lease three days short of the original term, a condition that no error or mis-statement of the term of years or other description should vitiate the sale, but should be a subject of compensation, was disregarded (d). So such a clause does not extend to the case of the • ^^ estate turning out to be freehold, although sold as copyhold (c). '^^f^ 45. So in Powell v. Doubble (/), a house was described in the particulars of sale as a brick-built dwelling-house ; although it was built partly of brick and partly of timber, and some parts of the exterior were composed of only lath and plaster, and there was no ])arty-wall to the house. Shortly after the sale the ancient chimneys fell inwards tlii-ough 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- Chanccllor 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. 46. 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 purchaser be com- pelled to take another property, with a compensation, in lieu of that by error described in the particulars : as where the particulars stated one of the houses to be No. 4 instead of No. 2, although the names (6) Duke of Norfolk v. Worthy, 1 Ca. consider Bartlett v. Salmon, 1 Jur., N. S., 337 ; Fenton v. Brown, 14 Ves. 144 ; 1 Ves. -S?? ; reversed, 4 Week. R. 32. ^ 2<4'^ '^- '^^' & Be. 377 ; Stewai-t v. Alliston, 1 Mer. 26 ; (rf) Madeley v. Booth, 2 De Ge. & Sma. Trower v. Newcome, 3 Mer. 704. 718. (c) 1 Mer. 26 ; see 1 De Ge. & Sma. 609 ; (e) Ayles v. Co.v, 16 Bea. 23. Price V. Macaulay, 2 De Ge. Mac. & Gof. (/) MS. V. C. 15 June 1832. 339 3 Darlington v, Hamilton, 1 Kay, 550 ; b4 24 CONDITION ABOUT MISDESCRIPTIONS. [CH. 1,S. II. 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 recovered his deposit {g), not- withstanding the usual condition. So where, upon a sale by auction, with the above-mentioned condition, the house was leasehold, but a small yard mentioned in the particulars was not included in the lease, but was held from year to year at a separate rent ; although it did not apjiear that the sellers, who had recently acquired the premises, Avere aw^are of the fact ; yet, as the yard was proved to be an essential part of the premises, the defect was not deemed a matter of compen- sation (A). / 47. And wherever there is a substantial misdescription, it will not ^ in /J/Z>- fall within the condition. Therefore where {i) the premises were described as calculated for an extensive business in carpets, haber- dashery, drapery, paper, floor-cloth, upholstery, grocery, tea-trade, or coach-building, and were situated in the Piazza, Covent-garden, and it was stated, " that no offensive trade is to be carried on, they cannot be let to a coffee-house keeper, or working hatter," with the usual condition as to mistakes, &c. The proviso for re-entry extended, amongst other things, to the premises being used for various specified yf^ 2//-'7 Z- trades, or as a shop or place for the sale of any provisions whatever. And it was held that the purchaser might rescind the contract, although the case was clear from fraud. 48. And in the case of Dykes v. Blake (/<), 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 misdescriptions, &c., and the lot was described as " a first-rate building plot of ground," and as having an extended frontage ; and it was held that this was not a subject of compensation within the condition, for the deviation of the w^ay would render the close useless for building purposes. 49. Where the lot was described, " together with the reservoir and waterworks, and valuable supply of water contained in this lot, Avhich, exclusive of the land and buildings, now yields a rental of about 60 Z,," and this rent was obtained by means of an easement over other persons' land to which there was no title, the purchaser was held not to be bound (/). 50. And although there be this condition providing a compensation, yet the sale will be void if from the nature of the case no estimate can be made of the diminution in value. As where a reversion was {g) Leach v. Mullett, 3 Car. & Pa. 115; (;) Flight v. Booth, 1 Bin. N. S. 370; see Freer v. Hesse, 1 Eq. R. 33G; 2 Eq. Vigiiolles v. Bowen, 12 Ir. Eq. R. 194. R. 13 ; 4 De Ge. Mac. & Gor. 495 ; wliich {k) Sup. ; 4 Bin. N, C. 476; Shackleton v. cannot, it seems, be supported where the SutcUffe, 1 De Ge. & Sma. 609. title to a material part is defective, (Z) Price v. Macaulay, 2 De Ge. Mac, & (/i) Dobell V. Hutclunson, 3 Ad. & El. Gor. 339. 355 ; Mills v. Oddy, 2 Cro. & Mee. 103. CH. 1. S. II.] CONDITION ABOUT MISDESCRIPTIONS. 25 sold after the death of a person aged 66, in case lie should not have children, and it turned out that he was only 64, the sale was held to be void (m). 51. Of course in all the cases which Ave have just been considering, where the contract has been held not binding on the purchaser, although there was a compensation clause, the rule would apply more clearly in his favour where there is no clause as to compensation. 52. A difference of opinion has 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 (w) ; but the strong leaning is properly against the seller where the misdescrip- tion is an important one, and not fairly a subject for compensation. 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 description of his property, and limits his responsibility by such a condition, 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 description varying in important matters from the actual state of the property, and the tendency of the misdescription to mislead a purchaser whom it may be said compensation would not compensate. The purchaser has a right to presume that the seller is acting bona fide, and has used due diligence. The condition, as the Court observed 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 (o). This is no doubt clearer, where the con- dition provides for a compensation to be paid to either the pvu'chaser 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 additional j)rice for some advantage which he has omitted to mention ; and the like construction must prevail, whether the compensation be payable to the purchaser or to the seller. But, on the other hand, the whole of the description is to be taken into consideration so as to see whether the purchaser, if he have not the subject as described, has not obtained in other respects greater advantages than were held out to him (/?). 53. Where the timber and other trees are to be taken by the purchaser at a valuation, it should be stated accurately for what trees he is to (?«) Sherwood u. Robins, 1 Moo, & Mai. Pa. 734; Mills %\ Oddy, 6 Car. & Pa, 194 ; 3 Car. & Pa. 339; White v. Cuddon, 728. 8 Cla. & Fin. 766. (o) i Bin. N. C. 378. (w) Cases above quoted: Wright v. (;j) White ij. Cuddon, 8 Cla. & Fin. 766; Wilson, 1 Moo. & Ro. 207; 6 Car. & Sugd. H, of L, 589. 26 TIMBEE. FIXTUEES. [CH. 1. S. II. pay. In a 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 1 s. per stick inclusive, should be taken at a valuation. The purchaser of the lots, to which no statement was annexed, claimed the timber without paying for it ; and the Court thought that a purchaser might be so fairly impressed with that idea, notwithstanding the general condition, that it refused to compel him to perform the contract according to the seller's con- struction (q). 54. But although it should be merely stipulated that the purchaser shall pay for timber, yet he must pay for trees not strictly timber, if considered such, according to the custom of the country (r) ; 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 (*■). Where the average size of the trees is misstated, but the number is not stated, the sale is invalid, as there can be no compensation {t). 55. In a case where an estate, part freehold and part copyhold, was sold in lots, with a condition compelling the purchasers to take the title without inquiry as to which parts were of either tenure, and a valuation was placed on the timber in each lot, which the pur- chasers were to pay ; the contracts were deemed to be joint ones for the land and timber, and a purchaser was held boiuid to pay for the timber, although no right to cut it was shown on any portion which might turn out to be copyhold (?<), and this was even extended to a purchaser of a lot which included copyholds only [x). 56. Where a purchaser bought a term of ninety -nine years without impeachment of waste (created by will to raise by sale certain sums), subject, by the conditions of sale, to the rights of all parties under a proviso in the Avill, and the proviso prohibited the felling of timber until a granddaughter attained twenty-one, when the trustees might fell and sell the timber, and pay the price to her ; it was held that the proviso did not affect the purchaser, who might fell the timber for his own benefit, and the conditions of sale were construed to mean that the purchaser was to take, subject to such rights (if any) as the granddaughter was entitled to under the proviso in tlie will (y). 57. It is proper, also, to make some jirovlsion as to articles not iq) Higginson v. Clowes, ITj Ves. 51(i. (jj) Crosse v. Lawrence, 9 Ha. 462. (r) Duke ofChandos U.Talbot, 2 P. Wms, (a-) Crosse v. Keene, 9 Ila. 4G9, which 601 ; Anon. Ch. 25 July 1808. consider. («•) Rabbett v. Raikes, Woodfall L. & T. (y) Watlington v. Waldi'on, 23 L. J., N. S., 224, 6th ed. ; Aubrey v. Fisher, 10 Ea. 446. 713. (0 Ld. Brooke v, Rownthwaite, 6 Ha. 298* CII. 1. S. II.] FIXTURES. DEEDS. 27 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 (z). But in the absence of any stipulation, common fixtures would pass to the purchaser under the common conveyance («), unless it could be collected from 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-house ; the enumeration of the fixtures in the house will prevent the fixtures in the foundry from passing (b). If the seller sell only his lease and the fixtures belonging to him, the assignment must be so confined (c) ; but a conveyance of an estate with the fixtures will receive a liberal interpretation (fZ). 58. If a seller wish to protect himself against the production of deeds not in his possession, he must state distinctly his intention, 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 although in the condition to deliver up to the purchaser all the title-deeds and copies of deeds or other docu- ments 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 ;" for it by no means follows that the vendor cannot prove his title because he has not in his possession all the deeds necessary for that purpose (e). And such a condition as to the deeds and the exjiense of office copies, &c., with a condition that the seller should not be compelled to produce any original title-deeds or other documents not in his possession, or custody, Avas held not to compel a purchaser to complete, where a third person who held some of the deeds refused to produce them to the })urchaser ( /). 6d. Where the case was considered to amount to this — that land had been divided off into lots for sale, and the condition was that as soon as the whole of the property should have been sold, the pur- chaser of the largest lot should be entitled to the possession of (z) Ex pte. Qxiincoy, 1 Atk. 478. (c) Manning v. Bailey, 2 Ex. 45 ; see 9 (a) Colegiave v. Dias Santos, 2 Bar. & Ha. 468 ; Cotton v. Scuclamore, 1 Ka. & Jo. Cres. 70 ; Ex pte. Lloyd, 1 Mont. & Ayr. 321 ; inf. 494 ; Long-staff v. Meagoe, 2 Ad. & El. 167 ; {d) Wiltshear v. Cottrell, 17 Jur. 758 ; see Ilitchnian v. Walton, 4 Mee. & Wei. 409 ; Ex ptc. Barclay, 5 De Ge. Mac. & Gor. 403, ^Vikle I'. Waters, 16 C. B. 641 ; Mather v. in banki-nptcy. Fraser, 2 Ka. & Jo. 536. (e) Southby v. Hntt, 2 My. & Cra. 207. {b) Hare v. Horton, 5 Bar. & Ad. 715; (/) Osborne r. Harvey, 7 Jur. 229; lYo. see Birch v. Dawson, 2 Ad. & El. 37 ; a case & Col. C. C. 1 16, on another point; Gabriel upon a will ; Petrie v. Dawson, 2 Car. & v, Smith, 16 Q. B. 847. Kir. 138, as to trade fixtiu'es. 28 COPIES. SEARCHES. [CH. 1. S. II. tlic title-deeds, the Court held " largest lot " to mean the largest quantity of land. The condition did not refer to the largest in value, and, in fact, it would be unnecessary to stipulate that the purchaser of the lot largest in value should have the custody of the deeds, because the law would give him that right in the absence of any stipulation {(/). The objection to this construction is, that where quantity, and not value, is intended, the seller could by his con- dition at once point out the lot to which the deeds were to be at- tached ; where it depends upon value, that must await the sale : and many conditions only state the general rule. The condition, where it is intended that the largest purchase should carry the right to the deeds, should always be inserted, although, of course, care should be taken to refer to largest value. Lord Eldon decided that, under a condition that the pvirchaser of the largest lot was to be entitled to the custody of the title-deeds, the purchaser of the largest lot in price was to have the title-deeds in preference to the purchaser of several lots in the aggregate of greater value (Ji), and this has been followed in a recent case (i). 60. There must be express conditions where the seller intends to throw upon the purchaser the expense of searches, or the expense of travelling to a distant place to examine the abstract with the deeds, or the like. 61. 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 (A) ; and where the estate is sold in many lots, and the title- deeds are numerous, nearly the whole purchase-money may, perhaps, be exhausted. In one case, the lots were more than 200, and the copies came to 2,000 I. 62. Where by the conditions the sellers were to deliver an abstract, but one condition Avas that the vendor should not be required to pro- duce any deeds, &c., not in their possession, and that all deeds of covenant for production, and attested, &c., coi)ies of any deed, &c., Avhich the purchaser should subject to that condition require for verifying the abstract, or for any other purpose, and all certificates, searches, and inquiries, &c., should be respectively paid, made, searched for, and obtained by and at the expense of the purchasers requiring the same : The abstract was verified by the production of the deeds, but some of the deeds abstracted and material to the title were not in the possession of the vendors, and the holder refused to enter into a covenant to produce them ; it was held that the purchaser Avas bound, under the conditions, to complete (g) Griffiths i'. Hatcliard, 1 Ka. & Jo. 17. {k) Dare v. Tucker, 6 Ves. 460 ; Berry v. {h) Kinnaird v. Christie, 21 Bea. Ill, n. Young, 2 Esp. 640, u. ; jmst, ch, 11, (i) Scott V. Jackman, ib. 110. CH. l.S. II.] lessor's TITLE. INDEMNITIES. -29 his purchase without any covenant to produce tlie deeds in ques- tion (/). 63. Where a trustee for sale for the benefit of himself and others sold under a condition that his receipt was to be deemed an effectual discharge, and the purchaser should not be entitled to require the concurrence of the cestuis que trust, and there was the usual reference as to title, it was held too late on exceptions to object to the condition as a breach of trust Avhich the Court upon a bill by the seller would not assist {in). How the Court would have dealt with the objection if made at the hearing may be open to doubt. In a case where it was stipulated that the sole receipt of A should be a good discharge to the purchaser, the Vice-Chancellor observed that if it were so framed as to mislead the purchaser, the Court would not enforce it, and if the enforcement of the contract would cause a breach of trust, the Court would not enforce it (w). 64. A statement in the conditions of sale that the property was held under a settlement on one for life, with a trust for sale at her death for her children, and that she being living the three children who were of age, or the assigns or trustees of such of them who had aliened or settled their estates and interests, should, if required, join, but no objection Avas to be made to the sale being made during the life of the tenant for life, was held not to bind the purchaser, as it appeared that two of the children had settled their shares without any power in the trustees to concur in the sale ; and the condition im- plied that the parties were competent to concur (o). 65. If the estate is leasehold, and the vendor cannot procure an abstract of the lessor's title, this fixct should be stated in the condi- tions {p). QQ. Where a leasehold estate was sold as renewable every twenty- one years, and there was a condition that the purchaser should not require the production of the title of the lessor or of the Lord of the Manor to demise the customary portion of the proj^erty, but should accept the existing lease and the assignment of it to the vendor as a sufficient title to such customary leasehold, and the purchaser was, within fourteen days from the delivery of the abstract, to specify in writing his objections to the title, and the vendor was to be at liberty afterwards to vacate the sale and to return the deposit, without in- terest, costs, or other compensation, and there was the usual condition for compensation in case of improper description of the estate, or of any error or misstatement ; it was held that the vendor was not at liberty to vacate the sale, although the lease was not renewable, but that the purchaser was entitled to a compensation {<}). (l) Gabriel v. Smith, 16 Q. B. 847. (p) Post, ch. U ; see Denew v. Deverell, (m) Wilkinson v. Hartley, 15 Bea. 183. .3 Ca. 451. (n) Groom v. Booth, 1 Drew, 548. (q) Painter v. Newby ; Newby v. Payn- (o) Mosley v. Hide, 17 Q. B. 103. ter, 11 Ha. 26; 1 Eq. R. 173. 30 LESSOR'S TITLE. INDEMNITIES. [CH. 1. S.II. 67. Where assignees of a bankrupt erroneonsly supposed that they could sell the fee and contracted for the sale of it, and in one of the conditions stated the particulars of their title, and concluded that the bankrupt who had purchased of the assignees his life estate "had been admitted tenant in tail in error, and the assignees or commis- sioners having power to bar the entail and all reversions and remain- ders over, and to sell the reversion in fee, now proposed to sell the customary fee expectant on that life," and by another condition the purchaser was not to require the concurrence of the bankrupt ; the purchaser was permitted to object to the title, for it was stated as a positive and distinct fact, that the assignees or commissioners had power to sell the fee (r). 68. 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 conditions of sale {s) ; 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 (t) ; but assignees of a bankrupt selling a lease which was vested in him, cannot require the purchaser to enter into such a covenant for their indemnity or the indemnity of the bankrupt (?(). 69. And although a purchaser is not required by the conditions to give an indemnity against the rent and covenants, and an assignment is actually executed without one ; yet, even a verbal agreement by the purchaser, before the sale, to secure such indemnity, will be carried into a specific execution (x). r-^/^ />< ''0. 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 assigning the estate over (y), and consequently, in such case, there is not anything for a purchaser to indemnify against. 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 in- demnify the lessee {z), but not further (a). And where a purchaser from an assignee of a lease agreed to take the estate without an (r) Johnson v. Smiley, 17 Bea. 223; 1 {t) Staines v. Morris, 1 Ves. & Be. 8. Eq. Rep. 397. {ii) Wilkins v. Fry, 1 Mer. 244 ; post ; {s) Pembev v. Matliers, 1 Bro. C. C. 52 ; Slack v. Sharpe, 8 Ad. & El. 36G. Expte. Little, 3 Mol. 67 ; Moxhay v. In- (x) Pember v. Matliers, 1 Bro. C. C. 52 ; denvick, 1 De Ge. & Sma. 708 ; post, ch. 5, post, ch. 4 ; cli. 5, s. 2. as to the obligation of a pui-chaser of an (y) 1 Treat. Eq. 2d ed. 350, and note (y) ; equity of redempiion to indemnify the Taylor v. Shum, 1 Bo. & Pul. 21 ; Fagg vendor against the mortgage-money ; and v. Dobie, 3 Yo. & Col. 9G. see Brown v. Paull, 2 Jur. N. S. 317, as to (r) Burnett v. Lynch, 5 Bar-. & Cres. the liability of the lai-gest purchaser of a 58); Walker r. Bartlett, 17 C. B. 440; 27 leasehold sold in lots to indemnify the other L. T., Ex. Ch., 299. pm-chasers, and qu. the construction of the (a) Mills v. Harris, 1 Nev. & Per. 569, condition in that case. cited ; Beale v. Sanders, 3 Bin. N. C. 850. CH. l.S. II.] FORFEITURE OF DEPOSIT. 31 assignment, 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 (/>). But 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 cove- nant so as to bind the assignee after he has assigned over (c). 71. Where a fee-simple estate was sold subject to a restrictive covenant against building, &c., but without any stipulation that the purchaser should enter into a like covenant, it was held that the pur- chaser could not enforce a specific performance without entering into the covenant, but he had his election either to enter into it, or to be relieved from the contract {d). In a like case, with the exception that the claim was filed l)y the vendor, and the liability was not disclosed until after the contract, and the purchaser waived the objection but refused to enter into any covenant of indemnity, it was held that the parties stood in the same position as if there had been an oriojnal disclosure, and the purchaser w^as put to his election {e). The result is, that in such cases the purchaser cannot enforce the contract with- out submitting to enter into the covenant, whilst the seller cannot compel the purchaser to enter into it, and it is immaterial whether the bill is filed by tlie vendor or the purchaser. 72. Upon a sale, with a condition that the conveyance was to be subject to certain existing obligations, and also subject to a covenant on the part of the purchaser, his heirs, and assigns, and proper pro- visions for the due observance and performance thereof, restricting the purchaser, his heirs, and assigns, as to the buildings to be erected on the premises, it was held that the sellers were only entitled to a covenant from the purchaser, with a power of entry in case of breach of covenant, which power the parties confined to lives in being and 21 years afterwards (/). 73. It should always be stated in the conditions, that the con- veyance shall be prei^ared by and at the expense of the purchaser (j^). A condition that a purchaser shall have proper surrenders, &c., of a copyhold at his own expense, will not throw on him the expense of fines and fees occasioned by the death, after the contract, of a trustee of the legal estate (A). 74. 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. If the money produced {b) Close V. Wilberforce, 1 Bea, 112; (e) Lukey tJ. Higgs, 1 Jur. N, S. 200. Moore v. Greg, 2 Pliil. 717. (/) Ex pte. Ralph, 1 De Ge. Cas. Bank. (c) Wolveridge v. Steward, 3 Nev. & 219. Scott, 561. {(j) Post, ch. 5, 14. (d) Moxhay v. Inderwick, 1 De Ge. & (/«) Paramore v. Grccnslade, 1 Sma. & Sma. 708. Gif. 541. 32 FORFEITURE OF DEPOSIT. RESIDUE. [CH. l.S. II. by the second sale exceed the original purchase-money, the purchaser Avill not be entitled to the surplus, but the vendor himself will be entitled to retain it. The seller cannot, after a re-sale, recover ao-ainst the purchaser generally, but only for the difference and expenses. The power of re-sale implies a power of annulling the first sale, and therefore is a sale on condition. The seller, on the re-sale, is not the agent of the defaulting purchaser {{). A trustee selling cannot be charged with a breach of trust for not re- selling under this condition. It is very seldom that the clause is put in force, and no trustee would resort to it if he were taking other proper steps to carry out the purchase (j). 75. It is now usual to stipulate, that in case of default by the pur- chaser, he shall forfeit the deposit, and that the amount of the expenses of a re-sale, &c., shall be recoverable as stipulated damages. Opinions have differed whether the party should only be allowed to recover what damage he had really sustained (A) or the stipulated sum(/). But such a condition does not preclude the seller from maintaining 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 (m). 76. AVhere there is no specific provision, the question whether the deposit is forfeited depends on the intent of the parties, to be collected from the instrument. Therefore, where 300 I. was paid by way of deposit, and in part of the purchase-money, and the agreement stipu- lated that if either party should refuse to perform the agreement he should pay to the other 1,000 /. as liquidated damages, it was held 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 (ii). The general question, whether one contracting for the purchase 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 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 stipu- lation for a forfeiture of the deposit, the vendor could retain the (i) Lamond v. Davall, 9 Q. B. 1030; Ex (k) Rimdal v. Everest, 1 Moo. & Mai. pte. Hunter, 6 Ves. 94 ; Moss v. Matthews, 41 ; see Boys v. Ancell, 5 Bin. N. C. 390. 3 Ves. 279 ; Martins v. Adeock, 4 Esp. Ca. (I) Crisdee v. Bolton, 3 Car. & Pay. 240. 2.51 ; sed vide 7 Ves. 275. See Greaves v. (m) Icely v. Grew, 6 Nev. & Man. 467. Ashlin, 3 Ca. 466; post, ch. 19. (n) Palmer v. Temple, 1 Per. k Da. 379. 0) Thomson v. Christie, 1 Macq. H. of 382; 9 Ad. & El. 508. L. 236. CH. l.S. II.] FORFEITURE OF DEPOSIT. BANKRUrTCY. 33 deposit and sue for damages too? 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 not 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 re-sale of the estate will give the purchaser a right to rescind. It would seem not, if the sale was after the i)urchaser's default ; for as the purchaser by his act had lost the right to enforce the contract, the disposal of the estate by the seller prejudiced no right of the purchaser, and could impart to hun no right to rescind a contract which he had already broken. The sale does not jiurge the previous default of the pur- chaser. To hun 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 per- forming the first contract. 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 pur- chaser 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 re-sell 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 latter a right to recover the deposit which did not exist before the second sale (I). The right of the seller in such a case to recover damages upon a re-sale beyond the deposit, is another question. 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, &c., 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 pay- ment of those articles wliich it is just he should receive ; then towards payment of the original purchase-money; and the balance may be proved under the commission (o). 78. 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 {])). (0) Ex pte. Hunter, 6 Ves. 94 ; Bowles vered in an action, Ex pte. Gyde, 1 Gly. & •V. Rogers, ib. 95, n.; 1 Cook, 123 ; Hopew. Ja. 323. Booth, 1 Bai'. & Ad. 507; Ex pte. Ld. Sea- {p) Hagedorn v. Laing, G Tau. 514; a forth, 1 Ro. 306 ; where the seller had reco- sale of goods. (1) See Lethbridge v. Ku-kman, 25 L. J., N. S., 89, where the purchaser objected to the title, and the sellers re-sold the estate at an advanced price, and the purchaser brought an action for money had and received, to recover his deposit, with interest, and the Court of Queen's Bench being of opinion in favour of the title, there was judgment for the defendant. C 34 WRITTEN CONTRACTS. [CH. 1. S. II. 79. Althougli a vendor ouglit, by proper conditions, to be relieved 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 fiill lightly upon himself, yet the general prac- tice between vendor and purchaser should be adhered 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 family, purchasers may be found to purchase, subject to any conditions which the seller may think fit to impose ; yet, in the general run of sales, unusual conthtions 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 always be found to facilitate the completion of the purchase, where the seller has a good title. The natm'e of the title should always be adverted to ; and where it is necessary, condi- tions should be introduced to guard against the liability to produce titles upon exchanges, inclosures, renewable leaseholds, or the like, and to provide for apportionment of rents, so as to be binding on pur- chasers, or to make the j)urchaser take subject to unusual liabilities, e. g. an original rent, and the covenants in the original lease, where only part of the property is sold, and this cannot safely be done with- out the advice of counsel. But it never can be advisable to stipulate that the purchaser shall take without inquiry as to some matter, which, if disclosed and unfavourable, would destroy the title ; unless the seller is prepared to part with his property for what it may fetch without a title. 80. Conditions of sale, giving a right of entry to take away pro- duce, for example, may, as a licence, bind a third party who has assented to them, although he is not a seller {cf). 81. Immediately after sale of an estate by auction, an agreement to complete the purchase should be signed by the parties or their agent, because sales by auction of estates arc within the statute of frauds ; and, consequently, the contract could not be enforced against either of the parties who had not signed an agreement (r). Although a man purchase several lots, yet a distinct contract arises upon each lot ; but they may all be comprised in one agreement (s). A purchaser should refuse to sign the usual printed agreement, unless the auctioneer Avill sign one also. 82. An auctioneer, however, as the agent of the purchaser, which for this purpose in law he is, may bind him to the bidding, by signing for him ; if therefore he put down the purchaser's name as the buyer, and the amoimt of tlie bidding opposite to the lot in the particulars (jq) Wood V. Mauley, 3 Ad. & El. 34. (s) Emmerson u. Ileelis, 2 Tau. 38; Frank- (r) Post, ch. 4. lyn r. Lamond, 4 C. B, 637. CII. 1. S. III.] AUCTIONEER AGENT, &C 35 and conditions of sale, or make an entry in his books of all the roqin- site particulars, the purchaser will be bound. And on the other hand the auctioneer's receipt for the dejjosit may amount to an agreement, binding upon the seller, if it contain the names of the seller and pur- chaser, 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 emliodies by a reference, contain all the particulars required to the validity, of a written agreement. An auctioneer signing an agreement as in his own name, may show that it was really on behalf of his principal (t). (t) See 2 Nev. & Pe. 519. ' ' SECTION III. OF AUCTIONEERS AND AGENTS, AND OF THE DEPOSIT AND PURCnASE-MONEY. ^fi^./SJ/r^ \, Auctioneer cannot delegate : sale of Ms oivji estate: trustee no commission. 2. Auctioneer liahle, if no authority. 3. If sale defeated by his negligence, not entitled to commission ; anstvei'ahle for misdescription. 4. Revocation of auctioneer'' s authority. 5. Amount of commission on sale. C. Amount for finding a purchaser. 7. Wh€7i it is payable: revocation of au- thority. 8. Agent bidding beyond his authority. 9. Disputes betioeen principal and agent as to the lattei''s authority. 10. Conditional sale by agent. 11. Agent to sell not entitled to receive the money. 12. Auctioneer cannot give credit. 13. Set-off. 14. Hemittance by seller's direction. 1 5. Purchaser may stop his check, if con- tract void: effect of acceptance by seller of check. IG. Must not pay agent before the fixed time. 17, Seller's direction to 2^ny third j>crson binding. 18. Dejwsit is part payment . 19, 20. 22. 23. 24. 26. 27. 28. 29. 30. 31. 32. 33, 34. 35, 30. Auctioned' to retain it till contract completed. Interpleader by auctioneer in equity. Same at laiv. Equitable pleas at law of set-off. Loss by insolvency of auctioneer falls on seller : where on mortgagor. Trustees not liable for auctioneer's in- solvency. Auctioneer liable where principal not disclosed. Not liable to interest ; may pay to in- solvent pj'inclpal. Payment to agent payment to principal. Deposit invested by Court, at risl: of seller. Proposed arrangement for disposal of deposit. Where loss by sale of stock cannot be thrown on purchaser. Forfeited deposit on sale of settled es- tate. Seller not bound by investment ivlfhouf his assent. Waiver of payment of d(posif. No election to forfeit deposit : forfei- ture relieved against. Seller to repay deposit although his bill dismissed. c2 36 AUCTIONEliR'S LIABILITY. [CH. 1. S. III. 1. An auctioneer employed to sell, must himself sell the estate, and eannot without a special authority delegate the sale to another (a). It is said that an auctioneer may sell his own property without dis- closino- that he is the owner (b) ; but such a practice may lead to abuse. If a trustee, being an auctioneer, sell the trust property, he is not entitled to charge commission (c). 2. If an auctioneer sell an estate without a sufficient authority, so that the purchaser cannot obtain the benefit of his bargain, he 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 unproduc- tive {d), for there being no principal who is responsible, the auctioneer is answerable as principal, otherwise the purchaser would have no remedy (e). If an auctioneer be authorised to sell a property, the owner, of course, cannot object that the sale Avas by auction where he knew it was intended ; and it would ref[uire a strong case to impeach the sale upon the ground that the seller did not intend it to be sold under a price greater than the amount realized (/). 3. If an auctioneer do not insert usual clauses in the conditions 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, Avho approved of them. The same rule of course applies to negligence generally on the part of the auctioneer, whereby the sale is defeated ((/). And a seller may recover damages against the auctioneer for loss in conse- quence of the auctioneer negligently misdescribing the property {h). Where no solicitor is employed, the auctioneer may, it should seem, introduce special conditions {i). 4. A principal may revoke the auctioneer's authority, at any time before it is executed, and the revocation will bind persons not parties to it or conusant of it. If therefore after such a revocation the auc- tioneer sell, the purchaser cannot enforce the contract {k). ^ 5. The auctioneer is, of course, entitled to a fair remuneration for r/f: q.(^cj - j^jg labour ; the amount must generally depend upon private agree- ment, although where there is no sj^ecial 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 {I). Upon large sales this difficulty is mostly obviated by («) Cockran v. Irlam, 2 Man. & Sel. 301 ; (e) Gaby v. Driver, 2 Yo, & Jer. 549. Catlin V. Bell, 4 Car. 183 ; Schmaling v. (f) Pike v. Wilson, I Jur., N. S., 59. Thomlinson, G Tau. 147; Coles v. Treco- (. Rutt, ift. 18G; Eyles r. Ellis, 4 Bin. Heald v. Kemvorthy, 1 Jur., N. S., 70. 11 -2. (/) Barker v. Greenwood, 2 Yo. & Col. (h) ]\Iills v. Oddy, 6 Car. & Pa. 728. 414; Young V. "White, 7 Bea. -OOC; wlicro («) Clarke v. King, 2 Car. & Pa. 28G. the purchaser is a creditor of the agent, Ilan- {k) Bond v. Warden, 1 Col. 583. ley V. Cassan, 11 Jur. 1088. (/) Lord Ward v. Osibrd, &c. Ry. Co: 2 (i/) Warwick v, Noakes, Peak. G7, a; Haw- De Ge. Mac. & Gor. 750. C4 40 OF THE DEPOSIT. [CH. 1. S. III. right owner (??*). If the purchaser be directed to pay the purchase- money to the solicitor, for example, on the completion of the pur- chase by conveyance, he cannot safely pay any portion of the money to the solicitor before the completion [n). 17. 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 (o). 18. A deposit is considered as a payment in part of the purchase- money {p), 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 (q).^_ 19. The auctioneer should not part with the deposit until the sale be carried into effect (r) ; because he is considered as a stakeholder, 7Jp./ /"J^ '^O . or depositary of it {s). The same rule applies to a solicitor receiving a deposit (?). Where the auctioneer was also the attorney of the seller, and j^aid over the money to the seller after he knew that objec- tions to the title had been raised an action against him for the deposit was sustained {ii). In a later case, where the auctioneer had paid over the deposit to the vendor, without any notice from the pur- chaser 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 auctioneer {x). 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 (y). But if a purchaser has agreed that the pay- ment to an agent shall be considered as a payment personally to the vendor, his remedy for his deposit will be against the latter {£). But a deposit paid to the auctioneer cannot be recovered as money had and received against the seller, where the sale has been avoided, although in the same action the purchaser recovers costs, &c. laid as special damages (a). 20. If both the parties claim the deposit, the auctioneer may file a bill of interpleader, and pray for an injunction, which will be granted, upon payment into court of the deposit (J). But if after the sale of the estate, and payment of a deposit to the auctioneer, the estate be {m) Parnther v. Gaitskill, 13 Ea. 432. rough, 4 Dec. 1812; Robinson v. Rutter, 3 (?t) Hughes V. MoiTis; 9 Ha. 63G. Com. L. R. 1195 ; 4 E. & B. 954; Holmes i7. (o) Metcalf v. Clough, 2 Man. & Ry. 178, Tutton, 1 Jur., N. S., 975. (T?) Pordage v. Cole, 1 Sau. 319; Main v. (i) Wiggins v. Lord, 4 Bea. 30. Melbourn, 4 Ves. 720; Klinitz v. Surry, 5 (u) Edwards v. Hodding, 5 Tau, 815; 1 Esp. 207 ; Ambrose v. Ambrose, 1 Cox, 194 ; Mars. 377. Palmer v. Temple, 9 Ad. & EI. 508. (.r) Gray v. Gutteridge, 1 Man. & Ry, 614. (q) Vinnius, 1. 3, 24. (y) Duncan v. Cafe. 2 Mee. & Wei. 244. (/•) Burrough v. Skinner, 5 Bur. 2039; (~) Hurley v. Baker, IG Mee. & Wei. 26, Berry v. Young, 2 Esp. 640, n. ; Spurrier r. («) Johnson v. Roberts, 24 L. T. 254. Elderton, 5 Esp. 1 ; post, ch. 17. (b) Farebrother v. Prattent, 5 Pri. 303; (*) Jones V. Edney, cor. Lord Ellenbo- Dan, 64. CII. 1. S. III.] OF INTERPLEADER. 41 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 auc- tioneer cannot mix up the cases of the seller and the two purchasers in one bill of inter})leader (c). And an auctioneer cannot maintain a bill of interpleader if he insist upon retaining his commission out of the deposit ; formerly, the same rule applied to the auction duty {d). Where, upon the sale of a horse, the owner had fraudulently concealed defects, and made representations, but directed no warranty to be given, and the purchaser gave the auctioneer notice not to pay the purchase-money to the owner, the fraud having been found by the jury in an action by the owner against the auctioneer, the latter obtained a verdict {e). 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 auc- tioneer's charges and expenses (/), 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 ; but this is done without prejudice to any question as to so much of the deposit as is retained {[/). 22. Under the Interpleader Act (A), by which authority is given to a court of law to make such order betAveen such defendant and the plaintiif as to costs and other matters as may appear just, the Court has said, that in the first instance, upon ajiplication for a rule to inter- plead, the fund shall bear the costs, and the party in the wrono- shall afterwards make up the fund ; and although the seller became insol- vent, the auctioneer was in one case ultimately allowed to retain his costs out of the deposit, for the purchaser, it was said, had a remedy over against the wrongdoer (z). This would operate severely against the right of a purchaser entitled to a return of his deposit. But in a later case of an action against the auctioneer (A), where it was doubtful whether the seller was not insolvent, the Court, on the general rule, refused to make an order substituting her as a party in the action without security for costs, and refused an application by the auctioneer for his costs out of the deposit, which he offered to pay into court. Why, the Court asked, if the plaintiff" succeeded, is the auctioneer to get his costs out of the plaintiff's fund ? The auctioneer had entered into a contract with the plaintiff. It was not like the case of a party who, without any interference of his own, finds property in his hands, and requires the contending claimants to contest the right to it amongst themselves. (c) Hoggai'tv. Cutts, 1 Cra. & Phil. 107. {g) Yates v. Farebrother, 4 Mad. 239. {d) Mitchell v. Hayne, 2 Sim. & Stii. 03 ; (h) 1 & 2 Will. 4, c. 58. 11 Sim. 28. (t) Pitchers v. Edney, 4 Bin. N. C. 7^1. (e) Stevens v. Legh, 2 Com. L. R. 251. (k) Deller v. Prickett, 15 Q. B. 1081i (/) Aunesley v. Muggi-idge, 1 Mad. 593, 42 OP INTEEPLEADER. [CII. 1. S. HI. 23. AVhci-G an action is brought against auctioneers for the produce of sales by thcin, and they plead equitable pleas of set-off under the Common Law Procedure Act, and the plaintiff replies, and there are no complicated accounts, the auctioneers cannot file a bill for an injunction ; effect will be given to the equitable rights of set-off of the defendants at law (/). 24. Where 1,000/. was paid as a deposit to an auctioneer, according to the conditions of sale, and the vendor op})osed two motions by the puichaser for payment of the deposit into court, and the auctioneer ibecame bankrupt, the loss was liolden 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 (?«). And a loss by the insolvency of the auctioneer will, it seems, in every case, fidl on the vendor, Avho nominates him, and whose agent he properly is (71). Where a mortgagee concurred in a sale by the mortgagor, and the auctioneer became insolvent, the loss as between the pur- chaser and mortgagee was held to fall upon the latter, as he stood in the seller's shoes (o). 25. Executors or trustees selling an estate are not answerable for the loss of the deposit by the insolvency of the auctioneer, if they take proper steps, in due time to recover it (p). 26. Unless an auctioneer disclose the name of his principal at the time of the sale, an action will lie against him for damages on breach of contract (»/). Generally speaking, an auctioneer is not liable for interest; but that subject will be considered in the chapter on in- terest (r). 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 knoMdedge in embarrassed circumstances {s) (I). It must be a very special case in which he can set up the jus tcrtu{t). 28. Where a man is completely the agent of the vendor, a payment to him is in law a payment to the principal ; and in an action against the latter for the recovery of the deposit, it is immaterial whether it has actually been paid over to him or not (ii). (Z) Farebi'otlierr.Welchman,3Drew.l22. {q) Hanson tJ. Roberdean, Peak. 120; {ill) Brown r. Fenton,l\lS.; 14 Yes. 144; Simon v. Motivos, 3 Bur. 1921; Owen v. Wilks r. Groom, 2 Jiir. jV. S. G81, a deposit Goocli, 2 Esp. 567; 12 Ves. 352, 484; of purchase-money by a trustee. Franklyn v. Lamond, 4 C. B. 035. [n) 2 H. Black. 5 Trustees must use reasonable diligence. Time of Sale. Where sale will be stopped. False representation by trustees. Conditions of Sale. Where assignees may bxiy in. Where they may have a reserved bid- ding. Where damages against the assignees fall on the estate : contract by cre- ditors' assignee binding on official assignee. Sale by creditors' assignees. Assignees putting up an estate. Deposit repaid without a bill filed. Biddings for bankrupt's estate opened. Power to inortgagee to sell. Expenses. What is proper notice. Mortgagee cannot bid and conduct sale. Liability to malte a good title. And compensation for misdescription.] Cannot sell to themselves. Triistee of legal estate to convey to trustees so sell. Tenant for life, token entitled to rents. Sales by trustees under powers of sale and exchange. Cannot be controlled ; hoio to sell. Sale and new purchase by tenant for life. Contract of trustees hinds the estate. Trustee's liability, for tnlsapplication of purchase money — to costs. Time for sale limited, extended by equity. Irregular sale supported. 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 lia- bilities to his cestui qiies trust or mortgagor. 2. Of course trustees should satisfy themselves of the value of the property they are empowered to sell ; and although it 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 («) ; but at last trustees, like other sellers, must be guided by that common proof of value, that a thing is worth Avhat it wiU fetch. {a) 5Ves. 680, 681. CH. 1. S. v.] TRUSTEES, &;C. SELLING BY PRIVATE CONTRACT. 49 3. The usual words, that the trustees may sell for such a price as shall appear to them to be reasonable, must be construed, at least in a question between the trustees and the cestui que trust, after they have with due diligence examined {])). 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 prevent them from selling by private contract ; it may be frequently advan- tageous for the creditors, and with their consent would be unob- jectionable. It is however a circumstance of evidence not to be disregarded upon a complaint that the property, by a different mode of disposing of it, might have been rendered more productive (c). 5. The real estate of an insolvent is directed to be sold by public auction, with the sanction of the creditors (d). 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 (/). 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 (g). 6. 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 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 (A). In a proper case, with the consent of the assignees, an offer has been accepted from even the solicitor to the fiat, instead of resorting to an auction (Z). 7. A sale by private contract by an af/€7it authorised to sell by Vj , ^ auction is not valid, although the price be greater than was re- ' quired (7?j), nor could such a sale by trustees in the like case be supported. The agent in every case must act within his authority. An authority from a co-trustee cannot be inferred from the fact that the alleged agent is a solicitor, and conducts the ministerial business of the trust, nor can a trustee lawfully delegate to his co-trustee an (b) 10 Ves. 309 ; as to rights of pre- (g) Sect. 47 ; Doe v. Evans, 1 Cro. & emption given through trustees, 11 Ves. Mee. 450. 454, 455, post, ch. 5. (h) Ex pte. Goring, 1 Ves. j. 1G8. (c) Per Lord Eldon, Ex pte. Dunman, (/) J^x^^ife. Kendall, 17 Ves. 519, 522. 2 Ro. 66. [h) 6 Ves. 622, G23. (d) 1 & 2 Vict. c. 110, s. 42, 47, 48. (/) Ex ptc. Watts, 1 De Ge., B. C., 265. (c) Mather v. Priestman, 9 Sim. 352. (in) Daniel r. Adams, Am. 495 ; Bulteel (/) Wright V. Mannder, 4 Bca. 512 ; see v. Lord Abiager, 6 Jm-. 410 ; post, ch. 5. Borell r. Dann, 2 Ha. 440. D 50 TRUSTEES, &C. SELLING BY AUCTION. [CH. 1. S. V. authority to sell the estate by private contract, without reserving to himself a veto upon the contract (n). 8." The sale may be made in lots or altogether, as may be deemed most advantageous. And where the trust is to sell to raise a specified sum and the expenses, and the estate is put up in lots, the purchaser of the second lot cannot object that the first produced the amount of the principal sum, and therefore that the sale of the second lot was to a great extent unnecessary (o). 9. Where a trust estate Avas 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 performance (/»). 10. Where the sale by trustees, &c. is made by auction, with all those circumstances of caution Avhich 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 (q). 11. Every trust deed for sale is upon the implied condition that the trustees will use all reasonable diligence to obtain the best price (r) ; 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 per- formance 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 (s). 12. 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 safely exercise {t) ; and if there are several trustees, one is not bound to surrender his opinion as to the fittest time of sale to the other (m) ; (n) Bulteel v. Lord Abinger, 6 Jur. 410. (s) Per Leach, V. C, 5 Mad. 440, 441 ; (o) Thomas v. Townsend, 16 Jur. 736. Bridger v. Rice, 1 Ja. & Wal. 74 ; post, (p) Ord V. Noel, 5 Mad. 438; Hobson eh. 5; Turner tJ. Ilai-vey, Jac. 178; White V. Bell, 2 Bea. 17. v. Cuddon, 8 Cla. & Fin. 766. (q) Per Leach, V. C, Ord v. Noel, 5 (t) Gan-et v. Noble, 6 Sim. 504; Buxton Mad. 440 ; 3 Mer. 208. r, Buxton, 1 My. & Cra. 80. (r) See and consider Goodwin v. Field- (w) Buxton v, Buxton, I My. & Cra. 80, ing, 4 De Ge. Mac. & Gor. 90. CII. 1. S. v.] LIABILITY OF TRUSTEES, &C. 51 and acting providently, they may buy in the estate ; but trustees who do buy in an estate and delay the re-sale, incur a great risk of answering for any loss wliicli may be sustained {x). 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 pro- perty (y). 13. 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 plaintiff, the Court proceeds in this summary way {z). But where a trustee to sell in a mortgage had not apprised the mortgagor of his intention to proceed to a 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, relieve himself by giving notice to the purchaser, that he had filed a bill to impeach the sale (a). 14. Although a trust for sale has been established by decree, yet if there be an appeal, the Court will, in a proper case, stop the sale until the final decision (Z»). 15. If a bill is filed for the execution of the trust, a sale cannot be made without the leave of the Court (c). 16. If a trustee falsely represent the state of the incumbrances to a purchaser, he would, as we have seen, be bound to make good the loss sustained through his misrepresentation (d). 17. Although a man selling his own property may sell subject to such conditions as he pleases, yet trustees and assignees cannot impose any condition for the benefit of the creator of the trust or the bankrupt, which would reduce the value of the property ( 3 54 SALES BY MORTGAGEES, &C. UNDER POWERS. [CH. 1. S. V. for the payment of prior incumbrancers who are not parties to the deed, and the first trust is for payment of the expenses of sale, such expenses cannot be retained as against the prior incumbrancers, unless they have bound themselves to carry out the trusts ( /). 29. A mortgagee selling under a j)Ower, can only charge the ordinary expenses allowed to a trustee, although he is an auctioneer and acts as such on the sale, or the sale is made by the firm of which he is a member {(/). 30. If the mortgagee is bound to give notice of the intended sale to the mortgagor, his heirs or assigns, notice to the guardian of an infant heir is sufficient Qi). A provisional demise to a trustee for the purjjose of granting leases, and the appointment of him as trustee in case of defiiult in payment of interest, will not affect the power of sale in the mortgage deed, and the trustee of the term is bound to join in the conveyance to the purchaser {i). 31. Where the sale is in bankruptcy, and the mortgagee has liberty to bid, he cannot have the conduct of the sale (K). If the mortgagee sell impro2ierly and receive a deposit, and the contract go off, the deposit may be a lien on his own interest (/). 32. Where, as is usual, the power is to sell in the event of default being made in payment of the instalments, the declaration of the mortgagee, an interested party, is not, as against a purchaser, suffi- cient evidence that the event has happened on which the right of exercising the power of sale was to arise (m). 33. 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 Avithin that period, the Court of Review made an order for an imme- diate sale, upon the petition of the mortgagee against the wish of the assignees (n). 34. Trustees, assignees of bankrupts {n), and mortgagees with a power of sale, are of course liable to make a good title, just as a seller who is sui juris, although they are not bound to enter into covenants for the title (/») ; and if they do not deliver the deeds to the pur- chaser, they are liable in the same way to furnish attested copies of the deeds, and a covenant to produce the deeds {q). 35. And a purchaser from trustees is entitled to a compensation for (/) Crosse v. Gen. Rev. Society, 2 Eq. R. N. S., 130. 579. See and consider it. {m) Hobson v. Bell, 2 Bea. 17. {g) Mathison v. Clarke, 3 Drew. 3. (?j) Ex pte. Bignold, 3 Mon. & Ay. 477; {h) Tracey v. Lawi'ence, 18Jm-. 590; 2 sed qu. Eq. R. 813. (o) Post, ch. 11. (i) King V. Heenan, 3 De Ge. Mac. & Gor. (/;) Post, ch. 14. 890. See Cruse ?\ Nowell, 2 Jur., N. S., 539. {q) J/?/, ch. 11; and as to special covenants {k) Ex pte, M'Gregor, 4 De Ge. & Sma. to be contained in a lease for tlie liability of 603, inf. assighees or heir at law, see Page v. Broom, (/) Wythesr. Lee, 3 Drew. 336 ; 2 Jur,, 3 Boa. 3C. OH. 1. S. v.] SALES UNDER TOWERS IN SETTLEMENTS. 55 a misdescription of the quantity, &c. although made without fraud, as in the case of a sale by an owner (r). If a mortgagee with a power of sale, sell, and upon filing a bill against the purchaser his bill is dismissed with costs, on account of a misdescription, he cannot upon redemption claim those costs against the mortgagor (s). A first mortgagee [with a power of sale], entering into a parol contract not binding to sell a portion of the property, may purchase the interest of a second mortgagee without communicating to him the unperfect contract (t). 36. Trustees, assignees, mortgagees with powers of sale, cannot sell to themselves (ii) : 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 {x) ; but equity would not allow such a purchase to stand, unless it should prove beneficial to the cestuis que trust (3/). 37. Where an equitable owner has conveyed the estate to trustees 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 cestuis que trust 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 {z). 38. 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 time witliin which the sale might reasonably have been made, and from that time the tenant for life is entitled to the rents of the estate remaining unsold (a). 39. In regard to trustees having the usual power of sale and ex- change 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 their power is not a conditional one ih) ; and they should not sell under a power to make partition, or to exchange, although this may be accomplished indirectly (c). Of course, although authorised to lend the money arising (v) Hill V. Buckley, 17 Ves. 394 ; White (c) Angier v. Stannard, 3 My. & Ke. 566. V. Cuddon, 8 Cla. & Fin. 7GG; Sugd. H. of {a) Vickers v. Scott, 3 My. & Ke, 500; L. 690. Sitwell v. Bernard, 6 Ves. 620, and many (5) Peers v. Ceeley, 15 Bea. 209. later cases. {t) Dolman v. Nokes, 27 L. J. 178; qu. {b) 2 Sugd. Pow. 473. The Succession the facts. Duty Act does not aifect the exercise of these (m) Ch. 20, post. powers, 16 & 17 Vict. c. 51, S.42. See 19 & 20 {.%•) Mackintosh v. Barber, 1 Bin. 50. Vict. c. 120; ch. 12, s. 4, pott. il/) 1 Sugd. Pow. 142, 143. (c) lb. 479. d4 56 TRUSTEES UNCONTEOLLABLE. COSTS. [CH. 1. S. V. by sale to the husband, they cannot make a pretended sale with a view to raise money and lend it to him {d). 40. Trustees of such a power, acting bond fide, 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 (e) ; neither can they be compelled to adopt a contract for sale by the tenant for life {/). They should not, under the usual power, which provides for a rein- vestment, sell the estate for the mere purpose of converting it into money (//) ; and if they sell the estate, they must sell the standing » tunber with it, although the tenant for life is unimpeachable of waste (A). They may sell the estate to the tenant for life himself, even where liis consent is requu'ed to the sale (i). 41. If the tenant for life sell with the approbation of the trustees, and invest the money in the purchase of another estate in his own name, they wiU have a lien on the new estate for the amount of the purchase-money of the old one (Ji). 42. 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 (/). 43. If trustees execute a conveyance, and sign the receipt, and leave the deed with their attorney, who obtains the purchase-money, they will be responsible for any misapplication by him {ni). Trustees will be answerable for costs in a suit if the decision be against them, just as if they were selling their own property, as between them and the vendor {n) ; 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 cestuis que trust. 44. The Court has authorised trustees for sale with a direction not to postpone the sale beyond a period limited, to enlarge the tune for the benefit of all parties (o). 45. Wliere there was a power of sale with the consent of the tenants for life (husband and wife), and the receipt of the trustee was to be a sufficient discharge, a contract of sale by the husband upon very imusual terms, followed by a conveyance by the trustee with a receipt for the purchase-money, although she received no part of it, but had a bond of indemnity from the husband tenant for life, (^il) Robinson r. Briggs, 1 Sma.&Gif. 188, {h) Price v. Blakemore, 6 Bea. u07. (e) 2 Sugd. Pow. 486. {I) Mortlock i;. Butler, lOVes. 292^ Shan- (/) Thomas v. Bering, 1 Ke. 729. non v. Bradsti-eet, 1 Sell. & Lef. 52. [g) 2 Sugd. Pow. 487; MarshaU v. Slad- (w) Ghost v. WaUer, 9 Bea. 497. den, 4 De Ge. & Sma. 468. (w) Edwai-ds v. Harvey, Coo. 40 ; post, (h) 2 Sugd. Pow. 488. ch. 17, s. 2. (i) 11/. 492. (o) Cuff v. Hall, i Jm-., N. S., 972. CH. 2.] OF SALES TO EAILWAY COMrANIES. 57 who received it at various times and misapplied it, was held to be a valid payment of the money, for the purchaser had obeyed the direction of the trustee to pay it to another person, and thereby made a payment of it to the trustee himself, and was exonerated from the misapplication of it, as the purchaser had not notice that the person to whom lie was directed to pay it was about to commit a breach of trust in such a way as to make her a party to the wrong- ful act (]j). {}}) Hope V. LidUeli, 21 Bea. 183 ; consider the case. CHAPTER 11. OF SALES TO RAILWAY COMPANIES. 10. 11. 12. 13. 14. Railways Clauses Consolidation Act; Lands Clauses Consolidation Act. Powers to jiurchase. Purchases by private contract. Price for land or for not opposing. Company hound hy contract of pro- moters : iilti'a vires doctrine. Purchase of additional land by private contract. Sales by compulsion : price : mines. Notice a contract as between vendor and purchaser : second notice ; spe- cific performance. Hilly. Great Northern Railway Coni- l^any. Effect of notice : quantity of land ; price. Company must apply for abstract. How purchase-money is to be j)aid. Conveyance after deposit of price. Refusal to accei)t the money, or to con- 15. IG. 17. 18. 19. 20. 21. 22. 23. 24. vey, orioant of title, &;c. : a2)plication for the money. Vendo?''s covenants for title. Whei'e the sale converts the estate into personalty. WItere the Comjmny may enter : effect of entry : deposit. Entry before or after the prescribed time. Remedies against Company : inanda- ■mus : injunction. Enactments as to costs. Decisions thereon. Costs of conveyance from infant heir or devisee. Entry to nuike spoil banks, S^-c. : Com- jmny compellable to jnirchase. Where interest payable by Company : loss by banliers. Purchaser from Company subject to a condition. 1. I propose to state concisely the law so far only as it jilaces a company and an owner of land in the relations of vendor and pur- chaser (I). The special rights of every company, of course, dejoend on their own Act of Parliament; but as to railways authorised by Acts passed after the 8 May 1845, the provisions of " The Railways Clauses Consolidation Act, 1845," form part of their Acts, unless otherwise enacted («). " The Lands Clauses Consolidation Act, (a) 8 Vict. c. 20, s. 1-5 as to joint-stock companies, 18 Vict. c. 16. (I) The powers to take laud are fully and ably discussed in Hodges's Law of Railways. 58 rURCHASE BY PRIVATE CONTRACT. [CII. 2. 1845/' (b) applies to every undertaking authorised by any later Act for the purchase or taking of lands for such undertaking, except so far as they shall be expressly varied or excepted. 2. The company may agree Avith the owners, and with parties em- powered to sell, for the purchase of messuages, lands, tenements, and hereditaments of any tenure (I) for a money consideration (c) ; but no party is compellable to sell a part of any house, building, or manu- factory if he be able and willing to sell the whole (d). The contract where it only requires signature may be signed by any two directors ; and it may, in like manner, be varied or discharged (e), and the pro- moters may bind themselves by the acts of their agents. And general powers are given to parties under disabilities to sell and convey to the company (/) ; and special provision is made as to the mode of ascer- taining the amount of the consideration where the sellers are under a disability, in which case the purchase-money is to be deposited in the bank ( r/). The price is always to be a gross sum, unless the seller is seised in fee, when the land may l^e sold upon a chief rent (h). A tenant for life may, under the Act, contract to sell, and may stipulate for 5 1. per cent, for himself until the time fixed for payment of the price (i). 3. The Act of Parliament does not interfere with private contracts where the parties are competent to contract. The company having a capacity to purchase, may obtain the land l^y private contract ; and if they do, the contract may be enforced against them in equity, and the Court will secure to the vendor any easements he contracted for (/e). But if the agreement be waived by mutual consent, and the company resort to the powers of the Act, the owner may be left to (i) 8 Vict. c. 18 (8 May 1845); 15 & 16 (/) S. 7, 8. Inalienable estates tail are Vict. c. 79, s. 22 ; for Scotland, 8 Vict. wtliin the 7th section ; but the Act does c. 19. not bind the Crown ; in re Cuckfield BiU'lal (c) 8 Vict. c. 18, s. 3. 6. Board, 19 Bea. lo3. (cl) 8 Vict. c. 18, s. 92, Reg. v. London & (rj) S. 9. Greenwich Ry. Co., 3 Q. B. 166 ; AValkcr v. (h) S. 10, 11. London & Blackwall Ry. Co., ib. 744 ; Spai'- (j) In re Hungerford, 1 Jur. N. S. 845, row r. Oxford, &c. Ry. Co., 9 Ha. 436, 2 De 1 Kay & Jo., 413. Ge. Mac. & Gor. 94 ; Pinehin v. London & (7^) Sandei-son v. Cockermouth, &c. Ry. Blackwall Ry. Co., 2 Eq. R. 1172, 3 Eq. R, Co. 11 Bea. 497 ; 2 Hall & Tw. 327 ; see 433, 1 Kay & Jo. 34; Spackman v. Great Morgan v. Milman, 10 Ha. 279; 3 De Ge. Western Ry. Co., 1 Jur. N, S. 130. Mac. & Gor. 24. (e) 8 Vict. c. 16, s, 97. (I) The right of enti-y on lands is regulated by s. 84-91 of 8 Vict. c. 18; see 8 Vict. c. 20, g. 30-44 et inf. ; Copyholds, by s. 95-98 of 8 Vict. c. 18 ; see Ecclesiastical Commissioners V. London & Soutli-Western Ry. Co., 10 C. B. 703; Common Lands by s. 99-107; Mort- gages by s. 108-114; see RaiJdn v. East & West India Dock Ry. Co., 12 Bea. 298; Rent-charges by s. 115-118; Leases by s. 119-122; see Reg. ?;. Manchester, &c. Ry. Co., 4 E. & B. 88, and Intersected Lands by s. 93 & 94. The right of pre-emption of super- fluous lands is in the seller, s. 129-131, subject to wliich they may be sold generally, or Mitliin a time limited will revest in the owners, s. 127. In conveyances by the promoters, the word "grant" is to operate as limited covenants for title, s. 132. CH. 2. J COMPANY BOUND BY CONTRACT, &C. 59 his legal remedies under the Act(Z). Where after an entry by a railway company, and a subsequent sale to them by private contract, and payment into court of the purchase-money, under the 69th sec- tion of the Lands Clauses Act, it appeared that there was a want of title to a material part of the estate, the Court, in the absence of the claimant of the defective portion, apportioned the consideration, so as to give to the sellers the benefit of the purchase-money representing the part to which a title could be made (m). 4. The price agreed to be paid by promoters to a landowner for his land, or as a compensation in consideration of his withdrawing his opposition to their Bill, cannot, after the Act has passed, be objected to by the company as exorbitant or illegal on that account ; for each landowner may lawfully make the best agreement he can for himself with any company of proprietors, just in the same manner as if a pri- vate individual for any purpose of his own were negotiating to pur- chase the land of the same persons (w). It is not illegal for a peer to agree to withdraw his opposition to a Bill in consideration of a sum to be paid to him as compensation for damage to his estate in case the Bill slioidd pass (o). 5. After the Bill has passed, the company, according to grave autho- rities, stand in the place of the projectors, and they are bound by the arrangements entered into by the projectors ; and therefore an agree- ment by projectors with a landowner to purchase his estate if the Bill pass, would be enforced against the company (p) ; and they cannot object that they have allowed tlie time limited by the Act to expire ; but the seller should file his bill before the time has expired (q). But it has been held that the company when formed arc not bound by the agreement of the projectors, although they have had the benefit of the withdrawal by the owner of his opposition, unless they adopt and (Z) Adams v. Loudon & Blackwall Ry. Lindseyv. Great Northern Ry. Co., 10 Ha. Co., 6 Railw. Cas. 271 ; 2 Mac. «fe Gor. 6G4. W^liat may amount to a fraud on the 118; s. 85 & 68 of 8 Vict. c. 18. Legislature or on the other landowners, see (m) In re Perk's estate, 1 Sma. & Gif. Lord Howdenr. Simpson, ?<6tsi/j9. ; Slu-ews- 545 ; consider the case. bury, &c. Ry. Co. v. London and Nortli- (n) Lord Petre u. Eastern Counties Ry. Western Ry, Co., 17 Q. B. 652, 4 De Ge. Co., 1 Railw. Cas. 462; Stanley v. Chester Mac. & Gor. 115. & Birkenhead Ry. Co., 3 My. & Cra. 773; (2') Edwards v. Grand Junction Ry. Co., Hawkes v. Eastern Counties Ry. Co., 3 De 1 My. & Cra. 650. Ge. & Sma. 743, 1 De Ge. Mac. & Gor. 737 ; (q) Hawkes v. Eastern Counties Ry. Co., see Gage v. Newmarket Ry. Co., 18 Q. B. 3 De Ge. Sc Sma. 743; 1 De Ge. Mac, & 457. Gor. 737; 5 Clark, 331 ; Shrewsbury, &c. (o) Simpson v. Lord Howden, 1 Kee. Ry. Co. v. London & North-AVestern Ry. 683 ; 3 My. & Cra. 97 ; 10 Ad. & El. 793, Co., 2 Mac. & Gor. 324, 22 L. J., N. S., 682, 807; 9Cla.& Fin.61. Sec Vauxhall Bridge 3 Mac. & Gor. 70; 17 Q. B. 652; 4 DeGe. Co. V. Earl Spencer, 2 Mad. 350, Jac. 64; Mac. & Gor. 115; Lindsey, Ld. v. Great Edwards v. Grand Junction Ry. Co., 7 Sim. Northern Ry. Co., 10 Ha, 664 ; Bryson v. 337, 1 My. & Cra. 650 ; Doo v. London & Warwick, &c. Can. Co, 1 Sma, & Gif. 447 ; Croydon Ry. Co., 1 Railw. Cas., 257; 4 De Ge. Mac, & Gor. 711. 60 COMPANY BOUND BY CONTRACT, kc. [CH. 2. take the benefit of the contract (r). And the authority of the cases decided by Lord Cottenham has recently been questioned in the House of Lords, although those cases were not overruled, as they did not govern the case before the House, for all the contracts which he held to be binding on the company were contracts to do tilings war- ranted by the terms of the incorporation. But, as in the case before the House, the act to be done was not an act for the effecting of which the company when established could lawfully devote its funds, an agreement by a committee of management on behalf of the projected company was held to be ultra vires, and not binding on the company after the Act passed (s). In general, a company cannot be bound where the act of the directors is ultra vires {t). There exists a great difference of opinion as to the doctrine of ultra vires ; but the decision of the House of Lords in the case of Hawkes v. the Eastern Counties Railway Company {u), where the contract was by the company, will probably tend to keep it within very narrow limits. But where the agreement before the act is contingent and dependent upon the com- pany requiring or taking the land, and after the act they abandon their scheme and do not want the land, a specific performance will not be enforced (a,) (I). On the appeal in Hawkes v. Eastern Counties Comjiany, Lord Campbell, admitting the rights of individuals so to bind themselves, said that the directors of a railway company have only a limited authority to negotiate for the purchase of land, and he rather thought that they would be considered as having exceeded that authority to the knowledge of the vendor if they agreed to accept a defective title, thereby subjecting the railway company to the risk of being interrupted by an ejectment from part of the land over which the line runs. He must likewise doubt as to the effect to be given in (?•) Preston r. Liverpool, &c., Ry. Co., 1 Mac. & Gor. 750; Mayor of Norwich v. f~^tC* a FicQ 6 Ha. 504. See Adams v. London and (n)s' 58-68' Blackwall Ry. Co., 2 Mac. & Gor. 118; / -, g' 64_(37 Hyde v. Edwards, 12 Bea. 160 ; South- Eastern Ry. Co. v. Knott, 10 Ha. 122 • («) Stamps V. Birmmgham, &c., Ry. Co., ^ td- ■ i o -r, r< -, c^ ^^' '■ b } > J ) jngg ^_ Bn-mingham, &c. Ry. Co., 1 Sma. & 7Ha.251; 2Plnl.G73;seel7Bea.81,82; ^.^^3,,. 3 D^ Ge. Mac. & Gor. 658. See Simpson V. Lancaster, &c. Ry. Co., 15 Sim. ^^^^^.^^ ^_ ^^^^.^ ^^_ ^^ ^^^^ 2 Ir. C. R. ^^^- 260; 1 Kay. & Jo. 34. {q) Rex V. Hungerford Market Co., 4 (?<) Webb v. Direct London, &c. Ry. Co., Bar. & Ad. 327 ; Spai-row v. Oxford, &c., 9 Ha. 129. Vide inf. (I) A specific performance of an agreement to make a railway would not be enforced, the remedy is at law, Heathcote v. North Stafford Ry. Co., 20 L. J., N. S., 82 ; South Wales Ry. Co. v. Wythes, 1 Kay & Jo., 186; 3 Eq. R. 153. en. 2.] NOTICE AMOUNTS TO A CONTRACT. 63 compulsory purchase (.r). The right however to a specific perform- ance was lately denied by V. C. Kindersley, although it was not necessary to decide the point {y), and a specific performance was re- fused in a late case by the Master of the Rolls (z). But it is now a settled point, that a sale to a railway company of land for a pro- posed railway may be enforced in equity, like any other contract for sale of land {a), even where they have abandoned the line, and they have allowed the time to expire ; and it has been held that after a notice by the company to purchase, an agreement prepared by their agents and signed by the seller fixing the price, bound the company to specifically perform the agreement, although not under their corporate seal (h). 9. In a recent case (c), where notice was given by a company to a person who was supposed to be a joint lessee, but who was in fact an equitable annuitant, and the company having obtained a legal prior title from a first incumbrancer, under a power of sale, refused to pay the annuitant the value of his annuity, the Court upon a bill filed by the latter compelled the payment sought for. The view of the Vice- Chancellor appears to be, that it is contrary to equity to allow a railway company to deal with a first incum- brancer in such a manner as to defeat the rights of other persons. This is a point of great importance, but the decree was reversed by the appellant court upon the frame of the bill, without any opinion being pronounced on the merits {d), and without prejudice to the filing of a new bill, a demurrer to which, when filed, the Vicc-Chan- cellor allowed. He expressed his opinion that although notice be given by a company to an owner in fee, yet specific performance could not be granted, but the parties must be left to their legal remedies under the Acts of Parliament. In the case before him, he considered that the company had acquired a good title under the power of sale in the prior security. This latter appears to be tlie true view of the case. The power to grant a specific performance we have seen is not now open to question. But no doubt where, as in the. principal case, one person can make a good title against all other claimants, whose rights will then attach on the purchase-money, a notice to such other persons cannot give a right to any of them to file such a bill as Hill the puisne incumbrancer filed against this company. {x) Birmingham, &c. Ey. Co. v. Reg., v. Worcester Improvement Commissioners, 15 Q. B. G47, n. ; Marquis of Salisbury 1 Jur., N. S., 973. V. Great Northern Ry. Co., 17 Q. B. (6) Smith ?'. Dublin & Bray Ry. Co., 3 840. Ir. C. R. 223. (2/) Hill V. Great Northern Ry. Co., 1 (c) Hill v. Great Northern Ry. Co., 18 Jur. N. S. 102. Jur. 116; 23 L. J., N. S., 20; Ranken v. (z) Gooday v. Colchester Ry. Co., 17 East and West India Docks, &c. Ry. Co. Bea. 132. 12 Bea. 298. (a) Hawkes v. Eastern Counties Ry. Co., (rf) 5 De Ge. Mac. & Gor. GG ; 2 Eq. Rep. 1 DeGo.Mac.&Gor.737,oClark,331; Nash 10G9; 18 Jur. 685. 64 HOW PURCHASE-MONEY IS TO BE PAID. [CH. 2. 10. The notice determines what land is to be taken (e), but notice to take part will not compel the company to take the whole, although the owner has power to refuse to sell less than the whole (/). If after the notice the price is not ascertained, the powers of the Act must be called into action to fix it (c/). 11. Although the company have power to purchase lands, and to deposit the iiurchase-money in the bank if the owner fail to make out a title, and thereupon the interest in the lands is to vest in the company, yet they cannot avail themselves of the power to deposit the money without having previously applied to the owner for an abstract of title, who is not bound to send it to them, without its having been asked for (A). The costs of the abstract fall on the com- pany (i). Where an early Railway Act directed that all contracts, sales, and conveyances should be made at the expense of the com- pany, this was held to include the costs of making out the title. The Court said that in an ordinary case between vendor and purchaser, when it is part of the contract that " the costs of the contract " should be paid by the purchaser, that stipulation would entitle the vendor to costs of this description (j). 12. The purchase-money coming to parties under disabilities, if amounting to 200/., is to be paid into the bank (I), and to be applied in redemption of the land tax {k), or in discharge of incumbrances (Z), or in the purchase of other lands to be settled to the old uses (m), or in specified cases in building (7z), or in payment to any party be- coming absolutely entitled to such money, and an interim invest- ment (o) of the money may be made, and the interest paid to the party who would have been entitled to the rents (p). If the pur- (e) Adams v. Blackwall Ry. Co., 2 Mac. & to coi-poration lands, ex pte. Corporation of Gor. 118; Stone v. Commercial Ry. Co., 4 Cambridge, 6 Ila. SO; and as to a rector, My. & Cra. 122. See Bm-kinshaw v. Bir- ex pte. Lockwood, 14 Bea. 158, 159 n. mingham, &c. Ry. Co., 5 Ex. 475, et sup. (»i) See ])L2\,i7)f. As to costs of tenant where the company has entered under s. 85, for life, see ex pte. Pasmore, ubi sup.; and Doe r. North Stafford, &c. Ey. Co., 16 Q. B. as to costs of trustees, ex pte. Longfield, 526 ; Doe v. Leeds, &c. Ry. Co., ib, 94G. 1 Yo. & Col. 79 ; ex pfe. Towgood, id. 588. (/) Reg. V. South-Western Ry. Co., 12 (n) Ex pte. Shaw, 4 Yo. & Col. 50G. Q. B. 775. See Schwinge v. London and (o) Ex pte. Eton Col. 20 L. J., N. S., 1 ; Blackwall Ry. Co., 3 Sma. & Gii. 30. 3 Railw. Cas. 271. As to investments on ((/) Walker v. Eastern Counties Ry. Co., mortgage, see ex pte. Fi-ancklyn, 1 De Ge. 6 Ha. 594, & Sma. 528 ; Bany v. Man-iott, 2 De Ge. & (/() Doe V. Manchester, Sec. Ry. Co, 2 Sma. 491. Car. & Ku-. 1G2; 14 Mee. & Wei. 687. (jj) As to ecclesiastical coi'porations, in re (i) 8 Vict. c. 18, s. 82. Archbishop of Canterbmy, 2 De Ge. & Sma. (j) Ex pte. Addies' Charity, 3 Ila. 22. 3G5; in re Bucks Ry. Co., 5 Railw. Cas. (k) Ex pte. Northwick, 1 Yo. & Col. luG. 702 ; and as to charity trustees, in re Col- {l) See ex pte. Pasmore, 1 Yo. & Col. 78; lins's Charity, 20 L. J., N. S., 1G8. ex pte. Wilkinson, 3 De Ge. & Sma. 633. As (I) A company, imder pressure, paid the money to a corporation instead of into the bank, and the latter was ordered, on motion, to pay it into coiu't. London and North- western Ry. Co. i: Corporation of Lancastei", 15 Bea. 22. CII. 2.] CONVEYANCE AFTER DEPOSIT OF PlilCE. 65 chase-money do not exceed 200/., but exceeds 20/., it may be paid into the bank or to two trustees upon the like trusts, and if the money do not exceed 20 /. {q), it is to belong to the party entitled to the rents (r). 13. When the money is deposited, the owner is to convey to the promoters, and in default, or if he fail to adduce a good title to their satisfaction, the promoters themselves may, by a simple declaration, vest the property in themselves {s) ; and this extends to mortgages (t), and to rentcharges, and the like (?^). Where the price has been assessed by a jury, the company must apply for a title, and cannot, as we have seen, at once pay the money into the bank. 14. If the OAvner refuse to accept the purchase-money, or neglect or fail to make out a title, or if he refuse to convey, or be absent, &c., the money is to be paid into the bank, subject to the control of the Court of Chancery (y); and the Court is authorised to apply the money according to the, rights of the parties (.r), but has no jiu'is- diction as to interest (y) ; and the party in possession is to be deemed the owner until the contrary be shown {z), and he is entitled to an order on his affidavit ; but that will not be dispensed with, although the company have accepted the title and consent (a). When the application is for the dividends only, the affidavit of his solicitor will be received {h). A party entitled to a share may apply for it without giving notice to his co-proprietors (c). Tenant for life need not serve those in remainder; but he must serve his own incumbrancers, and the company arc not to pay their costs of attendance {(I). A transfer of the fund to an administration suit is, of course, as to costs, a pay- ment out of court, Avithin the 80th section (e). The whole fund, the price of a leasehold for lives, wdiich had dropped, was paid to the tenant for life, although the trustees had neglected to renew for a life, in lieu of the testator's, as directed by his will ; but it was without preju- dice to any question as to the renewal (/). Forms of conveyance are added to the Act ; but it is at the option of the purchasers to adopt them, or any other foi'm they tltinkjit. All conveyances made according {q) III re Ld. Egremont, 12 Jur. G18 ; ex Grainge, 3 Yo. & Col. 62, and cases in the pte. BaiTctt, 15 Jur. Oj ex pte. Rector of note, p. 6G. Little Steiping, 5 Railvv. Cas. 207. {b) Ex pte. Lady Braye, 16 Jur. 1129; (?•) 8 Vict. c. 18, s. 69-75. 22 L. J., N. S., 285. (,«) S. 75. (c) In re Midland Counties Ry. Co., 11 (0 S. 109-111. Jur. 1095. As to the costs see Melling r. (u) S. 117. Bird, 22 L. J., N. S., 599. (f) S. 76, 77. (d) Ex pte. Smith, 6 Rail. Cas., 150^ (.r) S. 78. one order may be made for several pur- (y) Crystal Palace Ry. Co. v. Divers, 1 poses; Ex pte. Metherdl, 20 L. J., N. S.,- Jur., N. S., 995. 621 . See In re Martin, 22 L. J., N. S., 248. {z) S. 79; see ex pte. Freemen, &c. of {e) Dinning v. Henderson, 2 De Ge. & Sunderland, 1 Drew. 184. Sma. 485. («) Ex pte. Holllck, 16 L. J., N. S., 71 ; (/) In re Beaufoy's estate, 1 Sma. &Gif. Ex pte. Shears, 2 Yo. & Jcr. 493; Ex pte. 20. See s. 78, 8 Vict. c. 18. 66 COVENANTS FOE TITLE. CONVEllSION OF ESTATE. [C'll. 2. to the forms in the schedule, or as near thereto as the cirtiimstances of the case villi admit [wliicli is not very consistent witli the authority to adopt any other Ibrni they think fit], are made effectual to vest the lands thereby conveyed in the promoters of the undertaking, and arc to operate to merge all terms of years attendant by express declaration or by construction of law on the estate or interest so thereby con- veyed, and to bar and destroy all such estates tail, and all other estates, rights, titles, remainders, reversions, limitations, trusts, and interests of and in the lands comprised in such conveyances, which shall have been purchased or compensated for by the consideration therein mentioned ; 1)ut altliough terms of years are thereby merged, they are, in equity, to afford the same protection as if they had been kept on foot and assigned to a trustee for the promoters of the under- taking, to attend the inheritance {fj) (I). 15. Where the sale is by compulsion, the vendee cannot require any covenants for title ; but where the sale is by agreement, the vendor usually enters into the common covenants (/<), which covenants would run witli the land (/). A^y_ 16' Wliere a person is competent to sell, and a binding contract, or ^^^ / what is tantamount to it, is made under an act giving a company power to take land, the landowner's interest is converted into per- sonalty, and will go to his personal representative, notwithstanding a devise by him before the sale of the estate (/t) ; but where the statute does not alter the nature of the estate, and the land is in settlement and is taken under the powers of the Act, there is no conversion, and the money is impressed with the character of real estate (/). So, in the like case, Avhere the person is seised in fee, but is incapacitated to contract, e. g. by mental incapacity, the nature of the property is not changed {m). But where, the landowner being in a state of mental incapacity, a railway company took the land, and paid the money under the powers of the 8 Vict. c. 18, Lord Cranworth, V.C., held that the property was converted, and the money was personal estate {ii). This decision is ojiposed to the spirit of the Act, and a liberal inter- pretation of its provisions would, it should seem, enable the Court to deal Avith the money as real estate. If the company could not legally take the land, there could be no conversion ; but still the real repre- {(j) 8 Vict. c. 18, s. 81. (I) In ?■) (I) ; and the company will be compelled to do all acts necessary to the completion of the contract ; e. (/, to summon a jury and procure an assessment of the price (c), or to take up an award of the price (r/). But a mandamus will not issue where the time has expired so that the company has not power to perform the works (e), or where on other grounds the company is not able lawfully to exercise the compulsory powers (/). A person claiming adversely to the landowner cannot obtain an injunction against the company to prevent them from keeping possession or interfering with the land (^). Where a company having taken land has not complied with the requi- sitions of the Act, yet equity will not restrain the company by injunc- tion if justice can be done to the landowner by securing to him the price to be paid (h). ' 20. Costs are thus provided for : In all cases of monies deposited in the bank, except where it was by reason of the imlful refusal of the party to receive it or to convey the lands, or of the xmlful neglect of the party to make out a good title, the Court of Chancery may order the promoters to pay, including all reasonable charges and expenses incident thereto, the costs of the purchase, or incurred in consequence thereof (not otherwise provided for), and the costs of the investment in government or real securities, and of the reinvestment thereof in the purchase of other lands, and the costs of obtaining orders for those (a) Marquis of Salisbury r. Great Northern Co., 1 E. & B. 253; see Reg, v. London Ry. Co., 17 Q. B. 840, and ;Yorth-Western Ry. Co., 16 Q. B, 864 ; {h) Reg. V. Birmingham, &c. Ry. Co., 15 Reg. v. York, &c. Ry. Co., id. 886, See the Q. B. G34. 647 n. ; Reg. r, Irish Soutli- note below. Eastern Ry. Co., 1 Ir. C, L. R. 119. {g) Webster v. South-Eastcrn Ry. Co., (c) Reg. V. Birmingham, &c, Ry. Co., I Sim., N. S., 272. xihi sup. ; In re South Yorkshire, &c. Ry. {h) Jones v. Great Western Ry, Co., 1 Co., 14 ,Tur, 1093, Rail. Cas. 684 ; Attorney-general v. Eastern {d) Reg. V. South Devon Ry. Co., 15 Counties Ry, Co., 3 Rail. Cas.337; Lang- Ji"'- '1*j4, ford V. Brighton, &c. Ry, Co., 4 Rail. Cas, (e) Reg. V. London and North-Westeru 69 ; and see The Queen v. London and Ry, Co,, 1 E. & B. 199, n. North-Western Ry. Co,, 3 Q. B. 443, and (/) Re?- V- Ambersgatc, &c. Ry. Co., 1 the cases there cited. E. & B. 372 ; Reg, v. Great Western Ry, (I) Pel-missive power to railway companies to make a railway cannot be deemed com- pulsory. Reg, V. York and North Midland Ry. Co., 1 E. & B. 178. 858 ; Reg. v. Lanca- shire and Yorkshire Ry, Co., id. 228. 873 n. ; K! Q, B. 907 n. ; Anstruther v. Kast of Fife Ry. Co., 1 Macq. H. of L. Rep. 98 ; Reg. v. Great Western By. Co., 1 E. & B, 253. 874 ; Reg. V. Ambcrsgale, &c. Ry. Co., 1 E. & B, 372. en. 2.] DECISIONS AS TO COSTS. 69 purposes, and of orders for payment of the dividends and interest of the securities, and for payment out of court of the principal or of tlie securities, and of all proceedings relating thereto (/), except those occasioned by litigation between adverse claimants (A). Provided that the costs of one application only for reinvestment in land arc to be allowed, unless it appear to the Court for the benefit of the parties interested in the money, that the purchases should be in different sums and at different times, in which case it is lawful, if the Court think fit, to order the costs of any such investments to be paid by the promo- ters (/). The costs of all conveyances are to be borne by the promoters, and are to Include all charges and expenses incurred, as well by the seller as by the purchaser, of all conveyances of any lauds, and of any outstanding terms or Interests (m), and of deducing, evidencing, and verifying the title, and of making out and furnishing such abstracts and attested copies as the promoters may require, and all other rea- sonable expenses incident to the Investigation, deduction, and verifica- tion of such title {n), which costs may be submitted to taxation (o). Even where the money is paid out of Court, the costs of the application must be included (p.) 21. Wilful refusal or neglect in the exception means a refusal or neglect from mere will or caprice (q), but it is otherwise where the neglect arises from necessity, c. g. in consequence of judgment debts of larger amount than the purchase-money (^r). The costs of making out a title include costs of a petition and reference In a suit to ascertain the propriety of the sale (s), or of a reference in lunacy (t), but not of abortive references (^ii), nor more than one set of costs, although there are mortgagees (.r) ; but the costs of two petitions by co-heirs, where properly served, will be included ( ?/). The costs of investment include broker's commission {z). The costs of re-investing in other lands in- cludes the enfranchisement of copyholds (a) settled to the same uses, and the redemption of land tax is deemed a re-Investment (/>) ; but the costs of altering buildings on other parts of the estate, or other (0 Re Ellison's estate; 1 Jur., N. S., (r) Crystal Palace Ry. Co. v. Divers, 1155 J 2 Jur., N. S., 293. 1 Jur., N. S., 995. (A) See as to such costs Ex pte. Collins, (s) Picard v. Mitchell, 12 Bea. 480. 19 L. J. 244 ; Ex pte. Palmer, 13 Jur. 781 ; (t) In re Taylor, 1 Mac. & Cor. 210 ; In Hore V. Smith, 14 Jur. 55; re Longworth's re Walker, 15 Jur. IGl. estate, 2 Eq. R. 776, 1 Kay & Jo. 1 ; Tn re (u) Ex pte. Stevens, 15 Jur. 243. Spooner's estate, id. 220 ; In re Hungerford, (a.) In re \^'obster, 2 Sma. & Cif. App. fi. id. 413. See In re Naish, 1 Jur., N. S., 1082. (0 8 Vict. c. 18, s. 80. See Ex pte. iy) //i re Spooner's est. 1 Kay & Jo. 220. Great Northern Ry. Co. 10 Sim. 1G9. (=) In re Trinity House, 3 Ila. 95 ; In re (m) FeofF. Addies' Charity, 3 Ha. 22. Braithwaite".s Trust, 17 Jur. 753. See Ex in) S. 82. (o) S. 83. pte. Harborough, 23 L. J. 2G0. (p) Toft's estate, 26 L. T. 290. (") In re Cheshunt College, 1 Jur,, N. S., Iq) Ex pte. Bradshaw, 16 Sim. 174; In 995; Dixon v. Jackson, 27 L. T. 53. re Windsor, &c. Railway Act, 12 Bea. 522. {b) In re London & Brighton Ry. Co., 18 See Elliott v. Turner, 13 Sim. 477. Bea. 608; £.i-2»^c.Beddoes,2Sma.&Gif.4G0. E 3 70 DECISIONS AS TO COSTS. [CH. 2. collateral matters, are not payable by the company (c). An equity of redemption cannot be purchased (d) ; nor can leaseholds, or perhaps coi)yholds, with the piircliase-nioney of freeholds (e) ; but the purchase of beneficial leases in other lands settled to the same uses would be allowed, treating them as an incvimbrance ; but the costs of the investment would not be thrown on the company (/). The price of leaseholds for years may, however, be invested in copyholds of in- heritance (f/). Before a re-investment the title, of course, must be approved (I). Costs of re-investment do not in similar cases include the costs of the payment of the dividends (A). The company must pay the costs of a petition for a temporary investment in the funds, although a contract for land has been entered into (z). The costs of repeated investments are allowed to the sellers (k), but where the proposed investment is not approved of, the petitioner will have no costs, and the company will be paid their costs out of the fund in Court (Z) ; and if more money be laid out, the costs occasioned by the excess will not be thrown on the company (m). Costs of a second petition occasioned by the purchase of an estate sold by the Court must be borne by the company (ii) ; but not the costs of a negotia- tion for a purchase which went off, or of a double investigation of title (o) ; nor can tenant in tail, becoming entitled to the money (p), throw on the company his costs of the petition, &c. for obtaining the money out of court {(j). But where successive incumbents of a living are entitled to the interest of stock, the produce of land sold, the company must pay the costs of enabling every new incumbent to receive the dividends (r). If a petition is rendered necessary by the negligence of both parties in not providing for the case by a prior order, each will be left to pay his own costs (5). Under sections 34 (c) In re Bucks, &c. Ry. Co.,14 Jur.1065. 163 ; Ex pte. Bishop of Durham, 3 Yo, & {d) Ex pte. Craven, 17 L. J., N. S., 215. Col. 690. ; In re Sti-achan's estate, 9 Ha. 185. (e) In re Lancaster & York Ry. Co., 23 (l) Re Hardy's estate, 2 Eq. R. 634. L. J . 815. (m) Ex pte. Hodge, 16 Sim. 159 ; Ex pte. (/) Ex pte. Lord Hardwicke, 17 L. J. Newton, 4 Yo. & Col. 518; Jw re Braumer's 422; in re Manchester, &c. Ry. Co., 21 estate, 1 4 Jur. 236 ; see £a; ^te. Rector of South Collingham, 'id. 1 2. As to an allotment of part of the money to a tenant for life, &c, as compensation, sec s. 73. 78, 8 Vict. c. 18. CH. 2.] EXPENSE OF CONVEYANCE. 71 and 78, the Court may, at its discretion, order the costs of an arbitra- tion of a tenant for life to be paid out of the purchase-money, jilthough he refused a larger sum than was awarded {t). Where the matter has been referred to arbitration, the costs may be ascertained subsequently to the award (ri). In the case of a charity estate, the petition for re-investing the money does not require the leave of the Charity Commissioners under 16 & 17 Vict. c. 137 {.v). 22. Where, in an Act passed before the general Acts already referred to, the expenses of conveyances were to be borne by the company, they were held not to be liable to the costs of a suit to obtain a conveyance from the infant heir of the seller who had died intestate after the contract ( y), for he ought to have devised the land, so as to render such a suit unnecessary. This was followed in a case since the passing of the general Acts, where, at the time of the con- tract, the property Avas devised in strict settlement by his will ; and the devise having taken effect before the conveyance, it was held that the devisees were to pay the costs of the suit rendered necessary by the devise out of the purchase-money, the company paying the costs of the conveyance and of making out the title (r). And in another case since the general Acts, where at the time of the contract for a copyhold, the legal estate was in an infant as a trustee for the seller, the costs of proceedings to obtain a conveyance from the infant were held not to be costs thrown on the company by the 82d section («). Yet in a case where the seller had devised the estate In strict settlement before the contract and then died, and an infant devisee became entitled at law, the company appear to have been ordered to pay all the costs of the infant devisee, occasioned by the devise, except the costs of adverse litigation (b). Where a contract was made for re-investment of purchase-money, and the vendor died, leaving an infant heir, and a bill was rendered necessary against the heir, this was deemed an adverse litigation, to the costs of which the company were not liable, but they had to pay the costs of a second petition, rendered necessary by the event (c). Upon a contract for sale lietwcen individuals, where there has been no default on either side, the death of the vendor recently after the sale, although it render a suit necessary, would not throw the costs on his estate, but each party will have io y/ff^Jf(S^/ bear his own costs {cl). If, however, he place the estate in strict {t) In re Aubrey's est. 17 Jur. 874. {b) In re Manchester and Southport Ry. (m) Gould V. Stafford Ry. Co., 5 Ex. 214. Co., 10 Boa. 365 ; see the general terms of {x) Jw re Brighton & South Coast Ry. the order; see Midland Ry. Co. zi. Rice, 2 Act, 23 L. T. 3G; in re Lister's Hospital. Eq. R. 1100, v/here the heir had his costs {y) Midland Counties Ry. Co. i>. West- out of the purchase-money up to the hearing, comb, 1 1 Sim. 57 ; see 2 Yo. & Col. C. C. 328. (c) Armitage v. Askham, Re Loudon and {z) Eastern Counties Ry. Co. v. Tuffnell, North-Western Ry. Co., 1 Jur., N. S., 227. 3 Rail. Ca. 133. {d) Hanson v. Lake, 2 Yo. & Col. C. C. {(i) Be South Wales Ry,Co.,14 Bea. 418. 328; Hinder r. Streeten, 10 Ha. 18. e4 72 OP SALES BY COURTS OF EQUITY. [CII. 3. S. I. settlement after his contract, by which a suit is rendered necessary, his estate must pay the costs of the suit (e). 23. Where a company enter upon lands for making spoil banks or side cuttings, or for obtaining materials, the owners may, during such possession, and before accepting compensation, compel the company to purchase the land, and the purchase-money should be ascertained and applied according to the directions of the Lands Clauses Consoli- dation Act (/). 24. If the company, in dealing with a landowner, almndon the course pointed out by the Lands Clauses Consolidation Act, they may render themselves liable to the payment of interest on the purchase-money {[/). Where the seller, after the contract, gave the company possession upon condition that the purchase-money was paid into his bankers' in the joint names of himself and the chairman, and the company was to pay interest until the time of completion, a loss by the failure of the bankers was held to fall on the seller (A). 25. A purchaser from a railway company of land under which a tunnel ran, subject to a condition that he was not to erect any new buildings, &c. but according to a specification approved in writing by the principal engineer, was enjoined, on the ground of the public safety, from proceeding with buildings which the resident engineer had verbally told him he might proceed with after he had sent in a speci- fication, but which had not been submitted to the principal engi- neer (/). A purchaser from a railway company, therefore, should strictly com})ly with any condition imposed upon him. (e) Worthamu.Ld. Dacrc,2Ka.&Jo.437. (h) Sir H. St. Paul v. Birmingham, &c. If) 8 Vict. c. 20, s. 42. 44. Ry. Co., 17 Jm-. 1 1 7G ; Lord Ward r. Oxford ig) Blountu. Great Southern and Western Ry. Co., 2 De Ge. Mae. & Gor. 750. Ry. Co. 2 Ir. C. R. 40; see Lewis r. South- {I) Attorney-general v. Briggs, 1 Jur., WQOtovn >Ry. Co., 10 Ha. 113. N. S., 1084. CHAPTER III. OF SALES UNDER THE AUTHORITY OF THE COURTS OF EQUITY (I). SECTION I. OF THE FROCEEDINGS FROM THE ADVERTISEMENTS TO THE CONVEYANCE. 1. Vomer to sell in snUs, 2. Power to sell in foreclosure suits. 3. Sale under direction of Judge. 4. Title to he first examined. 0. licserved bidding. 5. Charges fur abstracts, conditions, an- \ 10. Advertisements. swering gueries. I II. Direction for sale, Jioio carried out. C>. Opinion of conveyancing counsel. 7. Verification of conveyance. 8. Amount of deposit. (I) For the practice in Ireland, sec Purcli. 78. //^ ^i^c/- CH. 3. S. I.] FORECLOSURE SUITS. 73 1-2. 13. 14. 15. U>. 17. 18. 19. 20. •21. 23. 24. 25. 20. 27. 28. 29. 30. 31. 33. 35, 37, Particulars of sale. Compensation for misrepresentation. Appointment of auctioneer. Mortgagee not to conduct sale. How sale conducted. Best bidder. Deposit. Fraud by puffing. Verbal declarations by auctioneer. Substitution of another as pur- chaser. Resale at a profit. Proceedings after sale. Contract not complete till confirma- tion. IIoio report is confirmed. Loss by fire, &;c., in the interim. Proceedings where purchaser holds back. Uidding by insane person void. Proceedings at chambers. Payment of purchase-money and pos- session. Incumbrances, how paid ofi^. Possession from previous quarter day. Mortgagee's right when purcliaser. Purchaser's right to life annuity. 38. 30. 40. 41. 4-2. 43. 44. 45. 40. 47. 48. 50. 51. 52. 53. 55. 57. And to a life interest. Purchase of reversion fallen in. Purchaser's right to a colliery. Court alone gives possession. Preparation, S^'c. of conveyance. Objections to title. Equitable title. Purchaser cannot bring an action. Costs to purchaser where title had. Who is to pay them. Costs of reference of title. Delay in inaJdny out title. Death of purchaser before conveyance. Ttights of incumbrancers. Sale contrary to order void. Sale not within statute of frauds. Purchaser restrained froui waste. Indemnity against rent and covenants. Conveyance by incompetent, ^-c, per- sons. Improvements before sale confirmed. Decree a security to purchaser. Judgment creditors affected. Improper payments to tenants for life. Lord Bandon v. Bcehcr. Vans Agnew v. Stewart. 1. Where it shall appear necessary or expedient, the Court may direct the real estate, to which the suit relates, or any part thereof, to be sold for the purposes of the suit at any time after its institution, and any party to the suit in possession of such estate, or in receipt of the rents, is to be compelled to give up such possession or receipt to the purchaser, or such other person as the Court shall direct («), which only means that a sale may be directed at once, where befin-e it could only be done at the hearing, and does not alter the legal rights of any parties {h). 2. And the Court in any foreclosure suit is authorised, upon the request of the mortgagee or of any subsequent incumbrancer, or of the mortgagor, or any person claiming under them respectively, to direct a sale on such terms as the Court may think fit, and if it ihink fit without determining priorities, but the consent of the mortgagee or a deposit is required, where another party makes the request, for securing the performance of such terms as the Court may impose on such party (c). 3. And by the General Orders under the 15 & IG Vict., c. 80, where an order is made directing a property to be sold, unless (a) 15 & 10 Vict.c. 80, s. 55. Mears v. Best, 10 II.i. App. 51 ; Campbell (b) RlandenoD. Mandcno, 1 Kay, App. 2; v. Moxhay, 18 Jiir. 041 ; Laslctt v. ClifFe, 2 Prince v. Cooper, 10 Bea. 540. (c) 15 & 1(! Vict. c. 80, s. 48; Boydcll v. Manby, lla. A]ip. 53, and the cases in tlie note; Girdlestone v. Lavender, id. 53; Sina. & Gif. 278 ; Wickliaiii v. Nicholson, 10 Boa. 38. As to lo.s.s liy in\'estnient in stock during sail, sec Bridger v. Wickens, 20 L. T. 103. 74 CONVEYANCING COUNSEL. [CII. 3. S. I. otherwise ordered, the same is to be sold, with the approbation of the Judo-e to whose court the cause or matter is attached, to the best & ■ • purchaser to be allowed by such Judge, and all proper parties arc to join therein as such Judge shall du'cct (d). 4. Before any estate or interest is put up for sale under the order of the Court, an abstract of title is with the approbation of the Court to be laid l>efore some conveyancing counsel for his opinion, to the intent that the Court may be the better enabled to give such direc- tions as may be necessary respecting the conditions of sale (which are drawn by the counsel), and where an estate or interest is put up for sale, a time for the delivery of the abstract to the purchaser or his solicitor is to be specified in the conditions of sale {e), but still a dis- cretion rests in the Court not to send the abstract to counsel where it is unnecessary to do so (/). 5. Where the abstract was returned by the counsel of the seller with queries on some of the sheets, which it was not advisable to show to purchasers, the solicitor was only allowed to charge for recopying those sheets, and was not allowed for anotlier copy of tlie abstract. And as the solicitor charges for drawing the conditions of sale, although they are now drawn by the counsel, he was not allowed to charge for answering the queries of the counsel. There may of course be exceptions to these rules (//). 6. The Court or any Judge in chambers has now poAver to receive and act upon the opinion of conveyancing counsel, incases where accord- ing to the old practice it had l)ecn usual for the Master to require or receive the ojiinion of such counsel for his aid in (he investigation of the title to an estate, with a view to an investment of money in the purchase or on mortgage thereof, or with a view to a sale thereof, or in the settlement of a draft of a conveyance, mortgage, settlement or other instrument (h) (I), or otherwise, and in sucii other cases as the Lord Chancellor should by any general order direct ; but it is competent for any party to object to the opinion of any such counsel, and there- upon the point in dispute is to be disposed of by the Court or by the Judge in chambers according to the nature of the case. The counsel were to be appointed by the Lord Chancellor, and that i)ower has been exercised (i). (d) Orders, 16 Oct. 1852, No. 12. See (/) Gibson v. Woollard, 24 L. T. 137. General Orders, 22 April 1850, as to claims, {(j) Rumsey v. Kninsey, 21 Bea. 40. No. 17. {h) Blaxlandr. Blaxland, 9Ha. App. G8. (c) Sec. 5G. The conveyancing counsel (i) 15 & IG Vict. c. 80, s. 40,41,43. Gene- are now appointed under 15 & 16 Vict.c. 80, ral Orders, 16 Dec. 1852, 24 Dec. 1852. s. 40, 43. (I) In this case the Judge held, that it was in the case of the reinvestment of money in land that the deeds were settled by conveyancing counsel. The deed of an appointment, &c., of new trustees, he said, would be approved by the Judge of the bi'anch of the court to which the cause was attached. CII. 3. S. I.J RESERVED BIDDING. ADVERTISEMENTS. 75 7. Where the conveyance of land to be paid for ont of funds in court has been settled by counsel after the approval of the title, and has been engrossed, it must be produced to the Judge and veri- fied by affidavit, with a blank for the insertion of the recital of the order of Court for the payment of the purchase-money, and an order will be made that upon the completion and execution of the con- veyance, to be also verified by affidavit, the purchase-money shall be paid (li). 8. The third of the General Orders of 16 July 1851, which are yet followed in the Judges' chambers, authorised the Master whose power is now vested in the Judge, to fix the amount of the deposit, and to appoint a person to receive it, who if required is to give security, and he is to pay the deposit within the time appointed by the Master, in like manner as the produce of the sale is to be paid. And by the fourth of such orders, the Master was to be at liberty, before or after the property should have been put uj) by public auction, to receive proposals for the sale by private contract, and to report thereon to the Court, which report was to be submitted to the Court for confirmation, in the same manner as reports made upon special references as to sales by private contract (/). 9. By a General Order of 16 July 1851, No. 2, which is still followed, the Master was to be at liberty to fix a reserved bidding to be made one of the conditions of sale, for which purpose the parties Avere to carry in proposals. And the Master Avas to use his dis- cretion as to communicating such renewed bidding to the parties, or any of them, or their solicitors. And the Master was authorised before the sale to put under a sealed cover, to be delivered to the person appointed to sell, the sum at Avhich he reserves the bidding for each lot, and unless there is a higher bidding the lot shall be declared not to be sold. The poAver given to the Master noAV devolves on the Judge and his chief clerk. 10. The 15 & 16 Vict. c. 80, s. 30, authorises each chief clerk to issue advertisements, and the General Orders of 16 October 1852, Nos. 33 and 34, direct that Avhere advertisements are required, a peremptory and only one is to be issued, unless for any special reason it may be thought necessary to issue a second or further advertise- ments, and any advertisement may be repeated as many times and in such papers as may be directed. The advertisements are to be pre- pared by the solicitor, and approved of and signed by the chief clerk, and his signature is an authority for their insertion in the Gazette. (/<;) In re Caddick's settlement, 9 Ha. {I) See Pimm i'. Insall, 10 Ha. App. App. 85 (I).. II. 74. (I) For a form of tlie order approvinnf of a pm-chase and the inquiry as to title, and tlie settlement of the conveyance and jjayment of the money, see 10 I la. 3(1. The con- veyance is to be sent to chambers, and from chambers it goes to the conveyancing counsel. In re Bennett's Estate, 18 Jur. 33. 76 rROCEEDINGS BEFORE SALE. [CH. 3. S. I. 11. These are the general powers given to the Court and to the chief clerk. They are thus acted upon where the decree directs a sale, or the Court is authorised to sell (I). Under the 17th of the General Orders of October 1852, a certified copy of the decree is left at the Judges' chambers, and a summons to proceed on the order is taken out under the first and third of the same General Orders. The conduct of the sale is given as before to one of the parties in the suit, usually to the party having the conduct of the suit. He is directed to bring in an abstract of title, and a draft of the particulars and conditions of sale at a day fixed, to which the proceedings under the summons is adjourned. Proper directions are given to enable the party to make or procure the abstract in time, where the title deeds are in the possession of trustees or of any of the defendants. At the time ajjpointed, or to which it may have been adjourned, the abstract, with the particulars and conditions of sale, including those agreed upon and settled by all the chief clerks, are brought in before the chief clerk, and they are forwarded through the solicitor of the party to the conveyancing counsel, according to the rota kept by order by the senior clerks in the registrar's office. The matter is then adjourned generally, with liberty for the parties to apply for an appointment when ready. The requisitions of the counsel are attended to by the solicitor of the party just as in sales out of Court. At this period, where the property is large, or other circumstances render it desirable, a general advertisement of the intended sale is issued. When the counsel has finally advised on the title, and settled the conditions, they are returned to the chambers by the solicitor, at an appoint- ment previously obtained, and the particulars and conditions are then finally settled. 12. The particulars should, as in the case of private sales, correctly state the rental and nature of tenure, &c. If the property be described as held by tenants under written agreements, and the hold- ings are ])y parol, the purchaser will be allowed to retire from the contract (m). 13. If the rents of the estate are incorrectly represented to the purchaser's disadvantage, he will be entitled to compensation, but if he object to the statement upon a sale, and there is a resale imder the same representation, and instead of pointing out the error he a^ain purchases, he cannot claim compensation (7^). 14. To resume : Where the particulars and conditions are finally settled, the time and place of sale are fixed, and a day appointed for the approval of the certificate, delivery of the abstract, and of objec- (/«) Bcssonet v. Robins, I Sau. & Scu. (?i) Campbell v. Hay, 2 Mol. 102. 142, et vide sup. (I) For an accurate statement of the practice under tlie new system, I am indebted to Mr. Hall, the chief clerk of Vice-Chancellnr Stuart ; I have embodied it in the text. CH. 3. S. I.] HOW SALE CONDUCTED. 77 tions to the title, and the like. The auctioneer is approved of upon evidence of fitness, and his remuneration is fixed, for estates are not sold before the chief clerk as they used to be before the Master, but in the general way by auction. The sale may be in the country, if the Judge shall think fit [o). The advertisement for sale is also settled and issued, and, where deemed necessary, a survey and valua- tion is directed, with a view to fixing the reserve bidding, which the Court never does without groat caution (/>). For this object, and, if necessary, for finally settling the particulars, a day is appointed. Where deposits are to be paid, the auctioneer is required to enter into a recognizance, with two sureties, to duly account for the amount, which is pre})ared by the solicitor, and is settled in chambers, and then taken and enrolled in the same manner as a receiver's recognizance. At the time appointed, the reserve bidding is fixed, and is sent under seal, through the solicitor, to the auctioneer, toge- ther with the printed instructions as to the sale, and bidding })apers, with a form of affidavit to be made as to the result of the sale. The matter is then adjourned to the time appointed for settling the certi- ficate of sale. If on any of the matters a difficulty arises, or the parties desire to have the decision of the Judge, the matter is ad- journed personally before him at chambers (I). 15. If a mortgagee in a foreclosure suit be allowed to bid for the estate, he will not be permitted to conduct the sale (r) ; and no party to a suit can bid for an estate sold under the decree without the authority of the Court {s) ; and yet a solvent partner, a defendant in a suit by the assignees of the bankrupt partner for a sale, who bought Avithout leave at the sale before the Master, was allowed to retain his purchase {t). 16. The plaintiff's solicitor should attend at the sale, which is con- ducted in the following manner: — The chief clerk prepares a bidding paper of the lots to be sold, with spaces between each lot. The lots are successively put up at a price offered by any person present, and every bidder must sign his name, with his address and quality, and the sum he offers, in the space on the particular, under the lot for which he bids. (0) Gen. Orders, 23 Nov. 1831, 75; Gen. 723; Drought v. Jones, 1 Fla. & Ke. 316; Orders, IG July 1851, 1. Ex pte. M'Gregor, 4 De Ge. & Sma. G03, {])) Jervoise v. Clark, 1 Ja. & Wal. 389. («) Elworthy v. Billing, 10 Sim. 98. {)•) Domville v. Berrington, 2 Yo. & Col. {t) Wilson r. Greenwood, 10 Sim. 101, rt. (1) The course adopted at the Rolls to meet the difficulty which lies in the way of appealing from an order in chambers, and which was approved by the Lords Justices, is that after objections have been argued before the Judge in chambers, and the report as approved by him has been filed, the party dissatisfied witli the decision may move in com-t (as of course) to discharge or vary the report, which is refused as a matter of form, and an order is made confirming the re]M)rt, and from this order the party can apjieal. This is to avoid two hearings, one in chambers and one in court before the same Judge. York and North Midland Ry. Co. v. Hudson, 2 E(i. R. 295. 78 PROCEEDINGS AFTEll SALE. PUFFING. [cil. 3. S. I. 17. The best bidder is, of course, declared the purchaser, but the Master had a discretion (?«), wliich would now be exercisable by the Judge, and the Court may sanction a small bidding after the bidder knew the reserved price (x). If any lots are not sold, they must be again advertised for sale (y). 18. Tlie 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 purchaser is not entitled to the benefit of a rise in the funds when his purchase is completed (r): nor can he deduct the property tax out of any interest he has to pay («). But although a purchaser paying money into Court cannot deduct income tax, yet he may obtain the deduction by application when the money is paid out of court, and as between a vendor and purchaser the tax may be deducted from the interest payable (b). 19. Where a fraud is committed on the purchaser by puffing at the sale, it cannot be supported any more than a sale by public auction (c). 20. The Court, as in common cases of sales by public auction, does not in general attend to verbal declarations at the sale, but they may constitute a ground for relieving the purchaser from the contract {d). 21. The Court will, on motion, discharge the purchaser, and sub- stitute any other person in his stead ; but this will not be done unless such person pay in the money, and an affidavit 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 (f ). 22. Where the title is defective, and another person has agreed to take tlie estate with the defective title, no order can be made until the first purchaser is discharged ( /") ; and it must be by arrangement, for the Court will not offer to sell with a title which it is aware is bad {g) ; nor will it provide by condition against imaginary defects (A). 23. 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 i)ay the additional price into court for the benefit of the estate (z). Under the new practice, after a pur- chaser has been certified and the Judge has signed it, and eight days have elapsed, he is so far deemed the owner that he may sell at an (m) Ec Costcllo, 2 Jo. & Lat. 244; tlio (e) Rigby v. Macnamara, G Ves. 515; case of a tenancy, Vale v. Davuuport, G Ves. G15 ; llaniiltoii v. (x) Dowle V. Lucy, 4 Ila. 31L Ball, 2 If. Eq. R. 195 ; Vincent v. Going, (y) 1 Tin-. Pra, 129. 1 1'la. & Ke.428; Matthews v. Stubbs, 2 Bro. (2) Sup.; Ambrose v. Ambrose, 1 Cox, C. C. 291, for the old practice. 194 • D'Oyloy V. Lady Powis, lb. 20G. (/) Williams v. Wace, C. Coo. 42. («) Ilmnbie v. Humble, 12 Bca. 43; ({/) Piers v. Piers, 1 Sau. & Sen. 414; Dawson v. Dawson, 11 Jur. 984. Lahey v. Bell, G Ir. Eq. R. 122. (6) Bebb V. Bunny, 1 Kay & Jo. 21G. (h) Bennett v. Wheeler, 1 Ir. Eq. R. 18. (c) Sup. ch. 1, s. 1. {i) Hodder v. Ruffin, Taml. 34L (rf) 1 Ja. & Wal. G38, G39. CII. 3. S. I.] rROCEEDINGS AFTEll SALE. 79 julvanccd price for liis own benefit; in analogy to the former rule {j), lie It? treated as a purcliaser under the old rule, after the report had been confirmed absolute. 24. Once more to resume the regular proceedings. — After the sale, the affidavit, prepared as we have seen by the chief clerk, and sworn to by the auctioneer (together with the bidding paj^er, reserved bid- ding paper, and printed particulars annexed), stating the sale and the biddings, and the sums for which the lots sold, and to Avhom by name, is required, and the auctioneer is made to swear that the sale was conducted by him in a fair, open, and candid manner, and according to the best of his .skill and judgment. At the time appointed for settling the certificate, the solicitor should attend chambers with an office copy of the above affidavit; the certificate will then be settled, and a time is fixed for the payment into court by the auc- tioneer of the deposits, for which purpose an order is to be obtained upon summons. The certificate is engrossed by the solicitor as in ordinary cases, and the further consideration is adjourned for four clear days to obtain the ajjproval thereof by the Judge. When approved, it is filed by the chief clerk, unless in the interim applica- tion is made by some party by summons to open the bitldings ; the practice in regard to which we shall jiresently see, and wliicli has not been varied by the late changes. The purchaser may, of course, attend at the settlement of the certificate, but he receives no notice to do so, and the chief clerk Avould proceed in his absence, and he would be bound by the certificate. 25. The purchaser is not considered as entitled to the benefit of his contract till the certificate of the purchaser's bidding is absolutely confirmed (Ji). If, under the old practice, a purchaser had been served with notice of a motion to open the biddings, he could not regularly have pi'oceeded to confirm his report absolutely (/) ; but the order to confirm absolutely, when served, operated from the day on Avhich it was pronounced [m). If after having obtained the order iiisi, the purchaser neglected to confirm the order, the vendor himself might have made the motion (tz), of course (o) ; but he could not by one motion have sought to make the order absolute, and also that the purchaser should pay his money into court {p). 26. The bidder not being considered as the purcliaser until the certificate is confirmed, is not liable to any loss by fire or otherwise which may happen to the estate in the interim () Harding ?n Harding, 4 My. & Cra. 514. 19 L. J., N. S., 140; 12 Bea. 260; Counter (c) Blackbeard v. Lindigren, 1 Cox, 205. V. Macpherson, 5 Moo. P. C. 83. (I) A motion was made before Lord Erskine, that the purchase-money should be paid in by the purchaser. The purchaser did not appear. After consulting the Register, who had searched for precedents, and expressing his unwillingness to do anything 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 payment of the money according to the usual practice. — -Anon. Ch. 22d July 1806, MS. In 1 New!. Pract. 544, it is said, that it seems that if the report is confirmed by the vnulors it is not necessary, previous to the application against the purchaser that he be ordered to pay in his purcliase-moncy, that an abstract of title should be delivered to him. Sanders v. Guy, Jan. 1811, before Lord Eldon ; 1 Bca. 200, by the name of Gray v. Gray ; Buhner v. Alison, 8 Jm-. 441 ; 15 L. J., N. S., 11 ; Foligno v. Martin, 10 Bea. 586, CII. 3. S. I.] TAYMENT OF PURCHASE-MONEY. INTEllEST. 81 29. rroceedlngs for payment into court of purclinsc-nionlcs under sales by order of Court, and investing the same, are to be made at chambers {d). 30. When tlic certificate is confirmed, the purchaser is entitled to a conveyance on payment of the purchase-money, and may take out a summons 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. Upon the return of the summons, and upon production of the decree for sale, the conditions, and the certificate of purchase, an order will be made. A minute is endorsed upon the back of the summons, and the solicitor must take it to the registrar of the day, and bespeak his order. Pro- vision will be made in the order for payment of interest as ascertained by previous calculation to a day certain, or as to be verified by affi- davit ; but no allowance is made for income tax out of the interest. Provision is also made for the conveyance and delivery of the title- deeds, if not already provided for by the decree, and for the invest- ment of the money if required. When the money is paid according to the order, the purchaser must, at his own expense, obtain a certi- fieatc of the payment of it. 31. If the estate be suliject to an incumbrance which appears upon the report, the purchaser should, after giving notice of his intention, 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 incum- brance 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 discharge of the incum- brance, though perhaps, if the parties be all competent, and consent, it may be done (/). Till he obtain his conveyance, the Court Avill not pay off" any incumbrance out of his purchase-money, although he is. guilty of delay (g). In a special case, Avliere a purchaser is allowed to relieve himself from paying interest, the Court Avill receive the purchase-money without an acceptance of the title Ut), but possession will not be given to him (?"). Where he accepts the title, and pays the money, the Court will allow it to be without prejudice to a question for compensation (/c), and even, in a proper case, without prejudice to any question, and without acceptance of title (/.) If he pay in his money without notice that a material statement in the {(l) Order of V. C, 9 Ha. App. 48. thcr, 11 Bea. 399 ; Denning v. Henderson, {c) For the mode of paying the money 1 Dc Ge. & Sma. 689; 1 Mac. & Gor. M4, into the Bank, 1 Tur. Pra. 210. as to the Excheq. ; JIarfell v. Rudge, 2 Yo. (J) V. Sti-etton, 1 Yes. j. 266. & Col. o66. (gr) Bevan v. Bevan, 1 C. Coo. 381. (i) Denning v. Henderson; Dcni s {li) Hnttonr. Mansell, 2 Bea. 260 ; Man- Dem^^rey, 1 Dc Ge. & Sma. 689. 691. CO V. Wainwi'ight ; Ilindle v. Dakins, 1 . Coo. 378 ; 1 Aiac. k Gor. 344 ; Butter v. ]\Jutriott, 10 Bea. 33; Ouselcy v. Anstru- P/ey «. vice r. Wainwi'ight; Hindle v. Dakins, 1 (/;) Man?.'. Ricketts,r) De Gc. & Sma. 116. C. Coo. 378 ; 1 Aiac. k Gor. 344 ; Butter v. {I) Rutley v. Gill, 3 De Ge. & Sma. 640. 82 OF POSSESSION, RENTS, AND TROFITS. [CH. 3. S. I. particulars is false, lie may be relieved notwithstanding the pay- ment (m). 32. AVhere two or more persons purcliase one lot, the money must be paid altogether (w). 33. A purchaser under a decree is entitled to be let into possession of the estate from the quarter-day preceding his purchase, paying his money before the following one (o) ; which refers to the confirmation of the certifi.cate (p), for until then he is not the purchaser. If the rents are payable half-yearly, the purchaser would be entitled to them from the current half-year. Therefore a sale by the Court by private contract to the tenant whose rent was payable half-yearly, was held to carry the half-year's rent from the preceding November, although the sale was in March and the money was to be paid in April without interest (q). Where a purchaser allows the time to elapse, he is entitled to the rent only from the rent-day preceding the payment of the money into Court (r). If the purchase is made through an offer which is refeiTed to the Master, the purchaser will be entitled to the rents only from the date of the reference (s). 34. 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 had his money ready lying dead in a banker's hands (t). 35. When a mortgagee purchases, and his principal and interest, calculated up to the last quarter-day, exceed the purchase-money, he Avill be let into possession as from the preceding quarter-day {u). 36. 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 copyholders before the quarter, although the admissions do not take effect until after he is let into possession {x). 37. A life annuity stands upon a different footing, and a purchaser will be entitled to it from the time he could have confirmed the report absolutely, and pays interest from that day (y). 38. 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 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 en- titled to the half-year's dividend. Lord Eldon observed there was a case about a house being burnt down before the confirmation of the (wi) Lachlan v. Reyuold.*, 1 Kay, 52. Purcli. 805. (rt) Darkin v. Marye, 1 An. 22. (s) Chcctliam v, StiU'tevant, 3 De Ge. & (o) Twig!^ V. Fifield, 13 Ves. j. 517 ; Gar- Sma. 4G8. rickt?. EarlCamdeu, 2Cox, 231 J jwsf'jch. 17. {t) Barkers. Harper, Coo. 32; Iliudle (;;) 1 LI. & Goo. t. Plun. 176, 177. v. Dakins, C. Coo. 381, {q) Hughes r. Wells, 1 Day. Con. 513. {u) Bates v. Bonner, 1 Sim. 427. (?•) Gowan v. Tighe ; Preudergast v. {x) Garrick u. Lord Camden, 2 Cox, 231. Eyre, 1 LI. & Goo. t. PImi. 1G8. 180; [y) Twigg u. Fifield, 13 Ves. 517. CII. 3. S. I.] OF THE CONVEYANCE. 83 report. But if the tenant fur life had died the same night, mu.st nijt the purchase-money have Leen paid ? The report, Avlien confirmed, must have relation Lack to the purchase ; and the contract was made the moment 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 (z). 39. A purchaser of a reversion will be entitled to the benefit of liis })urchase, after the confirmation of the certificate absolute, although the estate has fallen into possession ; but he must pay interest from the time of confirming the certificate absolute («). 40. The general rule does not apply to a colliery, Avhich is consi- dered as a trade. The profits are settled monthly, and therefore the purchaser is entitled to the profits only from the commencement of the month in which he purchased, paying his purchase-money in the course of that month (i). 41. 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 permis- sion (c). If he obtain it improperly he may be compelled to take the title and pay the price at once {d). 42. Under the old practice the Master settled the draft, but it was usual to so word decrees, that the draft should not go before the Master unless the jyarties differed, Avhicli words were omitted where an infant was to convey (e), or the proposed deed would convey his estate (/), for in such cases the Master was to settle the conveyance. The purchaser had to pay the costs of his attendance before the Mas- ter, unless a special case was made {g). When the deeds had been properly executed by all necessary parties, and an affidavit of the due execution of them made, and filed in the affidavit office, the money directed to be paid might be procured in the usual manner (Ji). The draft conveyance, when approved, is now certified, and its execu- tion may be enforced under the decree or order. AVhen all proper parties have been directed to convey, and a party to the cause with- {z) Anson v. Towgood, 1 Ja. & Wal. G37 ; Jefferys v. Smith, 1 C. Coo. 381. Vincent v. Going, 1 Fla. & Kee. 2i0 ; 3 Ir. (c) Anon. L. I. Hall, IG July 181G, MS. Eq. R. 480 ; Vesey v. Elwood, 1 Fla. & Ke. [d) Wilding v. Andrews, 1 C. Coo. 380. G67 ; 3 Dru. & War. 75 ; O'llara v. Cliainc, (e) Calvert v. Godfrey, 2 Bea. 267 ; Ri- 8 Ir. Eq. R. 365; Millican v. Vander- cliardson ?'. \Vard,ll Bea. 378. plank, 11 Ha. 136. . (/) Cheese r. Cheese,"* 15 L. J., N. S., («) Ivf. ch. IG, s. 1, pi. 12, 13; Ro- C. 28, bertson v. Skelton, 13 Bea. 91 ; Wallis v. (u) Hodgson?;. Shav/,11 Jur.95; Brown Sarel, 5 De Ge. & Sma. 429. r. Lake, 15 L. J., JV. 8., 34. (b) Wren v. Kirton, 8 Ves. 502; Wil- (/') 1 Tur. Pra. 145. liams u. Attenborough, Tur. & Rus. 70; (I) In the report it is the purchase?-^ because the purchaser was hinisolf the tenant for life, whose interest was sold. F 2 84 OF THE CONVEYANCE. TITLE. [CH. 3. S. I. liolds his concurrence, the motion that he do convey should be made against him jiersonally {i). If the parties disagreed as to the neces- sary parties, &c. to the conveyance, the Master formerly reported his approbation of the draft, as settled by him. To this report excep- tions might be taken (/<;), and the question came before the Court in a I'egular Avay. And where a Master, under the old rules, was di- rected to settle a conveyance in case the parties differed about the same, the mode of proceeding upon the draft Avas particularly pointed out by a general order (/). Noav if any dispute or question arise as to the title, conveyance, payment of interest, right to title-deeds, or other matters connected Avith the sale, a summons can be obtained by the purchaser or the other party, Avhen the matter Avill be discussed before the Judge, who,. if necessary, will refer the draft to the con- veyancing counsel, and give other proper directions. The decision of the Judge at chambers is generally satisfactory, but, as we have seen, an appeal lies from it, 43. If the parties formerly differed as to the validity of the title, the Master made his report, to Avhich exceptions might have been taken (I). Now the objection would be disposed of, as above stated, before the Judge, on summons at chambers. If necessary, the opinion of the conveyancing counsel Avill be taken, and If the objec- tion be one of Aveight, the Judge or the chief clerk may adjourn the matter to court, to be argued by counsel. But a certificate as to title or the Avant of it Is after eight days as absolute as a Master's report AvhIch had been confirmed absolute, and very special grounds were re- quired to open a report which had been confirmed absolutely (ni). 44. A party buying under a decree is bound, as Ave shall hereafter see, to take a good equitable title. In other respects the usual rule as to a good title prevails ; but if the purchaser buy In the outstanding title, he cannot object to complete (n). If he obtain the legal estate, he cannot require, at the seller's expense, a release from equitable incumbrancers whose demands have been satisfied by the Court (o). 45. A purchaser must apply to the Court for the relief to which he Is entitled, and avIU not, for example, be permitted to bring an action for any document of title, the possession of which he claims (7?). 46. 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 pur- chaser, of the reference, and of the application, and the expense of (0 Stillwell V.'' Meller.sh, 4 My. & Cr. (m) Howell v. Knightley, 2 Jur,, N. S., S81. 455. (k) Lloyd V. Griffith, 1 Dick. 103; Tip- (n) Sheppardr. Doolan, 3Dru. &War. 1. ping V. Gartside, 2 Fow. Pra. 328 ; Wake- (0) Keatinge v. Keatinge, 6 Ir. Eq. R. man v. "Duchess of Rutland, 3 Ves. 504. 43; Webber v. Jones, id. 142. (0 Gl. Order, 23d Nov. 1831, 76. (p) Stubbs v. Sargon, 4 Bea. 90. (I) If a purchaser succeeded in his exception, so that the title was held to be bad, yet it was necessary for him to make a special application to be discharged as purchaser. Hide V. Hide, 1 C. Coo. 379. CII. 3. S. I.] OF COSTS. DISCHARGE OF PURCHASER. 85 investigating the title. The order in sucli a case i.s lor payment out of the fund, of the purchaser's costs of, and consequent upon liis having become purcliaser, and also of the a})plication, and his reason- able charges and expenses of investigating the title {q). 47. If there are no funds in court, the plaintiff will in a common .^-^^ case be ordered to pay the purchaser in the first instance (r) his costs, ^"^^ -^4^^ 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 tlic suit («). 48. The purchaser is entitled to the costs of the motion for a refe- rence of title, and to the costs of that reference even where the title proves to be good, if it be made out on grounds not appearing on the abstract if) ; although the title proves good according to the abstract, yet the Court will not compel him to pay costs {ii) ; but he must bear his own costs of the investigation. 49. But if a piu'chaser 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 {x). 50. 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 (y). Lord Eldon would not extend the rule of compelling 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. The purchaser waived the costs, but he ought, it should seem, to have been allowed them. Where the purchaser, after having paid in his money, was discharged on account of a want of good faith on the part of the vendors, yet as the money had not borne interest, none was given to him {z). 51. If a purchaser of an estate under a decree of the Court, after the confirmation of the certificate (or formerly before the absolute confirmation of the report), and before any conveyance made to him, die, having devised his interest therein, the Court will order a con- veyance to be made to the devisees, without the consent of the testa- tor's heir at law where he is an infant {a). {q) Reynolds v. Blake, 2 Sim. & Stu. (?/) Lechmere v. Brasier, 2 Ja. & Wal. 117; Att.-gen. r. Corp. of Newark, 8 Sim. 287; Chamberlain v. Lee, 10 Sim. 444; 71 ; Ward v. Trathem, 14 Sim. 82; Weir v. Plmiitre v. O'Dell, 4 Ir. Eq. R. G02 ; Calvert Chamley, 2 Ir. Ch. R. 56G. v. Godfrey, G Bea. 97 ; O'Connor v. Kirwan, (r) Smith v. Nelson, 2 Sim. & Stu. 557. Sugd. H. of L. G75; Blosso v. Ld. Clan- gs) Berry v. Johnson, 2 Yo. & Col. 564. morris, 3 Eli. G2; Wiser. Ponsonby, Sugd. (0 Fielder r.Higginson, 3 Yes. & Be. 142. II. of L. 677; Sherwood v. Beveridge or (m) Camden r. Benson, IKee. 671; Flower Burridge, 13 Jur. 1042; 3 De Go. & Sma. V. Hartopp, 8 Bea. 200 ; Holland v. King, 20 425 ; Whitfield v. Lequetre, id. 464 ; Bcnf ley L. T. 123. V. Craven, 17 Bea. 204. (^.r) Magennis v. Fallon, 2 Mol. 592 ; (r) Lachlan ?•. Reynolds, 1 Kay, 52. Mackrell v. Hunt, 2 Mad. 34, n. («) The King r. Gregory, 4 Pri. 380. F 3 8& or SALES CONTRARY TO THE DECREE. [CH. 3. S. I. 52. Generally speaking, incumbrancers do not postpone their rights over the purchase-money by consenting to a sale : it requires a special direction to authorise the costs of the suit or of the sale to be paid in l^riority to a first incumbrancer (Z»). 53. If an estate directed to be sold by the Court is sold contrary to the order of 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 according to the decree (c). And a person who has notice of the decree cannot be advised to purchase the estate unless it be sold according to the course of the Court (d) ; and the money should be paid into court, and not to the party (e). 54. 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 agree- ment (/). If property not intended to be sold be, by the ignorance or neglect of the vendor's agent, included in a contract for sale with other property intended to be sold, a case may arise in which the Court would refuse to compel a specific performance of the whole contract ; and if, in such case, the purchaser declined to take so much as was intended to be sold, the course which the Court might adopt would probably be to abstain from interfering, leaving the purchaser to his remedy at law ; but it certainly would not rescind the contract. This course, however, cannot be followed in sales under the orders of the Court; the property must be sold, and the Court must decide whether the sale is to be carried into effect or the property resold ; but it is expedient, so far as possible, to adopt the rules which regu- (y^/ 5(rir^ l^te such cases between vendor and purchaser to the case of purchases under the order of the Court (^). 55. A sale before a Master was held not to be within the statute of frauds, and after confirmation of the Master's report of the best pur- chaser, the sale would have been carried into effect even against the representative of the purchaser, although he did not subscribe (/^) ; but it must be by suit {i). This rule would, no doubt, still prevail. ^^. And even if the authority of an agent not being admitted can- not be proved, yet if the certificate could be confirmed, the sale would- be carried into execution unless some fraud were proved (A). 57. As a purchaser under a decree does by the act of purchase (/;) Aldridge %\ Westbvoolc, 5 Bea. 188 ; (rf) 2 vol. Ca. & Op. 224, 225. Wild V. Lockhart, 10 Bea. 320; Tipping v. (e) 2 Scli. &: Lef. 581 ; Price v. North, 2 Power, 1 Ha. 405; ITopworth v. Heslop, 3 Yo. h Col. G27, which qu. Ha. 485 ; see Cooke v. Brown, 4 Yo. & Col. (/) Raymond v. Webb, Lofft. G6; Mort- 227, where the incumbrancers are unneces- lock v. Buller, 10 Ves. 314. sarily brought before the Coiu't. {g) Per L. C, Alvanley v. Kinnaird, 2 (c) Annesley v. Ashurst, 3 P. Wms. 282. Mac. & Gor. 8 ; Ivf. ch. 8, s. 2. Consider e.r;;)'^'. Hughes, (iVes. 617; Bowcn (/<) Att.-Gen. v. Day, 1 Ves. 218. V. Evans, 1 Jo. & Lat. 178; Sugd. H. of L. (;) Lord v. Lord, 8 Sim. 503. 713. \li) Att.-Gen. v. Day, 1 Ves. 218. en. 3. S. I.] DECREE A SECURITY TO PURCHASER. 87 submit himself to the jurisdiction of the Court, ho may, if he obtain possession of the estate before the contract is completed, be restrained by injunction from committing waste (/). 58. If leaseholds are sold, the executor of the testator, although he has not taken possession, will be entitled to an indemnity from tlie purchaser from the rents and covenants (m). 59. The Acts of 13 & 14 Vict. c. 60, and 15 & 16 Vict. c. 55, pro- vide for an order for a conveyance, or for a vesting order, where par- ties to the suit, or bound by the proceeding, are unable or unwilling to concur (n). 60. A purchaser obtaining possession before confirmation of his contract, and expending money in improvements, cannot make that a ground why his purchase should not be disturbed (o). 61. Where the purchaser has obtained a conveyance, although originally the money could not be dealt with, without Jiotice to him, yet he should not, ai'ter the conveyance, appear on any motion as to the fund, although served (;>). 62. The general rules as to other sales apply equally to sales by the Court, where a distinction has not been established. 63. Although under the old rules the Master sold before he reported what estates passed b}'' a will {q), yet the purchaser was safe ; and although more of an estate is sold than is necessary for the purposes of tlie 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 Greenacre should be sold, and Blackacre were sold, an objection to the sale would be good (r) ; although after much contest it may be laid down as a gene- ral rule, tJiat a purchaser shall not lose the benefit of his purchase by any irregularity of the proceedings in a cause {s). Therefore, if more interest be allowed to legatees than they are entitled to, or the answers be put in irregularly, or the purchaser obtain the benefit of the decree by an assignment to a trustee, or tenants in tail, coming in esse pending the suit, and becoming entitled prior to the re- mainder-men before the Court, are not made parties, or the suit become abated before the sale is completed, and is not revived, or the like, yet, in the absence of fraud, the purchaser will not be affected (/) Casamajor v. Strode, 1 Sim. & Stu, 381 . (s) Lloyd v. Jolmes, 9 Ves. 37 ; Curtis v, (m) Cochrane u. Robinson, 11 Sim. 378. Price, 12 Ves. 89; Bennett v. Haraell, 2 (>i) Infra. Sell. & Lef. 566 ; Burke v. Crosbio, 1 Bal. & (o) Millicani'.Vanderplank, llHa. 13G. Bea. 489; Lightbourne v. Swift, 2 Bal. & (p) Barton v. Latour, 18 Bea. .526. Bea. 207 ; Baker v. Morgan, 2 Dow, 526 ; (q) Dykes v. Taylor, 16 Jur. 563 ; where Mullins v. Townsend, 1 Dow & Cla. 430 ; there is an infant, Baillie v. Jackson, 10 Sim. Ilolroyd v. Wyatt, 2 Col. 327 ; Thornhill r. 167 ; Lynch v. Joyce, 3 Dru. & War. 349. Ghnor, 3 Dru. & Wa. 195. (r) Lutwych u, Winford, 2 Bro. C C.248. f4 88 JUDGMENT CREDITORS AFFECTED. [CH. 3. S. I. by such irregularities ()^). If ii decree is obtained by fraud, it may, of course, be relieved against {u) ; and it has been said that a pur- chaser 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 {x) ; but, if the Court itself be imposed upon, it would be a strong mea- sure to imi)hj notice of the fraud to the purchaser, from the very pro- ceedino-s before the Court. But it is a settled maxim that persons purchasing under decrees of the Court, as a general rule, are bound to see that the sale is made according to the decree (y). And this more especially applies to the plaintiff in the cause (z). Of course a purchaser 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 («), but a bond fide sale cannot be impeached simply because the suit was in fact instituted for tlie purpose of carrying it into execution {h). The tenant for life cannot be permitted in such a sale to obtain a l}enefit at the expense of the remainderman, and if the pui'chaser 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 rescind the sale (c). 64. A sale under an Act of Parliament must pursue the autho- rity, but if a court having jurisdiction improperly decide as to debts or claims on the estate, yet such errors would not affect a pur- chaser {cV). %^. 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 (e), unless he obtained a legal interest 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 pur- (0 Bowen v. Evans, 1 Jo. & Lat. 178; 2 H. of L. Cas. 257; Baker v. Souter, 10 Supd. H. of L. Cas. 713 ; 2 H. of L. Cas. 257. Bea. 343 ; Edgeworth v. Edgeworth, 12 Ir. {u) Kennedy v. Daly, 1 Sch. & Lef. 355; Eq. R. 81 ; Hope v. Liddell, 2 Jur., N. S., GifFard v. Ilort, ib. ; Lansdowne v. Beau- 105 ; 21 Bea. 180. 183 ; a case of gi-eat dif- man, 1 Mol. 89; Colclough v. Bolger, 4 Dow, ficulty. 54; Ld. Bandoni'. Bccher, 9 Bli. N. S. 532; {(l) Vansagnew v. Stewarl, H. of L. Cas. Bowen v. Evans, 1 Jo. k. Lat. 178 ; 2 H. of 1822. L. Cas. 257 ; Sugd. H. of L. 679-721. (e) Banett v. Blake, 2 Bal. & Bea. 354 ; {x) Gore r. Stacpoole, 1 Dow. 30; as to Steele v. Philips, Bea. 188; 1 Hog. 49; the time of sale, Blacklow v. Laws, 2 Ha. 40. 3 Mol. 23 ; 1 Dru. &; Wal. 275 ; 1 Dru. & (y) Colclough V. Serum, 3 Bli. 181. War. 192; Johns v. French, 2 Bal. & Bea. \z) Talbott V. Minnett, G Ir. Eq. R. 83. 450 ; Piers v. Piers, 1 Sau. & Scu. 379 ; 1 («) Thornhill v. Glover, 3 Dru. & War. 1 95. Dru. & Wal. 2G5 ; Barrett v. Bcrmingham, (I)) Townsend ?>. Wan-en, 1 Jo. & Lat. 1 Sau. & Scu. 419 ; Fitzgerald t». Lane, 3 Ir. 221, n.; Sugd. II. of L. 704; Bowen r. Eq. R. 3.39; Stacpoole v. Curtis, 2 Mol. Evans, uhl sup. 504 ; Rolleston v. Morton, 1 Dru. & War. (c) Bowen r. Evan", 1 Jo. & Lat. 178 ; 171; see now 13 & 14 Vict. c. 29, Ireland. cii. 3. s. I.] iMrrtOrER payments to tenants you life. 89 chaser buying under Its decree (/), 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 pay- ment of an incumbrance should see that he obtains a discharge from all judgment-creditors, or that they are bound by the decree whether he obtains the legal or equitable estate. 66. If the tenant for life be not directed to keep down interest as he ought, but it is paid out of the purchase-money, yet the piu'chaser in the absence of fraud will not be affected, although he may, if the person primarily responsible is not before the Court, be made account- able for the error (^). And even where fraud not being proved, the tenant for life was permitted to receive a considerable sum without any authority from the Court, and stipulated for leases to himself from the purchaser, which he received, the purchase was not set aaide, but the Court confined the relief to giving to the person entitled the full and fair value of the property at the time of sale (A). 67. Where a purchase under the Court was held to be fraudu- lent, although apparently on insufficient grounds, and the purchaser had settled the estate on his son's marriage ; the settlement was, of course, not impeached, but compensation was given out of the assets of the purchaser, who was dead, for the full value of the lands, and the question of value was sent to a jury (z). It has been regretted that the jurisdiction was not shown, nor the true measure of damages pointed out — whether the worth of the estate when purchased, or its present value (k). 68. In Yans Agnew v. Stewart (Z); where a private Act of Parlia- ment authorised the Court of Session, upon an action instituted, to ascertain the amount of the debts of a deceased tenant in tail charge- able upon the entailed estate, and after having ascertained the amount, 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 folloAved. Lord Eldon observed that the case of these purchasers was extremely distressing, and he wished to lay it down in clear lan- guage, that if a Court is authorised by an Act of Parliament to pro- ceed to a sale, and if in the manner in which the Act provides they shall so proceed, no purchaser is answerable for the mistakes or blunders of the Court. Parliament trusts to the wisdom and discre- tion of the Courts ; and if the Courts act according to the rule of proceeding laid down for their government, although they may be Avrong, for instance, if they were to mistake the amount of the debts, (/) Steele V.Philips,! Hog. 49; Beat.188. (i) Ld. Bandon v. Beclier, 9 Bli., N. S., (fir) Bowen v. Evans, ubi sup. ; IJo. & Lat, 532 ; 3 Cla. & Fin. 479 ; Sngd. H. of L. Cas. 221, n. ; Sugd. H . of L. 704. C92. (h) Townsend v. Wan-en, 1 Jo, & Lat. (k) Sugd. H. of L. Cas. 702. 221, n.; Sugd. H. of L. Cas. 704; Bowen (/) H. of L. Cas. 1822, MS. V. Evans, ubi sup. 90 OF OPENING BIDDINGS. [CH. 3. S. II. if tliey were to suppose that debt A. affected lands, wlien it did not, or that debt B. did not affect the lands, when it did, — 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 if the Court did not so proceed, the transactions of the Court would be no more a security to the purchaser than if it had not been authorised by laAV to proceed at all. The whole proceedings appeared to him contrary to the powers given to the Court of Session, in order to make good titles to the purchasers. To Lord Redesdale it appeared clear, that the Court of Session, having no authority to decree a sale, except that which the Act gave them, were bound to proceed according to the powers given them ; and that if they did not do so, they were acting without authority. He did not speak of any error in judg- ment. If the Court of Session had decreed in a suit properly brought, mere error in judgment would be no ground for setting the proceedings 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 1)y 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. SECTION II. OF OPENING THE BIDDINGS, AND OF EESCINDING THE CONTRACT. 1. Opening liddings. sale of lots to different purcTtasers. 3. Advance required. 17. Substitution of sub-ptirchaser. 4. Timber valued. 18. Return of stock on rescinding contract. 5. Operation of Vice-Chancellor's certifi- 19. laequitaUc sale rescinded. But not a cate. hard bargain. , G. When certificate confirmed, advance of 20. Unless there is mistake ; and no delay. 2}rice not sufficient. 21. Bad title discovered before conveyance, 8. Fraud svfficient. money returned. 9. Costs of first purchaser. 22. Solicitor botmd although only buying in. 10. Re-allotment npoti re-sale. 23. Remedy against executors. 12. Perso7i present at sale may open it. 25. Sale by private contract not opened. 13. Sham biddings. 2G. No costs to purchaser of extended estate 14. Person ojjening not repaid his costs. although no title. 10. Where lots, all to be opened. — Opening fa:/U/i^ 1- Wheke estates are sold by direction of the Court, the Court ^ considers itself to have a greater power over the contract than it would have Avere the contract between party and party («); and it is in the haliit of opening the biddings after the estate is sold. This is (rt) 1 P. Wins. 747. en. 3. S. II.] ADVANCE EEQUIEEP. 91 the remedy of another mere bidder, who sliould not attempt to set aside the sale for irregularity (Z»). The opening of the biddings dis- charges the first purchaser. 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 tlie parties irtthe cause (c). No order Avill be made until the report of the purchase has been made (d) even to discharge the purchaser where he is entitled to be relieved on a collateral ground (e). If the Court approve of the sum offered, the application Avill be granted, and on the order being drawn up, entered and served, a new sale must be had. 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 (/), and interest at the rate of 4 Z. per cent, on such part of the purchase-money as shall be found to have lain dead ((/). Where a large deposit was paid by the first i^urchaser, the person opening the biddings upon an advance less than the former deposit was not directed to pay the whole of such deposit until it Avas ascertained that he was to be the purchaser (A). 3. Mere advance of price, if the certificate of the purchaser being, the best bidder is not absolutely confirmed, is sufiScient to open, the biddings, and they will be opened more than once, even on the appli- cation of the same person, if a sufficient advance be offered (?") ; but the Court will stipulate for the price, and not permit the biddings to be opened upon a small advance {k); and, although an advance of 10 per cent, used generally to be considered sufficient on a large sum, yet no such rule now prevails (/); bist 10 per cent, has been accepted, upon a sum under 1,000 Z. (m); and in the case of a sale under a creditor's suit, the Court permitted the biddings to be opened, upon an advance of 5 per cent, on 10,000/. (n). An advance of 350/. upon 5,300/. was refused, and it was said that the former cases only established that where an advance so large as 500 /. is offered the (b) Hughes v. Lipscombe, 6 Ha. 142. Hodges v. Jones, 2 Fow. Pra. 318; Baillie (c) Sherwood v. Beveridge, 3 De Ge. & v. Chaigneau, G Bvo. P. C. by Tom. 313; Sma. 425; form of the notice, 2 Tm-. Pra. Preston v. Barker, IG Ves. 140. 649, 650. (k) Anon. 1 Ves. j. 453; Anon. 2 Ves. j. (d) Lovegiwe r. Cooper, 9 Ha. 279. 487; Upton v. Ld. Ferrers, 4 Ves. 700; (e) M'Culloeh v. Gregory, 23 L. J. G5G; Anon. 5 Ves. 148. 2 Eq. R. 1088. (/) Andi'ews v. Emerson, 7 Ves. 4; White (/) 2 Fow. Pra. 318 ; 1 Tur. Pra. 131 ; v. Wilson, 14 Ves. 151 ; Anon. 3 Mad. 494 ; Sullivan v. Bayley, 1 Fla. & Ke. 4G0, as to Manners v. Furze, 17 L. J., N. S., 485. investigation of title. (m) Connellu. Hardie, 3 Yo. & Col. 677; (g) Gen. Birch's case, MS.; Banks v. Bourn v. Bourn, 13 Sim. 189; Terson ?\ Banks, IG Bea. 60. Hawkins, 18 Jur. 721. As to the ride in Ire- (/«) Banks v. Banks, 16 Bea. 380. land, Hutchins v. Ilutchins, 1 Ir. Eq. R.378. (;.) Scott V. Nesbit, 3 Bro. C. C. 475; (?;) Brooks v. Snaith, 3 Ves. & Be. 144. 92 OF OPENING BIDDINGS. [CH. 3. S. II. Court will act upon it, though it be less than 10 per cent {. {h) O'Connor v. Richards, 1 Sau. & Scu, Roberts, 6 Jur, G80. 246 j explained, 1 Fla. k Ke. 210. (o) Anon. 1 Ves. j. 453. 94 OF OrENING BIDDINGS. [CH. 3. S. II. time of sale, and an over-bidding of 150/.; the Lord Chancellor refused it, saying, he would not open it for a less sum tlian 500/., and that the circumstance that the bidder was too late was no ground at all. 12. The jierson who is desirous of opening the biddings having been present at the sale, and having bid, is no objection to their being- opened, although a greater advance may, on that account, be re- quired (jo). Nor is it material that the applicant is entitled to a part of the produce of the estates (q) . 13. 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 are-sale will be set aside by discharging the certificate of the bidder's being the best, and the Court will certify the person who procured the biddings to be opened as the best bidder at the price at which he opened them (r). 14. 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 alloAV- ance for his costs {s). But 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 {t). 15. After the confirmation absolute, although irregular, the order must be discharged before the biddings can be opened (w). 16. If a person purchase several lots and the l)iddings are opened as to one, he will have an option to open them all {x). The persons desii'ous 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 pur- chaser desires to relinquish them, and they shall not upon the re-sale fetch that sum (3/). 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 to have the biddings opened as to all the lots (c), but the rule ought to be universal. Where several lots are sold to different purchasers, a separate motion must be made to open the biddings for {p) Rigby t). M'Namai'a, 6 Ves. 117; Tait v. Clinton, 1 Ves. & Be. 361 ; Chester v. V. Lord Northwick, 5 Ves. Go5 ; see 15 Ves. Gorges, 2 Mol. 505. 14;. M'Cullock u. ■ Cotbach, 3 Mad. 314, {t) Ld. Macclesfield v. Blake, ubisup.; where the V. C. ruled contra; but rule es- Owen v. Foulks, 9 Ves. 348; West r. Viu- tabllshed by Thornliill v. Thoruhill, 2 Ja. & cent, 12 Ves. 6; Chapman v. Fowler, 3 Ha. Wal. 347; Pearson d. Pearson, 13 Pri. 213; 577; Filder v. BeUingham, 1 Col. N. C. Tyndale p. Warre, Jac. 525 ; Lefroy v. Le- 526, where interest was allowed, fi'oy, 2 Rus. GOO ; .Biggs v. Rowe, 1 Sau. & (w) Vansittart v. James, 1 C. Coo. 379. Sen. 152, (x) Boyer v. Blaekwell, 3 Ans. 657 ; ex (q) Hooper v. Goodwin, Coo. 05. pte. Tilsley, 4 Mad. 227, n. ; 2 My. & Cra. (/•) ]\Iolesworth v. Opie, 1 Dick. 280. 726. 731. (.v) Rigby V. M'Namara, 6 Ves. 466 ; Ld. (y) Bates v. Bonnor, 6 Sim. 380. Macclesfield v. Blake, 8 Ves. 214 ; Trefusis (z) Price v. Price, 1 Sim. & Stu. 386. CII. 3. S. II.] OF RESCINDING THE SALE. 95 each lot ; one motion to open all, although on an advance of a certain sum for each lot, will not be permitted (a). 17. If after the certificate is absolutely confirmed, the purchaser sell to another, the second purchaser may be substituted in the place of the first purchaser, although the first purchaser is dead and his heir is abroad {b). 18. If a purchase be rescinded, and the purchaser has paid his money into Court, and it has been laid out 2ipo?i his application, he is to take back the stock, whether the funds have fallen or risen since the investment (c). 19. 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 sub- mitting to forfeit his de])osit, will be discharged from his purchase (d). But otherwise a purchaser will not be permitted to forfeit his deposit, and abandon the contract, however disadvantageous it may be. The persons who opened the biddings for General Birch's estate were not allowed to forfeit their deposit, although the price was much beyond the value of the estate (e). 20. But where the purchaser has by mistake given an unreasonable })rice for the estate, the Court will in a proper case wholly rescind the contract. In Morshead v. Frederick (f), Smiths, the bankers, were tenants in possession of a house, for which the?/ paid two rents, one a ground rent of 561. 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 pur- chase of it, and employed him to value it. The broker had an inter- view with the attorney concerned in the sale, who stated, that the rent })ayable 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 n^oved 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. But the party must not be guilty of delay after the mistake is discovered (y). 21. Where a purchaser accepted the title, and paid his money Into (n) Goodall v. Pickford, 6 Sim. 379. Per. & Dav. 387 ; 9 Ad. & El. 520; Gregg (b) Pearco v. Pearce, 7 Sim. 138. ^. Glover, 1 Jr. Eq. R. 211. (c) Hodder v. Ruffin, V. C, 21 Mar. 1825, (c) MS. Scwel v. Johnson, Bmi. 70. MS. Tompsett v. Wickens, 2 Jiir., N.S., (/) Ch.20 Feb, 1806, MS.App.toPurch.j 10. Coote V. Coote, 2 Ir. Eq. R. 159. (».xt^ was held that no incorporeal inheritance, or for life or years, affect- «^^>^^ / ^ ing land, can be created without deed, and that a mere license is -^^^,,^ J7. revocable, although granted by deed and for a price paid. It was ^ doubted whether the license in Webb v. Paternoster was not under seal, but the several reports of that case do not seem to justify that doubt, and it has always been treated as a case of parol license. Wood V. Lake was not considered an authority. This view is wholly independent of the question on the statute of frauds, and indeed in cases like Webb v. Paternoster, and Wood v. Lake, renders it un- necessary to consider that question. 5. An agreement under the fourth section which cannot be enforced 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). (J.) 13 Mee. & Wei. 838; Perry ?;. Fitz- auctioneer to sell on the property of another, howe, 8 Q. B. 757 ; Roffey v. Henderson, revocable. 17 Q. B. 574; Wallis v. Harrison, 4 Mec. & («i) Carrington v. Boots, 2 Mee. & Wei. Wei. 538 ; parol license will not bind the 257 ; Winter v. Brockwell, 8 Ea. 308 ; inheritance and run with the land. Taplin Crosby v. Wadsworth, U Ea. G02. V. Florence, 10 C. B. 744, license to an SECTION II. OF THE FOURTH SECTION. 1. Extends to interesls created de novo. 3. Exclusive right to vesture ivithin if. — Growing crops, as grass. — Or growing poles, underti'ood, timber. 5. Silt not wheat. G. Nor trees sold as vwod. 7. Nor potatoes. — Turnips. — Hops. — Crops beticeen tenants. — Fixtures. 8. But void sale, if executed, binding. 9- Mining company shares within Ath sec- tion. — Not railway shares. 10. Entire parol 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 ; therefore an agreement for an assignment of a lease will not be binding, unless made in writing (a). So an agreement to deliver \\\> possession to («) Anon. 1 Yeut. 3G1 ; see Poultney v. Hohnes, 1 Str. 405. g2' 100 OF TITE SALE OF STANDING CROPS. [CII. 4. S. II. the purchaser of property held from year to year, amounting to a sale, is an interest witliin this section (h). 2. If a man, having agreed verbaUy 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 (c). 3. An actual interest agreed to be granted in land of course falls Avithin the fourth section, and requires a written agreement. If an ao-reement 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 an agreement to sell a growing crop of mowing grass, to be mowed and made into hay by the purchaser, requires a written agreement (d). So where such an exclusive right is not given, yet an agreement to sell a crop which would not go as emblements to an executor, e. (j. a crop of grass, can only be bound by a written contract (e) ; which applies equally to a sale of growing poles (/), or of standing underwood (^), and of course therefore of timber (A). 4. Where a farm was let by parol, and the tenant was to take the "•rowing crops and pay for them, and also for the work, labour, and materials, in preparing the land for tillage, it was hold that the case fell within the fourth section (z). 5. But any crop which would be emblements, and might be taken in execution, for example, wlieat, may be considered goods and chattels, and therefore not witliin the fourth section (A). 6. So an agreement to sell standing timber, as trees, at so much a foot, which the proprietor had begun to cut down, and the purchaser bought them after two had been felled, was held to be a contract for the trees when they should be cut down and severed from the free- hold (/) ; the timber was to be made a chattel by the seller (m). This, therefore, is an exception from the general case of selling standing timber. 7. And sales of potatoes in the ground, which Avould be emble- ments, do not fall within the fourth section ; wliether sold at so much per sack, to be dug by the purchaser and taken away immediatehj , which is considered as a sale merely of the potatoes, and the land a (6) Smart v. Harding, 15 C. B. 652. (A) Rhodes v. Baker, 1 Jr. C. L. R. 488. (c) Seaman ?;. Price, 1 Ry. & Mo. 195. (t) Ld. Falmouth v. Thomas, 1 Cro. & \d) Crosby r\Wadswoi-th,OEa. 002; Cai-- Mee. 89; 1 Atk. 175; Poulter v. Killing- rington v. Roots, 2 Mee. & Wei. 248; Jones beck, 1 Bos. & Pul. 397 ; 6 Ea. G13; May- V. Flint, 10 Ad. & El. 753. field v. Wadsley, 3 Bar. & Cres. 357. (e) Evans v. Roberts, 5 Bar. & Cres. 829 ; {h) 3 Bar. & Cres. 3G4. Smith V. Surman, 9Bar. &Cres.5GG; Graves (0 Smith v. Surman, 9 Bar. & Cres. 5C1 ; V. Weld, 5 Bar. & Ad. 105. 4 Man. & Ry. 455. (/) Teall V. Anty, 4 Moo. 542. (///) 1 Cro. & Me. 105. iy) Scorell v. Boxall, 1 Yo. & Jer 390. ClI. 4. S. TI.] OF THE SALE OF STANDING CROPS. lOl mere warehouse for them («) ; or Avhether they are then growing and sold at so mucli an acre, to be dug and carried away by tlie purcliascr, without any time limited, 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 chattel (o) ; or whether the crop be in a growing state, and be sold by the cover, to be turned up by the seller (/>) ; or the crop be sold at 80 much a sack, to be dug by the purchaser at the usual time, and to be then i)aid for, which is a contract to pay so much per sack for the potatoes when delivered (//). 80 a crop of turnips, even recently sown, is not within that section (r). Neither, it seems, would a parcel of growing hops fall within its provisions (s). 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 {t). Where (u) a tenant having a right to remove fixtures left them in the house, upon a verbal agree- ment 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. 8. Although a parol agreement, which is within the fourth section, cannot be enforced before it is executed, yet if the agreement is executed by delivery and acceptance of the subject-matter of the sale, the seller may recover (.r). And where (y) upon a parol con- tract the buyer felled and took away the trees, and afterwards admitted he had made the purchase at the price, the seller recovered the money. 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 (z). 9. In a case in Ireland («), a sale of a share in a mining company was held, by the Court of King's Bench, to be within the statute. The company were engaged in a partnership in interests, in or con- cerning lands. The nature of mining implies a right to open the ground, and keep It open, and such right to the land for a limited («) Parker r. Staniland, 11 Ea. 3G2. 191 ; Colegi-ave v. Dias Santos, 2 Bar. & (o) Warwick v. Bruce, 2 Mau. & Sel. 205. Cres. 76 ; Clayton v. Burtonshaw, 5 Bar. & (ji) Evans v. Roberts, 5 Bar. & Cres. 829 ; Cres. 47. 6 Bar. & Ad. 116; Hallen v. Runder, 2 (x) Teal v. Auty, 4 Mo. 542; Cocking u. Cro.& Mee. 266. Ward, 1 C.B. 858; Kelly v. Webster, 12 (q) Sainsbui-y w. Matthews, 4 Mee. &Wel. C. B. 283 ; or where an agent has paid on 343. request of his principal, Paule v. Gun, 4 Bin. (r) Dunne v. Ferguson, 1 Hay. 541. N. C. 445. («) Waddiugtour. Bristow, 2 Bos. & Pul. (y) Knowles v. Michel, 13 Ea. 249 ; Grit- 452. fith V. Young, 12 Ea. 513. (t) Mayfield v. Wadsley, 3 Bar. & Cres. (z) 29 Cai-. 2, c. 3, s. 17 ; Evans i: Ro- 357 ; Emmerson ii. Heelis, 2 Tau. 38, con- berts, 5 Bar. & Cres. 829; Smith v. Sunnan, tra, is oveiTuled, 5 Bar. & Cres. 832. 9 Bar. i: Cres. oG6. (u) Haller t'. Ruudcr, 1 Cr. Mee. & Ros. («) Doycc v. Green, Batty. 608. •Mii (1834); Lcc v. Risdeu, 7 Tan. 188, G o 102 BY WHOM AGREEMENT [CH. 4. S. III. time and purpose as induced the Coiirt, in Crosby v. Wadsworth (b), to hold a contract for the sale of a growing crop to be within the statute. The company had many mines at work in different parts of Ireland, some purchased, others rented. The sale thereof was of a share in those houses and interests in lands which the company had acquired ; but this is otherwise as to regular railway shares, which are not land nor personal estate of the quality of goods (c) ; and it has been decided, although with some difference of opinion, that shares in a mine conducted on the cost-book principle, are not within the statute. It Avas held that there is no difference in principle between shares in incorporated joint stock companies, and shares in unin- corporated ones. The principles it was said are perfectly clear. If there be a joint interest in land in the different shareholders, so to speak, as they call themselves, of a mine, that must pass under the fourth section of the statute. On the other hand, if the real interest of the shareholders is merely a divisible portion of it, arising out of the employment of their capital in the working of the mine, there is no interest in the land, and it is not within the meaning of the fourth section (fZ), and this must now be considered the general rule. 10. 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 su[)ported as to the personal property which was sold with it (e) ; and if the agreement be a valid one, yet no property in the goods vests in the purchaser before the contract is executed (y"). 11. Of course although the word purchase is not used, yet if one is to give up possession of a house, for example, to another wdio is to pay liim a sum of money and to take certain things at a valuation, the whole agreement is within the statute (ff). - (b) G Ea. GO-2. Corder v. Drakcford, 3 Tau. 382; Mayfield (c) Bradley v. Ilolilworth, 3 Mee. & Wcl. v. VV^adsley, 3 Bar. & Cres. 357 ; Ld. Fal- 422; Duncuftr. Albrccht, 12 Sim. 189. and mouth v. Thomas, 1 Cro. & Mee. 89; Me- cases in n. clielen v. Wallace, 2 Nev. & Per. 224 ; 7 Ad. ' (d) Watson v. Spratley, 10 Ex. 222 ; see & El. 49 ; Vaughan v. Hancock, 3 C. B. 7(!G. Toi)pin V. Lomas, 16 C. B. 145; Powell v. (_/') Lanyou v. Toogood, 13 Mee. & Wei. Jcssopp, 18 C. B. 33G. 27 ; Sleddon v. Cruikshank, 16 Mee. & (e) Cooke v. Tombs, 2 Ans. 420 ; Lea ?,'. Wei. 71. Barber, ib. 425 ; Chatcr v. Beckett, 8 T. (ff) Smith v. Tombs, 3 Jm'. 72. Hep. 201; see Neal w. Vinoy, 1 Ca. 471; SECTION III. OF THE FORM AND SIGNATURE OF THE AGREEMENT. 2. S'ujnature hij party iu be charijed svjfi- cient. ?>. Blank for seller's name fatal. 4. IIow the other parti/ maij be bound. 6. J ! 12. Conditioual oj/er 7. Receipts and tetters snfficient, — Stamj)- iny letters. 9. Offers in writing binding. 10. Unless there be fraud. 11. ISinipie accei/funce bending. en. 4. s. III.] IS TO EE SIGNED. 103 13. Posting lettei\ 14. Offer may he retracted before acceptance. 15. Where special acceptance necessary. \G.'\Receipt or letter must specify all the 19.1 terms. 20. Consideration should appear. 22. Trifling omission fatal. 24. 1 Omissions supplied by reference to other 30. / writings. 2G. Instructions for contract not sufficiently referred to. 27. Bankruptcy discharges offer. 31. What amounts to an adoption of an un- signed agreement. 32. Insufficient references to other papers. 33. Boyce v. Green. 34. Want of signature not supplied by letter abandoning an agreement. 35, Reference to different contract insuffi- cient. ZG.'y Auctioneer^ s receipt, entry, Sfc, biad- 37. J ing. 38. 'I r,Q I Letters to third persons binding. 40. Bonds of reference to surveyor. 41. Rent rolls, abstracts, 8(C., not agree- ments. 44. Nor draft of conveyance. 45. Valid agreement bindiiig, though sent as instructions. 47. 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 an agent lawfully authorised. 2. There is a marked distinction between the 4th section, which we have principally to consider, and which simply enacts that no action shall be brought upon the contracts in question unless in the cases provided for, and the 17th section relating to goods, which enacts that no contracts struck at shall be allowed to be good, al- though that distinction has sometimes been lost sight of («). The 4th section 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 liy the person to be charged {b). This, after much controversy, has been established by great authority. It was finally settled by the case of Laythoarp i\ Bryant (c), that the agreement was binding upon the party who signed it. The Court thought there was no reason for saying that the signature of both parties is that which makes the agreement. The agreement in truth is made before any signature. The word agreement was satisfied if the writing states the subject-matter of the contract, 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 burthen not impeach this doctrine; 5 Ea. 10; Allen V. Bennett, 3 Tau. 1 GO. As to Wain v. Warl- ters, see Stadt v. Lill, 9 Ea. 348 ; 1 Ca. 242 ; (a) Leroux v. Brown, 12 C. B. 801. (b) Hatton v. Gray, 2 Ch. Ca. 1G4; Cot- ton V. Lee, 2 Bro. C. C. 564 ; Coleman v. Up- cot, 5 Vin. Ab. 527. pi. 17 ; Buckhouse v. Crossby, 2 Eq. Ca. Ab. 32, pi. 44 ; Seton v. Slade, 7 Ves. 265; 2 Ja.&Wal.428; Fowle V. Freeman, MS. ; 9 Vcs. 355 ; 1 Sch. &; Lef. 20 ; 1 1 Ves. 592; Western v. Russell, 3 Ves. & Be. 187 ; see Waiu v. Warltcrs, 5 Ea. 10 ; Etrertou v. Matthews, 6 Ea. 307, ^vllic•ll do Hx pte. Minet, 14 Ves. 189; J^.x jjte. Gar- dom, 15 Ves. 286; Bateman v. Philips, 15 Ea. 272 ; Sanders v. Wakefield, 4 Bar. & Al. 595 ; Jenkins v. Reynolds, 3 Bro. & Bin. 14; Bainbridge v. Wade, IG Q. B. 89. (c) 2 Bin. N. C. 735. G 4 104 ny AviioM agreement is to be signed, [cii. 4. s. iii. of the proof of some other paper in tlie liands 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 cor- respondence ; 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 con- tract. The word -party in the statute is not to be construed party as to a deed, but person in general {(I) ; but there have been instances in Avhlch the want of the signature to the agreement by the party seeking to enforce it, has been deemed a badge of fraud (e); 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 repudia- tion of the contract ( / ), The rule applies to courts of law as well as to courts of equity {g), 3. In a case at Nisi Prius (/i), upon an action by the seller ; on the l)rinted conditions, an agreement signed by the purchaser was in- dorsed, Avhlch acknowledged the purchase by auction of Messrs. Walters, the auctioneers, as agents for — [here a blank was left for the seller's name] — the property was properly referred to and the price was stated. Lord Tenterden showed that the declaration alleged the consideration to be the sale by the plaintiff, but nothing appeared to bind him — his name was not mentioned in the conditions nor in the agreement. What a court of equity would do in this case he could not say. It was the duty of the auctioneer to sign, and he often had occasion to lament they did not do so. Equity, we may observe, would have bound the purchaser by his signature had the agreement contained all the terms. The objection in eqviity as well as at law was, that the seller's name was not inserted in the agree- ment, and was not supplied by his signature, and that the auctioneers' name was not inserted as sellers or as assents of an undisclosed principal, but as agents of a person whose name was intended to be disclosed, but was left in blank, so that no seller's name was con- tained in the agreement {J). A purchaser should always require the auctioneer to sign as well as himself; he would be perfectly justified in refusing to sign unless the auctioneer also joined. 4. Where a contract in Avriting or note 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 con- (d) 3 Atk. 603. v. Bennct, 3 Tau. 17G ; 18 Yes. 183 ; Lay- \e) O'Rourke i\ Percival, 2 Bal & Bea. 58. thoaip v. Bryant, 2 Bin. N. C. 735 ; Field v. if) 2 Bal. & Bea. 371 ; Martin v. Mitchell, Boland, 1 Dru. & Wal. 37. 3 Swa. 428. (h) Wheeler v. Collier, 1 Moo. & Mai. 123. ((7) Bowcnu. Morris, 2 Tail. 374; Wheeler (i) Jacob v. Kkk, 2 Moo. 6i Rob. 220. r. Collier, 1 Moo. k Mai. 123; but see Allen ClI. 4. g. III.] RECEirTS. LETTERS. STA^MPS. 105 tract, or refers to any writing wlilch contains tliem, although it is not written with any view of binding the writer by the contract (k). 5. But although the agreement nuist be signed, yet it need not be so averred in a bill for a specific perfoi'inance ; for as the allegation in the bill is that there is an agreement in writing, signature must be presumed until the contrary is shown (/). 6. If a written agreement has been in part executed, it seems that an agreement subsequently entered into between the parties, and re- duced into writing, will bind them both, if signed by one of them (m). 7. A receipt for the purchase-money may constitute an agreement in writing within the statute (/?) ; 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) ; but every agreement must be stamped before it can be read (p) ; and, as this ought to be done, the Court will permit the cause to stand over to get the agreement stamped, and will assist either party in obtaining it for that purpose. In Fowle v. Freeman (q), the agreement unstamped was sent by the vendor to his attorney, with a letter written at the bottom, directing him to prepare a technical agreement. The attorney contended that it was a private letter to him ; but the Court, on motion, ordered it to be delivered to the purchaser for the purpose of getting it stamped. It has been decided that although a receipt for purchase-money is not properly stamped, yet if it contain the terms of the agreement, and is l)roperly stamped as an agreement, it may be received as such, though not as evidence of the payment of the money (r). 8. But if the agreement is admitted by the answer, so as to dis- pense 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 i)laintifF's case, and need not be stamped, nor can the fact of the agreement not being stamped be taken advantage of (s). 9. If, upon a treaty for sale of an estate, the oAvner 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 {t), accept the terms mentioned in it, the owner will (k) Dobell V. Hutcliinson, 3 Ad. & El. (p) Ford r. Com pton; Ilcarne d. James, 353; inf. 2 Bio. C. C. 32, 300. (/) Rist V. Hobson, 1 Sim. Sc Stu. 543. (l^ I^o"s, MS. 9 Ves. 351 ; a.s to stamps . , _ T, • 1 A/ ai "o^'' 17 & 18 Vict. c. 125, s. 28, 29, Inf. (7n) Owen v. DaVieS, 1 Ves. 82. ^ ^ a i^ r^i ^ m \ ^ c -.i ono ^ ' ch. 14, s. 2; Clarke v- Tcvrel, 1 Smith, 309; (n) Coles V. Trecothick, 9 Ves. 234; Blag- c^les v. Trecothick, 9 Ves. 234 ; Morgan v. den V. Bradbear, 12 Ves. 4G6. Holford, 1 Sma. & Gif. 101. (o) Coleman v. Upcot, 5 Vin. Ab. 527, pi. (r) Evans v. Prothero, I De Ge. Mac. & 17; Buckhouse f . Crossby, 2 Eq. Co. Ab. Gor. 572. 32, pi. 44. As to contract by letters in cases (*) Huddlestone v. Briscoe, 11 Ves. 583. not within the statute, Richards v. Hay ward, (0 3 Mer. 454 ; 1 Col. N. C. 310 ; Wil- 2 Man. & Gra. 574. Hams y. Williams, 17 Bea. 213; qu, whether, 106 OrFERS BINDING. [CH. 4. S. III. be compelled to perform the contract in specie (ii). In Coleman v. Upcot, in which this was decided, Coleman, the intended purchaser, accepted the offer by parol, which would be binding [x) when the letter • was delivered to him by the defendant's son, accompanied by two other persons, but did not subscribe the letter till three or four days after- wards, and the Lord Keeper held generally that the agreement was binding, as it was signed by the party to be charged, and became absolute when accepted, although at first conditional only. In the same case he observed that if a man (being in company) make offers of a bargain, and then write them down a7id sirjn them ; and the other party (I) takes them up and prefers his bill, that shall be a good bargain, and the party shall be compelled to a specific performance of it. 10. But if it appear that, on being submitted to the other party 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 inferred, 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 agree- ment on his part, or as only containing proposals in writing, subject to future revision (y) : and if the aid of equity be sought, these cir- cumstances would have equal weight with the Court. So in every case it must be considered, whether the note or correspondence im- port a concluded agreement : if it amount merely to treaty, it will not sustain an action or suit (z). 11. The letters will not constitute an agreement unless the answer to the offer is a simple acceptance, without the introduction of any new term (a). And at any time before an offer is accepted, and the contract in effect concluded, the seller may add to or alter the terms he has offered, and of course the purchaser may act in like manner {b). If the offer be in effect rejected by, for example, the tender of a less sum, the offer is at an end, and cannot be revived by a simple ac- ceptance of it (c). An acceptance of an offer for a lease, to which as the whole of the purchase-money was {z) Huddlestone r- Briscoe, II Ves. 583 ; paid in Williams v. Williams, and the ven- Stratford v. Bosworth, 2 Ves. & Be. .341 ; dor retained it without any demand, and Ogilvie v. Foljambe, 3 Mer. 53; Warner v. the written offer was free li'om ambiguity, Willington, 3 Drew. 523. and the title was accepted, the vendor's bill {a) Holland v. Eyi-e, 2 Sim. & Stu. 194 ; should have been dismissed. Routledge r- Grant, 4 Bin. G53 ; 1 Moo. & (m) Coleman v. Upcot, 5 Vin. Ab. 527 ; Pay. 717 ; Smith v. Surman, 9 Bar. & Cres. Gaskarthr. Ld.Lowther, 12 Ves. 107; Cow- 561; Thomas v. Blackman, 1 Col. 301 ; ley V. Watts, 17 Jm-. 172; Boyce v. Green, Lucas v. James, 7 Ha. 410. inf. pi. 33. (fi) Honeyman v. Man-yat, 21 Bea. 14. dJ^O. {x) Warner v. Willinglon, 3 Drew. 523. (c) Hyde v. Wrench, 3 Bea. 334. U^e^ i (y) Knight v. Crockford, 1 Esp. 189. (I) Tliis was inaccm'ately quoted in former editions. The words, "another person,'* were substituted for "the other party" : in both the principal case and in the case put, the purchaser's name would appear in the oiler. The ciToncous statement has led to some confusion. en. 4. S. III.] LETTERS OPERATING AS AGREEMENTS. 107 was added tliese words, " we hope to give you possession by the half- quarter day," was held to be no qualification of the contract, and therefore operative {d). In many cases an apparent acceptance may really be a new proposal (e). The acceptance may be by parol, but it must be an unambiguous act ; and therefore the sending of a draft of conveyance may not in all cases amount to an acceptance, and to be binding it must be unconditional ( /). 12. Where the offer to the owner in writing was for a price named, /" . and the latter accepted it by writing " subject to the terms of a con- /l^fr^ o-jh f tract being arranged between his solicitor and the intended purchaser," 5ooj • and a deposit of 1,200/. to 1,500/., and on the next day the owner sent a draft contract to the purchaser's solicitor, which made it a term that 1,500/. deposit should be paid at the date of the contract, but the purchaser altered the contract by reducing the deposit to 1,200/., which the owner rejected, and required the 1,500/. to be paid at a short day, and the purchaser then offered to pay the 1,500/. on a day somewhat later, to which delay the owner objected, it was held that the contract was not a binding one, and that the owner had a right to impose the stipulations as to the deposit as a condition of entering into the contract {g). 13. An acceptance by an owner of an offer by letter will bind him from the time he posts his letter, although it is not received by the purchaser until the following day ; and would, it seems, be binding if the vendor died on the same day on which he posted his letter (A). 14. And although a given time be named in the offer for the ac- ceptance of it, yet it may be retracted at any time before it is actually accepted (i). 15. And where a letter or other writing do not in itself evidence all the terms of the engagement by which the person signing it con- sents 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 ; such special acceptance must be expressed in writing, for otherwise the whole agreement will not be in writing, Avithin the statute (A). 16. The note or writing must specify the terms of the agreement. Thus, upon the sale of nine houses which were in mortgage, the vendor wrote a letter to the mortgagee to tliis effect, " Mr. Leonard, pray deliver my writings to the bearer, I having disposed of them. (d)Cliver. Beaumont, IDeGe.&Sma. 397. of L, Cas. 396. (c) Lucas J). James, 7 Ha. 410. (i) Routledge v. Grant, uhi mp. ; Thorn- (/) Warner v. Willington, 3 Drew. 523. bury v. Bevill, 1 Yo. & Col. C. C. 554 ; Mar- ((j) Honeyman v. fllarryat, 21 Bea. 14, tin v. Mitchell, 2 Ja. & Wal. 413, 428; on appeal to D. P. 6 /d^ /^^ //tl Lucas v. James, 7 Ha. 410; Thornbury v. (h) Potter V. Sanders, 6 Ha, 1 ; Duncan Bevill, 1 Yo. & Col. C. C. 554, V. Thomas, 8 C. B.225 3 as to a mistake in (k) Boys v. Aycrst, 6 Mad. 31G. putting a date to the letter in udvance, 1 H. 108 LETTERS, &C. OPERATING AS AGKEEMENTS. [CH. 4. S. III. Am, &c." Tlic vendor afterwards refused to perform the contract, and a plea of the statute to a bill filed l)y the purchaser was allowed ; because it ought to be such an agreement as specified the terms thereof, which this did not, for it 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 to be disposed of; neither did this letter mention whether they were dis- posed of by w^ay of sale or assignment of lease (/) ; but where the property is described generally as " Mr. O.'s house," parol evidence has always been admitted to show to what house the treaty related (m). An agreement by A to pay 625/. for the cottage and stable, B paying the expenses of the lease held by Mr. Smith, was held to be invalid, as that imported that a lease was to be granted without showing what (w). 17. So where the memorandum was in these words, " Sold 100 Mining Purdy's, at 17 s. 6d., J. Greene," it was held insuflficient, as the names of both the buyer and the seller were not mentioned in it (o). 18. So where (p) upon a parol agreement, the vendor sent a letter to the purchaser, informing him that, at the time he contracted for the sale, the v:ilue 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 men- tioned in the agreement itself. 19. Nor can an auctioneer's receipt for the deposit be set up as an agreement, unless it state the price, or it can be collected from the amount of the deposit, where it appears what proportion it bore to the price (g). 20. In general the consideration appears plainly upon the face of the agreement, viz., the price. An undertaking by a solicitor, whose client had made default in completing a })urchase, that he (the soli- citor) would settle the purchase within two months, was held to be a memorandum of a contract in consideration that the seller would accept the offer, sufficiently showing the consideration to satisfy the fourth section of the statute (?'). 21. Where an agreement was executed which referred to certain covenants, which had been read, contained in a descnbed paper, (I) Seagood r. Mealc, Pre. C. 360 ; Rose (m) Ogilvie v. Foljambe, 3 Mer. 53; t'. Cunynghame, 11 Ves. 550 ; Card v. Jaf- Bleakley v. Smith, 11 Sim. 150. fray, 2 Scli. 6c Lef, 374 ; Ld. Ormoiid v. (ji) Cox v. Middleton, 2 Drew. 209. Anderson, 2 Bal. & Bea. 363 ; Champion r. (o) Boyce r. Green, Bat. C08. Plumraer, 2 New R. 252; Hinde v. Vvliite- (p) Clerk v. Wright, 1 Atk. 12; Clinan house, 7 Ea. 556 ; Cooper v. Smith, 15 Ea. v. Cooke, 1 Sch. & Lef. 22. 103; Richards r. Porter, 6 Bar. &Cres. 437; {q) BUigden v. Pradbear, 12 Ves. 466; Graham v. Musson, 7 Sco. 769; all five Elmore tJ. Kingscote, 5 Bar. & Cres. 583. cases on the 17th section ; Price v. Grillith, (/•) Powers i;. Fowler, 4 E. & B. 511 ; 23 1 Dc Ge. Mac. & Gor. 80. L. T. Ex. Ch. 203. en. 4. S. TTI.] LETTERS OPERATING AS AGREEMENTS. 109 which, in fact, contained the terms of the agreement ; it appeared that all the covenants had not hocn read ; and which of them had been read, and which had not, was the difficulty to be solved by parol testimony ; and such evidence was held to be inadmissible (s). 22. Neither will a performance be compelled on a note or letter, if any error or omission, however trifling, ai)pear in the essential terms of the agreement. 23. In a case (t), where the bill was brought for a specific per- formance, 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 5 s. oris.; 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, wdiether at law the party could recover damages ; for if he could not, the Court ought not to carry such agreements into execution (I). 24. If the property be not identified, but is capable of being so by ^^^/J.a/ the reference in the agreement or letter, that is sufficient ; therefore a letter w^ritten by the seller to the purchaser's solicitor, stating that "he had sold the house, &c., 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 (u). 25. So although a letter do not in itself contain the whole agree- ment, yet if it achtalhj refer to a writing that does, that will be sufficient, although such writing is not signed. Thus 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 w^as expressed in the advertisement ; and («) Brodie v. St. Paul, 1 Ves. j. 326; Eyre, Lofft, 786; Gordon v. Trevelyan, 1 Higginson v. Clowes, 15 Ves. 516 ; Lindsay Pri. (U ; Blorc v. Sutton, 3 Mer. 237 ' Price V. Lynch, 3 Sell. & Lef. 1. ; 1 Sch. & Let". v. A .^^sheton, 1 Yo. & Col. 441 ; Kenworthy 38; O'Herlihy v. Hedges, ib. 123. v. SchoKuld, 2 Bar. & Cres. 945; 3 Tau. 173. {t) Ld. Middleton v. Wilson, et e confrfi, (ii) Owen v. Thomas, 3 My. & Ke. 353. Chan. 1741, MS.; Lofft, 801; 9 Ves. 2.52; So as to other expressions, Skinner r. Stokes V. Moore, 1 Cox, 219; Popham v. ftlcDouall, 2 De Ge. & Sma. 265. (1) The case is in Reg. Lib. 1741, fo. 260, by the name of Ld. Rlidflleton v. Eyre. The estate was sold by an agent to Dr. Wilson, by ]iarol, and the parties ajipear to have bound themselves by letters, the particulars of whicli do not ajipear in the register's book. The parties beneficially interested afterwards sold the estate for a greater jjrice to Ld. Middle- ton, who filed a bill for a specific performance of the agreement, and Dr. Wilson filed a cross-bill. The cross-bill was dismissed with costs, and in tlie (U'iginal cause a specific performance was decreed. The point in the te.xt is not stated in the register's book. 110 LETTERS AS- AGREEMENTS. -OrrERS. [CH. 4. S. Illi then the identity of the advertisement might be proved by parol evidence (x). And Sir William Grant thought that a receipt which did not contain the terms of the agreement, might have been enforced as an ao-reement, had it referred to the conditions of sale, which would have entitled the Court to look at them for the terms (y). 26. A letter from the agent of an ovmer (In reply to a letter from iTJf^.Jf/jC. ^"os^ an intended lessee, asking for a copy of the agreement), stating that instructions had been given to a solicitor to prepare the agreement, and that the terms had been arranged, was held to be of no avail, although full instructions in writing had been left with the solicitor, as the particular paper containing the terms was not refei'red to. It was said that the letter could not be considered stronger as an agree- ment than if he had written : *' I have entered into an agreement with you to lease the estate, and I have desired the solicitor to prepare a lease according to the terms arranged between us ;" and that would not be a valid contract within the statute (z). The ques- tion In the principal case appears to have been whether the particular paper, viz., the written instructions, was not sufficiently identified by the letter. 27. If, after an oflfer and before it is accepted, the party making the offer become a bankrupt, the offer has no longer validity, because the interest Is transferred to the assignees, and the offer does not bind the land (a). 28 . Where a written offer or proposal to sell was sent by the owner to A, followed by another letter from the owner to A, stating that he had just received ^'s note (which did not appear), and was glad he had determined to purchase the farm, and concluded 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. The proposal was in the seller's handwriting, and, coupling that with the letter, it amounted to an agreement signed by the party to be charged within the 4th section {h). In this case therefore the words were spelled, with a view to collect from them that some proposal had preceded them, and that being made out, parol evidence was admitted to prove the proposal in writing, which had actually been sent. (x) Clinan v. Cooke, 1 Sch. & Lef. 22 ; field, 2 Bar. & Cres. 945 ; Tur. & Rus. 352; Cass V. Watei-liouse, Pre. C. 29; Hinde v. Carroll v. Cowell, 1 Jeb. & Sy. 43; Wood Whitehouse, 7 Ea. 558; Feoffees Heriot's v. Midgley, 2 Sma. & Gif. 115, 2 Eq. R. 729. Hosp. V. Gibson, 2 Dow, 301 ; Powell r. (r) Ridg^ay v. Vi'harton, 3 De Ge. Mac. Dillon, 2 Bal. & Bea. 416 ; Jacob v. Kii'k, 2 & Gor. 677, an appeal to D. P. pending, 2 ^^ Mo. & Ro. Ca. 221. Eq. R. 86l'^Wood v. Midgley, 2 Sma! & Gif. (\j) Blagden v. Bradbear, 12 Ves. 466; 115; 5 De Ge. Mac. & Gor. 41. Shippey v. Demson, 5 Esp. 190; Hinde v. (a) Meynelli'.Surtees, 25 L.J., N.S.,257. Wlutuliouse, 7 Ea. 558 ; Kenwortliy c. Scho- (b) Western v. Russell, 3 Ves. & Bea. 187. en. 4. S. III.] LETTERS OPERATING AS AGREEMENTS. Ill' 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 sub- ject (c), or with the conditions of sale, where they are referred to by the agreement, and contain the name (rZ). 30. The cases 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 terras of the contract, or refers to any writing which contains them (e) ; but we may 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. 31. 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 agree- ment ; 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 Lord Thurlow to take the case out of the statute, as clearly referring to the written instrument {f). Still a man may say, I have agreed, but I will not sign an agreement : that is no fraud (^). 32. But in these cases there must be a clear reference to the par- ticular paper, so as to prevent the possibility of one paper being sub- stituted for another (Ji). Where the contract is made out by several letters they must be so connected by written links as to form one written contract ; and it was said, in order to do that, one letter must refer to the other expressly, and not merely to the subject of the con- tract (i). 33. In a case where the memorandum was " Sold 100 Minino- Purdy's, at 175. 6 c?., J. Greene," the purchaser insisted that the de- fect in the memorandum was removed by the seller having himself admitted the agreement by sending to the purchaser another paper, containing these words : " I hereby undertake to have transferred to Messrs. John & J. Boyce one hundred shares in the Mining Com- pany of Ireland, as soon as the hooks are opened for that inirpose. Value received, 7tli January 1825. James Greene." 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 connected Avith it or (<;) Allen v. Bennet, 3 Tau. 1G9 ; Western son, 2 Bo. & Pul. 238 ; 9 Ves. 250 ; Hoadly V. Russell, 3 Ves. & Be. 187; Dobell v. v. M'Lain, 10 Bin. 482; but see 1 Sch. & Hutchinson, 3 Ad. & El. 355; Wai-ner v. Lef. 34 ; Tanner v. Smart, 6 Bar. & Cres. Willing-ton, 3 Drew. 523. 603 ; Maunsell v. White, 1 Jo. & La. 567 ; id) Laythoai'p U.Bryant, 2 Bin., N.C., 735. 4 Clark, 1039. (e) Dobell i;. Hutchinson, 3 Ad. &E1.371 ; {g) Woodr.Midgley,5DeGe.Mac.&Gor. sup. ■ 41 J consider this case. (/) Tawneyw.Crowther,3Bro. C, C.161, (/i) Boydell v. Drummond, 11 Ea. 142. 318,320; Forster ij. Hale, 3 Ves. 696 ; Cooke (;) Fyson v. Kitton, 3 Com. L. R. 705. V. Tombs, 2 Ans. 420 ; Saunderson v. Jack- 112 RECEIPTS, ETC., BY AUCTIONEER. [CII. 4. S. III. 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 was an vindertak- ing to transfer to Messrs. John & J. Boyce ; secondly, a certain con- dition was introduced Into It which was not in the other Instrument (A). 34. A letter written as an ahandonment 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 (Z). 35. And if the agreement is defective, and the letter refers to a dif- ferent 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 {m). 36. As we shall hereafter see, an auctioneer is an agent lawfully authorised for the vendor and purchaser within the statute. 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 agree- ment on the part of the vendor within the statute (ji). 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 w^hom the estate is sold, and the price it fetched, w^ould be deemed a suffi- cient memorandum of the agreement to satisfy the statute (o). This, however, it clearly would not, unless it either contained the condi- tions of the sale and the particulars of the property, or actually referred to them, so as to enable the Court to look at them (p). 37. Where the sale was made subject to conditions, which were read by the auctioneer before the biddings commenced, but were not attached to the catalogue, or referred to by it, 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, formed no part of the thing signed. If the conditions had been separated from the catalogue during the progress of the sale, still the signature to the latter, made after the separation, Avould have been unavailing (^). Where the particulars and conditions were altered and turned into an agreement for sale by private contract, and the Intended purchaser agreed to sign it, and the auctioneer signed a " memorandum that Mr. T. MIdgley had paid to him 50 /. as a depo- (Jc) Boyce v. Green, Bat. G08. inf. ; but see Mussell ?;. Cooke, Pre. C. (1) Gosbell r. Archer, 2 Ad. & El. 500; 533; Charliwood v. Duke of Bedford, 1 5 De Ge. Mac. & Gor. 4G; see Warner v. Atk. 497; Ramsbottom v. Mortley, 2 Mau. Willington, 3 Drew. 523. & Sel. 445. (7?i) Cooper V. Smith, 15 Ea. 103; see (p) Blagden».Bradbear,?) ; for the law of England recognises only two kinds of contracts ; viz. specialties and parol agreements, which last include all writings not under seal, as well as verbal agreements not reduced into writing (c) (I). The statute makes signing only requisite to the validity of a Avritten agreement ; if a man be in the habit of [)rlntlng or stamping instead of writing his name, he would be con- sidered to have signed by his printed name {d) ; so a signature in pencil Avould be sufficient {c). 2. The signature required by the statute is to have the effect of giving authenticity to the icliole 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 (_f ). There- fore, 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, '' A B agrees to sell, &c." {g). And such a signature will be sufficient, although a place be left for a signature at the bottom of the instrument (Ji). But an agreement drawn in the usual manner, and of course containing the names of the parties, and ending with " as witness our hands," is not binding ; if it was, every common (a) 1 Ch. Ca. 85, (b) Ld. Normanby i'. Duke of Devon, 2 Free. 210. (r) Rtiiin r. Huglics, 7 T. Rep. 350, n., MS. ; Wheeler i;. Newton, Pre. C. IG. (rf) Saunderson v. Jackson, "2 Bo. & Pul. 238 ; 3 Man. & Gra. 766 ; Sclmeider v. Norris, 2 Man. & Sel. 286. (. Carr, 3 Wooddes, 423 ; Ab. 522, pi. 35; Wyatt «. Allen, App. No. Rueker r. Cammeyer, 1 Esp. 175; Coles z;. 9, to Purch. Trecothick, 9 Vcs. 234; Ban-y v. Ld.Bany- {d) Howard v. Braitliwaite, 1 Ves. & Be. more, 1 8ch. & Lef. 28; Clinan v. Cooke, 202; sec now, as to evidence, 14 & 15 Viet. ib. 22 ; Emmerson v. Heelis, 2 Tau. 38 ; see c. 99, IG & 17 Vict. c. 83 ; Ridgway v. Whar- 2 Nev. & Per. 530 ; Graham v. Musson, 5 ton, 3 De Ge. Mac. & Gor. G77. Bin. N. C. G03 ; Callaghan v. Pepper, 2 Jr. (e) AV ilson v. Hart, 1 Mo. 45 ; IVIarston Eq. R. 399; Wire v. Pemberton, 4 Dc Ge. v. Roe, 8 Ad. & El, 14. & Sma. 388. (/) Field v. Boland, 1 Dru. & Wal. 37. (6) Mayor of Ludlow W.Charlton, OMce.& (r/) Coles v. Trecothick, 9 Ves. 234; Wei. 815; .';ec Ad. & El. 829, 84G. Blore v. Sutton, 3 Mcr. 237; 4 Bar. & (c) Mortlock V. HuUer, 10 Vcs 292; Da- Ad. 44G. niol V. Vdams, Amb. 495 ; Charlewood v. CII.4. S. v.] AUCTIONEER AGENT OP BOTH PARTIES. 119 time before an agreement Is executed according to the statute, al- though the agent has ])revIously agreed verhally to sell the pro- perty (Ji) ; and an intended purchaser may in like manner revoke his authority to his agent to purchase (/). And, on the other hand, he may adopt the act of a man acting as his agent {It). 5. The auctioneer and his clerk may be considered as the con- stituted agents of the vendor ; he appoints the former to announce the biddings, and the latter to take down the names of the purchasers and the prices of the lots. 6. The statute requires every agreement as to lands, or some me- morandum or note thereof, to be in writing, and signed hi/ the parti/ to he charged, or some other person thereunto (that is, to the signing thereof) (/) by liim authorised. And that as to goods, some note or memorandum in writing of the bargain shall be made and signed by the /yarties to be charged by such contracts, or their agents, thereunto authorised. And yet it has been decided, that the signature of the party to be charged by himself or agent is sufficient, even in a con- tract for goods {m), 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. And it may now after much controversy be laid down generally, that an auctioneer is the agent of both parties upon a sale of lands or goods, so as to be enabled to bind them both under the statute {n). And an auctioneer's clerk who takes down the biddings openly is considered the agent of both the seller and purchaser {o). But this principle of implied agency in an auctioneer is not extended to other cases {/)). 7. If was always clear, that an auctioneer, appointed by a vendor, was a good agent for him within the statute {q). And although a purchaser bid by an agent, yet the auctioneer is still duly authorised to sign the agreement (r). 8. The agent must be a third person ; neither of tlie contracting parties can be the agent of the other {s) ; and therefore, although a (//) Farmer v. Robinson, 2 Ca. 339, n. Enckmaster v. Harrop, 7 Vcs. 341 ; 13 Yes. (i) As to sales by anclion, IJIandon ?'. 456; Coles t'. Trccotkiek, 9 Yes. 234; 13 Bradl)car, 12 Yes. 407 ; Mason v. Arniitago, Yes. 473 ; Emmcrson v. Hcclis, 2 Tan. 38 ; 13 Yes. 25. 1 Cas. & Op. 142, 143; White v. Proctor, {It) T)if. ; De Ecil v. Thomson, 3 Bca. 409. 4 Tan. 209 ; Kemys v. Proctor, 3 Yes. & (/) 1 Ves.& Be. 207. Bo. 57; 1 Ja. & Wal. 350; Kenwortliy v. {m) Allen v. Bonnet, 3 Tan. 109. Schofield, 2 Bar. & Cres. 945. (n) Simon v. Motivos, 2 Bnr. 1921 ; Bnl. (o) Bartlett v. PurnoU, 4 Ad. & El. 792 ; Ni. Pri. 280 ; 1 Black, 599 ; Rucker v. Cam- Henderson v. Barnewall, 1 Yo. & Jer. 387. meyer, 1 Esp. 105 ; Hindc v. Whitehonso, {p) Ld. Glengal v. Barnard, 1 Kc. 709. 7 Ea. 558 ; Rondeau v. Wyatt, 2 II. 151ack. {q) Supra. 07; Phillimorc w. Barry, 1 Ca. 513 ; Stans- (r) Emmerson v. Ileelis, 2 Tan. 38; field V. Johnson, 1 Esp. 101 ; Walker v. White v. Proctor, 4 Tan. 209. Constable, 2 Esp. 659; 1 Bo. & Pul. 300; (s) Wrightv. Dannah,2 Ca. 283 (17th s). II 4 120 SALES BY AUCTION. [cn. 4. S. VI, purcliaser is bound by tlie signature of the auctioneer, yet the auc- tioneer himself cannot, although the seller could, maintain an action upon such a contract, because the agent whose signature is to bind the defendant must not be the other contracting party upon the re- cord (t). Tliis, hoAvever, has since been doubted {u); and it has been 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 auc- tioneer was allowed to maintain the action. The opinion of the Court was in favour of the auctioneer's power to maintain an action, althouo-h he signed as agent of the other j)arty. It was certainly irregular that the contracting parties should act as each other's agents, but it was very different where the contract is signed by an indivi- dual who was not either of the contractors. 9. Finally, a contract by one as agent for another is valid under the statute, although the alleged agent had no authority at the time, provided that the alleged principal afterwards ratifies the contract (x). (t) Farebrotlier ?). Simmons, 6 Bar. &A1. (17tlis.); Graliamv.Musson,5Bin.N.C.603. 333 (17th ,s.) (x) Maclean v. Dunn, 4 Bin. 722 j Gos- (u) Bird V. Boulter, 4 Bar. & Ad. 447 bell v. Archer, 2 Ad. & El. 500. SECTION VI. OF PAROL AGREEMENTS NOT WITHIN THE STATUTE. 1. Sales hy auction witMn the statute. 2. Sales before a Master not. 4. Collateral agreement not. 5. Agreements confessednot. insisted upon. 0. Conviction of perjury. -Unless statute 1. There are cases in which the performance of an agreement will be compelled, although the terms of it are not reduced to writing : for where there has appeared to be no danger of fraud or perjury, the courts have endeavoured to take the case out of the statute (a). But sales by auction of estates (Z»), and even of goods, are within the statute (c); although this Avas once thought to be otherwise. So a sale in bankruptcy is within the statute (rf). 2. A sale before a Master or other officer, 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 (e). Armitage, 13 Ves.25; Higginson v. Clowes, (a) 1 Ves.221. {b) Simon v. Motives, 3 Bur. 1921 ; Bui. Ni, Pri. 286; 1 Black. 599; Stansfield v. Johnson, 1 Esp. 101. ; Walker v. Constable, 2 Esp. 659; 1 Bo. & Pul. 306; Buck- master V. Ilarrop, 7 Ves. 341, afiid. on ap- peal, Dec. 1806; Blagden v. Bradbear, 12 Ves. 466; Coles v. Trecothick, 9 Ves. 249; Hinde v. Whitehouse, 7 Ea. 558 ; Mason v. 15 Ves. 516; Symonds v. Ball, 8 T. Rep. 151, turned on the particular provisions of another Act of Parliament. (c) Kenworthy v. Schofield, 2 Bai". & Cress. 945, {d) Ex pte. Cutts, 3 Deac. 267. {e) Att.-gen, v. Day, 1 Ves, 218; 12 Ves, 472. en. 4. S. VI. J PLEA OF STATUTE. I2l 3. So if, under a reference to a Master or other officer, an agree- ment 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 agree- ment was signed by the vendor. The judicial sale takes it out of the statute (/). 4. But an agreement to pay an additional rent in consideration of additions by the landlord is not a purchase by the latter of a rent issuing out of the property, nor is the sum to be paid properly rent, and the agreement is valid although by parol (/;). An agreement for an abatement of rent must be in writing according to the statute (A). 5. It has been repeatedly determined in equity (i), and is perfectly settled, 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 mischief 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 representa- tives (7t). But after a great conflict of opinion, it is decided, that the statute may be used as a bar to the relief, although the agreement be admitted (/) (I). It is immaterial what admissions are made by a defendant insisting upon the benefit of the statute, for he throws it (/) Att.-gen. V. Day, ub. sup. ley v. Wilkinson, Ir. T. R. 357 ; Cottington, (g) Hoby v. Roebuck, 7 Tau. 157 ; Donel- v. Fletcher, 2 Atk. 155 ; 3 Atk. 3 ; but see Ian & Read, 3 Bar. & Ad. 899. 4 Ves. 24 ; Wliitcluuch v. Bevis, 2 Bro. (h) 1 Sell. & Lef. 30G. C. C. 559 j 2 Dick. GG4. (i) Croyston v. Banes, Pre. C. 208 ; {I) WMtbread v. Brockliurst, 1 Bro. C, 1 Ves. 221. 441 ; Amb. 58G; Mose. 370; C. 416; Stewart v. Careless, 2 Bro. C. C. Symondson v. Tweed, Pre. C. 437; Gilb. 564, 5G5; Walters v. Morgan, 2 Cox, 369 ; Eq. R.'35; Wanby ». Sawbridge, 1 Bro. Moore v. Edwards, 4 Ves. 23; Cootli r. C, C. 414. Jackson, 6 Ves. 12; Row v. Teed, 15 Ves. (k) Per Ld. Hardwicke, 1 Ves. 221 ; see 375; see Rondeau v. Wyatt, 2 H. Black. Eyre v. Popham, Lofft, 808, 809; Eyi'o v. 63; 1 Ro. 300; Blagden v. Bradbear, 12 Iveson, 2 Bro. C. C. 563; Child v. Godol- Ves. 464; 2 Bal. & Bea. 349. phin, 1 Dick. 39 ; 2 Bro. C. C. 566 ; Hart- (I) In Child V. Godolphin, 1 Dick. 39, Lord Macclesfield decided that the plea of the statute would not prevail where the agTeement was confessed, and Lord Hardwicke appears to have entertained the same opinion ; Cottington v. Fletcher, 2 Atk. 155 ; 3 Atk. 3. Lord Bathurst, who was not aware of Child v. Godolphin, decided in Eyre v. Popham, Lofft, 808, 809, that an agreement not in part performed could not be enlbrced, although confessed by the answer, and the statute was not insisted upon. Lord Thurlow loft the point unde- cided in Whitchm-ch v. Bevis, 2 Bro. C. C. 559. Mr. Baron Eyi'e decided the law as stated in the text, Stewart v. Careless, 2 Bro. C. C. 564. This view was adojited by Lord Rosslyn and Lord Eldon in the cases quoted in the notes, and was finally so decided by Su' William Grant, Blagden v. Bradbear, 12 Ves. 464. 122 PERJURY. [cn. 4. s. VII. upon the plaintiff to show a complete written agreement ; and it can no more be thrown upon the defendant to supply defects in the agreement, than to supi)ly the want of an agreement. Where, how- ever, 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 (???). Nor can lie set up the statute at the hearing if he has not claimed the benefit of it by his answer (ii). If the defendant admits the agreement, but intends to rely on the statute, he must say so ; but if he denies, or does not admit the ao"reement, the burthen of the proof is altogether on the plaintiff, who must prove a valid agreement capable of being enforced (o). 6, 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 (])) ; and therefore, as the plaintiff cannot avail himself in any civil proceedings of the conviction of the defen- dant, he is a competent witness to prove the perjury (g). But in Rex V. Dunston (r), where the agreement w^as by parol, and the defendant })leadcd the statute, and by answer denied 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) Spurrier ?J. Fitzgerald, G Ves. 548 ; 4 Ea. 577, n. (A); 1 Cox. 15; Rastel v. Skinner v. M'Douall, 2 De Gc. & Sma. 2G5. Hutchinson, 1 Dick. 44 ; Fell v. Chambcr- (?«) I5askett?).Cafc,4DeGe.&Sina.388. lain, 2 Dick. 484; Burdon v. Browning, 2 (o) Ridg^vay v. Wharton, 3 Dc fie. Tan. 520. Mac. & Gor. G?7, per L. C. (*/) The King v. Boston, 4 Ea. 572. (p) Bartlett v. Pickersgill, 4 Bur. 2255; (r) Ry. & Moo. 109. SECTION VII. / OF FRAUD AND PART PERFORIMANCE. -^^ ^ Agreement in wrilhnj prevented by G, Payment of 2mrchasc-money insufficient, fraud. i semhle. Part performance, parol agreement en- , 7. Acts done to a man's own prepidice. forced. ' ^- J^^si^if^t ^c^^- What acts are a part performance.— | 0. Where terms of agreement are nncertain. Delivery of abstracts or the like, not. , 10. Re2Jresentatives bound tcherc part per- Delivery of possession sufficient. | formance. Unless referable to another title, or j H. Whether remainder-man bound. wrongfully oltnined. — Payment of 12. Issue directed where dispute, and both rent, where sufficient. parties dead. CH. 4. S. VII.] OF TART rERFORMANCE. 123 1. There are other cases taken out of the statute, not so much on the principle of no clanger of perjury, as that tlie statute was not intended to create or protect fraud. Lord Thurlow laid it down that. If you interpose the medium of fraud, by loldch the agreement is pre- vented from being put into vrriting, the case would be taken out of the statute {a). 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 (/>). 3. An agreement will not be considered as partly executed, unless the acts done are such as could be done Avith no other design than to perform it (c). Neither Avill 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, Sic. (d), will not take a parol agreement out of the statute. 4. But if possession be delivered to the purchaser, the ao-reement Avill be considered as in part executed (e) ; especially if he expend money in building or improving according to the agreement (/), for the statute should never be so turned, construed, or used, as to protect or be a mean of fraud {g). 5. Possession, however, must be delivered in part-performance ; for if the purchaser obtain it wrongfully, it will not avail liim (//). And a possession which can be referred to a title distinct from the ao-ree- (a) 'Whitchurch v. Bevis, 2 Bro. C. C. Williams, 2 Ver.4G5; Lockcyw.Lockey, Pre. .565, overruling Ld. North's opinion in Ilollis C. 318; Earl of Aylesford's case, 2 Stra. 783 ; t'. Whiting, or Edv/ards, IVer. 151, 159; Binstead v. Coleman, Bun. 05; Barrett v. Leake v. ]\Iorrice, 2 Cha. C, 135; Ridgway Gomesorra, Bun.94; Lacony.Mertins,3Atk. w. Whnrton, 3 De Go. Mac. & Gor. 077; 1; Wills i». Stradling, 3 Ves.378; Bowers w. Wood V. Midgley, 2 Sma. & Gif. 115; 5 De Cator,4 Ves.91 ; Denton v. Stewart, Fonbl. n. Ge. Mac. & Gor. 41. to 1 Trea. Eq. 175 (I) ; Gregory v. Mighcll, Stf/^-^^ (b) 1 Ves.221 ; Taylor w. Bccch,l Vcs. 297. 18 Ves. 328 ; Kiuc v. Balfe, 2 Bal. & Bea. (c) Guntor v. Halsey, Amb. 58G; Lacon 343; Morphctt v. Jones, MS.; 1 Swa. 172; V. Mertins, 3 Atk. 1 ; 19 Ves. 479. Meynell v. Surtecs, 25 L. J., N.S., 257. (d) Clerk v. Wright, 1 Atk. 12 ; Whitbrcad (/) Foxcraft v. Lister, 2 Ver. 45G ; Gilb. V. Brockluirst, 1 Bro. C. C. 412; Cole w, Eq. R. 4; Col. P. C. 103; Floyd v. Buck- White, 1 Bro. .C. C. 409 ; Whitchurch v. land, 2 Free. 268 ; Mortimer v. Orchard, 2 Bevis, 2 Bro. C. C. 559 ; Whaley v. Bagenal, Ves. j. 243 ; Toole v. Medlicott, 1 ]]al. & Bea. 6 Bro. P. C. 045; Cooker. Tombs, 2 Ans. 393; Wheeler v. D'Esterre, 2 Dow, 359; 420 ; Cooth v. Jackson, Ves. 12 ; Redding 19 Ves. 479 ; Sutherland v. Briggs, 1 Ha. 20. V. Wilkes, 3 Bro. C. C. 400. (y) 3 J3ur. 1919. (e) Butcher w.Stapely,! Ver. 363; Pyke». (h) Cole v. White, 1 Bro. C. C. 409. (I) In this case the plaintiff not only purchased the house, but also the furniture, for which she had actually paid ; and it ajipcars by the decree, that there was a receipt given by the defendant, the contents of whicli, however, are not stated in the Registi-ar's book. The defendant ]M)sitively denied the agreement, and insisted that the jilaintiff was only tenant at will. Reg. Lib. A. 1785, fo. 552, liy the name of Denton v. Scv/ard ; ib. 717, by the name of Denton v. Stewart. 124 PAYMENT OF rURCHASE-MONEY. [CH. 4. S. VIT. ment will not take a case out of the statute. Therefore, possession by a tenant cannot be deemed a part performance {i), unless the land- lord accept an additional rent upon the foot of the agreement {k). 6. After much fluctuation of oj)inion it seems to be settled that part payment of purchase-money is not a part-performance (/). It would, ^//^. Jo y^ however, be difficult to refuse a specific performance where the pur- chaser has paid all the purchase-money ; although there is authority A^/ c/i.^dS^x stating that the contract cannot be enforced even where all the money has been paid (m). There are four cases in Tothill, which arose previously to the statute of frauds, and appear to be applicable to this point ; for equity, even before the statute of frauds, would not execute a mere parol agreement not in part performed (?^). In two of them, in the 9th of Jac. 1, parol agreements were enforced, appa- rently on account of the payment of trifling parts of the purchase- money. The last of these cases was decided in the 30th of Jac. 1. The bill was to be relieved concerning a promise to assure land of inheri- tance, of which there had not been any execution, but only 55 s. paid in hand, and the bill was dismissed. This point received a similar determination, in the next case, determined in the 15th Cha. 2. The same doctrine was adhered to in a case which occurred three years afterwards (o) ; for although a parol agreement for a house, with 20.?. paid, was decreed without further execution proved, yet it appears by the judgment, that the relief would not have been granted if the ven- dor had demurred to the bill. In the last case before the statute (7;), a parol agreement, upon which only 20.?. 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. The result of the cases 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 considerable sum would have availed a purchaser, does not appear. In Toth. 67, a case is thus stated : " Moyl v. Home, by reason 200 1, was deposited towards pay- ment, decreed." The statute in relation to lands declares, that no con- tract, not in writing, shall be enforced by action; the clause which relates to sales of goods declares them to be binding if something is given in earnest or part payment to bind the bargain. The first case (i) Wills V. Stradling, 3Ves. 378; Smith (0 Clinan v. Cooke, 1 Sell. & Lef. 22; V. Turner, Pre. C. 561 ; Savage v. Carrol, O'Herlihy v. Hedges, ib. 123; 14 Ves. 388 ; 1 Bal. & Bea. 265 ; see Dowell v. Dew, 1 Yo. Watt v. Evans, 4 Yo. & Col. 579 ; Stronghill & Col. C. C. 345; Ld. Desart v. Goddard, v. Gulliver, 27 L. T. 258, a case of marriage. 1 Wal. & Ly. 347. (wO 2 De Ge. Mac. & Gor. 356. {k) Wills V. Stradling, ubl sup. ; S. C. as (71) William v. Nevill, Tot. 135 ; Ferner. to expenditure in repairs, &c., 2 Sch. & Lef. Bullock, 206 ; Clark v. Hackwell, 228 ; 5; Brennan ??. Bolton, 2 Dru. &War. 240; Millers. Blandist, 85; Simmons v. Corne- Frame v. Dawson, 14 Ves. 386; Lindsay v. lius, 1 Cha. R. 128. Lynch, 2 Sch. & Lef. 1 ; O'Reilly ?).Thomp- (0) Anon. 2 Free. 128. son, 2CoX; 271 ; Parker v. Smith, 1 Col. 024. (;;) Voll v. Smith, 3 Cha. R. IG. CII. 4. S. VII.] NOT A PART TERFORMANCE. 125 shortly after tlie statute is in rrecin( 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 the written instrument was made, or during 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. 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 (a) 2Ro. Ab. 786(N.) pl.l; 1 Rep. 17G, Tlnney v. Tinney, 3 Atk. 8; ^instead r. a. ; Rex v. Inhab. of Scammonden, 8 T. Rep. Coleman, Bun. 65 ; Hogg v. Snaith, 1 Tan. 474. 347; Meres v. Ansell, 3 Wils. 275; see (i) Rex V. Inhab. of Laindon, 8 T. Rep. Mease v. Mease, Cow. 47 ; Lofft, 457 ; Cuff 379 ; 2 Cha. C. 143 ; TuU v. Parlett, 1 Moo. v. Penn, 1 Mau. & Scl. 21 ; Greaves v. Ash- & Mai. 472 ; Rex v. Inhab. of Wickham, lin, 3 Ca. 42G ; Hope v. Atkins, 1 Pri. 143. 2Ad. &E1. 517, (d)^ Black. 1249; Davis v. Symonds, (c) Pavteriche v. Povvlet, 2 Atk. 383; 1 Cox, 402. 130 OP PAEOL EVIDENCE [CH. 4. S. VIII. 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, Avhich 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 agreement {c). But this refers only to an agreement at common law. A contract by deed can of course at law only be discharged by deed (/). 4. And upon the general rule of law, as we have seen, verbal declarations by an auctioneer, in the auction-room, contrary to the printed conditions of sale, are inadmissible as evidence, unless perhaps the purchaser has particular personal information given him of the mistake in the particulars (ff) ; and are inadmissible in equity as well as at law. If the written agreement is silent on the point, neither party can avoid it at law by pleading a condition to which it was made subject (A). Upon the sale of timber by a written particular which was silent as to the quantity, parol evidence was not allowed to show that the auctioneer verbally warranted the quantity to be eighty tons : 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 ii), but the argument did not prevail. 5. The rules of evidence are universally the same in courts of law and equity. Parol evidence, which goes to substantially alter a written agreement, cannot be received in a court of equity any more than in a court of law {Ji). Therefore, the plaintiff cannot show that it was agreed by parol that part of the estate should not be conveyed (/). 6. Neither can it be proved by parol evidence that an agreement 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 (?»). 7. 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. This doctrine has been referred to the statute of frauds, but it seems to depend on the principles of the common law {n). (e) Goss V. Ld, Nugent, 2 Nev. & Man. 4 Bar. & Al. 588. 33, 34, sed qu. the latter pai-t; post, as to {h) Canhan v. Ban-y, 15 C. B, 597. evidence of usage of trade, or as between (i) Powell v. Edmunds, 12 Ea. 6 ; Jones landlord and tenant, Spartati v. Beneeke, v. Edney, 3 Cam. 285. 19 L. J., N. S., 293 C. P.; Harnor v. (k) 3 Wils. 276; Foot ^'. Sclway, 2 Cha. Groves, 15 C. B. CG7. C. 142. (/) Brjnncr v. Thames, &e. Ry, Co. 2 (l) Lawson v. Laude, 1 Dick. 346 ; Fell Ex. 549, 5 Ex. 696. v. Chamberlain, 2 Dick. 484 : the facts are (g) Gunnis v. Erhart, 1 H. Black. 289; not in the Registrar's book; Reg. Lib. A. Jcnkinson v. Pepys, 6 Ves. 330; 13 Ves. 1772, fol. 1. 496. 471 ; Fife v. Clayton, 13 Ves. 546; Higgin- (?;;) Davis v. Symonds, 1 Cox, 402. son V. Clowes, 15 Ves. 516, 521; 1 Ves. (n) Powell t>. Divett, 15 Ea. 29 ; Mollett & Be. 528; Doe v. Lea, 11 Ea. 312 ; Ford v. Wackerbath, 5 C. B. 181. V, Yates, 2 Man. & Gran. 549 ; Doe v, Benson, en. 4. S. VIII.] TO VARY WRITTEN INSTRUMENTS. 131 8. In tlie case of Besant r. Ricliards (o), wlicre the piircliaser was plaintiff*, tlie contract described the ])roi)crty as held l)y one Watson, and the sale was to be completed at Michaehiias. Watson held an agreement for a lease for ten years, bnt the seller represented to the pnrchaser that this agreement was void, and that he had served Watson with notice to qnit at Michaelmas, and that he would give possession at that time. The tenant refused to quit, and the Master of the Kolls held that the purchaser 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. 9. Lord Eldon refused to execute an agreement with a parol variation on the ground of mistake or surprise, which the defendant by his answer denied, and yet upon a cross bill admitted evidence of mistake or surprise as a defence {p). For although equity cannot enforce an agreement with such a variation {q), yet when it is called upon to exercise its peculiar jurisdiction, by decreeing a specific per- formance, tlie party to he charged Is to be let in to show, that, under the circumstances, the plaintiff is not entitled to have the agreement specifically performed (r). Collateral circumstances may be proved by parol as a defence ; for example, duress at law, fraud and circum- vention In equity ; for although this aflPects the agreement. It does not vary It {s). For the words of the statute are negative, and not affirmative that every agreement In writing shall be binding (^t). 10. 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 making out the title, the Master of the Rolls admitted parol evi- dence of the real agreement and of the mistake ; and upon the strength of It, he gave the plaintiff, the purchaser, his option to have his bill for a specific performance, according to the terms of the written agreement, dismissed, or to have the agreement performed in the way (o) Tarn. 509. (r) 7 Ves. 219 ; Myers v. Watson, 1 Sim., {p) Ld. Townshend v. Stangi-oom, 6 Ves. N. S., 523. 328; 3 Ves. 38, n. ; 1 Ves. & lie. 52G, 527 ; (*•) Davis v. Symonds, 1 Cox, 405. 407 ; 2 Dru. & War. 232 ; Iligginson v. Clowes, sec the eases cited i))f., as to discliiirging 15 Ves. 51 G; Hosier v. Read, 9 Mod. 8G, or varying a wi'itten agreement by ])arol ; not in Registrar's book; Att.-fien. v. Sit- Walker ?7. Walker, 2 Atk. 98; G Ves. 334, well, 1 Yo. & Col. 559; Howard?;. Wright, n. ; Joynes v. Statham, 3 Atk. 388; Wool- 2 C. P. Coo. 114, n. ; Attenborough v. lam ?;. Hearn, 7 Ves. 211 ; Clarke r. Grant, Edwards, 24 L. T. 86 ; Vonillon v. Staten, 14 Ves. 519 ; 15 Ves. 523; Micklethwait v. 2 .Jur. N. S. 845. Nightingale, 12 .Tur. G38. (ry) Woollam V. Hearn, 7 Ves. 211 ; 1 {t) 1 Sch. & Lef. 39; 7 T. Rep. 350, n. Sell. & Let'. 39. I 2 132 OF TAROL EVIDENCE [CH. 4. S. VITI. contended for by the seller (m). And Avliere a party offered a lease upon terms which Avere accepted, but omitted by mistake to add a ])rcmium which he required, and there was some written evidence of the mistake, a bill to enforce the written agreement Avas dismissed (x). 11. In the case of Martin v. Py croft (?/), it was decided by the Lords Justices, overruling a decree of Parker, V. C, that where there is no fraud or mistake, a written agreement binds at law and in equity according to its terms, although an additional provision was verbally agreed to, and that the party insisting upon the written agreement alone could recover at law, whilst the other party if a defendant in equity could require the Court to be neutral, unless the plaintiff would consent to the performance of the omitted term— yet if the party to be bound by the verbal term files his bill or claim, and states the superadded term, and submits to perform it, and the term is not in dispute, he is entitled to a specific performance of the agreement as added to by parol. This is an important distinction. 12. 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 evi- dence of the declaration of the auctioneer that the timber on all the lots was to be paid for, was rejected (z). The purchaser then filed a bill against the seller for a specific performance, according to his con- struction that he was to pay for the timber on the lots only to Avhich a stipulation to that effect was added. The seller, as defendant, offered parol evidence of the declaration by the auctioneer. Sir T. Plumer agreed that fraud Avould let in the evidence as a defence. So in case of mistake or surprise, making a specific performance, as in the case of fraud, unjust. In sales by auction, the real object, he said, of introducing declarations by auctioneers or other persons, is to explain, alter, or contradict the Avritten agreement, in effect to sub- stitute another contract ; and, independent of authority, he should be much disposed to reject such declarations, whether offered hy a ■plaintiff seeking a 'performance, or hy a defendant to yet rid of the con- tract, a distinction difficult to adopt, where the evidence is to show that the writing pui'porting to be a contract is not the contract. That does not depend upon the principle on which a defendant is permitted to show fraud, mistake, or surprise, collateral to and independent of (m) Rainsbottom 2\ Gosden, 1 Ves. & Be. Birmingham Ry. Co. v. Winter, Cra. & Phil. 1G5 ; Flood v. Finlay, 2 Bal. & Bea. 9 ; Ld. 57 ; see where part performance, Mortimer W. Gordon 2>. Marquis of Hertford, 2 Mad. v. Orchard, 2 Ves. j. 243; Lyndsay v. lOG; Garrard v. Girling, 1 Wils. C. C. 4G0 ; Lynch, 2 Sch. & Lef. 1 ; Mundy v. .lolifle, 2 Swan. 244. !) Sim. 41.'i ; fj My. & Cra. 107, rev. (ar) Wood v. Scarth, 2 Kay &.Io. 33. (~) Higginson v. Clowes, 15 Ves. 516. (y) 2 De Ge. Mac. & Gor. 785 ; London & CH.4. tj. VIII.] TO VARY WKITTEN INSTRUMENTS. 133 the written contract, the object in tlie other case being to get rid of the contract by exphiining it away. But 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 ex})licit and satisfactory was not material), the evidence of tliese 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 (a). 13. This judgment does not seem to be warranted by the principles 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 defence, the object is to get rid of the contract by showing that it is not the contract really entered into by the j)arties, although wdiere, even as a defence, the evidence is used to show that the terms of the contract are not the real ones, the evi- dence, when admitted, must be very powerful to induce the Court to believe that the terms expressed are not the real ones. In Rams- bottom V. Gosden, as the contract was silent as to the expense of making out the title, that of course Avould have fallen on the vendor ; but that was a mistake, and contrary to the real contract, and parol evidence really to contradict the written agreement on this head was admitted as a defence. 14. In a case where lands, which upon admeasurement did not contain thirty-six acres, were described In a particular to contain forty-one acres by estimation, were the same more or less, and the purchaser set up as a defence parol declarations of the auctioneer that he sold it for forty- one acres, and if it Avas less, an abatement should be made, Sir W. Grant admitted the evidence and dismissed the bill, because, after such a declaration made by the auctioneer, it was fraudulent in the seller to insist upon the execution of the con- tract, not giving the defendant the benefit of that declaration (b). And yet the subject was distinctly adverted to in the written con- tract, and indeed the provision was free from ambiguity, and the parol evidence contradicted it ; whereas in CloAves v. Higginson, there Avas an ambiguity — tAVO statements, Avhich might be considered at variance Avith each other — which the parol evidence Avould have exploincd. The evidence, it is submitted, in the latter case, Avas admissible in equity as a defence, simply on the ground that the plaintiflf, Avho ought to come into equity Avith clean hands, sought to {a) Clowes t). Higginson,! Vcs.& Be. 524; (6) Winch v. AVinchester, 1 Vcs. & Be. consider Croomo v. Lediard, 2 My. & Ke. 375. 201 ; Manser v. Back, G Ha. 443. i3 134 OF PAROL EVIDENCE OF MISTAKE, ETC. [CH. 4. S. VIII. commit a fraud in evading to pay for the timber, although the auctioneer dechired that it Avas to be paid for. 15. Yet in a later case (c), where there was a contract by each of two persons to buy an estate of the otlier, both estates to be valued by the same person, and both purchases to be completed on the same day ; it was decided that the contracts were distinct, although con- tained in the same paper, and notwithstanding the difference between having to pay for one estate with the price of another, and having to retain yoin- own estate and yet to pay for another ; and it was held by 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 Avas to exchange the estates ; and Lord Brougham, upon appeal, without hearing the respondent's counsel, affirmed the decree. Parol evidence of matter collateral to the agreement might, he said, be received ; but no evidence of matter dehors was admissible to alter the terms and substance of the contract. In the present case, the purpose for wliich the parol evidence was tendered on the part of the defendant was, not to enforce a collateral stipulation, 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 io admit such evidence ; for, if the agreement between the parties were in fact conducted upon the basis of an exchange, Avhy was the instrument so drawn as to suppress the real nature of the transaction ? 16. The decision in the above case was probably well founded. 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 nego- tiation 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. 17. Where a written agreement is subsequently varied in part by parol, if it do not amount to a toaiver of the contract, but a variation by parol which has not been acted upon, and which was made without consideration, it cannot be made use of as a defence {d). (c) Croome v. LeiUard, 2 My. & Ke. (d) Price ». Dyer, MS. 17 Ves. 356; Ro- 251. binson V. Page, 3 Rus. 114. CH. 4. S. VIIT.] PAROL VARIATIONS AT LAW. 135 18. 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 agree- ment without the variation (e). 19. According to Omerod v. Hardman, 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 u])on the i)arol agreement is a defendant, and sets it up as a bar to the aid of the Court in favour of the plain- tift'(/); but clearly this cannot be deemed a general rule, although it must at all times be difficult to rely, even as a defence, upon a term added by parol to a regular correct contract. 20. Lord Hardwicke is reported (ff) 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 being 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 inquu'e what the agreement was as to taxes, and therefore the proof would not be a variation of the agree- ment. And this extra-judicial opinion appears to have been approved of by two other Judges (A), one of whom (/) laid it down, that parol evidence was admissible to prove collateral matters, concern- ing which nothing was said in the agreement, as who was to put the house in repair, or the like. But notwithstanding these dicta, it is clearly settled, that parol evidence of even such collateral matters, which are of the essence of the agreement, is inadmissible both at law and in equity. Therefore it cannot be shown at law by parol that the tenant agreed to pay the land tax, where the written agreement merely provides for payment of rent ; nor can a specific performance be enforced with such a term added by parol (J). 21. As a term agreed upon by parol cannot be added to a written agreement, by a parity of reason a written agreement cannot be varied by parol (A). It cannot, for example, be shown by parol that the parties verbally agreed to alter the period for the commencement of a lease fZ). (e) Robinson v. Page, 3 Rus. 114. Ves. 334, n.; Jordan i^.Sawldnn, 3 Bro. C.C. (/) 5 Ves.. 722. 388; 1 Ves. j. 402; O'Connor v. 8paight, (g) 3 Atk. 389, 390 ; but see 4 Bro. C. C. 1 Sch. & Lef. 305 ; the cases inf., as to the 518; 6 Ves. 335, u. ; 1 Sch. & Lef. 38. discharge of a parol agreement. (/t) 2 Black. 1250; 7 Ves. 221. {k) 7 Ves. 133; Price v. Dyer, MS. 17 (t) Mr. J. Blackstone. Ves. 35G. ij) \\\c\\v. Jackson, 4 Bro. C. C. 514; G (0 Post. pi. 24. i4 13G OF PAROL VARIATIONS AT LAW. [CH. 4. S. VIII. 22. In Goss V. Lord Nugent (m), Avlicre the contract stijuilated for a good title to several lots, but tlie purchaser, after the contract, and Avith notice of a defect in the title to one lot, waived the objec- tion, and entered into possession, but afterwards resisted the contract, it was held, that the seller could not maintain an action for the pur- chase-money, on account of the statute. The Court thought that the oliject of the statute was to exclude all oral evidence as to con- tracts for the sale of lands, and that any contract which was sought to be enforced must be proved by writing only. In tlie 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 agree- ment, and partly by the new verbal agreement ; the present contract, therefore, was not a contract entirely in Avriting ; and as to the title being collateral to the land, the title appeared to the Court to be a most essential part of the contract. But the Court added, that their opinion was formed upon the general meaning of the statute, that the contract in question was not wholly one in Avriting. 23. The Court also observed, that whether the seller might not have relief in a court of equity they gave no opinion. Noav, 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. 24. And in a later case at law, it was decided that the time could not be enlarged by parol (?^). The simple question arose. Can the day for the completion of the purchase of an interest in land inserted 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. But where an agreement for a lease was without a date, and the landlord agreed by parol that the rent should not commence till certain repairs were done, the parol evidence was admitted, and the agreement was held not to be operative before the period agreed upon (o). 25. 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 (/)). Where the time (?/i) 5 Bar. & Ad. 58 ; 2 Nev. & Man. 28 ; 928 ; see 2 Nev. & Man. 35 ; Ilorne r. Wing- Stead V. Dawber, 10 Ad. & El. 57 ; Marshall field, 3 Sco., N. C, 340 ; Tarkin v. Thorold, V. Lynn, G Mee. & Wei. 109 ; cases on the 2 Sim., N. S., 1. 17th s, to which the same law ajiplies, svp. (o) Davis v. Jones, 17 C. B., 625. 1)1. 4. {p) Chap. G. («) Stowcll V, Robinson, 3 Bin. N. C, CH. 4. S. VIII.] OF PAROL VARIATIONS. 137 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 appointed, would of course adopt that which the parties themselves had agreed upon, although only by i)arol. 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. 26. 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 (q). 27. 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 i)roved to the satisfaction of the Court, yet it cannot be used as a defence 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 (r), and eifect will be given to it, either in favour of a plaintiff or a defendant. But we must bear in mind that some variations, not admitted at law, for example, the title and time, equity has always, exercising its peculiar jurisdiction, deemed to be subjects "which the parties might waive by their acts. 28. 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 wanting {s). 29. These are the rules which guided the several courts before the late Act (^), which gave to courts of law equitable jurisdiction by way of mandamus, and also allowed equitable defences at law Avhcre justice at law could be done between the parties. It remains to be seen to what extent courts of law will act upon these powers, with the limited machinery which they possess for the carrying out an equitable jurisdiction (//). Hitherto they have confined the exercise of them Avithin very narrow limits {x). {q) Anon. 5 Vin. 522, pi. 38; Legal v. {t) 17 Vict. c. 12.5, s. G3-77, .s. 83-8(5. Miller, 2 Ves. 299 ; Pitcairne »;. Ogbourne, (m) Wodehouse v. Farebrother, 1 Jur., 2 Ves. 375 ; Price v. Dyer, 17 Vcs. 35G. N. 8., 998, inf. {)•) Van V. Corpc, 3 My. & Ke. 277. (.r) Tcede i\ Johnson, 11 Ex. 840. («) Harvey v. Graham, 5 Ad. Sc El. Gl. 1. Parol tvaiver. 8. 2. Terms of statute. 3. Abaiulo7iment a defence in equity : at 9. law, senible. 10. 4. Waiver of parol agreement cannot be proved. n. r,. Sorts of ambiguities. G. Latent ambiguity cleared vjj by parol evideiice. 12. 138 OF PAROL EVIDENCE. [CH. 4. S. IX. SECTION IX. OP THE ADMISSIBILITY OF PAROL EVIDENCE TO ANNUL WRITTEN INSTRUMENTS, AND TO EXPLAIN AMBIGUITIES. 8. Patent ambiguity not. — General words not restrained by parol. Contra in equity upon mistake. Situation of parties, i^'c. looked at ivhere there is ambiguity. Ancient statute. — Contemporaneous usage. Whether price can be looked at where there is ambiguity . 1. The rule of law is, nihil tam conveniens est naturali ccquitati, unumquodque dissolvi eo ligamine quo ligatuin est: and therefore a covenant under seal not broken cannot be discharged by parol agree- ment («). And in general, as we have seen, an agreement in writing cannot be controlled by averment of the parties, as it would be dan- gerous to admit such nude averments against matter in Avriting {h). 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 con- cerning the same, unless the agreement is in writing 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 observed, 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 n^QCxn.Qnts 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 Avell be construed to prevent the setting up a parol agreement as a defence to an action upon a valid written agreement. The agree- ment must be in writing or no action can be maintained upon it. Does not tliis, by a necessary implication, exclude a parol agreement which is to waive a written one? Is not the like mischief to be guarded against in each case ? The point was so decided in an early (a) Kaye v. Waghorn, 1 Tau. 428. 25 b ; Blemerhasset v. Pievson, 3 Lev. 234. (6) Countcsa of Rutland's case, 6 Co. (c) 2 Eq. Ca, Ab. 33. CH.4. S. IX.] PAR(3L EVIDENCE OF ABANDONMENT. 139 case {d) ; and that rule lias been followed in later cases, but tlic aban- donment must amount to a total dissolution of the contract, and there must be very clear proof (.Slieai'wood,3 Bro.C.C.lCS; lVes,j.241; (6) Taylor v. Radd, 5 Ves. 595; Lady Haynes «. Hare, 1 H. Black. 059; 2 Ves. Shelburne v. Ld. Inchiqnin, 1 Bro. C. C. 377; 5 Ves. GOl ; Pemberr. Mathers, IBro. 338 ; Cock v. Richards, 10 Ves. 441 ; Ld. C. C. 52 ; Wright v. Goff, 2 Jur., N.S., 481 ; Townshend v. Stangi-oom, G Ves. 328; Att.- Rooke v. Ld. Kensington, id. 755. gen. V. Comm. of Woods and Forests, 1 Yo. (c) Harwood?;. Wallace, 2 Ves. 195; Llo. & Col. 559. 583 ; 1 Bro. C. C. 92; see Hare & Go. t. Sugd. 150 ; 1 Dick. 295. (I) Even at law the palpable mistake of a word will not defeat the intention of the parties. Where the condition of a bond was, that it should be void if the obligor did not pay ; and performance being pleaded on the ground of litei'al expression, the Coui't held the plea bad. Anon. Dougl. 384, cited, 2d edition; 1 Dow, 147. It seems clearly settled, that words evidently omitted in a will by mistake may be supplied, both at law and in equity, ToUett v. Tollett, Amb. 194; Coryton v. Hellier, 2 Bur. 923 ; Doe v. Mick- lem, G Ea. 486; Lane v. Goudge, 9 Ves. 225; Mellish v. Mellish, and Phillips v. Cham- berlain, 4 Ves. 45. 51 ; but however evident the mistake may be, the words will not be supi)lied if the testator's manifest intention would be defeated l)y the insertion of them. Chapman v. Brown, 3 Bur. 1G26; 2 Ves. j. 365. But now words of inheritance are sup- plied by the 1 Vict. c. 2fi, s. 28, 29. CH. 4. S. X.] TO CORRECT MISTAKES OR FRAUDS. 143 try the fact (d). Upon this head, general covenants for title have been relieved against upon parol evidence, that such was not the inten- tion (e), corroborated in one case by the form of the deed, and the subject of the contract (/). And in the case of Thomas v. Davis (j/), where it clearly appeared, that the estate in question was not intended to be comprehended in the general words ; particularly from the description of the estate given by the husband to the attorney by Avay 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 he introduced general words, merely to guard against any Avrong or imperfect description of the lands actually intended to pass ; the evidence was admitted in equity to correct the mistake (I). So in Rogers v. Earl (A), 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 when the wife saw the draft, thinking she was past child-bearing, she objected to the limita- tions to the issue, and the attorney, by mistake, not only struck out those limitations, but also the limitation to the wife for life, and the subsequent limitation to trustees to preserve, and the deed was exe- cuted without the mistake being discovered ; and, in equity, the settle- ment was ordered to be rectified accordingly. 3. In the case of Rob v. Butter wick (^), a conveyance of a portion of church-tithes upon a purchase was made, contrary to what was con- sidered 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 attor- ney, and that the rent had not been demanded for several years, the deed was after the lapse of several years rectified, and made conform- able to the written agreement. Where the amount of an annuity was (d) S. S. Cy. V. D'Oliff, 2 Ves. 377 ; 5 Ves. from Reg. Lib. B. 1 7.5G, fo. 205 ; Pritcliard 601 ; Pember V. Mathers, 1 Bro. C. C. r)2. v. Qiiinchant, Ambl. 147; 5 Ves. 596. (e) Coldcot V. Hitfe, 1 Cha. Ca. 15; 1 n. (a); Barstow v. Kilvington, 5 Ves. ^j^Sid./0; Alexander w. Crosbie, Llo. & Go. 593; Nelson v. Nelson, Nels. C, R. 7 ; t. Sugd. 145 ; Mortimer v. Shortall, 2 Dru. Shaw v. Jakeman, 4 Ea. 201 ; Duke of & War. 363. Bedford v. Ld. Abercorn, 1 My. & Cra. 312 ; (/) Fielder v. Studley, Finch, 90 ; Brown- Marquis of Exeter v. Marchioness of Exeter, ing V. Wright, 2 Bo. & Pul. 26; Hesse v. 3 My. & Cra. 321 ; Ashhurst v. INlill, 7 Ha. Stevenson, 3 Bo. & Pul. 575 ; Young v. 502 ; Bold v. Hutchinson, 5 De Ge. Mac. & Young, 1 Dick. 295, 303, 304. Gor- 558. iff) 1 Dick. 301 ; Reg. Lib. B. 1757, fol. (J) 2 Pri. 190; Beaumont v. 'Bramley, ^y^^^^^^^^^^^ f2> / 33, 34 ; Moss v. Harter, 18 Jur. 973. Tur. & Bus. 41 ; Howkins v. Jackson, 2 De (/*) 1 Dick. 294 ; Note, the facts are not Gfi. & Sraa. 372, stated in the report ; they are extracted (I) The judgment is very inaccurately stated in the report. 144 WHAT AMOUNTS TO FRAUD. [CH. 4. S. X. to depend on the value of a government annuity, and the agent of the purchaser, by mistake, furnished the seller with an incorrect state- ment by which the amount was increased, the contract, although exe- cuted, was set aside on the ground of mistake ; but the Court refused to reduce the amount of the annuity, and probably would have afforded no relief if the seller had relied on his own knowledge, or on that of others unconnected with the purchaser (I). 4. To enable equity to amend an instrument by proposals, it must of course be shown that they constituted the final contract of the par- ties, for they may hfive been varied by subseqvient agreement before the execution of the deed ; in which case there would be no mistake to rectify (m). 5. Where parties omit any provision in a deed, on the impression of its being illegal, and trust to each other's honour, they must rely upon that, and cannot require the defect to be supplied by parol evidence (n). 6. But fraud is in equity an exception to every rule (o). If the agreement had been varied by fraud, the evidence would be admissible. The only difficulty in these cases is, to ascertain Avhat shall be deemed fraud. If parties merely agree to a term, and then execute an instru- ment in which that term is omitted, without objecting to the omission of it, the Court cannot relieve the injured party (/»). Where a lessor drew a lease for one year instead of twenty-one, and read it for twenty- one, the lessee was not relieved, because he could read, and it was his own folly, and he was made to pay the costs (//), So a general reserv- ation of trees, in a lease with liberty to cut and carry them away, was not restricted by parol evidence, that the landlord assured the lessee he should not cut the timber, but only reserved it in order that all his leases might be uniform (r). 7. In the Countess of Shelburne v. the Earl of Inchiquin (s), I^ord 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. 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 ; (/) Carpmael v. Powis, 10 Bea. 3G. E. A. Office, 1 Ves. 317 ; Pitcairne v. Og- (m) Ld. Breadalbane v. Ld, Chandos, 2 bourne, 2 Ves. 375 ; Lady Shelburne v. Ld. My. & Cra, 711. Inchiquin, 1 Bro. C. C. 338. (n) Ld. Irnham v. Cliild, 1 Bro. C. C. 92 ; (p) Rich v. Jackson, 4 Bro. C. C. 514. Hare«. Shearwood, 1 Ves. j. 241 ; 3 Bro. C. (. Smith, i^ij svp.; Pollexfen V. Moore, '^ Atk. 272. (I) A lessee insui-ed 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 it was held otherwise. Printed cases, D. P. 1 730. Neither a contract, nor even a mere convevance, whilst the seller remains in possession, will give a right of voting. Anclay v. Lewis, 2 Jur., N. S., C. P. 164. CH. 5. s. I.] purchaser's right under contract. 147 now in part altered by an Act {Ji), which protects a purchaser who bought without notice of a prior act of bankruptcy {i). And a pay- ment (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 (A). As by bankruptcy, the estate vests in the assignees, the bankrupt, to a bill filed against him before the fiat, may plead his subsequent bankruptcy (/). 3. The Bankrupt Act {m) enacts, that if any bankrupt 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 aban- don the same, shall be entitled to apply by petition to the Lord Chan- cellor, 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. And it seems that in insolvency, if the assignee will not accept an agreement by the insolvent for purchase which he was unable to perform, and the agreement is deposited in Court, it may be ordered to be delivered up to the seller (m). 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 contract (o) ; 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 {p). 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 pur- chaser has not any right to call on the second purchaser for the legal estate, but the latter may protect himself by the legal estate against the former {q). 7. The death of the vendor or vendee before the conveyance (r) or (7t) 12 & 13 Vict. c. 106, s. 133; see 2 Vict. (m) 6 Geo. 4, c. 16, s. 76 (now repealed) ; c. 11, s. 12 ; see 3 Vict. c. 29, repealed by 12 & 13 Vict. c. 106, s. 146. tlie first-meutioned Act ; 7 & 8 Vict. c. 90, (n) In re Williams, 26 L. T. Insol. 48. as to Ireland; Lackington v. Elliott, 8 Man. (o) Marg. abstr. ofGoodwin v. Liglitbody, & Gra. 538, Dan. 153. (i) Posi, ch. 13, & ch. 22. (p) Rex v. Snow, 1 PH. 2-:0, n. ; 2 Vict. (Ji) Consider 6 Geo. 4, c. 16, s. 82 ; 2 & 3 c. 11, s. 8, 9, 10. Vict, c, 29 (now repealed) ; and 12 & 13 {q) 8 Pri. 488, 489,;;er C. B. Vict. c. 106, s. 133. ()■) Paul r. Wilkins, Tot. 100. (0 Lane v. Smith, 14 Bea. 49. K 2 148 OPERATION OF CONTRACT AFTER DEATH TARTY. [CH. 5. S. I. surrender (s), or even before the time agreed upon for completing the contract, is in equity immaterial (t). 8. If the vendor die before payment of the purchase-money, it will go to his executors, and form part of his assets ( u) ; 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 jiower, the money will, as between his creditors and appointees, be assets (x). 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 intemiediate rents (y). Where a purchaser borrowed part of the purchase-money, which was secured by a mortgage of the estate, and afterwards paid it off, and took a transfer of the security, in the name of a trustee, a general devise was held to pass the land discharged of the money {z). 9. If the estate is under a contract for sale at the date of the Avill^ a devise of it to be sold for a charity, will not give the purchase- money to the charity contrary to the Mortmain Act, as it is called («), although this point was in the first instance otherwise decided (b). 10. A vendee being actually seised of the estate in contemplation of equity, must, as Ave 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 (c) ; but if he obtain possession of the estate before he has paid the pur- chase-money, and begin to cut timber, equity will grant an injunction against him (d). 11. If the purchaser was tenant at will of the estate, the contract determines the tenancy (e) ; but at law a lease is not affected by a mere contract to sell the estate to the tenant (/). But even if he was tenant for a term certain, the agreement determines the relation of landlord and tenant, and in equity at least the landlord cannot call for rent Q/). Lord Eldon seems to have laid down the rule thus generally, in a case in Avhicli he had not to decide the point. But in a later case {h), where a tenant from year to year agreed to purchase, and (s) Barker v. Hill, 2 Cha. R. 113. (y) Lumsden v. Fraser, 12 Sim. 263. (0 Winged v. Lefebury, 2 Eq. Ca, Ab. {z) Pitt v. Pitt, 27 L. T. 257. This waa 32, pi. 43 ; cases cited ante, note (6). not laid down as a general rule. (m) Sikesw. Lister, 5 Vin. Ab. 541, pi. 28; («) Harrison v. Hamson, 1 Rus. & My. Baden v. Ld. Pembroke, 2 Ver. 213; Bubb's 71 ; 1 Tau. 273. case, 2 Free. 38 ; Smith v. Hibbard, 2 Dick. (b) Middleton v. Spicer, 1 Bro. C. C. 20L 712- Foley ». Percival, 4 Bro. C. C. 419; (c) Post, ch. 7. Gilb. Lex Prajt. 243; Eaton v. Sanxter, 6 (f^ Crockford v. Alexander, 15Ves. 138. Sim. 51 7. (e) Post, a pm-chaser generally cannot be (x) Thompson r. Towne, 2 Ver. 319. 400 ; charged as tenant. Cooke V. AVagster, 2 Sma. 5c Gif. 296, money (/) Doe v. Stanion, 1 Mce. & AVcl. 701 ; in the hands of seller's agent to be invested, Tarte v. Darby, 15 Mee. & Wei. 001. passed by will as ready money and secmi- (g) Daniels v. Davison, 16 Ves. 252, 253. ties for money. (/*) Doe v. Stanion, 1 Mee. &; AVel. 095. CH. 5. S. I.] CONVEYANCE DESTROYS COVENANTS IN LEASE. 149 was, by the implied 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 is a question of intention. If by 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 would operate as a surrender of the former interest. 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 im2:)lying any agreement to hold as tenant at will in the meantime, the effect of wdiich would be absolutely to surrender the existing term, whilst it would be un- certain Avhether the purchase would be completed or not. 12. The Courts, therefore, will not hold a lessee's interest to have determined to his prejudice, unless compelled to come to that conclu- sion 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 completion of the pur- chase, if that be the intention. When the purchase 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. 13. 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 (z), and it is immaterial whether the lease was granted by the one to the other or not ; it is sufficient that the relation of land- lord and tenant subsisted between them under the lease. Lord Eldon observed, that undoubtedly the vendor may concede the advantage which by the law he derives from the 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 such a contract between vendor and vendee must be expressed in terms free from all ambiguity {k). And a mortgagee purchasing the equity of redemption may change his character by acting as if there was a set-off, in which case the mort- gage-money would be deemed to be set-off against the purchase- money (Z). 14. Where a purchaser is let into possession on a treaty for pur- chase and the seller cannot make a title, an action will not lie against the purchaser if the occupation has not been beneficial to him {m) (l) 1 Bligh, 69. Mac. & Gor. 251. (Ti) 1 Bligh, 76. (»«) Heani v. Tomlin, Peak. Ca. 192. (/) Wallis V. Bastard, 2 Eq. R. 508 ; 4 De 150 WHEEE TENANCY CREATED BY CONTRACT. [CH. 5. S. I. 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 purchaser, exceeds the interest of the money paid, yet the seller cannot recover (n). Finally, in a case where the jury found that the occupation had been beneficial, it was decided upon the general ground that the seller could not recover for use and occupation. Parties, it was said, may easily secure themselves by stipulating for the event of a non-completion of the purchase in their contract (o). A contract cannot arise by implication of law, under circumstances, the occurrence of which neither of the parties ever had in their contemplation (p). 15. As the possession of the purchaser is in these cases lawful, being with the assent of the seller, an ejectment will not lie against the purchaser without a demand of possession, and refusal to quit (g) unless upon possession being given to him he agreed to quit posses- sion 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-per- formance of his agreement. The agreement operates in the same manner as a clause of re-entry on breach of covenant in a lease (r). 16. A stipulation in a contract that until the conveyance was made the purchaser should pay the seller at the rate of a fixed sum per annum ; aftoi-^rGe half-yearly payments made was held to create the relation of landlord and tenant, and the sum payable Avas recoverable as rent {s). But this depended on the clear intention to create a tenancy at a fixed annual rent. A mere stipulation on possession being given to a purchaser, for interest, until the completion of the con- tract, although the purchaser had built upon the land, was treated as a tenancy at will only, and the owner Avas allowed to maintain an ejectment without notice to quit. The provision for payment of interest was not by way of compensation for the occupation, but Avas quite independent of it (t). 17. If possession be given upon payment of part of the purchase- (??) Kirtland v. Pounsett, 2Tau.45; Sea- Waller, 1 Car. & Pa. 595 ; Doe v. Miller, 5 ton v. Booth, 4 Ad. & El. 528. Car. & Pa. 595 ; Doe v. PuUen, 2 Bin. N. (c) Winterbottora v. Ingham, 7 Ad. & El. C. 749 ; Doo v. 8tanion, 1 Mee. & Wei. 695 ; 611; Blackburn I'. Smith, 2 Ex. 783; Wright see particularly, Doe r. Leeds & Bradford V. Colls, 13 Jur. 1056; a tenancy was ere- Ry. Co. 16 Q. B. 796. ated, and a bonus paid, and the latter was (r) Doe v. Sayer, 3 Cam. 8 ; the same recovered, after two yeai's' occupation, as doctrine is extended to an agreement for a the lessor could not make the lease. lease. Doe v. Smith, 6 Ea. 530 ; Doe v. (p) See Williams v. Shaw, Stevens v. Breach, 6 Esp. 106. Guppy, 3 Rus. 178, n. ; 171, inf. (s) Saunders v. Musgi-ave, 6 Bar. Sc Cress. iq) Doe V. Jackson, 1 Bar. & Ores. 448 ; 524 ; 9 Dow. & Ry. 529. Right V. Beard, 13 Ea. 210 ; Ilegan v. John- (t) Doe v. Chamberlaine, 5 Mee. & Wei. son,2Tau. 148; Doe ». Lawder, 1 Star. 308 ; 14; see Doe t). Rock, Car. & Ma. 549; 4 Doe V. Boulton, 1 Moo, & Mai. 148 ; Doe v. Man. & Gra. 30; pi. 19, post. en. 5. S. I.] USE AND OCCUrATION. 151 money, and interest is paid upon the remainder, twenty years' pos- session by the purchaser is no bar in ejectment, because his posses- sion was not adverse to the seller (m) ; nor indeed can a purchaser, generally speaking, set up his possession as adverse, and cutting of timber, and the like, would be referred to his title as j)urchaser (.r). But a purchaser in possession as tenant at will may transfer the possession so as to create a tenancy at will under himself, and his own right may be barred by lapse of time upon the interest thus created (_?/). 18. A purchaser who before he obtained a specific performance had been let into possession, and then relinquished it to the seller by mistake or misrepresentation, was afterwards allowed to recover against the vendor in an action for use and occupation (z). 1 9. 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 4 /. per cent, upon the amount of his purchase-money, as and for such rent ; the seller made default in deliverino- of the abstract, and the purchaser Avas let into possession — it was held: 1. That the non-delivery of an abstract Avas not waived by the pos- session. 2. That use and occupation would not lie, for the law would not imply that the vendee had subjected himself to such a condition by being let into possession while the title remained uncertain. 3. That the action if maintainable ought not to have been for use and occupation, but on the contract to pay four per cent., in the nature of an agreement for a tenancy (a). And 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 the purchaser was to be deemed tenant to the seller at a yearly rent equal to the interest, and the seller was to have power to dis- train, the instrument was held to be not a lease, but a contract for purchase, not altered by the power of distress (Z»). 20. A purchaser let into possession before the conveyance may recover for use and occupation against any person Avhom he lets into possession, so as to create the necessary relation, although he had not the legal estate (c). 21. When the purchase is completed, the purchaser, if the estate (m) Doe V. Edgar, 2 Bin. N. C. 498 ; cli. Jones, 12 Mee. & Wei. 12. 12, jjost. (a) Scaton v. Booth, 4 Ad. & El. 528. The (x) Doe V. Caperton, 9 Car. & Pa. 1 12. sale was in lots, and the sellers had not a (y) Doe V. Carter, 9 Q. B. 863; Doe v. joint title. See the several judgments. Rock, 4 Man. & Gra. 20; inf. ch. 12, s. 3, (b) Hope v. Booth, 1 Bar. & Ad. 498; pi. 10. the purchaser had become bankrupt. (2) Hall V. Vaughau, G Pri, 156; Win- (c) Hall v. Yaughan, 6 Pri. 157. terbottom v. Ingham, 7 Q. B. Gil ; Tew v. k4 152 purchaser's power over the estate. [CH. 5. S. I. is let to a tenant from year to year, may recover the rent, unless the tenant did not know of the sale, and had paid his rent before to his lessor (d). The purchaser is entitled to the benefit of covenants in a lease by the lessee with the vendor {e) and may recover for a breach before his time, if he is seised of the reversion during the continu- ance of the term (/) ; and he may, after notice to the tenant of the conveyance, distrain for rent in arrear (r/), whether the estate be free- hold or leasehold. 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 (A) : nor can he recover if he purchase after the term ended for a breach during the term. 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, he may sue as a trustee for his vendee (^). Although a purchaser obtains both the legal and equitable fee, yet he Avill not at laiv be bound by a lease granted out of the equitable fee (Jt). 22. And here it may be useful to observe, that by a late Act (/), 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 the Act), and all other rents, &c., 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 favour of such person or his personal representatives, unless it shall be expressly stipulated that no apportionment shall take place. 23. Where a charge is well created upon a derivative interest, e. g.^ an underlease, a purchaser cannot avoid the charge by purchasing both the original interest and the interest derived out of it (in), nor (fZ) Ver. & Scri. 289; Birch v. Wright, Ti'cnt v. Hunt, 9 Ex. 14 ; Wilton v. Dunn, 1 T. Rep. C78; Lumley v. Reisbeck, 15 Ea. 17 Q. B. 294; see Wyse v. Myers, 4 Ir. C. 99; Rogers v. Humphreys, 4 Ad. & El. 299; L. R. 101. Evans v. Elliot, 9 Ad. & El. 342; Guinness (/i) Flight v. Bentley, 7 Sim. 149; Flinn V. Burr, 1 Hay. & Jo. 735. v. Calow, 1 Ma. & Gra. 589. (e) Post, eh. 15. (J) Johnson v. Churchw. of St. Peter, 4 (/) Davis's case ; Woodfall's L. & T. 529 ; Ad. & El. 520. Left'oy V. Lee, 1 Hay. & Jo. 721. It is not {li) Doe v. Thompson, 9 Q. B. 1037. now necessary to have tlie same reversion; {I) 4&5Will.4, c.22; in reMarkby, 4My. 7 & 8 Vict, c 7G,s. 12; 8 &9Vict. c.lOG, s.9. & Cra. 484; Browne v. Amyot, 3 Ha. 173; {(j) Moss V. Gallimore, Doug. 265; Pope Carter v. Taggart, IG Sim. 447 ; Knight v. V. Biggs, 9 Bar. & Crcs. 245; Waddilovo Boughton, 12 Bea. 312, applies to leases V. Barnett, 2 Bin. N. C. 538; Brook v. after the Act under a power created before Biggs, ib. 572 ; Partington v. Woodcock, it. Lock v. Do Burgh, 4 De Ge. & Sma. 6 Ad. & El. 690; Brown v. Storey, 1 Man. 470; Baillie v. Lockhart, 2 Macq. II. L. 258. & Gra. 117; Doe v. Barton, 11 Ad. & El. {m) Haig v. Hogan, 4 Bli. N. S. 3^50. 307 ; Whitmore v. Walker, 2 Car & Ki. G\r> ; CH. 5. S. I.] OF THE POWER OF DEVISING. 153 can an agreement by a lessee to settle his lease be affected In equity by his subsequent purchase of the fee, and a devise of it by his will {n). It is a consequence of the general rule, that a purchaser may sell or charge the estate, before the conveyance is executed (o) ; and a judg- ment will bind his equitable interest (p); but a person claiming under him must submit to perform the agreement in toto (q). And if the seller make a second sale to a purchaser with notice, the first pur- chaser can enforce his contract against the seller and the second purchaser (r). 24. 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 republished 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 wIUs executed upon or subsequently to the 1st of January 1838. 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. A man having contracted for an estate, might devise it, if freehold (.9), before the conveyance ; and if copyhold, before the surrender (t) ; and that although the estate was contracted for at a future day (71), or tlie contract was entered into by a trustee for him {x) ; and the devisee would be entitled to have the estate paid for out of the personal estate of the purchaser (y). An estate contracted for would pass by a general devise of all the lands pur- chased by the testator, although he might have purchased some estates Avhich had been actually conveyed to him, and would therefore of themselves satisfy the words of the will (z). On the other hand, It seems that estates recently purchased ajid actually conveyed, would pass with estates contracted for, by a general devise of all the manors, &c., for the purchase whereof the testator had already contracted and (n) Rutledge v. Rutledge, 2 Bli., N. S., (*) Darris's case, 3 Salk. 85 ; Milner v. 352; 1 Dow., N. S., 331. Mills, Mos. 123; Alleyn v. Alleyn, Mos. (0) Seton V. Slade, 7 Ves. 2G5; I Ves. 2G2; Atcherley v. Vernon, 10 Mod. 518; 220 ; 6 Ves. 352 ; Wood v. Griffith, 12 Feb. Gibson v. Ld. Montfort, 1 Ves. 485. 1818; MS. 2 Bal. & Bea. 522; Nelthorpe (0 Davie v. Beardsham, 1 Cha. C. 39; V. Holgate, 1 Col. 0. C. 203. Grecnliill v. Greenhill, 2 Ver. G70 ; Pre. C. (p) Baldwin v. Belcher, 1 Jo. & Lat. 18 ; 329 ; Atcherley v. Vernon, 10 Mod. 518 ; 9 Walcot V. Lynch, 13 Ir. E. R, 199. Ves. 510 ; Marston v. Roe, 8 Ad. & El. 14. {q) Dyer v. Pulteney, Bar. Rep. C. 160. (?«) Trimuel's case, Mos. 2G5 ; Atcherley (r) Daniels v. Davison, 16 Ves. 240; v. Vernon, 10 Mod. 518; Gibson v. Ld. Spence v. Hogg, 1 Col. C. C. 225 ; Potter Montfort, 1 Ves. 485. V. Sanders, 6 Ha. 1 ; as to making the (.r) Greenliill v. Greenhill, 2 Ver. G79. second purchaser a party, see Cutts r. Tho- (?/) Milner r. Mills, Mos. 123; Broome dey, 1 Col. C. C. 223, et qu. 13 Sim. 246; v. Monck, 10 Ves. 597. Collettr. Hover, 1 Col. C. C. 227. (c) Atcherley r. Vernon, 10 Mod. 518. 154 OF A DEVISE or AN ESTATE CONTRACTED FOR [CH. 5. S. I. agreed («), (I). But a devise of estates "for the purchase whereof the testator had onlij contracted and agreed," would not pass estates actu- ally conveyed to him before the will, unless, perhaps, they were recently purchased, and the testator had not contracted for any other estate. 25. If a man possessed of a term of years contract for the pur- chase of the inheritance, the term, by construction of equity, instantly attends the inheritance ; and therefore, by a devise of the estate sub- sequently to the contract, the fee-simple would have passed although not actually conveyed, and the term as attendant on it (Jj). And if the purchaser had, previously to the purchase, made his Avill, 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 construction of equity, attended the inheritance immediately on the purchase of the fee. And the same rule, it seems, must prevail where the term is even specifically bequeathed ; for if the fee had been actually conveyed, the convey- ance would have operated as a revocation (c). And although the estate might, subsequently to the will, be conveyed, or surrendered either to the purchaser (cZ), or to a trustee for him (^ould probably, after the repurchase, expressly revoke the devise of the estate contained in his will. 47. 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 laAV, be an ademption ( /"). 48. In regard to cases common to the old and the new laAv, 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 ((/), although he unite in himself the three characters of vendor, heir, and executor Qi) ; but the estate will be assets in his hands. 49. So if the purchaser die intestate, the heir will In like manner be entitled to have the estate purchased for him : and if his ancestor die before the conveyance is executed, the heir may devise, charge, or sell the estate, in the same manner as the ancestor himself might have done (i), and it will now be subject to the dower of the pur- chaser's Avidow, unless he has deprived her of that right (k). 50. 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 (/). And if the assets cannot be got in, and the real representative pay for the land, he may call upon the personal estate to reimburse (e) 2 Jiir., N. S., 745. G3-2 ; 3 P. Wms. 224; Broome v. Monck, (/) Moor V. Raisbeck, 12 Sim. 123; 10 Ves. 597. Fowler w. WiUoughby, 2 Sim. & St. 354; (h) Coppin u. Coppin, Sol. C. C. 28; 2 P. qti. when was tlie contract rescinded ? demon- Wms. 291 . strativo legacy; Newbokl v. Roadknigbt, (i) Langford u. Pitt, 2 P. Wms. 629. 1 Rus. & My. 677. (k) 3 & 4W. 4,c.l05, .s.2,;;osf,cli.l2,s.I. i'j) Milnei'f. Mills, Mos. 123; 2 P. Wms. (/) Allcyn v. Alleyn, Mos. 262. yy tract ought not y/irh/fS^ into personal; ; C ' ^ the vendor ( »\ 162 RIGHTS OF HEIRS WHERE NO TITLE. [CH. 5. S. I. hhn {ni). So, if the personal estate is insufficient to perform the contract, and the agreement is on that account rescinded, the heir or devisee will, it should seem, be entitled to the personalty as far as it extends- And if by reason of the complication of the testator's affairs, the purchase-money cannot be immediately paid, and the vendor 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 estates for his benefit (?i). 51. If the heir not being entitled to have the estate paid for out of the personal estate, apply it in payment of the purchase-money ; the personal estate Avill be entitled to a charge on the estate for the amount (o). 52. But 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 con- tract ought not to be executed, there is no conversion of real estate .v/if>^/y^«? ;„+„ i.^,,o^^jjj . g^j^jj therefore the estate will go to the heir at law of (p). So if upon the death of the purchaser a title cannot 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 lauds, or to have any other estate bought for him {(j). For although the purchaser himself, if alive, might elect to take the estate with the bad title (r), or where there is an outstanding interest with a compensation {s) ; yet, where he is dead, the inquiry must be, whether at his death a contract existed, by which he was bound. Where a man had a right of pre-emption of an estate under a will, and did not accept the offer, the real representative was not enabled to call upon the personal estate to pay for the estate {t). So where upon a parol treaty, the purchaser filed his bill for a specific performance of it, and the vendor submitting 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 : it was detemiined, that the estate did not pass by a general devise in his will, which was made ■prior to the payment of the money (m). Such a will would now operate to pass the estate contracted for, although the contract Avas concluded after the exe- (/«) 10 Ves. 614, 615. v. Monck, 10 Ves. 597 ; Morgan v. Holford, \n) Whittaker v. Whittaker, 4 Bro. C. C. 1 Sma. & Gif. 101 ; Savage v. Can-oil, 1 Ba. 31; Broome f. Monck, 10 Ves, 597. & Be. 2G5 ; sz<;?. . (o) Savage v. CaiToll, 1 Bal. & Be. 265; (r) Western v. Russell, 3 Ves. & Be. 187. jpo5f, eh. 21. (s) Collier v. Jenkins, Yo. 295; 7 Ves. {p) Lacon v, Mertins, 3 Atk. 1 ; Att.- 344, 345, gen. V. Day, 1 Ves, 218; Buckmaster r. {t) Earl of Radnor r. Shafto, 11 Ves. 448, Harrop, 7 Ves. 341 ; 8 Ves. 274; Roser. (m) Gaskarth». Ld. Lowther,12 Ves.107; Cunynghame, 11 Ves. .550. Duekle r. Baines, 8 Sim. 525; Ld. Slu-ews- (7) Green v. Smith, 1 Atk. 573; Broome bury v. Ly. Shrewsbmy, 18 Jur. 397, CH. 5. S. II.] PUKCHASE OF EQUITY OP KEDEMPTION. 163 cution of the will {x). If a contract for sale, or what amounts to it, Avas signed by the seller and accepted by tlie purchaser, although not signed by him, it seems to admit of no doubt that he might have devised the property by his will, which would not have been affected by his subsequently regularly signing the contract (//). In most cases, since the statute of Victoria, this point would not arise, as the will, if there were sufficient words, would pass any subsequently acquired estate. 53. But if an estate directed to be bought, but not actually con- tracted for, is not, or cannot be bought, the money must be laid out in other lands, for the benefit of the devisee {z). Where a testator intends that the devisee of the estate under contract shall have another of equal value, in case a good title cannot be made to the one purchased, an express declaration to that effect should be inserted in the will. (x) 1 Vict. c. 2G. (y) See Morgan v. Holford, 1 Sma. & Gif. 101. (z) Whittaker v. Whittakev, 4 Bro. C. C. 31; 2 Atk. 369; Brooino v. Monck, 10 Ves. 597. SECTION II. OF OTHER RIGHTS AND LIABILITIES ARISING OUT OF CONTRACTS. 1. Where purchaser liable to existing mort- gage debt: new statute. 2. Stopping proceedings in ejectment. 3. Further advances to mortgagor after a sale by him. 4. Redemption ofmortgages on distinct es- tates. 5. Loss of mortgage deed — Production of mortgage deed. 6. Assignee of mortgagee subject to the accowit. 7. Annuity the 2irice qf an estate, how to be secured. 8. Purchaser to indemnify against charges ; as where he buys a lease, or an equity of redemption — Liability of sub-purchaser. 9. Legal and equitable rights in the Crown. 10. Agreement to give real security enforced. 11. Purchaser of legacy entitled to stock in- vestment. 13. Fraud in sale of life policy. 14. Where 2>ower to re-purchase makes a loan. 15. Payment to be made on condition. 16. Re-purchase on a condition. 17. Notice to 2>urchase binding tinder Act of Parliament. 19. Right of tenant for life of leasehold in purchase-inoney. 20. Purchaser bound by grant of steward- ship for life. 1. Formerly where an equity of redemption was purchased, un- less the mortgage money formed part of the consideration money for the estate, or the purchaser by communication with the mortgagee, clearly took the mortgage debt on himself as between his heir and executor, it was considered a charge on the land ; the mere covenanting with the mortgagor to pay the debt did not make it his personal dclit, and consequently his personal estate as between the heir and executor, L 2 164 rUUCllASE OF equity of KEDEMrnON. [CH. 5. S. II. was only the auxiliary fund for payment of It (a). This was an ex- ception to the general rule, but now the law is altered, and it is pro- vided generally as to any person dying seised after 31 December 1854 of any land or other hereditament charged with a mortgage, who shall not by will or other document have signified any contrary or other intention, that the heir or devisee shall not be entitled to have the mortgage debt discharged out of the personal estate or any other real estate of such person, but the lands so charged shall be primarily liable thereto, but this is not to affect the mortgagee, nor to apply to any will or document made before 1 January 1855 (b). 2. Where a mortgagor has agreed to convey his equity of redemp- tion to the mortgagee, the proceedings in an ejectment by the mort- gagee cannot be stopped under the 7th Geo. 2, c. 20 (I), for the effect of it Avould l^e to strip the mortgagee of his legal title, which might let in a posterior equitable right to the prejudice of the mort- gagee, though he should thereafter obtain a decree for the performance of the agreement (c). But the relief will be granted to the mort- gagor, where the mortgagee has not taken any steps to complete his contract for the purchase of the equity of redemption {d). 3. An advance by a mortgagee of a further sum of money to the mortgagor, without notice of the sale of the equity of redemption, Avould bind the purchaser, although his conveyance is registered (e). This should be guarded against by a notice. 4. Another 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 com- pelled to redeem another estate; for a mortgagee of two distinct estates upon distinct transactions from the same mortgagor, 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 ((/), and to the same person ; and although the doctrine has been sometimes doubted (A), yet it appears to be perfectly settled {i). There is no authority that (a) Evelyn v. Evelyn, 2 P. Wms. 6.39; (b) 17 & 18 Vict. c. 113. Hamilton v. Worley, 2 Ves. j. G2; Woods (c) Goodtitle v. Pope, 7 T. Rep. 185. V. Huntingford, 3 Ves. 128 ; Buller v. Bui- (d) Skinner t'. Stacy, 1 Wils. 80. ler, 5 Ves. 517 ; Waring v. Ward, 5 Ves. (e) Inf. ch. 22. 670; 7 Ves. 332; Ld. Oxibrd u. Ly. Rodney, (/) Ireson t\ Denn, 2 Cox, 42.j ; White 14 Ves. 417 ; Barliara v. Ld. Thanet, 3 My. v. Hillacre, 3 Yo. & Col. 5). 15. If a purchaser agree to pay an addition to the purchase-money, provided the adjoining property be improved in a stipulated manner (y) 7 Ves. 337; Crafts v. Tiitton, 8 Tan. (s) Lucas v. Bond. 2 Ke. 136. 365; 2 5Ioo. 411. («) Barber v. Morris, 2 Moo. & Mai. 62. (s) Wood V. Griffitli, 12 Feb. 1818, M.S. \h) Verner v. Winstanley, 2 Sch. & Lef. (0 Greenwood w. Taylor, 14 ,Sim. .50.5. 393; Sevier v. Greenway, 19 Ves. 413; (ti) Att.-gen. V. Cox, Pearce v. Att.-gen., Ncal v. Morris, Beat. 597 ; Fee v. Cobine, 3 H. of L. Cas. 240 ; inf. ch. 13, s. 2. 11 Ir. Eq. R. 406 ; Bell v. Carter, 17 Bea. (.r) Walker v. Barnes, 3 Mad. 247. 11 ; a trust for sale to secure a debt held to {y) Blakesley v. Whieldon, 1 Ha. 176. be a mortgage, qxi. CH. 5. S. III.] TOWERS. STEWARD OF MANOR. 167 before a day named, the money cannot be recovered if tlie seller do not make all the improvements before that day (c). 16. If a power to re-purchase be given upon a condition, for ex- ample, that rent be in the meantime regularly paid, the right cannot be enfored unless the condition has been complied with, for it is a privilege conferred (c?). 17. 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 pro- visions for ascertaining its value, if the terms offered are not accepted ; the party empowered to purchase, if he give a regular notice to pur- chase, cannot Avithdraw from it, but Avill be compelled to take the estate (e). 18. 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 liabilities of the seller, and release the original lessee from his obligations ( /). 1 9. Where a leasehold estate was bequeathed to one for life, with gifts over, and the estate was sold with the concurrence of some of the parties and the acquiescence of the others, and the purchase- money invested in the funds, without any agreement to divide the 13urchase-money, the interest of wliich was received by the tenant for life till the lease expired, it was held that the capital of the fund belonged to the tenant for life {(/). 20. 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 Avill be entitled to the custody of the court-rolls. In pvirchasing a manor, therefore, the instrument by Avhicli the steward was appointed should be called for. This is a precaution which has never been attended to. (c) Maryon v. Carter, 4 Car. & Pa. 295. (c) The King v. Hung. Mai'ket Co., 1 (d) Davis v. Thomas, 1 Rus. & My. .'^OG. Ncv. & Mann. 112. Consider Williams v. Owen, 10 Sim. 386 ; (/) Jenkins i\ Portman, 1 Ke. 43.5. PeiTy V. Meddowcroft, 4 Bea. 197 ; Joy i\ (y) Phillips v. Sarjent, 7 Ha. 33. Birch, 4 Cla. & Fin. 57. V**^.^'<^'^/^^^^'^ SECTION III. or SPECIFIC PERFORMANCE. / 1 . Specific 'performance by Court of Review. 2. Heir at law of vendor hound. 3. Infant heir of vendor — Devisees in strict settlement of vendor. 4. Heir or devisee of vendor after decree for sale of debts. 5. Parties to suit, trustees after decree. 7j c/c. 0. Parties bound by decree for sale — Vest- itiff order. 7. Orders liable to stamp duty. 9. Purchaser of any lot may apply for vesting order. 10. Tenant in tail — Provisions by statute. 11. JY'nants in tail of co])yholds — Infant trustee. 168 DECREE FOR SrECIFIC rERFORMANCE. [CH. 5. S. III. 12. 13. 14. 15. 16. 17. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 31. 32. 33. 34. 35. 59. Boiveress. Joint tenant. Feme covert. Where she has a power. Decree against the hus/mnd. Feme covert xrith separate estate pur- chasing or selling. Lunatic; effect of lunacy on contractor deposit. Trustees under potver. Infant: contracts: sales. No specific performance of tenancy from year to year : executors. Sale of annuity, stock, Sfc. Discretionary Misrepresentation ly purchaser^ Harris v. Kemhle. Statements of amount of fine: undue advantage. Intoxication. Seller in prison for deit. Seller turning purchaser out of possession. Bill filed before the time. Where the action is lost — Damages re- coverable at Imv — Hardship of sale upon seller — Want of competency. Mortgagee with power of [sale selling after foreclosure. Modification of contract. Uncertainty. Where part cannot be enforced. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. Purchase of lease or underlease. Sale of reversion, rent, tenant not hiown: no person liable to covenants. Suppressio veri; suggestio falsi. Mistake. Surprise. Fraudulent misrejiresentation. Sale by agent contrary to authority. Breach of trust. Discretionary poiver in trustees — Sale by tenant for life. Seller with an interest selling as agent to trustee. Want of title — Stranger selling — No mutuality. Where title can be made good. Purchaser may accept the title. Seller not compelled to settle another estate. Equitable title. Purchaser nominal contractor. Philips and Duke of Buckingham. Seller pretending to be an agent. Sale of annuity for lives not named. Specific performance where no action will lie. Penalty: specific performance. Penalty : action. Powers of Common Lau> Courts in the nature of equitable jurisdiction. 1. The Court of Review in bankruptcy has not jurisdiction to compel a specific i^erformance where an estate is sold under the common order of the court on the petition of an equitable mort- gagee (a). 2. In regard to the vendor, — if a man, seised in fee-simple, or j)ur autre vie {h), 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 did not covenant for liis heirs (c). 3. It was a point of great controversy Avhether the 7 Anne, c. 19, enabled an infant heir at law to convey in performance of a contract made by his ancestor. It is now sufficient to refer to the cases (t?), for that Act was repealed by the 6 Geo. 4, c. 74 ; but even the latter Act was held not to embrace constructive trusts {e). The law was greatly enlarged by the 1 Will. 4, c. 60, which did extend to con- structive trusts, and provided relief in certain specified cases against (a) Expte. Cutts, 3 Dea. 242. [h) Stevens v. BaUy, 2 Free. 199, Nels C. R. 106, Anon. 2 Free. 7 55. (r) Gcll v. Ycrmedum, 2 Free. 199. {d) Purch., lllh ed., 224. (c) Dew r. Clarke, 4 Rus. 511 ; King «. Turner, 2 Sim. 550. CH. 5. S. III.] INFANTS, &C. TRUSTEES. 169 the heirs of vendors and nominal purchasers (/), and against the devisees of vendors {g), so as to enable equity under sufficient guards to execute a contract for sale notwithstanding the death of the seller leaving an infant heir, or having devised the estate in strict settle- ment ; but the Act was not to extend to a vendor, except in the cases specially provided for (A). This Act has been repealed by the 13th and 14th Vict. c. 60, by which and the later Act of loth and 16th Vict. c. 55, much more extensive powers are given to courts of equity over trust and mortgaged estates. The first mentioned Act gives a summary jurisdiction to the courts of equity, and makes their simple order operate as a conveyance or a release of contingent interests so as to vest the estate as the Court may direct, although an actual con- veyance or release may be directed if the Court think fit, to be made by some person appointed by the Court (/). It embraces lunatic trustees and mortgagees (J), and infant trustees and mortgagees (Jt), and appears fully to provide for the cases of trustees out of the juris- diction or who cannot be found il), or when it is uncertain which of several trustees was the survivor (m), or uncertain whether the last known trustee be living or dead {n), or when a trustee has died in- testate without an heir, or it is not known who is his heir or devisee (o). And the fact that an order has been made on an allegation of the personal incapacity of a trustee or mortgagee, or on an allegation of the trustee or the heir or devisee of a mortgagee being out of the jurisdiction, or on an allegation of the other circumstances before pro- vided for, is made conclusive evidence of the matter so alleged, but Avithout prejudice to relief where the order shall have been improperly obtained (p). It provides also for the discharge or release by order of contingent interests in unborn persons, who, after coming into existence would be trustees {q), and for the vesting of the land in the party entitled when the trustee neglects or refuses to convey (r), and this, as in other cases, is extended to contingent interests. 4. And it enacts, that when a decree shall have been made by any court of equity directing the sale of any lands for the payment of the (/) Sect. 16. Prytharch v. Havard, 6 (/) S. 9, 10, in sect. ]0, the words "upon Sim. 9. any trust'' appear to be accidentally omitted ; ({/) S. 17. they would no doubt be tiupplicd by the (/t) S. 18, '): and a covenant to sell severs the joint tenancy in equity {q). 14. An agreement by a, feme covert for sale of her estate, cannot be j enforced either at laAV or in equity (r), unless the estate be settled to her separate use, so as to enable her to dispose of it as if she were , sole (5) ; nor will an agreement by her husband bind her (t). 15. But the better opinion perhaps is, that a married Avoman having a poAver of appointment can bind herself I^y a contract to sell the pro- perty, although Sir Thomas Plumer in Martin v. Mitchell expressed a different opinion (u). 16. If a husband agree to convey his wife's estate, he Avill, ac- cording to some cases, be compelled to perform the agreement in specie {x) (I) ; but this jurisdiction is to be very sparingly exercised, (h) S. 50-54. (s) Davidson v. Gardener, MS., Purch. (z) S. 40, 47 ; su]). 11 ed. (70 Powell u. Matthews, IJur.jN.S., 973. (t) Daniel v. Adams, Amb. 495; 1 Eq. (Z) Hinton v. Hinton, 2 Ves. 631, G38 ; Ca. Ab. 62, pi. 2; Martin v. Mitchell, 2 Ja. Amb. 277 ; Brown v. Raindle, 3 Ves. 250. Sc Wal. 413 ; Crofts v. Middleton, 2 Kay & (m) 3 & 4 Will. 4, c. 105, s. 4, 5. Jo. 194 ; 7 Edw. 4, 14, b. (7i) Lloyd V. Lloyd, 2 Con. & Law. 592. (ii) Martin r. Mitchell, 2 Ja. & Wal. 413; (0) Fry V. Noble, 20 Bca. 598, which qu. Daniel v. Adams, Amb. 495 ; 2 Sugd. Pow. (p) Musgrave v. Dashwood, 2 Ver. 45, 97 ; Stead v. Nelson, 2 Bea. 245 ; Dowell r. 03 ; 2 Ves. 634. Dew, 1 Yo. & Col. C. C. 345. (q) 3 Ves. 257 j Frewen v. Relfe, 2 Bro. (x) Hall v. Hardy, 3 P. Wms. 187; Bar- C. C. 220. rington v. Home, 2 Eq. Ca. Ab. 17, i)l. 7 ; (r) Emery v. Wase, 5 Ves. 846. (I) A question has been raised, whether if the husband having contracted to sell his wife's estate as owner, dies, she may enforce the conti-act against the purchaser. Hum- phreys V. Hollis, Jac. 73. CH. 5. S. IJI.] FEME COVEUT PUHCHASING, &C. 173 and equity Avill seize on any reasonable ground as a l)ar to the aid oi" the Court iy). The substitution for Recoveries Act (r), although it alters the mode of conveyance by a married woman, does not inter- fere Avith the rule in equity on this head ; but a husband and wife may, upon a sale of the wife's estate, maintain a suit against a pur- chaser for a specific performance, notwithstanding the want of mutu- ality («). 17. 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 \i{h). But in a case (c) before Sir J. Leach, where the contract Avas entered into by a mar- ried woman (living separately from her husband, and having a sepa- rate 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 sepa- rate 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 authorised 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 favour of the title, dismissed the bill without costs, on the ground that a married woman could not by a general engagement bind speci- fically her separate estate, although she could by an informal instru- ment, as a bond or note. And where real estate was devised to a married woman for her separate use, a contract for sale by her Avas not after her death enforced against t he ])urchaser at the instance of her devisee in the absence of Jier heir at law. It Avas said by the Court, that the object of limiting the estate to her sej)arate use, Avas Morris v. Stephenson, 7 Ves. 474; Wheeler Adams, Amb. 495 ; Davies v. Jones, 1 New V. Newton, Pre. C. 16; Hadtlon's ease. Tot. R. 2G7 ; Martin v. Mitchell, 2 Ja. &; AVal. 205; Griffin v. Taylor, id. 106; Winter v. 425; Ex pte. Blake, 16 Bea. 403. DevTeux, 3 P. Wms. 190, n.; Withers v. (z) 3 & 4 AVill. 4, c. 74, s. 77, 2>ost, ch. I'inchard, 7 Ves. 475; Anon. 2 Cha. C. 53; 12, s. 2. u. to Hall V. Hardy, 3 P. Wms. 187 ; Oiti-ead (n) Feunelly v. Anderson, 1 Jr. Cha. Rep. V. Round, 4 Vin. Ab. 303, pi. 4; 8 Ves. 510; 706. Emery v. Wase, 5 Ves. 846; Sedgwick v. {b) Dowling- ?'. Mag'uire, Llo. & Go., t. Hargrave, 2 Ves. 57; Emery ?'. AA^asc, 8 Ves. Plunk. 1 ; Crofts v. Middlcton, 2 Kay «fc Jo. 505; 16Ves.367; Howell i;. George, 1 Mad. 1. 194, reversed ; 27 L. T. 114. (?/) Ortread v. Round, 4 Vin. Ab. 203, pi. (c) Chester v. Piatt, Rolls Reg. Lib. A, 4; Emery v. \A^ase, ubi mp.; Daniel v. 1820, p. 1770. 174 LUNACY BEFORE OR AFTER CONTRACT. [CH. 5. S. III. to protect her from her husband, and not to extend her power of disposition (d). But this position it would be difficult to maintain. 18. An agreement by a lunatic cannot of course be carried into a specific execution (I). Where a purchaser at an auction, who had l)aid a deposit, was before completion found under an inquisition to be a lunatic from a date anterior to the purchase, upon a claim filed for a specific performance, or to have the contract discharged, the contract was declared to be void, and the seller Avas directed to retain out of the deposit all his costs and expenses, and to pay the residue to the committee () Knatchbull r. Grucber, 3 Mer. 124. V. Barwick, 1 Ves. & Be. 95 ; Lightfoot v. {q) Bodington v. G. W. By. 13 Jur. 144. Heron, 3 Yo. & Col. 586 ; Nagle v. Baylor, (?•) Devenish v. Brown, 27 L. T. 237. 178 SrEClFIC PERFORMANCE. UNCERTAINTY. [CH. 5. S. III. 30. Where a conveyance of one moiety of an estate was set aside as unduly obtained, a contract by the conveying party to sell the other moiety to tlie same party, based on the conveyance, will not be carried into execution {s). 31. A court of eqiiity frequently decrees a specific performance Avhere the action at law has been lost by the default of the party seekino" the specific performance, if it be conscientious that that ao-reement should be performed, as in cases where the terms of the ao-reement have not been strictly performed on the part of the person seekino- specific performance, and to sustain an action at law per- formance must be averred according to the very terms of the con- tract. Nothing but specific execution of the contract, so far as it can be executed, will do justice in such a case {t). But although damages may be recovered at law, yet equity is not therefore obliged to decree a specific performance (u). Thus in a case where a seller was entitled to a small estate under his father's will, on condition that if he should sell it in twenty -five years, half the purchase-money should go to his brother ; it was held, that the hardsliip alone of losing half the purchase-money, if carried into execution, was sufficient to determine the discretion of the Court not to interfere (x). 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 incon- veniences, would expose him to a new action for damages f y). 32. Where a mortgagee with a power of sale foreclosed, and then sold, and l)y the agreement stipulated that being a mortgagee with power of sale, she should enter into no covenant but the usual one against incumbrances, and the purchaser required a conveyance under the power, representing the foreclosure as defective, and relying on the agreement ; the seller's defence, that she sold for her own benefit, and did not intend to be answerable under the power of sale, the reference to which was introduced into the agreement by mistake, was held to be valid, and a specific performance was refused, except under the foreclosure title {z). 33. But although a covenant ought not to be performed literally, yet equity will execute it according to a conscientious modification of it, to do justice as far as circumstances will permit (a). 34. Uncertainty may be a ground for refusing to perform the con- (s) RejTiell V. Sprye, 8 Ha. 222, 1 De Ge. & Be. 283 ; Howell v. George, 1 Mad. 1 ; Mac. & Gor. Go6 ; Yonge v. Reynell, 9 Ha. Wedgwood v. Adams, Bea. 600; 8 Bea. 103. 809. (y) Harnett v. Yielding, 2 Sch. & Lef. (<) Davis V. Hone, 2 Dow, 546 ; 2 Sch. 554 ; Ellard v. Ld. Llandaff, 1 Bal. & Be. & Lef. 341, 748 ; Lennon v. Napper, ib. 684. 241 ; Peacock v. Penson, 11 Bea. 355. (ii) Pope V. Harris, LofFt, 791 ; Wliite's (2:) Watson r. Marston, 4 De Ge. Mac. & case, 3 Swan. 108, n. ; Coote v. Coote, 1 Gor. 230, Sau. & Sen. 693. (a) Davis v. Hone, 2 Sch. & Lef. 348 ; (a-) Faine ?>. Brown, 2 Yes. 307 ; Costi- Lawder v. Blachford, Beat. 522. gan V. Hastier, 2 Sch. & Lef. 100 ; 2 Bal, CH. 5. s. III.] suprPvESSio veri: sfggestio falsi. 179 tract, but words in themselves vague may by reasonable interpreta- tion be made to express a certain object (/>). 35. And when that which the plaintiff is to give on a bill for specific performance be something to be done, at a future time, and which the Court cannot enforce, the Court will not give relief (c). 36. 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 cove- nants. And if the deeds are brought to his solicitor for inspection before the contract, who does, or might inspect them, he will be con- sidered to have purchased Avith notice of the covenants (d). But although a man knows that the seller is only a lessee, yet if the con- tract for sale 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 lease, the purchaser is not bound (p). 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 would be equivalent to a representation that there was no such prohibitory covenant, although he was not aware of the extent or operation of the covenant (/ ). 37. Where the rent is paid, it is no objection upon the sale of the reversion, that the seller does not show who is liable to pay it. But a statement by a seller, that the property is let on a lease containing all the usual covenants to repair, knowing that there was no person could be made liable on those covenants, Avould prevent a specific performance against the purchaser (^). 38. Suppressio veri, as well as surjgestio falsi, is a ground to rescind an agreement, or at least not to carry it into execution (A), and even an industrious concealment, during a treaty, of the necessary repair of a wall to protect the estate from a river, Avhich Avas a considerable outgoing, has been deemed a sufficient ground to Avithhold the aid of equity from a A'cndor (^). 39. So Avhere there is a mistake betAveen the parties as to what was sold, the Court Avill not interfere in favour of either party (A). And it will not carry an agreement into effect Avhere, by the death of a {h) Sanderson v. Cockermouth, &c. Ry. Howard v. Hopkins, 2 Atk. 371 ; Young- v. Co., 11 Bea. 497. ^^S^L^Ts.'^f^. t^u Clerk, Pre. C. 138 ; 1 Bal. & Bea. 241 ; Ld. (c) AVaring v. M^chester, &c. Ry. Co. 7 Clermont v. Tasburgh, 1 Ja. & Wal. 112 ; Ha. 492. Cox v. Middleton,2 Drew. 209 ; Dolman v. (d) Cosser v. Collinge, 3 My. & Ke. 283 ; Nokes, 27 L. T. 178. Flight V. Barton, id. 282; Propert v. Par- (1) Shirley v. Stratton, 1 Bro. C. C. 410; ker, ib. 280 ; Smith v. Capron, 7 Ha. 185. Small v. Attwood, G Cla. & Fin. 232. (e) Van v. Corpe, 3 My. & Ke. 2G9. (k) 1 Ves. j. 211 ; G Ves. 839; 13 A^s. (/) Flight V. Barton, 3 My. & Ke. 282. 427 ; Higginson v. Clowes, l.'i Ves. 156; 1 (g) Flint i;. Woodin, 9 Ha. G18. Ves. & Be. 524; Harnett v. Yeilding, 2 (/<) Buxton V. Cooper, 3 Atk. 383; Sch. &Lef. 554; Neap r. Abbott, C. Coo. 333. M 2 180 SURPRISE. FRAUDULENT MISREPRESENTATIONS. [CII. 5. S. III. party, which was unknown to both seller and purchaser, the seller had A^ //-^^ a greater Interest than was supposed, although he sold all his present and future interest (/). 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 auctioneer, the Court will not com- pel him to complete the purchase, but will leave the seller to his action for damages (m). 40. Even mere surprise on third persons at a sale by auction, has been deemed sufficient to prevent the Court from assisting a purchaser ; as where the known agent of the seller bid for the estate on behalf of the purchaser, and other persons present, thinking he was bidding as a puffer on the part of the vendor, were deterred from bidding (n). So, where a purchaser, previously to the sale by auction, told the vendor that he would have nothing to do with the estate, but after- wards went to the sale, ichere he was considered hy the company as a puffer, and bid 8,000/. 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 (o). The mere impression on the mind of the Court that there has been sur- prise or mistake, may induce the Court to leave the plaintiff to his remedy at law (p). And representations of intended improvements by building, upon the faith of Avhich the purchaser bought, may be a sufficient defence against a specific performance {q). The rights of the two parties to call upon the Court to enforce the contract may, although originally co-extensive, have ceased to be so, for one party may still have the right, whilst the other by his conduct may have forfeited it (?•). 41. If the contract be founded on fraudulent misrepresentations, such as would in a court of law l^e 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 contract, where the truth of that Is known to the one party, and unknown 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 (s). {I) Colyer v. Clay, 7 Bea. 188 : consider (p) Neap v. Abbott, 1 C. Coo. 382. the extent of the relief. (^) jyj^gj.g ^_ Watson, 1 Sim., N. S., 523; (w) Malins u. Freeman, 2 Ke. 25. suv-v> 131 137- (w) Twining V. Morris, 2 Bro. C. C. 32G; f -ir„ ooo iA -I- OA- oio oi-io 11-11 ('■) South East. Rv. Co. r. Knott, 10 Ha. i)\es. 338; 10 Yes. 30o, 313, 3D8; Uillan ^ ' ~ ' V. Willan, 16 Ves. 72; Magrane i\ Arcb bold, 1 Dow, 107. (o) Mason V. Armitaf V. Buckley, 17 Yes. 394 122. bold, 1 Dow, 107. (*) Lovell v. Hicks, 2 Yo. & Col. 4G; (o) Mason V. Armitagc, 13 Ves. 25 ; Hill 'l/'- s. 4 ; G De Ge. Mac. & Gor. 39, 40. CH. 5. S. III.] SALE BY PERSONS NOT OWNERS. 181 42. If an agent, employed to sell an estate, sell it In a manner not authorised by the authority given to him, a specific performance will not be decreed against the principal, although the estate be sold for a greater price than he required for it (t). At least, if an agent is em- powered to sell an estate l)y public auction, a sale by private contract is not within his authority. 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. 43. Where trustees for sale of an estate enter into a contract, which would be deemed a breach of trust, equity will not only refuse to interfere in favour 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 (m). 44. 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 : if they think it disadvan- tageous to their cestuis que trust, they cannot be compelled to adopt a contract entered into by the tenant for life for sale of the estate {x). But if the tenant for life sell, it may be referred to the Master to inquire whether he can, by application to the trustees, procure a good title to be made (?/). 45. 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 circumstances, have been carried into execution against the trustees, it will not be enforced ao;ainst the ao-ent, although he himself become entitled to the estate before the decree (z). 46. 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 (0 Danielr, Adams, Amb.49.'>; 1 Smith, Jac. 169; Neale v. Mackenzie, 1 Ke. 474; 247 ; Helsham v. Laiigley,*! Yo. & Col. C. Wliite v. Ciiddon, 8 Cla. & Fin. 760; Sugd. C. 175; White r. Ciiddon, 8 Cla. & Fin. 766. H. of L. 590; Sneesby r. Thorne, 1 Jur., (m) Mortlock V. Buller, 10 Ves. 292 ; Hill N. S., 536 ; 3 C. L. R. 849. V. Buckley, 17 Ves. 394; Bridger v. Rice, 1 (x) Thomas v. Dccring, 1 Kee. 729; sup. Ja. &: Wal. 74 ; Wood v. Richardson, 4 Bca. ch. 3. 174 ; Thompson v. Blackstone, Bea. 470; {y) Graham v. Oliver, 3 Bea. 124. Ord V. Noel, 5 Mad. 438 ; Tm-ner v. Harvey, {•) Mortlock v. Buller, 10 Ves. 292 (I). (I) From the papers in this cause, it appears that I\Ir. Buller treated with Mr. Mortlock as the owner of the estate, and this appeared from the receiiit 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 in settlement. 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. S*^- Acx^r^a k Scayn/ni^ m3 ,^ c^^.^.i^i. 182 SALE BY PERSONS NOT OWNERS. [CH. 5. S. III. buyer to take it, for every seller ought to be a hondjide contractor (a): and it would lead to infinite mischief if one man were permitted to spe- culate upon the sale of another's estate. Besides, the remedy is not mutual, which perhaps is of itself a sufficient objection in a case of this nature. In Armiger v. Clarke (Z»), 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 performance against the purchaser, and it was dismissed chiefly upon this principle, that the remedy was not mutual. And in Noel v. Hoy (c), it was said, that if A sells i?'s estate, although B is willing to confirm the contract, A cannot enforce it ; there is no mutuality {d). So, as we have seen, an infant cannot specifically enforce a contract by himself for sale, because there is no mutuality (e). But in Williams v. Carter (/), the estate was sold, and it was afterwards discovered that it was bound by marriage ai'ticles, which it was decided in a suit instituted for the purpose, authorised the introduction of a power of sale in the trustees, and thereupon a bill was filed by them and the seller for a specific per- formance. The Vice-Chancellor overruled the objection, that there was no mutality in the agreement, and decreed a specific performance. Where trustees had a power of sale at the request of the tenant for life, a bill filed by them against a purchaser was considered as not maintainable, unless they could show that the tenant for life had duly consented to the sale before the filing of the bill {g). 47. But of course the rule does not apply to a seller in possession, 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 (A) ; or where, al- though 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). 48. On the other hand, where a bond fide vendor has not a title to the estate the Court will leave the purchaser to his remedy upon the articles at law {k), where in most cases he would obtain nominal damages only (Z). But where the purchaser is willing to take the (rt) Tendi'ing v. London, 2 Eq. Ca. Ab. Broke, 1 Yo. & Col. C. C. G27 ; Salisbuiy 680, pi. d; 10 Ves. 315 ; IJa.. Sc Wal. 421; v. Hatcher, 2 Yo. & Col. C. C. 54 ; 2 Ir. C. Bryan v. Lewis, 1 Moo. & Ry. 386. L. R. 155 ; Warbiu-ton v. Sandys, 14 Sim, (b) Bun. Ill; post, ch. 8; Hamilton r. 622; Feunclly U.Anderson, 1 Jr. Clia. R. 706. Grant, 3 Dow, 33; Morgan v. Raiusford, 8 (ff) Adams v. Broke, 1 Col. C. C. 627. Ir. Eq. R. 399. (h) Chamberlain v. Lee, 10 Sim. 444. (c) V. C. 23 Feb. 1820, MS. (i) Eyston v. Simonds, 1 Yo. &c Col. C. (d) See Ld. J. Stewart v. London & North- C. 608. Western Ry. Co., 1 Do Ge. Mac. & Gor. 721 ; (70 Crop v. Norton, 2 Atk. 74 ; 9 Mod. Hawkes v. Eastern Counties Ry. Co. ib. 737. 233 ; Cornwall v. Williams, Col. P. C. 3.90 ; (e) Flight V. Bolland, 4 Hus. 298. Bennet Col. v. Carey, 3 Bro. C. C. 390. (/) MS. V. C. 1821 ; London & Bir. Ry. (/) Flureau v. Thornhill, 2 Black. 1078 ; Co. I'. Winter, 1 Cra, & Phil. 57 ; Adams v. 8 Bo. &c Pul. 167; Brig's case, Pal. 36i,post. CH. 5. S. III.] rURCHASER NOMINAL CONTKACTOK. 183 title, such as it is, it is apprehended that he may do so (»*). Of course where the Master's report was in favour of the title, the seller was not permitted to dispute his own title (n). 49. But where a tenant for life with a power of sale, first settling other estates of equal or better value, sold the estate under an appre- hension that he had power to convey the fee, the Court refused to compel him to settle another estate, in order to enable him to com- plete his contract (o). 50. 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 (p), and he must obtain the concurrence of the persons seised of the legal estate. 51. Although, as we have seen, a vendor cannot demand the aid of equity, unless he is a bond j^de contractor, yet the circumstance that the purchaser is a nominal contractor, and purchases in trust for another person, is immaterial (Proceedinffs hy claim. . Abolition of Masters : chamber busi- ness : new modes of procedure. ■ Aptpealsfrom chief clerk. ■ Injunction at laiv ; damages. \f Directions on sjtecifc jjerformance : J proceedings at chambers on title : further directions : decree : disco- very : documents. Decree on motion. Injunction to prevent injury. Reference of title. . Purchase-money ordered into Court. Where not. Seller ordered to pay in deposit. Multifariousness .- sale in lots. Receivers, agents not proper parties. Nor adverse claimants — Mortgagee not a proper party. , Plaintiff proving different agreement. Upon dismissal of bill, no account. Damages to purchaser. No compensation for defective title. New defence by jmr chaser. Seller cutting-orrlamental timber pend- ing suit. ^ II. The remedy at law. Action by j^urchaser for fraud after decree. Party having waived, cannot bring action after decree. Nor where bill dismissed for want of title. Actions by parties after bill dismissed. For costs. A second action not allowed. Money had and received. No damages for loss of bargain. Loss by selling out of the funds. Interest on deposit. Expenses of investigating title. Particulars of fact and law. Extent of damages to seller. Action by heir or executor of pur- chaser. Delivery of agreement to be stamped. Agreement by letters, one stamp. Mutual covenants. Seller to execute conveyance before action. Purchaser to tender conveyance and purchase-money. Unless there is a bad title, or seller has re-sold. Ne exeat. Mandamus : specific performance at law. 1. If either the vendor or vended refuse to perform the contract^ the other may bring an action for breach of contract, or file a bill for a specific performance (a) ; although it appears to have been formerly thought that as a vendor only wants the purchase-money, his remedy Avas at law (Z>). («) Lewis V. Ld. Lechmere, 10 Mod. 503. v. Cottle, 1 Sim. & Stu. ] 74 ; Kenney v. (b) Armiger v. Clark, Bun. Ill; Withy Weuliam, G Mad. 313; Dolierty v. Waters 188 RIGHT TO SPECIAL CASE. [CII. 5. S. IV. I. As to the remedy in equity. 2. Although the phrase " filing a bill for a specific performance," will still be retained, yet now the parties by consent may, instead of filing a bill and having the contract performed under the direction of the Court, by consent state a special case for the opinion of the Court, and obtain a decision of that Court as to the title or evidence of title, or as to the parties to or the form of any deed or instrument for carrying the contract into effect, or as to any other matter within the jurisdiction of the Court. And the Court was authorised to take the opinion of a court of law. The declaration will be binding as a decree, and may be reheard or reviewed (c). The Act contains all necessary clauses for giving effect to such declaration. The case is treated as a bill, and is to be signed by counsel. The same counsel may sign for both parties {d), and the costs are within the jurisdiction of the Court {e). The Court may make a declaration as to the interests of the parties before the Court, and refuse to make any declaration as to the rights of unborn issue {/). And now the Court of Appeal in Chancery, and the Master of the Rolls, and the Vice-Chancellors, may severally sit, with the assistance of '[ any common law judge, upon the request of the Chancellor to any such judge {h). But the Court is no longer at liberty to direct a case for the opinion of a court of law, but the Court itself has power to determine any ques- tions of law which in its judgment shall be necessary to be decided previously to the decision of the equitable question at issue between the parties {i). 3. And by the late general orders of the Court of Chancery, made under the authority of several Acts of Parliament (/<), a party instead of filing a bill for a specific performance may, without special leave of the Court, file a claim in the Record and Writ Clerks' Office, when he is entitled to the specific performance of an agreement for the sale or purchase of any property, and is seeking such specific performance. And a very short form is provided by the orders for making such claim (/) ; and when the form is not applicable to the case, the Court may, upon the ex parte application of the person seeking the relief, give leave to file the claim proposed to be filed {m), ford and Limerick Ry. Co., 13 Ir. Eq. R. (/) Greenwood r. Sutherland, 10 Ha. 12; ■}38. Fletcher ?j. Rogers, id. 13; Garlick t>. Law- (c) 13 & 14 Vict, c, 35, s. 1, 14, 16. son, w7. 14. Uomvillo V. Lamb, 9 Ila. App. 55; Gen. (h) 14 & 15 Vict. c. 83, s. 8; Hay v. Orders, 2 Nov. 1850 ; 15 & IG Vict, c. 86, Willoughby, 9 Ha. App. 30. 6, 50. As to ti-ials of questions of fact and (i) 15 & 16 Vict. c. 86, s. 61, 62. special cases on questions of law in a sum- (k) Gen, Orders, 22 April 1850 ; 3 June mary way in courts of law, see 15 & 16 Viet. 1850; 7 June 1850; as to Ireland, see 13 c. 76, s. 42-48, and s. 179, 180 ; for Ire- & 14 Vict. c. 89, s. 11, 1, 4, 27. land, 16 & 17 Vict. c. 113, s. 92-94. (0 Order 1. (d) Ex pte. Craig, 15 Jur. 703. {m) Order 6. (e) Jackson v. Craig, 15 Jur. 811. CH. 5. S. IV.] PROCEEDINGS BY CLAIM. 189 and a form is also given of the order of reference of title or claim of specific performance (n). Any order of the Rolls, or of the Vice- Chancellor's, may be discharged or varied by the Chancellor, on motion (o). But if the case involves, or is attended by such special circumstances, affecting either the estate or the personal conduct of the defendant as to require special relief, the plaintift' is at liberty to seek his relief by bill (p), but at the peril of costs (q). 4. Of course, upon the hearing of a claim, the original document must be proved and produced for the inspection of the parties where the defendant disputes the making of the contract or its contents (r). And the case made and decree asked must be supported by allega- tions of the material facts within the party's knowledge {s), which must be proved {t). And it is in the discretion of the Court to give relief on the claim, or to leave the parties to file a bill (u). 5. Tlic proceeding by claim is confined to simple cases (u), and does not extend to injunctions (x). Leave is not required for filing a claim for specific performance where the refusal to complete is not upon title which has been accepted, but on a collateral point ( i/) ; nor does a claim for specific performance require the signature of coun- sel (z). Leave was given to file a claim for sj^ecific performance of a parol agreement, with a statement of facts from which a part per- formance must be inferred, but the Court thought it a jierilous case for a claim («). Leave must be obtained to file a claim for a specific performance of an agreement to grant a lease {b). 6. Where, upon a dispute between a vendor and purchaser whether an agent who had contracted to sell was authorised by the seller, a claim was filed supported by affidavits, and the Court was of opinion that no case was made out by the alleged purchaser, and that under the old rules an issue Avould not have been directed, and the Court refused to direct an examination of witnesses viva voce under the sta- tute, or to dismiss the claim without prejudice to the purchaser's filing a bill (c). 7. By a later Act the office of Master is abolished, and the Masters are released as fast as their business is wound up, and the current business is now conducted by the judges, in open court or in cham- ber, with the assistance of clerks {d). The powers formerly vested in (n) Order 10. (o) Order 30. (y) Hemming v. Mayo, 14 Jm-. 847. (p) Order 31. (q) Order 32. (z) Barford «;. Barford, 24 L. T. 88. (>•) Marshall v. Davies, 14 Jm-. 997. («) B^-nley v. Eastern Counties Ry. Co. («) Bromitt v. Moor, 9 Ha. 374; Goode v. !J De Go. & Sma. 314, West, id. 378. (b) Anon. 9 Ha. App. 11. (t) Penny v. Penny, 9 Ila. 39. (c) Wilkinson v. Stringer, 9 Ha. App. 23 ; (w) Johns V. Mason, 9 Ha. 29. see Tynte v. Buller, 23 L. J. 50-1, for what (v) Jackson r. Grant, 15 Jur. 72; Smith amounts to an admission of an agreement V. Constant, id. 97 ; Ecclos v. Cheyne, 9 by affidavit. Ha. 21o. (d) 15 & IGVict. e.80; 17 & 18 Vict. (.r) Holden v. Calcraft, 14 Jur. 84G, c. 100. 190 NEW PROCEDUEE. APPEALS. [CH. 5. S. IV. tlic Masters may now be exercised by the Master of the Rolls and Vice-Chancellors respectively. And by another statute {e), great alterations have been made in the proceedings of the Court with a view to lessen expenses, and to ensure as much despatch as is con- sistent with the due administration of justice, to which only a slight reference can here be made. Writs of subpoena and summons are abolished, and bills are to be printed, and a print is to be delivered to the defendant, whether on a bill or a claim. Bills are to contain a concise narrative of the material circumstances divided into dis- tinct paragraphs, numbered consecutively, and to pray for specific as well as general relief, but are not to contain interrogatories, but interrogatories may be filed in the Record Office. The defendants answers are placed under new regulations. And under certain restric- tions, the proof on both sides may be by affidavit, or otherwise orally, before the examiners, in the presence of the parties; and even in that case, affidavits may be partially used. Upon the hearing, whether upon a bill or claim, the Court may require any witness or party to be examined before itself (/), and the costs thereof are in the discre- tion of the Court. Many objections for want of parties are removed, and a mere declaratory decree is authorised without any consequential relief. These Acts were followed up by general orders of the 7th August 1852, limiting the periods for appeals and rehearings to five years, and enrolments to six months, unless with leave ; and no enrol- ment is to be allowed after five years, unless the time is specially enlarged by the Chancellor. This order operates as a statute of limi- tations within the Court; and l^y other general orders of the same date for reo-ulating the practice, under the 15 & 16 Vict. c. 86, and in the schedule, forms are furnished of a bill, interrogatories, answer, and summons. General orders of the 16th October 1852 were likewise issued, for regulating the proceedings under the 15 & 16 Vict. c. 80, particularly in chambers, the schedule to which contains the forms of various proceedings. Other general orders of the 16tli October 1852 regulated the fees and allowances to solicitors in matters in respect to which the former orders related ; and general orders of the 23d October 1852, regulated the fees and allowances in respect of the busi- ness before the equity judges at chambers and their chief clerks (g). 8. On appeals from the judge's chief clerk, an order may be made discharging his certificate, and sending the cause back to him Avith special directions ; and, where it may become necessary, directing the cause again to be put in the judge's paper (A). 9. And now in all cases of breach of contract or other injury, (e) 15 & IG Vict. c. 86; as to the mode of (g) There was a later order, and costs are examining orally on documents, see Lord now under consideration. V. Colvin, 2 Drew. 205. (/*) Rhodes v. Ibbetson, 23 L. J. 459 ; (/) See Wilkinson v. Stringer, 9 Ha. 2 Eq. R. 7Gj 4De Ge. Mac. & Gor.787. App. 23. en. 5. S. IV.] DIEECTIONS ON SrECIFIC PEEFORMANCE. 191 where the party Injured Is entitled to maintain and lias brought an action, he may claim a writ of Injunction against the repetition or con- tinuance of such breach of contract or other injury, or the committal of any breach of contract or injury of a like kind arising out of the same contract, or relating to the same property or right ; and he may also in the same action Include a claim for damages or other redress (h). And the plaintiff may, either before or after judgment, ap2">ly ex parte to the Court or Judge for an Injunction, and the Court or Judge may grant the Injunction upon such terms as to the duration of the writ, keeping an account, giving security, or otherwise as shall seem rea- sonable and just. But an appeal Is given to the Court against the decision of a judge (z). 10. Under the new law, the decree or order for a specific per- formance directs generally an Inquiry to be made as to title, and that if a good title can be made, and If so when, a proper conveyance be settled; and that upon the execution of It by parties named In the certificate of approval, such execution to be verified by affidavit, the money Is to be paid, Avith proper directions as to costs, or further directions may be reserved (k). It will be observed that the order is silent as to the officer by whom the Inquiry is to be made, or by Avhom the conveyance is to be settled. Any general objection to the plaintiff's claim may of course be disposed of at the hearing. The inquiry as to title takes place at chambers, as in other cases. The objections are considered ; the conveyancing counsel consulted where It is found necessary ; witnesses may be examined, and the chief clerk certifies the result, and the case is then set down upon the certificate in the paper for further directions, and after the hearing a decree is made (Z). The directions and proceedings after a decree for specific performance are similar to those on sales under the direction of the Court, Immediate discovery and production of documents may be enforced by either party, by an application to the judge's clerk in chambers (m). 11. The case of Keyse v. Heydon (n), furnishes a good example of the mode of proceeding in cases of specific performance under the new rules. A seller filed a bill against a purchaser for a specific performance. The purchaser set up a defence on the ground of mis- representation, &c., and 2dly, if he were bound, a want of title. At the hearing the VIce-Chancellor decided that the plaintiff was entitled to a specific performance, and directed that a note should be taken hy the registrar of the decision of the Court on that point, and that the cause should stand over and he in the paper again to he spoken to on Hie (h) 17 & 18 Vict. c. 125, s. 79-81. re Jones's estate, 1 Jur., N. S., 817. (i) Id. s. 82. (m) 15 & 16 Viet. c. 8(i, s. 18; Barnard (It) Form uf an order, 10 Ha. 3G, App. ; v. Hunter, 1 Jur., N. S., 1065. infra. (n) 9 Ha. App. 58. (Z) Rogers v. Mort, 10 Ha. App. 53; In 192 INJUNCTION AGAINST SELLER OR PURCHASER. [CH. 5. S. IV. question of title. The purchaser claimed a right to go into the title generally and required a further abstract ; the seller insisted that he was not bound by the contract to deliver any further abstract. If the parties had been prepared to go into that question the Vice- Chancellor would have determined it at once. But as they were not, the purchaser was allowed a reasonable time to bring in other ob- jections, and if the Court decided that the jnirchaser was entitled to a further abstract, the case iixndd of course stand over again if he required it, in order that he micjht take any objections ivldch arose upon the addi- tional abstract. In this way, therefore, without any references or decretal orders, the whole matter Avould ultimately be decided ; the case standing over from time to time, and the title if necessary being investigated and debated in chamber and in court as the judge might see fit. 12. And now a decree may be made upon motion under the 15 & 16 Vict. c. 86, although the suit was commenced by bill (o), and the same decree may be made upon motion as might be made at the hearing {])). It is no longer necessary to make a direction as to special circiunstances, as the judge himself at chambers may enter into the consideration of any special circumstances which he may deem material {(f). 13. 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 tim- ber (r) ; so the vendor will be restrained from conveying away the legal estate in the property (5) ; and a fortiori, he will be restrained yfhf hJP*l ^^^"^ selling the estate to a third person (t). But the Court will not take from a seller the disposition of his property {il). So injunctions may be granted against the agents of the parties (I). Pending a suit by a purchaser for a specific performance of an agreement to sell a presentation to a living, the 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 pur- (0) Sect. 15 ; Gen. Orders, 7 Aug. 1852 ; (s) Ecliliff r. Baldwin, 16 Ves. 267. Cousing V. Vasey, 9 Ha. App. 31. {t) Curtis v. Mai-quis of Buckingham,. {p) Norton f. SteinkopF, 1 Kay, 45; id. 3 Ves. & Bea. 168; but see Turner r.Wight, App. 10. 4 Bea. 40, ((/) Williamson v. Jeffreys, 9 Ha. App. 56. (u) Spiller v. Spiller, MS., per Ld. Eldon ; (r) Crockford v. Alexander, 15 Ves. 138. 3 Swan. 556. (1) In a specific performance suit, an injunction against the purchaser's proceeding at law to recover the deposit from the seller's attorney, who was not a party, was refused with costs by Leach, V. C. Brown v. Frost, E. T., 1818, MS.; but in a later case, the Vice- Chancellor gi-anted an injunction to restrain the purchaser from proceeding in an action against the auctioneer, who was not a party ; the seller offering to bring the deposit into Court. MS. ^*1 CH. 5. S. IV.] MONF.Y TO BE PAID INTO COURT. 193 chaser (.r). But where by the conveyance the relation of vendor and purchaser has ceased, an injunction cannot, on the ground of tliat rela- tion, be granted against an illegal act by the vendor, e. g. a distress for rent {y). 14. 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 (r), which, as we shall hereafter see, may, in many cases, be made by motion before answer. And the new orders pro- vide for such references when the writ is commenced by claim, and they are to be made by motion. 15. A purchaser in possession of the estate may, upon motion, be ordered to pay the purchase-money into Court. This has been done.^— ^ *^ ,y. before answer (a) ; but the purchaser has, in some cases, had ther ^X ' '^^ option to pay the money, or give up possession (Z*) ; in oihcrs,, vaV^/ [/jy/Jl -^/i . occupation rent has been set, deducting interest on the deposit (c) ; /^-^ - and, In others, a receiver has been appointed (rZ) ; and payment of the money will be ordered, although by the agreement it Is payable by instalments, and a portion of It Is to remain secured upon the estate {/), This rule has been adopted where the possession has been given under a mutual apprehension that the title could be immedi- ately made good (/) — where the purchaser had a sort of mixed pos- session with the vendor, and had paid part of the })urchase-money, was Insolvent, and had attempted without effect to sell the estate (^) — where the purchaser approved of the title and prepared a convey- ance, and then raised objections (li) — where the purchaser had been guilty of laches, and cut underwood {i). 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 (J). So where an acceptance of the title was inferred (A) — again, where the time was fixed for payment of the purchase-money by Instal- (.r) Kicliolson v. Knapp, 9 Sim. 326, as (/) Gibson v. Clarke, 1 Vcs. & Be. 500 ; to injunctions against tlie bishop. 1 Mad. 607. (//) Drake v. West, 22 L. J. Ch. 375. (. Johnston, 1 Mer. 366 ; Crutchley roughs V. Oakley, ih. 52, 376 ; Blackburn v. Jerningham, 2 Mer. 502 ; Fournier v. V. Stace, 6 Mad. 69; Pyke v. Northwood, Edwards, T.T. 1819, V.C.MS. The deeds 1 Bea. 152, tenant claiming option to pur- were executed, but the purchaser had not chase. the money ready. The motion was on the (6) Clarke v. Wilson, 15 Ves. 317 ; Smith answer by which compensation was claimed V. Lloyd, 1 Mad. 83; Morgan v. Shaw, 2 Mer. for some charges. 138 ; Wickham v. Everest, 4 Mad. 53. (t) Bm-roughs v. Oakley, 1 Mer. 52, 376; (c) Smith V. Jackson, 1 Mad. 618 ; Smith Dixon v. Astley, ih. 133, 378, n.; Bradshaw V. Lloyd, 1 Mad. 83. v. Bradshaw, 2 Mer. 492. (d) Hall ?'. Jenkinson, 2 Ves. & Be. 125; (j) Brown v. Kelty, L. I. Hall, July Clarke v. Elliott, 1 Mad. 60S. 1816, MS. (e) Younge?;. Duncombo, Yo. 275 ; the {k) Boothby v. Walker, 1 Mad. 197; purchaser had been some years in pos- Smith v. Lloyd, 1 Mad. 83. session. N 194 MONEY TO BE TAID INTO COURT. [CH. 5. S. IV. ments, and the property was a coal-mine (l). If the estate be sold under a decree, and the purchaser enter into possession, he will be compelled to pay his purchase-money into court, unless he entered with the express consent of the Court (m). 16. But where the sale is not by the Court, and upon a parol con- tract at so much an acre there is a dispute as to the number, and possession was given without any understanding when the purchase- money was to be paid, and the bill only seeks a performance as to the larger quantity (7O; or the seller has thought proper to put the purchaser into possession, with an understanding between them that he shall not pay his money until he has a title, the purchaser cannot ^7^ / ^ ./^ be called upon to pay the money into court in this summary way (0), 4(//^/^ nor can the payment be compelled where the vendor gives possession without stipulation (p), or the purchaser was in possession under ^^/^ S79p • another title before the contract {q) : or the possession was given independently of the contract, and the seller has been guilty of laches (r), although in such cases the purchaser may make himself liable to the demand, by dealing improperly with the estate, e. g., cutting trees, or selling it to another person {s) ; or even ameliorating it, but changing the tenants (t). But the purchaser after a long %/f/r^' J:^^CZ. 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 / f /" /( Af-^^ P^^ ^^ ^^^^ election within a reasonable time, e. g., two months, to ^ / / give up the possession or pay the purchase-money (ii). 17. Perhaps two simple general rules may be deduced from the cases : 1st. Where the possession is taken under the contract, or is consistent with it, and the purchaser has not dealt improperly with the estate, tlie cause must take its regular course. But 2d, If the possession by the purchaser, Avithout payment of the money, is con- trary 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 property 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 purchase-money into court. 18. Where the sum is large, the Court has allowed a long day, for instance, three months, for payment of the money (.r) ; and under (;) Buck V. Lodge, 18 Ves. 450. {s) Cutler u. Simons, 2 Mer. 103; Bramley (m) Anon. L. I. Hall, 16 July 1816, MS. ?•. Teal, 3 Mad. 219 ; Gill v. Watson, ib. 225. («) Benson v. Glastonbury C. Co.; C. {t) Bramley r. Teal, 3 Mad. 2 1 9. Coo. 42 ; 1 C. P. Coo. 350. (m) Tindal v. Cobham, 2 My. & Ke. 385; (0) Gibson v. Clarke, 1 Ves. & Be. 500. Fowler v. Ward, 6 Jur. 547 ; Adams v. (;;) Clarke v. Elliott, 1 Mad. 606. Heatbeote, 10 Jur. 301. {q) Freebody v. Perry, Coo. 91 ; Bonner (.t) Townshendw. Townshend, L. J. Hall, V, Johnston, 1 Mer. 366. 3 Mar. 1817 ; M. of the Rolls for L. C, MS. (r) Fox r. Birch. 1 Mer. 105. CH. 5. S. IV.] PARTIES TO A BILL. 195 proper circumstances, the time will be enlarged {y). Upon a motion for this purpose, affidavits may of course be filed after the purchaser has put in his answer, stating the collateral circumstances (z). 19. Where a vendor files a bill for an injunction and a specific performance, the Court will, upon granting the injunction, in most cases order him to pay the deposit into court.. But even where the seller is in possession, he will not be compelled to pay the deposit into court, when it is the fault of the purchaser and not of the seller that the latter retains both the deposit and the estate (a). 20. AYliere an estate is sold in lots to diiferent persons, the vendor cannot include them in one bill, there must be a distinct bill upon each contract {h). In demurring to a bill against distinct purchasers, as multifarious, the defendants need not deny combination (c), al- though that was formerly deemed essential (d). But if several pur- chasers of distinct lots file one bill and no objection is taken by the seller, the Court will make a decree for all (e). 21. 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 (/ ). 22. 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 pur- chaser, yet this rule does not extend to the agents of the vendor (^/fei7./ 31. If a purchaser take a line of defence which fails, yet if he have ^ <- ■ -■-'- -y a good ground to avoid the contract, he may still avail himself of it as a bar to a specific performance {z). 32. A purchaser may of course have a right to avoid a purchase by matter ex jwst facto — as where the subject of sale was a gentle- man's residence, and some of the ornamental timber was cut pending an investigation of the title («). If a title cannot be made to a portion of the timber sold, it will be inquired whether it is essential to the enjoyment of the estate (h). II. Of the Remedy at Law. 33. If a purchaser, upon a bill being filed for a specific perform- ance, pay the purchase -money without putting in an answer, and afterwards discover that a fraud was committed in the sale, he is not precluded from bringing an action for damages if he come recently after discovery of the deception (c). 34. But if a defendant in a suit for a specific performance, after a decree, bring an action at law against the plaintiff in equity for damages, 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 the contract, equity will enjoin the action {d). 35. So equity will restrain the seller from bringing an action where the bill was dismissed because he had no title {e). 36. But although a seller's bill for a specific performance be dis- missed, yet he may in general bring his action for breach of the agree- ment ; and there are instances of sellers recovering damages in such cases. "When the Court refuses its interference, and yet thinks that the seller is entitled to enforce his contract at law, it is usual to add a declaration to the decree, that it is without prejudice to the plain- tiff's remedy at law. In like manner, a purchaser, although he (m) Gwillim v. Stone, 14 Ves. 128, scd (b) Stewart r. Marquis of Conyngham, 1 qii., as to the latter branch. Ir. Cha. R. 575; 3 Ir. Cha. R. 104. This (or) William v. Higden, 1 C. Coo. 500, fjuestiou can hardly arise in England. (»/) Newham v. May, 10 Pri. 117. (c) .Jendwhic v. Sladc, 2 Esp. 257. . (~) Magennis v. Fallon, 2 Mol. 591. {d) Reynolds v. Nelson, 6 IMad. 290. .^*r#^ /i.=^, over- 2 Esp. 639; Hunt v. Silk, 5 Ea. 449;' ruling on this point Jones v. Dyke, App. Squire v. Tod, 1 Ca. 293 ; Levy v. Haw, I Purch. No. 5; but consider the facts of Tuu. 65; Moses w, M'Farlan, 2 Bur. 1005, that case. (/«) Dutch v. Warren, 2 Bur. 1010 ; 1 Str. {h) Hodges V. Ld. Lichfield, 1 Bin. N, 406; Dale v. Sollet, 4 Bur. 2133, sed qu. C. 492. {n) Blackburn v. Smith, 2 Ex. R. 783. CH. 5. S. IV.] INTEREST ON DEPOSIT. DAMAGES. 199 received by the vendor to the use of the real purchaser (o). Where the purchase-money is paid to the seller's agent, he is not, like an auctioneer, a mere stakeholder, and consequently the action to recover the money must be against the seller himself (/?). 41. But if a man enter into a contract expressly as cif/ent Jor 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 {q). 42. Although the contract is under seal, yet the purchaser may, if he have a right to rescind the contract, bring an action for money had and received, to recover back his purchase-money (r). 43. 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 {s). In a case {t) where an auctioneer who had advanced some money on an estate, sold it by auction after the authority from his principal had expired, and the principal refused to confirm the sale, the Court, in an action brought by the purchaser, 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 (u). 45. But a purchaser is entitled to interest on his deposit (x) ; 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 (y), and also to interest on money borrowed by him and kept idle to answer the purchase {z). 46. Where the agreement is a binding one, the purchaser may also, as we shall hereafter see, recover the expenses of investigating the title (a). 47. "\Vliere a vendee brings an action, he will be compelled to (o) Duke of Norfolk v. Worthy, 1 Ca. {u) Flm-eau v. Thornliill, 2 Black. 1078. 337 ; Edden v. Read, 3 Ca. 338 ; Bethuue v. {x) Ch. 17, inf. Farebrother, 5 Mau. & Sel. 385, 891. (?/) Flm-eau ». Thornliill, w6i «?';>.; Hodges {p) Barnford v. Sliuttleworth, 11 Ad. & v. Ld. Lichfield, 1 Bin. N. S. 492; Walker El. 926; G Ad. & El. 1, 281 ; Rayner v. v. Constable, 1 Bo. & Pul. 306; Gosbell v. Grote, 15 Mee. & Wei. 359. Archer, 2 Ad. & El. 500 ; 4 Nev. & Man. {q) Bickertonr.Burrell,6Mau.&SBl.383. 485; Tappenden r. Randall, 2 Bo. & Pul. (r) Greville v. Da Costa, Peak. Ad. Cas. 472 ; Fruhling v. Schroeder, 2 Bin. N. C. 113. 77; Dobel v. Hutchinson, 3 Ad. & El. 355 j (s) Ivf. ch. 9, 8. 2. 3 & 4 Will. 4, c. 42, s. 28. (0 Bratt V. Ellis, MS. Purch, App. No. (~) Sherry v. Oke, 3 Dowl. P. C. 349; 7; Jones v. Dyke, MS. ib. App. No. 8; («) Post,c\i.Q. Sainsbury v. Jones, 5 My. & Cra. 1. N4 200 DAMAGES. STAMPS. [CU. 5. S. IV. give the vendor a particular of every matter of fact which he means to rely upon at the trial ; but not of any of the objections in point of law (i). But although the purchaser assign by Avay of special damage, that he has incurred certain expenses, he will not be com- pelled to furnish particulars of such special damage (c). Where in a single count there were several allegations of damage, tlie 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 sub- stance of a demand of unliquidated damages. As the seller had broken his contract with the plaintiff, the Court would not help him to pare down the demand so as to compel the plaintiif to go to trial at his own risk (d). But 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 {e). 48. The seller where the contract is not completed cannot of course recover the whole of the purchase-money, and keep the estate too ; he is only to have made good his loss by the diminution in the value of the land, or the loss of the purchase-money in consequence of the non-performance of the contract (/). 49. 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 lifetime, and a loss to his personal property, his per- sonal representative may maintain an action, e. fj. for damage incurred by the loss of interest on the deposit, and the expenses of investigating the title (g). 50. 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 tlie other party, in order that it may be stamped (Ji). So, in case of an action, if only one part of the agreement has been executed, the party in whose possession it is shall be compelled to produce it to the other party (/), and it is not important that the contract was made Avith the auctioneer, and not witli the seller, who is the de- fendant (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 (/). Where one party produces the agree- ment, under a notice from the other, the latter need not call the {!>) Collett ». Thomson, 3 Bo. &Pul. 246; {g) Orme v. Brougliton, 10 Bin. 533 Roberts v. Rowlands, 3 Mee. & Wei. 543, [misprinted in report]. l)ost, ch. 9. {h) Slip. p. 105. (c) RetaIIicki".Hawkes,lMee.&\yel.573. (i) Blakey r. Porter, 1 Tau, 386; Bate- (d) Hodges v. Ld. Litchfield, 9 Bin. 713. man v. Phihps, 4 Tau. 157 ; King v. King, (e) Squire v. Tod, 1 Ca. '293 ; post, ch. 9, lb. 666 ; Street v. Brown, 1 Mar. 610. 10, 11, as to title, &c. ; Todd v. Hoggart, (k) Ginger v. Bayly, 5 Mo. 71. Moo. & Mai. 128, hif. (Z) Garnons r. Swift, 1 Tau. 507 ; Waller (/) Laird v. Pim, 7 Mee. & Wei. 474. v. Horsfall, 1 Ca. 50!. en. 5. S. IV.] COVENANTS. TENDERING CONVEYANCE. 201 subscribing witness to prove the execution of tlic agreement, as the defendant takes an interest under it (^771). Where the purchaser has signed an agreement, he cannot, in an action for tlie deposit, avoid producing the agreement, by merely producing the conditions of sale and the auctioneer's catalogue of sale (n). 51. Where several letters form the agreement, one stamp only is required, as constituting one agreement (0). 52. 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 (/;). The true rule is, that it is not the employment of any particular word which determines a condition to be precedent, but the manifest intention of the parties {g). Accordingly, where the contract by deed was dated the 22d April 18-11, and the seller covenanted to deduce a good title (not saying when), and on or before the 25th March 1844, on pay- ment by the purchasers of the purchase-money to execute, at the cost of the purchasers, a proper conveyance, and the purchasers covenanted on or before the same 25th March, and on the execution of such conveyance, to pay the money ; the Court considered it plain that the execution of the conveyance and the payment of the money were in- tended to be concurrent acts. The day for payment could not happen before the thing which was the consideration for it, viz., the execution of the conveyance, was to be performed. The conveyance was to be prepared by the purchasers, as they were to pay for it. But the pur- chasers were not bound to prepare the conveyance until a good title had been produced, for that was a condition precedent. The recitals to be introduced into the conveyance, anu even the names of the persons who were to be parties to it, could not be known to the pur- chasers with any certainty until the title had been deduced (r). 53. In conformity with this rule a vendor cannot bring an action for the purchase-money, without having executed the conveyance, or offered to do so, or been ready and willing to do so, where the pur- chaser is bound to prepare and tender the conveyance (s), unless the purchaser has discharged him from so doing (i^) ; but if the purchaser (m) Bradshaw v. Bennett, 5 Car. and Pa. (q) Smith v. Woodhouse, 2 New R. 233 ; 48; see 17 & 18 Vict. c. 125, s. 26. Haviloek v. Geddes, 10 Ea. 555. As to (m) Curtis V. Created, 2 Nev. & Man. where covenants are precedent or dependent, 449. Strj. Williams's n. to 1 Saund. 520; Daw- Co) Stead V. Liddard, 1 Bin. 196; Atlier- son v. Dyer, 5 Bar. & Ad. 584 ; Roberts v. stone V. Bostock, 2 Man. & Gra. 511. Brett, 18 C. B. 561. (p) Duke of St. Alban's v. Shore, 1 H. ('') Brymer v. Thames H. D. Co., 2 Ex. Bla. 270 ; Goodtitle v. Nunn, 4 T. Rep. 761 ; ^49 ; 5 Ex. 696. Glazcbrook v. Woodrow, 8 T. Rep. 366 ; (0 Poole v. Hill, 6 :\fee. & Wcl. 835. Heard v. Wadham, 1 Ea. 619; see Amcomt (0 Jones v. Barkley, Doug-. 684 ; Philips V. Elever, 2 Kel. B. R. 159; Carpenter v. v. Fielding, 2 H. Black. 123; 3 Ea. 443 ; Cresswell, 4 Bin. 409; 1 Mo. & Pa. 66; Laird v. Pim, 7 Mee. & Wei. 477 ; the pas- Iluiiter V. Daniel, 4 Ha. 420. sage in the t"xt was not intended to refer 202 ACTION. TENDERING OP CONVEYANCE. [CII. 5. S. IV. give a bill of exchange, or other security, for the purchase-money, payable at a certain day, he must pay it when due. But he will have his remedy upon the agreement for the non-execution of the con- veyance {u). 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 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 (.r). Where a pur- chaser of a lease was to pay 50 I. deposit, but gave an I. O. U. for 45 /., part of it, and a bad title was shown to the lease, it was held that the seller could not recover the 45 L, for the I. O. U. was only evidence of an account stated, and the purchaser was in fact not indebted (y). On the other hand {z), although the purchase-money is to be paid as the consideration of such sale and purchase, with in- terest to the time of the completion of the purchase, yet if a time is fixed for payment and none for the conveyance, an action for not executing a conveyance might be maintained by the purchaser before the day of payment, and an action by the seller for the money could be sus- tained, although he had not tendered a conveyance (a). 54. On the other hand, a purchaser cannot maintain an action for breach of contract, without having tendered a conveyance, and the purchase-money {b). It was always clear that the vendor need not tender a conveyance where the purchaser was required to prepare it (c), or to bear the expense of it (fZ) ; and it may now be considered clear that the purchaser, and not the vendor, ought to prepare and tender the conveyance {e) (I). 55. But although a purchaser is expressly required to prepare a conveyance, yet if a bad title be produced, he may maintain an action to the amount to be recovered ; 2 Ex. 549 ; 327, wliere the purchaser was bound to pay 19 L. J., N. S., 321, Ex. Ch. on a day fixed. (m) Moggi'idge v. Jones, 14 Ea. 486; 3 (b) 1 Esp. 191; Ex pte. Ilyllmrd, 1 Atk. Ca. 38 ; Swan v. Cox, 1 Mar. 17G; Spiller 147; Gibson v. Goldsmid, 1 Jui-., N. S., 1. V. Westlake, 2 Bar. & Ad. 155; Wilks v. (c) Hawkins r. Kemp, 3 Ea. 410. Smith, 10 Mee. & Wei. 355. (d) Seward v. Willock, 5 Ea. 198. (x) 2 Bar. & Ad. 157, 158. (e) Baxter ?>. Lewis, For. Ex.61; Martin (y) Wilson v. Wilson, 14 C. B. 616 ; 2 v. Smith, 6 Ea. 553 ; 2 Smith, 543 ; Halle- Com. L. R. 818 ; Berry r. Storey, id. 815. well v. Morrell, 1 Scott, N. R., 309; Standley (z) Mattockt). Kinglake, lOAd. &E1.50. v. Hemington, 6 Tau. 561; Price v. Wil- Qm. if it was incumbent on the seller to ten- liams, 1 Mee. & Wei. 6 ; Mattock v. King- der a conveyance; see the case; Wilks v. lake, 10. Ad. & El. 50; Lah'dr. Pim, 7 Mee. Smith, 10 Mee. & Wei. .355; Sibthorp v. & Wei. 474; 2 Atk. 208; 1 T. Rep. 772; Brunei, 3 Ex. 826. Wilmot, 218 ; Stephens v. Medina, 3 Gale (a) Wilks V. Smith, 10 Mee. & Wei. 355 ; & Da. 110 ; 4 Q. B. 422 ; Poole v. Hill, 6 Dicker v. Jackson, 6 C. B. 103, as to goods ; Mee. & Wei. 835 ; Bowlby v. Bell, 3 C. B. Spartati v. Benecke, 19 L. J., N. S., C. P., 284; 2 Ex. 549 ; Tennent v. Robinson, 2 293 ; Yates v. Gardiner, 20 L. J., N. S., Ex. Ir. C. L. R. 152. (I) The dicta the other way are in Pincke v. Cartels, 4 Bro. C. C. 332 ; Grousock v. Smith, 3 Aus. 877 ; Heard v. Wadham, 1 Ea. 627 ; Seton v. Sladc, 7 Ves. 278. CII. 5. S. v.] NE EXEAT. COMMON LAW POWERS. 203 for recovery of his deposit, without tendering a conveyance (f). So where a vendor has, by selling the estate, incapacitated himself from executing a conveyance to the first purchaser, that renders farther expense and trouble on his part unnecessary; and he may accordingly sustain an action without tendering a conveyance, or the purchase- money ((/). 56. We have already seen what arc the liabilities of both purchaser and seller, in respect of occupation where the contract is rescinded {h). 57. 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 {{), or there has been a decree for a specific performance after the title has been investigated {k). 58. Thus the law stood upon the authorities, but now, as we have seen, courts of law may by mandamus enforce specific performance as well as a court of equity. The plaintiff in any action, except re- plevin and ejectment, may claim either together with any other demand which may be enforced in such action, or separately, a writ of mandamus commanding the defendant to fulfil any duty, in the fulfil- ment of which the plaintiff is interested. And if judgment be given to the plaintiff that a mandamus do issue, the Court may, besides issuing execution in the ordinary way for costs and damages, issue a peremptory mandamus to the defendant, commanding him forth- with to perform the duty to be enforced. And, as we have seen, the Court, in case of default, may direct that the act required to be done, may be done by the plaintiff, or some other person appointed by the Court, at the defendant's expense, and the expenses and costs may be enforced by execution (/). We have seen that courts of law have found themselves embarrassed in attempting to carry these powers into execution. (/) Seward v. VVillock, uhi sup. ; Lowndes V. Bray ; S. P. ruled by Lord Ellenborougli, Sitt. after T. T. 1810; 11 Ad. & El. 933. (g) Knight v. Crockford, 1 Esp. 189; Duke of St. Albau's v. Shore, 1 11. Black, 270 ; Jackson v. Jacob, 3 Bin., N. C, 869; Frauklyn v. Lamond, 4 C. B. G37. (70 Slip. p. 149, 150. (i) Goodwin v. Clarke, 2 Dick. 497; Anon. id. ; Jackson v. Petrie, 10 Ves. 164. (k) Boehm v. Wood, Tur. & Rus. 332 ; Morris v. M'Neil, 2 Rus. 604. (/) 17 Vict. c. 125, s. 68-77; sv^j. s. 4, pi. 58. SECTION V. OF RESCINDING AND OP CONFIRMING A CONTRACT. 1. Notice of rescinding. 2. Doctrine of rescinding a contract. 3."\ /■ Misrepresentations. 4. Concealment of a fact by a purchaser. 6. Dealing unduly u-ith ptcrctiascr. G, Fraud necessary. 7. Seller believing his own misrepresentation. 9. Rescinding a conreyatice for ttnreason- ableness ofjjrice. 10. For inadequacy. 11. Because trustee sold to himself. 12. Where by mistake a man bought his own estate. 204 OF RESCINDING A CONTRACT. [CII. 5. S, V. 14, IG. 17. 18. 19. 20. 21. 22. 23. 24. 25. 2G. 27. 28. 23. 30. 31. 32. Effect of hnjjroperly charging fraud. Because defect in title covcealed. Where a imrchaser hy mistake gets a larger interest. Eviction not necessary to relief. Because remainder sold had been barred. Action of deceit. Dobell V. Stevens. Action for money had and received. Fuller V. Wilson. Corn foot v. Fowke. Rule in equity. Purchaser's general remedy. Acquiescence bars right. Time enlarged for payment of interest. Limited time to take objection. Confirmation releases right. Although neiv circumstance of fraud discovered . Acquiesce)ice tvhere fraud and oppression. Confirmation where fraud : whether fraudulent transaction can be purged. 33 34, 35, 37, 38. 44. 39. 40. 41. 42. 43. 45. 4G. 47, . Relief against sub-purchaser. . Requisites to valid confirmation. Time a bar to relief. Statutor'y bar : equitable bar. ,■ Profit and loss by stock : interest. Purchaser, how charged. Occupation rent : imjirovements. Not interest upon interest. Repairs after notice of defect in title. Conversion of shop into ])rivate house. Power of Court where bill is dismissed. After an injunction : interest. Re-transfer of sums after reversal of decree — No interest upon costs — Power of Court after reversal, and cause remitted. Bill dismissed after decree, upon defen' dant's default. Whether purchase -money can be fol- lowed. 1. Where one party fails in performing the contract, tlie other, if he mean to rescind it, shoukl give a clear notice of his intention {a). 2. The right to rescind a contract arises either before the comple- tion of it — as for the want of title, for example — or after the contract is completed. The first class of cases we have already considered generally (5), and we have now only to inqnire in Avhat cases a party may require a contract to be delivered up ; and, 2dl3^, nnder what circumstances a party may rescind the contract after the execution of the conveyance. And, first, as to the delivering up of a contract. 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). 3. 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 representations after- wards turn out to be incorrect and false to the knowledge of the party making them, a, foundation is laid for maintaining an action to recover damages for the deceit so practised ; and in a court of equity a foundation is laid for setting aside the contract which was founded upon a fraudulent basis {d). 4. Where a man, knovv^ing of the death of a person, by whose death the value of the property in the hands of assignees of a bankrupt was improved, purchased the property, and did not disclose the fact, and (a) Reynolds r. Nelson, 6 Mad. 18. {d) Attwood v. Small, 6 Cla. & Fin. 395, (h) Sup. s. 4. 444, 445, 46G, 478, 502 ; Sugd. II. of L. 59G. (c) Jac. 172. CH. 5. S. v.] OF RESCINDING A CONTRACT. 205 they were unaware of it, although it was publicly known, Lord Eldon ordered the contract to be delivered up (e). 5. And (/) where, pending the investigation of a point upon the title, the seller and his solicitor induced the purchaser to pay the purchase-money, and to execute deeds of covenant for the production of title-deeds, the transaction amounting to a fraud, the contract was rescinded without reference to the validity of the objection to the title, and the seller was ordered to repay the purchase-money with interest, cost, charges, and expenses, and costs of suit {(/). 6. 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. The judgment in the Lords in Small ?;. Attwood lays down a clear rule, requiring fraud to be distinctly proved in tlie representations by the sellei", and further establishing that where the purchaser had the means of ascertaining the truth of the repre- sentations, and did inquire, but did not use due diligence in the inquiry, he will find it difficult to obtain any equitable relief, more especially if he is guilty pf delay in his application (A). In that case, for example, it was not too much to expect that if, in a purchase of such magnitude, 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 himself />?/ the c(mt7'act to those representations, and to agree to reduce the pur- chase-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 purchasers would have exe- cuted the contract without it. And it was still more reasonable to expect in that case, where after a new examination of the property and of the accounts, a very large abatement was made in the j)ur- chase-money, and a new contract was executed, the purchasers would have stipulated by that contract that the seller should be bound by his further or renewed representations, if they intended to imj^each the renewed contract, should the representations turn out to be in- correct (/). In a case depending upon alleged misrepresentations as to the nature and value of the thing purchased, the defendant cannot adduce more conclusive evidence or raise a more effectual bar to the plaintiff's case, than by showing that the plaintiff was from the beginning cognizant of all the matters complained of, or after full in- formation concerning them continued to deal with the property, and even to exhaust it in the enjoyment, as by working mines (Ji). (e) Turner v. Harvey, Jac. 1C9, post; nings r. Broughton, 17 Bea. 234; o De Go. Jones V. Keene, 2 Moo. & Ro. 348. Mac. & Gor. 12G. (/) Berry v. Armistead, 2 Ke. 221. (t) Sugxl. PI. of L. Cas. GOR. {(J) Edwards t'.M'Leay, Coo. 31 8; Lovell {k) Vigers v. Pike, 8 Cla. & Fin. 5(12, Hicks, 2 Yo, & Col. 51. per L. C. (/() Yo. 407 ; Sngd. H. of L. 596 ; .Ten- 206 OP RESCINDING A CONTEACT. [CH. 5. S. V. 7. 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 un- true, if he believed it to be true (/). 8. In Cadman v. Horner {m), Sir W. Grant refused a purchaser a specific performance on account of a slight misrepresentation by him, but 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. 9. Secondly. We have elsewhere shown that there are few cases in which a purchaser can rescind a contract after the conveyance is executed, and the purchase completed, on account of the price being unreasonable (n). 10. Nor, on the other hand, can the vendor easily obtain relief on account of the inadequacy of the consideration after the conveyance is execvited («). 11. A cestui que trust, whose trustee has sold the estate to himself, may rescind the sale; but this subject is fully discussed in a sub- sequent part of this work (p). 12. Where a man having a right to an estate, purchased it of J. /^. cu^ -J/' g^j^Q^j^gj. person, being ignorant of his own title, the vendor was com- pelled to repay the purchase-money, with interest from the time of filing the bill, and costs ; for though no fraud appeared, yet there was a plain mistake {(j). And this is clearly so in a case of fraud ; in a case of mere ignorance, the point is doubtful (?•). 13. A purchase may not be impeachable for fraud and imposition, yet the conveyance may be set aside as improvidently entered into where there is knowledge on the one side and poverty and ignorance on the other (5). (/) De Sewhanberg V. Buclianaiij 5 Car. (r) Stewart ?•. Stewart, 6 Cla. & Fin. 968 ; J '^■*- • • • ■ ^ Pa. 343. Saunders v. Ld. Annesley, 2 Sch. & Lef. (w) 18 Ves. 10; Mortlock v. Buller, 10 101; Lansdown v. Lansdown, Mos. 364; Ves. 308; Day v. Newman, 2 Cox, 77. Leonard v. Leonard, 2 Ba. & Be. 171; 2 in) Ch. 7. Mer. 233. (0) Ch. 7. (*•) Evans v. Llewellyn, 2 Bro. C.C. 150; \p) Ch. 20. Curson v. Belworthy, 3 H. of L. 742. \q) Bingham iJ. Bingham, 1 Ves. 120(1). (1) The facts, as they appear in Reg. Lib. 1748 A., fo. 154, are shortly these: John Bingliain devised an estate tail in certain lands to Daniel, his eldest son and heir, with the reversion in fee to liis (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 Ixis money, for that all pui'- chases are to be at the peril of the purchaser. en. 5. S. v.] OF RESCINDING A CONTRACT. 207 14. A seller may have a title to relief on the ground of undervalue, improvidence, and haste in the execution of the contract or the like, and yet if he file his bill on the ground of fraud where none exists, the bill may be dismissed (t) ; but if a proper case for relief is made out, the mere superaddition of an allegation of fraud not proved will not prevent the plaintiiF from succeeding (u). If fraud is charged as the ground of relief claimed by a purchaser, and is not proved, it is not sufficient to establish a fact charged as evidence of the fraud, which might have entitled the purchaser to relief independently of fraud (?')• 15. In a case, where the sellers knew of a defect in the title to a -^ /h^r^^^ ^ part of the estate, which was material to the enjoyment of the I'est,-^^- ^'^■^'^ - 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 Avitli an allowance for any money he laid out in repairs during the time he was in possession {x). It was in this case laid down that if one party makes a repre- sentation 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). It was observed by Sir W. Grant, that whether it would be a fraud to offer as good a title which the vendor knew to be de^ fective, 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 aAvare of any principle on which relief could be refused to a purchaser. 16. Where a man sold and assigned a leasehold estate, believing and representing that there was only eight years to run, and it after- Avards appeared that a life was still in being, which did not drop for some years, so that the purchaser obtained a longer term than he bargained for, yet the seller's bill for relief Avas dismissed Avith costs {z).f^' ^''7 ' 17. Where a purchaser is entitled to be relieved 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 jvhether, on any day during that period, he (0 Cuvson V. Belwortliy, 3 H. of L. 742 ; son v. D'Este, 2 Yo. & Col. C. C. 542 ; 1 H. Marq. of Donegal v. Greg, 13 Jr. Eq. R. of L. Cas. 605; Sugd. H. of L. 614; Price 12. V. Berrington, 3 Mac. & Gor. 488; Perkins (?t) Espey V. Lake, 10 Ha. 264. v. Ede, 16 Bea. 193, as to the title itself, (t') See and consider Price v. Berrington, et qu. 3 Mac. & Gor. 486. {y) 2 Swa. 287. {x) Edwards v. M'Leay, Coo. 308; 2 Swa. [z) OkiU v. AVhitaker, 2 Phil. 338 ; 1 De 287 ; Pike v. Vigors, 2 Dru. & Wal. 258 ; Ge , & Sma. 83. Attwood V. Snaall, 6 Cla. 6c Fin. 332 ; Gib- 208 OF RESCINDING A CONTRACT. [CH, 5. S. V. may not have Lis title impeached. A court of equity is bound to re- lieve a purchaser from that state of hazard into which the mis- y representation of the seller has brought him («). Jt^^ 7^/ -^ 18. 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 Avas relieved against a bond which he had given for the purchase-money, and the seller was compelled to repay \}a% interest which he had received (Zi). 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. 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 ? " Both these cases, Avhen they arise, will, it is apprehended, deserve great consideration before they are decided in the purchaser's favour. The decision must be the same, Avhether the money is actually paid or only secured. Lord Eldon, in a later case, expressed considerable doubts as to the doctrine in this case. 19. 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, Avhere a misrepresenta- tion 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 circumstance an action may be maintained at law for the purpose of recovering a com- jiensation in damages for the injury the party has sustained, notwith- standing the contract was in writing, and notwithstanding those par- ticulars may be no part of the terms of the written contract (c). 20. Dobell V. Stevens (c?) is an instance where a purchaser was allowed to recover upon an action on the c^se for a deceitful repre- sentation of the trade and income of a public-house, although the (ft) Edwards v. M'Leay, Coo. 308. Paul, 1 Q. B. 316 ; Price v. Macaulay, 2 De (h) Hitchcock v. Giddings, 4 Pri. 135; Ge. Mac. & Gor. 339. A false and frau- sco Strickland v. Tm'ner, 8 Ex. 208 ; but see dulent statement by the seller, communi- 2 Cro. 190 ; 2 Ld. Ray. 1118; IT. Rej). 755; cated by an intended purchaser to a sub- 2 Free. lOG; fost, cli. 13; ch. Ijjiost. stitutcd purchaser, gives the latter a right (c) Yo. 461, 462. of action; Attwood v. Small, 6 Cla. & Fin, (rf) 3 Bar. & Cres.G23 ; Pilmore v. Hood, 232 ; Gil)sun r. D'Este, 1 H. of L. Cas. G05. 5 Bin. N. C. 97 ; Sco. 827 ; Mummery r. CH. 5. S. v.] ACTION OF DECEIT. 209 purchase had been concluded by the payment of the purchase-money ,.^{5fe«'*«^ ;^ 3 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 pur- ■*" ^ "■. chaser, and they would have shown the real state of the concern, but the purchaser did not examine them. The Court observed, that the purchaser relied upon the assertion of the seller, and that was his inducement to make the purchase. 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 col- lateral to it. 21. Where the purchaser has a right to rescind the contract, he may bring an action for money had and received to recover the pur- chase-money (e). S^tAV^, S^7 22. So he may bring an action for a fraudulent misrepresentation ' of the value by an agent. In Fuller v. Wilson (/), the facts were considered to be that the seller being 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 for 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 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 specifi- cally on the subject of rates and taxes, but he could not sell the house without describing it, and he described it untruly in an essen- tial point. By this false statement the plaintiff was induced to jjart 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 Z. a year. The attorney made no inquiry about rates and taxes, assuming that the tenant paid them, and he did not know that they were paid by the seller. The seller herself did not further interfere. The attorney stated to the auc- (e) Greville v. Da Costa, Peak. Add. Ca. (/) 3 Ad. & El., N. S., 58. 113 J sup. s. 4. O 210 ACTION or DECEIT. [CH. 5. S. V. tioneer that " the house Avas let at 100 I. a year." The auctioneer in his 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 the purchaser himself was an agent, and inserted the false statement without sufficient authority ; 2d, That the seller, the principal, made no representations ; 3d, That the attorney made no misrepresentation, and believed the statement in the particulars to be correct, and it was held that the action would not lie {g). It was not doubted in the Exchequer Chamber that the representation made by the agent, if fraudulent, would have bound the seller, and that a fraudulent concealment by him would have equally bound her {It). It was not found that the seller knowing a material fact, kept it back (/). If she had know- ingly referred to an ignorant agent, that would have been fraud (k). The Court considered the immediate cause of the injury sustained by the purchaser to have arisen from his own misapprehension of the fact, and not from any misrepresentation or concealment on the part of the defendant (J). 23 . Where the owner of a house wliich was not fit for a residence, in consequence of a nuisance in the one adjoining it, sold by an agent who was ignorant of the nuisance, and upon inquiry by an intended lessee told him that there was no objection to the house; it was held that the lessee was bound, as there was no misrepresentation by the owner, and the agent did not know that his statement was false {tn). But this was strongly opposed by Lord Abinger, C. B., and is open to much observation. It has been said, that this case turned upon the plea that the defendant was induced to enter into the agreement by means of the fraud of the plaintiff, and the fraud was not made out, for the plaintiff did not authorise the statement, and the agent made it innocently (n). It is admitted, tliat if the principal instruct his agent to make the false statement, this would be a fraud on his part, although the agent might be ignorant of any deceit. So it would be a fraud for a person conscious of objections to his property to appoint an agent who unconsciously may make misrepresentations to the injury of third persons. But it may be asked, how is the motive to be proved? If an agent in such a case, although the principal be perfectly guiltless, knowingly commit a fraud in making {g) 3 Ad. & EL, N. S., G8; Sugd. H. of (7^) lb. p. 75. L. Cas. 644. {I) 5 Q. B. 1009. {h) lb. p. 77 J Eavly v. Garrett, 4 Man. (?«) Cornfoot v. Fowke, 6 Mee. &: Wei. & Ry. 687 ; Stainbank v. Fcrnley, 9 Sim. 858 j Fuet v. Hill, 15 C. B.207. 556; \yatsoni'.Ld.Charlemont,12Q.B.85G. (?i) Per L. C. Cranworthin National Ex- (0 3 Q. B.74; M'Lure v. Ripley, 2 Mac. change Co. v. Drew, D. P., 2 Macq. 108, & Gor. 274. see p. 144; 6 De Ge. Mac. & Gor. 39, 40. CH. 5. S. v.] RIGHT TO RESCIND LOST BY ACQUIESCENCE. 211 a contract, not only Is the contract void, but the principal is liable to an action (o) (I.) 24. Although in equity a party may be entitled to get rid of a contract founded on fraudulent representations {ji), still cases may occur where a purchaser might recover damages at law for a false representation, and yet be prevented by his own conduct from re- scinding the contract 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 {q). 25. 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 pur- chaser's only remedy is under the covenants (;'). 26. A right to rescind a contract may, like most other rights, be lost by acquiescence or relinquished by confirmation (s). A party may, of course, by his conduct abandon or reject an agreement into which he has entered, and so prevent his claiming the benefit of it (t). 27. 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 (?0. 28. 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 (II) ; if the seller expresses a willingness to remove the (0) Cornfoott'.Fowke,6 Mee. &Wel. 358. (s) Attwood v. Small, G Cla. & Fin. 232, (p) Yo. 402, sup. 424, 432. {q) Leuham v. May, 13 Pri, 749. (t) Morris v. Timmins, 1 Bea. 411. (?•) Ch. 13, j]ost. (««) See Dawson v. Yates, 1 Bea. 301. (1) It was observed by one of the law lords in The National Exchange Co. v. Drew, 2 Macq. 145, that if there had been no allegation of fraud, but it had been put simply upon misrepresentation, the judgment admits that if a principal, with knowledge of a fact which was material to the value of the property, employed an agent whom he knew to be ignorant of the fact for the pui-pose of concealment, he could not avail himself of that concealment. But further he should say, that if misrepresentation only and not fraud had been alleged, and the fact that a man knowing the serious nuisance affecting his house takes care himself not to make Vae contract, but leaves it to an agent whom he has no reason to suppose was aware of the fact, and if in the course of the treaty the agent being asked if such a fact existed, answers positively, no, and the contract is therefore executed in silence upon this point, he sliould himself decide that, although the represen- tation was not fi'audulent — the agent not knowing that it was false — yet, that as it in fact was false, and false to the knowledge of the principal, it ought to vitiate the contract. When upon a matter so material to the value of the property he left it to his agent to make the representation without informing him of so important a fact within his own knowledge, the agent making a false representation of that fact, would bind the principal, and thus impeach the validity of the contract. (II) Upon an appeal in Tannery. Smith, where the point was not decided, Lord Cotten- o2 212 RIGHT TO RESCIND LOST BY CONFIRMATION. [CH. 5. S. Y. objections, he makes his option, and is bound not to take advantage of the condition (.r). 29. If a party with full information freely confirms a contract, Avhich he was at liberty to rescind, he will be bound by it, and no new consideration is requisite to give validity to the confirmation (?/). 30. If a purchaser, instead of repudiating the transaction, deal with the property as his own, he is bound, although he afterwards discover a new circumstance of fraud, for that can be considered only as strengthening the evidence of the original fraud, and it cannot revive the right of repudiation which has been once waived (z). 31. But where the contract Itself Is founded In fraud or oppression, with which the party is from the first aware, acquiescence whilst he is under the same difficulty and embarrassment will not of itself bar his right to relief (a). 32. Where a purchase was deemed fraudulent, and the seller was considered to have never been fully apprised of his rights, the stopping a suit in Chancery and a release thereupon given were con- sidered a double hatching the fraud, and the purchase, notwithstanding the acts of confirmation, was set aside even after the seller's death (b). The Judges said there was no instance where the original contract was fraudulent, that any subsequent act could purge it. But this carries the rule too far, although a contract not affected by fraud may be held to be confirmed by an act which might not be deemed a con- firmation of a really fraudulent transaction (c). 33. And even where a third person (avIio 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, who was a pauper and improtected, was relieved, although he Impro- vidently joined in the second sale (d). 34. To give validity to a confirmation of a voidable conveyance, (.t) Taunerr. Smith, 10 Sim. 410; Cutts D'Arcy v. D'Arcy, 1 Hay & Jo. 115; 12 V. Thodey, 13 Sim. 20G. Yes. 373, 374. (?/) Chesterfield v. Janssen, 2 Yes. 146, (b) Baugh v. Price, 1 Wils. 320. 149, 152, 158, 159; Roche v. O'Brien, 1 (c) See De Montmorency i;. Devereux, 7 Bal. & Be. 355 ; Cole v. Gibbons, 3 P. Wms. Cla. & Fin. 225. 290 ; Morse v. Royal, 12 Yes. 355. (d) Consider Addis v. Campbell, 4 Bea. (z) Campbell v. Fleming, 1 Ad. & El. 40. 401. (o) Wood V. Downes, 18 Yes. 130; ham observed upon this condition, " Whether this objection is to be understood to mean an objection to the original abstract, or whether to a subsequent abstract, the vendor has reserved to himself the power to construe it as he pleases ; whether he is unwilling or unable to remove the objections, he shall be able to annul the contract, and the purchaser shall not have the deposit. Anything more unjust there could not be. The Yice-Chan- cellor says the objections must be considered as the objections to the first abstract." The Lord Chancellor allowed the purchaser to proceed with an action to recover the deposit. 4 Jur. 310. CH. 5. S. v.] RIGHT TO RESCIND BARRED BY TIME. 213 the party confirming mnst not be ignorant of his right, nor of course must his right be concealed from him by the person to whom the con- firmation is made (c). He must know the transaction to be impeach- able that he is about to confirm, and with this knowledge and under no influence he must spontaneously execute the deed(/). And he must be fully aAvare not only of the fact upon which the defect of title depends, but of the consequences in point of law ((/) ; and he must in fact be a free agent, not under the influence of the previous transaction (/t). 35. Time might of itself bar the remedy (i), even where the old statutes of limitation afforded no bar. 36. 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 too late, at the expiration of six months, on that ground, to file a bill for the purpose of setting aside the contract {k). 37. And now suits in equity are expressly confined to the period allowed for actions at law {I), although in the case of a concealed fraud the rio;ht to relief is deemed to first accrue at the time when the fraud shall, or, vf ith reasonable diligence, might have been known or discovered ; but such relief is not given against a bondjide pur- chaser for valuable consideration without notice (m). But though this is the limit, yet the Act docs not interfere with any rule or juris- diction of courts of equity in refusing relief, on the ground of acquiescence or otherwise, to any person Avhose right to bring a suit may not be barred by the Act (??). The time may be shortened, it cannot be lengthened. 38. In a case where a conveyance Avas set aside upon inadequacy of price and fraud, and the purchase-money had been secured at inte- rest, which had been paid thereon, the Court, beyond the repayment of the principal, considered the payments of interests as made, not as interest, but as principal, making the seller chargeable with interest on all the sums received by her, whetlier received as interest or as principal (o). And the interest has been ordered to be i)aid at five per cent {p). 39. But a purchaser, where the contract is rescinded, is not to be (e) Cann v. Cann, 1 P. Wms. 723. (0 Medlicot v. O'Donel, 1 Bal. & Be. (/) Dunbar v. Tredennick, 2 Bal. & Be. 156 ; Morse v. Royal, 12 Ves. 374. 317. Perhaps relief ought to have been (/c) Small r. Attwood, Yo. 503 ; 6 Cla. & given in Roche r. O'Brien, 1 Bal. & Be. Fin. 232, 357; Lovell v. Hicks, 2 Yo. & 380 ; Murray v. Palmer, 2 Sch. & Lef. 48G. Col. 46. (r/) Cockerellr. Cholmeley, 1 Rus. &My. (Z) 3 & 4 Will. 4, c.27,s.24;/;o5if, eh. 12. 425. \m) S. 26. {n) S. 27. (/t) Crowe V. Ballard, 3 Bro. C. C. 117 ; (o) Murray u. Palmer, 2 Sch. & Lef. 488. see Scott v. Davis, 4 Myl. & Cra. 91 ; Wood {p) Donovan v. Fricker, Jac. 165; Tur- u. Downes, 18 Ves. 120 ; King r. Savery, 1 ner v. Harvey, Jac. 109; Edwards v. Sma. & Gif. 271 ; aflF. in D. P. 1856. M'Leay, 2 Swan. 287. 03 S14 RENT AND INTEREST. WHERE CONTRACT RESCINDED. [CH.5. S.V. char. Coombes, (i) Maryon v. Carter, 4 Car. & Pa. 295. 6 Bar. & Al. 584. {k) Poreher v. Gardner, 8 C. B. 4G1. (p) Seward v. Willock, 5 Ea. 198; Rad- (Z) Sansom v. Rhodes, 6 Bin. N. C. 2GI ; cliffe v. Warrington, 12 Ves. 32G. sed qu. (q) See marginal note to the Report. (ffi) Thompson v. Miles, 1 Esp. 184. en. 6, S. II.] TIME ENLARGED IN EQUITY. 219 title under the power, and was not bound to undertake the trouble and responsibility of investigating the title produced under all the mortgagees (r). 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 licence to assign where one is requisite, or the neglect to register a deed, is unimportant (s). 7. But a party even at law has been held by his conduct to have waived a forfeiture of the deposit, so as to entitle the purchaser to recover it, although he had not performed the agreement at the time stipulated (t). 8. And where a purchaser delays to demand possession until the last moment, when he knows it cannot be delivered to him, this may be looked upon as a waiver, and a device to obtain a rescission of the contract {u). 9. Where the contract is under seal, a subsequent agreement not under seal, made before breach of the agreement, enlarging the time for performance of the contract, is invalid at law {a;). And even Avliere the agreement is not under seal, a subsequent parol agreement to alter or enlarge the time is void (?/). 10. But equity will in certain cases carry the agreement into exe- cution, notwithstanding that the time appointed be elapsed ; and although there has been no vraiver {z). (r) Forstei- v. Hoggart, 15 Q. B. 155. {x) Rippiugall v. Lloyd, 2 Nev. & Man. (s) Robinson v. Stowell, 3 Bin. N. C. 928. 410. {t) Carpenters. Blandford, 8 Bar. &Cres. (?/) Stowell v. Robiuson, 3 Bin. N. C. 575; consider it, and Sweetland v. Smith, 1 Cro. &: Me. 585; Stowellr. Robinson,, 3 Bin. N. C. 928. (h) Temple v. Palmer, 1 Per. & Dav. 381. 928; Lawrence?;. Knowles, 7 Sco. 38L {z) Sup. ; 7 Ves. 274; Hearne v. Tenant, 13 Ves. 287 ; Lennon v. Napper, 2 Sch. & Lef. 683. SECTION II. OF DELAYS OCCASIONED BY THE NEGLECT OF EITHER PARTY. 1 . Time hi equity, a bar — Diligence neces- sary in equity — In equity loth parties must be active — Waiver by receipt of abstract after the day. 2. Where vendor loses his remedy — There must be gross negligence, 3. Time required for repairs, or to get possession. 4. Effect of delay by purchaser — Umvilling Purchaser. 5. Reversion sold : time important. G. Or if sale is to pay debts, i^'c. — Or by ecclesiastical corporation. 7. Abandonment of contract after decree. 1. It is now settled, that time alone is a sufficient bar to the aid of the Court. Due diligence is necessary to call the Court into activity (a). But although if the vendor be not ready with his ab- (a) 1 Ves. 450; Milward v. Earl of Ves. 326; Alley f. Deschamps, 10 Ves. 225; Thanet, 5 Ves. 720, n. ; Alley v. Deschamps, 1 Bal. & Be. 68. 13 Ves. 325; Radcliffe v. Warrington, 12 220 GROSS DELAY ON THE PART OP SELLER. [CH. 6. S. II. stract and title-deeds at the day fixed, the purchaser may avoid the agreement at law (b), yet in equity it is equally incumbent on the purchaser to ask for the abstract, as for the vendor to deliver it. And, therefore, if a purchaser do not call for the abstract before tlie time agreed upon for its delivery (c), or do not ask for it until it has become impossible to execute the agreement by the day fixed {d), equity will consider the time as waived ; or if he receive the abstract after the day appointed, and do not at the time object to the delay, he cannot afterwards insist upon it [e). 2. But 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 agree- ment. This was decided in Lloyd v. Collett (/). On the 10th August 1792, the defendant contracted for the purchase of the estate, to be completed on or before the 25th March 1793, and had frequently between those times applied in vain for an abstract of title. Shortly after the 25tli March, the purchaser applied for his deposit, with in- terest from the 10th August 1792, Avhen he paid it; and afterwards repeatedly applied for it before the 10th of June 1793, when he brought an action for it. On the 16th September 1793 an abstract was delivered ; the purchaser on his return to town, on the 2otli of October, wrote, insisting that he would not complete his purchase. On the 6th November the bill was filed by the vendor for a specific performance, and for an injunction. Lord Rosslyu said, the conduct of parties, inevitable accident, &c. might induce the Court to relieve ; but it was a different thing to say, that the appointment of a day Avas 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 tliereforc considered the contract as at an end. But where a vendor has pro- ceeded to make out his title, and has not been guilty of gross negli- gence, equity will assist him, although the title Avas not deduced at the time appointed. Thus where (//) 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 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 R-olls said, the (b) Berry v. Young, 2 Esp. 640, n. ; sup. 707 ; 7 Vcs. 278 ; Potts v. Webb, 4 Bro. C. (c) Guest V. Hoinfrey, 5 Ves. 818. C. 330; Paine v. Meller, 6 Ves. 349; Warde {d) Jones v. Price, 3 Ans. 924. v. Jeffery, 4 Pri. 294. (c) Smith ?;. Burnam, 2 Ans. 527 ; Seton (g) Fordyce v. Ford, 4 Bro. C. C. 494; V. Slade, 7 Ves. 265. Radcliffe v. Wamngton, 13 Ves. 323. (/) 4 Bro. C. C. 469; 4 Ves. G89; 5 Ves. CH. 6. S. II.] DELAY ON SALES OP REVEESION, &C. 221 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. 3. If an estate was described as in good repair, and it turn out to be in bad repair, and months may be required to repair it, yet the purchaser cannot resist the contract, unless he wanted possession of the house to live in at a given period, by which time the repairs could not be completed (//). 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, he cannot rescind the agree- ment, unless the personal occupation of the estate was essential to him at the time appointed («'). In this last case, however, the juris- diction should be sparingly exercised. 4. The rules on this subject apply to each j^arty ; therefore, where a purchaser permits a long time to elapse, without evincing a fixed intention to carry his contract into execution, he will be left to his remedy at law, although he may have paid part of the purchase- money. He is not suffered to lie by, and speculate on the esiate rising in value {k). Nor will he be assisted by equity, where he has made frivolous objections to the title, and trifled, or shown a back- wardness to perform liis part of the agreement, especially if circum- stances are altered (Z). And where the price is unreasonable or in- adequate, or the contract is in other respects inequitable, equity will not assist either party, if he has jjermitted the day appointed for completing the contract to elapse without performing his part of the agreement {in). Where it is clear that the delay was occasioned by his inability to pay the purchase-money, his bill will be dismissed, although on general grounds the delay would not have prevented equitable relief (w). 5. In sales of reversions, it is of the essence of justice that such contracts should be executed immediately, and without delay (o). 6. So time is very material Avhere the estate is sold in order to pay off any incumbrance bearing a higher rate of interest than the vendor (/t) Dyer v. Hai-grave, 10 Ves. .505, inf. Wood, 2 Ver. 632 ; Bell v. Howard, 9 Mod. ch. 8 ; Nokes v. Ld. Kilmorey, 1 De Ge. & 302 ; Main v. Melbourn, 4 Ves. 720 ; Bui-ke Sma. 444. r. Smith, 3 Jo. & Lat. 193. (i) Hallr. Smith, 14 Ves. 426; 13 Yes. 77. (/«) Post, eh. 7; \Vhorv,-ood t>. Simpson, {k) Harrington v. Wheeler, 4 Ves. 686 ; 2 Ver. 186; Lewis i-. Ld. Lechmere, 10 Mod. Alley r. Deschamps, 13 Yes. 225; Firth z;. 503; 2 Mol. 584. Greenwood, 1 Jur., N. S., 866. («) Gee v. Pearse, 2 De Ge. & Sma. 325. (0 Hayes v. Caryll,l Bro.P.C.27; 5 Yin. (o) Newman r. Rodgers, 4 Bro. C. C. 391 ; Ab. 538, pi. 18; Spm-rierf. Hancock, 4 Yes. Spm-rier v. Hancock, 4 Yes. 667; 1 Pri. 667 ; Pope v. Simpson, 5 Yes. 145 ; Coward 298 ; 1 Yo. & Col. 416. V. Odingsale, 2 Eq. Ca. Ab. 688; Green v. 222 TIME ALLOWED IN EQUITY FOR TITLE. [CH. 6, S. III. Is entitled to receive for the purchase-money (p) ; or the estate is sold for the purposes of a trade or manufactory (g) ; or the subject of the contract is in its natm-e of a fluctuating value (r) ; or where the dealing is with an ecclesiastical corporation (s). The nature of the property, too, e. f/., a public-house with possession, with stringent conditions binding on the purchaser to compel him to an immediate completion of the contract, was considered to be a sufficient ground to hold the seller equally strictly to time (t). So time is of great im- portance where the contract is a one-sided one, as where a written offer has been accepted verbally, and the person accepting it is guilty of delay {u). 7. Even after a decree for specific performance, a contract for sale may be abandoned or waived by long delay, and by dealings between the seller and the purchaser treating the former as still owner of the property (x). (p) Popham V. Eyre, LoflFt, 786 ; 2 Sell. & Lef. 604, (q) Parker v. Frith, 1 Sim. & Stu. 199 ; Wright V. Howard, ib. 190; Coslake r. Tilt, 1 Rus. 376; Walker v. Jeffreys, 1 Ha. 348 ; Macbride v. Weekes, 2 Jur., N. S., 918. {r) Doloretw, Rothschild,! Sim. & Stu. 590. (s) Carter v. D. & C. of Ely, 7 Sim. 211. (t) Seaton v. Mapp, 2 Col. 556. (?<) Williams r. Williams, 17 Bea. 213 ; ry'ule sup., ch. 4, s. 3, pi. 9, n. (x) Sugd. H. of L. 670 ; Ld. Rosse i-. Sterling, 4 Dow, 442. SECTION III. OF DELAYS OCCASIONED BY THE STATE OP THE TITLE. 1. Delaij throngh title not material. 2. Vendor should file a hill Procuring title after filing bill. .3. In equity, time allowed. 4. Purchaser not bound where ne%v suit necessary — Or an account of debts to be taken. 5. Title should be at date of certificate. 6. Purchaser 2)roceeding with knowledge of defect. 7. Acceptance of abstract with notice. 8. Dormant treaty. 9. Title too late after purchaser has aban- doned — Delay infding a bill. 10. Waiver of time by vendor. 11. By purchaser, and new delay. 12 13 14 15 Vendor may rescind contract where money cannot be paid. Time in equity may be essence of con- tract. T^me made of the essence against ike purchaser : delay by the vendor. When not of essence, time may be fixed by notice. 16. Parkin v. Thorold. 17. Roberts v. Berry. 18. Time for delivery of objections: means to perfect abstract. 19. Reference as to time. 20. Waiver of time in paijment confined to one instalment. 21. Rule in equity where no time limited. 1 , A DELAY accounted for by the state of the title will not be a bar to a specific performance, where the time fixed is not material. 2. Where time is not material, and the title is bad, but the defect can be cured, if the vendee is unwilling to stay, the vendor should file a bill to enforce the contract {a) ; for it is sufficient if the party (a) 6 Ves. 655 ; 10 Ves. 315 ; Langford 6 Ves. 646 ; Seton v. Slade, 7 Ves. 265. V. Pitt, 2 P. Wms. 629; Jenkins r, Hiles, en. 6. S. III.] WHEN PURCHASER RELIEVED FOR DELAY. 223 entering into articles to sell has a good title at the time of the decree. And where (h) the vendor, at the time he filed the bill, had only a term of years in the estate, of which he had articled to sell the fee, and after the bill filed, procured the fee by means of an Act of Par- liament ; as the day on which the contract was to be carried into execution was not material, a specific performance was decreed. 3. And although the officer report against 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 spedily (c). 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 (d). Where the estate is sold by the Court, and all the parties beneficially interested in the estate are properly represented in the suit and bound by the decree, — an objection to the absence of a party In whom a mere legal estate is vested in trust for the parties before the Court, is an objection to the conveyance, and not to the title {e). 4. But the Court will not extend the rule. Therefore where upon 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 sold ; but the fact of the trading was not proved, and the cause was re-heard, the decree upon which re-hearing Avas also open to objection ; the purchaser under the decree was, upon motion, relieved from his pur- chase, although the parties were willing to take steps to remove the objections (/). Where a testator devised his real estates to trustees to pay debts, with a direction first to sell estate A, and if that were deficient, to sell estate B, and the trustees agreed to sell the latter estate, and upon a bill filed against the purchaser, the Master re- ported a good title, Lord Eldon held, that it was necessary to have a report of debts, in order to show that estate A was insufficient. The sellers then proposed to get a report immediately ; but the purchaser refusing to submit to any delay. Lord Eldon dismissed 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 {(/). But it may be observed that there was no (&) Wynn v. Morgan, 7 Ves. 202; Eyston 5 Bea. 261 ; inf. ch. 9. 7J. Simonds, 1 Yo. & Col. C. C. 608; Lcl. (e) Keogli i'. Keogli, 13 Ir. Eq. R. 284. Stourton v. Sir Thomas Meers, 2 P. Wms. (/) Lechmere v. Brasier, 2 Ja. & Wal. 631 ; Sheffield v. Ld. Mulgi-ave, 2 Ves. j. 287 ; Dalby v. Pullen, 3 Sim. 29; 1 Rus. & 526 ; Ormerod v. Hardman, 5 Ves. 722 ; see My. 296 ; Costa v. Turner, 1 Rus. &c My. Clay V. Ruffbrd, 5 De Ge. & Sma. 784. 311 ; Magennis r. Fallon, 2 Mol. 566, 580; (c) Coffin V. Cooper, 14 Ves. 205. Chamberlains. Lee, 10 Sim. 444. {(l) Esdaile v. Stephenson, 6 Mad. 367; (g) Per Hart, L. C, 2 Mol. 560; Eraser Sidebotham v. Barrington, 4 Bea. 110; w. Wood, 8 Bea. 339. 224 ABANDONMENT BY PURCHASEE FOR DELAY. [CH. 6. S. III. proper suit in wliich to take the accounts, and the purchasers had a right to become plaintiifs, in order to obtain a title by their own dili- p-ence. 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 Avere afterwards to file a bill, 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; but although a seller file a bill to take an account in conse- quence of the opinion of the Court, yet if the purchaser seek to avoid the contract on that ground, the seller himself may controvert the necessity of the proceeding (h). 5. The general rule is, that if there is not a good title at the date of the certificate, the purchaser is entitled to be discharged (/). 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 {k). 6. Where a purchaser enters 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, althougli the time appointed for com- pleting the contract is expired, and considerable further time may be required to make a good title (/). In Seton v. Slade (?n), 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 fcAV 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 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 objections to the title, and having afterwards received the abstract, a specific performance was decreed. 7. And even where time was of the essence of the contract 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 (h) Magennis v. Fallon, 2 Mol. 5G1. Meller, 6 Ves. 349 ; Warde v. Jeffery, 4 Pri. (i) Kirwan v. Blake, 2 Mol, 581, 582; 295; Smith v. Sir T. Dolman, 6 Bro. P. C. Cowgill V. Ld, Oxmantoun, 3 Yo. & Col. 377, 291, by T. ; IIx pte. Gardner, 4 Yo. & Col. {It) 2 Mol. 582. 503 ; Wood v. Bernal, 19 Ves. 220. (0 Pincke v. Curteis, 4 Bro. C. C, 329; (m) 7 Ves. 2G5. Smith V. Burnani, 2 Ans. 527; Paine r. CH. 6. S. III.] ABANDONMENT BY PURCHASER FOR DELAY.. 225 that abstract. He ought to have refused to accept the abstract, or to have sent it back forthwith (?i). 8. And althougli the treaty may have lain dormant for some time, yet if the contract is not abandoned, a performance will be decreed in specie (^o). 9. But if a purchaser object to the title, and declare he will not complete the contract, and the vendor acquiesce in this declaration, he cannot afterwards clear up the objections to his title, and compel the purchaser to perform the agreement (;j). And if the seller do not acquiesce, he must not be guilty of unreasonable delay in filing his bill (q). Delay will not be excused on the ground that the pur- chaser had but recently brought an action for the deposit ; the party seeking a performance must show due diligence (r). Where after discussion the question is whether the vendor will or will not pro- duce a further title, the purchaser may fix a short date within which the vendor must make his election ; but of course this is at the risk of the purchaser's view turning out to be correct (s). 10. Although a time is expressly appointed, within which objec- tions are to be made to the title, it may be enlarged by tlie conduct of the seller amounting to a waiver (i'). 11. But although a piirchaser entitled to possession by the con- tract waived the time by his acts, and by parol enlarged it, yet when the further day arrived, having discovered that the seller could not for some months ' give him possession of parts of the property, he declared oft", and the seller's bill was dismissed, but without costs (u). 12. Where circumstances are such that the purchase-money cannot be paid for a length of time, as if the purchaser die, or become bank- rupt 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 {x) ; or he may demand a specific performance ; 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- («) Hipwellu. Knight, 1 Yo. &Col.401; v. Williams, 4 De Ge. Mac. & Gor. G74 ; Hoggart V. Scott, 1 Rus. & My. 293 ; Ma- Lloyd v. Wilkes, 2 Eq. R. 1081. gennis v. Fallon, 2 Mol. 576. (x) Nott v. Riccard, 26 L. T. 207. (o) Ld. Hertford v. Boore, 5 Ves. 719; (0 Cutts v. Thodey, 13 Sim. 206; sup. Milward v. Earl of Thanet, 5 Ves. 720, n. ; ch. 5. s. 5. Garrett v. Ld. Besborough, 2 Dru. & Wal. («) Nokes v. Ld. Kilmorey, 1 Do Ge. & 441. Sma. 444. (p) Guest V. Homfi-ay, 5 Ves. 818. (•^) Mackreth v. Marlar, 1 Cox, 259; 2 P. Wms. 07 ; Whitaker v. Wliitaker, 4 Bro. C. (ry) Watson v. Reid, 1 Rus. & My. 236. ^_ gj . g.^. j_ ^owther v. Ly. Andover, 1 Bro. (»•) Southcombw. Bp.ofExeter,OHa. 213; c. C. 396; Dickenson v. Heron, m/. ch. Gordon v. Mahony, 13 Jr. Eq. R. 383 ; Eads 17. s. 1 . 226 TIME THE ESSENCE OF CONTRACT IN EQUITY. [CH. 6. P. III. money, that the defendant may pay the deficiency (?/). In Wright V. Wellesley (r), 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 Avas due, Avhich was regularly demanded, but not paid. The plaintiff, the seller, presented a petition, which came on with the further direc- tions, praying the sale of the property, in consequence of the pur- chaser's default. It was objected that this could not be done ; and that at all events a supplemental bill was necessary ; but the Vice- Chan ccllor made the order as prayed for : as the defendant had evaded the decree of the Court, he Avould give the relief required by the new state of circumstances, and he thought that the petition was ren-ularly presented. In another case, where an estate was sold by auction, in order to pay off incumbrances, under the usual conditions, and the purchase was to be completed on the 25th of March 1805, the estate was sold for 123,000 /. and the purchaser paid only 4,000 /. as a deposit when he ought to have paid 24,000 /. A short time pre- viously to Lady-day he wrote a letter to the vendors, acknowledging 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 sjiecific 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 vendors, in payment of the auction-diity, &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 («). 13. It was, at one time, a considerable question, whether equity would permit parties to make time the essence of the contract (6). But it is now settled that if It clearh/ appears to he the intention of the j)arties to an agreement, that time shall be deemed of the essence of the contract, it must be so considered in equity (c). (?y) Bowles v. Rog-ers, 6 Ves. 95; Roine 331; Newl. Cont. 238; Reg. Lib. B. 1781, V. Young, 3 Yo. & Col. 199; Duke of Beau- fo. 5(34, a title could not be made -without a fort w. Phillips, 1 De Ge. & Sma. 321 ; Pop- decree ; Gregson v. Riddle, 7 Ves. 208. pie V. Henson, 5 De Ge. & Sma. 318. (I) {c) Seton v. Slade, 7 Ves. 2C>r>; Lewis r. (z) V.C. 26 Feb. 1833, MS. Ld. Lechmere, 10 Mod. 503; 3 Ves. 093;- (a) Steadman v. Ld. Galloway, et e con- 12 Ves. 333 ; 13 Ves. 289; 2 Mer. 140; Levj' tra Rolls, 9 Feb. 1808, MS. v. Lindo, 3 Mer. 81 ; Warde v. JefFery, 4 Pri. . {b) Williams v. Tliompson, 4 Bro. C. C.' 294; Hunter r. Daniel, 4 Ha. 420; Hudson (I) The report does not state the inability to pay for the estate. en. 6. S. ITT.] TIME NOT THE ESSENCE. NOTICE. 227 14. Where the property was a public-house with possessiou, and the purchaser was bound to an uumcdiatc completion by strict con- ditions, by one of which in favour of the seller, time was made of the essence of the contract, the seller not having his title made ouf satis- factorily at the time fixed for completion of the sale, his bill against the purchaser was dismissed (d). 15. 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 cohtract ; but if either ]iarty 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 ; but a reasonable time must be allowed (e). In Reynolds v. Nelson (/), where the purchaser was in possession as tenant, the seller's notice was, that if the purchaser made defiiult 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 ob- served, that although it might now be considered as the settled doc- trine 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 avIII be so considered, and in this case he might leave that point luitouched. The notice given was not that the seller would consider the contract at an end if it was not completed within the time, and whether be would act as if the con- tract were abandoned, or would act by filing a bill for a specific per- formance, he left wholly in doubt; and it was to be observed, that he neither returned nor tendered the deposit which he had received. The usual reference as to the title was therefore made. It may be observed, that the time allowed in this case by the notice was too short, being only three days ; but Avhcre 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 disregarded, may not revive the purchaser's right to recover. The general operation of such a notice is now settled (^). V. Bartram, 3 Mad. 440; Bochm v. Wood, v. Tlioroldj IG Bca. 59. IJa. feVV^al. 419; Williams u. Edwards, (/) 6 Mad. 18. 2 Sim. 78; Lloyd v. Rippingale, 1 Yo. & ((/) Taylor v. Brown, 2 Bca. 180; King Col. 41 ; llipwell u. Kniglit, 1 Yo. & Col. v. Wilson, G Bea. 1 24 ; IIeai)hy v. Hill, 2 Sim. 41G; Parkin v. Thorold, 2 Sim., N. S., 1. fc Stu. 29; Gordon v. Mahony, 13 Ir. Eq. (r/) Seaton v. Mapp, 2 Col. .^.50, S2ip. II. 404 ; M organ v. Gurley, 1 Ir. Ch. R. 482 ; (0 Peggr.AVisden, lGBea.239; Parkin Macbride r. Weekcs, 2 Jur., N. S., 918. ' r 2 228 TIME NOT THE ESSENCE. [CH. 6. S. III. IG. Even Avhere time was not made of the essence of the contract, but the abstract was to be delivered in ten days, and the purchase completed in three months —the days being named^and the pur- chasei'»Avas diligent, but a settlement could not be found ; eight days before the time expired, the seller being pressed, said that he only wanted time to find the settlement, and that he believed he had found out where it was, and the purchaser four days afterwards (four days before the expiration of the three months) gave the seller notice that he should consider the contract at an end, unless the settlement was produced and the purchase completed by the 5th November — eleven days beyond the three months, which expired on the 25th October — on the 7th November the deposit was applied for ; on the 8th the purchaser was informed that the settlement was found, and would be produced in a few days ; on the 9th the purchaser's solicitor demanded the deposit, or threatened an action ; and on the 8th January the purchaser was informed where the settlement was, and that it might be inspected, but the purchaser had continued to insist on the return of the deposit; it was held, that the seller was not entitled to enforce the contract in equity, any more than at laAV (h). This case led to a great difference of opinion. Lord Cranworth, V. C, followed the rule of law, and held that the time was as binding in this case in equity as at law, and therefore dissolved the injunction against the seller's proceeding with an action for the deposit. He did not lay it down in words that time was In this case of the essence of the con- tract, but In effect he so decided. The case came on for hearing before Sir John Romilly, M. R., who held that time was not under the contract of the essence of it, and even if it were, yet that the purchaser had waived It by his extending the time till the 5th November. That this was not a conditional waiver, nor was it so accepted by the seller. Assuming that time was not of the essence of the contract, he held that the notice for the 5th November was for too short a period, and did not bind the seller to complete by that day, and that the seller had not acquiesced In the notice, nor been guilty of laches, and a specific performance was decreed with costs (i). This, in substance, appears to be the true view of the case ; but the opinion of the Vice-Chancellor on the voluntary extension of the time seems to be right ; for it can hardly be contended that. If time he of the essence of the contract, an extension of it by one party for the convenience of the other can be considered operative beyond the further day named. 1^^/^ /y/ A- 17. In a later case at the llolls (A), which came on upon a demurrer to the seller's bill, time was not deemed essential in a case more diffi- cult to manage ; for days were named for the delivery of the abstract (h) Parkin v. Thorold, 2 Sim., N. S., 1. (7;) Roborts v. Berry, 16 Bea. 31. (t) 10 Bca. 59; Veg'^v. Wisdcn, id. 23!). CH. 6. S. III.] WHERE NO TIME IS FIXED, 229 and for completion of the purchase, and for ol)jections to be sent In, ^ or they were to be held to be waived, and the purchase was to be -^^w^^'*^/^^ completed within seventeen days from the sale : the abstract was to be delivered within seven days, and objections within eight days after- wards, or to be deemed waived ; but although applied for In time, the abstract was not delivered till five days later than the day named, which was five days only before the time appointed for completion. And this case was considered to be similar to and governed by the decision at the Rolls in the former cas3. It deserved consideration whether, Avhere the time for completion is so short, and successive days necessarily at short intervals are named for the acts to be done, the time ought not, by Implication, to be deemed of the essence of the contract. If the seller had delivered his absti-act by the day named, it would seem that the purchaser Avould have been bound to have taken the title as it stood if he had not delivered his objections within the eight days allowed to him by the contract. And of course In these cases there should be niutuality. The decision has, how- ever, been affirmed by the liords Justices ; and Lord Justice Turner thought that the allegation that the delivery of the abstract Avas pre- vented by the accidental absence of the mortgagee on the Continent, made a case for relief on the ground of accident (7). It Avould not, hoAvever, be safe to rely upon such a ground In similar cases. The decision, of course, depended solely on the statements in the bill. 18. A condition stipulating that the time appointed after the de- livery of an abstract, for the taking of objections, shall be of the essence /y^ /^/j of the contract, means after the delivery of a perfect abstract im). ^ 19. Where time from the nature of the contract is essential, and it is disputed that the title Avas made Avlthln the stipulated time, it Avill be referred to chambers to Inquire Avlien it Avas first shoAvn a good title could be made Avithout prejudice to any question In the cause (n). 20. Although time be made of the essence of the contract, yet the condition may be Avaived, just as in an ordinary case ; but if the purchase-money is to be paid by Instalments, each breach in non- payment Is a ncAV breach of the agreement, and gives to the seller a right to rescind the contract, but that right should be asserted the moment the breach occurs (o). 21. It remains to observe, that where no tijne is limited for the per- formance of the agreement, the cases considered under the first divi- sion in this chapter Avill assist the student in forming a judgment in what instances equity will assist a party Avho has been guilty of laches, although every case of this nature must in a great measure depend upon Its oAvn particular circumstances. The cases classed . (/) 3 De Ge. Mac. & Gor. 284, («) Foxlowe v. Amcoats, 3Bea.496. {in) Ilobson v. Bell, 2 Bea. 17 ; Ciitts v. (o) Hunter v. Daniel, 4 Ha. 420; Monro Thodey, 13 Sim. 206. v. Taylor, 8 Ha. 02; 3 Mac. k Gor. 713. p3 230- OF AN UNREASONABLE TRICE. [cn. luider the second division ap|)]y, however, with greater force to cases where no time is limited than to those wliere a day is fixed, for in the former cases, the Com-t has not to struggle against an express stipulation of the parties {j)). i.p) Tyrer v. Artiugstall, Newl. Cont. 23G; Benson v. Lamb, 9 Bea. 502 ; Wood u, Reg. Lib. 1792, fo. 28, nom. Tyrer v. Bailey ; Machee, 5 Ha. 158. CHAPTER VII. OF TUE CONSIDERATION. SECTION I. OF UNREASONABLE AND INADEQUATE CONSIDERATIONS. Unreasonable jti'ice, yet specific jjcr- /ormance. Unless there he fraud or concealment. Or there is gross inadequacy — Fall in value immaterial. Purchaser seldom relieved after convey- ance. Inadequacy if price no bar — Bale by auction. Life annuity. Concealment by purchaser. Misrepresentation by j)urchaser. Both parties ignorant of value. Seller seldom relieved ofter conveyance : gross inadequacy. Unless ignorant of right, and jmrcliaser aware of it — Or advantage taken of distress — Additional consideration of love and affection. Heir dealing for expectancy favoured. Although unprovided for. Purchaser to jjrove adequacy. Dealings between father and son. Sellers of reversions not heirs — Bulk of estate sold reversionary. Loan under mask of trading : King v. Hamlet. Where sale of reversion valid— -Gotc- land V. De Faria : value by the tables, and market price. Evidence of surveyor's. Sale by auction valid — Or where person in possession joins. Where contingency cannot be valued. Mis-statement of consideration. Hoiv adequacy to be shown. Delay and confirmation. Sale set aside, upon ichat terms. Improvements allowed for. Price to be fixed by arbitrators — Cannot delegate authority. Where Court will fix the price. Not v^here parties chosen — Umpire. Appointment to be communicated. Failure by arbitration : death — Nomi- nation of arbitrator cannot be com- pelled. Where award after death of party bind- ing. Acquiescence in informal award — In- junction refused, ivhere authority re- voked. Statutory aids to arbitraments. Right to ap2)oint new arbitrators. Right to appoint an umjjire. Attachment : action. 1. Equity cannot refuse to assist a vendor merely on account of the price being unreasonable («) : a specific performance will cer- (a) City of London i\ Richmond, 3. Ver 421 ■ Hanger v. Eyles, 2 Eq. Ca. Ab. 689 Hicks V. Pliilips, Pre. C. 675 ; 21 Viii. Ab (E), n. to pi. 1 ; Keen v. Stukeley, Gilb, Eq R. 155; 2 Bro. P. C. 39G; Charles r. An drews, 9 Mod. 151 ; Lewis v. Ld. Lechmere, 10 Mod. 50;}; Saville v. Saville, 1 P. Wins. 745 ; Adams v. Weare, 1 Bro. C. C. 507 ^ and the cases, as to inadequacy of price, cited ijf. CH. 7. S. I.] OF AN INADEQUATE CONSIDERATION. 231 tainly be enforced, it' the price was reasonable at the time the contract was made, how disproportionable soever it may afterwards become. 2. If, however, a man be induced to give an unreasonable price for an estate, by the fraud {h), or gross misrepresentation (c), of the vendor ; or by an industrious concealment of a defect in the estate {(I), equity will not compel him to perform the contract. 3. And where these circumstances do not a})pear, but the estate is a grossly inadequate consideration for the purchase-money, equity will not relieve either party {e). 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 con- tract be not performed by the vendor, according to the letter in every res})ect, equity will not interfere (/). But a purchaser will be compelled to complete 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 (^). 4. There are few cases in which a purchaser could be relieved after the conveyance is executed and the purchase completed, on ac- count of the unreasonable price (/< ). ' • 5. Mere inadequacy of price is not a suthcient ground for a o^owxi^w^ //^ of equity to refuse its assistance to a purchaser (/), particularly where the estate is sold by auction (A), 6. But if an uncertain consideration (as a life-annuity) be given for an estate, and the contract be executoiy, equity it seems Avill enter into the adequacy of the consideration (/) ; but where the life has not dropped, the consideration will not be strictly weighed {pi). If the life has dropped before the purchase, the purchaser may be relieved, although he has paid the purchase-money in ignorance of the event ; but if the purchase take effect during the existence of the annuity, though but for an instant, the purchaser cannot be relieved {ii). 7. Although a purchaser is not bound to acquaint the vendor with (6) James u. Morgan, 1 Lev. Ill, a case 279; Mortloek v. Buller, 10 Ves. 292; at law; Conway v. .Shriinptun, 5 Bro. P. Lowther v. Lowtlier, 13 Ves. 95; Western C. by Tom. 187. v. Russell, 3 Ves. & Be. 187 ; Pike v. Vigers, (c) Buxton w. Cooper, 3 Atk. 383. 2 Dru. & Wal. 1 ; 2 Ha. 450; Abbott w. ((/) Shirley v. Stratton, 1 Bro. C. C. 440. Sworder, 4 De Ge. & Sma. 448. (e) Day v. Newman, 2 Cox, 77 ; 10 Ves. (]i) White v. Damon, 7 Ves. 30; Collet 300, cited; Squire v. Baker, 5 Vin. Ab. r. WooUaston, 3 Bro. C. C. 228; Ex ptc. 649, pi. 12. Latham, 7 Ves. 35, note. (/) Cases cited hi n. («), ante ; Edwards {V) Pope v. Roots, 7 Bro, P. C. 184 ; V. Heather, Sel. C. C. 3. Mortimer v. Capper, 1 Bro. C. C. 156 ; {g) Poole V. Shergold, 2 Bro, C. C, 118. Jackson v. Lever, 3 Bro. C. C. G05 ; Kenney (ft) Sup. eh. 5, s. 5, v. Wexham, 6 Mad. 355 ; Davies v. Cooper, (i) Coles V. Trecothick, 9 Ves. 234 ; Bur- 5 My. & Cra. 270. rowes V. Lock, 10 Ves. 470 ; Young v. (m) Bower v. Cooper, 2 Ha. 408. Clerk, Pre. C. 538 ; Barrett v. Gomeserra, (n) Strickland v. Turner, 7 Ex. 208 ; Bun. 94; Underwood v. llithcox, 1 Ves. Hastie y. Couturier, 9 Ex. 109. r4 232 OF AN INADEQUATE CONSIDERATION. [CIL 7. 6.1. any latent advantag-e in the estate (o), yet any concealment, for the purpose of obtahiing an estate at a grossly inadequate price, may be deemed fraudulent. In the case of Deane v. Eastron {p), an agree- ment was made for sale of land at a halfpenny per square yard. The price was in all about 500/., the real value 2,000 Z. 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, and then prevailed on him to sign it immediately. The desire of concealment was held to be such a fraud as to void the transaction. 8. 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 (q). And where a man was an habitual drunkard, and was labouring under delirium tremens and dropsy, Avhich was Avell known to the purchaser, although the man believed himself to be a good life, a contract by him about six months before his death to sell a property consisting of a contingent rever- sionary interest in a money fund, and of the equity of redemption of an estate in possession heavily mortgaged, for an annuity for his own life, was set aside after his death, with costs (?■). 9. So a misrepresentation by the purchaser, who was the agent of the seller, of the value of the estate, although it operated 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 (5). 10. "Where neither of the parties knows the value of the estate, at the time the contract is entered into, no inadequacy of consideration will operate as a bar to the aid of equity in favour of the purchaser ; as where the sale was of a right of common before any allotment {t). 11. But, whether an estate is sold by auction, or by private agree- ment, 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 (u) ; especially if the seller be a trus- tee for sale (.r). 12. A conveyance executed Avill not, however, be easily set aside (0) 2 Bro. C. C. 420. (t) Anon. 1 Bro. C. C. 158 ; 6 Ves. 24 ; (p) 1 Ans. G4 ; Young r. Clerk, Pre. C. but see 2 Atk. 134. 538; Lukey v. O'Donnell, 2 Sch. & Lef. (u) Whorwood v. Simpson, 2 Vcr. 186; 4GG ; Ryle v. Swindells, M'Clel. 510, where Emery v. Wasc, 5 Ves. 846; 8 Ves. 505; the purchaser could have reduced the pur- Twining v. Morris, 2 Bro. C. C. 326 ; cases chase-money; Cockellr. Taylor, 15 Bea. 115. cited in n. (a), supra; Mortlock r. Buller, {(}) Turner D. Harvey, J ac. 169; Brealey 10 Ves. 292; Maddeford v. Austwick, 1 i: CoUins, Yo. 317 ; siip. ch. 5, s. 5. Sim. 89 ; 1 Mol. 335. (r) Davies v. Cooper, 5 My. & Cra. 270. (x) Goodwin i;. Fielding, 4 De Ge. Mac. (s) Cadman t'. Horner, 18 Ves. 10; Wall & Gor. 90, V. Stubbs, 1 3Iad. 80. OIL 7. S. I.] OF SALES OF IIEVERSIONAKY INTEllESTS. 233 on account of the inadequacy of tlic consideration {y). It is not suffi- cient to suggest weakness and indiscretion in one of the parties ; for supposing it to be an unconscionable bargain, if a person will enter into it with his eyes open, equity will not relieve him, unless he can .//^ J7//- show fraud in the party contracting with him, or some undue means made use of to draw him into such agreement {z). To set aside a con- veyance, there must be an inequality so strong, gross, and manifest, that it must be impossible to state it to a man of common sense, Avithout producing an exclamation at the inequality of it (a). The Court proceeds on fraud ; but the basis must be gross inequality in the contract {h). There should always be 'professional aid on each side, but if a seller refuses to employ an attorney and the transaction y^ is a fair one, it cannot be set aside upon mere inadequacy (c). y^ir/: Z^/4^- 13. 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 (d). So if advantage is taken of the distress of the vendor, the sale will be set aside (e), although the purchaser may really be put to great hazard in law-suits about the estate (/). But an in- adequate pecuniary consideration may be aided by a bona fide con- sideration of natural love and affection (^). 14. Cases of reversionary interests, especially where an heir is the vendor, depend upon peculiar principles {]i). Every case of this nature must, however, depend on its own circumstances ; the Courts profess not to lay down any particular rules, lest devices should be framed to evade them (f). (?/) Dews V. Brandt, Sel. C. C. 7 ; B. P. C. C. 17G, n. ; Gould v. Okenden, 4 Bro. P. 1728 ; Hamilton v. Clements, D. P. 17GG; C. by T. 193 ; Farguson r. Maitland, Rud. Small V. Attwood, Yo. 407. Law and Eq. p. 80, pi. 1 ; Pickett v. Loggon, {z) Willis V. Jernegan, 2 Atk. 251. 14 Ves. 215; IM array v. Palmer, 2 Sch. & (rt) Gwynno v. Ileaton, 1 Bro. C. C. 1 ; Lef. 474; Boweni'. Kirwan,Rep. t. Sugd. 47. Stephens v. Bateman, 1 Bro. C. C. 22; (/) Gordon tj. Crawford, Rud. L. and Eq. Floycr v. Shcrard, Amb. 18; Heathcotc v. p. 02; D. P. 1730. Paignon, 2 Bro. C. C. 167; Spratley v. (g) Wlialley r. Whalley,3Bli.l; Macneill Griffiths, 2 Bro. C. C. 179, n.; Low ?;. Bar- u. Cahill, 2 Bli. 228 ; Sugd. H. of L. 585, 588. chard, 8 Ves. 133; Underbill v. Ilorwood, (h) 9 Ves. 243; 2 Pow. Cont. 181; 3 10 Ves. 209; 14 Ves. 28; Verner v. Win- Wooddes. 460, s. 7; Gilb. Lex Prsc. 291; 1 Stanley, 2 Sch, & Lef. 393; MacGhee v. Trea. Eq. c. 11, s. 12, and n. ; 1 Bro. C. C. Morgan, Bruce v. Rogers, lb, 395; Darley 10; Nott v. Hill, 1 Ver. 167; 2 Vcr. 27} V. Singleton, Wight. 25; Evans v. Brown, Berney r. Pitt, 2 Ver. 1 4 ; Ld. Ardglasse v. ib. 102; Expte. Thistlewood, 1 Ro. 290; Muschamp, 1 Ver. 237; Twislcton v. Grif- Meredith v. Saunders, 2 Dow, 514. fith, 1 P. Wms. 310; Cur^vyn v. JMilner, 3 {b) Gartside v. Isherwood, 1 Bro. C. C. P. Wms. 293, n. ; Sir John Barnardiston v. 558; Stilwell v. Wilkins, Jac. 280. Lingood, 2 Atk. 133; Baugh v. Price, 1 (c) Harrison v. Guest, 27 L. T. 208 : the Wils. 320; Gwynno v. Heaton, 1 Bro. C. C. consideration partly in board and lodging; 1 ; Bernal v. Donegal, 3 Dow, 133 ; Blake- revcrscd 2 -Jur., N. S., 911. 9J^£ Cc*^ ^^1 ney v. Bagott, 3 Bli. N. S. 237 ; Sir J. Bar- {(l) Evans v. Llewellyn, 2 Bro. C. C. 150 ; nardiston v. Lingood, 2 Atk. 133. Sturgo r. Sturge, 12 Bea. 229. (0 Colo v. Gibbons, 3 P. Wms. 290; (e) Hcrne r. Meers, 1 Ver. 465; 1 Bro. Bar. C. R. G. 234 OP SALES OF REVERSIONARr INTERESTS. [CU. 7. S. I. 15. The circumstance of the heir being unj)rovidecl for, will not prevail much in the purchaser's favour : the remoteness or uncertainty of the interest is not material, if the terms be unreasonable, nor can much stress be laid ujoon the purchaser incurring the risk of the loss of his money, in case the heir die before he come into possession ; neither will the acquiescence of the seller during the continuance of the same situation in wliich he entered into the contract prejudice him (A). 16. The adequacy of the consideration is considered with reference to the time of the contract and not to the event, and the burden lies on the purchaser in these cases to show th?tt a full consideration was paid (I) ; although the Court may direct an inquiry as to the value, if it think fit (m). i/^S/^ ^ 17. But transactions between a father and son are treated as family ^/f ^ arrangements, and not as dealings for reversionary interests ; a fair arrangement between them would be supported, although made by a third party with a fraudulent intention of benefiting himself {n). 18. 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). 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). 19. 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 {rj). In the case of King v. Hamlet, the heir was not relieved, although after a treaty for a loan, goods to the 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 I. in money, carrying five per cent, interest from 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 Avay 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 (/«) Gowland v. De Faiia, 17 Ves. 120; (n) Ld. Aldborough v. Trye, 7 Cla. & sup. ch. 5, s. 5. Fin. 45G ; Bellamy v. Sabine, 2 Phil. 425 ; (0 S. C. ; Evans r. Griffith, Farmer v. Baker v. Bradley, 2 Sma. & Glif. 531, re- Wardell, 17 Ves. 24; Medlicott ?;. O'Donel, versed, 26 L. T. IGOj^. Wright v. Vander- 1 Bal. & Be. 136; Kendal?;. Beckett, 2 Rus. i)lank, 2 Ka. & Jo. 1'; 2 Jm-., N. S., 599; & My. 88; Addis v. Campbell, 1 Bea. 258; llartopp v. Hartopp, 2 Jur., N. S., 794. Edwards v. Bm*t, 2 De Ge. Mac. & Gor. 55 ; (o) Wiseman v. Beake, 2 Ver. 121 ; Cole Kingt;.Savery,lSma.&Gif.271; Aff.D.P.; v. Gibbons, 3 P. Wms. 290; Bawtrce v. Dirasdale w. Dimsdale, 3 Drew. 530; Har- Watson, 3 My. & Ke. 339; Davies ». Cooper, topp V. Hartopp, 21 Bea. 259. 5 My. & Cra. 270; Woodroffc v. Allen, 1 (rn) Heron v. Heron, 2 Atk. 160; Twed- Hay.&Jo.73; Sewclk\WaIker,12Jiir.]041. dell V. Tweddell, Tur. & Rus. 1 ; Wallace v. (j)) Ld. Portmore v. Taylor, 4 Sim. 182. Wallace, 2 Dru, & War. 452. {q) Barker t'.Vausommer, 1 Bro. C. C. 149. CII. 7. S. I.] OP SALES OF REVERSIONAEY INTERESTS. 235 per cent, upon the transaction (?•). This case was decided upon grounds which may not be deemed satisfactory. 20. A bond jide sale of a reversionary estate cannot be set aside, whether the vendor be an heir or not {s), unless fraud or imposition be expressly proved, or be implied from the inadequacy of the consi- deration, or other circumstances attending the sale it.) ; and although in the case of Gowland v. De Faria it was deemed sufficient to avoid the contract (^^), that the consideration was not equal to the calcu- lated value in the tables, yet that is not now the law of the Court {x). In a late case in the House of Lords {y) the avithorities were re- viewed, and it was ruled that the question should be, Was the fair i/^/^ * market price given ? In a later case (r) the Court of Appeal, reversing ^^^- ^°^ a decree of Lord Langdale's, set aside sales of reversionary interests upon evidence which renders such purchases very insecure. The opinion of an actuary Avas deemed unsatisfactory. But the Court observed, if previously to the sale of a reversionary interest, the vendor and purchaser concur in ascertaining from persons of compe- tent skill, and having knowledge of the property, and of all the circumstances likely to influence value, a well-considered estimate of what the property Avould be likely to fetch on a sale, and act on that opinion, they were far from meaning to decide that such a transac- tion could be afterwards impeached merely because other surveyors should come to a conclusion different from that on which the parties had acted. The Court Avould probably in such a case be much in- clined, as a matter of fact, to believe the original and not the subse- quent estimate to be correct. Now no private sale could probably be made under the required conditions, and indeed the evidence in this very case of the two witnesses for the plaintiff showed how impossible it would have been to purchase under their advice, and even a pur- chase so completed received no countenance from the Court. This is much to be regretted. 21. 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 (r) 4Sim. 231; '2My. &Ke. 45G; Sugd. (x) Peacock v. Evans, 16 Ves. 512; H. of L. 65; 3 Cla. & Fin. 218. Scott v. Dunbar, 1 Mol. 458; Hiucksman (s) Dews V. Brandt, Sel. C. C. 8 ; 1 Bi'o. v. Smith, 3 Russ. 433 ; Headen v. Rosher, C.C.G; WoodrofFe ?j. Allen, 1 Hay. & Jo. 73. 1 M'Clel. & Yo. 89; Potts v. Ciu-tis, Yo. (t) Nicols V. Gould, 2 Ves. 422 ; Gwynne 543 ; Newton v. Hunt, 5 Sim. 511 ; Wardle V. Heaton, 1 Bro. C. C. 1 ; Peacock v. Evans, v. Carter, 7 Sim. 490. 16 Ves. 512; Ryle v. Brown, 13 Pri. 758; (y) Ld. Aldborough v. Trye, 7 Cla. & Lord Portmore v. Taylor, 4 Sim. 182. Fin. 436; Ryle v. Swindells, M'Clel. 519; (m) Gowland v. De Faria, 17 Ves. 20; consider Edwards v. Brown, 2 Col. 100. E.T jwfe. Thistlewood, 1 Ro. 290; Ld. Port- (:) Edwards v. Burt, 2 De Ge. Mac. &, more v. Taylor, 4 Sim. 182 ; Whichcote v, Gor. 55. Bramston, ib. 202, u. 236 SALES OF REVERSIONS, BY AUCTION, &C. [CII. 7. S. I. the party on whose behalf the evidence is given, that he placed very little reliance upon evidence of this nature (a). 22. The rule in favour of the expectant heir cannot be applied to sales of reversion by auction {b). But 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 (c). Neither does the rule 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 {d) ; unless the son has a distinct ground of relief (e). So Avhere 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 su))ported, 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 rentchai'ge of 500 /. n year in possession {f), >So the case of a mere expectant, entirely without present enjoyment, differs from the case of a man in possession, and who having the rents, 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 Avith any ordinary transaction : one having the absolute dominion is not bound to wait luitil 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 protected in this way {g). 23. A contingency of marrying and having issue is not the subject of calculation (Ji) ; but it must not 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 ; for the Court will inquire into the value of such an interest (z). In one case (Ji), where a reversionary interest depended on a contingency of a death without children attaining twenty-one. of a married woman thirty-five years of age, who had been married eight years without issue, the Court valued the interest as unaffected by the contingency, as the parties did not appear to have attached any importance to the contingency. 24. The practice has been condemned of signing an attestation of payment of the purchase-money, Avhere no money passes (/). But a mere mis-statement of the consideration would not in itself be suffi- (fl) Yo. 491 3 CockcU v. Taylor, 15 Bea, {fj) Scott v. Dunbar, 1 Mol. 459. 103. (/«) Baker v. Beat, 1 Rus. & My. 224; {h) Hhelly v. Nash, 3 Mad. 232 ; Fox v. Sherwood v. Robins, 1 Moo. & Mai. 194 ; Wri^dit, G Mad. Ill ; 7 Cla. & Fin. 4G0. Sibbering v. Ld. Balcarras, 3 De Ge. &; (c) Newton v. Hunt, 5 Sim. 51). Sma. 735. {d) Wood V. Abrey, 3 Mad. 417; Cooke (i) Boothby v. Boothby, 1 Mac. & Gor. V. Burtchacll, 2 Dru. & War. 1G5. G04 ; 3 De Ge. Mac. & Gor. 212 ; Drought (e) King v. Savery, 1 Sma. & Gif. 271 ; v. Eustace, I Mol. 328. AfF. D. P. {k) Davies v. Cooiier, 5 My. & Cra. 274, (/) Wavdle v. Carter, 7 Sim. 490. {I) 1 Mol. 339. CH. 7. S. I.] OF PRICE FIXED BY ARBITRATION. 237 cient to vitiate a contract. False statements must, however, have great weight, and there may be cases where a false statement of itself may destroy the Avhole transaction (m). 25. We have no certain rnle by which the inadequacy of a consi- deration can be ascertained. Our law, indeed, hath in one instance [n) 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 (o). 26. If a bill for relief be delayed for a great length of time (p), which may not be ruled by the statute of limitations ((j), or the vendor, with full notice of all the circumstances, and of his right to set aside the contract, confirm the purchase (r), equity will not relieve against the sale, although the aid of the Court could not originally have been withheld. 27. Where a sale is set aside on account of the inadequacy of the consideration, it is upon the principle of redemption, and the convey- ance will stand as a security for the principal and interest, and even .^Z^ Z^y costs {s) ; but not the costs of an unnecessary reference as to value (^), and compound interest will not be allowed, however long the purchaser has been kept out of his money {ii). In a case, where interest had been paid on the purchase-money, the payments were considered to be of principal and not interest, and the seller was charged with interest on all the smns received by him, Avhether re- ceived as interest or as principal (u). 28. So the purchaser Avill be allowed for lasting and valuable improvements, and will not, like a mortgagee, be charged with what without wilful defiiult he might have made (i). '/ 29. 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. By the (m) Bowen v. Kirwan, Llo. & Go. t. S. v. Royal, 12 Ves. 355; Roche v. O'Brien, GG, G7 ; Gibson v. Russell, 2 Yo. & Col. C. 1 Bal. & Bo. 330 ; sup. eh. 5, s. 5. C. 104; Ahearne v. Hogan, Dru. 310. {s) Tvvisleton v. Griffith, 1 P. Wms. 310 ; (w) Duke, 177 ; wf. ch. 23 ; Baldwin v. Gwynne v. Heaton, 1 Bro. C. C. 1 ; Peacock Rochlbrt, 2 Ves. 517. v. Evans, 16 Ves. 512; Bowes v. Heaps, 3 (o) Nott V. Hill, 2 Cha, Ca. 120; 1 Ves. & Be. 117; but see Nicols r. Gould, Trea. Eq. 119; Grotius de Jure Belli ac 2 Ves. 423; Baugh v. Price, 1 Wils. 320; Pacts, L. 2, c. 12, s. 12. Gowland v. De Faria, 17 Ves. 20; Morony (/?) Moth V. Atwood, 5 Ves. 845; but v. O'Dea, 1 Bal. & Be. 109; Hilliard v. see Roche v. O'Brien, 1 Bal. & Be. 330. Gambel, Tarn. 375, n.; Wood v. Abrey, 3 {q) Sibbering v. Ld. Balcarras, 3 De Ge. Mad. 417 ; Bawtree v. Watson, 3 My. & & Sma. 735 ; the conveyance of 1823 seems Ke. 339. to have been a clear bar to the relief. (0 Boothby v. Boothby, 15 Bea. 212, (;•) Cole V. Gibbons, 3 P. Wms. 290; {u) Gowland r. De Faria, 17 Ves. 20. Chesterfield v. .Tanssen, 1 Atk. 301 ; 2 Ves. {v) Murray v. Palmer, 2 Sch. & Lef. 474 ; 549 ; Baugh v. Price, 1 Wils. 320 ; Morse ch. 5, s. 5. (.r) S. C. 238 OP PRICE FIXED BY ARBITRATION. [ciI. 7. S. I. civil law, also, a price was considered sufficientl}'^ certain, if it was to be fixed by a person named, and such person accordingly fixed the sum : but it appears by the Institutes (y), Inter veteres satis ahundeque hoc dnhitatur, constaretne venditin, an noji. But if the referee do not act fiiirly, or a valuation be not carefully made, execution of the contract will not be compelled; especially if there be any other o-round upon which the Court can fasten, as a bar to its aid (z). But o-enerally speaking, the question is not what is the real value, for the parties have made the arbitrator their judge in that point (a). The arbitrators may take the opinion of a third person as evidence, but they cannot merely delegate their authority (i). 30. If an agreement be made to sell at a fair valuation, the Court will execute it although the value is not fixed (c). So in the cases under railway acts(f/). And it is no oljjection where the price of the land, &c. is fixed, that the plant, machinery, or fixtures are to be taken at a valuation (('). 31. But Avherc parties agree upon a specific mode of valuation, as by two persons, one chosen by each, or by an arbitrator named, or by arbitration or a jury, unless the price is fixed in the way pointed 46r\t^CjO out, the Court cannot enforce the performance of the agreement (/) (I). An umpire must be chosen ; a nomination by chance or lot is wrong, and the clerks of the attorneys are not competent to bind their prin- cipals and the parties by a consent to a nomination by lot ((7). And the arbitrators should sign at the same place and time, and not at different times and places (A). 32. Although the agreement be simply that each party shall appoint a referee by a given day, yet the nomination is not complete imless the appointment is communicated to the other party within the time {i). (y) III. 24. 1, vide Vinnius, G74. (e) Jackson v. Jackson, 1 Sma. & Gif. 184. (z) Emery r. Wase, 5 Ves. 34G ; 8 Ves. (/) Milnesu. Gery, 14 Ves.400; Gregory 505; Hall??. Warren, 9 Ves. G05; Gourlay r. Migliell, 18 Ves. 328 ; Gourlaj w.; Duke V. Duke of Somerset, 19 Ves. 429. of Somerset, 19 Ves. 429 ; Morgan v.. Mil- («) Belchier v. Reynolds, 2 Ld. Ken. 2d man, 3 De Ge. Mac. & Gor. 24 ; Cooth v. part, 91. Jackson, G Ves. 34; Pritchard v. Ovey, 1 (6) Hopcroft V. Hickman, 2 Sim. & Stu. Ja. & Wal. 39G. 130; Anderson u. Wallace, 3 Cla. & Fin. 2G. {(/) Greenwood v. Titterington, 9 Ad. &; (c) 14 Ves. 407 ; 3 De Ge. Mac. & Gor. El. G99. 34 ; see Northampton Gas L. Co. v. Parncll, (/;) V^ade v. Dowling, 4 E. & B. 44. 15 C. B. G30. (0 Tew v. Harris, 11 Q. B. 7; oven this (rf) Walker v. East. C. Ry. Co. G Ha. construction would not effect in many cases 594 ; see Morgan v. Milman, 3 Do Ge. the object which the Court had in view ; Mac. & Gor. 24; 10 Ha. 279. Thomas v. Fredericks, 10 Q. B. 775. (I) The same ride is adopted in the Code Napoleon, Code Civil, liv. 3, tit. G, ch. 1, s. 1592. After stating that the price ought to bo fixed by the parties, it adds, " 11 pent cependant etre laisse u I'ai'bitrage d'un tiers : si le tiers ne veut ou no pent fairc I'estima- tion, il n'y a point de vente." CH. 7» S. I.] ACQUIESCENCE, &C. NEW POWERS. 239 33. If the instrument assume that tlie award vsliall 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 (A). So if the arbitrators are named, and one party refuses to execute the arbitration bond, as it is not certain that any award will ever be made, equity will not interfere (Z) (I). So that neither of the parties to such an agreement can bo compelled to nominate an arbitrator under the agreement (??i) ; but an action will lie for a refusal to refer according to a contract (w). 34. But where the seller and purchaser mutually agreed 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 executors, ike, 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 representatives, and not an authority to be determined by their deaths (o). 35. A party may bind himself by acquiescing in an award not made in the manner required (y^). And if the seller prevent the valuation from being made by referees named, he will not be allowed to avail himself of his own wrong. The Court would compel him to permit tlie valuation to be made according to the contract () Mortimer v. Capper, 1 Bro.C.C. 15G; (?•) Davies v. Cooper, 5 My. & Cra.270; 3 Bro. C. C. 009; Wyvill v. Bp. of Exeter, Holman v. Loynes, 4 De Ge. Mac. & Gor. 1 Pri. 292; Jackson v. Lever, 3 Bro, C. C. 270; purchase by solicitor of client. 605; 9 Yes. 240. (s) 1 Black. 123; 4 & 5 Will. 4, c. 23 ; (5) Pope V. Root, 7 Bro. P. C. 184; Bald- Davall v. New River Co., 3 De Ge. & Sma. win V. Boulter, ] Bro. C. C. loG; Danes v. 394; Beale v. Symonds, 16 Bea. 406. Cooper, 5 My. & Cra. 270. CH. 7. S. II.] SALE OF LIFE ANNUlTl'. 245 as a Hen 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. It may be doubted, hoAvever, whether this case, if it should ever arise, would be decided according to Sir Thomas Clarke's opinion. AVhere a lien is raised for purchase-money imder the usual cfpiity in favour of a ven- dor, 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 im- possible 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 defendant. If it should be admitted that the money cannot be re- covered, then of course he must retain the estate also, until some per- son appear who is by law entitled to require a conveyance of it (I). 12. A specific performance will be decreed of a contract for sale of a life annuity, although the annuitant be dead before the' bill be filed, provided the contract was a continuing one at his death (t). This is the converse of the point decided in Mortimer v. Capper, and that line of cases. Leach, V. C, observed, that it might then be considered as the settled law of the court, that if the price of pro- perty 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 contingent price, and those Avho represent him cannot complain that the contingency has turned out unfavourably. The same principle necessarily applies to a case Avhere 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 trans- ferred to the purchaser, the death of the annuitant can form no objec- tion to the specific performance of the contract. The purchaser agrees to buy an interest of uncertain duration, and he cannot com- plain that the contingency is unfavourable to him. In the case be- fore Leach, V. C, the jmrchaser was entitled to arrears of the annuity, but the annuity was charged on his own estate. The Vice-Chan- ce) Kenne/y ?'. Wenham, 6 Mad. 855; Strickland v. Turner, 7 Ex. 208. Wilkinson v. Torkington, 2 Yo. & Col. 72G; (1) Upon this passage it was observed by the Court, in Wythes v. Leo, 2 Jur., N. S., 7, 3 Drew. 405, that the wi'iter was addressing himself only to such part of the judgment as decided that the executors had a lien. This was the oliject. It was not intended to deny that a purchaser may have a lien on the estate for money paid where he has a right to recover bach the money, hut it was meant to show in the case put in Burgess v. Wheate, that the purchaser had no right to recover back the purchase-money, and therefore, of course^ had no lien. Vide inf. eh, 19, s. 1. q3 246 SALE or LIFE ANNUITY. [cii. 8. s. I. cellor considered the remedy to be mutual. If tlie 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 pm-chaser could file no bill in equity, the principle of mutual remedy could enable the vendor to file such a bill. But here the purchaser might file a bill for the arrears, although the facts of the case would not make such a bill advantageous to him. It was a case of mutual remedy, so as to entitle the vendor to file a bill for specific performance, and it made no difference in principle that the annuity being charged upon the estate of the purchaser, he could practically satisfy his demand for arrears without the necessity of a legal grant. 13. In 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, yet a specific performance was enforced against the purchaser because the tenancy was from year to year, which made it of no consideration (u). 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. (m) Lord V. Stephens, 1 Yo. & Col, 2-22. CHAPTER YIII. 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. 1. Sale of lease for more years than seller has. 2- v., 3J Substantial statement sufficient. 5. Small deficiency of term : sale good in equity. 7. Effect of suit after sale, to rectify the lease sold. 8. Underlease sold as original lease, 9. Whether purchaser of old lease bound to take a new one. I(». Or seller to underlease who sold the whole lease. 11. Where jnirchaser may object to liability as assignee. 12. Rent and interest on sale of leaseholds. 13. Purchaser of freehold not bound to take leasehold. 15. Nor copyhold. 16. But seller selling freehold or copyhold bound. 17. Purchaser of copyhold not bound to take freehold. 1 8. Sale partly freehold and partly leasehold. 20. Seller obtaining a renewed lease after the contract. en. 8. S. L] WHERE SELLER HAS LESS INTEREST THAN SOLD. 247 24. Reversionary interests not forced upon \ 38. Trustees selling contrary to obligation. purchaser of possession. 26. Compensation for roads not made. 27. Purchaser may take partial interests. 28. Dale v. Lister. 39. Effect of expenditure by purchaser. 40. Misrepresentation by purchaser. 4L Void lease. 42. Rights incapable of compensation. 29. Milligan v. Cooke. 43. Acquiescence by purchaser. 30. Indemnity not compelled. j 44. Rigid of common not disclosed — Limited 31. Contract vpon mistake of interests. 32. Laicrenson v. Butler. 33. Sale by tenant for life, i^c. not partially enforced against purchaser. 35. Lord Eldon's opinion of purchaser's right against seller. 36. Thomas \ . Dering : right denied. 37. Remainder-man selling fee in possession bound. right, and unlimited sold — Sheepwalk represented as freehold. 45. Right to dig mines — Easements. 46. Charge of repairs of chancel. 47. Fee-farm rent: at law. 48. Quit rent : in equity — Rentcharge in equity. 49. No indemnity. 50. 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 pretended to sell was not the true one ; as, for example, it was for a less number of years than he contracted to sell, the purchaser may consider the contract at an end, and bring an action for money had and received, to recover any sum of money Avhich he may have paid in part per- formance of the agreement for the sale : 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 pur- chase {b). 2. But where the agreement was to sell " the unexpired term of eight years' lease and good-will," &c. and the unexpired term was only seven years and seven months, it was held that the contract did not mean the exact term of eight years unexpired, neither more nor less by a single day. Any fraud or material misdescription, though unintentional, would vacate the agreement, but the purchaser might here have had substantially what he agreed to purchase (c). 3. So a lease described as a' lease for three lives and thii'ty-one years was satisfied by a lease for three lives and the survivor, and in case all the lives should die before the expiration of thirty-one years, for so much of the term as should be unexpired at the death of the survivor {cT). But 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 anniuty ; but as the Bridge Act did not speak of any power to redeem the annuities to be granted, and the annuity teas made subject (a) Hughes D, Pai-ker, 8 Mee. & Wei. 244. 15 Feb. 1806; Hibbert v. Shee, 1 Ca. 113; (6) Farrer v. Nightingale, 2 Esp. 639; Duffell v. Wilson, ih. 401, i7if. Hearn v. Tomlin, Peak. 192; Thomson v. (c) Belworth v. Hassel, 4 Ca. 140. Miles, 1 Esp. 184; Mattock v. Hunt, B. R. (d) Viguolles v. Bowen, 12 Ir. Eq,R.lU4. q4 248 WHERE SELLER HAS LESS INTEREST THAN SOLD. [CH. 8. S. I. to redemption, it was held that the contract Avas 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 (e). 4. Where there Avas a power of re-entry in the lease of the pro- perty sold, in case a certain trade should be carried on, and the par- ticulars were silent as to the fact that the forbidden trade was carried on upon a part of the property of little value for any other purpose, the purchaser was relieved from his purchase, although the lessor had Avaived the forfeiture for the time past (/). 5. But, notwithstanding that the vendor has a different interest to Avhat he pretended to sell, equity Avill, in some cases, compel the pur- chaser to take it. Although the vendor may not be entitled to the estate for the number of years Avhich he contracted to sell, yet, if the deficiency Avere not great, equity would decree a performance of the contract at a proportionable price (fj). 6. But if the number of years be considerably less than the vendor pretended to sell, equity, so far from interfering in his fa\'Our, Avill assist the purchaser in recovering any deposit Avhich he may have paid, as AAdiere a term of six years Avas sold as one of sixteen years, the purchase was set aside (A). So the purchaser Avill not be bound, as we have seen, where the probable duration of the interest is mis- represented, although it be in its nature an uncertain one ; as Avhere the property being held for life, the life Avas represented as a very healthy one, although the sellers had recently insured it at a premium exceeding the highest rate for a healthy life at that age : the seller's bill Avas dismissed with costs {{). 7. Where a lease Avas of a sugar refinery generally, and was sold by the Court, and the title Avas to commence Avith the lease, the pur- chaser Avas held not bound to complete until the title of the lessee was settled in a suit instituted by the lessors, after the sale, to have the lease corrected and confined to bonded sugar ; and the purchaser, Avho had accepted the title, paid the purchase-money into court and obtained j)ossession of the property, was held not to be concluded by the statement in the abstract of an agreement prior to the lease, for a lease of the property to be used for refining sugar in bond under which the lessors claimed to correct the lease {k). 8. So, if a purchaser contract for Avhat is stated to be an original lease, and it turn out to be an underlease for the Avhole term, Avanting a fcAV days, it should seem that equity would not compel the pur- chaser to perform the contract (Z). It is impossible, from the nature (e) Coverley v. Burrell, PI. T. 182], (A) Long t-. Fletcher, 2 Eq. Ca.Ab. 5. B. R. MS, (i) Brealey v. Collins, Yo. 317; Tui-nei' (/) Spunner r. Walsh, 11 Jr. Eq. R.o97. v. Harvey, Jac 169; sup. p. 4. {g) Guest v. Homfray, 5 Ves. 818 ; Han- (j) Bentley v. Craven, 17 Bea. 204. ger V. Eyles, 21 Yin. Ab. (A.) pi. 1 ; 2 Eq. ^^^^ ^aw v. Urlwin, 10 Sim. 377. Ca. Ab. 689 ; 10 Ves. 305, 306; 13 Ves. 77. en. 8. 8. I.] PUECHASER OF EXISTING OR NEW LEASE. 249 of the tiling, 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. 9. 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 purchaser would become an original lessee instead of an assignee (m) (I). And, accordingly, where the term was represented to be for ninety-nine years, and it was stipulated that the title should commence Avith a lease of the 26th September 1838, and it appeared that the seller had only a derivative term three days short of the original term, and which was created on the 24th June 1839, the seller's bill for a specific per- formance with a nominal compensation was dismissed, although there Avas a condition that any error or mis-statement of the term of years, or other description, should not vitiate the sale, but should be a subject of compensation (??). But it has never been decided that if a person having a clear title as lessee for eighty years, makes another lease for sixty years, and then the underlessee sells by auction the under- lease for sixty years, simply describing it as a lease, and subject to a condition of sale that the lessor's title is not to be inquired into, and the lessor's title is perfectly good but is only a term of years, this alone would be a reason for resisting specific performance (o). Where in an advertisement, and in a further paper, some houses were repre- sented as producing a stated rental, and " lease" about so many years, " at a moderate ground rent (50 I. a year,)" but the purchaser signed an agreement to take " an underlease " of the property for the term mentioned, less ten days, at a net rent of 50 /., and upon a bill filed to have the agreement delivered up on the ground of fraud and mis- representation. Wood, V. C, made a decree in his favour ; this was reversed by Lord Cranworth, C, who said that the term ground rent Avas Avell understood, and had a definite meaning ; it Avas the sum paid by the OAvner or builder of houses for the use of the land to build upon, and is therefore much under Avhat it lets for Avhen it has been built upon. If, therefore, a person described property noAv built upon as property for Avliich he paid a ground rent of 50 /., and it turned out that Avhat he paid Avas not ground rent but something- else, this Avould be a sort of misleading of the person purchasing. That, hoAvever, could not be said to be the case Avhen the same adver- tisement Avhich speaks of the ground rent mentions also the value of {ni) Mason v. Corder, 2 Mar. 332. (o) Darlington v. Hamilton, 1 Kay, 558, {n) Madeleyu.Booth,2DeGe.&Srtia.718. per V. C. (I) The point in Ponmall u. Harborne, 11 Q. B. 8G8, was, that part of the property being underlet, the underlease was granted before the seller had obtained the original lease ; but this was held not to bo an objection. 250 LEASEHOLD OR COPYHOLD NOT TO BE [CH. 8. S. L the rack-rent, for It then becomes hnmaterial whether the charge is called ground rent or by some other name (/)). Such a statement, we may observe, no doubt shows that the so-called ground rent is not the rack- rent, but it does not prove that it really is what is properly under- stood by the term ground rent : the 50 /. a year, for example, was, as appears by the Vice-Chancellor's judgment, an improved rent, reserved by the seller, who really paid the true " ground rent" for the property. 10. Generall y speaking , where the seller has not the whole interest which tie~soId,^he purchaser may elect to take the interest which the seller has with a com pensation ; yet it seems that equity will not decree an underlease on an agreement to assign, though it appear that the assignment cannot be made without a forfeiture ; for the seller, in asreein"; to assisrn, mi2;ht intend to discharge himself from covenants to which he would continue liable by the under-lease {q). This is, however, a defence which a vendor can seldom set up against a purchaser's claim, where the purchaser chooses to accept an under- lease ; for an assignee of a lease almost invariably covenants to indem- nify his vendor from the rent and covenants in the lease, and from these covenants he cannot of course discharge hunself by an assign- ment, any more than by an under-lease. 11. Where a leasehold estate was sold with a condition that the receipt for the ground rent should be considered as a waiver of any forfeiture of the lease, yet as the purchaser, unless he made an assign- ment in time, would be liable as assignee, upon a covenant to build certain houses, and to leave them in repair at the end of the term, it was held that he was not liable to accept either indemnity or com- pensation (r). 12. If a contract for a leasehold estate is not carried into execution at the time appointed, and the vendor continues in possession, for the time elapsed before the execution of the agreement, in consequence of the pendency of the suit, interest will be payable by the purchaser, and a rent will be set upon the premises in respect of the possession of the vendor (s). 13. But a purchaser having bought an estate of one tenure, is not bound to accept it if it prove to be of another. Therefore a pui*- chaser will not be compelled to take a leasehold estate, for however long a term it may be holden, where he has contracted for a freehold. Even in a case 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 rever- sion in fee expectant upon the term which was vested in himself and forfeited, but not foreclosed ; the persons claiming under the mort- O) Bartlett v. Salmon, 1 Jur., N. S., 277 ; (r) Nouaille v. Flight, 7 Bea. 521. 6 De Ge. Mac. & Gor. 33. {s) King r. Wigbtman, 1 Ans. 80; Feuton (7) Anon. Fonbl. n. (r), 1 Tre. Eq. 211 ; v. Biwvne, 14Ves. 144; Dyer v. Hargi-ave, INIason v. Corder, 2 Mar. 332 ; consider 10 Ves. 50.5. Bartlett v. Salmon, uhi sup. CH. 8. S. I.] SUBSTITUTED FOR FREEHOLD. 251 gagor of the reversion refused to release, and thereupon the vendor's bill was dismissed (t). 14. So where the seller agreed to sell the fee-simple of an estate, with some rights of water, and he had only a lease for ninety-nine years of some of the rights, a specific performance against the pur- chaser was refused (m). 15. Neither is a purchaser compellable to accept a copyhold estate in lieu of a freehold (:i'), imless bound by the conditions, where there is no fraud ( ?/). 16. But if an estate is sold as copyhold, and represented as equal in value to freehold, it seems that the vendor will be compelled to perform the contract, although the estate prove to be actually free- hold (z). If, however, the contract for the sale of a supposed copy- hold, stipulate that the sale shall be void if any part is freehold, the subject must be proved as described ; and the circiimstance of the seller himself, after the first contract, selling the estate to another as copyhold, is not conclusive evidence against him (a). 17. Where two lots sold by the Court were described as copyhold, and one turned out to be partly and the other to be Avholly freehold, althouo'h there was the usual condition as to mistakes or errors in description, the condition Avas held not to apply, and the purchaser not to be bound, for it was impossible to enter into a consideration of the different motives which may induce a person to prefer property of one tenure to another. The motives and fancies of mankind are infinite, and it was unnecessary for a man who has contracted to pur- chase one thing to explain why he refuses to accept another (^). It would be unjust to make the purchaser in such a case pay any addi- tional price, but if the seller demanded none, it would be difficult to refuse him a specific performance, particularly having regard to the statutory provisions for the enfranchisement of copyholds. 18. But if an estate be sold generally as jiartly freehold and partly leasehold, and the whole property is lying within a known ambit, and a question is afterwards raised by the lessors of the leasehold as to the quantity of the latter, which depends upon the construction of a deed and plan, which although never submitted to judicial decision, are not so vague as not to admit of construction, the purchaser must take the title ; for he cannot object to the quantity of the leasehold, and therefore under any construction he is bound, as he made no stipulation as to quantity (c). (t) 4 Bro. C. C. 497; 1 Ves. j. 226; (2) Twining r.' Morrice, 2 Bro. C. C. 32G; Drewe v. Corp. 9 Ves. 368 ; Lib. Reg. 1803, Browne v. Fenton, sup. p. 2 ; O'Kell u.Wliit- p. 290 ; 1 Sim. & Stu. 201, n. ; 13 Ves. 78 ; taker, 2 Phil. 338. Barton v. Ld. Downes, 1 Fla. & Ke. 505. («) Daniels v. Davison, IG Ves. 249. (m) Wright V. Howard, 1 Sim. & Stu. 190. (&) Ayles v. Cox, 16 Bea. 23. ix) Twining v. Morrice, 2 Bro. C. C. 326; (c) Monro v. Taylor, 8 Ha. 51 ; see p. 66, Sir H. Hick v. Philips, Pre. C. 575. 71 ; 3 Mac. & Gor. 713; Dawsouv. Brink- (?/) Price V. Macaiilay, 2 De Ge. Mac. & man, 3 De Ge. & Sma. 376 ; 3 Mac. & Gor. Gor. 339. 53, where the right to have the copyholds l/^/ 252 purchaser's right to part. [ch. 8. g. i. 19. If a man entitled to a fee-farm rent out of an estate, sell the estate, subject to the fee-farm rent, of course the purchaser is not bound to take the fee-farm rent with a compensation (d). 20. If a seller of a leasehold under the church, usually renewable, has acquired an interest by contract v/ith the lessors at the time he made the agreement for sale, that interest would pass to the pur- chaser, althout^h the contract was simply to sell the leasehold. If there was no such contract, but a renewal is obtained subsequently to the sale but before the assignment to the purchaser, it seems to have been considered that the seller must make the purchaser a pre- sent of the renewal, as it Avas compared to the case of a seller choosing to spend money in improving the estate after the sale {e). But this, with reference to the facts of the case referred to, is a doubtful point. The purchaser would clearly have a right to claim the renewed lease in both the cases put, but in the latter case it would seem that the pur- chaser, if he so elected, must pay the fine and expenses of renewal ; for the usual time for renewal had arrived, and the seller, whilst he remained owner, could not safely let the opportunity slip : in the former case, viz., where the contract for renewal existed at the time of the sale, it would depend upon the terms of the agreement for sale whether the purchaser bought the benefit of the contract for renewal subject to the fines and fees, or purchased the whole interest at the price named, and the seller himself was to pay the fines and fees. 21. If a vendee proceed in the treaty for purchase without object- ing after he is acquainted with the nature of the tenure, he will be bound to complete his contract, and cannot claim any compensation. Thus, where an estate was sold as freehold, with a leasehold adjoin- ing if), and it turned out on examination that sixty-two acres were leasehold, and only eight freehold ; yet, as the purchaser proceeded 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. 22. 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 (^). 23. Cases of much greater difficulty occur where the seller, although he is interested as he represented in the entirety, has but partial and different interests from those which he represented. In general a purchaser cannot be compelled to accept such interests. ^ |> *? / _ 24. Thus, if the estate be represented as a fee-simple in posses- slon, 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 distinguished as not including buildings was 6Ves. 670; lOVes-.^OS; Burnell f. Bro\tn, lost by tlin subsequent agreement. 1 Ja. & Wal. 168; Martin v. Cotter, 3 Jo. (d) Prendergast v. Eyre, 2 Hog. 81. & Lat. 496. (e) Monro v. Taylor, uh. sup. (ff) Calcraft v. Roebuck, 1 Ves. j. 221 ; 1 (/) Tordyce v. Ford; 4 Bro. C. C. 494; Bro. C. C. 140. CH. 8. s. I.] purchaser's right to part. 253 contract cannot be enforced against the purchaser (A). And the same observation would apply to any existing lease where the pur- chaser has contracted for a vacant possession {{). 25. But in every case where an agreement would be in part exe- cuted in favour of a vendor, there is much greater reason to afford the aid of the Court at the suit of the purchaser, 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 . /^/ Zy/ imiversally, that a purchaser may take Avhat he can get, with com- " pensation for what he cannot have {h) ; but where the seller of an estate had only a right to a sum to be raised by sale of it, and the purchaser sought to have the money, and also damages in respect of the seller's defect of title, the Court said that the purchaser takes Avhatever interest in the estate the seller had, but the authorities a-ivino; damao-es in equity by reason of a vendor's selling property that was not his own had been reviewed of late years, and overruled (/). This, of course, is no authority against the established cases of partial per- formance, with a compensation. 26. Where a seller is bound by the contract to make certain roads and is unable to perform that part of his contract, the purchaser may require a specific performance with a compensation (m). 27. 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 afterwards to say, though he has valuable interests, he has not the entirety ; and there- fore 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. If he con- tracts to sell a fee-simple, and has only a term of 100 years, I have a right to that term if I think fit {n). 28. 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 purchase}- filed a bill for a specific performance, with a reduction, and the decree was for a specific performance, with a reduction of the purchase-money, the interest of the seller being less valuable than it had been represented to the purchaser (o). The con- (/t) Collier v. Jenkins, Yo. 295. («t) Peacock v. Penson, 11 Bea. 355. (i) Linehamr. Cotter, 7 Ir. Eq. R. 17G. [n) 10 Ves. 315, 31G, 318; Wood v. (k) 1 Ves. & Be. 353 ; Western u. Russell, Griffith, 12 Feb. 1818; 2 Ves. j. 439; 1 3 Ves. & Be. 187 ; Wheatley v. Slade, 4 Wils. C. C. 44. Sim. 12G. (o) Dale v. Lister, IG Ves. 7; Hanbiiry {I) Williams v. Higden, 1 P. Coo. 500. v. Litchfield, 2 My. & Ke. G29. 254 puechaser's right to part. [ch. 8. s. i. sequence of this decision Avas, that if the lives should endure beyond the twenty-one years, the purchaser would have the premises as well as the compensation. This is a remarkable case. 29. In a later case {p), upon a sale of leasehold for lives, the repre- sentation of the seller was in effect that the lessee thereof upon lives, under a church-lease, granted the lease in question, with covenants, binding his real and personal representatives to procure renewals to make the complete term sold. It appeared, however, that the cove- nant to renew was limited, and not binding to the extent mentioned, the estate being in settlement, and the covenant not general. In effect, the difference was between a covenant by the lessor, binding all his assets, real and personal, and a covenant which only bound that property which the lessor might permit to go from him to his son, who would be entitled to the property under the settlement. Lord Eldon decreed a specific performance upon the purchaser's bill, with an abatement for the difference in value bet^veen the covenants as represented and as they existed, or an indemnity ; but although this decree was affirmed upon a rehearing, and notwithstanding the great authority of the Judge, the case can hardly be deemed an authority. In a recent case (q), where the leasehold part of a lot was stated to be customary leasehold of a manor, renewable every twenty-one years, on payment of the customary fine, at the annual rent of 10/., and there was no such custom to renew, the purchaser obtained a spe- cific performance Avith compensation. 30. Lord Eldon himself laid i t down that the Cou rt can neither compel a jTurchaser toTake an i ndemnity nor a vendor to give it (r). "^nd 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 Avas to settle all questions betAveen the parties, and the arbi- trator 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 aAvard Avas set aside as not being final, and being an excess of authority (s). ! 3L 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 ; 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 (t). 32. And in a case Avhere a tenant for life, with a poAver of leasing (p) Milligan v. Cooke, 16 Ves. 1. («) Ross v. Boards, 3 Nev. & Per. 382. (q) iXewby v. Paynter, 11 Ha. 26; 17 (0 LawTenson v. Butler, 1 Sch. & Lef. Jiir. 483; Painter i-. Newby, 1 Eq. R. 17:!. 13; Mortlockv. Buller, 10Vet;.292; Colyer (?•) Balmanno v. Lumley, 1 Ves. & Be. v. Clay, 7 Bea. 189. 225 ; Paton v. Brebner, 1 Bli. 66, inf. CH. 8. S. I.] SALE BY TENANT FOR LIFE. 255 for twenty -one years at a rack-rent, agreed to execute a lease for twenty-one years, and a further lease for twenty-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. And the lessee's offer to take a renewed lease for twenty-one years, if the lessor should so long live, was rejected {u). Lord Redesdale thought that satisfaction in the form of damages was an adequate remedy. If he had been put into a situation from which he could jiot 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 power, and when that was objected to, to say, "I will take the best you can give me." 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 necessary consequence of the contract that the lease agreed to be granted would be a fraud on the power, and the purchaser Avas willing to take the interest which the seller was enabled to grant without risk to himself or injury to the remainder-men. 3.3. 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. 34. 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 happening of events he himself has become entitled to the fee in possession (x). 35. But the rule laid down by Lord Eldon, which has already been referred to, was intended to express his opinion, that where in such a case the tenant for life was the party really contracting, he was bound, at the election of the purchaser, to convey to him all the interest he had in the estate at a proportionate price. 36. This, however, was ruled otherwise in a late case at the Rolls (y), where the tenant for life, under a settlement, with full knowledge of the nature of his title, entered into a contract for sale of the estate as owner by letters to a purchaser Avho was ignorant of (?<) Harnet v. Yielding, 2 Sch. & Lef. 549. (y) Thomas v. Bering, 1 Ke. 729 ; Gra- (.r) Mortlock v. Buller, 10 Ves. 292 ; ham v. Oliver, 3 Bea. 124. sup, p. 181. 256 SALE BY TENANT FOR LIFE [CH. 8. S. I. the title, and then desired to withdrcaw from the contract, and the trustees, in whom a power of sale Avas 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 re- version in fee after an estate tail in his son, but this was refused. 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 contract, 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 not aware of the circumstance, and the seller even concealed for a time the objection made by the trustee to adopt tlie sale. Nor if the seller, according to the general rule, Avas bound to convey Avhat interests he could at a proportionate price, did the difficulty of valuing those in- terests afford any solid objection to the relief. The estate for life was without impeachment 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 in- junction upon the purchaser's application. If a tenant for life bond 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 con- tract by the tenant for life alone. But such sales, where the settle- ment is concealed, deserve no favour, for there is no mutuality ; the trustees, by their election, may force the purchaser to complete, although he cannot compel them to join, and they are too 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 own views. In a still later case (r), upon a purchase of a house, &c. for 650 Z., the purchaser entered into possession, paid for the fixtures, and takino- subject to a mortgage, paid also the residue of the purchase- money, and upon a bill filed by him for a specific performance it appeared that no title could be made to one-fourth which belonged to other persons, and the Master of the Rolls held that the purchaser was not entitled to take the three-fourths to which a title could be made with an abatement, but that he might upon payment of the (r) Maw V. Topham, 19 Bea. 57G. CH. 8. S. I.] AS OWNER Or THE FEE. 257 price take what the seller could convey. The learned Judge did not rely upon the special ch'cumstances in the case, or give any reason for his decision. It might not be safe to rely upon it. 37. But where a man seised in fee in remainder expectant upon his mother's life estate Avas aware of his actual title, and sold the fee in possession to a purchaser who did not know the state of the title, and the seller objected to complete on the ground that his mother would not concur, he was compelled to convey his remainder to the purchaser, Avith an abatement for the value of the life estate (a). 38. And where trustees of a turnpike road ought to have offered a strip of land to the owners of the adjoining land, who under the General Turnpike Act had a right of pre-emption, but instead of doing so contracted to sell it to the lessee under the owners of the adjoining land, which lessee in ignorance of the trustees' rights had already begun to build partly on the strip of land, and after the con- tract finished the building ; the trustees Averc compelled to specifically perform their contract with costs, although the owners of the ad- joining lands had claimed their right of pre-emption. The purchaser was content to take the title subject to the claim of his lessors, and the trustees could not object that they might be subject to an action at the suit of the lessors {b). 39. If in a case of this nature, the purchaser, on the faith of the agreement, put himself in a situation from Avhich he cannot extricate himself, and is therefore willing to forego a part of his agreement, that is a circumstance to induce a court of equity to give relief. Thus, where the incumbent of a living had, Avith full knoAvledge of the title, contracted Avith the tenant in tail, in remainder after a life estate, for the purchase of the advoAVSon, and on the faith of that agreement had built a much better house than he Avould otherAvise have done ; the tenant for life would not join in suflierlng a recovery, and consequently a good title could not be made. Lord ThurloAV held, that the purchaser ought to have the utmost the vendor could give him ; and therefore directed the vendor to convey a base fee, by levying a fine Avith a covenant to suffer a recovery Avhen he should be enabled to do so (c). 40. But if there have been misrepresentation on the part of the purchaser, he cannot insist upon having the estate, although he is Avilling to take subject to the outstanding interests (d), because the misrepresentation Avould avoid the contract both at laAV and in equity. 41. If the vendor has granted a lease of the estate, Avhich is void by force of a statute, the Court Avill not on the request of the pur- («) Nelthorpc v. Ilolgato, 1 Col. C. C. (c) Ltl. l^olingin-okc's case, 1 Sch. & Lef. 20.1. 19, n. (--/). (/>) Ban-ott V. Ring, 2 Sma. & Gif. 43, {d) Clermnnt !-.Tasburgli, 1 Ja. & Wal.ll2. R 258 RIGHTS OF COMMON, &C. [CH. 8. S. I. chaser consider the lease as valid, and allow liim a compensation in respect of it (e). 42. There are some rights which, although in themselves of small value, are incapable of compensation, and therefore, if undisclosed, vitiate the contract ; for example, a right of sporting reserved over the estate, for it would not be possible to estimate what difference in value such a reservation made, and it would break in upon the pur- chaser's enjoyment and ownership {f). So where it was stated that the property was in tlie joint occupation of two as lessees, whereas, in fact, although they were in the joint occu})ation, yet one of them only was the assignee of the original lessee, the case was considered not one for compensation {g). 43. But a purchaser in this, as in every other case, may by his conduct, after having notice of the charge, although it is a permanent one, Avaive his right to object to it, and even leave himself no right to a compensation {It). 44. It is a fatal objection at law, that an enclosed estate is subject to a right of common every third year, which was not noticed in the contract (i) ; and equity, it is apprehended, would not hold it to be a subject for compensation against a purchaser, althougli he might be allowed to take the estate with a compensation. 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 {k). 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 (/). 45. A right to dig for mines not disclosed would be a ground to set aside the contract at the instance of the purchaser (m). But pur- chasers may take the title with a compensation («). So a right in the owners of other lands of easements over the lands sold for a supply of water, Avas held to be fatal to the title, notwithstanding the usual clause for compensation for misdescriptions, as the particulars of sale described the property as eligible for building pur})Oses (o). 46. If the estate be liable to repair the chancel of a church, the purchaser, if he bought Avithout notice of that liability, Avould not, it seems, be compelled to perform the contract with a compensation (ji). 47. And where a house Avas sold by auction and no notice Avas taken of a fee-farm rent of 5 s. 4 d. charged upon that and upon other (c) Morris .w. Preston, 7 Ves. 647. (/) Vancouver v. Bliss, 11 Ves. 458. (/) Burnell v. Brown, 1 Ja. & Wal. 1G8, (m) Infra. (g) Hid;^ayr. Gray, 1 Mac. & Gor. 109. (n) Seaman v. Vaudrcy, IG Ves. 300. (h) S. C. post. (o) Shackleton v. Sutclitfe, 1 De Ge. & (t) Gibson f. Spurrier, Peake Ail. Cas. Sma. 609. 49 ; as to footways, post. (p) Forteblow or Ilorniblow r. Sliirley, (/if) Howland v. NoiTis, 1 Cox, 50. 2 Swan. 223 ; 13 Ves. 81. CII. 8. S. II.] RENTCIIARGE, FEE-FAEM RENTS, &C. 259 j)ro|)crty of very great value, the purcliascv brought an action for breach of contract, and Sir Vicary Gibbs for the vendor, the defen- dant, declined arguing the point (q). 48. But in equity quit-rents are subjects of compensation, probably because they are regarded as incidents of tenure (?•), which rent- charges are not ; still the purchaser would be compelled to complete where the rentcharge is small. In Lord Thurlow's time, the rule was larger than it is now. He laid it down as settled, that where- ever 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. 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 subject for compensation {/). This was going a great way, but no case is to be found Avhere this doctrine of compensation has been applied beyond rentcharges of small amount {t). 49. An d as a general rul e — 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 \i{u). 50. Where the benefit of quit-rents is sold, a mistake in their amount Avill not be material. In Cuthbert v. Baker {x), the quit- rents of a manor were stated in the particulars of sale to be 2 /. a year, and they amounted to only 30 s. a year ; but this was held to be a subject of compensation. {q) Turiiei- v. Beauraiu, Sitt. Guild, cor. Nouaille v. Flight, 7 Bea. 521. Ld. Ellenboroiigh, 2 Jun. 1806; Bai-newall (0 Prendcrgast v. Eyre, 2 Hog. 04; V. Harris, 1 Tan. 430. Portman v. Mill, 1 Rus. & My. G!)C>. (/•) Esdaile v. Stepheuson, 1 Sim. & Stu. {u) 1 Ves. & Bea. 225; post, ch. 11, 8. 122; Bowles v. Waller, 1 Hay. 441 ; as to 2; Powell v. South Wales Ry. Co., 1 Jm-., rent of a leasehold, Pope v. Gai-laud, 4 Yo. N. S., 773. & Col. 394. (x) Reg. Lib, A. 1790, Ibl. 442. (*•) Howland v. Norris, 1 Cox, 59; SECTION II. OF WANT OF TITLE TO A PART OR TO A SHARE OF THE ESTATE. 1. Mistake as to what is sold — Uncertain property. 3. Want of title to part fatal at law — Separate valuations. 4. Enforced partially against purchaser tvhere part small. 5. Want of title to ajyproach— Condition. K 2 6. Want of title to strip between the house and road. 7. Sale of house and wharf. 8. Not binding on purchaser where portion large — Purchaser's right against seller where no title to large part. 9 1 ' ^ Not bound to take shares. 200 Y.IIERE SELLER HAS NO TITLE TO TART. [CH. 8. S. II. 1 1 . But may elect to do so. \ 20. Rule acted /ijioii at lew. 12. Rigid rescri'cd to rescind if want of title. V,). 1]'/ieafte)/ v. Sludc, scmhlc againut pur- c/iasP7-'s riyht to shares. 14. Jones v. Evans. Croome v. Lediard. Want of title to shares or part. \o. Contract by one tenant in common. 10. Mutual contracts. 17. Lease containing more than held under it. 18. Sale in lots good as to those with title. 19. Unless complicated with the rest — Right 2L Right of way. 22. Lord Kenyon's doctrine — The present rule. 23. Where the seller has not all the tithes he sells. 24. Where the estate is 'not tithe free. 29. Commutation of tithes by statute. 30. Land-tax and tithe-rentcharge. 31. Purchaser freed from land-tax redeemed, where conditions ambiguovs. of common. i 32. Purchaser's right bound by his conduct. 1. If a purchaser of an estate thinks he has purchased bond fide a part which the vendor thinks he has not sokl, that is a ground to y/^ /<2/ ^^^ aside the contract, or at least not to execute it, that neither party may be damaged (a). If both understood the whole was to be con- veyed, it must be conveyed iV). If an uncertain property be sold and bought as such, neither ]3arty can object in regard to its extent; but wliere a manor was sold with all the lord's rights, &c., and its boundaries were not known, yet as subsequently to the contract it appeared that they were more extensive than either party contem- plated, tlie purchaser was refused a specific performance (c). 2. A defect of the nature we arc 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. 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, he cannot enforce the contract at law. At law, neither a vendor can, on an entire contract, recover part of the purchase-money, Avhere he cannot make a title to the whole estate ; nor would a purchaser be suffered 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 (f/). But where a honse and land were sold by private contract for 1,000 /., but the Court considered there were two distinct contracts, one of the house at 300 Z., and the other of the land at 700 1., and it did not appear that they were necessary to the occupation of each other, and the purchase-money Avas paid, and the purchaser was evicted from the house for want of title in the sellers, before the conveyance was completed, but as he had built upon the land to whicli the title Avas good, he retained that, he was allowed in an action for money had and received, to recover the money which he had paid for the house (c). (n) 13 Ves. 427 ; Iligginson v. Clowes, (i) 1 Ves. j. 211 ; C Ves. 839. 15 Ves. 516 ; Neap r. Abbott, C. Coo. 333 ; (c) Baxendale v. Scale, 19 Bea. GOl, Chamberlain v. Lee, 10 Sim. 445 ; Alvanley (f/) Johnson v. Johnson, 3 Bo. & Pul. 1 02. V. Kinnaii-d, 2 5Iac. & Gor. 1 ; Whittington (c) S. C. V. Conler, IG Jlir. 1034. . CH. 8, S. II.] WHERE SELLER HAS NO TITLE TO TART. 261 4. But if the part to Avlucli the seKer has a title was the purchaser's principal object, or equally his object Avith the part to which a title cannot be made, and ^s itself an independent subject, and not likely to be injured by the other part, equity will compeTthc purchaser to fj take it at a proportionate price ; and in these cases it will be referred / to chambers, to inquire, " whether the part to Avhich a title cannot be M made, is material to the possession and enjoyment of the rest of the I estate (/)." If the part to which a title cannot be made be a con- siderable 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 necessary to the enjoyment of the rest, or Avas the purchaser's object in his purchase ; and this has been extended to a Avant of title to part of the timber sold ((/). 5. In a late case, Avhere the seller could not make a title to a piece of land over Avhicli the approach to the house lay, the purchaser Avas compelled to comjilete Avith a compensation, because there Avas the usual clause, that if any mistake or omission should be discovered in the description of the property, compensation AA^as to be accepted (h). But this clause does not seem to apply to a defect of title to part, and Avhere the part is material to the enjoyment of the rest, as in this case, it is not a case for compensation. The case, upon appeal, was decided on another ground (i). 6. Where upon a sale of a house and about four acres the seller could not make a title to a small strip of land betAveen the house and the road, so that people in passing could look in at the Avindow, of course it Avas held not to be a case for compensation (A). 7. This equity Avas at one period exercised against purchasers to an extent Avhich is not now folloAved, but the stream of authority sets the other Avay (Z). In a case (m) before Sir Thomas Sewell, a man Avho had contracted for the purchase of a house and Avharf, Avas com- pelled to take the house, although he could not obtain the Avharf, and although his object Avas to carry on his business at the Avliarf ; but this has long been overruled {ji), and now, although the purchaser did not require the Avharf for his trade, yet if the house and Avharf Avere connected together as one property, the Avant of title to the (/) M'Queen v. Farquliar, 11 Ves. 467; (k) Perkins v. Ede, 10 Bea.193; qu. the Knatchbull v. Grueber, 1 Mad, 153; Bow- point as to the statute of limitations, yert'. Bright, 13 Pri. 098; Prendergast u. (/) 13 Pri. 702. Eyre, 2 Hog. 81 . [m) Yes. 678 ; 7 Ves. 270 ; M'Queen v. iff) Stewart V. Marquis of Conyngham, Farquhar, 1 1 Ves. 467 ; 1 Cox, 61, 62. 1 Ir.Cha. R. 573. {n) 1 Ksp. 152; 6 Ves. 670; 13 Ves. 78, V (h) Freer v. Ilesse, 17 Jur. 177, sup. p.23. 228, 427 ; Prendergnst v. Eyre, 2 Hog. 81 ; (0 17 Jur. 703; 2 Eq. R, 13; 4 De Ge. Shackleton v. Sutcliffc, 1 De Ge. & Sma 009. Mae. & Gor.495, R 3 262 WHERE SELLER HAS NO TITLE TO TART. [CH. 8. S. IL wharf would authorise the purchaser to rescind the whole contract. Accordingly (o) Avhere a wharf, described as superior waterside premises, with jetty, &C. was sold, and no sufficient title could be made to the jetty, it was considered essential to the beneficial enjoy- ment of the premises, and the seller's bill for specific performance was dismissed with costs. 8. There are many cases where a 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. A purchaser cannot be com- pelled to take a compensation for a large portion of the estate. 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, it has not been determined whether under any circumstances of deterioration to the remaining property, the vendor could be exempted from the obliga- tion of conveying that part to which a title could be made ; but the proposition is untenable, that if there is a considerable part to which no title coidd be made, the vendor was therefore exempted from the necessity of conveying any part (7?). But 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. 9. 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, the survivors cannot compel the purchaser to take their shares, unless he can obtain the share of the deceased (q). ^ 10. 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 Avas allowed to rescind the contract as to the whole of the lot (r). 11. 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 executed against the heir of the deceased (s), for a purchaser generally, although not universally, may take what he can get, with compensation for what he cannot have (t). (0) Peers v. Lambert, 7 Bea. 546; see Dalby v. Pullen, 3 Sim. 29; Casamajor r. 15 Bea. 209. Strode, 2 My. & Ke. 72G. (p) 3 Ves. & Be. 187. (s) Att.-Gen. r. Day, 1 Ves. 218. (q) Att.-Gen. v. Day, 1 Ves. 218. (/) 1 Ves. & Be. 353. (/•) Roffey V. Sliallcross, 4 Mad. 227; Cir. 8. S. II.] WHERE SELLER HAS NO TITLE TO TART. 2G3 12. But where an agreement stipulated that errors in tlie descrip- tion should not vacate the agreement, with a 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 counsel's opinion was tliat a title could be made to only two-thirds of the pro- perty ; notwithstanding which the purchaser filed a bill for a specific ^ performance with an abatement; his bill was dismissed with costs. The Court tliought that as the above-mentioned stipulation was the ^contract of both parties, it could not make a new contract for them. They had stipulated, that in a given event, which had happened, the agreement should be void(M). The condition, however, hardly seemed to apply to the want of title to one-third of the property. 13. In the case of Wheatley v. Slade(a-), where a manufactory was sold, it appeared that the sellers were entitled to nine-sixteenths only, 4- C^/J- ^Y' the Vice-Chancellor was of opinion against the purchaser's right to enforce a performance '[)ro tanto. He 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 the vendor was capable of per- forming it, and that a deduction should be made to him in respect of the deficiency ; hut that teas not allowed where a large portion of the irroperty could not be 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 therefore dissolved an injunction to prevent the sellers from selling to any other person, as the Court at the hear- ing would not deal with this case as it dealt with Hill v. Buckley. 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 performance of a contract that the charges on the estate, will, contrary to the seller's expectation, exhaust the purchase-money. If the case be reduced to the simple one, that the sellers had only nine-sixteenths, although they consi- dered they had the entirety, the authorities would seem to show that the purchaser had a right to those shares at a price ^^'ro tanto : no hardship would have been thrown u})on 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-sixteenths was a party to the suit, and his title was undis- puted by the sellers of the nine-sixteenths. (;/) Williams i\ Edwards, 2 Sim. 78. {x) 4 Sim. 12G. r4 264 WHERE SELLER HAS NO TITLE TO PART. [CH. 8. S. II. 14. In ii later case (?/), Avhci'c two persons agreed to sell two-sixths of a leasehold, together with other their estates or Interests therein, and liad only 2-2 1th shares, the same learned Judge held that the ])ureliaser was entitled to a specific performance as to the actual shares, with an abatement ; for if the parties might have had more, they might also take less than two-sixth parts. He thought that the case came quite Avltliln Hill v. Buckley. This was very unlike a case where parties contracted to sell the whole, but could only sell a part. Here they were in any case only to sell a part, and the only question was whether that part was more or less. The Vice- Chancellor thus confined his rule to a sale of the whole of an estate, but he seems to have failed in establishing any solid distinction be- tween the sale of the entirety of an estate with a Avant of title to part, and a sale of shares of an estate with a want of title to some. As a purchaser may take such shares as the seller can make a title to where he contracted for more shares, why may he not do so where he contracted for the entirety? The Vice-Chancellor probably meant only to say that where a man boiui^de heVieYed the entirety of an estate belonged to him, although in truth many shares of it did not, equity would not compel him to convey his shares to the pur- chaser, with a large compensation for the others. But still this rule might equally apply to a portion of shares. 15. Where one of two tenants in common in fee agreed to lease the minerals, and the other tenant in common did not concur, it was con- sidered that the lessee could not obtain a specific performance as to a moiety, for the party who agreed to lease intended to contract for a lease of the whole colliery, and he had been guilty of no improper conduct or misrepresentation (z). 16. li' A contract to sell one estate to B, and B contract to sell another estate to ^i, 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 where two estates were conterminous, or where there was a mixed case of enjoyment of the estates, as in the case of one of the parties having an easement over the property of the other, a contract depending upon such mutu- ality as to sale on one side and purchase upon the other might well exist («) ; and so in like cases. 17. Where the estate sold consisted of several houses, stated to be held under lease from A, and the lease comprised a small piece of ground formerly held Avith one of the houses, but divided from it previously to the lease, and let to another ; the purchaser was allowed {]/) Jones V. Evans, 12 Juv. C64. («) Croome v. Lediard, 2 My. & Ke. 251, (z) Price V. Griffith, 1 De Ge. Mac & Gor, 29a. 80 : there was no binding agreement. CII. 8. S. II.] WHERE SELLER HAS NO TITLE TO SOME LOTS. 265 to recover his deposit ; for he would be litiblc at law under the covenants for the whole as demised (/»). 18. Where an estate is sold by auction, or by the Court, in lots, and the vendor has not a title to all the lots sold, equity will compel the purchaser to take the lots to Avhich a title can be made, if they are hot complicated with the rest ; and will allow him a compensation pro tanto (f). 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 ; e. g. if a purchase of a mansion-house in one lot, and farms, &c., in others, and no title could be made to the lot containing the mansion-house. 20. 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 (ct), although a distinct contract arises upon each lot. Therefore where the property was represented as free- hold, but no notice was taken that a meadow, part of it, was liable to a right of common : the plaintiff purchased two lots, one a house, garden, &c., the other the meadow close adjoining, and which he Avished to occupy with it ; and Lord Kenyon held that if these lots were so near each other that the hope of possessing one as an appen- dage to the other was the inducement to the purchaser to purchase both, he ought not to be compelled to take one alone (e). 21. And 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 he had also bought an adjoining lot. No. 12, containing a house, which was to have a right of way over lot 13, he was allowed to rescind the purchase as to lot 12 also, as he might be reasonably understood to have purchased lot 12, in order by unity of seisin to extinguish the right of way over lot 13 (/). 22. There has been some doubt and confusion about Lord Kenyon's doctrine at law in Chambers v. Griffiths (^) (I). But it is now under- {h) Tomkins v. White, 3 Smith, 435. Dormer, 4 Bar. & Ad. 77 ; Seaton v. Booth, (c) Poole V. Shergold, 2 Bro. C. C. 118; 4 Ad. & El. 528. 1 Cox, 273; G Ves. G76; 2 My. & Ke. 727. {e) Gibson w. Sprn'ricr, Peak. Ad. Gas. 40. {(l) Emmerson v. Heelis, 2 Tau. 38; (/) Dykes r. Blake, 4 Bin. N. C. 463. James v. Shore, 1 Star. 42G; Baldey v. (g) 1 Esp. 149. Parker, 2 Bar. & Ores. 37; Roots v. Ld. (I) Lord Kenyon held that the contract for some houses sold in separate lots could not be enforced, as a title could not be made to all of them. And this was the opinion of the Gourt of Exchequer. In a case before Lord Eldon, ID July 180G, MS., in which most of the authorities on this head were cited, that of Ghambers v. Griffiths was not noticed, and the report of Gibson v. Spurrier was not then published. ]5ut Lord Eldon aftei'wards mentioned from the Bench, that he had met with the case of Chambers v. Griffiths, and 26G OF WANT OF TITLE TO TITHES. [CH. 8, S. II. stood that a purcliaser of several lots at law cannot resist the contract as to one, because a title cannot be made to the other, unless upon the o-round before stated, or unless it could be shown that there was an understanding that the purchaser was not to take any of the lots unless he could ol)tain them all (/<) ; or, in otlier words, that where it is not shown that tlie lots are complicated with each otlier, a pur- chaser cannot for want of title to one lot rescind the sales as to all the lots, unless it could be shown that there was such an understanding (2). 23. We are now to examine the cases relating to tithes. Where they are sold as a distinct existing property, they are — regard being liad to the different natures of the properties — suliject 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. Where upon the sale of an estate, together with the valuable corn and hay tithes of the whole parish, it appeared that the principal o1)ject of the purchaser was the corn tithes, and that half tlie hay tithe belonged to the vicar, and the other half was commuted for by a small annual payment. Lord Eldon was of opinion that the hay tithe, if not of great extent or of suclt a nature as to prejudice the corn tithe, Avas a subject for compensation : but otherwise not, as the purchaser woidd not get the thing which was the principal oljject of his contract (/;). 24. A case (/) often cited, but long misunderstood, led to consi- (7i) Drewe r. Hanson, 6 Ves. G75 ; Casa- (Z) Ld. Stanhope's case, GVes.G78; How- major V. Strode, 2 My. & Ke. 7-24; Beyer v. land v. Non-is, 1 Cox, 59; Ves. 679 ; 17 Blackwell, 3 Ans. 657. Ves. 280 ; Lowndes v. Lane, 2 Cox, 363 ; (j) Lewin r. Guest, IRus. 325; Ilarwood 6 Ves. 676; but see Pincke v. Curteis, it. ; V. Bland, 1 Fla. & Ke. 540; 2 My. & Ke. 725. Rose v. Calland, 5 Ves. 186 ; Wallinger v. {It) Drewe v. Hanson, 6 Ves. 675; Van- Hilbert, 1 Mer. 104; 6 Ves. 679; 17 Ves. couver v. Bliss, 11 Ves. 458; Stapylton v. 280; Ilowland v. Norris, 1 Cox, 59. Scott, 13 Ves. 425. he desired it to be understood, that he was not of the same opinion as Lord Kenyon ; and in a still later case Lord Eldon expressed an opinion that Lord Kenyon's I'ule would not be followed unless it could be shown that there was an understanding that the piuTliaser was not to take any of the lots unless he could obtain them all. In Casamajor r. Strode, Lord Brougham, L. C, tUsagreed with Lord Kenyon's opinion in Chambeis 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 an early 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. Lord Eldon 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 rule would not be followed, unless it could be shown tliat thei-e was an understanding to tliat effect ; or, in other words, that where it is not shown that the lots are complicated with each other, a ])urchaser cannot for want of title to one lot rescind the sales as to all the lots, unless it could be shown that there was such an understanding. In the case in the Exchequer (Boyer v. Blackwell), the seller could make a title to all the lots, but desired to withdraw some of them because he had a better offer for them. CH. 8. S. II.] OF TITHE COMMUTATION. 267 derable doubt. Lord Thurlow was supposed to have compelled a purchaser to take an estate subject to tithes, although it was sold tithe-free, and his object was to buy an estate tithe-free ; but it after- wards appeared that the estate was subject only to a money-payment of 14 /. in lieu of tithes ; and it is now settled that if an estate be stated to be tithe-free, or subject to a modus, a pvu'chaser cannot be compelled to take it Avith a compensation, if the estate is not tithe- frcc. This was distinctly laid down by Lord Eldon in Ker v. Clobury ; he said that he had so decided in a case from Yorkshire, in wliich he had told the purchaser if he would take the estate with a compensa- tion, he must undertake to pay the tithes to the vendor (m). 25. Where an estate is sold tithe -free, the question whether titlie- 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 (n). 26. Where the particular stated about thirty-three acres to be tithe- free, and errors of description were not to vitiate the sale, the pur- chaser was compelled to be satisfied with a compensation (o). 27. And where a mansion-house and pleasure-grounds, and seven acres of pasture were sold, without any mention of tithes, and the great tithes which had been conveyed to the vendor were added with- out any additional price; the purchaser was not allowed to escape upon the ground of an objection to the title to the tithes (p). 28. Where the contract is to sell an estate tithe-free, the vendor not representing himself to have title to tlie tithes, if the purchaser 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 com- pensation iq). 29. These points will soon cease to be important, except for the principle established by them ; for the commutation of tithes in Eng- land and Wales for rentcharges is provided for (r), and in due time, with few exceptions (s\ all lands will be absolutely discharged from tithes (t) ; and corn-rentcharges Avill be payable in lieu of them, with powers of distress and entry and enjoyment of the land for securing them (u) ; but still a purchaser should ascertain that the commu- tation is a binding one (v). Owners of both lands and tithes (.r), even tenants for life(y), are empowered to merge the tithes in the lands ; and in Ireland tithes are abolished, and rentclianges substituted for them (z). (m) 26 aiar. 1814, MS. (,2) Todd v. Gee, 17 Ves. 273; qu. how (?i) Smith V. Lloyd, 2 Swan. 224, n.; is the comiiensation to be esthnated ? WalHnger v. Hilbert, 1 Mer. 104. (;•) 6 & 7 Will. 4, c. 71 ; 1 Viet. c. G9. (o) Binks v. Ld. Rokeby, MS., 2 Swan. (s) S. 90. (0 S. 67. 222 ; Smith v. Tolcher, 4 Rus. 302 ; where {u) S. 81, 82, 83, 84, 85. the former case is not accm'ately quoted in (v) Runbury v. Fuller, 9 Ex. 111. the judgment. (.r)S.71. (y) 1 & 2 Vict. c. 64. (p) Smith V. Tolcher, 4 Rus. 302. {z) 1 & 2 Vict. c. 109. 268 OF TITHE : LAND-TAX. [CII. 8. S. III. r-i^-^ -^-^T^ •^^' Tithe, like land-tax (I), has never been deemed an ineumbrance, — ' ^ ' 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 tithe, 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 prol^ably not be noticed, unless it be a low one ; but although the particulars or agreement are 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 presumed to be subject to tithes, and now rentcharges arc substituted for tithes. 31. Where the land-tax had been redeemed and the rentcharge in lieu of land-tax had become merged, and part of the property Avas mentioned in conditions of sale to be " subject to such apportionment ^ /^ J f). 11. But where a vendor gives a false description of the estate, the purchaser may at law rescind the contract, although it be pro- vided that errors of description shall not vitiate the sale. As where before the Eeform Act an estate was stated to be but one mile from (j) Scott V. Hanson, 1 Sim, 13 ; vido (m) Magennis v. Fallon, 2 iMol. 588, 580. sup. p. 2. («) 1 Riis. & My. 128 ; 1 Ves. 207; 13 (A) Magennis v. Fallon, 2 Mol. 501. Ves. 78 ; 2 Mol. 688, 589. (0 Shirley r. Davies, 6 Ves. 678, dis- (0) Mildmay v. Ilungerford, 2 Ver. 243. approved of. {p) Price v. Dyer, 17 Ves. 356. s2 276 purchasek's knowledge [ch. 8. S. IV. a boroiigli town, and it turned out to be between three and four, the contract was hekl to be voidable by the purchaser (*/). And of course the same rule would j^revail in equity. 12. So where the estate was described to have lately 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 (?•)• And where the state of the house was not jDerfectly visible to everybody, and the state of the repairs was falsely represented by the seller, knowing that the house had the dry-rot, without communicating that fact to the purchaser ; the purchaser had a compensation, with which he was satisfied (5). 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 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, the latter recovered the deposit (i^). 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. As where an estate was incorrectly described as being within a ring fence, which might not be a subject of compensation, the purchaser was excluded from insisting upon the objection to complete the contract. He saw the farm before he purchased ; he had lived in the neighbourhood all his life, and this variance ^va,s the object of sense, and he was not entitled to compensation (ii) : it Avas like a house without a roof or windows warranted as in perfect repair. And in another case, Avliere there was a representation as to the state of repair, it Avas said that as to Avarranty, if the defect Avas patent or obvious, the Avarrauty Avould not bind(i'). 15. But Avhere a particular description is given of the estate, Avhich turns out to be false, and the j)urchaser cannot be proved to have had a distinct knoAvledge of the actual state of the subject of the contract, he will be entitled to a compensation. As where the particular, contrary to the fact, described the house as being in good repair, and the farm as consisting of arable and marsh land, in a high state of cultivation, sufficient knoAvledge v/as not proved against the purchaser; and admitting that he might, by minute examination, make that discovery, he was not driven to that examination ; the other party having taken upon him to make a representation (.r)- (q) Duke of Norfolk v. Worthy, 1 Ca. sider 8 Cla. & Fin. 792; Ld. Brooke v. 837; Fentoni?. Browne, HVes. 144; v. Roimthwaite, 5 Ha. 380; Shackleton v. Christie, 1 Sal. 28, by Ev. ; Trower v. New- Sutcliffe, 1 De Ge. & Sma. 609. combe, 3 Mer. 704. (v) Grant v. Munt, Coo. 173. (r) Loyes r. Rutherford, K. B. 16 May (x) Dyer v. Hargrare, 10 Ves. 505 ; 1809, MS. Brandling v. Plummer, 2 Drew. 427 ; Drys- (s) Grant v. jMunt, Coo. 173. dale v. Mace, 2 Sma. & Gif. 225; 5 De Ge. (0 Stevens v. Adamson, 2 Star. 422. Mac. & Gor, 120. («) Dyer v. Hargi-ave, 10 Ves. 695. Con- CH. 8. S. IV.] THAT DESCRIPTION IS FALSE. 277 16. A representation of the past average yearly produce of woods may, altliougli incorrect, bind a purcliaser, if he had sufficient infor- mation to lead him to inquire- But such a general representation, though literally true, yet if the produce was made by improperly racking the woods, Avould be a fraud. The maxim, caveat emptor, does not apply where there Avas a positive representation essentially material to the subject sold, and Avhich at the same time is false in fact(?/). 17. 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 (2:). 18. Where the house is described to be in good repair, if the pur- chaser wanted possession of the house to live in at a given period, by which time the repairs could not be completed, he ought not, it seems, to be bound to complete the contract (a). And a purchaser may be released if ornamental timber exhibited on a map is cut down after the contract (Z»). This case proves that a purchaser is entitled to the subject as described, and that the alteration of it, after but before the completion of the contract, in a subject which admits not of comj^ensation, avoids the contract as against the purchaser. But ordinary timber cut down after the contract may be a subject of compensation (c). 19. If a mine prove after the purchase to be full of faults, and although the coal is not Avorked out, nature lias done Avhat the pur- chaser knew beforehand it often does, namely, caused an interruption of the vein of coal ; that is one of the incidents Avliich must be calculated upon in buying mining property, and therefore cannot be a reason for avoiding the contract {cl). 20. Where the defect is a lateiit one, and the purchaser cannot by the greatest attention discover it, if the vendor be aAvare of it, and do not acquaint the purchaser Avith the fact, the contract is not binding at laAV or in equity, although he bought the estate ?^'^Y/i all faults (e). This question has generally arisen on sales of ships. Where a ship so sold, but improperly described, Avas kept afloat so that her defects could not be discovered ; that Avas deemed a fraud (/); but unless there be fraud, the purchaser buying " Avith all faults " cannot be relieved (_^). The condition excuses the seller from stating the faults Avithin his knoAvledge, but he must not use any artifice to (?/) Lowndes v. Lane, 2 Cox, 363. (/) Schneider v. Heath, 3 Ca. 50G. \z) White V. Cuddon, 8 Ola. & Fin. 7fiG; {g) Baglehole v. Walters, 3 Ca. 154 ; see Sug-d. H, of L. 589. 1 Bal. & Be. 515; Early v. Garrett, 9 Bar. (fl) S^^p. ch. 6. & Cres. 928; By water r. llichardson, 1 Ad. {h) Magennis v. Fallon, 2 Mol. 588. & El. 508 ; Pickering v. Dowson, 4 Tan. (c) S. C. 779; Jones r. Bowden, ib. 847; Shepherd (rf) Ridgwayr.Sneyd,lKay,636,perA''.C. v. Kain, 5 Bar. & Al. 240; Freeman v. (e) Hellish v. Motteux, Peak. 115v Baker, 5 Bar. & Ad. 797. S3 278 WHERE SALE IS WITH ALL FAULTS. [CH. 8. S. IV. conceal them from the purchaser. Where the seller knew of the defect, and did not disclose it, although he also knew that the pur- chaser could not by any attention whatever possibly discover it, tliere is much more difficulty. 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 subject witli all its faults without disclosing the concealed one, seems only, in a moral view, on a level with him Avho, making a similar sale of a subject where a defect might by diligence be discovered, resorts to artifice 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. The rule is not that the seller may use his skill to conceal, and that the purchaser is to exercise his to discover the defects. The distinction therefore is but a thin one between a man who has plastered 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 discovered: 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 consummated, when the seller by his silence induces the pur- chaser 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 covered the defect, and that the other only knew that it had been covered ? 21. But where even the estate is sold generally and not subject to all faults, the ground and basis of an action in a 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 ; and there- fore, if the vendor was not aware of the defect, he will not be answerable for it. Nor Avill trifling defects be a sufficient foundation for such an action. Thus (/i) where a purchaser brought an action against a vendor, to recover damages for having sold him a house, knowing it had the dry-rot ; it appeared 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 witnesses ; they were mere bagatelles. If these small circumstances were to be the foundation of an action, every house that was sold would produce (A) Bowles V. Atkinson, N. P. MS.; Legge v. Croker, 1 Bal. & Be. 50G; see Grants. Munt, Coo. 173, svp. CH. 8. S. IV.] OF CONCEALMENT OF DEFECTS. 279 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 consider himself as a witness in the cause, he could say he had met with something of this kind, and he never thought himself imposed upon, because now and then some rotten boards and rotten joists might be found about a house. Besides, there was no imposition, no mala Jides in this case. 22. And 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 alleged fee-simple afterwards became vested in assignees of a bankrupt, who sold such right or title as might be theirs, with all faults and defects, if any, and the purchase-money was paid, and afterwards the lessor re- covered the property; the purchaser was held to have no right to recover the purchase-money, although a false statement had been made to him as to the non-payment of rent, for the concealment must be fraudulent, and the statement, though false, was found by the jury not to be fraudulent {{). 23. Although the purchaser might, with proper precaution, have discovered the defect ; yet if, during the treaty, the vendor indus- triously conceal it, equity will not assist him. Thus, where the estate was represented as clearing a net value of 90 /. per annum, and there had been an industrious concealment of a necessary repair of a wall during the treaty, the bill against the purchaser was dis- missed, but without costs (A). So where, upon the sale of a house, the seller being conscious of a defect in a main wall, plastered it up and papered it over, it was held that, as the seller had actually con- cealed it, the purchaser might recover (Z). But in the absence of warranty or active deceit, the rule caveat emptor applies — in the case of a house, for example, he must himself ascertain whether it is in a safe condition for habitation (m). 24. 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 {n\ But although a purchaser Avaive the objection to a gross misdescription of the property, yet upon a further discovery of objections arising out of the misdescrip- tion he may rescind the contract (o). (i) Early v. Gan'ett, 9 Bar. & Cres. 928; (»*) Keates v. Earl of Cadogan, 10 C. B. 2ioiit, c\\. 13, s. 2. tJ9l ; a case of landlord and tenant. /;\ 01-1 ci it 1 T> n n tAn ("■) Campbell r. Fleming, 1 Ad. & El. 40. (k) Slnrley v. Stratton, 1 Bro. C. C. 140. ) ,', .„ ?, ^ -^ ' (o) Stanton v. Tattersall, 1 Sma. & Gif. (/) 4 Tan. 785. 529 ; 1 7 Jur. 907. ^//i . /^ ^ S4 [ 280 ] [CH. 9. S. I. CHAPTER IX. OF AGREEMENTS TO ACCEl'T A TITLE, AND OF WAIVING OBJECTIONS TO TITLE, AND OF THE REMEDIES WHERE THE TITLE IS IN DISPUTE. SECTION I. OF AGREEMENTS TO ACCEPT A TITLE, AND OF WAIVING OBJECTIONS. G. 7. 8. 9. 10. 11. 12. 13. 15. 16. 17. 18. 19. 20. Riyltt to good title, although seller claims under purchaser. General right to good title— Condition to accept the title as it is. Must be free from ambiguity. Stipulation as to title, xvhere no repre- sentative of legal estate. Sale under power without the notice required. Pre-emption : title. Clarke v. Fau.v. Corrall v. Cuttell. Sale of benefit of proposal : tolls. Parties bound to fair performance of conditions. Contract to be void if purchaser^ s counsel object to title. Solicitor buying from client inth a title which he accepted. Possession a waiver of objections Should be put in issue^ Waiver a question of fact — Forcible pos- session by purchaser. Right of sporting first disclosed in ab- stract. Possession tvith long delay, a waiver. Although purchaser swear he did not mean it. Lease by a purchaser to one i7i possession. Possession under contract no ivaiver. 21. 23. 24. 2G. 28. 29. 30. 31. 32. 33. 34. 37. 38. Or with vendor's concurrence. And acts of ownership do not bind. Reselling ichere a waiver. Or preparation of conveyance. Notice of limited title binding. Purchaser not bound by his counsel's opinion. Nor by his solicitor's statement to coun- sel, if seller file a bill — Waiver by counsel. Objection taken when too late to be re- medied, a device. Ptirchaser accepting abstract may prove title bad. Waiver of objections to title, but not to JJi'Oof Acquiescence a waiver. Possession; interest and costs. Seller turning purchaser out of jmsses- sion, has no equity — Waiver restricted by stcbseqi/ent acts. Waiver, and then had title jjroduced. Purchaser rejecting title, should relin- quish possession. PurcJiaser keeping back one objection, Oirinion taken on title, no waiver of col- lateral objection. Authority of agent to tvaive. Letter by solicitor's clerk, without au- thority. "VVe may first consider the cases where a purchaser by his contract 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 although the seller claim under the pur- chaser as a mortgagee, with a power of sale, and therefore the pur- chaser was fully avfare of the objection, which was that the property Avas out of repair and the landlord had a right of re-entry (a). («) Biu-nett V. Wheeler, 7 Mce. & Wei. 304. CH. 9. S. I.] RIGHT TO GOOD TITLE. 281 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 {b) (I). But a vendor may of course stipulate that the purchaser shall accept the title, such as it is (c). Where trustees of a land society stipulated, upon a sale by auction, that they should only enter into a covenant that they had not incumbered, as they had no beneficial interest, and that no objection should be taken to the right of the vendors to hold all or convey the property, it was held that the purchaser was bound to accept a simple conveyance from the trustees (d). But a condition to take a title Avithout its usual guards, e. g., a leasehold title Avithout 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, ov -^^^ ' ^^° from notice of the liability (/ ) ; but the purchaser will be allowed to take advantage of any ambiguity {(/). If, as the Court observed (Ji), a vendor sells property under stipulations which are against common right, and place the purchaser in a position less advantageous than that in which he otherwise would be, it is incumbent on the vendor to express himself with reasonable clearness ; if he uses expres- sions reasonably capable of misconstruction ; if he uses ambiguous words the purchaser may generally construe them in the manner most advantageous to himself, and accordingly in the case in which this observation was made, the purchaser upon an expression which {h) Hall V. Betty, 4 Man. & Gra. 410. Freme v. Wright, 4 Mad. 364; Molloy v. (c) Wilmot V. Wilkinson, 6 Bar. & Cres. Sterne, 1 Dm. & Wal. 585, et qu. ; Taylor 50G; Groom r. Booth, 1 Drew. 548. v. Martindale, 1 Yo. & Col. C. C. 058; (rf) Lethbridge v. Kirkman, 25 L. J., N. Nouaille v. Flight, 7 Bea. 521. S. 89. ((/) Seaton ik Mapp, 2 Col. 55G; 3 Ex. (e) Souter v. Drake, 5 Bar. & Ad. 992; 513, et qu. some of the views; sup. p. 14, Spratt V. Jeffery, 10 Bar. & Cres. 249; the eases collected. Shepherd v. Keatley, 1 Cro. Me. & Ros. (//) Seaton v. Mapp, 2 Col. 556 ; the doc- 117 • Wheeler v. Wright, 7 Mee. & Wei. 359; trine in 3 Ex. 513, as to the indistinct state- Leathent'. Allen, 1 Jr. Cha. R. 683; Wright ment in the auctioneer's catalogue, and the V. Griffith id. 095 ; Fennelly v. Anderson, id. nature of the auctioneer's authority from his 700 • Hume v. Bentley,,5 De Ge. & Sma. 620. principal who adopted the sale, touches upon (/) Lloyd V. Crispe, 5 Tau. 249, sup. ; dangerous gTOund. (I) But the rule of law is otherwise on the sale of goods where there is no implied war- ranty ; and if there be no ii-aud, a vendor is not liable for a bad title unless there is an ex- press warranty, or an equivalent to it by a declaration or conduct. It would seem, however, that there are few cases in which the purchaser losing the goods might not recover the pur- chase-money, as on a consideration that failed; and the affirming by the seller that the property is liis own, amounts to a warranty, and of com-se fraud is an exception to the general rule ; and with respect to executory contracts of purchase and sale, when the sub- ject is unascertained, and is afterwards to be conveyed, it would, it is said, probably be implied that both parties meant that a good title to that subject should be transferred in the same manner as it would be implied under similar circumstances that a merchantable article was to be supplied. Morley v. Attenborough, 3 Ex. 500 ; Chapman v. Spiller, 14 Q. B. 622. In sales under the Incumbered Estates Act in Ireland a Parliamentary title is conferred, 12 & 13 Vict. c. 7 ; 15 & 16 Vict. c. 67 ; 16 & 17 Vict. c. 64. 282 SALE UNDER POWER WITHOUT NOTICE. [CH. 9. S. I. could hardly be considered doubtful Avas allowed, contrary to the clear intention, to raise an objection upon an earlier lease than that sold, and on that ground to escape from the contract. 3. And where upon the sale of a leasehold it was stipulated that the seller was to produce a good title commencing from the freeholder [but no title or evidence of title to be produced or authenticated prior to the date of the lease granted to the seller], it appeared that the lease was preceded by a contract for it, and that the seller had mort- gaged his equitable interest, and upon a bill filed by the seller it was held that he could only have a decree upon producing the title from the contract down to the lease, for the language was ambiguous, and it was considered that the part between crotchets amounted to a re- presentation that the leasehold title did begin with the lease (z). 4. So in a (;ase (Jt) where a leasehold estate had been assigned by a man to the trustees of his marriage settlement, and his wife sur- vived him, and under his will and under the settlement she became entitled to the whole beneficial interest, and her executors sold the property at a time when there was no personal representative to the survivor of the trustees under the settlement; upon the sale the conditions stated the facts correctly (but was silent as to the want of a representative of the legal estate), and stipulated that they would within seven days deliver to the purchaser an abstract of the lease, and of the wills of the husband and wife, but they were not to be called upon to deduce the lessor's title or any earlier title, nor should the subsistence of the lease be qviestioned, " but the purchaser should be satisfied with an assignment from them of the beneficial interest." The Master of the Rolls dismissed the claim of the seller with costs, for the purchaser was to have the whole beneficial interest, and not such beneficial interest only as was vested in the vendors. This was putting a construction on the words of the condition which they do not seem to bear, but the condition might well deceive a purchaser as to the legal estate. 5. So where a mortgagee with a power of sale sold with a con- dition that as the sale was made by a first mortgagee under a power of sale, the purchaser should not be entitled to receive any abstract or evidence of the incumbrances subsequent to the mortgage, although notice of such incumbrances might appear in the title to be shown ; it appeared that notice was required to be given under the power of sale, but none had been given, as the mortgagor waived it, but before the waiver he had executed other mortgages, and the persons said to claim under Avhich had subsequently to the sale ratified it by deed ; the purchaser was allowed to recover his deposit, as the title was not (0 Rhodes v. Ibbotson, 4 De Ge. Mac. & 103 ; Symons v. James, I Yo. & Col. C. C. Gor. 787 ; 23 L. J. 459; Drysdale v. Mace, 487. 2 Sma. & Gif. 225; 5 De Ge. Mac. & Gor. {k) Smith v. Elhs, 14 Jur. G82. en. 9. S. I.] CLARKE V. FAUX. 283 the simple one set fortli by the condition, but depended upon the operation of the waiver and the title of the subsequent mortgagees (Z). 6. Where a lease was granted for two years, and it was agreed that the lessee should have the right of purchasing the property at the end of or during the term at a price fixed ; it being understood that the lessor was possessed of the premises for his own life, and the life of a third person named, and of the survivor of them, it was held that the lessee was entitled to require a title for the two lives, for the description only operated to limit the liability to make a title in fee, and did not compel the purchaser to take such interest as the lessor had (jn). 7. In Clarke v. Faux (n), an estate was sold. by assignees of a bankrupt, and a good title was to be made. One of the assignees was the purchaser, and took possession, and 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, with interest, upon the seller to him making a good title to the premises, or 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 (o). The Court of Common Pleas held, that the purchaser had bound himself to pay the money, on the single condition of having the bond executed. Eut 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 completed; but subject always to this condition, that the vendor had the power to complete it, and that it Avas 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 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, the purchaser having brought the money into court upon obtaining an injunction. When the decision upon this point was made in the Court of Chancery, it was not known that the court of law had pronounced a unanimous judgment the other way, although it was of course known that the seller had recovered at law. If the (l) Foster v. Iloggart, 14 Jur. 757. (»i) 3 Rus. 320. (m) Worthington v. Warrington, 5 C. B, (o) Willett v. Clarke, 10 Pri. 207. C3G. 284 ' DEED ALLEGED TO BE FORGED. [CH. 9. S. 1. 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. 8, In a case (p) where the agreement stated that an alleged deed was set up by a third party, which the seller 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 o-ood 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 purchaser 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 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 damao-es. They refused to decide as to the power of the seller to make a title, without the concurrence of the grantee, because the ao-reement stated the opinions on that point, and the provision that the purchaser was not to make any objection on account of the deed interdicted him from every species of objection arising out of the deed. 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 (q). The true o-round in equity must have been, that the condition pro- vided for the case of the deed being genuine, for if there was a warranty that the deed was a forgery, which was false, although not fraudulent, equity would not, it should seem, have specifically 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 is equity. 9. A man simply buying the benefit of a proposal to take a build- ino- lease, sio-ned by the intended lessee in the lessors agent's books, cannot ask equity to relieve him, whether the landlord be bound or not (r). And where a title to tolls was deemed doubtful in regard to the court out of which probate had issued, the seller was held not to be bound to make good the representation, as he contracted under the belief that he had a title in himself (*). Where A had purchased the (p) Corrall v. Cuttell, 4 Mec. & Wei. 734. (r) Baxter v. Conolly, 1 Ja. & Wal. o76. {q) Cattell v. Corrall, 3 Yo. & Col. 413 ; (s) Willianis; v. Bland, 2 Col. 575. 4 Mee. & Wei. 734. / ^^^^^ ^ ^^/P^Ii-fJ A^- -^S/ / en. 9. S. I.] CONDITION TO AVOID CONTRACT. ^85 estate from B, and agreed to demise part of it to C with a purchasing clause, and C agreed in case of such purchase and conveyance to accept the title of A without dispute, and an abstract of title was to be furnished ; C, having elected to purchase, was held bound to accept the title, although the legal estate was outstanding in a mortgagee under B, who had been paid off before A purchased (t). 10. We have seen that a condition to avoid a contract if a good title cannot be made to the approbation of the purchaser, or if the purchaser should not pay the money at the day appointed, does not authorise the seller to say he cannot make a title, or the purchaser to say that he has not the money. Neither can refuse to perform his part (li). But where, if the purchaser's objections were not removed Avithin a time limited, the seller was to be at liberty to annul the contract, repaying the deposit with interest and auction duty, but without costs, and the purchaser made an untenable objec- tion, and the vendor annulled the contract, the purchaser's bill for a specific performance was dismissed with costs (.r). This case, there- fore, 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. 11. And where (y) 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 the seller could make a title to 2-3ds only of the freeholds sold in fee, and that he had only a life interest in the remaining l-3d, and in the copy- holds sold ; it was held that the purchaser was not entitled to a spe- cific performance with an abatement ; for this title did not of course fall Avithin the condition as to errors of description, and the clause avoiding the contract was the contract of both the vendor and pur- chaser. This case does not contradict Roberts v. "VVyatt : 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 pro- vided for, viz., the purchaser's counsel being of opinion that the title was bad. His counsel was of that opinion, and the soundness of his opinion was not disputed. The Court held, not that this stipulation relieved the seller from making a title if he could, but 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 (0 Duke V. Burnett, 2 Col. 337. (.r) Page v. Adam, 4 Bea. 209. (it) Robertsr.Wyatt,2Tau.268,S7/'i;.p.l8. (y) Williams v. Edwards, 2 Sim. 78. ^. 286 POSSESSION A WAIVER OP OBJECTIONS. [CH. 9. S. I. the opinion of the purchaser's counsel was erroneous, for such a sti- pulation is understood to mean a reasonable objection. 12. A solicitor, or one of a firm, employed to advise on the title to a property, could not, on purchasing the same property from the client, set up an objection to the title which he or his partner did not take when advising the princii^al {z). 13. Sometimes a purchaser has waived his right to object to the seller's title : where that is the case, the seller's bill should be framed so as to put the question in issue, or evidence to prove the waiver cannot be received (a). In most cases the waiver is not express, but implied from the conduct of the purchaser, and I propose to consider, 1. What will amount to an implied waiver; 2. How far such a waiver may be modified or altogether nullified by subsequent conduct or discoveries. 14. A purchaser by entering into possession is generally held by that act to have waived the objections to title (Z^) ; he may be consi- dered to have himself executed the purchase (c). But he must be shown to have had distinct information of the objection (c?). 15. The question in each case is one of fact: did the purchaser 6?2^z> "■ mean to waive, and has he actually waived his right of examining the title (e) ? although his intention will be inferred from his acts, and no direct expression of it is rec[uix-ed. His silence, as we shall see, may be tantamount to the clearest expression of being content with the title. If he take forcible possession, and prevent a title from being obtained to a part, he will be held to have waived the objection, but not his right to compensation (/). As a general rule, a party to a contract should forthwith state an objection which comes to his know- ledge or upon which he intends to rely {(f). 16. 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 ab- stract of title, and known to the purchaser's solicitor, but neither of them gave any intimation of it, and the purchaser upon his own appli- cation was let into possession, it was held that he had not only Avaived the objection, but was not even entitled to any compensation (A). 17. 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 possession was given accordingly, and an abstract delivered, to which no objec- {z) Beevor ij. Simpson, Tam. G9. (d) Blackloww. Laws, 2 Ha. 40; Bentley («) Clive V. Beaumont,! De Ge. & Sma. v. Craven, 17 Bea. 204. 397;GastonD.Frankum,2DeGe.&Sma.561. {p) 3 Swan. ] 68. (&) Fludyer v. Cocker, 12 Ves. 27; Binks (/) Calcraft v. Roebuck, 1 Ves. j. 221. V. Ld. Rokeby, 2 Swan. 222. (jr) Flint v. Woodin, 9 Ha. 618. (c) 3 P. Wms. 193; Wan-en v. Richard- \h) BHrr o ll - v. Brown, 1 Ja. & Wal. 1G8. son, Yo. 3. ''Qu^t^*^ CH. 9. S. I.] LEASE, ETC. BY PUECHASEE. 287 tion was made, but the purchaser had delayed to complete the pur- chase 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 {i). 18. And although the piu'chaser swear that he did not mean to waive his objections to the title, yet he may be bound by his acts. The grant of a lease with full knowledge of the title would in most cases operate as a waiver of the objections (k). 19. 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 (/). 20. But if possession is authorised by the contract to be taken before a title is made, the fact of possession cannot by itself be used against the purchaser (??i), for that Avould be contrary to the very terms of the contract (w). 21. And where a purchaser is entitled to call for a good title, his taking possession with the concurrence of the vendor will not amount to a waiver of any right ; and the subsequent delivery of abstracts or negotiations on the subject of title render this clear (o). 22. And if a purchaser do take possession, with notice of a defect which it is understood is to be remedied, he cannot be compelled to complete his purchase if the title be not made good (p). 23. Acts of ownership, after an authorised possession, are of no importance ; for what can be the purpose or advantage of taking pos- session, except to act as owner ? And a fall of underwood in due course is no more than gathering a crop of corn or hay (q). Nor would more important acts of ownership of themselves amount to a waiver of a good title : even where possession of four acres w^as 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). So where pur- chasers in possession filed a bill to set aside the contract on the ground of fraud, great alterations by them, e. g. trees cut down and the sur- face altered, were held to be all in the natural exercise of the rights of the supposed owner of the property (5) ; but of course, pending a (t) Fleetn'ood u. Green, ISVes. 59I3 see 655; 2 Mou. & Ay. 255. 3 Swan. 172; Margravine of Anspach v. (m) Dixon u. Astley, 1 JMer. 133, ch. 4, Noel, 1 Mad. 310; 3 Swan. 172; Hall v. s. 4, sup.; Wright r. Griffith, 1 Jr. Cha. R. Laver, 3 Yo. & Col. 191 ; see Blachfoi-d v. 695; Sibbald v. Lourie, 18 Jui-. 141. Ku'kpatrick, 6 Bea. 232 ; Sibbald v. Lourie, («) Stevens v. Guppy, 3 Riis. 171. 18 Jut. 141 ; Pegg v. Wisden, 16 Bea. 239; (0) Bui-roughs v. Oakley, 3 Swan. 159. Simpson ?•. Sadd, 2 Sma. & Gif. 469 ; 4 De {])) Duncan v. Cafe, 2 Mee. & Wei. 244. Ge. Mac. & Gor. 665; Wallis v. Woodyear, (q) S. C. 2 Jut., N. S., 179. (') Osborne v. Harvey, 1 Yo. & Col. {k) Ex pte. Sidebotham, 1 Mon. & Ay. C. C. 116. 655; ^arp^e. Barrington, 2Mon.'& Ay.225. {s) SmalU-. Attwood, Yo, 506; 507 ; 6Cla. {I) Ex pte. Sidebotham, 1 Mon. & Ay. & Fin. 232. 288 ACTS AMOUNTING TO A WAIVER. [CH. 9. S. I. contract, a purchaser would not be justified in damaging or altering the nature of the property In material respects not incident to the temporary occupation. 24. Attempting to resell the estate is an important circumstance upon this question of waiver, but that, like all other acts, may be explained {t). An actual resale, indeed, as far as mere title is con- cerned, can seldom be deemed an acceptance of it, because unless the first purchaser has bound the second to take the title as it stands, the former must intend to obtain a good title himself in order to confer it on the latter. Where a title cannot be made to a portion of the estate, and the purchaser attempts to resell that portion, that unexplained, or an actual resale, would show that he did not consider that portion Chowever in fact complicated with the estate) as material to the enjoy- ment of the bulk of the property, and therefore it v/ould be so far a waiver, that he would be compelled to complete his purchase, with a compensation (u). 25. 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 waived his right to call for the lessor's title, because he had entered into pos- session, and paid part of the money, and given security for the residue (all which was consistent Avith the contract), and had, subsequently to the grant of the lease to the seller, made a security to certain brewers upon his interest in the lease (u). 26. 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 (?/?). 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. So the examination of the deeds Avitli the abstract may be entitled to weight (x) ; but this must depend upon circumstances. In many cases the abstract is examined with the deeds before it is submitted to counsel. 27. Where a purchaser obtained a conveyance from the sellers of the entireties, moieties, and other undivided shares of certain proper- ties, and disputes afterwards arose as to what had passed, and it was agreed that the purchaser should pay a fixed sum, and it was referred to an arbitrator to direct what deeds and releases should be executed for the assurance of the estates, it was, of course, held that the pur- chaser had no right to require a title to be produced to any jiart of (0 KnatclibuU ?;. Gnieber, 1 Mad. 170. mont, 1 De Ge. & Sma. 397; Smith v. (m) KnatchhuW v. Gvnehev, ubi su]). Capron, 7 Ha. 185; Harwood v. Bland, (v) Haydon v. Bell, 1 Bea. 337. 1 Fla. & Ke.540. (ic) Burroughs v. Oakley, 3 Swan. lo9; (.r) Pegg v. Wisdeu, 16 Jur. 110.5. WaiTcn V. Richardson, Yo. 1 ; Clive v. Beau- CII. 9. S. I.] PURCHASER NOT BOUND BY COUNSEL'S OBINION. 2Si) the property sold (?/). But this was liardly a case of Avaiver, for tlie acceptance of the conveyance concluded the right to require a title, and the reference to arbitration was so framed as to confine the pur- chaser's right to a conveyance of any disputed property. 28. If a purchaser having full notice that he is not to expect a title beyond a limited period, concludes an agreement for purchase, he will be held to have waived his right. This is by matter of notice, and not of contract {z). 29. But a purchaser cannot be held to have waived objections to a title because his counsel has approved of the title. Lord Eldon deter- mined, that where an abstract is laid before counsel, who approves the title, his approbation is not to be taken as a waiver of all reason- able objections. The purchaser may either take an opinion from some other counsel or the one first consulted may correct his error in a further opinion (a). 30. And although a purchaser's solicitor state, in a case for counsel, that all the objections to the title are removed save one, yet if the seller file a bill, the purchaser will be entitled to a general reference as to title (b) ; but if counsel Avaive the production of a particular document stated in the abstract to be lost, and the purchaser adopt that opinion and deal Avith the seller upon that view, he cannot after- wards repudiate the opinion. Where an abstract states deeds to have been lost, the purchaser should take the objection at once if he intend to rely upon it (c). 31. A demand by a purchaser at the last hour, of possession of some cottages, part of the purchase, which he knew to be in possession of weekly tenants, was treated as a waiver, and a device to rescind the contract (f/). 32. 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 enforced {e). 33. And of course the 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 (/). 34. Statements in the abstract, that the seller has not in his posses- sion or power certain of the deeds, or has them not in his possession, will bind the purchaser, if he 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 (^). Nor where upon a trial (y) Godson v. Turner, 15 Bea. 46. (c) Alexander v. Crosbie, 1 Jo. & Lat. GG6, (r) 3 Mer. 64. {d) 1 Per. & Dav.381. {a) Deverell v. Ld. Bolton, 18 Ves. 505; (e) 1 Yo. & Col, 570, 571. Harwood v. Bland, 1 Fla. & Ke. 540. (/) Southby v. Hutt, 2 My. & Cra. 207. (6) Lesturgeon v. Martin, 3 My. & Ke. 255. {(j) S. C. 290 WAIVER OP OBJECTIONS TO TITLE. [CH, 9. S. I. a lease is produced, will the purchaser be held to have waived objec- tions arising out of it, and of which the abstract did not give full information (A). 3a. A i)urchaser may, by simple acquiescence, be held to have waived objections to the title, although he has not taken possession {i). But if, having purchased out of court, he go in under a decree, in a suit instituted for administering the estate, he will not be precluded Irom taking any objection which he otherwise might have taken {k). 36. 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 uj)on the acceptance (Z). 37. Possession being taken is an implied agreement to pay in- terest (m), and would have weight as to costs (/i). 38. Where the vendor in a contract for sale makes it part of the contract that the purchaser shall be let into immediate possession, and a question afterwards arises whether it is a case for compensation 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 ; but the seller by his act destroys the contract (o). 39. A man, by going on to treat, does not waive an objection he is constantly insisting upon. A treaty cannot waive that Avhicli he treats about {p). 40. And if a purchaser have actually waived his right to call for a title, and afterAvards, for the purpose of settling a conveyance, a deed is produced wliich shows a bad title, he will not be compelled in equity to accept the bad title (q). 41. If a purchaser take possession under a contract, and afterwards rejects the title, he must relinquish the possession, and equity cannot prevent the vendor from tiu'ning him out by an ejectment, although he may have expended money in improvements (r). 42. According to a decision of Hart, L. C. in Ireland, if a pur- chaser having two grounds to be discharged, c. g., a bad title and the felling of ornamental timber by the seller after the sale, elects to go upon the objection to title j it does not amount to an abandonment of {h) Flight V. Booth, 1 Bin. N. C. 370. (o) Knatchhull v. Grueber, 3 Mer. 124; (i) Fordyce v. Ford, 4 Bro. C. C. 494; 1 Ves. j. 224. 6 Ves. G79; 3 Mer. 146. {p) Knatchbull v. Grueber, 1 Mad. 170. {h) Cann v. Cann, 1 Sim. & Stu. 284. {q) Warren v. Richardson, You. 1; Wilde (t) Harwood v. Bland, 1 Fla. & Ke.540. v. Fort, 4 Tau. 334; Hume v. Bentley, 5 De (»«) 12 Ves. 27; as to rent, vide sup.; Ge. & Sma. o20, and as to a mortgagee purchasing, see Wallis (?•) Nicloson v. Wordsworth, 2 Swan. 365 ; V. Bastard, 2 Eci. R. 508 ; 4 De Ge. Mac. & see Southeomb v. Bp. of Exeter, 6 Ha. 213 ; Gor. 251. 8 Ha. 61; Gordon v. Mahony, 13 Ir. Eq. ill) See 15 Ves. 464, post, ch. 17, s. 2. Pv. 380. CPUOCs^IJg WAIVER OF OBJECTIONS TO TITLE. 291 the other objection (s). It might not, however, be safe for a i)ur- chaser to act upon this precedent. 43. 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 re- served appeared uj)on the abstract, said, that he did not think ii 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 {t). 44. If a man purchase as agent for another, and the title is not accurately described in the particulars, the agent must have a fresh authority for a different agreement. But when the purchaser and his counsel know the real natui'e of the interest sold, and still act upon the agreement, there may be enough to amount to a binding- approbation of the agent's act {u). 45. If a purchaser by his conduct waive an objection to the title, the seller will not be bound by a letter subsequently written by the clerk of his solicitor, without any authority, stating that no objection would be made to a reasonable compensation (.r). (s) Magennis v. Fallon, 2 Mol, 591; Flight V, Booth, sup. {t) Stewarts. Alliston, 1 Mer. 2G; Dar- lington V. Hamilton, 1 Kay, 550. (m) 18 Ves. 509, 510. (ar) Burnell v. Brown, 1 Ja. &^yal.l68. SECTION II. OF TITLE : IN SUITS IN EQUITY. 1. Seller with equitable estate. 18. 2. Doubtful title. 19 3. Reference of title. 20. 4. Reference back ivhere neivfact. 21. 5. Or where seller can clear vp objections. 6. Objections to report of title. 23 7. Purchaser jdaintiff, and there is no title. 23. 8. Statement in bill of want of title. 24. 10. Objections considered by Court, 2G. 11. Reference of title upon motion. 12. Unless other questions raised. 27. 13. Not frivolous. 28. 14. Vendor's delay — Dismissal of bill. 29. 15. Purchaser after ansirer enforced may make any defence, although title re- 30. ferred. 31. 16. Objections under the new practice. 32. 17. What may be referred. 33. Decree without reference lohere delay. Dejmsit ordered into Court. New evidence itpon the reference. Report or certificate ivhere legal estate outstanding. Pendency of a suit for the estate. Report of conditional title bad. Where exception should stand over. Purchaser not to file a cross bill if title bad. Opinion of conveyancing counsel. Bad title, 7io decree for purchaser. Purchaser may take bad title. Seller obtaining good title after convey- ance. Man buying his own estate. Sale of a remainder already barred. Purchaser neglecting to examine title. T 2 292 REFERENCE OF TITLE. [CII. 9. S. II. 34. Sale nf pre/ ended title — Sale of estate contracted for, (jood. 35. Sale of estate if it shall he devised to seller, valid. 30, Salefor a lottery iller/al : ^mrchase-moncy. 37. Conveyance to multijjly votes. 38. Champerty — Maintenance. 39. Sale of advowson whilst incumbent in extremis. 40. Slander of title. 1. 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 decreed (a), and he must obtain the concurrence of the persons seised of the legal estate. 2. But it is always In the discretion of the Court whether they will decree a specific performance or not. Where there are con- siderable diflacultles on the face of the title, and no means of clearing them up, and no jurisdiction to bind the question, that is not the case for decreeing a specific performance (Jj). 3. In all cases, either party may In general. If he please, have a reference as to the title, though the abstract is In the hands of the party who says he cannot object to it, yet he may Insist \\]}o\\ a reference (c). Either party may, however, waive his right. The seller is always at liberty to produce the proper evidence if he can ; /U^ ///^S' therefore, although by his bill he Insists that the purchaser is entitled only to certain evidence of his title, Avhich he is ready to give, the purchaser cannot demur on the ground that he is entitled to better evidence (rZ). 4. If, after the confirmation of a report In favour of a title, a new fact ai:>pear, by which the title is affected, tlie title will be referred back for consideration (e). In a case where the seller of a leasehold estate produced the leasehold title, which the Master thought suflfi- clent, 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. It was considered that the purchaser was at liberty to enter into olDJections 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 {g) ; for the opinion in favour of the title had prevented the vendor from showing that the title was good on other o;rounds. So where the Master held, as the seller contended, that a devise was too remote, and re- l)orted in favour of the title, but the Court overruled the report, It was sent back to the Master upon the seller's allegation that the (a) Crop V. Norton, 2 Atk. 74 ; Costigan {d) Curling- v. Flight, 5 Ha. 542. V. Hastier, 2 Scli. & Lef. 100. (e) Jeudwinc v. Alcock, 1 Mad. 597. {}>) 4 Bro. C. C. 87, post, ch. 11. (/) Fildesu. Hooker,2 Mer.424; Andrew (c) Jenkins ?;.Hiles,OVes. 053; 3 Mer.137. r. Andrew, 3 Sim. 390. ((/) 3 Mad. 193. CH. 9. S. II.] WHERE SELLER CAN CLEAR UP OBJECTIONS. 293 devise was Immaterial as all tlie limitations had failed (h). Again, where the report was in favour of the title, but an exception Avas allowed as to a subsisting rent-charge, although the case was also on for further directions, time was allowed to the seller to remove the objection(2). And these rules would be adopted under the new practice (k). 5. If it appear, therefore, at the hearing of the objections that the seller can clear them up, the Court would either dispose of the case, or let it stand over, or remit it to chambers for further consideration. Where the estate is subject to a jointure rentcharge for example, and the jointress has not bound herself to release, the form of the cer- tificate should be, that the seller cannot make a good title because A was jointress, and no sufficient evidence had been produced to show that she would release (I). If a title upon a new fact can be made between the certificate and the final disposition of the case, 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 or con- sideration : but the Court would expect counsel to appear and undertake that she would concur {m). The Court will not allow a seller to lie by before the chief clerk, and then upon further consideration in court attempt to make a title. 6. If objections arc taken to the certificate that a good title can be made, and are overruled, other objections to the title cannot be made : but if the objections are allowed, and a new abstract of title is delivered, further objections may of course be brought in {71). In Noel V. Hoy (0), the seller rested his title on the construction of a will, by which be 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 insisted 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 plaintliF after a decree to amend his bill, by bringing new parties before the Court. But time had been allowed to get an Act of Parliament. If the Master was of opinion that the devisees were trustees for the seller, he would report in favour of the title. If a suit should be necessary to try their equity, he would report against It. (//) Egerton v. Jones, 3 Sim. 302; 1 Rus. 17 ; Sidebotham v. Barrington, 4 Bea. 110 ; & My. 094. Jumpson t'. Pitchers,! Col. 13; Keogh v. (i) Curling v. Flight, 2 Phil. 613 ; Dawes Keogh, 13 Jr. Ecj. R. 284. V. Betts, 12 Jur. 412, 709; Stewart v. Ld. (m) 12 Jur. 410, where the true sense of Conyngham, 1 Jr. Cha. R, 5G3. the passage in the text, as it then stood, (k) Sup. eh. 5, s. 2. was stated by Wigram, V. C. (/) Esdaile v. Stephenson, 6 Mad. 30G ; {n) Brooke v. ,4 Mad. 212. Paton V. Rogers, G Rlad. 2o0 ; Magonnis v. (o) V. C. 23 Feb. 1820, MS. Fallon, 2 Mol. 583; llobson v. Bell, 2 Bea. t3 294 PURCHASER PLAINTIFF AND NO TITLE. [CH. 9. B. II. 7. 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 knowledge of the objection (p). 8. If a man file a bill simply stating 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 (q). 9. Where the purchaser prayed a specific performance, " if a good title could be made," and the report, which was not excepted to, was against the title, the purchaser was permitted to accept the title ; but as he was acquainted with the objections at the hearing, he was fixed with the costs of investigation (r). 10. 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 chambers. 11. So an inquiry may be directed as to the title, and at what time the abstract was delivered, and when it appeared that a good title could be made either after (.?) or even before the answer (t). But if the defendant's counsel state that there are other objections, the title cannot be referred (^^). Where the suit commences by a claim, the orders direct " that it be referred to the Master to inquire whether a good title can be made to the property comprised in the agreement in the plaintiff's claim mentioned, and in case the said Master shall be of opinion that a good title can be made, it is ordered that he do state at what time it was first shown that such good title could be made, and this Court doth reserve the consideration of all further directions, and of the costs of this suit, until after the said Master shall have made his report " (x). 12. And in every case where the answer, upon reasons solid or not, insists, that the agreement ought not to be executed, the Court must first dispose of the question raised (?/). 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 purchaser for a reference to the Master upon the title was refused (z). So where the defendant, the purchaser, alleges laches on the part of the (p) Stapylton v. Scott, 16 Yes. 272. (y) Blythe v. Elmherst, 1 Ves. & Be. 1 ; (q) Nicloson v. Wordsworth, 2 Swan. Paton v. Rogers, ib. 351 ; Biscoe v. Brett, 305; 3 My. & Cra. 710; et qu. o Yes- & Be. 377; Fullagar v. Clarke, 18 (r) Bennett v. Fowler, 2 Bea. 302. Ves. 4H1 ; T\Iorgan v. Shaw, 2 Mer, 138 ; (s) Moss V. Matthews, 3 Ves. 279; Wright Boehm v. Wood, 1 Ja. & Wal. 419 ; Withy v. V. Bond, 11 Yes. 30; 17 Yes. 278. Cottle, Tm-. & Rus. 78; I Sim. & Stu. 174; (t) Balmannoi-.Lumley,lYes.&Be.224. Gordon r. Ball, 1 Sim. & Stu. 178; Boyes (u) Matthews r. Dana, 3 Mad. 470; Wood v. Liddell, 1 Yo. & Col. C. C. 133. V. Machii, 5 Ha. 158. (c) Ciompertz v. , 12 Yes. 17 ; Eld- (.r) General Orders, 1850, Sch. No. 10. ridge r. Porter, 14 Yes. 139; 17 Yes. 278. CII. 9. S, II.] REFERENCE OF TITLE BY MOTION. 295 l^lalntiff, as a ground for his not being compelled to perfonn the agreement, the Court will decide the question raised, before the title is referred (a). 13. But if the objection be frivolous, or the point raised be so governed by authority as to present no difficulty, the reference will be made at once (b). 14. The reference will not be made on the motion of the vendor, if he has been guilty of delay after the coming in of the answer (c). Pending such a reference, the purchaser, being the defendant, cannot dismiss the bill for want of prosecution (d). 15. If the title be referred before answer and then the plaintiff enforce an answer, the purchaser, if he have not excluded himself, may make any defence to the bill he thinks proper (e). 16. Where in a suit by a purchaser time was held not to be a bar, the Judge, under the new practice, directed the purchaser to bring in his objections to the title before him within a week, and the vendor could then either remove them or argue them in open court (f). 17. 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, v/hether the defendant objected at any time to the want of such evidence. But an inquiry whether the abstract was perfect, and if deficient, in wdiat respects its deficiency consisted, and whether it was ever perfected, was refused as not being sanctioned by the practice of the Court (g). 18. 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 to the title (h). But the question depends upon a conclusion of fact that the purchaser intended to waive, and has actually waived his right of examining the title, and the waiver may be rebutted by the conduct of the seller, e. ff., in furnishing further documents to make out the title (0. 19. Wliere a vendor files a bill for an injunction and a specific performance, the Court will, upon granting the injunction, in most cases order him to pay the deposit into court. But where the seller (a) Blytlie v, Elmherst, ub. sup. Skelton's (g) Bennett v. Rees, 1 Ke. 405 ; Wood- Case, 1 Ves. & Be. 517 ; Wallinger v. Hil- roffe ». Titterton, 8 Sim. 238. bert, 1 Mer. 104; Lowe r. Manners, 1 Mer. (h) Fleetwood v. Green, 15 Ves. 594; 19 ; Portman v. Mill, 2 Rus. 570. MargTaviue of Anspach v. Noel, 1 Mad. 310; (b) Wood V. Machu, 5 Ha. 158; Curling Ex pte. Sidebottom, 1 Mon. & Ay. G55 ; Ex V. Flight, 5 Ha. 242. j^te. Banington, 2 Jlon. & Ay. 245; South- (c) Dorin v. Harvey, 15 Sim. 49. by v. Ilutt, 2 j\ly. & Cra. 207 ; King v. King, (rf) Gregory v. Spencer, 11 Eea. 143. 1 My. & Ke. 442 ; a case of great ditFieulty. (e) Emery r. Pickering, 13 Sim. 583. (/") Burrouglis v. Oakley, 3 Swan. 159. (/) Peggr. Wisden, IG Jm-. 1105. t4 296 OBJECTIONS TO RErORT OE TITLE. [CH. 9. S. II. is able and willing to make a good title, and the purcliaser is to blame, although the seller is in possession of the estate, he will not be compelled to pay the deposit into court (A). 20. Although the defendant, by his answer, put in issue an objec- tion to the title, and both parties examine witnesses to the point before the hearing, yet both sides may produce further evidence upon the reference (Z). 21. If the seller has vested in him legally, or equitably, all the interest in the estate, it cannot be objected to the report or certificate in favour 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 arise when the conveyance is to be settled (rn). This proposition has been considered to be correct, and the rule has, after argument, been acted upon {71). And it was not thought to be contrary to the opinion expressed in Wynne v. Griffith (0), where the legal estate was assumed to have been outstanding for a great length of time, and it was not certain therefore in whom the legal estate was vested ; in the latter case the seller should trace out the heir at law before he enter into litigation. 22. If a seller file a bill, and a third party file a bill against him, claiming a right to the estate, the nature of the adverse claim should be examined on the reference (p). 23. A good title should not be certified conditionally ; for example, legatees' discharges should be produced, and not an undertaking to procure them, and then a report that a good title can be made upon payment of the legacies (q). 24. If objections be taken to the certificate In favour 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 objections (/•). 25. By analogy to the rule under the old law, if a purchaser is taken by surprise, by the chief clerk for example, he will be allowed to object to a certificate of good title, although he did not object to it before the chief clerk (.s). 26. If the purchaser's defence to a bill for a specific performance rest merely on the want of title in the vendor, he ought to depend (h) Wynne v. Griffith, 1 Sim. & Stn. 147. (0) 1 Rus. 283. (/) Vancouver v. Bliss, 11 Ves. 4o8. (/)) Osbaldeston v. Askew, 1 Rus. IGO. (?«) Berkely v. Dauh, 1(5 Ves. 380 ; see (9) Magennis v. Fallon, 2 Mol. 575. 11 Mee. & Wei. 728 ; ch. 11, s. 3, post. (r) Wilcox v. Bellaers, Tur. & Rus. 491 ; (n) Avarne v. BrowTi, 14 Sim. 303; Robinson?'. Milner,l Ha. 578; 1 Ves. j. 567. Keogh V. Keogh, 13 Ir. Eq. R. 284. (s) Wood v. Lambirth, 9 Sim. 195. (I) This is not now a serious difficulty; see sup. CH. 9. S. II.] PUKCHASER MAY TAKE BAD TITLE. 297 on his answer, and not to file a cross-bill to have the agreement delivered up (t). 27. The Court or any Judge thereof sitting in Chambers may re- ceive and act upon the opinion of conveyancing counsel appointed by the Court in all cases in which according to the old practice it had been usual for the Master to require or receive the opinion of con- veyancing counsel, for his aid in the investigation of the title to an estate, with a vicAV to an investment of money in the purchase or on mortsrajxe thereof, or with a view to the sale thereof, or in the settle- ment of a draft of a conveyance, mortgage, settlement, or other instrument, or otherwise, and in such other cases as the Lord Chancellor shall by any general order direct ; but it is competent for any party to object to any opinion of any such counsel when he shall deem it open to objection, and thereupon the point in dispute is to be disposed of by the Court or the Judge in Chambers {u). 28. Where a bo7id Jide vendor has not a title to the estate, the Court will leave the purchaser to his remedy at law upon the articles {x) ; and although he must necessarily obtain a verdict, if he ), must be proved. If the v/ords be spoken to benefit a friend who was a bidder, or to obtain the property for himself at a lower price, or otherwise to injure the owner, that would amount to malitia {q). (g) Cook V. Field, 15 Q. B. 460. 8 Ha. 274, n. (h) Fisher v. Bridges, 17 Jiir. 1121. (?«) Sugd. H. of L. 672; Fox v. Ep. of (0 Phillpotts V. Pliillpotts, 10 C. B. 85. Chester, 1 Dow., N. S., 416 ; 3 Bli., N. S., (k) Williams v. Protheroe, 5 Bin. 309; 123; 2 Bar. k Cres. 435. 3 Yo. & Jer. 129; Scully^ Delany 2 Jr. („) HargTave v. Le Breton, 4 Bur. 2422. Eq. R. 379. /d^at^C^ o •fe^,^^. C£/^Z^>{o) Smith v. Spooner, 3 Tau. 24G ; Rowe (0 Harrington v. Long, 2 My. & Ke. zL Roach. 1 Man. & Sel. 304; Pitt «;. Do- 590, sed qu. The purchaser appears to have novan, ih. 039 ; Blackham v. Pugh, 2 C. B. had an indirect object to carry on the suit 024. 026 ; Pater v. Baker, 3 C. B. 861.' for other piirpbses. Burke v. Greene, 2 (jy) Malachy r. Soper, 3 Bin. N. C. 371. Bal. & Be. 517; Moore v. Creed, 1 Dru. & (q) Brook v. Rawl, 4 Ex. 521 ; 19 L. J. Wal. 521; Hunter v. Daniel, 4 Ha. 420; N. S., Ex. 114. ' ' ' 300 TITLE TO BE PKOVED BAD. [CH. 9. S. III. jfff^Mll SECTION III. OF TITLE : IN ACTIONS AT LAW. 1 . Injunction until Master's report of title. 2. Title to he proved bad. 0.^ 4.1 Damayes. — None for loss of haryain. !j. What expenses may he recovered. G. No damayes for loss by the funds. 7. Interest on deposit recoverable. 8. And expenses of investiyating title. 9. But not as money had and received, c{c. 10. Costs of survey. 12. Might of action in ^mrchaser's personal representative. 13. Costs as between attorney and client. 14. Particular of objections of law. 15. Averments by seller of title, IG. Tender of conveyance unnecessary if title bad. 17. Seller restrained from bringing an action after bill dismissed. 1 . If objections arise to the title, and the vendee bring an action at law on the ground of want of title, and the vendor file his bill, and an injunction be granted, the Court will not dissolve it, without a report as to the 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 (Jj). If he succeed in proving the title bad, he will, according to the counts upon which he recovers, obtain a verdict either for his deposit or for damages, which in most cases would be regulated by the amount of the deposit. 3. 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 bargain (c), be- cause a purchaser is not entitled to any compensation for the fancied goodness of his bargain Avhich he may suppose he has lost, where the vendor is, without fraud, incapable of making a title. And Avhere an auctioneer, under an old authority sold the property, and received a deposit without any communication with his principal, who had him- self previously sold the property to another person, the purchaser from the auctioneer was held not to be entitled to any damages for the loss of his bargain (d). So in Walker v. Moore (c), where after the contract the abstract was delivered and showed a good title, and the purchaser resold the estate at a profit, and then upon an examina- tion 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 («) Cliurch V. Legeyt, 1 Pri. 301, [h) Camfield v. Gilbert, 4 Esp. 221. (c) Flurcau v. Thornhill, 2 Bla. 1078 ; 3 Bo. & P. 1G7; Brig's case, Pal. .3G4; Clare u.Maynard, 6 Ad. & El. 51 9 j Bratt v. Ellis, Jxmes V. Dyke, Purch. App. ; Buckley v. ^^on, 4 Jr. C. L. R. 211. {d) TjTer v. King, 2 Car. & Ki. 149. (e) 10 Bar. & Crcs. 41G ; qii. if the exa- mination had been made before the 2d sale. ClI. 9. S. III.] NOMINAL OR REAL DAMAGES. 301 original seller the costs of the resale or the costs paid to tlie second purchasers, or any damages for the loss of the bargain. But one of the Judges was of opinion, that if the abstract liad been examined with the deeds and found correct, the 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 malajidcs in the original vendor (but not other- wise), he was not prepared to say that the purchaser might not recover the profits which would have arisen from the resale. And in the last case on this subject (/), where the seller had only a Avritten agreement for the right of shooting, which he sold for the remainder of his term, which right as an incorporeal hereditament could only be granted under seal ; it was held that the purchaser was entitled only to nominal damages and the expenses of investigating the title, and not to his expenses of a journey to view the manor or of preparing a deed to obtain a ncAV title, nor to his expenses in obtaining another right of shooting. This was the case of a seller having an equitable title wliich he could not convert into a legal one. 4. But these cases were not so decided without some difficulty. Flureau v. Thornhill laid down the rule generally, and that rule was followed in later cases, and was considered to be perfectly settled. But in Hopkins v. Grazebrook (y), where the seller having only a contract for the purchase of the estate, and not having obtained a conveyance, sold it by auction, with a stipulation to make a good title by a day named, and the original vendor refused to convey, it Avas held that the purchaser at the auction might, beyond his expenses, recover damages for the loss which he sustained by the contract fail- ing. Lord Tenterden was not prepared to assent to the general rule ; but he distinmiished the case from Flureau v. Thornhill because tlie seller had entered into a contract to sell without the power to confer even the shadow of a title, and was therefore responsible for the damage sustained by a breach of his contract. And this case was followed in one where the seller, knowing he had only limited in- terests, represented himself as owner of the fee (Ji). But Hopkins v. Grazebrook has not been followed. It would be difficult to' support it, for the seller, in the view of equity, had an equitable title, and such sales are clearly valid in equity ; although if a man were a mere land-jobber, and bought an estate, and before a conveyance, and with- out having paid for it, carried it at once into the market with a view to profit, that might be considered a case of fraud, and an attempt to sell, at an improved price, the original seller's estate, and thereby in- (/) Pounsett V. Fuller, 17 C, C. G60. (h) Robinson v. Ilannan, 1 Ex. 850. {g) G Bar. & Cres. 31. 302 XOMIXAL OR KEAL DAMAGES. [CII. 9. S. III. volve lilm and the sub-purchaser in litigation. Short of circumstances amounting to fraud, the case seems to fall within the general rule. In the later cases of Walker v. Moore and Pounsett v. Fuller, the Courts followed Flureau v. Thornhill without expressly overruling Hopkins v. Grazebrook; but the decisions in those cases do in effect overrule the decision in that case. It always appeared to the writer that the distinction taken in the latter case could not be supported without overniling Flureau v. Thornhill, and it is much too late to impeach the authority of that case, which moreover was properly decided. 5. Where the agreement made with a solicitor with a view to form a company was for a lease at a large premium, and the seller and lessor was to make out his title by a short day, and the seller ulti- mately produced an abstract disclosing incumbrances which could not be discharged ; in consequence of which the association was dissolved, but the premium had not been paid ; it was held that the purchaser, the intended lessee, was entitled to recover his expenses in preparing, stamping, and entering into the agreement, and the expenses incurred in and about investigating the title and in endeavouring to procure a good title, and to procure the lease to be granted, but that he was not entitled to the expenses of raising the premium or interest, or his expenses of preparing the deed of settlement of the association, or the expenses of forming the association, as they were damages incurred by the plaintiff by his own imprudence in beginning to act before he had ascertained whether the seller could or could not complete his contract, nor to any profits which he might have made by or from the association, wliicb loss was too remote a subject of damage to be allowed at all in such a case (e) ; nor would a tenant wdth a purchasing clause, electing to purchase, be allowed to recover for improvements made without any notice to the lessor, although it turns out that the seller has not the interest which was represented in the lease (A). 6. And in a case of this nature a purchaser is not entitled to any compensation, although he may be a loser by having sold out of the funds (Z). 7. He is, however, entitled to interest on his deposit (m); 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 {ii). 8. AVhere the plaintiff declares on the original contract, and lays the expenses incurred in investigating the title, &c. as special damages, he w^ill be entitled to recover them as such (o). (i) Haiislip V. Padwick, 5 Ex. 615. (w) Flureau v. Thornhill, uU sup. ; {k) Woi-thin^on v. Wan-ington, 8 C. B. Hodges v. Ld. Litchfield, 1 Bin., N. S. 492. 134: the tenant had liberty to make im- (o) Flureau v. Thornhill, ubi sup.; Ri- provements at his own expense. chards v. Barton, 1 Esp, 268 ; Bratt v- (0 Flureau v. Thornhill, 2 Bla. 1078. Ellis; Jones v. Dyke, App. Purch. Nos. 4 (w) Ch, 17 infra. ^ ^ J Camfield v. GUbert,4 Esp. 221 ; Tur- CII. 9. S. III.] PRELIMINARY EXPENSES NOT RECOVERABLE, 303 9. But the expenses cannot be recovered under a, count for money had and received, or 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 {p). Nor can they be recovered from the auctioneer (q). And where the contract is by parol, although the deposit may be recovered, expenses of investigating the title cannot (r). The expense of preparing the conveyance can hardly in any case be recovered, for it should not be prepared before the title is accepted (5); but the expense would be recoverable if the seller had withheld notice of an incumbrance, the existence of which prevented the completion of the purchase. 10. Nor can a purchaser recover expenses preliminary to the con- tract. 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 {t). 11. In a case where a purchaser'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, which was held a fatal one, and the seller's bill for a specific performance Avas dismissed. Lord Eldon expressed an opinion, that the 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 Avhat he had expended, upon which the purchaser appears to have agreed to reimburse that expense (m). 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, Avhatever might be the measure of those damages. 12. If the seller fall 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 (f ). ner v. Beaurain, 2 June 180G, cor. Lord El- 172 ; Hodges v. Ld. Litclifield, 1 Bin. N. C. lenborough, MS. ; Kirtlaud v. Pounsett, 2 492 ; post, ch. 14, s. 1. Tail. 145 ; but Wilde v. Fort, 4 Tau. 334, (t) S. C. ; as to taxing costs of a sui-vey, contra. see Bellas v. Ilarmer, 3 De Ge. & Sma. 454. {p) Camfield v. Gilbert, 4 Esp. 221. {u) Deverell v. Ld. Bolton, 18 Ves. 514, Iq) Lee v. Munn, 1 Holt, 569. 615. (r) Gosbell V. Arclier, 4 Nev.&Man. 485. {v) Orniei'. Broughton, 4Mo. &Sco.417; (s) Jarmain v. Egelstoue, 5 Car. k Pa. 10 Bin. 533. 304 RIGHT OF ACTION. [CH. 10. S. I. 13. If a bill be filed by the seller for a specific performance, and it is dismissed Avith 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). 14. Where a vendee brings an action on account of the agreement not having been completed, he will not be compelled to give the vendor a particular of any of the objections in point of law arising upon the abstract (?/). 15. In an action for breach of contract (z), it is suflScient if the vendor aver that he was seised in fee, and coidd make a good and satisfactorii title to the purchaser of the estate, by the time specified, and it is not necessary for him to show how he deduced his title to the fee. 16. Although a purchaser is expressly required to prepare a con- veyance, yet if a bad title be ])roduced, he may maintain an action for recovery of his deposit without tendering a conveyance (a). 17. Where a bill by a seller for a specific performance is dismissed, 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 example, where the bill was dismissed because the seller had no title ib) ; and where a party to a bill Avhich 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 (c). (.r) Hodges v. Ld. Lichfield, uhi sup. of St. Allians v. Shore, tb. 270; Luxton v. [ij) CoUett V. Thomson, 3 Bo. & Pul. 240 ; RobinHou, Doug. 020 ; 2 Nev. & Man. 415. Squire v. Tod, 1 Ca. 293; Todd v. Iloggart, (a) Seward v. Willock, 5 Ea. 198; S. P. 1 Moo. & Mai. 128. rulcdbyLd.Ellenl)orough,C. J., in Lowndes (;:) Martin v. Smith, G Ea. 553 ; Co. Litt. v. Bray, Sit. after. T. T. 1810. 305, b.; Terry v. Williams, 1 Moo. 498; (6) M'Namarar. Arthur,213al.&Be.349, Hallewell v. Morrell, 1 Man. & Gra. 307 ; (c) 3 Tau. 438. see Philips v. Fielding, 2 II. Bla. 123 ; Duke CHAPTER X. OF THE TITLE "WHICH A PURCHASER MAY REQUIRE. SECTION I. OF THE ROOT OF THE TITLE, AND OF THE TITLE TO VARIOUS DESCRIPTIONS OF PROPERTY. 1 . Sixty years : old rule. 2. Not altered by new law. 3 "1 .' \\Vhere earlier title can be required. 4.J 5. New statute of limitations. 6. Lay tithes. 9. Advowson. 10. Lessor's title must be produced. 1 1 . Unless the jJui'chaser knew it could not be produced. 12. Or he agree to ivaive it. 13. A purchaser may shoiv the title is bad 8. Modus. \ aliunde. CH. 10. S.I.] SIXTY YEARS TITLE. 305 14. 1.5, IG. 17. 18. 19. 20. 21. 22. 23. 24. 20. 27. 28. 29. 30. 31. 32. 33. 34. Bishop's title not required. Root of lessor's title. RenewaMe leaseholds. Root of that title. Leasehold title. Lessor's consent to be obtained by seller — Covenants broken. Equitable title. Title to enfranchised copyhold. To estate taken in exchange. To allotments under Inclosure Acts. To exchanges under inclosures. To exchanges in common f elds. To allotments where made generally. Sale before award — Liability to fencing, planting, Hfc. Where aioard carries the legal estate. Cautions to be observed in purchasing allotments — Exchanges. Possession before the aivard. Where purchaser not entitled to allotment. Title to strips of land. To encroachments. To easements. To pews ivith a messuage. To mining shares. To railway shares : calls. Tenant in common selling to co-tenant must produce elder title to entirety. Assignees of bankrupt must produce a good title. Purchase of chose in action: notice to be given. Notice unnecessary against subsequent insolvency. What notice necessary. Notice unnecessary where no subsequent notice. Notice to purchaser binding. Does not apply to equity of redemption of estate: Raihvay shares. Liabilities of purchaser of chose in ac- tion. 1. A PURCHASER before the late Act of 3 & 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 limitations (a) 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 (I). 2. When the new statute of limitations passed, much difference of opinion prevailed whether or not the time was to be curtailed for carrying back the abstract. The writer thought that a sixty years' title in common cases could not be required, but that, as a general rule, fifty years Avould be the limit. It has, however, been decided, and certainly in accordance with the general opinion, that the statute does not in effect introduce any new rule on the subject : one ground of the rule was the duration of human life, and that is not affected by the statute. Of course the security of a sixty years' title is better now than it was before (c). And as a learned Judge lamented, one of the objects of the legislature in passing the Act, namely, that of shortening the period of deducing titles, has not been effected in consequence of the construction put upon the statute {d). The rule IG ; (c) Cooper v. Emery, 1 Pliil. 388 ; Black- burn V. Smith, 2 Ex. 783. {d) 9 Bea. 309. (a) 32 Hen. 8, c. 2 ; 21 Jac. 1, e post ; Barnfl'ell v. Harris, 1 Tau, 430. (6) G Ves. 349. (I) Under the temporary Act for facilitating the sale of estates in Ireland, 12 & 13 Vict. c. 77, s. 27, 28, and later Acts, the title to estates sold under tlic Act is made binding upon the Crown and upon all persons. U 306 OF THE ROOT OP A TITLE. [CH. 10. S. I. applies to leaseholds for lives (e), and it must be shown which of the lives are in existence, although the seller has only sold his interest in the lease, and it is renewable for evcr(/); but it is seldom necessary to carry back a copyhold title so far. 3. Even sixty years were not sometimes sufficient. For instance, if it might reasonably be presumed from the contents of the abstract, that estates-tail were subsisting, the purchaser might demand the production of the prior title. The old 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. 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. 4. 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 effec- tually barred. 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 favour 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 (^). 5. The law as to adverse claims is altogether altered by the 3 & 4 Will. 4, c. 27 (A). Fines are abolished, and a short bar, as formerly, cannot now be made. The Act limits the general time to recover to twenty years, with a saving of ten years for 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 successive disabilities, and makes the bar of the tenant in tail extend to all whom he might have barred (^). 6. 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 commence at the same period as the title to the estate out of which they issue Avould have done {k). Two modern Acts facilitated the extinguishment of lay tithes, by enabling even a tenant for life to merge them, Avhich before could not be accomplished, although the fee of both the estate and (e) Ilodgkinson v. Cooper, 9 Bea. 304. {h) Post, ch. 12, for a view of the Act. (/) Anderson r.niggins,lJo.&Lat. 7 18. (0 Sugd. Stat. inf. ch. 12. {g) Coussmaker v. Sewell, Ch. 4th May {h) Pickering v. Ld. Shelborne, 1 Craw. 1791, MS. ; Purch. App. No. 11 ; Nouaille & Dix, 254. V. Greenwood, Tur. & Rus. 2u. CH. 10. s, I.] lessor's title. 307 tithes' was vested in the same person (/) ; 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. 7. The title to an estate tithe free, independently of the above Acts, depends as a matter of fact upon rules which are accurately laid down in our text-books on that subject. 8. Where there is a modus, much of the former difficulty has been removed by the provisions of the 2 & 3 WiU. 4, c. 71 (m). 9. The old statutes of limitation did not apply to advowsons ; but the new Act provides, that one hundred years shall be the longest tmie allowed for a claim (n). An abstract of title therefore to an advowson should not be for a less period, and it should be accom- panied with a list of the presentations, so as to show that the enjoy- ment has gone alono; with the title. 10. It is now settled after a great difference of opinion, that a pur- chaser of a leasehold estate can insist upon the production of the lessor's title (I). The general point was decided in equity in favour of the purchaser's right in the case of Purvis v. Ray er ( o), and now at law (p) the seller cannot recover if he have not the lessor's title. As a general rule 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 (q) ; but of course that title could be required only down to the period of granting the lease, and if the lease was granted sixty years ago, the freehold title could not be required. 11. If a purchaser had notice, at the time he entered into the con- (?) 1 & 2 Vict. c. 64, 2 & 3 Vict. c. 62 ; v. Frankum, 2 De Ge. & Sma. 561 ; Scargill 5 & 6 Vict. c. 54, s. 7. ZJ. Harry, 14 Jur. 847. (m) Sugd. Stat. inf. cli. 12. {p) George v. Pritchard, 1 Moo. & Ry. (w) 3 & 4 Will. 4, c. 27, s. 30, 31, 32, 33; 417 ; Soiitei- v. Drake, 5 Bar. & Ad. 992 ; post, ch. 12. HalU'. Betty, 4 Man. & Gra, 410; 5 Sco. (0) 28 July 1821, MS. ; 9 Pri. 488; Clive F. R. 508. V. Beaumont, 1 De Ge. & Sma. 397 ; Gaston (q) Souter v. Drake, 5 Bar. & Ad. 992. (1) The right of an intended lessee, who is a 'purchaser pro tcmto to tlie production of /}/ y/ ^ the lessor's title, depends upon Keech v. Hall, Doug. 21; Purvis v. Rayer, MS. 9 Pri. ^ " 6^r O ^fJ 488 (see Roswel v. Vaughan, Cro. Jac. 196 ; Lysney v. Selby, 2 Ld. Ray. 1118) ; Gwillim / V. Stone, 3Tau. 433, which is distinguishable; Temple v. Brown; Rooi>er v. Coombes, 6 Bai-. & Cres. 534 ; Stone v. Gwillim , 3 Tan. 436 ; Gwillim v. Stpne, 14 Ves. 128. A lessor cannot enforce the contract in erpiity without jiroducing the original lessor's title ; Fildes V. Hooker, 2 Mer. 424; Ld.OssuIston v. Deverel],26 May 1818, MS. ; Simpson v. Sadd, 3 Eq. R. 263 ; 4 De Ge. Mac. & Gor. 605. White v. Foljambe, 11 Ves. 337 ; Deverell v. Lord Bolton, 18 Ves. 505 ; and see Radcliffe v. Warrington, 12 Ves. 326 ; Ly. Saltoun v. Pliilips, sittings after T. T. 1813, cor. Ld. Ellenborough, where a purchaser recovered his deposit, because the seller claimed his lease subject to Ld. Grosvenor's incumbrances, and liad stated that the lease was only subject to the ground-rent, although he had not undertaken to produce tlie landlord's title. See 9 Pri. 515. u2 308 lessor's title. [ch. 10. S. I tract of the vendor's inability to produce the lessor's title, he would not afterwards be allowed to insist upon its production. Whenever, therefore, a vendor of a leasehold estate has not an abstract of the lessor's title, this circumstance should be mentioned in the particu- lars. And he should make the statement clear and free from ambi- o-uity, or he will not be protected (r). 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. Y/^here a man and his agent were present at a sale by auction, and had the particulars of sale in their possession which showed the seller's interest, the principal who bought after the sale was nor, allowed to say that he was ignorant of the seller's inte- rest (5). And notice at an auction' from the particulars, followed by a treaty with the auctioneer upon the footing of the conditions, al- thouo-h they are not referred to by the agreement, may bind the pur- chaser, as notice that he is not to have the lessor's title (t). But a purchase after an auction not on the basis of the conditions Avill not bind the purchaser by the conditions if they are not referred to by the agreement (z«). 12. And if the purchaser agree to accept a proper assignment, with- out requiring the lessor's title, he will at law be compelled to pay the price, although the lessor's title prove to be bad (x). 13. But although the seller is absolved from the obligation to pro- .yf^ Jfitf. duce the lessor's title, yet the purchaser is not bound by the contract even at law, if he can show aliunde that the title is not a good one(y) ; or if it appears defective on the face of the abstract (z). 14. A purchaser of a lease held under a bishop, cannot call for the lessor's title {a). 15. In regard to the root of a title to a leasehold, where the free- hold 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. Bayer (J), the Chief Baron considered, that the circumstance that forty-seven years had elapsed since the term was granted, did not make the title good ; but a leasehold title, commencing forty-seven years ago, would, in most cases, be deemed satisfactory, and in every case would readily admit of slight evidence in support of it. 16. In tlie case of renewable leaseholds, where every lease is stated {■)•) Sup. p. 282, 6 De Ge. & Sma. .520, where the purchaser (*•) Cowley V. Watts, 17 Jur. 172. is bound not to inquii-e into the title. Dar- {t) Ogilvie V. Foljambe, 3 Mer. 53. lington v. Hamilton, 1 Kay, .550 ; Drysdale (u) Cowley v. Watts, ubi sup. v. Mace, 5 De Ge. Mae. & Gor. 103. (x) Sprattw. Jcffery, 10Bar.&rres.24n. (z) Sellick i;. Trevor, 11 Mee. & Wei. 722. (?/) Shepherds. Keatley, 1 Cro. Me. &c Ros. («) Fane v. Spencer, 2 Mer. 430. 117 5 stipra p. 14, but see Humew. Bentley, (6) 9 PrI. 488. CH. 10. S. I.] TITLE TO RENEWABLE LEASEHOLDS. 309 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 pur- chaser has in the view of equity notice of the first lease, and of all the later ones ; 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 con- clusion that the lessee is not absolutely entitled, the purchaser will be liable to the same equity as the lessee was subject to (c). By the 6 & 7 Will. 4, c. 20, leases renewed by ecclesiastical persons after the Act are to contain certain recitals as to the terms of the preceding lease, and such recitals are, so far as relates to the validity of the lease so to be granted, to be deemed conclusive evidence of the truth of the matter recited {d). 17. The root of the title should in such cases be carried back to a considerable 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 suffi- cient, but where the estate has remained in the same family, and the renewals have been included in settlements, or where there is a long period between a former lease and the one sold, and it is not shown what was done during that, period, it may be necessary to produce just as ancient a title as if the freehold were sold {e). 18. If the purchaser of a lease is not entitled to the lessor's title, he of course can only require a regular title to the leasehold interest from the time the lease was granted. If the lease be an ancient one, it is not necessary to do more than liiake it the root of title, and then commence the derivative title with an assignment on a sale or mort- gage within a reasonable period, e. g. fifty years. Attendant terms, although a leasehold interest, were treated as part of the inheritance : the creation of them should be shown, and so should the dealing with them in later times and their actual position at the time the late Act put an end to them (/). The loss of mesne assignments is not often of serious consequence {g). If the covenants in the lease have not been performed modo et forma, yet if they have been performed under the direction of the lessor, and he has by his acts precluded himself from re- entering, a purchaser will be compelled to accept the title (A). Where a breach has been made in a covenant to insure, and there is a power (c) Coppin j;. Fernyhough, 2 Bro. C. C. Bea. 304. (/) 8 &9 Vict. c. 112. 291 ; Hodgkinson v. Cooper, 9 Bea. 304, {g) Earl v. Baxter, 2 Bla. 1228, 11 Ves. (rf) S. 2, 3 ; see s. 9. 350, inf., ch. 11. (e) 3 & 4 Will. 4, c. 27, s. 27, s. 24, 25, {h) Ilume v. Bentley, 5 De Ge. &Sma. 520. 26, 27, imst, cli. 12 ; Hodgkinson v. Cooper, u3 310 EQUITABLE TITLE. [CH. 10. S, I» ol' re-entry, the title is bad, altlioiigli the insurance office has since received the premium and the policy is on foot (i). 19. Although a purchaser of a lease buys with full notice that 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 {k). A title for a limited period with a covenant for perpetual renewal will not be sufficient where the underlease sold is for a longer term absolute (Z) ; but a good title will be shown if it be shown that the lessor will consent to an assignment (w). 20. It is seldom that a purchaser undertakes to accept an equitable 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 disturbed in equity (?z), and yet he may not be able to make a good title, for a legal right may remain unbarred. But if even a party sold, stii^u- 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 the beneficial or equitable title to the estate, and that the legal estate, although outstanding, could not be used ad- versely to the purchaser. 21. If the estate was copyhold and has been enfranchised, the lord's title to the freehold will be required as well as the copyholder's title before its extinguishment (o). The copyhold title whilst the trans- action is a recent one is still necessary, and the freehold title is just as necessary as if the purchase had been made of the lord (I). 22. If the estate has been taken in exchange, the title to the estate sold, and also the title to the land (/iven in exchange must be jn-oduced (p). 23. Lands allotted under Inclosure Acts become liable to the uses (i) WUson V. Wilson, 14 C. B. CIG: 2 operation of common law exchanges, which Com. L. R. 'i>\%. Jit/^n.*^ ■o ^ine-rt^ <^-'^-^.have long been discontinued, is stated; see (k) Lloyd V. Crispe, o Tan. 240 ; Mason 8 & 9 Vict. c. lOG, s. 4 ; 1 k2 Geo. 4, c. 92, r. Corder, 2 Mars. 3.32; 7 Tan. 9 ; Wilkin- authorises exchanges of charity estates; son V. Lloyd, 7 Q. B. 27 ; Smith v. Capron, but see s. 9, for the right of entry in case of 7 Ha. 185. enctioh; and see now, as to sales and {I) Leathern v. Allen, 1 Jr. C. R, G83. exchanges of charity estates, IG Sc 17 Vict. (m) Carrodus v. Sharp, 20 Bea. 50. c. 137, s. 24. 2G ; 18 & 19 Vict, c. 124, s.32, («) Cholmondeley v. CUnton, Tur. Ac Rus. 34, 35 ; as to exchange for tithes, see G &: 7 107 ; 3 «c 4 Will. 4, c. 27, infra, ch. 12. Will. 4, c. 71, s. 29, 30, 31 ; 2 & 3 Vict. c. (0) 1 Pres. Abst. 205. C2, s. 19, 20, 21. (p) Bastard's case, 4 Rep. 121, where the (1) A purchaser of a copyhold now upon admittance may compel an enfranchisement, or the lord may enforce it against him. The Acts provide as to the lord's title, &c. ; 15 & 16 Vict. c. 5] ; 16 & 17 Vict. c. 57. CH. 10. S. I.] TITLES UNDER EXCHANGE OK ALLOTMENT. 311 of the estates iu respect of wlilcli they Avere allotted, including of course any outstanding terms (//), and it is therefore upon the sale of such lands necessary to furnish an abstract of the title to the original estates (r). 24. 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. 25. The Gengrn l T\i^lnsnrn Act contains no stipulation expressly making the new estate liable to the uses of the old one (s) ; 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 liable to the uses to which they were originally subject. So that in every such case the title of the party holding such estate is the only one which relates to it. 26. 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 {t). 27. 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 (ii). 28. 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 authorising a sale before the award. Lord Ellenborough held that the purchaser was warranted in refusing the title {x). But if the purchaser is at the time aware that the estate is in a progressive state of inclosure, and there is a clause authorising 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 exe- cuted (y) ; for a purchaser purchasing, as in this instance, with full (q) Gan-ard v. Tuck, 8 C. B. 231, ing the Acts for the inclosure, exchange, (r) 1 Pres. Abst. 87, 161. &c. of land, and gives many additional (s) 41 Geo. 3, c. 109 ; see 3 & 4 Will. 4, powers, to which the attention of the prac- c. 87, for remedying defects for want of en- titioner should be dii-ected; and see 17 & 18 rolment of awards ; Casamajor v. Strode, 2 Vict. c. 97. My, & Ke. 706. , (u) King v. Moody, 2 Sim. & Stu. 579 ; (0 4 & 5 Will. 4, c. 30, s. 24, 25; for Major v. Ward, 5 Ha. 598, powers to spiritual persons to exchaDge, 55 (.r) Lowndes v. Bray, Sitt. after T. T. Geo. 3, c. 147 ; 56 Geo. 3, c. 52 ; 1 Geo. 4, 1810 ; Cane v. Baldwin, 1 Star. 65. c. 6; 6 Geo. 4, c. 8; see 15 & 16 Vict. c. (y) Kingsley v. Young, 17 Ves. 468; 18 79, which refers to the prior Acts for amend- Ves. 207. u4 312 TITLE BEFORE AWARD. [CII. 10. S. I. notice of all the circumstances, must take subject to the variation, as it Avas inherent in the very nature of the property. Lord Eldon relied very much on the statement in the particulars, that the estate was in a progressive state of inclosure. A purchaser without notice cannot be compelled to take an estate subject to regulations as to fences, planting, &c. under an Inclosure Act (z). 29. But care must be taken in these cases to ascertain that the power of sale does carry the legal estate before the award (a). Where 'y^ /^ Apportioned rent. 1. Title subject to a charge, lad. | b. Arbitrator cannot aivard indemnity. 2. Fee-farm rents on estate sold and others: 6. Seller not bound to give indemnity. title bad. — Purchaser not bound to take indemnity. 3.1 Power of re-entry in lessor not a subject 9./ of indemnity. 4. Li&e power, sale in lots, and an indem- nity to seller. ^.'^Stipulation for a charge on one lot as 10. J an indemnity. — Repair of chancel. 11. Nature of indemnity. 1. Where an estate sold is charged with legacies for Infants, al- though the legacies amount nearly to the purchase-money, and it is invested to answer them, yet if the fund should prove deficient, the estate might be resorted to, and therefore the purchaser would not, it seems, be compelled to take the title {a). 2. We have already seen that small rents may be subjects of com- pensation, although larger ones cannot. Where the estate sold Avas with others of great value charged with a perpetual crown rent of forty marks, and a similar rent was granted to trustees in fee, in (rt) Dickenson v. Dickenson, 3 Bro. C. C. 19. CH. 10. S. II.] PURCHASER NOT BOUND TO TAKE INDEMNITY. 317 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 rest of the estate against the rent, and it was agreed that if there should be found any fee-farm rents or quit rents chargeable on the property, an allowance should be made at the rate of thirty years' purchase on the amount thereof (Z(); Sir Wm. Grant was of opinion, that the 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 rent was an objection to the title. As to the question of indemnity, Halsey and Grant was certainly a case of indemnity, and Horniblow and Shirley a case of compensation ; but he doubted whether the deed executed in order to relieve the estate in question, could be consi- dered such an indemnity as a purchaser ought to be compelled to accept, nor should he then decide whether in this case any indemnity could or ought to be given by the vendor against such fee-farm rent. Upon an appeal to Lord Eldon, he affirmed this decision 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 (c) ; and this put an end to the suit. The purchaser did not object by his con- tract to the existence of fee-farm rents, provided he had compensation 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. In this case the earlier cases were not treated as binding authorities {d). And it appears to be now settled that a purchaser is not bound to accept a title with an indemnity. 3. Where the defect is such that the purchaser would really be in danger of eviction, e. g. where the estate sold is comprised with others in an original lease, under which the lessor has a right to re-enter for breach of covenants, so that the purchaser might be evicted with- out any breach on his part, clearly he would not be bound to accept the title with an indemnity {e). 4. But where upon a sale of a leasehold estate in lots held under one lease, with a power of re-entry for breach of covenants, the lease was produced at the sale and inspected by the purchasers' solicitor, and the purchasers Avere to indemnify the seller against the rent and covenants in the lease, they were compelled to take the title, although {b) Hays v. Bailey, 10 Aug. 1813, MS. ; 2 Swan. 223; Halsey v. Grant, 13 Ves. 73; 2:)0st, lltli edit. Purcli. 499; Casamajor y. Prendergast z). Eyre, 2 Hog. 92. Strode, 1 Wils. C. C. 428 ; Warren v. Bate- (e) Fildes v. Hooker, 3 Mad. 193; Tay- man. 1 Fla. & Ke. 448 ; Paine v. Meller, 6 lor v. Martindale, 1 Yo. & Col. C, C. G58 ; Ves. 349; Fildes v. Hooker, 3 Mad. 193; Blake v. Phinn, 3 C. B. 976; Leathern?. V^^ise V. Ponsonby, Sugd. H. of L. 677; Allen, 1 Ir. C. R. 683; Darlington w. Ha- Nouaillew. Flight, 7 Bea. 521. milton, 1 Kay, 550, which consider as to (c) M. T. 1821, MS. this point. (rf) Horniblow v. Shirley, 13 Yes. 81, 75 ; 318 INDEMNITY AGAINST RENTS, ETC. [CH. 10. S. II. the conditions provided for the apportionment of the rent, and took no notice of the covenants and power of re-entry, and either pur- chaser might be evicted by the default of the other (/). 5. Where a purchaser is entitled to a good title, an arbitrator to whom all questions on the agreement are referred, must award whether the title is good or bad : he cannot award a conveyance with an indemnity ((/). 6. And on the other hand, the seller cannot be compelled to convey something less than he has sold with an indemnity against the risk of eviction (/*). But of course parties may contract for an indemnity (f). 7. Where an estate is sold subject to a rent, which, although not so stated, appears to be only a part 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. Although an apportion- ment may be presumed, yet the question is, whether a purchaser is compellable to accept a purchase, where his title rests only on pre- sumption, which may be rebutted by other evidence. And equity would not decree a specific performance unless the seller could pro- cure the ground-landlord to apportion the rent (/t) (I), 8. But where an apportioned rent is sold, if the rent is an appor- tioned rent, the purchaser cannot object that he will not have the sam.e remedies as if the rent were entire (Z). 9. 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 can- not object to the title, although there is a clause of re-entry on non- payment of the rent contained in the lease (??i). 10. Where an estate was sold in lots, and it was stated that the estate was subject to the perpetual payment of 120/., but the same and another perpetual annual payment were in future to be cliarged 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 (n), and were not entitled to have their lots exonerated altogether from the charges. 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 (/) Paterson v. Long, G Bea. 590. Yo. & Col. 058. {g) Ross V. Boards, 8 Ad. & El. 290. (Z) So held by the V. C. in BUss v. Col- (/i) Balmanno v. Lumley, 1 Ves. & Be. lins, 4 Mad. 229 ; 1 Ja. &Wal. 426j Walter 224; 1 Bli. 60, 67. v. Maunde, 1 Ja. & Wal. 181 ; Roberts v. {i) Aylett v. Ashton, 1 My. & Cra. J 14. Snell, 1 Man. & Gra. 577. (7^) Barnwell r. Han-is, 1 Tau. 430; Bow- (m) Walter t\ Maunde, 2/i« 5;/j9. ; Pater- les V. Waller, Hay. 441 ; Wan-en v. Batoman, son v. Long, 6 Bea. 590. 1 Fla. & Ke. 455; Taylor v. Martindale, 1 (»«) Casamajor ?'. Strode,! Wils.C.C. 428. (I) For apportionment of rent under Church Building Acts, see 17 & 18 Vict. c. 32; under inclosures, exchanges, &c., 17 & 18 Vict.c. 97. en. 10. S. III.] INDEMNITY AGAINST RENTS. 319 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 (o). 11. Where one estate is to be exonerated from a charge by a secu- rity on another estate, the security should be co-extensive in quantity of estate with the orio-inal charg-e, and the new rentcharo;e 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 damnified, and the purchasers should have a voice in the appointment of new trustees (/») ; and of course a good title must be shown to the estate upon which an indemnity is agreed to be given (). 4. Although the purchaser, doubting the validity of the title, not- ^^^.y^, Ja^ withstanding the decree of the Court, carries the case to the House 3 JU^ ;^/e^ /zy ^ 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 2"-^- /^^-^^ his favour 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 {(j). 5. 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 the doubt turns upon the construction of an instrument, the difficulty that the decision must be come to in the absence of the persons whose claims are in ques- tion, although their rights will not bo bound by the decision, is entitled to more v/eight. 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 (7n) Peppercorn v. Peacock, 4 Jur. 1122. (o) 2 Ves. & Be. 140 ; Maling v. Hill, 1 {n) 14 & 15 Vict. c. 83, s. 8 ; 15 & 16 Cox, 186. Vict. c. 86, s. 61, 62. See Falkner v. Grace, {p) 16 Ves. 272 ; 1 Ja, &Wal.569; 4 My. 9 Ha. 280 ; Manchester, &c. Ry. Co. v. Gt. & Cra. 470, 473. Northern Ry. Co., id. 284 ; Brenan v. Pres- {q) 11 Ves. 465 ; 1 Ja. & Wal. 5Gi. ton, 10 Ha. 339. 322 DOUBTFUL TITLES. [CH. 10. S. 111. him ; but still a Judge may feel himself more at liberty to deeide a general point of law between a vendor and purchaser than a question of construction of an informal instrument, which can afford no pre- cedent, and upon wliich men may naturally differ, and which there- fore should, if possible, be decided in the presence of the persons whose interests are affected indirectly, although not bound by the decision. Now that the Court can no longer send a case to law, there seems some danger that it may sometimes overrule a decision at law operating in favour of a purchaser's objection, without requir- ing the assistance of a common law judge. In a recent case(r), where there was a general charge by the testator of his debts, and a devise of his estates to trustees for a term upon trust, in case of default by any of his sons in payment of his share of the debts, and certain legacies, out of the rents of his share of the estates to raise the sum required, and subject to the term, he devised his estates to his five sons as tenants in common in fee, upon condition to pay equally the debts, &c., it was held that the executors took by impli- cation a power to sell the fee, and a sale by the two survivors at the end of thirty years after the testator's death under the power, was held to be such a title as the purchaser was bound to accept. The Master of the Rolls said, if the Court is of opinion that the title at law is clear it is bound so to decide, it cannot speculate upon the ques- tion xohether any other court loould corne to an opposite conclusion. This seems hardly the true rule. The very point decided was open to much doubt, both upon the authorities and upon the intention of the testator. 6. 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 applicable to the case before him, and upon this he decided. In a later case, where also the title depended upon a recovery, in which the trustees to pre- serve 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 said he should compel the purchaser to take the title unless he would reverse his opinion. That, he observed, was for- merly the course instead of letting off a purchaser iq)on a doubtful title, and the purchaser then Avent to the House of Lords (t). An- other purchaser, under the same title as the last, persisted in the same objection after Lord Eldon's decision, and with full notice of it ; and the same learned Judge enforced a specific performance, and this time made the purchaser pay the costs (u). (r) See Wrigley v. Sykes, 21 Bea. 337 ; (0 Biscoe v. Perkins, 1 Ves. & Be. 485. 2 Jur., N. S., 79; 25 L. J., N. S., 458. . (u) Biscoe i;.Wilks, 3 JMer. 45G; Pearson (s) 16 Ves. 283. v. Lane, 17 Ves. 101 3 a ease upon a partition. CH. 10. S. III.] GOOD OR DOUBTFUL TITLES. 323 7. 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 (x). 8. Where upon an exception to a Master's report that the seller could make a good title, the Court overruled the exception (?/), from which order the purchaser appealed to the House of Lords, Lord Eldon, C, held that the Court of Chancery should decide by a decree whether the title was so clearly good as to be binding against an un- willing purchaser, and if the Court should decide in the affirmative, then the Lords must give its final judgment on the subject ; but if in the negative, it might be unnecessary 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 {z). But it is difficult not to be too early or too late. A purchaser upon whom an objectionable title is forced should embrace the earliest opportunity of appealing, so as to save further costs in the suit (a). 9. If a purchaser under a decree obtain a conveyance of the supposed adverse title from knowledge acriuired as purchaser, it seems that he would not be allowed to set it up as an objection (b). 10. We may now consider more particularly in what instances a title will be forced upon a purchaser in equity or at law (I). And I. in Equity — 11. A purchaser will be compelled to take a title depending upon the destruction of contingent remainders (c), or upon the statute of limitations {d) ; and the same rule applies when the Crown is barred (x) Blosse V. Ld. Clanmorris, 3 Bli. 62 ; (S) Sheppard v. Doolau, 3 Dm. & Wai-. 1. 3 Mol. 580. (c) Roake v. Kidd, 5 Ves. 647 ; Kenn v. {y) Jeukius v. Herrie.s, 4 Mad, 67 ; the Corbet, MS. before Lord Eldon ; Hasker v. statement at the conclusion of the report Sutton, 2 Sim. & Stu. 513. should have been that the exception was {d) Scott v. Nixon, 3 Dm. & War. 388 ; overruled. Kirkwood v. Lloyd, 12 Jr. Eq. R. 585; {z) Herries v. Jenkins, D. P. 1823 ; 6 Stewart v. Marquis of Conyngham, 1 Ir. Sim. 168, n. post. Cha. C. 534 ; Hyde v. Dallaway, 6 Jur. 1 19. (a) Sugd. H. ofL. 674. (I) The following further examples are extracted from the eleventh edition of this work. »/?//. 2//'^ It would be useless to go on multiplying instances. 1 . In equity, where considered too doubtful, to be forced on a purchaser : 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, Shap- land V. Smith, 1 Bro. C. C. 75; Playford v. Hoarc, 3 Yo. & Jer. 175. In 1795 the heir claiming by pm-chase the estate, the subject of the suit in Shapland v. Smith, brought an ejectment. The claimant under Christopher Shapland, the tenant for life, at first defended the ejectment, but afterwards confessed the action. — Whether by devise a man took an estate tail where, after a devise to him for life, the gift was to such of his chikh-en as he should appoint, and their heirs, and for want of appointment, to the heirs of his body and their heirs for ever ; and in case he shoidd die without issue of his body, then over to his sister, &ic., and in case he should live and have children as aforesaid, then 500 1, to the x2 324 GOOD OR DOUBTFUL TITLES. [CH. 10. g. III. nnder the nullum tempus act (e). But now a contingent remainder existing- any time after the 31st December 1844, is capable of taking effect, notwithstanding the determination by forfeiture, surrender, or merger of any preceding estate of freehold (/). A purchaser may be compelled to accept a title, although there has been a voluntary settlement {g). (c) Tutliill V. Rogers, 1 Jo. & Lat. 3G. {cj) Buttcrfield v. Heath, 15 Bea. 408, (/) 8 & 9 Vict. c. 106, s. 1, 8 j 7 & 8 i»f. c. 22. Vict. c. 76, s. 8, 1.3. sister at twenty-one or man-iage, Wilcox v. Bellaers, Tiir. & Rus. 491. — Whether under a devise to his son, to be entailed upon his male heirs, and failing such, to pass to liis next brother, and so on ft-om brother to brother, allowing 2,500 I. to be raised upon the estates for female childi-en each, the son took an estate tail, Jervoise v. Duke of Northumberland, 1 Ja. & Wal. 559. — This was afterwards, in a family suit, held to be an estate tail. 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 a son to inherit, the son of another son should inherit, created an executory devise, and not a remainder over expectant upon an estate tail, Heath v. Heath, 1 Bro. C. C. 147 ; Roake v. Kidd, 5 Ves. j. 647; Fisher v. Barry, 2 Hog. 1 53. — Whether a fee passed by a will by the application of the words " with all right and title to the same," to previous devises, which coidd not be settled without litiga- tion, Sharpe v. Adcock, 4 Rus. 374 ; now 1 Vict. c. 26. — Whether the term in a will, " legal representatives," of children as should be dead, meant executors and adminis- trators, Price V. Sti-ange, 6 Mad, 159 ; Cotton v. Cotton, 2 Be. 07. — Whether the pur- chaser could have a valid legal covenant to run with the land to produce the title-deeds, Barclay v. Raine, 1 Sim. &c Stu. 449. — Whether leaseholds for lives passed imder general words in a devise with fee-simple estates to uses in strict settlement, Sheffield r. Ld. Mul- gTave, 2 Ves. j. 526 ; 1 Vict. c. 26. — Whether a power of sale inserted in a settlement made under the direction of the Court, was authorised by the will which directed the settlement, Wheate v. Hall, 17 Ves. j. 80. — And in another case, whether a power of exchange, executed in aid of an imperfect exchange, was valid, Cowgill v. Ld. Oxman- town, 3 Yo. & Col. 369; and in a third, whether a power of sale in a mortgage by an executor for the payment of debts could be supported, Sanders v. Richards, 2 Col. 568. — Whether void leases gi-anted 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. Cooper v. Denne, 4 Bro. C. C. 80. — Whether one of two trustees to whom the other had conveyed, could alone give a valid discharge for the purchase-money, Crewe v. Dicken, 4 Ves. 97 ; Nicloson v. Wordsworth, 2 Swa. 365. — Whether one of several trustees for sale under a will having renounced, the continuing trustees could make a good title and give a valid discharge for the purchase-money, Adams v. Taunton, 5 Mad. 435. — Whether presumption fi-om non- payment of tithe would bar a lay impropriator, Rose v. Calland, 5 Ves. 186 ; Mead v. Ld. Norbury, 2 Pri. 338; 3 Bli. 217 ; Berney v. Harvey, 17 Ves. 119.— Whether long pos- session of a portion of tithes justified the presumption of a grant, Judgment in Oxenden V. Skinner, 4 Gwil. 1513. — Whether an allotment for a right of warren was authorised by an enclosure Act, Casamajor v. Strode, 2 My. & Ke. 706. — Where the title was made through tenants in tail claiming by descent, who had not been in possession for a con- siderable period prior to 1793, and there was no proof of the pedigree except in the recitals in a deed executed in that year, Fort v, Clarke, 1 Rus. 601 . — Whether a convey- ance had been executed as an escrow or not, Sloper v. Fish, 2 Ves. &; Be. 145. — Whether a reversion which was vested in the Crown by forfeiture, and not by original grant, could be haired by a recovery, Blosse v. Clanmorris, 3 Bli. 62. — Whether ti'ustees took the legal fee in a deed under a limitation to them and tlieu- heirs, or whether it could be cut down by the context to an estate pur autre vie, Colmore v. Tindall, 2 Yo. & Jer. 605 ; sec Nash r. Coates, 3 Bar. & Ad, 846. — Whether an act of banlu-uptcy having been com- en. 10. S. III.] GOOD OR DOUBTFUL TITLES. 325 12. So 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, which was treated as a question of presumption, and upon the evidence the Court came to the conclusion that the legal presumption did arise that the owner mittcd by the vendor, a commission might not issue, although no debt could be shown to exist, and the seller swore there was none, Lowes v. Lush, 14 Ves. 547. — 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, Cann v. Cann, 1 Sim. & Stu. 284. — Whether the seller had the entirety of the estate, the doubt arising from expressions in the will under which he claimed, Stapylton v. Scott, 17 Ves. 272. — Even at law, whether a covenant in a brewer's lease, purporting to bind the assignees, would bind the purchaser, as assignee, to buy his beer of the lessor, Hartley v. Pehall, Peake, 135 ; Bristow v. Wood, 1 Col., N. C, 480. — Whether words of contin- gency can be rejected and the devisee for life be held, upon the construction of the whole will, to take an estate tail in order to include all the issue, Jenkins v. Herries, 4 Mad. G7. — This was so decided against the purchaser upon exceptions, but that decision was not adopted in the House of Lords, MS. (i Mad. 1G8, n. The author argued the case in D. P. He believes the case was not carried further ; sup. ; the House resolved to wait for the decree on further directions. — Whether a probate in the Consistoiy Court, where the original will was proved in the Prerogative Court, was sufficient, Williams v. Bland, 2 Col. 575. — Whether a partition can be made under a power of sale and exchange, Bradshaw v. Fane, 3 Drew. 534. — Whether a power to sell in a mortgage deed was not destroyed by a transfer of the mortgage, Cruse v. Nowell, 2 Jur., N. S., 53G. 2. Where a purchaser has been compelled to take the title : 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 JMaster of the Rolls and the Lord Clianccllor ruled differently, and a specific performance was decreed, Ld. Braybroke v. Inskip, 8 Ves. 417. — Where it was held that an equitable recovery might be suffered without the con- currence of the equitable mortgagee, Nouaille v. Greenwood, Tur. &. Russ. 20. — Wliere 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, Warneford v. Thompson, 3 Ves. 513. — 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 conveyances and deeds for nearly 140 years, and there having been three presentations under them, and none by the Crown, Gibson v. Clarke, 1 Ja. & Wal. 159. — Where a conveyance of the legal fee was presumed, as it was considered such a title as a purchaser might safely take, Hillary v. Waller, 12 Ves. 239 ; Doe v. Davies, 1 Ad. & EL, N. S., 430. — Where the surrender of a term of years to secure portions was presumed, Emery v. Grocock, G Mad. 54. — Where fi-om an inaccurate statement in a will of a settlement, it was presumed that the legal estate was vested in the trustees of the settlement, Nouaille v. Greenwood, Tur. & Russ. 2G. — Where the title to an exemption of tithe depended on the unity of possession of the rectory, manor, and lands in one of the greater monasteries tlissolved by 31 H. 8, Monk v. Huskisson, 1 Sim. 280. — 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. West v. Berney, 1 Russ. & My. 431 ; Smith v. Death, 5 ]\Iad. 371. — Where the title depended upon the validity of a sale and exchange with a tenant for life, whose consent to the act was necessary, Lord Eldon stating that he should have said originally it would not do, but he thought it had been settled by the practice of conveyancers, Howard v. Ducane, Tur. & Rus. 81. — Where the title depended upon a general power of sale and exchange, not being void as tending to a perpetuity, Biddle v. Perkins, 4 Sim. 134; 2 Sugd. Pow. 494.— Even where the question upon an obscure will was upon the part of the seller argued to be whether the devisee took an estate in tail male or an estate for life, with contingent remainders, a reco- x3 326 OLD ENTAILS: MINES RESERVED. [CH. 10. S. IH. of the adjoining land was entitled to enclose them (It) ; the purchaser was compelled to accept the title. 13. 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 (i). And in all these cases, depending upon legal questions, of course the same rule would prevail at law. 14. We have seen, that a purchaser cannot be compelled to take a doubtful title ; but, nevertheless, he will not be permitted to object to a title on account of a bare possibility (k). 15. Therefore siiggestions of old entails, or doubts what issue persons have left, whether more or fewer, are never allowed to be objections of such force as to overturn a title to an estate (J). Mere suspicion ending in suspicion, cannot be the legitimate ground of legal decision {ni). 16. So wdiere (n), in the original grant by the Crown, there was a reservation of mines, without a right of entry ; yet, as there had been no search for mines for one hundred and eleven years, and, upon examination, the 'prohahility was great there loere no such mines, and the Crown, for want of a right of entry, could not grant a licence to any person to enter and work them. Lord Hardwicke decreed a specific performance. And a purchaser of an estate, with some valuable mines which were under a common, was compelled to com- plete, as an obstruction from the commoners was highly improbable (o). Lord Eldon said that if an action were brought by a commoner, he should think a farthing quite damages enough, and therefore decreed a specific performance. These cases turned upon the improbability (7i) Howard v. Ducane, Tiir. & Rus. {m) Pe?- C. J., Gorton v. Sir T. Champ- 81 ; Dendy v. Simpson, 18 C. B. 831. neys, Tur. & Rus. 28. (;) Clarke v. Royle, 3 Sim. 499. (n) Lyddal v. Weston, 2 Atk. 19; Sea- (k) 2 Atk. 20; 3 Yo. & CoL 554; 12 man v. Vawdi-ey, IG Ves. 390; Barton v. Ves. 252. Ld. Downes, 1 Fla. & Ke. 505 ; Martin v. (I) 2 Atk. 20, per Lord Hardwicke ; Ld. Cotter, 3 Jo. & Lat. 496 ; Stewart v. Mar- Braybrooke v. Inskip, 8 Ves. 417; Dyke qnis of Couyngham, 1 Jr. C. R. 545. V. Sylvester, 12 Ves. 12G; see 3 Yo. & Col. (o) Anon. Chan. 7 Sept. 1803, MS.; Ha- 554, jjjer Alderson, B. vens v. Middleton, 10 Ha. 641. very having been suffered, the Com-t oven-uled the piu'chaser's objection, as they saw an intention to give to the devisee a much lai-ger estate than he would take according to the pm-chaser's construction, and were of opinion that he took such an estate as enabled hurt to make a good title to the fee by the means which he had adopted, Rushton v. Craven, 12 Pri. 599. Observe, there is notliing in the case which warrants the reporter's abstract about a purchaser's right to object to a doubtful title, nor is the observation in the n. to 6 Sim. 109, well founded, viz. that in Rushton v. Craven, the declaration that the purchaser was bound by the opuiion of the Coui't, avoids altogether the real difficulty. I do not find any such declaration, nor would such a declaration alter the case. CII. 10. S. III.] SUSPICION. ADVERSE RIGHT IN THIRD RERSON. 327 of a disturbance for a fartliing damages would not be a ground for a nonsuit {]>). 17. But where in a common conveyance in 1704 a reservation was made of salt works, &c., with a right of entry, and it was rather admitted there were sitch mines, the title was not deemed good, although on a sale in 1761 no notice was taken of the reservation and the right had never been exercised ; the purchaser accepted tlie title with a compensation (q). 18. So where an estate was under an old enclosure subject to many regulations as to fences, planting, &c., which were not dis- closed to the purchaser, he was relieved from the contract, although the estate had been demised to a tenant for 900 years, and there Avas little or no probability that he would permit a breach of the cove- nants (r). 19. 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. But 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 (s). 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 per- formance, unless the notice is acted upon, or facts are brought forward to impeach the appointment {t). But an appointment to an adult child for the purpose of removing the objection pendente lite was considered not to confer such a title as could be forced on a purchaser (?<). 20. 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 (x). 21. But if any person has an interest in or claim upon the estate which he mai/ 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 Drewe v. Corp (i/), the vendor was entitled to an absolute term of four thousand years in the estate, and also to a mort- gage of the reversion in fee, which was forfeited but not foreclosed. It was decided, that the purchaser who had contracted for a fee, was (p) Pindar r. Wadsworth, 2 Ea. 154. (t) Green v. Pulsford, 2 Bea. 70; Grove (q) Seaman v. Vawdi'ey, 16 Ves. 390 j v. Bastard, 2 Phil. 619; 1 De Ge. Mac. & Martin r. Cotter, 3 Jo. & Lat. 496. Gor. 69; Grove v. Young, 5 De Ge. & (r) Larkin v. Ld. Rosse, 10 Ir. Eq. R. 70. Sma. 38. {s) M'Queen v. Farquliar, 11 Ves. 467 ; {u) Weir v. Chaniley, 1 Ir. Ch. R. 295. post, ch. 24; Barnwell v. Ilan-is, 1 Tau. (a-) Oshaldeston v. Askew, 1 Rus. 160; 430; Boswell v. Mendham, 6 Mad. 373; Bentley v. Craven, 1 7 Bea. 204. Campbell v. Home, 1 Yo. & Col. C. C. 664. (y) 9 Ves. j. 368. X4 328 SALE UNDER POWER IN MORTGAGE, &C. [CH. 10. S. III. not bound to take the term of years. Nor was he compelled to take the title on the ground of the vendor having a forfeited mortgage in fee of the reversion. 22. In a case wliere 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 described ; 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 (?/). 23. But where it is established by evidence that a copyhold estate sold has continually passed and been enjoyed by the description con- tained in the court roUs, it is not material that there is only a general and vague description of the estate on the rolls (z), and the purchaser will be compelled to take the title. 24. Although in many cases a purchaser with notice may safely purchase from one who bought without notice, yet the title would not be forced on the second purchaser, as he would have to incur the risk of notice being proved (a). 25. Where a vendor was tenant in tail, with reversion to himself in fee, and the reversion had vested in different persons, a common recovery was generally required by a purchaser ; because that barred the remainder, while a fine let it into possession, and thereby sub- jected the whole fee to any incumbrance which before aiFected 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 probability of the reversion having been incumbered (6) (I). 26. A sale is valid under a mortgage with a power of sale, although the mortgagor in his answer state that he actually resisted the sale as having been made without his consent and at an undervalue (e). This is now an established rule {d). , If the mortgagor is in possession, of course the mortgagee must be prepared to give the purchaser posses- (y) Eyton v. Dicken, 4 Pri. 303. Lat. 666; 6 Ir. Eq, R. 513; Note, Stab- {z) Long V. Collier, 4 Rus. 267. back v. Leatt, Coo. 46, wliich was taken (a) Freer v. Hesse, 4 De Ge. Mac. & Gor. fi'om a hasty note on a brief, is not, when 495. attentively considered, an authority the (J) Sperling t>. Trevor, 7 Ves. 497. other way; see ch. 1, s. 6; Matthie v. *yfh4-ff^ir (c) Clay V. Sharpe, Ch. M. T. 1802, Lib, Edwards, 2 Col, 4G5, 11 Jur. 504, 761, de- Reg. A. 1802, fo. 66, App. Purch, No. 12. pended upon peculiar circumstances ; San- (d) Baker r. Dibbin, Dibbin u. Baker, Ex, ders w. Richards, 2 Col. 568 ; as to notice April 20, 1812, MS. ; Corder v. Morgan, )8 of sale, Major v. Ward, 5 Ha. 598; Ash- Ves. 344 ; Alexander v. Crosbie, 1 Jo. & worth v. Mounsey, 2 Com. L. R. 418. (1) This is allowed to remain as an illustration of the doctrine, and as applicable to existing titles, although the law is now altered by the 3 & 4 Will. 4, c. 74. on. 10. S. III.] EQUITABLE TITLE. 329 sion ; but if the seller assert that he Is ready to give possession, the purchaser must perform his part of the contract in order to enable the seller to perform what he says he can do (e). 27. We have seen that where an act of bankruptcy has been com- /;^^. / f^ ^4^^/ mitted, 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 (/). And upon the same principle, a purchaser who has become bankrupt can- not compel a conveyance of the estate to him; because he cannot satisfy the vendor that he will be entitled to retain the purchase-money {(j) (II). 28. A purchaser from a father, who was tenant for life, and obtained a conveyance from his son, who was tenant in tail in remainder, in consideration of a life annuity, and a debt due to the fiither, is entitled to evidence that the debt was due, and of the fairness of the trans- action ill). 29. The rule that a purchaser will not be compelled to take an equitable title does not extend to estates sold under the decree of a court of equity, where the legal estate is vested in an infant. In a case {K) 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 being in an infant; Lord Rosslyn, without the least hesitation, compelled the purchaser to take the title, making his decree for the inftmt 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. Nor, if the estate were copyhold, would the Court retain any part of the purchase- money in order to defray the expense of the fine that would be pay- able, in case the infant heir should die before he surrendered (/). This rule applies only when the legal estate is outstanding, without any claim of interests on the part of the person in whom it is vested. Therefore where an estate was sold by the Court to pay the debts of an ancestor, judgments against an heir were deemed to be an objec- tion, as the creditors were not parties to the suit, and they might issue execution against the estate {jni). 30. Nor does this rule apply to a sale under a decree of a copyhold estate for payment of debts with which the estate was charged, where (e) Allen v. Martin, 5 Jur. 230. 392; Craddock v. Piper, 14 Sim. 310; but (/) Lowes V. Lush, 14 Ves. 547 ; Cann a purchaser under a decree will not be V. Cann, 1 Sim. & Stu. 284. compelled to take a doubtful title; Marlow {g) Franklin y.Ld.Brownlow, 14 Ves. 550. v. Smith, 2 P. Wms. 201. ',;,.. (h) Boswell V. Mendham, 6 Mad. 373. ^'^^ Morris r.Clarkson,lJa.&Wal.G04,n.; see Savery v. King, D. P., May 185G. g g^^.^^^^ ^^g^ (Jc) Ld. VTaltham's case, Ch. MS.; 3 ' ' ' c- rnn fu ii t> i -i •!->• i ('«) Craddock V. Piper, 14 Sim. 310. Swan. 560; Chandler v. Beard, 1 Dick. ^ ' ' ' (II) But where the pm-chaser has not notice he is safe; see post. 330 REMEDY UNDER TRUSTEES' ACT. [CH. 10. S. III. tlie conditions of sale provided that the sellers should procure the sur- renders, and the remainder-man had gone abroad, and so a surrender from him could not be obtained (w). 31. 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 injunction (o). 32. 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 purchaser. This was also decided by Lord Rosslyn in Lord Waltham's case (p). 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 refused to complete 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. 33. But where the estate is not sold by the Court, although the purchaser agree to go before the chief clerk 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 {q). 34. In a case where a seller after the contract died intestate, leaving an infant heir, who filed a bill against the purchaser, praying that he might elect either to complete or abandon the contract ; and the purchaser submitted to perform the contract, and paid the i^ur- chase-money into Court, the Court refused to pay it out without the consent of the purchaser during the infancy of the heir(r). 35. In another case, where after a contract for sale the seller died intestate, leaving an infant heir, and his widow, who was his ad- ministratrix, filed a bill for a specific performance against the pur- chaser 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). 36. The Act of the 1 Will. 4, to which we have already referred (m), removed most of these anomalies by enabling the Court to make a good legal title. And a devisee subject to a charge, who refused to convey after a sale under a decree with an order that all proper parties should join in the conveyance might be divested of his estate by a conveyance by a third party under the du'ection of the Court {x). By a later Act, an executor or administrator of a mortgagee entitled (w) Noel V. Weston, Coo. 138. (0 King v. Turner, 2 Sim. 549. (o) Shaw V. Wright, 3 Ves. 22. {n) Sup. ; Jemmett on the Statutes ; {p) MS. ; Powell v. Powell, 6 Mad. 53. Price v. Cai-ver, 3 My. & Cra. 157 ; Jones {q) Cann v. Cann, 1 Sim. & Stu. 284. v. Ham, 3 Ir. Eq. E. 65. (r) Bullock V. Bullock, 1 Ja. & Wal. G03. (.t) 1 Will. 4, c. 60, s. 8 ; 3 Vict. c. 60 ; (s) Holland v. Hill, Rolls, 18 Mar. 1818, Robinson v. Wood, 5 Bea. 246. MS. en. 10. S. III.] PRESUMPTION OP CONVEYANCE. 331 to the mortgage money, was authorised, 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 (y); but this provision was repealed, as from the 1st of October 1845 (z). And now the 13 & 14 Vict. c. 60, to which we have already referred, enables the Court in all such cases to make an effectual transfer of the estate by order or by actual conveyance {a). And by the later Act of 15 & 16 Vict. c. 55, s. 1, where a court of equity has decreed a sale of lands for any purpose whatever, every person seised or possessed of such land, or entitled to a contingent interest therein, being a party to the proceeding in which the order is made, and bound by it, or being otherwise bound by it, shall be deemed to be so seised or possessed upon a trust within the meaning of the Act of 1850; and the Court, if it shall think it expedient for the purpose of carrying such sale into effect, may make a vesting order for such estate as the Court shall think fit, in any purchaser or in such other person as the Court shall direct, to which the same effect is given as if such person had been free from all disability, and had duly executed all proper conveyances and assignments of such lands. The Court may therefore now in the case of a sale by which the seller becomes constructively a trustee for the purchaser make an order upon a sale without requii'ing a bill to be filed (i). 37. 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 uj)on which presumptions are in general raised, to presume a reconveyance, the purchaser will be compelled to take the title (c). The old rule was, that a vendor was bound to get in all outstanding legal estates, which were not barred by the statute of limitations. And now that the time is shortened by the late statute of limitations, there is less room than before for presuming a con- veyance of a legal estate against a purchaser. A distinction has been taken, that if before a jury it would be the duty of a Judge to give a clear direction in favour of the fact of conveyance, then it is to be considered as without reasonable doubt ; but if it would be the duty (y) 7 & 8 Vict. c. 76, s. 9. Emery v. Grocock, Ex pte. Holman, post, (z) 8 & 9 Vict. c. 106, s. 1; see In re eh. IG, s. 4; but see Goodi-ight v. S^vym- EUei'thoi-pe, 18 Jur. G69 ; I?i re Meyrick's mer, 1 Keny. 385 ; Keene ». Deardon, 8 Ea. est., 9 Ha. 130. 820; In re Boden, 9 Ha. 248 ; Doe v. Briglitnen, 10 Ea. 583, which 820, 1 De Ge. Mac. &; Gor. 57 j In re King's show that the cii'cumstancc of the equitable Mortg., 5 De Ge. & Sma. 644. estate being in the person who claims the (a) Sugd. Stat. benefit of the presumption, is not sufficient {b) In re Angelo, 5 De Ge. & Sma. 278, of itself to raise it ; Barnwell v. Hams, 1 gif. the application of s. 35 ; see //i »*e Burt, Tau. 430; Doe v. Calvert, 5 Tan. 170; 9 Ha. 289 ; In re Probert, 1 Kay 420 ; In Cooke v. Soltau, 2Sim. & Stu. 154 ; 10 Bar. re Carpenter, id. 418. & Cres. 312; Noel v. Bewley, 3 yim. 103 ; (c) Hillary v. Waller, 12 Ves. 239; Doe w. Davies, 1 Q. B. 430. 332 EQUITABLE OBJECTIONS AT LAW. [CH. 10. S. III. of a Judge to Iccave it to the jury to pronounce upon the effect of the evidence, then it was too doubtful to conclude a purchaser (d). But now in most cases, an outstanding legal estate may be got in under the provisions of the Trustees Acts of 1850 and 1852. II. As to the Cases at Law : — 38. A court of law can of course decide upon the validity of a title, however ambiguous or doubtful the construction may appear to be. Whether courts of law were at liberty to follow in the footsteps of erpiity, and to hold that a title may be too doubtful to be forced on a purchaser, is a question upon which eminent Judges have differed (I) with each other, and even with themselves. But it appears to be ultimately settled that courts of law cannot adopt the equitable rule, and are bound to decide the legal question upon which the right to recover must depend. 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 beino" compelled to take a title Avhicli 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. Where the seller brings an action, the purchaser may avoid the strict rule of law by filing a bill for a specific performance, or for his deposit, if a good title cannot be made, taking care not to allege that the seller cannot make a title (e). 39. But at law it is of course fatal to the title that a right exists to defeat it. Therefore, where a lessee sells his lease, and in consequence of a breach of covenant the lessor has a right to re-enter, the pur- chaser, although the lessor has taken no step to enforce his right, may recover his deposit (/). 40. After some difference of opinion it appears to be settled, as no doubt the rule should be, that even in a court of law equitable objections to a title may enable a purchaser to resist a contract, or to rescind it (II), for although a court of law has only to administer the leo-al rights which arise out of the contract, yet one of those rights is to have a good title in equity. In a late case, three Judges held that a o-ood title to mortgage land was not shown, if the title was not such (d) Emery v. Grocoek, G Mad. 54. (/) Penniall v. Harborne, 11 Q. B. 368. (e) Supra. (I) For the purchaser where the title is deemed doubtful, Hartley v. Pehall, Peake 131 ; Wilde V. Fort, 4 Tau. 334 ; Curling v. Shuttleworth, G Tau. 121. For deciding the point, and binding the purchaser, Oxcnden v. Skinner, 4 Gwil. 1513 ; Romilly v. James, 1 Mars. GOO ; 5 Tau. G26, G-27 ; Boyman v. fUitch, 7 Bin. 390. (II) For admitting equitable objections, Elliot v. Edwards, 3 Bo. & Pu. 181 ; (see .Johnson v. Johnson, id. 1G2) ; Mabcrley v. Robins, 5 Tau. G25, 1 Mars. 258, see Simms V. Marryat, 20 L. J., N. S., Q. B. 454. For excluding such objections, Alpass v. Watkins, 8 T. Rep. 51G. WiUett v. Clarke, 10 Pri. 207, is not an authority against admitting equitable objections. CH. 10. S. III.] DOUBTFUL TITLES UPON FACTS. 333 as a court of equity would force upon an unwilling })arty, whilst the remaining Judge held that in a court of law the only question was whether the title was good or bad (y). The Legislature has set this point at rest, by enacting that equitable defences may be expressly made at law, but the plaintiff may re})ly facts which avoid the defence on equitable grounds. And if the Court or Judge think that the equitable jurisdiction cannot be dealt with by a court of law so as to do justice, the equitable plea or equitable replication may be struck out on such terms as may seem reasonable (A). 41. 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 an equitable one, the contract is not binding upon the purchaser at law (?'), nor, as we have seen, in equity, if the seller cannot procure the legal estate. 42. As an executor may sell a leasehold estate before a decree, although a creditor has filed a bill for the administration of the deceased's estate, a court of law takes judicial notice of this rule and acts upon it (k). 43. Lastly, as to titles depending upon questions of fact, a court of equity deals with questions of fiict 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. In law, strictly speaking, there is no doubt, but practically there is 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 maldjide, or, Mhondjide, by mistake. Courts of equity are compelled to grapple with these difficulties (/). 44. Therefore where (w) 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 Avhich a commission could issue, and the purchaser could not disprove the statement, and the Master reported in favour of the title, the Court refused to compel the purchaser to take the title. 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 {ii). 45. Upon the same principle, where (o) 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 held that equity ought not to compel the purchaser to accept the title, because, {g) Jcalves v. White, G Ex. 873. (/) 6 Mad. 57, per V. C. ; Kirkwood v. {h) 17 & 18 Vict. c. 125, s. 83-8G ; Teede Lloyd, 12 Jr. Eq. R. 585. V. Johnson, 11 Ex. 840. {in) Lowes v. Lush, 14 Ves. 547. (i) Cane v. Baklwin, 1 Star. Go. (h) 14 Ves. 557. [h) Neeves v. Burrage, 14 Q. B. 504. (o) Hartley v. Smith, Buck, 3G0. 334 DOUBTFUL TITLES UPON FACTS. [CII. 10. S. III. 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. 46. 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 were sufficient if he had to pass it. Lord Eldon, though of opinion that the title was good, refused to force the title on a purchaser {jj). 47. In Nouaille v. Greenwood {q), 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 /. A re- covery 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 settlement, 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, and if the legal estate was in the trustees, he thought the recovery a good equitable one. 48. 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 Avas no evidence that he had all the ante- cedent 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 security, and therefore must conceive that the title was not accepted without examination. 49. So in a later case (r), 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, 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 a title which in some measure depended upon matter of fact ; that in the present case it did appear to him that the fact was capable of proof, and was satisfactorily proved. 50. 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 Avas a codicil in which the testator stated that he had, by his Avill, devised to ^. A. in fee, as therein ip) Stapylton v. Scott, 16 Ves. 272 ; Ma- (q) Tiu-. & Rus. 2G. geunis v. Fallon, 2 Mo. 580. (/•) Smith v. Death, 5 Mad. 371. CH. 10. S.III.] DOUBTFUL TITLES UPON FACTS. 335 mentioned ; J. A. was the son of the cousin, and therefore really a devisee in the will, although not nominatim. The inaccurate reference in the codicil was held to be no objection to the title (5), as it did not lead to the presumption of another will. 51. A purchaser has been compelled to take a title depending upon the construction of an ill-penned shifting clause requiring the de- visee to live and reside on the estate, although the fact of residence in a strict sense was not made out {£). The title therefore depended upon a question of laAV, and one of fact, both of difficult solution. 52. But where a point of law is considered to be unsettled, although there is a decision upon it, e. cj. whether a power by deed or deeds, writing or writings, under hand and seal, is within the new statute of wills requiring testamentary powers to be signed only, the Court will not force the title upon a purchaser {u). 53. Where a purchaser had notice of judgments, and the validity of the title depended upon the vendor's allegation that he purchased without notice of them, the purchaser was not compelled to accept the title {x). 54. 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 {y). 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. 55. 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 equity would not compel a 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 pro- perty is left in his hands not marketable (r). 5Q. 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 rumours of legitimacy was proposed before the Master, Lord Eldon observed, that it would be very dangerous for the Master to be at liberty to receive such evi- dence and to call for proof of legitimacy ; that under the circum- stances, strong in favour 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 inference faMy questionable. It was, he admitted, very different as to a purchaser. But the Court (,s) Howarth v. Smith, G Sim. 161. {x) Freer v. Hesse, 4 Do Ge. Mac. & Gor. (0 Filliiigliam r. Bromley, Tm-. &, Rus. 495; «?<;;. pi. 24. 530 ; ;3 Drew. 480. (?/) Edwards v. Harvey, Coo. 39. {ti) Collard v. Sampson, 4 De Gc. Mac. & (~) 8 Ves. 428, not decided. Gor. 224. 336 DOUBTFUL TITLES UPON FACTS. [CH. 10. S. III. ought to hesitate long before it would act upon such grounds to the destruction of legitimacy not appearing to have been ever called in question («). 57. And where the title depends upon a fact which is left in doubt, a court of law Avill act upon the doubt as well as a court of equity. In a case before Lord Kenyon, where the estate sold was alleged to be subject to a right of common every third year, he said, if there was any colour for the claim, that was sufficient to entitle the pur- chaser to avoid the bargain ; he was not obliged to buy a law-suit {b). (a) Lcl. Braybroke v. Inskip, 8 Ves. 417. (b) Gibson v. Spurrier, Peake Ad. Ca. 49. CHAPTER XI. 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. 1. Co7nmencemetit of abstract 18. Covenants. 2. Purchaser entitled to an abstract. 19. Executions : attestations. 3."\ Abstract of ancient deeds cannot be rc- 20. Receipt. 5. j quired. 21. Registry. 4. Hotv it should be vmtten— Hoiv headed. 22. Intestacy. 5. What deeds should be abstracted. 23. Leasehold title. 6. Printed copies of inclosure Act. 24. Renewable leaseholds. 7. Descrijdion of iiarties. 25. Attendant terms. 8. Recitals. 20. Descent. 9. Witnessing -part. 27. Wills. 10. Granting part. 28. Acts of Parliament. 11. Parcels — Map. 29. Judgynents and Crown debts. 12. Exception. 30. Decrees. 13. Habendum. 31. Fiats in bankruptcy. 14. Limitations and uses. 32. Liability of seller's solicitor. 15. Provisoes for cessor. 33. Purchaser's solicitor to examine the ab 16. Trtists. stract. 17. Potvers. 34. Where examination may be delayed. 1. The preceding chapter points out the proper root of title to the various descriptions of property : to this, therefore, reference should be made in order to ascertain where any particular abstract should commence. I shall now, with the assistance of Mr. Preston's able Treatise on Abstracts, proceed to make a few practical observations 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. 2. Formerly the title-deeds were delivered to the purchaser, and CH. 11. S. I.] PREPARING AN ABSTRACT. 337 his solicitor prepared the abstract at his expense, and the abstract Avas compared with the title-deeds by the counsel before Avhom it was laid (a). But the seller's solicitor now prepares 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 ajlegation will not be sustained by proof that he delivered the deeds themselves to the purchaser (Z>). 3. A seller may upon a suit for a specific performance be compelled on oath to bring into the office of the Court all documents in his pos- session or power relating to the title, yet he is not bound to furnish an abstract commencing before the proper period, whether the pur- chase is completed in or out of court. Where circumstances dis- closed by the instruments abstracted or otherwise known to the pur- chaser require the production of any portion of the earlier title, the true rule perhaps is, that the seller must furnish an abstract of any instrument, however ancient, upon the contents and construction of which the title depends, but that where the instrument is required simply to establish 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 the usual paper (c). 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. 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. The strict legal charge for drawing an ab- stract is 6 5. 8 d. for each sheet of ten folios of seventy-two words, and 35. 4 ^. for the copy ; but, unless objected to, the Masters pass ab- stract sheets as proper ones, if they contain an average of eight folios per sheet (rZ). 5. The title should, as we have seen, as a general rule, commence sixty years back. The solicitor should abstract every document 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 pur- chaser should be damnified, he would be answerable for the loss. But there is no pretence for a purchaser requiring, or a seller's soli- citor furnishing an abstract of all the deeds in his possession, how- ever ancient : this is never done by a respectable solicitor, and could not be justified, nor could a purchaser insist upon such an abstract. 6. In titles under Inclosure Acts, a printed copy of the Act should (a) See Temple v. Brown, G Tau. 60. (c) 1 Pres. Ab. 75. {b) Home i;. Wingfield, 3 Sco., N.C.,340. [d) In re Walsh, 12 Bea. 490. 338 TREPARING AN ABSTRACT. [CH. 11. S.I. 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 (e). The Queen's printer's copies of private Acts are now made evidence without further trouble (/). Where an estate has been purcliased in parcels under different titles, every title should of course be traced separately, until they all unite in one common title. 7. The parties should be stated, with their descriptions, shortly, if deemed necessary. 8. 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 (f/). Recitals should be introduced as such where they occur, and not as substantive state- ments of fact. The deeds, &c., already abstracted, may be stated to be recited, but an abstract of the recitals could not be justified. 9. 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 (A). 10. The granting part should be stated 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 stated. 11. The parcels should be stated accurately, but not at unnecessary length ; and they should, in subsequent instruments, only be referred to, unless a new or some additional description is introduced, which should be stated (i). The abstract may refer to a map or plan annexed to any of the deeds for the purpose of identification. A map or plan is clearly not a necessary part of an abstract {h). 12. Any exception in the deed relating to the property sold, should, of course, be abstracted (/). 13. 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, &c. Upon this point the person abstracting should not exercise his judgment, but copy the words (m). 14. The limitations and uses should be accurately stated. Where the common words are accurately introduced, the effect of them only should be stated (w) ; estates tail, therefore, should be stated as such, and the precise words of limitation not introduced ; but every limita- tion out of the common course, and every proviso defeating or abridging any limitation, should be accurately stated. Where the (e) 8 & 9 Vict. c. 113, s. 3. (i) 1 Pres. Ab. 56, 81, 90, 94, vol. 3, p. (/) 8 & 9 Vict. c. 113, s. 3. ^1' *^' 2^^- (k) Blackburn v. Smith, 2 Ex. 783. (g) 1 Pres. Ab. 63, vol. 3, p. 8. 229 ; Gil- \,^ g p,.,,. ^^^ gg. lett V. Abbott, 7 Ad. & El. 783. (^„) j p,^,^ A,3_ 97^ ^„,_ 3^ ^^ 39^ (h) 1 Pres. Ab. 69, {11) 1 Pres. Ab. 99, 104, 117, 121. CH. 11. S. I.] PREPARING AN ABSTRACT. 339 l^rovisoes 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. 15. Provisoes for cessors of terms, where they are considered to have operated, should be fully stated (o). 16. If there are any trusts they should be stated, with all the con- ditions and requisitions attached to them, unless they never arose, in which case the fact should be stated, and the trusts simply referred to. 17. Powers should be stated shortly, unless they have been exer- cised, 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 (77), or only shortly. 18. 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 incumbrances 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 (q). 19. When the instrument is fairly abstracted, it should be stated with accuracy by whom it is executed (r), and if by attorney, that fact should be stated, and the power should be abstracted shortly. Where livery of seisin, as upon feoiFment, or enrolment, as upon a bargain and sale, is required, the fact and date should be correctly stated (5). If the deed be in execution of a power requiring witnesses, the form of attestation and the number of witnesses should be stated (t). 20. Where a receipt is endorsed, that should be stated, and by whom it is signed {u), 21. If the estate is in a register county, the fact of registry should be regularly stated. 22. In cases of intestacy of freehold estates, it is desirable to state how the intestacy is proved, as, for example, by letters of administra- tion, which are the best proof. And generally all the evidence in (0) Ch, 16, infra. (s) 7 & 8 Vict. c. 76 ; 8 & 9 Vict. c. 106. (jy) 1 Pres. Ab. 134, 135. ^ (0 3 Pres. Ab. 371. (7) 1 Pres. Ab. 152, vol. 3, p. 56. {u) 1 Prps. Ah. 72, 155, 299. (r) 1 Pres. Ab. 154, 276. Y 2 340 PREPAKING AN ABSTRACT. [CII. 11. S. I. 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 labour and expense. 23. 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 assignments (a;), and by probates and letters of administration in courts of competent jurisdiction {]/). 24. 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 {z). 25. The creation of terms of years assigned to attend the inheri- tance should be shown by the abstract, but the intermediate assign- ments may be abstracted very shortly (a). 26. 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 hereafter titles within the range of the late statute (b), will not require to be carried back in order to show who was the first purchaser (c). But in every case a regular pedigree should be pro- properly vouched. 27. 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 (fZ). 28. Acts of parliament generally may be concisely stated, because there is mostly a printed copy with the title which can be read with facility, and may therefore with propriety be sent with the abstract and referred to. 29. Judgments, crown debts, and the like should be stated succinctly. This, however, was formerly seldom done, but the purchaser was left to discover such incumbrances by search or inquiry ; but now that judgments are made an actual charge upon the property, it would not be safe for the seller's solicitor to withhold a statement of them. 30. 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 or the chief clerk important to the title, the result should be stated, with the order or decree on further directions (e). 31. Commissions of bankrupt, or fiats in bankruptcy, are usually stated shortly, and if the bankruptcy is of recent date, and the bank- (x) Ch. 10, suj}. ; Doe i'. Maple, 3 Bin., (5) 3 &4 Will. 4, c. lOG, post, ch. 12. N. C, 832. (j/) 1 Pres. Ab. 11. (c) 1 Pres. Ab. 22, 43, inf. (z) Ch.lO, SU2).; 1 Pres. Ab. 14. (d) 1 Pres. Ab. 178. (a) 1 Pre?. Ab. 25, 148,;jo«f. 8ee now (e) 1 Pres. Ab. 188. 8&9 Vict. c. 112. CH. 11. S. I.] EXAMINATION OF ABSTRACT. 341 rupt do not concur In the conveyance by his assignees, the purchaser's solicitor inspects the proceedings as to the trading, act of bankruptcy, &c. (/). Now the property vests in the assignees for the time being without any conveyance {(/). 32. We have ah^eady seen that the seller's solicitor would be personally responsible for suppressing an incumbrance (A). And whilst preparing an abstract he cannot be too careful in furnishing the purchaser with the real state of the title. 33. 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 damnified, he would be answerable for the loss. This examination should never be left to an hicompetent person. In the case of wills, particularly, the solicitor is bound to read through the whole will. Upon him devolves the duty of seeing that the evidence is what it purports to be, and that the deeds and wills are duly attested, and the receipts on the deeds properly endorsed and signed. An estate has been lost principally from the manner in which the receipt was endorsed, which would have led a vigilant purchaser to inquire further, when he would have discovered the fraud which had been committed (i). He should also see that the modern deeds are duly stamped (A). 34. If the abstract is on the face of it properly framed, wliich a competent person will be able to tell at a glance, the examination of it may be delayed until after the abstract has been perused by counsel, when the solicitor can at the same time ascertain the correct- ness of the abstract, and investigate the points suggested by the counsel. 35. Sometimes a solicitor enters into a discussion upon 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 and money. (/) 1 Pres. Ab. 167. {h) Introd. cliaptei-. (gr) 1 & 2 Will. 4, c. 56, s. 26 ; 12 & 13 (i) Kennedy v. Green, 3 My. & Ke. 699. Vict. c. 106. \k) 1 Pres. Ab.201. SECTION II. OF PERUSING ABSTRACTS. 1. Perusal at one sitting. 3. Notes. 4. Opinion hook. 5. Parcels. 6. Dates: new laws. 7. Evidence. 8. Office copies, extracts, probates, tyc. 9. Pedigree: certificates: receipts. 10. Registry: enrolment: execution: attes- tation. 1 1 . Negative answers. 12. Seai'c/ies. 13. Co7i7-t rolls. 14. Expense of searches. Y o 342 PEKUSING ABSTRACTS. [CH. 11. S. II. 15. Power of attorney. 16. Evidence. 17. Evidence admitted, and how acted upon. 18. Formal evidence. 19. What formal evidence not required. 20. Weight of evidence. 21. Presumptions admitted. 22. Negative evidence. 23.1 25. i Pedigrees. 24. Recitals. 2G. Register of birth, Hfc. 27. Presumptions of legitimacy. 28. Ti«e % descent. 29. Declarations in proof of title. 30. Certificate of broker. 31. Opinion of conveyancing counsel. 32. Counsel's ojrinion not binding on ^mr- chaser. Counsel and solicitors bound to secrecy. 1. In regard to the best mode of perusing an abstract by counsel, I will simply state what always appeared to me the best mode (a). The perusal should, if the length of the abstract 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 a 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 absence. 4. Still a man should not incumber himself with unnecessary details. He may save himself much unnecessary labour by a little method, and by writing his opinion with liis notes in a book as he proceeds, reserving, if necessary, any important point for subsequent consideration. In the margin he should note every term of years created, and the folio in which every assignrnent of it will be found. 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 legal estate of inheritance, he may pursue the same method. If the title be complicated, he may leave a blank page in his book for references to the abstract, and queries to be considered. With some such excep- tions 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. It may sometimes be useful to glance the eye over the abstract in the first place, in order to obtain a general view of the title, and expe- rience 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 perused but once, and that once effectually. Tlie party should never pass on until he thoroughly (rt) 1 Pres. Ab. 208, vol. 3, p. 59, 191, 201. CH.ll. S. II.] EVIDENCE OF TITLE. ' 343 coinprelieiids what lie has already read ; the advancing in a difficnlt title, in order to comprehend what you have passed and do not under- stand, often leads to insurmountable difficulties. 5. 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 recon- ciled, whilst ujDon a general view of them it may be deemed impos- sible to connect them. 6. It should not be taken for granted that the dates are chrono- logically 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 (c), descent {d), wills (e), escheat (/), illusory appoint- ments i^g), executors (A), the substitution for recoveries act (2), the new statute of limitations (/t), the new acts for amending the law of real property (Z), the act to render the assignment of satisfied terms unnecessary (?w), and the act for rendering valid defective execution of powers of leasing {11). 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 ; and the pro- vision made by statute in favour of purchasers as regards voluntary settlements, and settlements with power of revocation, recoveries, unregistered deeds, bankruptcy, judgments, crown debts (0), should also be kept in view. 7. 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. 8. So where the orio-inal documents cannot be obtained, he should, as he proceeds, require to be produced, the probate or an office copy of a will affecting a real estate, but not a resort to the original will without some fair ground for suspicion. If it has not been proved, which a will of real estate need not be, of course the will itself should be produced. In a late case it appeared that a bad title was accepted {h) Ch. 12, -post. {%) 3 & 4 Will. 4, c. l^.post, ch. 12, s. 2. (c) 3 & 4 Will. 4, c. 105,^70;?!;, ch. 12, s. 1. (70 3 & 4 Will. 4, c. 11, post, ch. 12, s. 3. \d) 3 & 4 Will. 4, c. 106, poit, ch. 12, s. 1. \v) 7 &; 8 Vict. c. 76 ; 8 & 9 Vict, c. 106, (e) 1 Vict. c. 26, post, ch. 12, s. 1. post, ch. 12, s. 4, (/) 4 &; 5 Will. 4, c. 23 j 13 & 14 Vict. c. (wt) 8 & 9 Vict. c. 112, post, ch. 12, s. 4. 60, s. 46. («) 12 & 13 Vict. c. 26 j 13 & 14 Vict. {(j) 1 Will. 4, c. 46. c. 17. \li) 1 WiU. 4, c. 40. (0) Ch. »,2,j)0st. y4 344 ' SEARCHES TO BE MADE. [CH. 11. S. II. upon an incorrect statement in the abstract of a will, which statement the purchaser's solicitor neglected to examine Avith the original {p). He should also call for office extracts from tines and recoveries, and from awards under inclosurc acts, and for a king's printer's copy of a private act {q). 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 cannot 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 executorsliip Avill to an administrator. 9. 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 evidence of the pay- ment of an annuity or jointure which has recently ceased by the death of the party entitled (r). 10. 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 (I); whether instru- ments executed under powers have been executed properly, and he should point out in the inquiry the proper mode of execution. And in future he must inquire whether wills made in execution of a power since the 1 Vict. c. 26, are attested by tv,^o witnesses, and whether they were executed whilst both were present, and whether the signature of the testator was seen by the witnesses. The signature of the testator can hardly now be in a wrong place (5) ; he should never rely upon the statement in an abstract, that the instrument was duly executed, unless it is a common deed. 11. 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 the (/;) M'CuUoch v. Gregory, 3 Eq. R. 495. scripts of parish registers may become evi- {q) Brett v. Beales, 1 Moo. & Mai. 421 ; dence ; Doe v. Wilkins, 2 Car. & Ki. 328 ; Beaumont v. Mountain, 10 Bin. 404 ; 8 & 9 see 3 &; 4 Vict. c. 92, s. 11-14. Vict. c. 113, s. 3. (s) 15 Vict. c. 24; In re Brown, IG Jui'. (r) Wynn v. Williams, 5 Ves. 130. Tran- 602. (I) The 3 & 4 W. 4, c. 74, s. 10, renders valid cotiimon recoveries, although the bargain and sale to make the tenant to the precipe was not enrolled in due time, provided such recovery would have been valid if the bargain and sale had been duly enrolled ; but deeds to be operative under the Act must be enrolled within six months after their execution ; s. 41. en. 11. S. 11.] EVIDENCE OF TITLE. 345 abstract. The Iiiquhy should be, Was this power executed ? The object .of the inquiry is to cast upon the seller and his solicitor the responsibility of stating, and tlierefore of ascertaining the ftict, 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 appointment really was made, and created an incumbrance still in existence. 12. 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 Avho might 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 {t). 13. 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 pur- chaser (u) ; although that cannot be maintained. 14. 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 in- cumbrances, such searches are directed for the purchaser's own satis- faction, and he bears the expense of them, unless 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 like, — 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. 15. If a deed was executed by attorney, he should require the pro-* (() But see Bernard v. Drought, 1 Mol. 33. (;/) Ch. 24, post. 346 EVIDENCE OP TITLE. [CII, 11. S. IT. duction of the power of attorney, and evidence that the principal was alive when the deed was executed by the attorney {x). 16. It is the duty of the conveyancer, in perusing an abstract, although the labour generally falls upon him upon a re-perusal, to consider the evidence necessary to support the title. In general, no difficulty arises. Tlie sort of evidence required to support a title is known to all, and consists mostly of office and attested copies, or ex- tracts, where the originals cannot be obtained ; and where it is neces- sary 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 addi- tion to affidavits of old inhabitants. 17. In examining a title, counsel is constantly compelled to admit 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 (I) of old inhabitants are furnished, and if satisfactory, the purchaser is bound to accept the title, yet the affi- davits could not be used in support of the title ; they, however, prove the fact, and show that living persons pan at that time establish it (y). On the other hand, in receivmg evidence admissible at law, counsel is compelled to submit the latter to a severer test than it would be sub- ject to upon an ordinary trial, for it is not a contest between tAVO litigants which has the better title, but a calm consideration by a man in his chambers, whether the seller's title is a safe one against all the world (z). 18. What is evidence of documents relating to the title of freehold, copyhold, or leasehold estates is fully set forth in the valuable treatises on evidence which we possess, under distinct heads (a) ; and so is the evidence necessary to establish the facts of marriage, issue, legitimacy, and identity, or the facts upon which presumptions may be made ; and it is truly observed by a writer who has collected and commented on them, that the numerous decisions in the Lords upon these latter sub- jects are authorities important to the conveyancer (b). 19. The rule in practice is not, without sufficient cause, to require the formal evidence which would be necessary in an action ; therefore a seller is never required to verify the signatures of stewards to coj^ies of court-roll, or of clergymen to extracts from registers, or to prove the execution of deeds however modern, which appear to have been regidarly executed, or that possession was enjoyed under leases pro* duced. Counsel constantly receive imperfect evidence of death ; for (x)Ch.U,s.l, post. («) Pbil. Ev. ; Stark. Ev.; Hub. Sue. (y) Scott r. Nixon, 3 Dru. k War. 388. Tayl. Ev. (?) Hub. Sue. 62. (b) Hub. Sue. 63. (I) See 17 & 18 Vict. c. 125, s. 48^ as to compelling persons to make an affidavit. CH. 11. S. II.] NEGATIVE EVIDENCE: PEDIGREE. 347 example, letters of administration ; and in pedigrees, dissenters' regis- ters, or affidavits of strangers to the family, whose evidence could not be received at law (c), but it has been judiciously suggested that de- clarations of relatives which in course of time may become muniments of title, should be obtained in preference of others (d). It seems clear, upon the great authority of the opinions in the Berkeley Peerage case, that such evidence would be admissible in due time (e). 20. In regard to the weight given to the evidence when admitted, although, for example, after seven years' absence without tidings, the death of a person may be presumed as between adverse litigants, and if the presumption be erroneously made, the party really entitled may recover back the estate, yet for that very reason no such presumption could be made between vendor and purchaser. So courts of equity, as between the parties, sometimes act upon the presumption that a woman of an advanced age is past child-bearing, but no such pre- sumption would be made against a purchaser. 21. But as between even a vendor and purchaser presumptions may be made in proper cases of a conveyance of the legal estate, or of a surrender of a legal term (/), or even of a grant from the Crown ((/). And of course a custom of a manor to warrant the creation of estates tail may be presumed or found from the dealings with the estate sold (A). 22. Negative evidence, if in the seller's possession, must be pro- duced, e. [/., an heir claiming because the will does not pass the estate, must produce the will, yet, as we shall see, the purchaser may not in all cases be able to obtain a covenant to produce such evidence in order to satisfy a subsequent purchaser {i). "NYhere there are several deeds, for the purpose of not implicating a purchaser in the disposition of the purchase-money, and the receipts of the trustees are made discharges, he cannot require the production of the separate deed disposing of the purchase-money. 23. 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, Avhich has no other connexion with the title (j). 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 some cases (c) Webb V. Haycock, 19 Beav. 342. (rj) Gibsou v. Clarke, 1 Ja. & Wal. 150, (d) Hub. Sue. G9. sup. (e) Berkeley Peer. Case, 4 Ca. 401 ; sedvide (h) Goold v. White, 1 Kay, 683. Walker v. Ly. Beaucliamp, 6 Car. & Pa. 552, (i) Inf. next section. C07it. ; Reilly v. Fitzgerald, Drury, 122, ace. (j) Davies & Lowndes, 7 Sco., N. R., 140, (/) Hillary v. Waller ; Emery v. Gro- as to bow far a pedigi-ee itself is evidence, cock, sup. 348 RECITALS EVIDENCE OP TEDIGREE. [CII. U.S. II. portions of the real pedigree have been fraudulently omitted, 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 pur- chaser may be compelled to take the title, and the very circumstance of resisting the seller's right may lead to a claimant {h). 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 (/). In the case of a pur- chaser, evidence that a father stated that his property would be divided between his daughters was deemed satisfactory evidence that his son was then dead, and it was presumed that he was not married, as there was no evidence that he was so (m). 24. Recitals in deeds of a pedigree are entitled to great weight wher'e the possession is enjoyed accordinr/ to the pedigree {ii) ; but in a case (o) 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 Avhat 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 pre- vious devisee, was recited, and by which deeds, and a fine and recovery, they conveyed to a purchaser in fee, and the j)urchaser afterwards obtained an assignment of the mortgage term from the personal representative of the mortgagee, and the possession, from 1793 to 1826, a period of thirty-three years, had remained undis- turbed ; upon a bill filed for a specific performance against a subse- quent 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 accompanied the pedigree, if be- tween 1747 and 1793 a possession had been shown passing from father to child under the entail created in 1732, 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 {h) See Crouch?;. Hooper, IG Bea. 182. there was some further sliglit evidence. (/) jPos!',ch.l2; Coster r. Baring, 2 Eq.R. (») Slaney v. Wade, 1 My. & Cra. 338; 811. The new Act for registering births is G Doe i;. Davies, 10 Q. B. 325; Brlngloe i). ck7 Will. 4, C.8G, and the new Marriage Acts, Goodson, 5 Bin., N, C, 738, as to recitals 6 & 7 Will. 4, c. 85 J 19 & 20 Vict; c. 119. binding the parties to the instrument. (w) Hemming v. Spiers, 15 Sim. 550: (o) Fort r. Clarke, 1 Rus. COL en. U.S. II.] r.EGiSTEES or births, etc. : title by descent. 349 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 Avould be compelled to accept. It was, we observe, a title made through tenants in tail claiming by- descent Avho 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 the deed executed in that year. 25. 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 liim, 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. 26. 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 (I). 27. 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 (p), and yet the Court has directed the seller's pedi- gree to be tried in an isssue between him and the purchaser. 28. A title by descent has been considered a highly objectionable one {q), but this must depend upon the want of sufficient evidence of the pedigree, or of negative evidence that no settlements or mort- gages of the property have been made. If the pedigree is proved, and there is no sufficient ground to suppose that some settlement or (;;) Supra, ch. 10. G Cla. & Fin. 163; Wrigby v. Holdgate, 3 Iq) 1 Pres. Ah. 255 ; Hub. Sup. 71. As Car. & Ki. 158. to evidence of access, see Morris v. Davis, (I) The 14 & 15 Vict. c. 99, s. 14, 15, makes examined or certified copies admissible in evidence of any document of sucli a public nature as to be admissible in evidence on its mere production from tlie proper custody; see Dorritt z;. Meux, 11 C. B. 142; Scott v. Walker, 2 Q. B. 555. Under which statute, the Court has admitted extracts fi-om parish registries of entries of marriages, baptisms, and burials, purporting to be signed by the incumbents, without further verification. In re Neddy Hall's estate, 9 Ha. App. l(i. This is somewhat dangerous. It is usual for rectors and incumbents to sign simply A. B., rector. Lord Cranworth observed, that solicitors would save themselves and the Court much trouble, and their clients expense, if in all such cases, to the names of the person signing the extract, the words " of the aforesaid parish " were added ; 2 De Ge. Mac. & Gor. 748. 350 CONVEYANCER'S OPINION. [CH. 11, S. III. mortgage lias been suppre.ssecl, it is a title which a purchaser would be compelled to accept. The new law of descent must now be kept in view, and particularly the evidence necessary to satisfy a purchaser that the person in the pedigree called the first purchaser did not take by descent (r). A title without title deeds is not one which can be accepted without satisfactory proof that there has been such a long uninterrupted possession, enjoyment, and dealing Avith the property as to afford a reasonable presumption that there is an absolute title in fee simple. But with such proof, a purchaser may be compelled to take such a title. Of course there are many good titles of which the origin cannot be shown by any deed or will (s). 29. Declarations of persons in support of a title have now more force if made under the 5 & 6 Will. 4, c. 62, s. 18 ; but such a declaration by the seller alone would not of course be such evidence as a purchaser would be bound to accept {t), for he cannot himself prove a fact upon which the title depends. 30. 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 {u). 31. Upon a reference as to title, the Master often acted upon the opinion of a conveyancer ; but he was not allowed in his report to state an opinion of counsel as the foundation of his finding (x). Now, as we have seen, whenever it is deemed necessary the abstract will be submitted to one of the counsel appointed by the Court (y). 32. We have seen that a purchaser is not bound by the accept- ance by his counsel of a bad title, although he may bind himself by acquiescence to a waiver by his counsel of objections (2). And we shall hereafter see that neither counsel nor solicitors are at liberty to com- municate to others any knowledge which they may acquire whilst acting for the purchaser, nor are they at liberty to communicate to others any defect in the vendor's title if the purchase do not proceed (a). (r) Post,ch. 12, s. 1. (s) Cottrell V. Watkins, 1 Bea. 3G1. (t) Hobson V. Bell, 2 Beav. 17. (u) S. C. (x) In re Collard, 10 Beav. 334; see Flower v. Walker, 1 Bus. 408. (?/) Sup., p. 297. (2) Sup., p. 289. («) Post, ch. 24. SECTION III. OF THE ABSTRACT, AND OF COMPARING IT WITH THE DOCUMENTS. 1. Abstract ivhen complete. 2 T * KAlthouah incumbrances exist. 4./ '' 3. Effect of facts which require evidence. 5. Where the contest is ivhether the lecjalentale is outstandiny — Where it is admitted. G. Tenant in tail need not bar the entail before completion. 7 . Abstract toshow a goodtitle — Exception under conditions. 8. No infiuiry in suit whether perfect. 9. Acceptance of abstract. CH. 11. S. III.] ABSTRACT, WHEN COMPLETE. 351 10. Restricted atistract by contract. 11. Of the title of a tenant in common. .12, For what jmrposes abstract delivered — Purchaser's properfi/ in it. 13. Right to opinion. 15. Seller to produce the deeds. 10. Place for examination. 17. At a third person's — At a distance, seller to pay expense — 8o in sale by Conrt. 18. Agent in London to examine abstract. 19. Southby v. Hutt ; verifying abstract. 20. Purchaser not bound to go to record offices. 21. Grant from the Crown: impropriate tithes : tithe rentcharges. 22. Notice to purchaser of place of produc- tion. 23. Seller having covenant to produce deeds must produce them. 24. Promise to produce deeds. 25. Deeds burned after examination. 2G. Copies of court roll. 27. Abstract to be examined before pur- chaser act as owner. 28. Expense of examination where no title. 29. Purchaser neglecting to call for deeds for examination. 30. Expense of contract includes mating out title. 1. The abstract (I) ought to mention every incumbrance whatever affecting the estate, and should, therefore, contain an account of every judgment by which it is affected («) ; but equity considers it complete Avhenever it aj)pears, that upon certain acts done, tlie legal and equi- table estates will be in the purchaser ; which may be long before the title can be completed (b). 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 mortgagee did not concur in it, the title was deemed good, as the seller was ready to procure a re-conveyance from the mortgagee, so that the lease might operate in interest (c). 2. And where at law the seller was bound to deliver an abstract of title within a time named [which he did], and deduce a good title t6 the estate, and a time Avas named for the completion of the contract, from which time the purchaser was to be entitled to the rents, and if from any cause the purchase should not be completed by the day, the purchaser was to pay interest till the completion, the seller was held to have jierformed the agreement on his part, although the abstract shoAved mortgages, and no notice had been given to the mort- gagees to pay them off, and there was no personal representative to a deceased mortgagee, for it showed a good title to the equity of redemp- tion, and the mortgages could be paid off out of the purchase-money, and the vendor had not bound himself to convey the estate by any particular day (d). This decision seems rather to have anticipated the law admitting equitable defences. 3. It has been said that if a vendor delivers an abstract deducinir a (a) Richards v. Barton, 1 Esp. 268. lb) 8 Ves. 43G; 1 Ja. & Wal. 421 ; Mor- ley V. Cook, 2 Ha. lOG ; Jumpson v. Pitchers, 1 Col. 13. (c) Webb V. Austin, 8 Mee. & Wei. 419; 7 Man. & Gra. 701, which seems to bo rightly decided notwitlistandlng the Re- porter's n. 728. (d) Savory ?>. Underwood, 23 L. T. 141. (I) An abstract of title may possibly be secondary evidence of a deed referred to in the abstract, when it is proved to have been made at the time of sale and jiurchase, and in tlie course of business; j^er Ld. Campbell, C. J., G Ex. COG, 352 ABSTRACT, WHEN COMPLETE. [CH. 11. S. III. title by deeds, &c., the verification of the abstract with the deeds is a mere question of evidence, and the title is made out by the abstract as delivered. But that where facts are alleged in the abstract which require evidence, oral or documentary, to prove them, which evi- dence is not produced, the production of the evidence necessary to prove such facts constitutes a question of title. Instances were given of the necessity of proving a statement as to the identity of a former owner of the property, or as to the identity of parcels where the description in the deeds varies from that upon the sale — until the evidence is furnished, a good title has not been shown. It is neces- sary to examine the nature of the facts alleged upon the abstract, and determine whether their truth would necessarily appear from a mere verification of documents stated, or whether it must be shown by fur- ther evidence (), where an heir cannot be found, the practice is open to still less objection. But in a case like Wynne r. Griffith, it is properly a question of title, for there the question is not, who is the heir of an acknowledged trustee, but the contest is, whether any such trustee ever existed, or, in other Avords, Avhether the legal estate really is outstanding, and in that case, after the opinions of two courts of law (*/), it was decided that the legal estate was not outstanding. 6. It has been decided that a seller who is tenant in tail, and can, (m) Sidebottom r. BaiTington,3Bea. 525. ( p) Supra. (n) Wynne v. Griffith, 1 Bus. -283. {q) 3 Bin. 179 ; 5 Bar. & Qcs. 923. (o) Avarne v. Brown, 14 Sim. 303. 354 WHAT ABSTRACT TO BE PRODUCED. [CH. 11. S. III. by a dlsentaiUng deed acquire the fee, can make a good title, so as to support the Master's report to that effect, although he has not yet barred the estate tail and remainders over. This seems quite right, for it would be unreasonable to require the seller to bar the estate tail before the contract is completed ; but the case cannot, as the learned Judge seemed to suppose, be compared to the common case of an owner in fee, because, although the contingency of the seller's death before the conveyance is connnon to all cases, yet, in this case, the contract would not bind the issue in tail or remainder- man ; still this is a hazard which a purchaser may properly be required to run (/•). An abstract, therefore, showing the capacity of the seller thus to acquire the fee, will be deemed complete. 7. A condition that the vendor shall deliver an abstract of title to a purchaser, means the delivery of an abstract showing a good title {s). But even a condition to furnish " a full and sufficient abstract of title," with a stipulation that all objections not delivered in Avriting within a month should be deemed to be waived, means only a full and fair abstract of all the muniments which the seller has in his possession, power, or knowledge, and a fair statement of the deduction of his title, though it do not go back for sixty years, and do not show a good title. The terms " full and sufficient abstract of title " could not mean a full and sufficient marketable title, otherwise there would be no reason for the stipulation requiring all objections to be taken Avithin the month {t). In one case {u) where the vendors were to deduce a good title and deliver an abstract of title within tAvo months, on application being made by the purchaser, and AAnthin six Aveeks of the delivery of the abstract all objections Avere to be delivered in Avriting, or the title Avas to be considered as accepted, the JNIaster of the Rolls said that the condition Avas distinct, that the vendors should deduce a good title and deliver an abstract of title within tAVO months, that is, an abstract shoAving that title. But this does not seem to be the true construction, although, of course, the vendor must ultimately make good the title. It has since been decided on appeal {x), that the phrase " Avithin tAVO months " applied to the delivery of the abstract, and not to the deduction of the title. The parties contemplated the possibility of a title, imperfect at first, or an abstract originally defective. 8. The ordinary rule of the Court does not authorise an inquiry in chambers, Avhether the abstract Avas perfect, and if deficient, in Avhat respect its deficiencies consisted, and AA'hether it AA\as ever perfected iy). \\(i have already seen what the usual reference is as to title (z). (»•) Cattell V. Con-all, 4 Yo. & Col. 228. {u) Sherwin v. Shakspeare, 17 fiea. 267. is) (Thailand v. Leifchild, 10 Ad. & Ell. (.r) 5 De Ge. Mac. & Gor. 517; 18 Jur. 629. 843. {t) Blackburn v. Smith, 2 Car. & Ki. 5G1 ; (//) Bennett v. Rees, 1 Ke. 40.3. 2 Ex. 783. {z) Sup. ch. 5, s. 4 ; ch. 9, s. 2. en. 11. R. III.] PPtOPERTY IN ABSTKACT. 355 9. If, as we have already seen, tlie purchaser accepts an abstract ^ '^ ^J' as showing' a satisfactory title; yet he is not prechidcd from sliowing /*// by other evidence that the title is a bad one («). 10. We have before seen how unwillingly the courts hold a limited obligation to produce deeds to amount to a condition to accept the title though inunarketable (/>). 1 1. 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 expense " an abstract of their title," means an abstract of the (jencral title, and it is not to be confined to the acts of the deceased partner, and the title imder him, although the purchaser was bound by the contract to pur- chase subject to all imperfections of title before the commencement of the title of the deceased partner (c) ; so that a man may be entitled to an abstract of the title, and 3'et be compelled to accept the title itself as it stands. 12. The abstract is delivered for the following purposes: that the purchaser may see whether the title is good, and 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 ; and it is to assist him in preparing his conveyance (r/). As to the general pro- perty in the abstract, 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, in order to show on Avhat ground he did reject the title (o, Kolls Vd\.\ ]\tS. {(>) AlsMj, v. Ld. Oxlord, 1 5Iy. ic Ke. 0(34. 1-6 358 NOTICE OF PLACE WHERE DEEDS ARE. [C'H. 11. S. III. 19. The seller may be bound to verify the abstract, although there is an ambiguous provision in the condition as to the delivery of the deeds (p). 20. 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 coj^ies or ex tract s, as the case may require, in order to enable the piu'chaser's solicitor to examine the abstract with them, and to lay them before his counsel if it slioidd be deemed necessary (q). 21. Where a grant from the Crown is the foundation of the title, although the seller claims the fee free from charges, a purchaser is anxious to have an office copy of the grant, in order to ascertain 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 his own solicitor at the office Avhere it is kept. This generally arises upon titles to impropriate tithes. And now, although impropriate tithes may be merged (r), or a, rent- charge substituted for them (s), yet the practice will remain unaltered, because no greater interest would merge than the party had, and the rentcharges are subject to all the incumbrances to which the tithes themselves were liable (t). 22. A condition avoiding a sale, if the seller do not verify the same by the production of the deeds to the purchaser at Norwich, at Lynn, or in London, before a day named, makes it incumbent on the seller to give notice to the purchaser at which of the places he would be ready to produce such title (u). 23. If the seller have only a covenant to produce the deeds, yet he must procure the production of them. If the purchaser went to in- spect 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 laAV supposes that every vendor has the deeds in his own hands, and in his power to })roduce (.v). This has always been the practice. 24. If the seller's attorney state that, if required, the deeds, al- though in the hands of a third party, will be api)lied for, the pur- chaser, although he prepare and engross his conveyance, which is executed, Avill not be bound to complete his purchase unless the deeds be produced (i/). (p) f?outhby V. llutt, 2 My. & Cia. 207 ; (.v) 6 & 7 Will. 4, c. 71. 8 SCO. 551. in Id. sect. 71. (g) See 14 & 15 Vict. c. [)'.), s. 14; sntj. (n) Rippingallc. Ll()yd,i2Nev.&: Man.410. s. 'i, ))1. 2G, n. (i) S. C, sup. pi. W. (,r) G &. 7 Will. 4, c. 71, b. 71 ; 1 Sc -2 (y) Jarinaiiii'.EgelstonCj.j Car. & Pa. 172. Vict. c. (14. CH. U.S. III.] INSPECTION OF DEEDS. COPIES OF COLRT-KOLLj&C. 359 25. Where a purchaser's solicitor examined the deeds for the pur- pose of comparing tliem with the abstract, and the deeds were after- wards accidentally burnt before the title was accepted, it was held that it could not l^e imputed to him as culpable negligence that he did not inform himself of the attesting witnesses to the deeds, and the pur- chaser w^as not bound to complete the contract (z). 26. 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 (a) : if the seller is entitled by stipulation, or in respect of other estates to retain them, the purchaser is still entitled to their production, in order that the abstract may be examined with them (Z>). 27. The purchaser should not deal with the estate in any manner as owner until the abstract has been examined with the deeds. For although the abstract be negligently prepared, yet in the absence of fraud the seller will not be answerable, because the purchaser himself, by exercising ordinary care, may avert any loss from the seller's negli- gence. Therefore if an abstract show a good title, and the purchaser resell at a profit, and upon an examination 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, he cannot recover them over, nor could he recover the costs of the resale or any damages (c). 28. 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 {d). 29. If an abstract of surrenders or the like (e) be produced, and not objected to by the purchaser, the production of the abstract unim- peached is tantamount to the production of the surrender. Nor can a purchaser avIio has not called for the deeds raise an objection for want of their production, so as to throAv the costs of the suit on the seller ( /"). 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 (ff). 30. We may close this section with the observation of a learned Judge, 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 (/<). (2) Bryant v. Busk, 4 Rus. 1, (d) Hodges v. Ld. Litchlield, 1 Bin., N. la) Infra. C, 499. lb) 14 & 15 Vict. c. 99, ss. 14, 15; sup. (e) Poole v. Shergold, 1 Cox, 160. s. 2, pi. 26, n. (/) Ch. 17, })ost. (g) Ch. 6, supra, (c) Walker v. Moore, 10 Baru. & Cres. 416. {/i) 3 Hare, 25, which qu. z4 360 NATURE OF TITLE DEEDS. [cH. 11. S. IV. SECTION IV. OF A purchaser's RIGHT TO THE DEEDS. 1. Title-deeds go with the inheritance j 14. Title v^ithout deeds. Pledge by seller of conveyance, an \ 15. Seller to execute new conveyance if old escrow. ! one burnt. 2. Right of ptirchaser to follow the deeds. I 16. Whether covenant to produce is within 3. Deeds left with purchaser to prepare conveyance. 4. Sale of part without stipulation. 6. Where seller is under covenant to pro- duce. fi. Leaving deeds in seller's custody. 7. Arrangement where estate in mortgage, 8. Deposit of deed, where sufficient. 9. Nature of evidence. 10. Assignments lost. 11. Lease for a year lost. 12. Recitals as evidence. 13. Evidence tvhcre deeds lost or destroyed. covenant for further assurance. 17. Purchaser's right to evidence after con- veyance. 18. Relieved if fraud, f(c. 19. E.vecution of title-deeds not to be proved. 20. Laythoarp v. Bryant. 21. Will to be produced, though seller heir. 22. Not to be proved against heir. 23. Whether the deeds are transferred with the seisin. 24. Grant of deeds. 25. Fea t. Field. 1. Although the ancient practice as to the custody of title-deeds t/f/^. /7^7 has varied greatly in later times (I), the princijjles of laAv regarding them are still the same. The title-deeds are things which go with ^ p /•/ Qi Ti2^^^ inheritance, descend with it, and pass with it by conveyance with- ^ " ' ' ' ' out being named (a). The person who is entitled to the land has a right to all the title-deeds affecting it ; and it is immaterial that there is an outstanding term of years in a trustee. 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, (n) See Austin v. Croomc, 1 Car. & Mar. 653. (I) Whilst warranties prevailed, ancl before covenants were introduced, tlie title-deeds, except where they were necessary for the defence of the feoffor, who had himself entered into a warranty, went with the estate (Ld. Buckhurst's case, 1 Rep. 1) ; and this right moulded itself according to tlie 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 stn-vived should have the deed by which lie was enfeoffed, because it makes his estate ; but he should not liave the ancient charters, for they were delivered to the other joint tenant for the safeguard of his inheritance, which Coke calls a notable case (1 Rep. 2 a.) 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 liis heii', to whom the gift was made, for he could sustain no loss from the want of them, nor receive any benefit I)y them if he had them, but contra of the survivor; but he should have tliem as things which went witli the land (1 Rep. 2 b.) But even under that rule, such things as were not necessary to the defence of tlie seller, as exemplification of records, court rolls, pedigi-ees, or the like, belonged to the gi-antee of the land, witliout any grant of the deeds (Moo. .503; 3 Ves. j. 220), I)ecause they were not material evidence to difcnd the title paramount. ClI. 11. S. IV.] WHO ENTITLED TO DEEDS. .361 was left with the solicitor for both parties, to be delivered to the pur- chaser when the rest of the money was paid, it was held that the vendor could not by the aid of the solicitor pledge the deeds to a third party, although an innocent one, for more than the balance due, ])e- cause the deeds belonged to the purchaser (/>). In this case the deeds had been deposited for the purchaser, who had not completed his purchase. 2. And although the purchaser leave the deeds without fraud, Ijut negligently, in the hands of the seller, yet ajn/ subsequent purchaser from the first purchaser may, upon his legal title, recover them in trover, even against a person to whom the original seller has fraudu- ^. y lently conveyed the estate, as if he were still owner of it, and delivered ''^ /P^^ the deeds up to him (c). In the case in which this was decided the purchase Avas completed, and the owner of the land stood ui)on his mere right to the deeds as incident to his ownership. 3. So if upon an agreement for a purchase, the seller deliver the instrument under whicli he holds the estate to the purchaser, in order to enable him to prei)are a conveyance to himself, the latter Avill, upon payment of the purchase-money and taking a conveyance, be entitled to retain possession of the instrument ; but if the purchaser refuse to perform the contract according to its import, or to return the instrimient, an action of trover will be maintainable for it (d). 4. Upon a sale of part of an estate without any stii)ulation as to the deeds, the holder of the portion of the highest value is entitled to the custody of the deeds, — whether the seller or the purchaser, — giving to the other a covenant to produce them; but of course the purchaser would not be bound to fm-nish the seller with attested copies of them. 5. 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 i)ur- chaser of part of the estate for the production of them ; Ijut the seller would be entitled to have the covenant recited in the conveyance or indorsed on it, and might fairly require a covenant from the purchaser to perform it. The seller would not be at liberty, after the second sale, to deliver the deeds to the first purchaser. 6. There is great inconvenience in leaving the title-deeds in the hands of a seller who has })arted 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 (b) Hooper v. Ramsbottom, 4 Ca. 121 ; tliern, 7 Ha. 3.51 ; 1 De Go. Mac.fc Gor. Hi. G Tan. 1-2 ; Goodo r. Burton, 1 Ex. 189. As to a solicitor's lien on title-deeds for the (c) Harrington v. Price, 3 Bar. & Ad. costs of the suit, Baker r. Henderson, 4 Sim, 170; Wakefield v. Newton, G Q. B. 27G ; 'J7 ; Philijjs v. Robinson, 4 Tau. lOG. Bernard v. Dronshi, 1 Mol. 38, which rjii. ; (d) Parry v. Eranie, 2 Bo. & Pnl. 451; Smith V. Chichester, 2 Dm. & War. 393; Foster »'. Foster, 1 Hog. 224, as to an opinion I'lnnden r. Desart, ■/.&. 405 ; Molesworth v. of counsel. Robbins, 2 Jo. & Lat. 358 ; Pelly v. Wa- 362 EVIDENCE OF TITLE. [CH. 11. S. IV. danger of being neglected or destroyed, unless by being sometimes called fur, they produce emolument in the hands of a solicitor. 7. Where the estate is in mortgage at the time of the sale, and only ])art of it sold, and the mortgage is not wholly ])aid 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 provision on this head should be made before the sale. If the mortgagee should agree to covenant for the production of them, he would pro- bably limit his responsibility to the time he should continue mort- gagee, which would not be satisfactory to a purchaser or binding upon him ; or if the mortgagee were to enter into a general covenant to |)roduce 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 Avould 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 fore- closed, 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 pro- duce 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 ecjuity (I). 8. In a proper case a purchaser 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 Avould be entitled. Nothing was said in the particulars of sale as to the custody of the counterpart of the lease, and it was not in the possession of the sellers, but of one of the other parties to a partition. The counterpart of tlie lease not being in the possession of the plaintiffs, was not considered an objection to their title. The lease was de^josited, and the })urchase enforced {e). Although in the above case there was an equitable right to compel the production of the deed, and the deed itself was enrolled in the Common Pleas, yet that was not deemed satisfactory by the Court. 9. 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 acce})t the title : in many cases a purchaser is entitled to have instruments produced as negative [e) Shore v. Collett, Coo. 234 ; Wortliiugton v. Morgan, 16 Siin. 547. (I) There appeal's to be no sufficient reason for the opinion of the Real Property Com- missioners, that niurtgagces should be compelled to i)roduce the title-deeds, although not paid off. Cir. 11. S. IV.] LOSS OF TITLE DEEDS: RECITALS. 363 evidence that the estate sold was not comprised in them, yet he would not be entitled to a co})y of them, or a covenant to produce them (/). So portions are settled, and mortgaged, and assigned, and ultimately released, and the purchaser at the time satisfies himself of the contents of the deeds of settlement, &c.", but rarely can pro- cure 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. 10. It cannot be laid down as a general rule, that a purchaser of a leasehold estate can safely accept the title where any of the mesne assionments have been lost, although he mioht be able to recover in ejectment if he actually did purchase. Every case of this nature must dejiend upon its own circumstances {(/). A purchaser is at all events entitled to a strict inquiry as to the loss, and is not bound to rely upon an affidavit by the other party {It). 11. The loss of a lease for a year, where it was recited in the release, Avhicli was a conveyance to a tenant to the precipe, was held, in a suit against the purchaser, to be supplied by the 14 Geo. 2 (/) : and the Court was of opinion, that it Avould 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 (A). The deeds were seventy years old, and it is clear that a lease ought to have been presumed. A lease for a year is no longer necessary (/), and recitals or notices in releases of leases for a year, when necessary, are made conclusive evidence of the lease for a year, and full effect is given to the releases, whether the lease for a year shall or not have been lost or mislaid, or may or not be produced (m). 12. 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 Avithout the aid of the recited deeds, and no circumstance to repel the presumptions in favour of the title, the Court will compel the purchaser to accept \i{n). 13. The loss of the deeds may not be fatal to the title if the vendor can deliver over copies which would be evidence at law (/>). But if the title-deeds are lost, the seller must furnish the purchaser with the (/) Iiif. 8. 6. {m) 4 & 5 Vict. c. 21, s. 2. {(j) Eai'l V. Baxter, 2 Black. 1228; 11 (/*) Prossei- 1?. Watts, 6 Mad. 50 ; Doe i-. Ves. 350 ; sup. Brooks, 3 Ad. & El. 513; Gillett v. Abbott, ill) Stubbs V. Sai'gon, 4 Bea. 90. 7 Ad. & El. 783; Bringloe v. Goodson, 5 (J) Ch. 21, s. 5 ; post, ch. 22. Bin. N. C. 738. {h) Holmes v. Ailsbie, 1 Mad. 551 ; Skip- (o) Harvey v. Phillips, 2 Atk. 541 ; with V. Shirley, 11 Ves. 04; Ward v. Gar- Booth's opinion, 2 Ca. & Op. 223; Couss- nons, 17 Ves. 134. maker v. Sewell, App. No. 11, Purch. ; Const (/) 4 & 5 Vict. c. 21 ; 7 & 8 Vict. c. 70, t'. Barr. 2 Mer. 57 ; Brindley v. Woodhouse, s. 2 ! 8 &: Vict. c. 100, s. 2. 1 Car. & Ki. 040. 364 NO TITLE DEEDS. DEEDS BURNED. [CH. 11. P. IV. means of showing what were the contents of the deeds, and of proving that they were duly executed, and this even Avhere the deeds are accidentally destroyed by fire after tlie contract is made(//). A re- gistered memorial may be good secondary evidence of the contents of the deed (q). 14. A title may be a good one, although there are no deeds, but there must have been such a long uninterrupted possession, enjoy- ment, and dealing Avith the property, as to afford a reasonable pre- sumption that there is an absolute title in fee-simple (/•)• 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 set- tlements, mortgages, or wills having been suppressed. Where the title under a conveyance which recited other deeds was fortified by sixty years' undisputed possession, it was held that the loss of a deed recited threw no considerable doubt upon the title of the vendor, and that the purchaser was bound to complete his purchase (s). 15. If a conveyance to a purchaser have accidentally been burned, the seller will be compelled upon a re-sale to join in a conveyance to the new })urchaser {t), or of course, if the estate is not re-sold, to again convey to the first purchaser. 16. It seems that under a covenant for further assurance a })urchaser who has not obtained the title-deeds or a covenant to i»roduce them, cannot require a covenant to j)roduce them to be executed to him (, but the Court no doubt would, if he had declined to do so, have dismissed his bill. The will was established in a suit against the heir after an ejectment (//) ; and finally Lord Truro held, that the piu-chaser ought to have been satisfied Avith the title without any further ])roceeding, and consecjuently visited the consequences of the suit to establish the will on the purchaser in both costs and interest (//). Wiiere a title was rested upon a will Avhich had been proved, but did not pass the property, and upon a codicil republishing the will, and sutficient by the force of republica- tion to pass the property, and the due execution of which was proved by affidavit by two of the witnesses, the title was not deemed such as could be forced on the purchaser until the codicil Avas submitted to probate in the Ecclesiastical Court (?'). 23. 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 there- fore the feofl:ee or grantee is entitled to the custody of them {k). There is considerable authority for this statement ; but there is hai-dly one case In which it was necessary to decide the point (/) ; and it has been questioned by Lord Hardwicke, who said, that though so clearly established, he knew not but when It was consldei'cd it might jr/_ ,,„j^ be called a spungy reason, as Lord Vaughan said (m) ; and it has since been doubted by Mr. Hargrave(n). The authorities make no distinction between feoffees or grantees and covenantees, or, in other words, betAveen conveyances which operate by transmutation of possession and those Avhich do not. Now the statute not only provides that where one person stands seised to the use of another, the latter shall be deemed in the laAvful seisin, estate, and possession to all purposes in the like estate as the former had to the use, but proceeds to divest the estate, title, and right that Avas in such person, and to A^est it in the cestui que use. This, therefore, is a leglslatiA^e conveyance to the cestui que use as poAverful as the common law con- A'eyance to the feoffee to uses, and as the latter conveyed to him the right to the deeds, although they Avere not granted, so the former ought to liaA^e as poAverful an operation in transmitting them Avith the estate from him to the cestui que nse. The opinion that In the case of a covenant to stand seised for the consideration of blood Avith (g) Grove v. Young, 6 De Ge. & Sma. 38. veiel v. Bagnoll, Cro. Eliz. 85G ; Hunting- (/t) Grove v. Bastard, 1 De Ge. Mac. & ton r. Mildmay, Ci-o. Jac. 217 ; Stockman r. Gor. 69, fju. and consider the case. Hampton, Cro. Car. 441 ; Reynell v. Lons:, ((•) Weddall v. Nixon, 17 Bea. IGO. Carth., 210. {k) 1 Sand. Uses, 119; Sugd. Gilb. Uses, (m) Whitfield v. Fausset, 1 Ves. 394. 18G, n. (w) Co, Litt. G, a, n. 25. (/) Estofter.Vaxighan,Dy.277,a.;,Sache- CH. 11. p. IV.] GRANT or DEEDS. 367 strangers, the deed does not belong to the relation who takes the estate, but to the covenantees, and that lie has no means to obtani the deed (o), shows liow little prhiclple was adhered to, for in that case the deeds were held to belong 7iot to the person who 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 covenantor's own seisin, and there is no transfer of the legal estate out of which the statute is to serve the uses. 24. Sometimes the deeds are granted by the conveyance to the purchaser, and where uses are created, and he Is not the releasee to uses, the grant Is to him, his heirs and assigns, and this, adverting to the authorities, Avould seem to be the proper course. 25. 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 (/>). Part of a leasehold estate, the whole of Avhich was held under one title, was In mort2;ao;e, and the morto-ao-ee 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 off the mortgage, and took a transfer of it, and obtained 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 purchase, the defen- dant had no right to the possession of the deeds, yet since that time they had by accident come Into his possession, and the plaintiff could not recover them from him. To entitle the plaintiff to recover, he should have a better right to the deeds than the defendant, hut in the assignment to him tliere tvas no grant of them. In old conveyances there Is a reservation made of such deeds as tend to deraign the war- ranty paramount. This decision can hardly be supported, for the estate Avas divided 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 taklno; a transfer of the mortg-ao-e, a "'reater rio-ht than the morto'ao-ee, 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 mort- gage ; 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 moi'tgagor, to Avliom they be- (o) Stockman v. Hampton, Cro. Cai-. (jo) 2 T. Rep. 708 ; Hobson v. Mellond, 441. 3 Moo. & Ro. 343. 368 SEVERAL ESTATES HELD UNDER SAME DEEDS^. [CH. 11. S. V. longed, and who was under covenant to produce them. It was a mis- take to mix together the two characters of the defendant as purchaser of one pai't and mortgagee of another — 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 jjroved, by the covenant to produce them, to have been omitted, because it was not intended that he should have them, and his claim therefore was not authorised 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. In a later case (. Hewitt, 7 Ex. 236; Riccal-d r. Bla- mii'c, 4 E. & B. 329. Application in equity is to be made to the Judge in chambers, and if any difficulty arise, the discussion will be adjourned to the Court ; Thompson r. Teuton, 9 Ha. Ap. 49, and the cases in the n. As to a general order for production, I'lott v. Mid- lens, 1 Sma. & Gif. 1 ; M'Intosh v. Gt. Western Ry. Co. id. 4. The 15 & iG Vict. c. 76, s. 117-119, provides for the admission of documents at law, and the 16 &: 17 Vict. c. 113, s. 118, provides in like manner for Ireland; and see s. 64 as to the production, he, of deeds. A A 370 rRODUCTION OF DEEDS ENFORCED. [CH. 11. S. V. law 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 {g). 6. Where a remainder under a settlement was contingent, and indeed so circumstanced that it might he barred ; the Court refused to compel the tenant for life to produce the title-deeds. And an in- spection of the deeds was refused to a purchaser from the contingent remainder-man (A). 7. If a tenant for life, who has been owner of the fee, make a mortgage, suppressing the settlement, and deliver the title-deeds to the mortgagee, the mortgagee could not be compelled in equity to discover whether he had the title-deeds, or to deliver them up (^). To avoid a possible fraud in such cases, a memorandum of the settle- ment should be indorsed on the conveyance to the settlor, or if none, on the leading title-deed remaining in his possession. Of course a purchaser from a tenant for life would stand in the same situation with a mortgagee who is a purchaser pro tanto. 8. 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 favour 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 (A). 9. Even where a bill is filed to impeach the conveyance to the purchaser on the ground of fraud, although the Court Avill order the production of the deed at the hearing (/), yet it will not compel its production before that period, where the purchaser denies the alleged fraud (m), 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 circumstances ; the Court ordered the production of the assignment to the purchaser («). So where the fact of notice appeared from the recitals in the deed, as set forth in the answer, it was ordered to be produced before the hearing (o). {g) Bateman u. Phillips, 4 Tau. 161. Balch v. Symes, Tm-n. & Euss. 87; see {h) Noel V. Ward, 1 Mad. 322, 339; Ivie Jones t?. Jones, 1 Kay, Ap. G; Sutherland v. V. Ivie, 1 Atk. 429; Joy v. Joy, 2 Eq. Ca. Sutherland, 17 Bea. 209. Ab. 284, probably an imperfect note of the (m) Tyler v. Drayton, 2 Sim. & Stu. 309 ; same case. 2 My. & Ke. 754, n. ; Carr v. Moulds, 1 Hay. (i) Wallwyn «. Lea, 9 Ves. 24, oveiTuling &Jo.714; Bassford r. Blakesley, 6Bea.l31. Strode v. Blackburne, 3 Ves. 222. {n) Kennedy v. Green, G Sim. C ; Fen- {k) Tourle v. Rand, 2 Bro. C. C. 6-50 ; cott r. Clarke, ib. 8. Farrow v. Rees, 4 Bea. 18; Finch v. Shaw, (o) Neesom v. Clarkson, C. Coo. 93; see 19 Bea. 500. Addis v. Campbell, 1 Bea. 258. (/) Beckford r. Wildman, IG Ves. 438; en. U.S. v.] PRODUCTION OP DEEDS ENFOECED. MORTGAGEES. 371 And a solicitor, who bought from his clients, Avho Avere trustees, and submitted to the purchase being set aside, was compelled to produce the deeds before the hearing, although he swore they would expose a bad title {p). 10. The general rule at law is, that unless the party holding the deed has been in effect a trustee for the party requiring the pro- duction of it, he cannot call for \t{q). If a purchaser were to com- plete his purchase and leave the deeds in the hands of the seller, who retained other estates held under them, without taking any covenant to produce them, he would have no remedy at law to enforce theu' production. This has always been considered the rule in practice. 11. Mortgagees, generally speaking, cannot be compelled to pro- duce the deeds until they are paid off (r), 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 (s) (I). {p) Shallcross v. Weaver, 12 Bea. 272. Bin. 723; consider Att.-Gen. v. Prince of (<7) Street v. Brown, 6 Tau. 302; Rat- Wales, 11 Bea. 213; see stat. 5?y. unless, indeed, the vendor retains other estates holden under the same title. 2. Where the estate is copyhold, and the purchaser is not entitled to the custody of the copies of court roll, he is entitled to a covenant to produce them, if the vendor has them, or if they are in his power ; but if not, the purchaser cannot require such a covenant (e). The case of Cooper v. Emery (/) has led to some embarrassment as to copies of court roll and covenants to produce them. The evidence produced on both sides in Whitbread v. Jordan (g) did not in truth clash : the one stated the practice to be to require from vendors of copyholds the production of stamped copies of court roll, the other stated that the court rolls were the sole evidence of the title to copy- holds, and that the loss of the copies did not affect the title, and could be supplied by new copies. Both of these statements are correct. It does not appear whether any copies of court roll were produced for examination with the abstract in Cooper v. Emery. The question there was, whether the purchaser was entitled to a covenant for produc- tion of certain copies of court roll and of certain deeds. The property to which they related on this sale was only 2r. 9 p., part of an estate, and therefore it is not probable that the seller had the custody of any of the copies or deeds. The land was freehold and the freehold title was shown by one abstract from 1736 to 1787, when Horton acquired the manor by purchase in fee ; the title to the copyhold was shown by another abstract from 1736 to 1799, when Horton conveyed the freehold to Greaves, the copyholder in fee, and Cooper the seller derived as a sub-purchaser under Greaves. The Master was of ojiinion that the purchaser was only entitled to a covenant to produce the conveyance of the freehold in 1799, Avhich constituted a 40 years' title ; the V. C. Shadwell said the general rule was to have from the vendor or other holder of the deeds a covenant to produce them, and as the vendor had thought it necessary in order to make out his title to abstract all the documents and deeds, he was of opinion that the purchaser was entitled to a covenant for their production. Lord Lyndhurst held, on appeal (Ji), that as to the purchaser being entitled to a covenant for the production of copies of the court rolls, if the vendors had these copies or if they were in his power he was bound to produce them, but if not, he thought the purchaser was not entitled to call for a covenant to produce them, because he might resort to the rolls themselves. He did not think that a purchaser was entitled to a covenant of an instrument merely because it was contained in the abstract. The result was, that the purchaser was entitled to a covenant for the production of all the documents contained in the abstract which were necessary to make out a good 60 years' title, except such (e) Cooper v. Emery, 1 Phil. 388; 10 Sim. 609. (/) 10 Sim, 609. {(j) lYo. &Col. 317. {h) 1 Phil. 388. CH. 11. S, ri.] AND COVENANTS TO PRODUCE THEM. 375 as being copies of court rolls, or bargains and sales enrolled witliln the statute of Anne, were not In th e ])OSsessIon or_po,\yer of the vendor. This appears to be quite right, but it does not touch the question as to the production of copies of court roll for the verification of the abstract. Before the decision in Cooper v. Emery the writer thus stated the rule {i) : where the estate Is copyhold, and the pur- chaser Is not entitled to the custody of the copies of court roll, he Is entitled to a covenant to produce them, and it has been usual to require attested copies of them ; and this may be supported, not- withstanding the case of Campbell v. Campbell, not merely because they are not strictly records, but that although the court rolls are of a pubKc nature, yet they are in a private custody, and although the Inspection of them by a copyholder may be enforced, yet It may be necessary to resort to the Court of King's Bench for that purpose. This statement was omitted in a former edition, but it Is now restored, as it does not seem to clash with anything decided in that case, and It was the practice before that case. I learn, however, that the practice now is not to require attested copies of the court rolls. 3. So a bargain and sale enrolled under the statute 10 Anne, c. 18, falls within the same principle as copies of court roll (k). 4. In a case before Lord Rosslyn, where there' was an agreement 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 nega- tive stipulation that he should not give attested copies. This was certainly presuming a great deal. Lord Eldon thought that the pres- sure of the stamp duties led to that decision (/) ; and It is probable that a similar case would now receive a dliferent determination. In a case before Lord Eldon, he compelled the vendor, at his own ex- pense, to furnish attested copies, the purchaser having had no Intima- tion 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 accord- ingly ; conceiving that he was to bear the expense of procuring copies (m). From this. It may be inferred, that notice that the pur- chaser cannot have the deeds is tantamount to a stipulation that he shall not be furnished with attested copies at the seller's expense. The general practice of the Profession, founded on the decided cases. Is, that the seller, in the absence of an express stipulation to the con- trary. 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. 5. Attested copies are mere waste paper against strangers, and cannot be used upon an ejectment, unless, perhaps, as between the (i) Purch. 10th Edit. vol. 2, 120; 4 Yo. (k) S. C. (0 See Ves. 4G0, & Col. .564, 565. ('") Boiigliton v. Jewell, 15 Ves. 176. A A 4 376 COPIES. COVENANT TO PRODUCE DEEDS. [CH. 11. S. VI. parties tlicmsclvcs (yi). Therefore a purchaser is also entitled, at the expense of the vendor, to a covenant to produce the deeds themselves, at the expense of the purchaser (o) ; 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. 6. Where an agreement stipulated that the purchasers who were to have the deeds which related to other estates retained by the seller, should enter into or 'procure to he entered into proper and sufficient covenants with the vendors, or such other persons as they might direct, for the production and delivery of copies of the deeds; the estate was bought by trustees, and was conveyed to them as releasees to the uses to which the purchased estates were to be liable ; the tenant for life offered to enter into the covenant, and it was held that the vendors were not entitled to a covenant from the trustees (/»). But a stipulation that the vendor shall retain the deeds, and enter into a covenant for their production, and for giving attested copies at the expense of the purchaser, precludes him from requiring such copies on completing the purchase, at the seller's expense {q). And a stipulation that attested copies should be procured at the expense of the purchaser, which seemed to be confined to the verification of the abstract, may of course upon the context be held to exclude altogether the purchaser's demand of such copies at the seller's ex- pense (r). 7. 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 {s). The assig- nees' covenant should 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. 8. Where negative evidence is necessary for the satisfaction of a purchaser, and is in the custody of the seller, there seems to be no suf- ficient reason why it should not be covenanted to be produced, although it is said that in a case where an unproved original will not 60 years old was called for, to show that the estate was not devised away from the heir, through whom the title was derived, the V. C. held that the purchaser was entitled to inspect the will, but could not insist upon a covenant for its production, for it was merely negative (»0 See Doe v. Brydges, 7 Sco. N. R. 339. {q) Cotton v. Scudamore, 1 Ka. & Jo. 321 . (o) Ben-y r. Young, 2 Esp. 640, n. (r) Abbott v. Darnell, 2 Jur., N. S., 631. {p) Onslow V. Ld. Londesboroiigli, 10 (.s) PprLd.Eldon,7i'.rjo/e. Stuart, 2 Rose, Ha. 67. 2ir>. CH. 11. S. VI.] COVENANT TO PRODUCE DEEDS. 377 evidence (t) : the seller was probably able to produce it, but it was not in his custody or power. 9. A purchaser is not bound to rely upon an equitable right to compel the production of the deeds, but is entitled to the deeds, or a valid covenant to produce them (ii). 10. Where a person having a covenant for production of the title- deeds to his estate, sells only part of it, and retains his deeds, the vendor should enter into the usual covenant for production of the deeds in his possession, including the covenant to produce. 11. A seller cannot, it seems, insist upon having a proviso inserted in a deed of covenant to produce 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 deeds are delivered, to enter into a similar covenant with the first purchaser ; if he could, it might on the same ground be carried on toties quotles, and the purchaser be put to great inconvenience ; neither could a purchaser insist upon it against the will of the seller. Where such a proviso is inserted, of course it stipulates that the expense of the new deed shall be borne by the seller. 12. The covenant should authorise the purchaser to take copies or extracts from them, unless the price to be paid for the copies be limited to the mere cost, which is the better plan. 13". A purchaser cannot, as we have seen, 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 j)roduction 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 (x). 14. We have elsewhere considered whether a covenant to produce deeds can be enforced under a covenant for further assurance (y). 15. 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. This covenant will run with the purchased lands, but it is a question whether it runs with lands reserved by the seller so as to bind the alienee of them(r). 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 does run with the land in both directions, so as to bind at law the holders of the one estate, and to benefit at (0 Cooper V. Emery, 1 Hay. Conv. 573, {x) Cooper v. Emery, 1 Phil. 388. quoted; (1836). This, I sui^pose, is the case (y) Ivf. c. 15. reported in 10 Sim. 609 (1840), on other (r) Onslow v. Ld. Londesborough, 10 questions as to covenants to produce. Ha. 67. (;/) Barclay v. Raine, 1 Sim. & Stu. 449. 378 COVENANT TO PRODUCE RUNNING WITH LAND. [CH.ll. S. VI. law the holders of the other. It must not be supposed that a title / / . Avould not be marketable without a covenant running with the land '^^ oTX-ir/v^ l^y produce all the deeds. Even where it does not run with the land, C/// % G, it -^ill^ in_eQuit^r^_give_tp the purchaser a right to enforce the pro- *^^ 37 ^Z9 duction of the deeds against persons claiming and holding them A/* r ~^p through the seller (a). Nor could a purchaser buying only a portion ^ / of the estates held under the modern deeds, maintain that he is not " ' ^^''^ *^ -bound by a covenant entered 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. And 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 cove- nant to produce the deeds, and no doubt in each case he can make a title (h) (I). (a) 2 Sim. & Stu. 533. (5) See Barclay v. Raine, 1 Sim. & Stu. 449. (I) The Real Property Commissioners, in their Third Report, p. 56, observe that in a recent case (Barclay v. Raine, 1 Sim. & Stu. 449), where the vendor had not the custody of the original deeds, but had a covenant for the production of them, it was decided that the title was not marketable, because the covenant did not run with the land. They add, that it had previously been supposed, either that an original independent equity existed,. entitUng any party interested in a deed to call for its production by any other person havino- 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 derived 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 wliich prevail in courts of law, between covenants wliich do and those which do not run with the land, and they point out the evil consequences of this decision. The rule in equity, it is apprehended, nejyer was so ii cax^i'sal as it is quoted in the first pai't of the above state- ment; but the second branch, stating what qt^jMost^ the doctrine was, appeal's to be correct, and it is apprehended that it is not shaken by the decision in Barclay v. Raine. That case, which was decided by Sir John Leach, who also decided Fainj\ Ayers, inti-o- duced no new rule as to either the law or equity upon this subject. A sold part of his estate to Tliring, and delivered the title-deeds to him, and took from him a covenant to produce 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 to produce the deed. The deed of covenant was lost, and the attested copy was in a very mutilated state. Barclay's sons sold to Raine, and they 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 j 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 V. C. dismissed a bill filed by Barclay's sons for a specific performance [ 379 ] CHAPTER XII. OF THE NEW LAWS OP REAL PROPERTY, AS CONNECTED WITH TITLE. SECTION I. OF TITLE WITH REFERENCE TO DOWER, DESCENT, AND WILLS. I. Of Dower. 1. Dower of trustee's wife. 2. Dower of equitable estates. 3. Eviction ofdoiver lands not now material to purchaser. 4. Exceptions out of neio doiver act. 5. Neiv right of dower — Husband's power over dower by disposition. 6. Covenants binding in equity Pur- chaser's inquiry. II. Of Descent. 7. Descent to be traced from the purchaser — Actual seisin unnecessary . 8. Descent to be proved to exclude title as purchaser. 9. Son of illegitimate father. 10. Heir, though devisee, to take by descent: grantor or his heirs also. 11. Descent from brother or sister — Lineal ancestors heirs to issue Male line 12 before the female — Preference of mo- ther of more remote male ancestor. Half-blood admitted — Attainder not an impediment. 13. Limits of act. 14. Possessio fratris abolished. 15. Examination of pedigree. IG. Children born abroad of a mother, na- tural-born subject — Wife of natural- born subject, S^'c, naturalized. Ill, As to Wills. 17. What may be disposed of by will — Will to speak, lohen — Lapsed devises fall into residue — Copyhold and leasehold pass with freehold under general devise — So estates subject to general powers — Fee passes without words of limita- tion — Die without issue, 6fc. — Estates tail, iifc. not to lapse. 18. Revocation and revival of wills. The alterations in tne law of real property eifected by the recent Acts now form the subject of a separate essay by the writer : he will here refer only to such points as bear more immediately upon pur- chases or upon titles. I. As to Dower {a). 1. The wife of a trustee in fee, or of a mortgagee in fee, of a for- feited mortgage, is at law entitled to dower ; but a fine was on that (a) 3 & 4 W. 4, c. 105. with costs. He said, that a court of equity never compels a purchaser to take ^vitliout the title-deeds, unless he has a covenant to produce tliem, and a right in equity to compel the production of the deeds, even if it existed, would be' no answer. Siit the equity of the purchaser in the present case would be highly questionable. Thrl'ncfs covenant to produce did not run with the land, nor was it pretended that the purchaser fi-om him had notice of that covenant, and he, like every other proprietor, had a material interest against the exposme of his title-deeds. Now, first, as to the equity of the purcliaser, the same learned judge in the case of Fain ?r^Ayers j 2 Sim . & Stu. 533 ; c. 15, inf.) decided that the purchaser 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, that the purchaser of a part of a lav^e estate, who never had a covenant to produce the title-deeds, had a riglit, upon his re-selling, to compel the first 380 or DOWER. [CH. 12. s. i. account never required by a purchaser ; because, if the wife of a trustee or a mortgagee were to be so ill advised as to prosecute her legal claim, equity would, at this day, undoubtedly saddle her with all the costs {h). The new Act does not alter the law in this respect. 2. But now dower attaches in equity on equitable estates, e. g., on an estate contracted for, and whether the estate be wholly equitable or partly legal and partly equitable, where the interest is equal to an estate of inheritance in possession (c); and an equitable fee will be liable to dower, although subject to an executory devise over in case {h) Noel V. Jevon, Bevant v. Pope, 2 (c)S. 2; Lysteri). Mahony, 1 Dru.&.War. Free. 43, 71; Lloyd r. Lloyd, 4 Dru. & 230. As to rights of entry, see s. 3. War. 354. seller to produce them, to show a marketable title, as the first seller's title-deeds wei'e the root of the first purchaser's title, and in that sense a sort of common property ; and lie stated that he was informed that Lord Eldon had expressed an opinion to that effect ; and in another important case, neither he nor Lord Eldon considered it material to the binding nature of a covenant in equity, that it should run with the land at law. As to the law, no doubt the expression in the report is, tliat Thring's covenant to pro- duce did not run witli 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 Jirst. covenant did not run with the land, for he thought that it clearly did, but that the second covenant was restricted to the period of his being mortgagee (Rolls, 28 July 1830 ; 7 Jarm. Convey. 375, n.) ; of course this must mean that it ran with the lands sold to Thring, for it v/as 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 second was limited to the period of his being mortgagee. The explanation, however, relieves the doctrine fi'om the supposed authority of the case itself. Indeed, the title, it may be thought, ought to have been deemed a good one. But the deed 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 holding 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 evidence of its having existed to support Thring's acknowledgment, and as he had the legal fee vested in him with the custody of the deeds, although only as mortgagee, his deed would bind the mortgagors at law when he reeonveyed to them, and the equity, as we have already seen, was clear ; so that perhaps, upon the whole, there should liave been a decree for a specific performance, instead of the bill being dismissed with costs. It would seem also, that there was sufR- cimit equity to have compelled the persons claiming the deeds under Thring (the mort- gagor) to enter into a new covenant 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 pi'oduce deeds had ever been executed. But still the question remains, whether a cove- nant to produce deeds, where the covenantor retains a part of the estate comprised in them, runs with that portion in the hands of himself and those claiming under him. For the general principles and authorities bearing upon this question, we must refer to the general discussion in a subsequent chapter ; but I may here also observe, 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. CH. 12. S. I.] OF DOWER. 381 of no issue living at the devisee's death, which takes effect (^). It should be kept in viev/ that, under the old limitations to bar dower, the widow would now be entitled to dower so far as her husband left the property undisposed of under his power or estate, unless there was a declaration in the deed that she should not be dowable (e). But this Latter observation applies only where the deed is executed subsequently to the Act; for where before the Act an estate was conveyed to the usual uses to bar dower, to the intent that the then present or any future wife might not be entitled to dower, and the wife died, and the man married again after the Dower Act, it was held at the Rolls that the second wife was entitled to dower (/), and that decision was affirmed by the Lords Justices, one of them not concurring. 3. Under the new act every conveyance will bar the wife's dower, so that, although evicted of her jointure, she could not claim her dower against a purchaser of other lands. 4. The new act does not affect copyholds, as the freebench in them is generally subject to the husband's power of disposition (^), nor does it extend to the dower of any widow who married on or before (d) Smith V. Spencer, 2 Juv., N. S., 778. The wife of a siuTenderee, a purchase!' of (e) In re Howard's est., 5 De Ge. & Sma. copyhold, who died without having been 435 ; in re Lush's est., ih. 43G ; Davey v. admitted, is not entitled to freebench ; Miller, 17 Jur. 908. Smith v. Adams, 18 Bea. 499; 5 De Ge. (/) Fry V. Noble, 20 Bea. 598, which qii. Mac. & Gor. 712. \(j) Powdrell v. Jones, 2 Sma. & Gif. 407. This is warranted by principle, and is denied by no authority. It cannot be considered as a covenant 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 them have a common interest in the deeds : tlie posses- sion of the deeds can hardly be a joint one, and therefore they are delivered to one, subject to a liability to be produced to the 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 i-ctain them. But taking them with the lands by that contract, they must hold them subject to the burthen imposed by that contract. Why tlien 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 the lands in the hands of the person to whom the deeds are to be pro- duced were it not for the quality of the deeds, a part as it were of the inheritance. They pass as things attendant upon the mheritance, and in truth they are the sinews of the inhefilance (Lifford's case, 11 Rep. 50, b.) ; they are not chattels, but an inheritance as the land is, and of the nature of the land, and go to the heir (1 Bro. Ab. 138, b. pi. 53), as inci- dent to it (Strode v. Blackburn, 3 Ves. 225), and the owner may make the deeds appendant to a manor (1 Bro. Ab. iCbi sup.) 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 possession of the deeds ought to impress the covenant, as against the covenantor and those claiming under him the lands retained, witli 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 thei'efore 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 other. 382 OF DESCENT. [CH. 12. S. I. tlie 1st January 1834, and it is not to give to any will, deed, con- tract, enfra2;ement, or charge executed, entered into, or created before that day, the effect of defeating or prejudicing any right to dower (/i). It must be borne in mind, that as to widows within the exception, their rights are saved in estates acquired by their husbands, even after the 1st January 1834. 5. In other respects the wife's dower is altogether in the power of the husband. For no widow will be entitled to dower out of any land which shall have been absolutely disposed of by her husband in his lifetime or by his will (z) ; so that now a contract to sell an estate will bind the wife's right to dower, although her husband die before a conveyance is executed, and he may bar her dower simply by a declaration in the conveyance to him or by a separate deed {k), or he may bar or restrict her rights by his will (/). 6. In purchasing an estate free from dower by force of the act, it should be ascertained that the seller has not bound himself by agree- ment not to bar his wife's dower {m). J^//^^ II. As to Descents. 7. We must be content to refer shortly to the new law (w)* De- scent is now to be traced from the jnircluiser, and the person last entitled is deemed the purchaser, unless it shall be proved that he inherited the estate, which principle is carried throughout (o) ; and actual seisin being rendered unnecessary, all rights and estates, whether in remainder, &c. or not, and whether the party had pos- session or received the rents or not, are now made the founda- tion of a right in the first purchaser, from whom the descent is to be traced (jo). 8. This provision renders it necessary to prove a descent at every step, in order to exclude the last possessor's title as a purchaser ; but it does not exclude such proof, and therefore, where it can be obtained, the descent will be traced as it has actually taken place, subject to the provisions of the Act. It is probable that sellers under contracts, relying upon this provision, will withhold or not search for evidence of descent ; but the courts will not allow such a scheme to prevail, for a purchaser would be entitled to evidence that a person assumed to be the purchaser really was such, and would not be comjDclled to rest on the provision of the statute, which would be inoperative against proof of descent. 9. Under this section a son claiming by descent from an illegiti- mate father who was the purchaser, cannot transmit the estate by descent upon the failure of his own issue to his heir ex parte maternd, (h) S. 14. (m) 3 & 4 W. 4, c. 100. (i) S. 4, 5. (o) S. 2; s.4, as to limitations to the heirs, (h) S. 6. &c., of any of the ancestoi's of the party (0 S. 7, 8. entitled. (m) S. 11. (p) S. 1. CII. 12, S. I.] OF DESCENT. 383 although it is said such a result could hardly have been contemplated by the framers of the Act {q). 10. And the heir taking under the will of a testator dying after 31st December 1833 will take as a devisee, and not by descent, and any limitation by an assurance executed after that day to the grantor, or to the heirs of the grantor, will vest in such person as a purchaser, and will not be considered as his former estate (r). The heir now takes so absolutely as devisee, that pecuniary legatees are not entitled to have the assets marshalled as against him (s). 11. And now every descent from a brother or sister is to be traced through the parent (t), and every lineal ancestor is capable of being heir to any of his issue ; so that the father shall be preferred to a brother or sister, and a more remote lineal ancestor to any of his issue, other than a nearer lineal ancestor or his issue (//) ; and in descents males are to be preferred to females (x), so that paternal ancestors are to be preferred to maternal ; and as between paternal ancestors, males are to be preferred to females; and as between maternal ancestors, males are to be preferred to females, and the descendants succeed to the line. And where there is a failure of male paternal ancestors of the person from whom the descent is to be traced and their descendants, Blackstone's well-known view is adopted, wliich it is conceived is the true rule (?/). 12. And at length the half-blood is admitted, so that the brother of the half-blood on the part of the father will inherit next after the sisters of the whole blood on the part of the father • and their issue, and the brother of the half-blood on the part of the mother will inherit next after the mother (2;). And lastly, the attainder of any person through whom the descent is to be traced, who shall have died before such descent shall have taken place, is not to work an impediment, unless the land shall have escheated in consequence of such attainder before the 1st day of January 1834(a) (I). 13. But the Act does not extend to any descent which took place on the death of any person who died before the said 1st day of January 1834 (J)), and where any assurance executed before the 1st day of January 1834, or the will of any person Avho died before the same 1st day of January 1834, contains any limitation or gift to the heir or heirs of any person, under which the person or persons answer- ing the description of heir is entitled to an estate by purchase, then the person or persons w^ho would have answered such descri|)tion of (q) Doeu. Blackburn, 1 Moo. & Ro. 547. (t) S. 5; Collingwood t'.Pace,! Vent.413. (r) S. 3. (u) S. 6. (x) S. 7. (y) S. 8. (a) Strickland W.Strickland, 10 Sim. 374; (z) S. 9. («) S. 10. {d)S.U. Bicderman v. Seymour, 3 Bea. 3G8. (I) 55 Geo. 3, c. 145, saving the right of the heir in cases of attainder for felony, with the exceptions of high treason, petit treason, or murder, or of abetting, &c., the same. 384 OF WILLS. [CH. 12. S. L heir, if the Act had not been made, is entitled by virtue of such limita- tion or gift, whether the person named as ancestor shall or shall not have been living on or after the 1st day of January 1834 (c). 14. The intention of the Act was to put an end to the necessity of an actual seisin in the purchaser, and the doctrine of a possessio fratris is at an end, for the Act provides, as we have seen, for the half-blood without allowing it to be excluded by such a possession. 15. In tracing a pedigree under the Act, it should be borne in mind that a man may be a purchaser as the person last entitled, although he never obtained possession of the estate, nor received any of the rents, and that reversions and possessions, and even possibili- ties, are now placed on the same footing. The ascending line, father, grandfather, and so on, in the scale, take in the place of, and in pre- ference to, their descendants, who take immediately in succession to them, just as if they, the ancestors, had had successive estates tail; therefore, if a son purchase an estate and die without issue, leaving a father, brothers, and sisters, the brothers and sisters will now be post- poned to the father. And the half-blood are now admitted, except that the preference is given to the whole blood of the first purchaser as between his kindred in equal degree or their descendants. 16. By the 7 & 8 Vict. c. 66, every person born out of Her IMajesty's dominions of a mother being a natural-born subject, is made capable of taking to him, liis heirs, executors, or administrators any estate, real or personal, by devise or purchase, or inheritance of suc- cession (d). And a woman married to a natural-born subject or person natularised is herself naturalised {e). III. As to Wills. 1 7. We have already considered the operation of the new statute (/), so far as it is likely to bear upon contracts. We need, therefore, only observe generally that the testamentary power is now complete over vested and executory interests of every description, and over future as well as present estates, for every will speaks as if it had been executed immediately before the death of the testator, unless a contrary intention appear by the will {g). Lapsed devises, as well as such as fail by reason of their being contrary to law, or incapable of taking eftect, fall into the residue (Ji) ; and a general devise will in- clude estates of every tenvire (J), and lands over which the testator has a general power, and this extends to personal estate also (Ji) ; but in all these cases a contrary intention must not appear (/). The fee (c) S. 12. {d) S,3; see s. 13. (e) S. 16. (J) S. 2G; Wilson v. Eden, 16 Bea. 153. (/) 1 Vict. c. 26; sup. p. 153, 159. (/e) S. 27 ; Collard v. Sampson, 4 Ue Ge. ((/) S. 3, 4, 5, 6 ; O'Toole v. Browne, 3 Mac. & Gor. 224; Lake v. Cuirie, 2 De Ge. E. & B. 572; Webb v. Byng, 1 Kay & Jo. Mac. & Gor. 536. 580 ; which considei" ; svp. p. 158, 159. {I) Emuss v. Smith, 2 De Ge. 5>: Sma. 722; {h) S. 25. Wisden v. Wisden, 2 Sma. & Gif. 396. CH. 12. S. I.] OF WILLS. 385 will now pass without words of limitation {lu), and the words " die without issue " of any person, or the like, now mean in the cases provided for, a failure of issue in the lifetime or at the death of the person (;«). And la})se is prevented, unless in either case a contrary intention appear by the will, 1 . Where any devisee in tail or in quasi in tail die in the lifetime of the testator, leaving issue who would be inheritable under such entail, and any such issue shall be living at the time of the death of the testator ; for such devise will take effect as if the death of such person had happened immediately after the death of the testator (o) ; 2. Where any person, being a child or other issue of the testator, to whom any estate is devised or be- queathed for an interest not determinable at or before the death of such person, die in the lifetime of the testator leaving issue, and any such issue of such person shall be living at the time of the death of the testator; for such devise or bequest Avill take effect as if the death of such })erson had happened immediately after the death of the testator, unless a contrary intention shall appear by the will (p). 18. The statute prohibits an infant from making a will even of personalty (y), and requires all Avills to be executed with the like solemnities in the presence of, and to be attested by two witnesses (r), and publication is no longer necessary, nor is an attestation clause necessary (.s), and the Act has special provisions in regard to the revocation and the revival of Avills, for which we must refer to the statute itself ; but we may observe that now the act of cancellation must be executed as a proper Avill, to give effect to it as a revoca- tion {t) ; and no revocation will be effected by change of estate as to the devisable interest in the testator at his death (?^), but that mar- riage of either a man or woman will operate a revocation (.r). There are now only four modes in which a will can be revoked, viz. : 1. By another inconsistent will or Avriting executed in the same manner as the original will ; 2. By burning or any other act of the same nature; 3. By the disposition of the property by the testator in his lifetime ; 4. By marriage. By the first and third of these modes the Avill may be revoked either entirely or in part ; by the second and last, the revocation Avill be complete. (w) S. 28 ; as to devises to trustees, see (cj) S. 7. s. 30, 31. {>•) 16 Vict. c. 24; in re Brown, 16 Jiu*. («) S.29; Doo V. Ewai't, 7 Ad. & El. 002. 665 ; Morris v. Morris, 17 Bea. 19S. (s) Bryan v. White, 2 Robert. 315. (o) S. 33. (t) S. 21 ; see s.'20; Doc v. Harris, 8 ip) S. 33 ; Jolinson v. Jolnison, 3 Ha. Ad. & El. 13. 157; Fulford v. Fultbrd, 16 Bea. 505; (u) S. 23; see Cooper y, Martell, 2 Jur., Winter v. Winter, 5 Ha. 306 ; Mower v. On; N. S., 745, sttj). 7 Ha. 473; Wisden r. Wisden, 2 Sma. & (.r) 8. 18; Marston r. Roo,8Ad.& El. 14. Gif. 306; Gale v. Gale, 21 Bea. 349. B B [ 386 ] [CH. 12. S. II. SECTION II. OF TITLE UNDER TENANT IN TAIL (I). 1. New law: 3 <^ 4 Will. 4, c. l-i.— Where defects in existing recoveries are amended — Ancient demesne — Court without jurisdiction — Errors apparejit from, deed amended in fines — So in re- coveries — How acted upon — Recoveries defective rendered valid. 2. Tenant in tail can acquire the fee simple — Estates tail in contingency or di- vested — Confirmation of voidable es- tate. 3. Protector. 4. Where a seller of aremaindermay bar it. 5. Base fee may still be acquired by tenant in tail in remainder. 6. Poiver of protector absolute — His con- sent necessary — Uncontrollable — Con- sent cannot be revoked — Married wo- man's consent as protector. 7. Contracts by tenant iii tail of no force, except as against himself. 8. How assurance is to be enrolled, Sfc. — Married woman tenant in tail. 9. Protector how to consent. 10. Equitable jurisdiction excluded— Equi- table estates tail — Base fee indepen- dently of act — Confirmation of void- able estate. Estates pur autre vie and chattels, ex- cluded. 11, Purchaser's title under the Act — Legal and equitable tenants in tail. Of copyholds — How to convey : consent of protectors — Where the consent is not by deed. Equitable tenant in tail of copyholds — ■ Prior imrchaser without notice pro- tected — Enrolment, Power of commissioners of bankrupt over estates tail and base fees. Consent of jirotector : bankruptcy. Base fee in purchaser enlarged by Act. Where voidable estate confirmed by act of commissioner — Saving of right of a purchaser withoiit exjjress notice. Bankrupt's estate. Dispositions by married women — Poiver of married woman not tenant in tail — 3Iay release right of dote er. Poivers : deeds : married women. Surrenders of cojjyholds by married women — Poiver to dispense with hus- band's concurrence. Enrolment, Sfc. of deeds executed by her as tenant in tail, protector, or owner. May disclaim by deed: disposition of contingent interests. Operation of enrolment Confiicting rights of purchasers. 1. The new law lias several provisions bearing upon present titles and upon future contracts and conveyances to purchasers {a). Fines and recoveries of lands in ancient demesne, levied or suffered in superior courts, are rendered valid as between the conusors and the vouchees, and all persons claiming under them, although they may still be reversed as to the lord {h). And although there shall have been no reversal of fines or recoveries of ancient demesne levied or suffered in the superior courts, yet fines or recoveries subsequently levied or sufi'ered in the manor courts are made operative notwith- standing the change of tenure by the former fines or recoveries (c). These provisions remove the difficulties which constantly arose upon titles to lands in ancient demesne ; and writs of deceit are abolished, and the tenure of ancient demesne restored, where the right of the (a) 3 & 4 Will. 4, c. 74 (August 28, 1833). {h) S. 4. (c) S. 5, (I) 4 & 5 W. 4, c, d2, for Ireland; ,Sugd. Essay on Stat. 5J49. OH, 12. S. II.] DEFECTS IN RECOVERIES, ETC. REMEDIED. 387 lord had been acknowledged within twenty years, notwithstanding unreversed fines or recoveries in the superior courts (d). And fines and recoveries are made valid although levied or suffered in a court within whose jurisdiction the lands do not lie, or in a court unlawful or held without due authority, where persons have assumed to hold courts in which fines or recoveries have been levied or suffered (e). And errors apparent from the deed declaring the uses of any fine in any of the proceedings of such fine, in the name of the conusor or conusee, or any misdescription or omission of lands intended to have been passed by such fine, are cured by the act itself (/). So in like manner errors apparent from the deed making the tenant to the prcBcipe in a recovery, in any of the proceedings of such recovery, in the name of the tenant, demandant, or vouchee, in such recovery, or any description or omission of lands intended to have been passed by such recovery, are cured by the Act itself ((/). And the Court of Common Pleas will not, to satisfy the scruples of a purchaser, amend a fine or recovery Avhich the Act has declared valid without amend- ment (A), nor indeed does it seem that the Court has now jurisdiction in such cases. Recoveries, whether suffered before or after the Act, are rendered valid, although the bargain and sale to make the tenant to the precipe was not enrolled in due time (i), and no recovery (k) is to be invalid in consequence of any person having a legal estate not having joined in making the tenant to the prcBcipe, provided the tenant shall have been made by a person who had an estate in pos- session not less than for a life, in the rents or surplus after payment of charges thereon, and whether there be any actual surplus or not ; and an estate is to be deemed to be in possession notwithstanding any prior leases for lives or years at a rent, or any terra of years without rent. But this does not extend to fines or recoveries so far as they had been reversed; nor where any person who would have been barred by any fine or recovery, if valid, has had any dealings with the estate on the faith of the same being invalid ; nor where the pro- perty, at the time of passing the Act, was in possession of any person in respect of any estate which the fine or recovery, if valid, would have barred ; nor does it extend to any fine or recovery which, before the passing of the Act, any court of competent jurisdiction had refused to amend, nor are pending proceedings for impeaching any fine or recovery affected, but a special provision is made for such cases (/). Subject to these savings, all recoveries are now valid, although there was only an equitable tenant to the prcBcipe, and the estate tail was a (rf)S. 6. (e) S. 5. (/) S. 7. (/«) Lockington's case, 1 Bin. N, C. 355; {(j) S. 8 ; see s. 9, saving the operation of Totton's case, 5 Bin. N. C. 626. the Act in certain cases ; Davies r. D'Arcy, (?) S. 10. CO S. 11. 3 Ir. L. K. 617, et qu.; In re Davies, 4 Ir. (l) S, U. Ch. R. 87. B B 2 388 BAH OF CONTINGENT ESTATE TAIL. [cil. 12, S. II. legal one. These are excellent provisions, and they have operated favourably upon titles. 2. By this Act every tenant of an estate tail not barred, and although turned to a right (in), and whether in possession, remainder, contingency or otherwise, has power over the fee absolute, subject only to estates prior to the estate tail (??,). But this power is not ex- tended to tenants in tail Avho are by statute restrained from barring their estates tail, or to tenants in tail after possibility of issue extinct (o). A voidable estate, whenever created by a tenant in tail in favour of a purchaser for value, will be confirmed by any subse- quent assurance by him under the Act (except certain leases), unless such disposition be made to a purchaser for value who has not express notice of the voidable estate (7;). A purchaser can ascertain whether a fine or recovery has been levied or suffered, or a statute deed executed or enrolled, and he will not be bound by voidable estates of which he had not express notice. 3. As the old tenant to the prcecipe could not be preserved under the new plan, the Act creates a protector of every settlement, whose concurrence is required in barring estates tail in remainder, in order to preserve, under certain modifications, the control of the tenant for life over the remainder-man (q). 4. A purchaser of a life estate in possession, and of a remainder or reversion after an intermediate estate tail, should keep in view the singular ojieration of the Act ; for if tenant for life or for years deter- minable on his life, with remainder to his sons in tail, Avith remainder or reversion to himself in fee, were to sell and convey the life interest and the remainder or reversion, he himself would still be the j)rotector, and could at any time during the continuance of the life interest consent to a statute deed of disposition by the tenant in tail which would bar the remainder or reversion; or in other words, he might in substance resell the remainder or reversion to the tenant in tail, for he may make what bargain he can with the tenant in tail, and a covenant by him Avith the purchaser not to exercise his power of consenting would be simply void. 5. The Act preserves to tenants in tail in remainder the like powers which they before enjoyed : they could by a fine with proclamations bar the estate tail and obtain a base fee without the concurrence of the immediate freeholder, in whose place the protector now stands, (w) S. 1. (q) S. 22, 23, 24, 25, 26, 27, 28, 30, 32 j («) S. 15; see s. 19. 39. see s. 33, 48, 49, as to power of Court of (0) S. 18; Duke of Grafton v. L, & B, Chancery and of L. C; 11 Sim. 528; In re Ry. Co., 5 Bin. N. C. 27. Wainewriglit, 11 Sim. 352; 1 Phil. 258; (p) S. 38; see s. 21, as to the effect of Grant r. Yea, 3 My. & Ke. 245; In re partial dispositions ; s. 30, as to a base fee Blewitt, id. 250 ; In re Wood, 3 My. & Cra. being enlarged i/woyhc^o, where it and the 2G6; both the latter ovenniled; G De Ge. remainder in fee are united. Mac. & Gor. 187. CH. 12. S. ir.] POWER OF PROTECTOR. .389 and they may now do so by a sstatute deed without the consent of the protector (r). 6. The power of the protector to consent is made absolute ; his discretion is absolute and uncontrollable even by a court of equity, and any agreement entered into by him to withhold his consent is void. Nor can his giving his consent be deemed a breach of trust, for he is not to be deemed a trustee of the power (s). Nor are the rules of equity in relation to dealings and transactions between a donee of a power and any object of the power in whose favour the same may be exercised, to apply to this case (t). And after a consent has l)een duly given, he cannot revoke it (it). A married woman being a protector, either alone or jointly with her husband, may consent as a feme sole (x). A vesting order under the Trustee Act of 1850, Avhere the infant is tenant in tail in remainder, if made with the consent of the protector, will have the effect of barring the remainders over (?/). /^ />i^^^^ «^ CH. 12. S. II.] OF ENTAILS IN COPYHOLDS. 391 deeds are properly enrolled, and lie should not part with his money nntil that is done. 13. Copyholds are within the Act, and all the previous clauses, so far as circumstances and the different tenures will admit, are to apply to copyholds ; but surrenders are to be made by legal tenants in tail, and surrenders or deeds are to be made or executed by equitable tenants in tail (h). And the mode in wliich the protectors are to consent, by deed or not by deed, and the entry of the deed or of the consent on the court rolls are particularly pointed out (i). T\'liere the consent is given by deed, such deed, either at or before the time when tlie surrender is made, must be executed and be produced to the lord or steward, without which the consent will be void. An acknowledgment of the production of the deed within the time limited is to be endorsed "by writing under the hand of the lord, steward, or deputy stev^ard," and the deed, with the endorsement, is to be entered on the court rolls [k) ; and the lord or steward is to endorse on the deed a memorandum, signed by him, certifying the entry on the rolls. Where the consent is not by deed, it is to be given by the protector to the person taking the surrender, or if the surrender is made out of court, it must be stated in the memoi*andum of it that such consent had been given, and the memorandum is to be signed by the protector, and the memorandum w^ith the consent is to be entered on the court rolls (/) ; and if the surrender be made in court, the lord or steward is to cause an entry of the surrender and consent to be made on the rolls. 14. Equitable tenant in tail of copyholds may bar the entail by deed just as in freeholds, and the deed is to be entered on the court rolls ; and if a protector consent by a distinct deed the consent is void, unless the deed be executed by the protector, either on or at some time before the day on which the deed of disposition is executed by the equitable tenant in tail, and the deed of consent is to be entered on the rolls, and an endorsement is to be made on the deed by the lord or steward, signed by him, of the entry on the rolls (?n). But to this provision there is added a proviso, that every such deed of disposition shall be void against any person claiming the lands for valuable consideration under any subsequent assurance duly entered on the court rolls, unless the deed of disposition by the equitable tenant in tail be entered on the court rolls before the subsequent assurance is entered (?i). In giving this priority to a subsequent purchaser the Act is silent about notice, and having regard to the general frame and objects of the statute, and the provisions in it (/() S. 50 & 53 ; see s. 67, as to disposi- as to entries on court roll, tions of equitable estates. (A) S. 51. (0 S. 52. (w) S. 53. (i) S. 51, 52, 53 ; 4 & 5 Vict. c. 35, s. 89, («) S. 53. B B 4 392 OF ESTATES TAIL IN BANKRUPTS. [CH. 12. 3. II. respecting notice, it is not improbable tliat notice will not be held to supply in equity the want of an entry on the court rolls. The operation of the deed depends altogether on the statute, and in this case it Is avoided by express enactment. A purchaser, therefore, from an equitable tenant in tail of copyholds should not part with his money until such an entry is duly made. But the enrolment re- quired of deeds as to freeholds does not apply to deeds or surrenders of copyholds (o). 15. The commissioner under any fiat in bankruptcy against an actual tenant in tail of lands of any tenure, is enabled by deed to dis- pose of the estate to a purchaser for valuable consideration, just as the bankrupt could have done, according as the protector, if there be one, consents or not (7;). And a like power is given to the commis- sioner over a base fee {q). 16. And as regards the operation of a consent by the protector upon a disposition by the commissioner, he, the commissioner, — whether he shall have made a prior disposition without the consent of such protector or not, or whether a prior sale or conveyance shall have been made or not under the two former statutes relating to bank- ruptcy, or any future statute, — is placed in the same situation as the bankrupt himself would have occupied, and the previous directions as to enrolment, &c., apply equally to this case (r). The deed, if not relating to copyholds, will be void if not enrolled in the Court of Chancery within six calendar months after its execution, and deeds of disposition and consent as to copyholds are to be entered on the court rolls as before directed (s). 17. There are two important provisions relating to a purchaser obtaining by a disposition from the commissioner under this Act a base fee only, for want of a consent by the protector, or obtaining a base fee by a sale and conveyance under the Bankrupt Acts whilst there is a protector ; in either case, if at any time afterAvards, during the continuance of the base fee, there shall cease to be a protector, then the base fee will, without any further Act, become enlarged in the hands of the purchaser into the same estate into which the same could have been enlarged under the Act if, in the first case, there had been no protector when the disposition was made ; and if in the last case, at the time of the adjudication, there had been no such protector, and the commissioner had disposed of the lands under the Act {t). 18. And where a tenant in tail or of a base fee has created, or shall create, a voidable estate in favour of a purchaser for valuable con- sideration, any disposition under the Act by the commissioner (whether (0) S. 54. (^p) 8. 5G. {q) S. 57. (r) S. 58. (s) S. 59. (0 S. 60, Gl. CH. 12. S. II.] OF DISrOSITIOXS BY MAEEIED WOMEN. 393 lie has made under the Act a previous disposition, or whether a prior sale or conveyance shall have been made or not under the Bankrupt Acts), according as the protector consents or not, is to have the effect of confirming such voidable estate. And a subsequent failure of a protector during the continuance of the base fee, where that only passes, will enlarge it. But this last provision is clogged with the proviso, that if the disposition by the commissioner shall be made to a purchaser for valuable consideration, who shall not have express notice of the voidable estate, then the voidable estate shall not be confirmed against such purchaser (u). 19. The acts of the bankrupt tenant in tail are avoided against any disposition under the Act to the same extent as if he were tenant in fee (.!■) ; but, subject to all the powers and the estate of the assignees, the bankrupt's own power of disposition is to remain (y). 20. The Act enables every married woman, not being tenant in tail, by deed to dispose of lands of any tenure, and money subject to be invested in lands, and also to dispose of, release, surrender, or extinguish any estate which she alone, or she and her husband in her right, may have in lands of any tenure, or in any such money ; and also to release or extinguish any power which may be vested in or limited or reserved to her in regard to any lands of any tenure, or in any such money, as effectually as if she were a fe77ie sole ; but her husband must concur in the deed, and the deed must be acknowledged in the manner required by the Act (r), and the provision is not to extend to copyholds in cases where the power is not required (a) ; and this includes a power to married women and their husbands, wdio were married before the 1st of January 1834, to bar dower (Z»). 21. The Act does not interfere with any power in a married woman, unless she suspends or extingviishes it by a disposition under the Act (c). But every deed executed by her, except in the mere character of a protector, is to be acknowledged by her (d), and she is to be separately examined (e), for which purpose necessary machinery is provided by the Acts (/). 22. Surrenders by husband and wufe, by which she is separately examined, of equitable estates ^5^copyholds, are made as binding upon the woman as surrenders of legal estates, and all former surrenders of the like kind are thereby rendered valid (g). And the Court of Common Pleas is authorised to dispense Avith the husband's (u) S. 62. (x) S. G3. Bea. 400 ; 17 & 18 Vict. c. 75. (y) S. 04; as to the commissioners' power (a) 8.77. after the bankrupt's death, s. 65. {b) Sugd. Essay on Stat. 242. (:) Bancks v. Ollerton, 10 Ex. 1G8 ; Fiehl (c) 3 & 4 W. 4, c. 74 ; S. 78. r. Moore, 24 L. J. Ch. 101 ; In re Allerton, {(l) 8. 79. (e) S. 80. 15 C. B. 790; In re London Dock Co., 2U (/) 8. 81—89. (r/) S. 90. 394 OF ENROLMENT, ETC. OF DEEDS. [CH. 12. S. II. concurrence In cases of lunacy, separation, &c., but without prejudice to his rights (h). t^^.^/u ^j ^^^^/ ^/^A^ /:?<-/- 23. It should be kept in view, that a statute deed by a married woman, as tenant in tail or protector of a settlement, must be enrolled according to the directions of the Act, and where it operates as a conveyance of her Interests, it must be acknowledged by her, and she must be separately examined whether she Is tenant In tail or not. 24. A later Act {i), which enables the disposition by deed of con- tingent interests, possibilities coupled with an interest, and rights of entry, in lands, &c. of any tenure, provides that no such disposition shall, by force only of that Act, defeat or enlarge an estate tail, and that every such disposition by a married woman shall be made con- formably to the provisions just referred to in the principal statute ; and It Is provided iK) that after the 1st October 1845, an estate or Interest in hereditaments of any tenure in England may be disclaimed by a married woman by deed, such disclaimer to be made conformably to the above-mentioned provisions. A married woman under the Act has. It was ruled, a power of disposition only and not a power to contract (Z), but upon an appeal it was held that a contingent remainder in a married woman might be transferred at law by her with her husband under the statute, and that a married woman was able to contract in equity not so as to render her liable in damages, but so as to bind her interest In land equitably If not legally {rri). 25. Every deed relating to lands required to be enrolled in Chancery, is, when enrolled, to operate as if enrolment had not been required, with this important exception, that every such deed will be void against any person claiming the lands or money, under any sub- sequent deed duly enrolled under the Act, if such subsequent deed shall be first enrolled (n). The Act Is silent In this provision as to notice. The conflicting rights of purchasers In such a case seem to depend upon another provision (o), by which a voidable estate, when- ever created by a tenant In tail in favour of a purchaser for valuable consideration, will be confirmed by a subsequent valid disposition under the Act, unless that disposition be In favour of a purchaser for valuable consideration, who bought luithoiit express notice of the void- able estate. Upon the true construction of the Act, it seems that where one purchaser claims under a prior, but as far as the Act Is concerned an ineffectual disposition, and another claims under a later but effectual disposition under the Act, the former will be preferred (/t) S. 91 ; Ex pte. Ann Sliirley, 5 Bin., (/) See Crofts v. Middleton, 2 Ka. k Jo. N. C, 226 ; In re Mirfin, 4 Man. & Gr. G35 ; 194, and observe the dates. In re Woodcock, 1 C. B. 437 ; In re Per- {m) 27 L. T. ] 14. rin, 14 C. B. 420. («) S. 74; Cattell v. Corrall, 4 Yo. & (?) 8 & 9 Vict. c. lOG, s. G ; 7 & 8 Vict. Col. 228. c. 76, s. 3. (o) S. 38. (A) S. 7, 8 & 9 Vict. c. 106. CH. 12. S. III.] TITLE BY NON-CLAIM. 395 to the latter if the latter bought with express notice of the other's rio-ht, unless the 74th section is not to be controlled or explained by the 38th ; and if not, then the particular case of want of enrolment does not fall within the 38th section, but is altogether dependent on the 74th. SECTION III. OF A TITLE BY NON-CLAIM. Rigid extinguished. Twenty years a bar. Mere possession sufficient. When time accrues. Where party has been in possession — Where a deceased person was last in possession — Where a grantor was last in possession — Trustee of term. Where any payment has been made to a mortgagee. Summary Twenty years a bar, al- though case not within the instances stated — Rent newly created by will. Reversionary estate, and no possession — Executory devises Forfeiture, or breach of condition — Remainder-man may wait till possession fall Con- current rights. Administrator. Tenant at will, possession by. Tenant from year to year without lease in ivriti7ig, possession by. Tenant under lease at a rent of 201., or more, possession by. Possession by coparcener, and the like, or by heir. Acknowledgment of title in writing. Savings — Forty years the full period. Imperfect conveyance by husband and wife. Forty years not a perfect bar. Bar of tenant in tail bars remainder — Where time has run against him — Where he dies before time is out — Possession under an imperfect assur- ance by him — Does not operate retro- Id. spectively — Base fees, how affected — Voidable fees. Bars in equity same period as at law: express trusts: concealed frauds. Charities. Filing a bill — Appointment of receiver — Acquiescence, 8^c. Mortgagor out of possession — Acknow- ledgment. Where mortgagee is tenant for life. Time for spiritual and eleemosynary corporations. Advowsons One hundred years full period. Twenty years a bar of money secured upon land, Sfc, or legacy — Vendor's lien — Judgment creditor barred. Legacy becoine a trust — Judgment cre- ditor. Dower, rent or interest. Judgments, Interest. Moduses or exemptions, thirty years: sixty years — Corporations sole. Decrees — What time excluded. Disabilities. Tithe Commutation Act. Lights, twenty years. Rights of common, (^c. thirty years : sixty years. Ways, watercourses, twenty years: forty years. Time, how to be computed. Nature of enjoyment. Tenancy for life. Presumption inadmissible. Title to a purchaser. 1. By the new statute, when the remedy is barred by time, the right and title of the person whose remedy is taken away is extin- guished (a). Tliis is a great improvement, and very much assists titles depending upon non-claim ; and under other Acts of Parlia- {a) 3 & 4 W. 4, c. 27, s. 34 ; Scott v. Nixon, 3 Dru. & War. 388 ; Doe v. Carter,I3 Q. B. 94.5. 396 WHERE PARTY HAS BEEN IN POSSESSION. [CH. 12. S. III. ment the same rule extends to the rights of the Crown {h). The remedy is now by ejectment (c), and the time which lias run before \hQ passing of the Act will count as part of the period allowed by the new law, so that the time will continue to run. The proceedings in ejectment are now regulated by the 15 & 16 Vict. c. 76 (^). 2. The period limited for making an entry or distress, or bringing an action for land (which includes all corporeal hereditaments, of Avhatever tenure, and also tithes not belonging to a spiritual or elee- mosynary corporation sole) or rent (which extends to heriots, and to services and suits for which a distress may be made), and to annuities and periodical sums charged on land (except moduses or composi- tions belonging to a spiritual or eleemosynary corporation sole) (e), Is twenty years from the time the right first accrued. Tithes in this provision does not mean tithes as between tithe-owner and occupier, but applies to those cases where there are two persons each claiming an adverse estate in the tithes (/); nor does rent mean rent reserved by lease, but rent-charge (ff). The statute speaks of receiving the profits of land which includes the receipt of rent (A) (I). 3. Mere possession now is sufficient to bar the remedy under this section, if the claimant's right of entry accrued above twenty years before the ejectment (/), and this, although the claimant is a mort- o-ao-ee only, and the right to recover the money falls within a later section (Ji). 4. Where the claimant Is the person to whom the right first accrued, time runs from the period when his right first accrued : where the right first accrued to some person through whom he claims, time will run from the period when the right of such person first accrued, and this includes title, as heir, issue in tail, tenant by the curtesy or in dower, successor, special or general occupant, exe- cutor, administrator, legatee, husband, assignee, appointee, devisee, or otherwise, or by escheat (J). 5. Where there has been possession or receipt of profits or rent by the claimant or the person through whom he claims, the right (i) 9 Geo. 3, c. 16, Eng. ; 48 Geo. '6, c. 017 ; Bunbiiry v. Fuller, 9 Ex. 128. 47, Ir. ; Tuthill v. Rogers, 1 Jo. & Lat. 30; {(j) Grant v. Ellis, 9 Mee. & Wei. 113 ; Doe V. Abp. of York, 14 Q. B. 81 ; Manning Shell v. Ineor. Soc, 10 Ir. E. R. 411 ; Hayes V. Phelps, 10 Ex. 59. ^'- Woodley, 3 Ir. C. R. 142 ; Sugd. on (c) S. 30. Stat. 45. \d) S. 108—221 J 16 & 17 Vict. e. 113, (Ji) S. 35 ; Doe v. Gardiner, 12 C. B. 319, Ir. s. 194—227. (') H Ad. & El. 1015. le) S. 2. 0; 3 & 4 W. 4, c. 27. (^0 Doe v. Williams, 5 Ad. & El. 291 ; (/) Nepean v. Doe, 2 Mee. & Wei. 894 ; Wri.Kon v. Vize, 3 Dru. & War. 104, 121 ; CuUey V. Taylerson, 3 Per. & Da. 539 ; Dean sec. 40 of Stat. & Chap, of Ely r. Cash, 15 Mee. & Wei. (/) S. 1. (I) \s to the profits of mines, see Denys v. Shuckburgh, 4 Yo. & Co. 42 ; and as to time as a bar to a right in them, sec M'Donnell v. M'Kinty, 10 Ir. L. R. 514; Keyse v. Powell, 2 E. & B. 132. 645 ; Smith v. Lloyd, 9 Ex. 502. . CH. 12. S. III.] WHEN RIGHT FIRST ACCRUES. .397 Jirst accrues when the possession or receipt was discontiniied, or the last i)rofits or rent received, or from the death of the last person in possession or receipt, and where there has been no possession or receipt under a conveyance of the possession, the right accrues from the time the grantee became entitled to possession under the instru- ment (m). And although this last provision is not specially pointed to the case of trustee and cestui que trust, yet it has been held to apply to a term of years assigned to a trustee to attend the inherit- ance, where, of course, the trustee is not in possession ; so that the twenty years ran from the time when he became entitled to the pos- session (7^). This, however, has not been followed, and it has been held at law that in the case of an attendant term, the purchaser, the cestui que trust entering into possession, was at law tenant at will of the trustee, and that the case fell within the second section, and that no right of entry accrued till the determination of the tenancy at will, and that the case did not fall Avithin the provision in the third section, to which our attention has just been called (o). And in a case in equity where portions were secured by a term of years, it was held that the term was not barred, and that the portions Avere raisable, although more than twenty years had elapsed after a present right to receive them accrued : in such a case betAveen trustee and cestui que trust the statute has no application (/>). But n cestui que trust, although for a limited interest, not in possession, but in law acting as bailiff' or agent of the trustees, Avho alloAved him to act as OAvner, cannot be deemed to be a tenant at Avill of his trustees, so as to save time ; and the possession of a third person, although obtained from the cestui que trust, may by possession for tAventy years Avithout l)ayment of rent or acknoAvledgment, give to him a title against both the trustees and the cestui que trust (q). 6. And noAv a mortgagee may recover Avithin twenty years after the last payment of any part of the principal money or interest ; but for this a further enactment Avas deemed necessary (?•). 7. The provisions, then, as to cases of estates in possession are these : Avhere the party in possession is dispossessed, or discontinues such possession, the time runs from such dispossession or discon- tinuance, Avhether the claimant claims through some other i)erson or not. Where the claimant derives his claim from another Avho is (m) S. 3. Mansfield v. Ogle, 24 L. J., i\. S., 700; (n) Boev. Phillips, 10 Q. B. 130; there Snow r. Booth, 2 Ka. & Jo. 132; 2 Jiir., had been no demand of possession ; ,s. 7. N. S., 244 ; Smith r. Smith, 5 Ir. C. R. 88. (o) Garrard v. Tuck, 8 C. B. 231; 13 {q) Melling v. Leak, IG C. B. 652; 1 Jur. 871. Jiir., N. S., 758. {p) Young- V. Ld. AA^aterpark, 13 Sim. (r) 1 Vict. c. 28 ; Doe ?•. AVilliams, o Ad. 204; 10 Jur. 1 ; Petre v. Petve, 1 Drew. & El. 291 ; 3 Dru. & AA'ar. 118,11!); Doer. 371 ; Cox V. Dolman, 2 De Ge. Mac. & Gor. Ejtc, 17 Q. B. 360 ; Doe f. Massey, id. 373, 642 ; In re Wyse, 4 Ir. C. R. 297 ; Ld. which qu. 398 OF REVERSIONS : FORFEITURE. [CH. 12. S. III. dead,, and was in possession at his death, and was the last in posses- sion, the time runs from his death ; and w^here the claim is originally or derivatively through an instrument inter vivos, where the posses- sion was in the grantor, but ended with him, the time runs from the period when the claimant, or the i3erson under whom he claims, became entitled to the possession. These enactments, which are in the third section, pointing out when in the given cases the right shall be deemed to have first accrued, do not exclude {s) any case which is not provided for by this third section, altogether from the opera- tion of the second section. A rent or annuity created by a will, falls therefore within the second section, and is not excepted out of it by the third section {t), and consequently the twenty years would run from the period when the right to distrain for it first accrued. 8. As to reversionary or other future estates or interests in respect of which there has been neither possession nor receipt of rents, the right first accrues when they become estates in possession (ii), and the words comprehend all executory devises (x). Where the title is by reason of any forfeiture or breach of condition, the title accrues upon the forfeiture or breach (y). But a remainder-man or rever- sioner is allowed a new right in respect of such forfeiture or breach from the time his interest falls into possession {z), and a reversioner is entitled to claim from the time his reversion falls into possession, and his possession before the creation of the j)articular estate will not prevent his claim (a). But if a person in possession is barred by the lapse of time, he is equally barred as to any other interest which at any time during the same period he had, unless some person entitled after the estate in possession shall have recovered in the meantime {h). These two last provisions are contained in the 5th and 20th sections, and it has been held that upon their true construction the provision in s. 5 applies to those cases only loliere another person than the owner of the jjarticular estate is the reversioner (c). Yet where hus- band and wife were entitled for their lives, with remainder to the husband in fee, who became a bankrupt and absconded, and the wife occupied for her life — more than twenty years — the assignees reco- vered in ejectment after her death, for the husband's reversion was a future estate within s. 3, and if it fell within s. 20, the wife's pos- session was a sufficient recovery to save the right of the assignees within the proviso {d). 9. Time runs against an administrator from the testator's death (e). 10. AVhere there is a tenant at will, the right of the person subject (i) James r. Salter, 2 Bin., N. C, 505. {x) 3 Bin., N. C, 554. (y) S. 3. 515; 3 Bin., IV. C, 344 ; Sugd. on Stat. 19. \z) S. 4. («) S. 5. {b) S. 20. (t) James v. Salter, 3 Bin., N. C, 344. (c) Doet'. Mouldsdale, 16Mee.&Wel.689. (u) S. 3; Doe V. Edmonds, 6 Mee. & (d) Doer.Liversedge,ll Mee. i: Wel.517. Wei. 295. (c) S. G. CH. 12. S. III.] POSSESSION BY TENANT AT WILL, &C. 399 thereto accrues at the determhiatlon of the tenancy or at the expira- tion of one year after the commencement of the tenancy, when it is to be deemed to have determined, but a mortgagor or cestui que trust is not to be deemed a tenant at will within this clause to his mort- gagee or trustee (/). This has been supposed to put an end to a continuous tenancy at will, although there may be a new one every year(^), and this section provides a bar where there has been no express act done to determine the tenancy at will up to the time ot passing the statute. The provision is a general and continuing one, and is not confined to cases existing at the time the Act passed, although it applies to them {li). And a tenant at will, e. g., a pur- chaser of the fee, let into possession before payment of all the purchase- money, may by transferring the possession create anotner tenancy at will by possession, under which he may have his own right barred (i). 11. Where there is a tenancy from year to year or other period, without a lease in writing, the right of the person entitled subject thereto, accrues at the end of the first of such years, or at the last receipt of rent (^whicli shall last happen) (Ji), and a rent service (not pecuniary) is within this provision (/). 12. Where there is a tenancy under a lease in writing, at 20 s. or upwards rent, and the rent has been received by a wrongful claimant of the reversion, and no payment of rent has been afterwards made to the rightful owner, the right of the person entitled accrues when the rent was first received by the wrongful claimant, and no right accrues upon the determination of the lease (???) ; so that now, by neglect of the real owner, payment to another will bar him (??), and this section is retrospective (o) ; but there seems to be no sufficient foundation for the opinion that mere nonpayment of rent Avill operate as a bar (jy). Where no rent is reserved the statute will not apply ((7). 13. The possession of one coparcener, joint-tenant, or tenant in common, is not the joossession of any other (r), nor will his entry enure to any other (5), neither will the possession of any relation enure to the heir {t). (/) S. 7; Doe v. PliilUps, 10 Q. B. 130 ; (0) Id. 359, Gan-ard v. Tuck, 8 C. B. 231; 13 Jur. (p) Ex pte. Jones, 4 Yo. & Col. 466; 871 ; sup. see Doe r. Oxenham, 7 Mee. & Wei. 131; ig) Doer. Page, 5 Q.B. 767 ; 9 Q. B. 867. Chadwick v. Broadwood, 3 Bea. 308. (/«) Doe V. Thompson, 5 Ad. & El. 532; {q) S. C. 6 Ad. & El. 721 ; Doe v. Moore, 9 Q. B. (?■) S. 12; Culley v. Taylevson, 3 Per. & 555; Doe v. Groves, 10 Q. B. 486; Doe v. Da. 539, 11 Ad. & El. 1008; Doe v. Hor- Bold, 11 Q. B. 127. rocks, I Car. & Ki. 566; Burroughs r. (i) Doe V. Carter, 9 Q. B. 863 ; Doe v. M'Creight, 1 Jo. & Lat. 290. Rock, 4 Man. & Gr. 20. (5) Doe v. Woodroffe, 10 Mee. & Wei. {k) S.8; Doe u. Gower, 17 Q. B. 589. 608; 15 Mee. & Wei. 769; 2 H. of L. (0 Doe V. Benham, or Billett, 7 Q. B. Cas. 811. 976; see Doe v. Hinde, 2 Moo. & Ro.441. {t) S. 13. (w) 8. 9. (n) 9 Q. B. 341. 400 ACKNOWLEDGIkLENT. DISABILITIES. [CH. 12. S. III. 14. But an acknowledgment in writing of the title of the person entitled, given to him or his agent, signed by the person in possession, or receipt of the profits, makes the possession that of the person Avhose title is acknowledged, and his right will ])e held to first accrue at the time such acknowledgment, or the last, if more than one was given (?<), so that the moment after such an acknowledgment of title is given, time begins again to run (a). An acknowledgment may, of course, be made out from a correspondence (y), or from deeds (z), and it will speak only from the time of execution, and not from the date of the deed (a). And a devisee in trust to sell and pay debts, and subject thereto in trust for A, may by himself or his agent give an acknowledgment to a creditor, which will save his right for twenty years (Zi). 15. There is a general saving for disabilities often years from the t/]Qf:/3^f" time at which the person to whom the right j^r^^ accrued ceased to be 33^^ (Under disability or died (which shall first happen) (e). But even in ^case of disabilities there is no remedy but within forty years after the time at Avhich such riglit first accrued, although the person under disability at such time has remained under one or more of such dis- abilities during the whole of such forty years, or although the term of ten years from the time at Avhich he ceased to be under any such dis- ability, or died, has not expired {d). Nor although the person under a disability dies without having ceased to be under such disability is any time beyond the period of twenty years, or the period of ten years, allowed by reason of any disability of any other person, or in other words, a succession of disabilities does not extend the time. 16. Where a woman seised in fee and her husband continued in possession for some years after the marriage, but more than forty years before the commencement of the action they left the place, and did not afterwards exercise any act of ownershi}), or occupy tlie estate, and the wife died in 1828, and the husband in 1832, and her eldest son brought an ejectment in 1835, it was held that he was barred by the statute (c). This is a direct decision that forty yeai's' possession, although not adverse in the sense of that expression under the old law, will gain a title. But a conveyance by husband and wnfe of her estate not operative to bind her, Avould not make time run {n) S. 14; Doc r. Edmonds, G IMee. & Nash r. Hodgson, 1 Kay, G50; Spickemell Wei. 295 ; Fursdon v. Clogg, 10 Mee. & v. Hotham id. 669 ; Prance v. Sympson, id. Wei, 572. 678 ; Toft v. Stephenson, 1 De Gc. Mac. (x) Burroughs r. M'Creight, 1 Jo. i: Ac Gor. 28. (c) S. 16. 19. Lat. 290. {d) S. 17 ; Doe v. Bramston, 3 Ad. & EI. (y) I ncorpor. Sy. v. Richards, 1 Dm. k. 03; S. 18 ; for what is beyond seas, s. 19; War. 258 ; Fursdon %\ Clogg, vhi sup. see Ex pte. Harcll, 3 Yo. & Col. 617. (r) Lewis v. Thomas, 3 11a. 34. (e) Doc v. Bramston, 3 Ad. & El. 63 ; qv. («) Jaynes v. Hughes, 16 C. B. 430. whether the case did not I'all within the I5th {b) Ld. St. John r. Boughton, 9 Sim. section. 219; see Smith u. Thomas, 18 Q. B. 134; CH. 12. S. III.] BAR OF TENANT IN TAIL AND REMAINDER-MEN. 401 against her until her husband's interest which passed by the convey- ance determined (/), 17. It should be kept in view, that forty years are not a bar against all the world. The twenty years form the regular bar, and the savings are the exception, and the forty years run only in the case of disabilities, in even which case not more than forty years are allowed. But the twenty years run only from the time Avhen the right first accrued, and that in the case of a remainder, for example, is not until it falls into possession, which event, in the common case of an estate for life with a remainder over, may not happen within forty years of its creation. 18. The bar by time against a tenant in tail bars all persons whose estates he might lawfully have barred (^), and when time has begun to run against him, although he die it will continue to run against those' whose rights he might lawfully have barred (A). These provi- sions refer simply to possession against the right of a tenant in tail, and would not, it seems, be affected by any incapacity on his part, from lunacy for example, to make a valid assurance, for his disability is provided for by the savings in the statute ; and these provisions were not meant to be dependent on the personal capacity of the indi- vidual, but to refer to the quality and extent of his estate. Where the tenant in tail has 7nade an assurance, but not effectual, to bar the remainders, possession by virtue of such assurance for twenty years — after the time at which such^assurance if it had then been executed by such tenant in tail, or the person who would have been entitled to his estate tail if such assurance had not been executed, would, without the consent of any other person, have operated to bar such estate, — will render such assurance effectual against the estates in remainder (i). This latter provision seems to be prospective only, and it assumes that the assurance was valid to bind the issue, but required to be made good by time against the remainder-men only. The assurance referred to is the one made by the tenant in tail. The operation of the clause therefore is not strictly to make time a bar, but to make time give a full operation to the assurance executed by the tenant in tail. The effect of the clause is, that where tenant in tail executes a deed enrolled under the late Act, which, for want of the consent of the protector, operates only to create a base fee, under which possession is obtained, the title will become good against those in remainder at the end of twenty years from the period when the tenant in tail, or his issue, could without the consent of any third person have barred the remainders over under the substitution for Recoveries Act. But this operation will not be effected if the assurance already executed (/) Jumpson V. Pitchers, 13 Sim. 327; {g) S. 21 ; Goodall v. Skerratt, 3 Drew. Cannon r. Riminj^ton, Rimington t;. Cannon, 216 ; Austin v. Llewellyn, 10 Ea. 2'G. 12 C. B. s. 18. (/O S. 22. ' (0 S. 23. C C 402 OF BARS IN EQUITY. [CH. 12. S. III. would not, if then executed without consent, have operated to bar the estates in remainder. It will be necessary therefore, in all such cases, to ascertain that the assurance was duly made and enrolled. But base fees created before the Act by tenant in tail ingossession^ are probably unassailable, for in most such cases the remainders were i discontinued and turned to a right. If a base fee had continuance on -^ the 1st June 1835, yet a remainder-man whose right of entry had been •^ taken away by discontinuance could not maintain any suit or action /i until the determination of the base fee, and consequently it seems that i ^ his remedy is taken away by the thirty-sixth section, which abolishes 1 real actions, and is not ja yed by the subsequent sections. Still this ' would leave tEe'question open as to base fees, where there was no discontinuance (A). 19. Suits in ecLuity are confined to the period allowed for actions at law (J) ; and where there is any express trust, the right of the cestui que trust to bring a suit will first accrue at the time at which such land or rent shall have been conveyed to a purchaser for a valuable consideration, and shall then be deemed to have accrued only as against such purchaser and any person claiming through him(wi), unless in the case oi o, concealed fraud, when the right will first accrue at the time at which such fraud shall or with reasonable diligence might have been first known ; but no owner of lands or rents can, under this provision, have a suit in equity for the recovery of them, or for setting aside any conveyance of them, on account of fraud, against any bo7id Jide purchaser for valuable consideration who has not assisted in the commission of such fraud, and who at the time that he made the purchase did not know and had no reason to believe that any such fraud had been committed (?i). This section does not mean the case of a party entering wrongfully into possession ; it means a case of designed fraud, by which a party, knowing to whom the right belongs, conceals the circumstances giving that right, and by means of such concealment enables himself to enter and hold (o). 20. It has been considered that this statute makes time a bar even against charities, but in most cases their rights would be saved under a later section (s. 25), as, in general, charity estates are held under express trusts, and whilst the right of the trustees remains unbarred the interests of the charities cannot be affected by the trustees (/)). {k) S. 38. 18 Jul-. 913; Scott v. Scott, 11 Ir. E. R. {I) S. 24; Wrixon v. Vize, 3 Dru. & 487; 4 H. of L. Cas. 10G5; Dixon ». Gay-. War. 104. fere, 17 Bea. 421, which consider; Hope v. (?«) S. 25 ; Salter v. Cavanagh, 1 Dru. Liddell, 21 Bea. 183 ; 2 Jur., N. S., 105. & Wal. GG8; Burne v. Robinson, id. 088; (m) S. 26 ; Lewis v. Thomas, 3 Ha. 26. Dillon V. Cruise, 3 Ir. E. R. 70 ; Thompson (o) Petre v. Peti-e, 1 Drew. 397, per Cur. V. Simpson, 1 Dru. & War. 459 ; Att.-gen. {p) Incorp. Soc. v. Richards, 1 Dru. & V. Flint, 4 Ha. 147 ; Law v. Bagwell, 4 Dru. War. 258 ; Att.-gen. v. Persse, 2 Dru. & & War. 398 ; Petre v. Petre, 1 Drew. 393 ; War. G7 ; Commis. Charitable Don. v. Wy- Hicks V. Sallitt, 3 De Ge. Mac. & Gor.782; brants, 2 Jo. & Lat. 182; but see Att.-gen. CH. 12. s. III.] mortgages: church property and advowsons. 403 21. Filing a bill, tlioiioli no subpoena be served, is sufficient to prevent the operation of the statute {q). The appointment of a receiver by the Court does not prevent the bar under the statute against a stranger ; but such an appointment prevents, at least in equity, time from running in fiivour of a stranger to a suit (r). 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 Avhose right to bring a suit may not be barred by the Act (/). 22. The existing rule as to mortgagees in possession is adopted. The mortgagor is to be barred at the end of twenty years from the time of taking possession, or from the last written acknowledgment, and when there shall be more than one mortgagor, such acknowledg- ment, if given to any of such mortgagors or his or their agent, will be effectual ; but where there is more than one mortgagee, such acknowledgment, signed by one or more of such mortgagees, will be cifectual only as against the party or parties signing {t). The acknowledgment may be made out by letters or deeds (u), but a transfer of a mortgage, subject to the equity of redemption, has been held not to amount to an acknowledgment (.r). The provision is retrospective (?/). 23. Where the mortgagee is also tenant for life of the land, the statute does not be2;in to run against the riffht to the mortg-asfe until his death ; and it is said that the same rule applies Avhere the mort- gagee is one of several tenants in common of the land {z). 24. No spiritual or eleemosynary corporation sole can recover any land or rent unless within two incumbencies and six years after a third person shall have been appointed, or within sixty years if those periods shall not amount to sixty years (a). 25. And no advowson can be recovered by any person after three clerks in succession have held the same adversely, if the times of such incumbencies together shall amount to the full period of sixty years ; and if not, then for the period of sixty years in the whole (h). In- cumbencies by lapse will be deemed adverse, but not incumbency in consequence of promotion to a bishoprick (c). And every person whom the owner of an estate tail in the advowson might have barred, V. Magdalen Col. 18 Bea. 220 ; Att.-gen. v. (s) S. 27 ; Thompson v. Simpson, 1 Dru. Wilkins, 17 Bea. 285; Att.-gen. v. Davey, & Wai'. 439; Sibbering v. Lord Balcarras, 19 Bea. 521. ' 19 L. J., N. S., 252. (q) Boyd v. Higginson, 1 Flan. & Ke. (0 S. 28; see the sect, as to a divided 603; HaiTison v. Duignan, 2 Dru. & War. part; Browne v. Bishop of Cork, 1 Dru. & 295 ; Forster v. Thompson, 4 Dru. & War. Wal. 700 ; Hyde v. Dallaway, 2 Ha. 528. 303 ; Purcell i\ Blennerhasset, 3 Jo. & Lat. (w) Sup. 24; Can-oil v. Darcy, 10 Ir, E. R. 321; (x) Lucas w. Dennison, 13 Sim. 584. Bennett v. Bernard, id. 584 ; Moms v. (y) Batchelor v. Middleton, G Ha. 75. Ellis, 7 Jur. 413; DLxon v. Gayfere, 17 (~) Wynne v. Styan, 2 Phil. 303 ; Hyde Bea. 421 ; Hele v. Ld. Bexley, 20 Bea. 127. v. Dallaway, 2 Ha. 528. (r) Wrixon v. Vize, 3 Dru. & War. 123. (a) S. 29. {b) S. 30. (c) S. 31. c c 2 404 MONEY. LIEN. LEGACY BECOME A TRUST. [CH. 12. S. III. will be deemed to claim through him, and the right will be limited accordingly {d). But no advowson is to be recovered after one hundred years from the time at which a clerk has obtained possession of such benefice adversely to the claimant, or of some person through whom he claims ; or of some person entitled to some preceding estate or interest under the same title, unless a clerk has subsequently obtained possession of such benefice on the presentation of the claimant, or of some such person as before mentioned (e). 26. No money secured upon any land or rent, at law or in equity, or any legacy, is recoverable, but within twenty years after a present right to receive the same has accrued to some person capable of sivins a discharge for or release of the same, unless in the meantime some part of the j)rincipal money, or some interest thereon, has been paid, or some acknowledgment (/) of the right thereto shall have been given in writing, signed by the person by whom the same shall be payable, or his agent, to the person entitled thereto or his agent; and in such case the twenty years are to run from such payment or acknowledgment {g) ; which provision relates not to the land, but to actions brought to recover the money ; and those actions, in the case of mortgages, are either upon the covenant usually inserted in the mortgage deed or on the bond which commonly accompanies it (Ji) ; but still it has been held that this part of the statute may be pleaded to a bill of foreclosure, which, it is said, in effect is a proceeding for the recovery of the money secured by the mortgage (z), but this view has been doubted (/t). A vendor's lien for purchase-money has been held to be a charge of land within this provision (Z). A judgment creditor of more than twenty years' standing who has neglected to take any step, cannot claim even the benefit of a suit instituted within the twenty years by another creditor on behalf of himself and all the other creditors, in which a decree was obtained within the twenty years (m). 27. Where a fund has ceased to bear the character of a legacy, and has assumed the character of a trust fund, although it is still vested in the executor or his representative, a bill filed for the fund will be {(l) S. 32. {e) S. 3.3. War. 482 ; Knox v. Kelly, 6 Ir. E. R. 279 ; (/) Toft r. Stephenson, 7 Have, 1. Burrell v. Ld. Egi-emont, 7 Bea. 205. [g) S. 40 J Phillipo v. Mannings, 2 My. {h) See 5 Ad. & El. 296. & Cra. 309 ; Ld. St. John v. Boughton, 9 (i) Dearaian v. Wyche, 9 Sim. 570 ; Du Sim. 219 ; Dillon v. Cruise, 3 Ir. E. R. 70; Vigier v. Lee, 2 Ha. 32G; Sinclair v. Jack- Foptescue v. M'Kone, 1 Jeb. & Sym. 341 ; son, 17 Bea. 405, Palmer v. Algeo, id. 501, 586 ; Hill v. Sta- {li) Wrixon v. Vize, 3 Dru. & War. 104. well, ib. 389 ; O'Hara v. Creagh, 1 Long. (/) Toft v. Stephenson, 7 Hare, 1 ; 1 De & Tow. 65 ; Vincent v. Willington, ib. 456 ; Ge. Mac. & Gor. 28; see 5 De Ge. Mac. & Morrough v. Power, 1 Long & Tow. 644, Gor. 735. as to 8 Geo. 1, c, 4, Ir,; Wrixon v. Vize, 3 (»«) Berrington v. Evans, 1 Yo. & Col. Dru. & "War. 104 ; Christian v. Devereux, 434 ; Toft r. Stephenson, 7 Hare, 1 ; see 12 Sim. 264; Hughes v. Kelly, 3 Dm. & O'Kelly r. Bodkin, 2 Ir. E. R. .361. en. 12. S. III.] DOWER, llENT, OR INTEREST. 405 considered as a suit for the administration of the fund, and not as a ^^^^^/i^ Z^o bill for a legacy, and tlicrefore it will not fall within this provision of the act ill) ; and it has been decided that the statute extends to legacies of personalty (o). 28. No arrears of dower, nor any damages on account of such arrears, can be recovered by action or suit for more than six years next before the commencement of such action or suit (/j). And no arrears of rent (§') or of interest in respect of any money charged upon or payable out of any land or rent, or in respect of any legacy, or any damages in respect of such arrears of rent or interest, can be recovered but within six years next after the same respectively became due, or next after an acknowledgment of the same in writing has been given to the person entitled thereto, or his agent, signed by the person by whom the same was payable, or his agent (r). But the possession of any prior incumbrancer within one year before an action or suit brought by any person entitled to a subsequent incum- brance enables the latter to recover the arrears of interest during the whole time that such prior incumbrancer v/as in such possession, although it exceeded six years {s) ; but to bring a case Avithin this exception, the prior incumbrance must affect the interest upon which the other incumbrance is a charge it). 29. This last section, as to an annuity, provides for the case where the title to the annuity is not disputed, but the distress is made for the arrears due (?<). 30. And after some conflict of opinion, it appears to be decided that this section includes judgments as well as mortgages, and where the right to recover against the real estate is barred, the right to recover against the personal estate was said to be also barred {x). 31. This section (42) extends to interest on money charged on land, which falls within s. 40 (y), and it also extends to interest on judgments (z), and also to a mortgage with a covenant for payment, (/t) Phillipo V. Mimnings, 2 My. & Cra. 303 ; Burne v. Robinson, 1 Dm. & Wal. SOS) ; Young v. Ld. Waterpark, 13 Sim. 204; 088; Mellish w.Brooks,3 Bea. 22 ; Hodges i-\ Roch V. Ciillen, G Ha. f>31 ; Playfair v. Croydon Canal Co., 3 Bea. 86; Hollands. Cooper, 23 L. J. 341. Clark, 1 Yo. & Col. C. C. 151 ; Hughes v. . (o) Sheppard v. Duke, 9 Sim. 567 ; see Kelly, 3 Dru. & War. 482. Reporters' note, 2 My. & Cra. 315. In (0 Vincent v. Going, 1 Jo. & Lat. 697. Campbell v. Sandford, 8 Bli., N. S., 622, \xi) James v. Salter, 3 Bin., N. C, 544. Lord Brougham observed, that the late Act (.r) Kealy ?;. Bodkin, 1 Sau. & Scul. 211, had settled periods of limitation in other contra ; but see O'Kelly v. Bodkin, 2 Ir. cases, but there was none fixed with respect E. R. 361; 3 Ir. E. R. 390; Henry v. to a legacy. Smith, 2 Dru. & War. 381 ; Du Vigier v. {})) S. 41. Lee, 2 Ha. 326. (q) See Paget v. Foley, 2 Bin., N. C. , 679. {y) Burne v. Robinson, 1 Dru. & Wal. 688. (r) Barrett v. Birmingham, 1 Flan. & (z) Henry v. Smith, 2 Dru. & War. 381 ; Ke. 550. Du Vigier v. Lee, 2 Ha. 326. (s) S. 42 ; Drought v. Jones, 2 Ir. E. R. c c 3 406 MODUSES AND EXEMPTIONS. [CH. 12. S. III. which does not fall within the later act of 3 & 4 W. 4, c. 42 (a) ; and tithe-rentcharge is rent within this section (b) (I). 32. By the 2 & 3 Will. 4, c. 100, a modus or exemption from tithes is established against the King, the Duke of Cornwall, and all persons not being a corporation sole, or body corporate, whether temporal or spiritual, upon evidence of the render of such modus, or of the enjoyment of the land, without any render of tithes or other matter in lieu thereof, for tldrtij years next before the time of such demand, unless, in the case of a modus, the actual render of tithes or other thing differing from the modus claimed, or, in case of exemption, the render of tithes or other matter in lieu thereof, shall be shown to have taken place at some time prior to such thirty years, or that such payment of modus was made or enjoyment had by agreement by deed or writing ; and if such proof in support of the claim shall be extended to the full period of sixty years next before the time of such demand, the claim shall be deemed indefeasible, unless it shall be proved that such payment of modus was made or enjoyment had by some agree- ment by deed or writing (c). And in the case of a claim by any archbishop, or other corporation sole, whether spiritual or temporal, every such prescription shall be indefeasible, where the render or enjoyment has been during two successive incumbencies, and for three years after the appointment and institution or induction of a third person thereto : provided that the whole time shall not be less than sixty years, which is to be made up, and also the further period of three years after the appointment and institution or induction of a third person, unless it shall be proved that such render or enjoyment was had by some agreement by deed or writing {d). 33. Every composition for tithes confirmed by decree in England (a) Hughes v. Kelly, 3 Dru. & War. 428; Sligo, 5 Jr. C. R. 46. IMac. & Gor. 650; Du Vigier v. Lee, 2 (c) S. 1 ; Salkeld i;. Johnston, 1 Ha. 196; Ha. 326 ; Hunter v. Nockolds, 1 Mac. & Fellows v. Clay, 4 Q. B. 313, as to a lay Gor. 640; Forsyth r. Bristowe, 8 Ex. 716; landowner. see now 16 & 17 Vict. c. 113, s. 3, and Sch. {d) S. 1, & s. 4 & 5; Dean and Chap, of A., and s. 19, 20. 22. 21-25. 148-154. 166- Ely v. Cash, 15 Mee. & Wei. 697 ; Dean 189 ; 19 & 20 Vict. c. 97. s. 10-14. and Chap, of Ely v. Bliss, 2 De Ge. Mac. (ft) Ecclesiastical Commissioners v. Ld. & Gor. 459. (I) The 19 & 20 Vict. c. 97, s. 10 (and sees. 11, 12, 13, & 14), provides that no person or persons entitled to any action or suit within the above sections 40, 41, & 42, shall be entitled to any time beyond the period fixed by reason of such person, or some one or more of such persons, being beyond the seas, or by reason of imprisonment. Sections 40, 41, 42 contain no such savings, but the provision in 16 & 17 Vict. c. 113, s. 20, which confines to 20 years actions for rent upon an indenture of demise, or upon bond or other specialty, or upon any judgment, &c., does contain a saving for disabilities, which also is referred to and acted upon by the 19 & 20 Vict. c. 97, s. 10; yet s. 20 of the 16 & 17 Vict. c. 113, provides that notliing in that Act contained shall alter the period of limitation of any action given by any statute where the time for bringing such action is or shall be by any statute specially limited. CH. 12. S. III.] MODUSES. LIGHTS. 407 in a suit to which the ordinary, patron, and incumbent were parties, and not since departed from, is made valid in law, and no modus or exemption is within the Act, unless the same existed, and had been acted upon at the time of or within one year before the passing of the said Act {e). 34. But the periods during which the lands have been held by the titheowner or lessee thereof is to be excluded in the computation of time (/) ; and there is a saving for disabilities, &c., during which time is not to count ((/). 35. This Act has now but a limited operation ; for under a saving in the Act of suits to be commenced within a year, most of the dis- puted moduses have already been decided upon, and the Tithe Com- mutation Act contains due provision for the allowance or trial of moduses (h). After a great difference of opinion, it has been decided that the simple fact of enjoyment of the discharge for the prescribed time is all that need be pleaded and proved as an answer to a demand for tithes (i). 36. It still remains to state, shortly, what period of time establishes the claims to light, rights of common and of way, and the like. As to light, the access and nse of it for any house or building for twenty years without interruption establishes an absolute and indefeasible title to it, notwithstanding any local custom to the contrary, unless the enjoyment was by consent expressly given by deed or writing (/t). This, therefore, puts the title simply upon enjoyment by the person claimino; the risrht. But where a house and garden were in the possession always of the same person, but the garden was held under a yearly tenancy, and the access of light to the house was over the garden, the enjoyment during the tenancy was held not to establish the right in twenty years, for the Act converts into a right such an enjoyment only of the access of light over contiguous land as has been had for the whole twenty years m the character of an easement, distinct from the enjoyment of the land itself The interruption (I) to operate must have been one submitted to for one year after the party interrupted had notice thereof, and of the person making or authorising the same to be made (m). 37. Rights of common or other profits a prendre (except tithes, (e) S.2; Thorpe v. Plowden, 17 Q. B.538. Company v. Jay, 3 Q. B, 109; extends to (y) s 5 ((/) S 7 custom of London. (ft) 6'& 7 W. 4, c. 71, s. 44,' 45 ; We- (^) P^^^^^^^^^' ^^' ]) ^^''^'^ ^^''^'' ^^'•' therell .. Bellwood, 3 Yo. & Col. 319; 6 Ex G30, winch consider. w +, 11 w-i-ii -J o^o (m) Hai'tridge t'. Warwick, 3 Ex, 552; Wetherell r. Weighill, zrf. 243. c, \ -r,- t j u t a^i «, -pi nAU ■ ° ' S. 4, Pachards v. Fry, 7 Ad. & LI. Mo , (i) Salkeld v. Johnston, 1 Ha, 196 ; 2 p^gj^t v. Thomas, 11 Ad. & EL 088 ; 8 Cla. C. B. 749 ; 2 Ex, 256 ; 1 Mac. & Gor. 242 ; ^ ^m. 231 ; Parker v. Mitchell, 11 Ad. & Fellowes v. Clay, 4 Q. B. 313; Ld. Stamford j;i_ ygg . Wright v. Williams, 1 Mce. & Wei, V. Dunbar, 13 Mee. & Wei, 822, 77 . ^ee note prefixed to 8 Ad. & El. ; Lowe (S) 2 & 3 Will. 4, c, 71, s, 3, Salters' v. Cai-penter, 6 Ex. 831. c c 4 408 EIGHTS OF COMMON, WAY, ETC. [CH. 12. S. III. rents, and services) are not placed upon so favourable a footing. But where such right has been actually enjoyed for thirty years (n) by any jjcrson claiming right thereto Avithout interruption, it cannot be defeated by showing only that it y^^^ first enjoyed at any time prior to such thirty years ; but such claim may be defeated in any other way by which the same Avas before the Act liable to be defeated: when such has been so enjoyed for .sixty years, the right thereto becomes indefeasible, unless it was taken and enjoyed by some agree- ment expressly made by deed or writing (o). 38. Rights of way or other easement, watercourses, or the use of water, are placed on the same footing with rights of common, except that the terms of enjoyment are respectively twenty years and forty years, in lieu of thirty years and sixty years (;?). As regards in- terruption of any of these rights, it means an obstruction by the owner of the locus in quo, but it amounts to nothing unless acquiesced in for a year {q). 39. The Act provides that time shall not be computed whilst any person otherwise capable of resisting the claim is under a disability, or tenant for life, or whilst any action or suit has been pending and diligently prosecuted until abated by death, except only in cases lohere the right or claim is thereby declared to he indefeasible (r). And Avhere the land or water over which any such way or other convenient [qu. easement], watercourse, or use of water has been enjoyed or derived, has been held for life or years exceeding three years from the granting thereof; the time of enjoyment during the continuance of such term is to be excluded in the computation of the forty years if the claim shall within three years after the end of the term be resisted by the reversioner {s). 40. The enjoyment must have been of the easement as such, and of right for a continuous period of twenty years next before the suit without such interruption as is defined by the Act. Enjoyment in consequence of unity of possession, so that no person could complain of the user of a road, is not sufficient {t\ and an interval during which by unity of possession there was no viser cannot be cut out, but may defeat the claim by breaking the continuity of the enjoy- ment for the prescribed period before the action brought ; therefore an enjoyment from 1800 to 1855 when the action was brought did not prevail, because there was a unity of possession from 1843 to {n) Can- v. Foster, 3 Q. B. 581. [q) 4 Mee. & Wei. 497, s. 4, of statute. (o) S. 1, Bailey v. Appleyard, 8 Art. & El. 0) S. 7 ; Sir L. Palk v. Skinner, 17 JUr. 161 ; Clay v. Tliackrali, 9 Car. & Pa. 47 ; 372. Mill V. Commissioner of New Forest, 18 C.B. («) S.8; Sir L. Palk v. Skinner,! 7 Jur. 372, 60, as against the Crown. (t) Onley v. Gardiner, 4 Me. & Wei. 496 j (;;) S. 2, Tickle v. BrowTi, 4 Ad. & El. Clay v. Shackeray, 2 Moo. & Eo. 244 ; 360 ; Lawson v. Langley, id. 800 ; Payne v. Clayton v. Corby, 2 Q. B. 813 ; Winship v. Shedden, 1 Moo. & Eo. 382; Parker r. Hiidspetli, 10 Ex. 5. Mitchell, 10 Ad. & El. 788. CH. 12. S. III.] SAVINGS: EXCLUSIONS. 409 1855 (u). No presumption is allowed in favour of the claim, upon proof of an exercise or enjoyment for a less period than that required by the statute (.r). 41. Section 7, we have seen in express terms, excludes the time that the person (who is capable of resisting the claim) is tenant for life. During the period of a tenancy for life the exercise of an ease- ment will not affect the fee : in order to do that, there must be that period of enjoyment against an OAvner of the fee ( ?/). But s. 4 and 7, are to be read together, so that the period for a right of common, for example, is to be thirty years user before the action, excluding in the computation of these thirty years any tenancy for life ; that is, thirty years' enjoyment either wholly before the tenancy for life if it be still subsisting, or partly before and partly after, if it be ended {£). 42. The statute nowhere contains any intimation that there may be different classes of rights qualified and absolute, valid as to some persons, and invalid as to others. From hence it has been concluded that an enjoyment of twenty years, if it give not a good title against all, gives no good title at all : and it was accordingly held, that as an adverse user of right for twenty years or forty years against a bishop's lessee for life might be disputed by the bishop within three years after the expiration of the lease, it gave no title against the bishop, and consequently, not binding all, it bound no one, not even the lessee against whom the right had been adversely enjoyed («). 43. The Act relieves a party from the necessity of proving the right from time immemorial, and allows as an equivalent the proof of actual enjoyment for thirty years, so that no presumption is admissible (b). 44. As far as these provisions bear upon title, a purchaser of course should see that the enjoyment of the easement has been not only for the term required by the Act, but that the savings or exclusions of time prescribed by the Act have not prevented the right from becoming absolute, and a purchaser would therefore have to be satis- fied of the nature of the estates of the owners of the land or water over or from which the rights have been enjoyed, and it should be borne in mind that every one of the rights may be defeated by show- ing that it was enjoyed by agreement in writing ; and that the limited bars of thirty years and twenty years are open to impeachment in any other way by which such a claim can be defeated at law than the showing that it was first enjoyed prior to such thirty years or twenty years. (m) Battishill v. Reed, 18 C. B. G06. (ff) Bright v. Wall, 1 Cro. 3Ie. & Ro. 211. (.t) S. 6 ; see 1 Cro. Me. & Ro. 222. {h) Bailey v. Appleyard, 3 Nev. & Pe. (2/) Bright v. Walkei', 1 Cro. Me. & Ro. 260; 8 Ad. & EI. 101 ; note id. folIo\\-ing, 222, ^er Cur. p. 778. (r) Clayton v. Corby, 2 Q. B. 813. 410 DEEDS: CONTINGENT INTERESTS: TERMS OF YEARS. [CH. 12.S.IV. SECTION IV. OP THE NEW LAWS RELATING TO DEEDS AND TERMS OF YEARS ; AND POWERS. 1. 8^9 Vict. c. ] 06; lease for a year ,- feoff"- 2. 8 4* 9 Vict. c. 1 12 ; merger of attendant merit ; leases, assignments, surrenders; terms, exchange, partition: "give," or 3. Object of the Act. "grant"; stranger to deed; indent- ' 4. }2 S( 13 Vict. c. 26; 13 Sfli Vict. c. 17 ; ing deed ; conveyance of contingencies, \ giving validity to certain void leases 6)"c.; disclaimer by married woman; ' under powers. contingent remainders saved; merged i 5. Powers of sale in Court of Chancery reversion. , over settled estates. 1. There are still fom- Acts to be referred to. By the jSrst (a), a lease for a year is rendered unnecessary {b) ; a feoffment (unless made under a custom by an infant) is required to be evidenced by deed, and a partition and exchange (except of copyholds), and a lease re- quired by law to be in writing (c), and an assignment of a chattel interest (not being copyhold), and a surrender in writing of an interest in any hereditament (not being copyhold), and not being an interest which might by law have been created without Avritlng, are made void imless made by deed {d). But a void lease under this statute because not made by deed, yet so far regulates the holding as to create a tenancy from year to year, determinable by half a year's notice, and if the tenancy endure for the term attempted to be created, the tenant can be evicted at the end of the term without any notice to quit {e). A feoffment is no longer to have a tortious operation ; an exchange or a partition is not to imply any condition in law ; the word f/ive or grant is not to imply any covenant in law, except so far as by force of any Act of Parliament it may imply a covenant (/) (I). Under an indenture, an immediate estate and the benefit of a condition or cove- nant may be taken, although the taker be not named a party, and a deed purporting to be an indenture need not to be indented (^). These several provisions refer to deeds executed after the 1st of October 1845. Contingent interests, possibilities coupled with an interest, («) 8 & 9 Vict. c. 1 06 ; 4 & 5 Vict. c. 21 ; .s. 10 as to receipts of trustees, were not re- 7 & 8 Vict. c. 76, and observe the time of enacted. its duration (Doe v. Moffat, 15 Q. B. 257). (6) S. 2- By s. 1 of 8 & 9 Vict. s. 8, as to contingent (c) Stratton v. Pettit, 16 C. B. 420. remainders becoming executory devises, was {d) S. 3. wholly repealed; and s. 9 as to convey- (c) Tress r. Savage, 4 E. & B. 36. ances of legal estates in mortgagees ; and (/) S. 4. {g) S. 6. (I) Upon a parol demise there is no implied contract for a good title, although there is for quiet enjoyment, Bandy v. Cartwright, 8 Ex. 913. >t.£^ CH.12. S.IV.] CONTINGENT EEMAINDERS: ATTENDANT TERMS. 411 and rights of entry (I) may be conveyed by deed, and a married woman may disclaim by deed (/t), which provisions are to operate after the 1st of October 1845. And a contingent remainder existing at any time after the 31st of December 1844, is to be, and if created before the passing of the Act, is to be deemed to have been capable of taking effect, notwithstanding the determination by forfeiture, sur- render, or merger, of any preceding estate of freehold, in the same manner as if such determination had not happened (/) ; and finally, Avhen the reversion on a lease shall, after the 1st of October 1845, be surrendered, or merge, the next estate is to be deemed the reversion expectant on the same lease, to the extent and for the purpose of preserving such incidents to, and obligations on, the same reversion as but for the surrender or merger would have subsisted (/i) ; and this provision is retrospective {J). 2. The second Act (m) provides that every satisfied term of years, which either by express declaration or by construction at law, shall, upon the 31st of December 1845, be attendant upon the inheritance or reversion of any lands, shall on that day absolutely cease and deter- mine, but with an exception, that every such term which shall be so attendant by express declaration, although made to cease, shall afford to every person the same protection against every incumbrance, charge, estate, right, action, suit, claim and demand, as it would have afforded to him if it had continued to subsist, but had not been assiirned or dealt with after the said 31st of December 1845, and shall for the purpose of such protection be considered in every court of law and equity to be a subsisting term {ii). And it is further provided, that every term of years then subsisting, or thereafter to be created, becoming satisfied after the 31st December 1845, and which, either by express declaration or by construction of law, shall after that day become attendant upon the inheritance, shall immediately upon the same becoming so attendant absolutely cease and determine (o). 3. The object of this Act appears to be to merge all attendant terms, but to preserve to the persons entitled the protection which a term would have afforded to them, where, upon the 31st December 1845, it was attendant by express declaration. But even this is a limited protection, for it gives not such protection as a further assign- ment of it, for a purchaser, would confer, but such protection as it would have afforded if it had continued to subsist, but had not been (/i) S. 6, 7. (i) S. 8. (m) 8 & 9 Vict. c. 112. (A) S. 9; compare the provisions with {n) S. 1. those of the 7 & 8 Vict. c. 76, and keep in (o) S. 2 ; see 8 & 9 Viet. c. 119, for the view the period during which the latter will shortening conveyances and covenants ; and opei'ate. 8 & 9 Vict. c. 124, for the like object as to {I) Upton r. Townend, 17 C. B. 50. leases. (1) A right of entry for a condition broken is not assignable under this statute, «e»J&?e Hunt V , Remnant, 9 Ex. 635. ^J-^^fl J-U-i—r^ / J J S^ ^ ' yi.»^/^^ 412 POWERS OF LEASING AXD OF [CH. 12. S. IV. assigned or dealt with after the 31st December 1845. This protec- tion will, of course, extend to a new purchaser, althougli the term assigned to attend was left undisturbed (p). It is settled that, under the Act, a satisfied term attendant by express declaration on 31st December 1845, ceased on that day ( q), although its protection con- tinues. 4. The third Act, with a supplemental Act (r), makes a bond fide lease under a power upon which there has been an entry by the lessee, but which is invalid by reason of some deviation from the terms of the power, operate as a binding contract, save as to any necessary varia- tion to comply with the power, but the lessee is bound to accept a confirmation of the lease by the reversioner as it stands. A memo- randum of confirmation followed l^y acceptance of rent is to give validity to a lease under a power. And leases granted prematurely under powers are rendered valid where the lessor's estate continues after the time when such a lease might have been granted under the power. 5. Powers of selling settled estates are given by the 1 9 & 20 Vict. c. 120, which came into operation on the 1st of November (5). The powers extend to every settlement, however created (#), and whenever created (?<), and to estates of every tenure (.r), except inalienable estates tail created by Act of Parliament, or where the reversion is in the Crown (?/). The power is vested in the Court of Chancery, and extends to timber (not being ornamental) {£) ; but of course, if the estate is sold, all the timber may be sold with it. Due provisions are made as to sales of land for building at a rent («), for the exception of mines (i), and for the dedication of land for roads, gardens, and the like (c). The conveyance is to be executed by such persons, and it is to have such operation as the Court shall direct {d). The Act pro- vides for the necessary consents (e), and notices of application (/), and of the exercise of the powers {fj). The money is to be paid to trustees approved of by the Court, or into Court, and is to be applied in the redemption of land-tax, or of any incumljrauce on any part of the settled estates, or the purchase of other estates, to be settled in the same manner as the estate sold was settled, or the payment to any per- son absolutely entitled (A). In the meantime the money is to be invested, and the interest paid to the person who would have been entitled to the rents of any property purchased (?'). The Act is not (/>) Freer v. Hesse, 17 Jur. 177 ; 4 De VI & 13 Vict. c. 110) ; 13 & 14 Vict, c, 17 ; Ge. Iliac. & Gor. 495; as to dower, sec and Sugd. Stat. c. 6, for the exceptions, &c. consider In re Sleeman 4, Ir. Ch. R. 5G:3. (.s) S. 40. (0 S. 1, 26, 27. ( sale ; purchaser not liable : Lodrje v. 11. J Lyseley : Foster \. Blackstone. 12. Purchaser ivithout notice protected by a term. 13. After-purchased lands bound. 14. Judgments defeated by an appointment. 1 5. Judgment creditors under a decree. IG. Old judgments : equity of redemption of a term not bound. 17. Purchaser ivith notice bound by un- docketed judgment. 18. Moiety only bojmd, U7iless two judg- ments of the same term. Judgments under the New Law : 1 9. Bind the ivhole estate, legal or equitable, and copyholds and general poivers — An actual charge and bind issue and others tvho could be barred. 20. Palatine courts registry : inferior court.';. 21. Decrees, ^c. equal to judgment. 22. Operation of Act. 23. Leaseholds bound at law and in equity. 2A. So an annuity. 414 JUDGMENTS UNDER THE OLD LAW. [CII. 13. S. 1. 25, 26, 27. 28, 29, 30, 3L 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. And a mortgage : mortgages paid off. 49. And binds surviving joint tenant. Operation on poivers. 50. And on estates tail and remainder. 5L Operation of act as a charge. 52. But j)}-ior equitable mortgage, or the 53. like, preferred. 54. To bind a purchaser must he registered: 55. nature of registry. 56. And re-registered every five years : 57. explained. 58. Shaw V. Neale ; Beavan v. Ld. Oxford. 59. Notice not binding of judgment not re- 60. gistered or re-registered. 61. Effect of notice under 1 1^ 2 Vict. c. 110, and 2 Vict. c. 11 — Purchaser pro- tected — And under 3 (^ 4 Vict. c. 82. 62. Operation of statutes — When registered 63. judgments bind — Judgment after jmy- 64. ment of pmr chase-money still not bind- 66. ing — Effect of contract. 67. Purchaser without notice, a mortgagee, 68. protected. 69. Trust estate, how far liable. 70. Trust for sale, purchaser not liable. 71. Purchaser without notice protected by a 72. prior legal estate. Judgments not defeated by an appoint- 73. ment : purchaser. 74. Leaseholds : equity of redemption. Copy/iolds. 75. Search for judgments. 76. Although a register county. 77. Judgments against tenant in tail. 78. Purchasers before the 1st of October, 79. IS'3S, protected. 80. Wheti search should be made. 1 81. Forfeiture of charge by taking person in execution. Judgments against bankrupts. Sloper V. Fish. Sharpe v. lioahde. Search against bankrupts. And against insolvents. Mistakes in registry. Contribution. Remedy against any part. Court may enter up satisfaction. Search for insolvency and bankruptcy. Enrolment of proceedings. Protection to purchasers against unre- gistered certificates of appointment of assignees. Of certificate of conformity. Search for lis pendens. Search for Crown debts, ^'c. Protection against Croum debts hy term. Accountant's estate, how charged. What sales binding on Croum. Simple contract debtor to Crown. Notice, how far material. Collector of taxes. Search for substitution for fines and re- coveries deeds. Search of registry of deeds. Wills registered or unregistered Leaseholds. Where registry unnecessary. Judgments — Binding leaseholds. When search should be made. Search for annuities. Solicitor's liability for neglect. Chief clerk's and registrar's liability. Inquiry of tenant. 1. Now tliat a judgment is a specific charge on the land, the practice in regard to the abstract must be altered (a). A seller's attorney can no longer safely keep back a list of judgments, but is bound to set it forth on the abstract, like every other charge upon the property. 2. By the law before the new acts, where any judgment was entered up after the purcliase-money, being an adequate considera- tion, was actually paid, equity relieved the purchaser against it although it was entered up previously to the execution of the con- veyance ; the vendor being in equity only a trustee for the purchaser, and a judgment being merely a general security, and not a specific lien on the land, and this equity prevailed even where the judgment creditor had not notice of the contract ih). (a) Richards v. Barton, 1 Esp. 268. lb) Nels. C. R. 184; Finch v. Earl of AVinchelsea, 1 P. Wms. 278 ; 10 Mod. 468 ; 11 Vin. Ab. 118; Kennedy v. Daly, 1 Sch. CH. 13. S. I.] JUDGMENTS UNDER THE OLD LAW. 415 3. Where a man gave, 1, a warrant of attorney to enter up judg- ment to one, and then, 2, mortgaged to another in fee, and then, 3, contracted to sell to a purchaser Avithout notice, and 4, a judgment was afterwards entered up on the warrant of attorney, and then, 5, the seller and the mortgagee in fee conveyed the fee to the purchaser Avithout notice, and a part of the purchase-money was secured to the seller by a legal term of years, and then, 6, notice of the judgment was given to the purchaser, whilst part of the money was still unpaid ; but the purchaser paid off the mortgage and took a surrender of the term [which appears from the papers in the cause], Leach, V. C, held that as the greater part of the purchase-money was paid, and the rest secured by the term when the notice was given, the judgment creditor had no remedy in equity against the fee. The purchaser was then the mortgagor for the term. The notice therefore was nothing more than notice to the mortgagor that a person to whom he had granted a legal term, by way of mortgage, Avas indebted on judgment ; but a judgment is, at law, no lien upon a legal term ; and when the interest of the debtor is legal, a judgment is no lien in equity. Notwithstanding this judgment, the debtor could well assign his legal term at his pleasure. If there was no lien upon the term in the hands of the debtor, there could be no lien upon the term in the hands of his assignee, unless he bought with notice (c). 4. The operation of a contract upon judgments, before the recent Acts, seems to have stood thus : a contract for sale would prevail over a subsequent judgment creditor in equity (d), but the creditor would have a legal right under his judgment, and he would have an equitable right to so much of the purchase-money requii'ed to pay his debt as remained unpaid; to the extent of the money paid before his judg- ment he would be bound in equity. But if the purchaser paid any part of the purchase-money to the exclusion of the judgment creditor, after he had notice of the judgment, he would still be bound to that extent by the debt {e). 5. As a purchaser under the contract was in equity owner of the ^/^^ /s Z^ estate, of course Ms judgments bound it as Avell before as after he had completed his purchase (/) ; and this is still the law. 6. A purchaser who at the time of his contract was seised of the legal estate as a mortgagee Avas not bound by judgments entered up subsequently to the mortgage, for an equity of redemption Avas not Avithin the clause of the statute of frauds, Avhich Avill shortly come & Lef. 373 ; Prior v. Penpraze, 4 Pri. 09 ; %h. 382 ; Trye v. Earl of Aldborousli, 1 Ir. Llo. & Go. t. S. 262 ; Whitworth v. Gau- C. R. 666. gain, 1 Cra. & Phi. 325 ; 3 Ha. 416 ; 1 Phil. (c) Forth i\ Duke of Norfolk, 4 Mad. 505. 728 ; Abbot v. Stratton, 3 Jo. & Lat. 603; \d) 4 Sim. 75. (e) 4 Mad. 505. Langton v. Horton, 1 Ha. 549; Leake v. (/) Baldwin v. Belcher, 1 Jo. & Lat. 18; Leake, 5 Ir. E. R. 361 ; Massey v. Batwell, AValcott ?;. Lynch, 13 Ir. E. R. 199. 416 JUDGMENTS UNDER THE OLD LAW. [CH. 13. S. I. -^ under our consideration, and it Avas tlierefore not extendible {g), and as the purchaser by the contract acquired equal equity with the judgment creditor, and had already got the legal estate, his title could not be impeached. But it was otherwise if the purchaser had notice of the judgments, for the judgment was a lien vipon the estate in equity (Ji), and conferred a right on the creditor to redeem a prior mortgage or other incumbrance {i) ; therefore a mortgagee purchasing the equity of redemption was bound by judgments of Avhich he had notice, although they were entered up subsequently to the mortgage (Ji). 7. This doctrine prevailed before the statute of frauds ; and by the tenth section of that statute execution might be delivered upon any judgment, statute, or recognizance, of all such lands, &c., as any other person or persons should be seised or possessed of in trust for him against whom execution was sued, in the same manner as if he had been seised of such lands, &c. of such estate as they be seised of in trust for him at the time of the execution sued, and should be held dis- charged of the incumbrances of the trustee. But if a trustee had conveyed the lands before execution sued, though he vras seised in trust for the defendant at the time of the judgment, the lands could not be taken in execution (/). The statute only extended to clear and simple trusts for the benefit of the debtor. Therefore a trustee of a term of years for securing an annuity, and subject thereto for the grantor, was not a trustee within the statute (/?z). Where an estate was conveyed to trustees to sell, and pay debts, kc, and to pay the surplus of the monies to the grantor, and the receipts of the trustees were made discharges to the purchasers, the general opinion was, that the purchaser was not bound by any subsequent judgments of which he had even express notice. And in Lodge v. Lyseley (n), a father tenant for life and his son tenant in tail in remainder, joined in conveying the estate to trustees to sell, and to pay 30,000 /., part of the purchase-money, to the father, and the residue to the son. The trustees' receipts were made discharges, and they contracted to sell the estate, and judgments were afterwards entered up against the father. The V. C. held that the purchaser could not be affected by {g) Lyster v. Dolland, 1 Ves. j. 431 ; 3 (/) Hunt v. Coles, Com. 226 ; Higgins v. Bro. C. C. 478 ; Burden v. Kennedy, 3 Atk. York Build. Cy. 2 Atk. 137 ; Harris v. Pugh, 739; Scott f. Scholey, 8 Ea. 467; lAIetealf 4 Bin. 335; 12 Mo. 577; Johns v. French, V. Scholey, 2 New R. 461 ; Doe v. Evans, 1 1 Hog. 450 ; Pratt v. Colt, 2 Free. 139, con- Crom & Me. 450; Gore u. Bowser, 3 Sma. Ira as to a trust estate descended (1673), for & Gif. 1 . which the statute provides a remedy ; see {h) Chiu-chill r. Grove, Nels. C. R. 89; 3 & 4 Will. 4, e. 104; Steele v. Phillips, 1 Ch. C. .35. Beat. 193. (0 2Ch.R.180; Anon. 2 Vent. 361, No. 2. (m) Doe v. Grecnhill, 4 Bar. & Al. 684; {h) Greswold v. Marsham, 2 Ch. C. 170; NulkestJ. Day, 10 Sim. 48; Digbyr. Irvine, Crisp. V. Heath, 7 Vin. 52, (E.) pi. 2 ; Tun- 6 Ir. E. R. 149. stall V. Trappes, 2 Sim. 286. (") 4 Sim. 70. Cir. 13. S.I.] OF JUDGMENTS BINDING A MORTGAGEE. 417 the judgments. His notion was, that it was of the essence of tlic trusts, wliich the son, as the purchaser, had a right to have performed, that tlie trustees should convey the legal estate, and give receipts for the jiurchase-money. In the later case of Foster v. Blackstone (o), a father conveyed his real estate to trustees to sell and pay off charges created by the son, and pay the surplus arising from sales in the father's life- time to him, and the surplus arising after his decease to the son, and to stand seised of the estates which should remain unsold in trust for the father for life, and after his decease for the son in fee. An annuitant of the son's, who had a judgment against him, claimed a lien on monies arising from sales made after the father's death, but the Master of the Rolls disallowed the claim. 12. As a mortgagee seised or possessed of a legal estate would not have been bound by judgments, so a purchaser, who obtained an assignment of a legal subsisting term of years to attend the inheri- tance, could protect himself against judgments, &c., if notice could not be proved on him or his agent. But a purchaser seldom relied upon a term, because notice may be inferred from very slight circum- stances. It remained undecided, whether an attendant term could be seised under the 10th section of the statute of frauds, but the purchaser was clearly safe where he had procured an assignment of the term before execution sued (p), so that the question was not very important as far as regarded purchasers. Of course a man could not protect himself against his own judgment by an attendant term, for the fee would be extendible (q), and the trustee of the term would become a trustee for the judgment creditor. But the statute did not enable the judgment creditor to take in execution an equity of redemption or a trust in a leasehold. Every attendant term is at law a chattel real— a term in gross, and therefore no such term could be taken in execution for the debt of the cestui que trust ; but a creditor having sued out execution, could establish his right to an equitable interest in a leasehold, and this remains unaltered (r). It should be borne in mind, that although a leasehold for years might be extended on an elegit, if it was in the possession of the defendant at the time the execution is mcarded (s), yet it was settled long before the statute of Charles 2, that a sale of chattels was good after judgment, although not after execution awarded (t) : so that as to a term of years the command to the sheriff on an elegit did not (o) 1 My. & Ke. 297 ; see Alexander v. (r) Gore v. Bowser, 3 Sma, & Gif. 1 ; see Crosbie, 6 Ir. E. R. 513 ; Browne v. Caven- pi. 16, inf. dish, 1 Jo. & Lat. 606 ; and (since 1 & 2 (s) Sir Gerard Fleetwood's case, 8 Co. Vict.c.llO)RobiusontJ.Hedger,13Jur.846. 171; consider 31 Ass. p. 6; 38 Ass. p. 4; (p) Doe V. Helder, 2 Bar. & Al. 782 ; see 2 Inst. 305 ; Gilb. Ex. 33. 35. Bayley, B., thought it might, Doer. Evans, (t) Fleetwood's case, 8 Co. 171 ; 1 Fitz. 1 Crom. & Me. 450 ; the iacts of that case Ab. Execution, pi. 108; 2 Ro. Ab. 157; are not distinctly stated. "Wilson v. Wormol, Godb. 16), jd. 220; (<7) Sir J. Harrington v. Garroway, 2 Ro. Shirley v. Watts, 3 Atk. 200. Ab. 472 (P.), pi. 11. D D 418 POWERS: LEASEHOLDS HOW FAR BOUND. [CH. 13. S. I, overreach the sale in the same manner as it did in the case of a freehold estate. 13. Judgments bound after-purchased lands, and consequently affected such lands even in the hands of a purchaser (n). 14. Where by the operation of the conveyance— as in the instance of an appointment under a general power by a person having the fee in default of appointment — the estate vested in the seller was divested, and the fee was vested in the purchaser under the power, the judg- ments entered up against the seller ceased to bind the estate at law (a:) ; and in equity also although the purchaser bought Avith notice (y) ; and a portion of the purchase-money was set aside as an indemnity {z), but Crown debts could not thus be defeated by the execution of a power (a). 15. Although the Court of Chancery sold the estate, yet the pur- chaser was bound to ascertain that all the judgment creditors having legal liens had come in under the decree, for any one who did not, might enforce his judgment against the purchaser although he had paid the whole of his purchase-money into Coiu-t. Copyhold estates were not liable to be extended on judgments. 16. Old judgments existing against a foiTner owner of a leasehold estate upon which it did not appear that execution had issued were not considered an objection to a seller's title (i). Where only an equity of redemption of a term was purchased, the purchaser could not be affected by even an execution lodged of which he had no notice, for such an interest was not extendible under the statute of frauds, and the mere delivery of the writ to the sheriff was not implied notice to a purchaser (c). 17. But although a judgmentwas not duly docketed, and therefore void against a purchaser, yet if the purchaser had notice of it he wasbound by it(f/). This was decided by Lord Eldon overruling a contrary decision. 18. Only a divided moiety of the estate could be taken under an elegit, unless where there were two judgments of the same term either obtained by one creditor or by two creditors, under which practically the entirety could be seized (e). If resort was had to equity, it was necessary to sue out an elegit (/). (m) Sir John tie Moleyn's case, 30 E. 3, (h) Causton v. Macklew, 2 Sim. 242 j 24 a; 1 Ro. Ab. 892, pi. 14, 16; 42 E. 3, Williams v. Craddock, 4 Sim. 313. II a; 42 Ass.jal. 17; 2 H. 4, 8 b. pi. 42; (c) 1 Ves. j. 431; 3 Atk. 739. 14 a, pi. 5 ; 2 Ro. Ab. 472, (P.) pi. 3 ; Sliep. (d) Forsliall v. Cole, 7 Vin. Ab. 54, pi. G ; Prac. Couns. 305; Hickford v. Macliin, 2 Eq. Ca. Ab. 592, pi. 8 ; App. Pm-ch. No. Winch, 84, ;;er Jones, J., Brace ?;, Duchess 18; Davis v. Strathmore, 16 Ves. 419; of Marlborough, 2d Res. 2 P. Wms. 492. Willis v. Bro-mi, 10 Sim. 148; Cockburne (a:) Doe v. Jones, 10 Bar. & Cres. 459; v. Wright, G Jr. E. R. 1 ; Beere v. Head, 8 Hickson v. Collis, 1 Jo. & Lat. 94 ; In re Jr. E. R. G47 ; 3 Jo. & Lat. 340 ; Johnson Phillips, 4 Jr. Ch. R. 584. v. Holdsworth, 1 Sim., N. S., 186; In re (y) Tunstall v. Trappes, 3 Sim. 286 ; Ea- PhUlips, 4 Ir. Ch. R. 584. ton V. Sanxter, 6 Sim. 517. (e) Att.-gen. v. Andrew, Hard. 33 ; Doe v. {z) Skeeles v. Shearly,8 Sim. 153; 3 My. Creed, 5 Bin. 337; see Hele v. Ld. Bexley, & Cra. 112. 17 Bea. 14. (a) Reginar. Ellis, 19L.J.,N. S., Ex. 77. (/) Neate v. Duke of Marlborough, 3 en. 13, S. I.] JUDGMENTS UNDER 1 & 2 VICT. 419 19. But now the whole state of the Liw on this head is altered by an Act {(j), except as against purchasers, mortgagees and creditors, before the 1st of October 1838 (A) (l),but we shall presently see that it is still necessary to keep the old law constantly in view. All the estate instead as formerly a moiety, is, luider the new law, to be delivered in execution {i), and the right to execution is, except as against such purchasers, mortgagees, or creditors, now extended to all My. & Cra. 407; Mr. Heald's notice of {g) 1 & 2 Vict. c. 110. Townsend v. Askew is a correct representa- (//) S. 123 ; In re Perrin, 2 Dru. & War. tionof what passed. This I stated from my 147. own recollection, see Foster v. M'Mahon, (i) For the forms of new wi'its, see 5 Bin. 11 Ir. E. R. 296. N. C. 366. (I) As to Ireland, see 9 Geo. 4, c. 35 ; 3 & 4 Vict. c. 105 ; 7 & 8 Vict. c. 90 (for wliich latter Act the writer is responsible, hut the re-registry law of England every five years was then resisted in Ireland) ; 11 & 12 Vict. c. 120 ; 13 & 14 Vict. c. 74; Knox v. Kelly, 1 Dru. & Wal. 542 ; Martin v. D'Ai-cy, 1 Ir. E. R. 84; Borough v. Williamson, 11 Ir. E. R. 1 ; O'Brien v. Scott, id. 03; Beere v. Head, 3 Jo. & Lat. 340; Revcll v. Revell, 4 Ir. C. R. 436. The law in Ireland was altered by the 12 & 13 Vict. c. 95. This Act takes away the right to a receiver on a judgment which does not exceed 150/. ; and a judgment must be a year old before a receiver can be obtained, and assignments of judgments are rendered inoperative at law in Ireland as they are in England, and voluntary conveyances are made void against judgments entered up before such conveyance. By the 13 &14Vict. c. 29, a new law is intro- duced into Ireland. T lie law of England as to rc-registration every five years has been extended to Ireland as well in regard to judgments as to Us pendens. The provisions in the ~S & Will. 4, and tlie 3 & 4 Vict., relating to execution and the appointment of receivers upon judgments, and making these charges upon all the debtor's property, are not t6 extend to any judgments, &c. entered up, &c. after i\\e jiassing of the Act ; and no execu- tion (save as after mentioned) is to issue on any such judgment, nor are any lands, &c. to be charged or affected by any such judgment, except as provided by the Act. Existing judgments are not to have execution, or a receiver against estates purchased by the debtor aftei- the passing of the Act, nor are such judgnnents to operate as a charge thereon with a saving as to any interest in tlie purchaser before the passing of the Act. The new remedy entirely alters the old law. It enables the creditor upon a judgment entered up, &c. after the passing of the Act, upon Lis knowledge or belief that the debtor is entitled to some estates, or lias a general power over them, and it also enables the creditor upon a judgment entered up, &c. before the Act, upon his knowledge or belief that the debtor is entitled to or has such a power over some estates which by virtue of theActare exempted from being taken in execution, to make and file an affidavit containing the particulars required by the Act, and to register the affidavit in tlie deed registry office, and the registration is to operate to vest the estates in the creditor for all the debtor's interest, &c., but subject to redemption, and he is to have the same rights and remedies as if a conveyance had been executed to him ; and where there is such a registry, voluntary conveyances made after the date of the judgment are made void against the creditor. The Act does not prevent execution under a scire facias of all such chattel interests as might have been taken in execution if the 3 & 4 Vict. c. 105, had not been passed. Judgment creditors are still to preserve their lights in the administi'ation of assets in equity, but the 3 & 4 Vict. c. 105, s. 22, is not to extend to interests created by way of mortgage or otherwise as securities for money. The 19 & 20 Vict. c. 77, gives a large discretionary power to the Court in appointing receivers. No receiver is to be appointed where the sum due does not exceed 150/., nor where the rental of the estate does not exceed 100/. per annum, but this is not to prevent the making of any order to extend to a receiver already ajipointed ; and power is given to the Court to sell real estate at any time after the institution of the suit. A new Court of A])peal is pro- vided for Ireland by the 19 & 20 Vict. c. 92 ; and the 19 & 20 Vict. c. 07, extends the time for the duration of the Incumbered Estates Court. D D 2 420 JUDGMENTS UNDER 1 & 2 VICT. [CH. 13. S.I. lands, tenements, rectories, tltlies, rents and hereditaments, including copyliold or customary tenure, which the person against whom exe- cution is sued, or any person in trust for him was seised or possessed of at the time of entering up the said judgment, or at any time after- wards, or over Avhich such person shall at the time of entering up the judgment or at any time after, have any disposing power, which he might, without the assent of any other person, exercise for his own benefit in like manner as execution of one moiety might then be delivered. This is s. 11, and It is followed up by s. 13, making the judgment a charge upon all lands, tenements, &c. (including copyholds and customary holds) of which such person is at the time of entering up judgment, or at any time afterwards, seised, possessed, or entitled, for any estate or interest whatever, at law or in equity, whether in possession, reversion, remainder, or expectancy, or over which the party has a general power, and which is to be binding upon the party, and ac/ainst all pe7'S07is claiyninc/ under him after such judgment^ including liis issue, and other persons whom he could bar ; and relief in equity is to be given to the creditor in like manner as if the debtor had power to charge the hereditaments, and had by writing under his hand agreed to charge the same with the judgment debt and interest {I) ; but no judgment creditor is to proceed in equity until after the expiration of one year from the time of entering up such judgment {in). 20. This Act applies in all its general provisions to judgments in the Counties Palatine of Lancaster and Durham, and a separate register is established for each county {n). And judgments of certain inferior courts of record and rules or orders of such courts for any sum of money, costs, charges or expenses, may be removed into the superior court and acted upon as a judgment thereof, but this was made subject to a certain restriction (o), which has been repealed, and they are now placed, when removed, under the same regulations as other judgments (/»). 21. And decrees and orders of courts of equity (I), and all rules of courts of law, and all orders of the Lord Chancellor or of the Court (0 S. 13 ; Cathrow v. Eade, 1 Sma. & Ireland, Winter v. Homan, 28 L. T. 23. Gif. 423; Ex pte. Ross, 5 C. B. 155; a {m) Mackinnon r. Stewart, 1 Sim. & Stu. judgment imder this section was held a 91; Robinson v. Hedge, 17 Sim. 183; see charge upon a benefice, Hawkins v. Gather- G De Ge. Mac. & Gor. ] 1. cole, 1 Sim., N.S.,G3; but this was reversed, (n) 1 &2 Vict.c. 110,s.21. (o)Id.s.22. G De Ge. Mac. & Gor. 1; see Bates r. Brothers, {p) 18 Vict. c. 15, s. 7, and see 6. 1. 2 Sma. k Gif. 509 ; the law is otherwise in (I) Decree for specific performance, and order to purchaser to pay purchase-money, interest, and costs when ascertained by the Master, a judgment debt in the vendor. Duke of Beaufort v. Phillips, 1 De Gc. & Sma. 321 ; but a decree in favour of a creditor gives no right against purchasers, mortgagees, and creditors, until registered in the C. P. ; Lee V. Green, 25 L. J., N. S., 2GU; 2 .lur., N. S., 170; G De Ge. Mac. &; Gor. 155. CH. 13. S. I.] JUDGMENTS UNDER 1 & 2 VICT. : MORTGAGEES. 421 of Review in matters of bankrui)tcy, and all orders of tlie Lord Chancellor in matters of lunacy, Avhereby any sum of money or any costs shall be payable to any person, are to have the effect of judg- ments {q). 22. It is now immaterial whether the seller has an equitable or a legal estate, and the period of inquiry as to an equitable ownership is the time of entering up of the judgment, or any time afterwards, and therefore the transfer of the legal estate after the judgment, and before execution sued, is no longer material : nor is it important whether the seller has an estate with or without a general power, for in either case the judgment is equally binding, or whether the seller has o?ili/ a general power, for that is for this purpose treated as an estate, and the j udgment creditor has no longer a general lien but an actual charge on the estate, to which a court of equity is bound to give effect. 23. Leasehold estates, whether legal or equitable, seem to be sub- ject to the legal {?•) as well as the equitable remedy. 24. An annuity given by Avill through the medium of trustees charged on real estate, is of course liable to the judgments of the annuitant {s). 25. The interest of a mortgagee may also be made liable to a judgment under this provision (t) ; and where an annuity was secured by a deed of covenant and by an assignment of a leasehold to the annuitant to secure it, with a trust or power to sell if it should be in arrear, it was held that a judgment creditor of the annuitant was entitled to have the annuity sold, and the proceeds applied in pay- ment of his debt, and of course the purchaser would have all the securities which the annuitant had (u). By a later Act {x), in con- sequence of the great delay and expense occasioned upon purchases and mortgages by judgments continuing to bind lands, although the mortgagees had been bond fide paid off, and the lands had been actually conveyed to purchasers or to other mortgagees {y), it is pro- vided that a purchaser or mortgagee shall not be liable to any judgment, order, &c., against any mortgagees who shall have been paid off prior to or at the time of the execution of such conveyance. It seems to admit of no doubt, that although a mortgagee may not be fully paid all that is diie to him, as for example where he sells under a power of sale in his mortgage, and the produce is not sufficient to {(I) S. 18, 10; 12 & 13 Vict. c. lOG, s. 123, (*) Youngliusband v. Gisborno, 1 De Ge. 248; 12 & 13 Vict. c. 107, Ireland; Jones & Sma. 209. t. Williams, 11 Ad. & El. 175. (0 Clare v. Wood, 4 Ila. 81. (r) 1 Dru. & War. 182; Gore r. Bowser, (») Harris v. Davison, 15 Him. 128. 3 Sma. & Gif. 1 ; Westbroolc v. Blythe, 3 (.r) 18 Vict. c. 15, s. 11 ; 13 & 14 Vict,. E. & B. 737 ; inf. as to notice; see "l9&20 c. 29, s. 12, Ir. Vict. c. 97, s. 1, as to execution against (?/)■ Clare v. Wood, 4 Ha. 81 ; Harris r. "goods," Davison, 15 Sim. 128. b D 3 422 JOINT TENANTS : POWERS : TENANT IN TAIL. [CH. 13. S. I. fully answer tlic mortgage-money, yet he will be deemed to have been paid off under this provision. 2G. Of eoursc a judgment against one of several joint tenants will bind the share of the debtor as against the survivors. 27. In the case of powers, if the power be in the debtor himself, the judgment will be as binding as if the power had been executed ; but if the power were merely testamentary, it would seem that the judgment would not bind (a). Of course whatever interest the debtor has, in default of the execution of a power, vested wholly or partially in himself, would be bound. Therefore although the power of the debtor be required to be executed wdth the assent of somei other person, or the power be vested in him and another jointly, yet any interest of his in default of appointment would be bound, and he could not by subsequently concurring in an execution of the power, defeat the judgment creditor. 28. A judgment against a tenant in tail will bind a purchaser from the issue in tail, or any remainder-man whom the tenant in tail might have barred. But this is confined to the relief under s. 13, for there is a marked distinction in the Act between what may be delivered on an elegit and wliat is made liable to a charge. The general words as tothejjegalj;ight, would not bind issue i n tail or remainder-man, and the Avords " ove r which the party shall have any dispo sing power, &c.," mean only a power of appoi ntment, and not a power of disposition under the Substitute for Recovery Act. This is proved not merely by the words themselves but by the enactment (s. 13), which creates the charge where the same words are used in the same confined sense, followed by a clause expressly making the charge binding against the issue of the body of the party, and all other persons Avhom he might without the assent of any other person cut off from any re- mainder, reversion, or other interest in or out of any of the heredita- ments. As Shadwell, V. C, observed, with reference to another point, the words of the 13th section are not the same as those of the 12th [11th] ; the language of the former is much more copious than the language of the latter (b). In a suit by a judgment creditor against his debtor who had become tenant in tail in possession, the latter was ordered to execute a disentailing deed (c). 29. The Act of Parliament is perfectly clear and free from all ambiguity and doubt. That which formerly by force of the Statute of Westminster was a general charge upon lands, now by force of the express directions of tliis Act becomes a specific lien : Avords can- not be more express. If a man has poAver to charge certain lands, and agrees to cliarge them, in equity he has actually charged them ; and a court of equity Avill execute the charge. AVhen the Act of («) In re Phillips, 4 Ir. Cli. R. Mi-. (c) Lewis v. Duncombe, 20 Eea. 3LI8. (ft) 15 Sim. 132. CH. 13. S. I.] QPEKATION OF CHARGE. 423 Parliament says tluit every judgment creditor shall have the same remedies in a court of equity as he would have been entitled to in case the person against whom the judgment has been entered had agreed to charge the lands with the amount of that judgment debt, whether that charge be legal or equitable, the judgment becomes in the view of a court of equity an equitable estate. We are no longer dealing with a general lien, but Avith a specific incumbrance {d). 30. The enactment that the judgment shall operate as a charge upon the estate, means a charge upon the beneficial interest of the debtor. If he has a legal estate, subject to an equity, it will be a charge upon the estate, subject to the same equity ; in the case of an equitable estate, it will be a charge upon the equitable interest (e). Therefore an equitable mortgagee must be preferred to a subsequent judgment creditor, who Avill be prevented from executing his judg- ment as ao;ainst the morto-age, althouo-h he had not notice of the mortgage Avhen he obtained his judgment (/). This was the rule in equity before the late statute, and it is not altered by the statute. The rule of equity is consequently still the same, in regard to the rights of a purchaser under a contract, as against a judgment entered up subsequently to the contract, but before the conveyance, and we need therefore only refer to the former statement under that head. 31. But by the new law to enable a judgment creditor to render the estate liable to his debt when it is vested in a ])vu'chaser, it is necess ary the judgment "should be registered {t/J purchasers to discover judgments by the names of the persons against Avhom they were entered, if the name of a defendant were falsely entered, as Compton for Crompton, the judgment was void against purchasers and the Court would not amend the record (c). And this rule would prevail upon the new Acts. But a judgment registered by the correct name is valid against purchasers, although in the action and judgment the christian name was erroneously stated {d). 56. A purchaser of part of an estate, subject to a judgment, if (x) Sharpe v. Roahde, 2 Ro. 192. Robinson v. ITcdgcr, 13 Jur. 84G, where (I/) 1 &2 Vict. c. 110, s. 13; htf. ch. 22, the judgment was entered uj) before the for the provisions in the new consoUdated mortgage, bankrupt law. (c) Sale v. Crompton, 1 Wils. Gl ; 2 Str. (r) JJ-rjo^e. Boyle, 17 Jur. 979. 1209. (a) 1 & 2 Vict. c. 110, s. 61. (d) Beavan v. Ly. Oxford, 3 Sma. & Gif. {h) Hotham v. Somernlle, 9 Bea. 63; 11 ; 3 Eq. R. 445. E E 434 CONTRIBUTION : INSOLVENCY. [CII. 13. S. I. execution be sued against him only, shall have contribution against the persons seised of the residue of the estate, left in the hands of the conusor, whether they acquired it by descent or purchase (e). 57. Sir Edward Coke observes (/), that when it is said that if one piu'chascr be only extended for the whole debt, that he shall have contribution, it is not thereby intended that the others shall give or allow to him any thing by way of contribution ; but it ought to be intended, that the party who is only extended for the whole, may, by audita querela, or scire facias, as the case requires, defeat the execution, and compel the conusor to sue execution of the whole land ; so, in this manner, every one shall be contributory, hoc est, the land of every terre-tenant shall be equally extended. The statute 16 & 17 Car. 2, c. 5, has enabled the conusee to proceed against any part of the land, but it saves the right to contribution against the person whose lands are not extended, without pointing out how that right is to be enforced. In some cases doubtless the relief would be in equity 0). 58. The Court or a Judge may order a memorandum of satisfaction to be entered upon the record of any judgment if it shall clearly appear to them that the debt and damages have been fully dis- charged (A). 59. Where there is reason to suppose that the seller has been involved in difficulties, it will be proper to search the Insolvent Court. And where the seller is a trader, in addition to inquiries after any commis- sion, it would be proper to search the Bankrupt Court for any affidavits of debt by creditors, which, under the last Insolvent Act (?), may be made the foundation of a fiat in bankruptcy. Where a fiat has issued, there is but little danger of its not being known : and now all conveyances by any bankrupt bond fide made and executed before the date and issuing of the fiat against such bankrupt, will be valid, notwithstanding any prior act of bankruptcy by him committed, pro- vided the person or persons to whom the bankrupt so conveyed had not at the time of such conveyance notice of any prior act of bank- ruptcy by him committed (A). This was a necessary provision, more particularly now that a creditor may lay a pretty sure foundation for a fiat (/), and that the seller himself may concert the issuing of it {in). The notice in the Act means knowledge in), (e) Sir Wm. Herbert's case, 3 Co. 11 b. ; taching judgTnent debts, see 17 & 18 Vict. Blakeston ?;. Martyn, 1 Jo. 90; Hartly r. c. 125, s. 60-67. OTlaherty, Beat. 61 ; Aicken v. Macklin, (i) 1 & 2 Vict. c. 110, s. 8. 1 Dru. k. Wal. 62> ; s. 13 of 1 & 2 Alct. (A) 2 Vict. c. 11, s. 12, and see s. 13; 2 c. 110. & 3 Vict. c. 29; 12 & 13 Vict, c, 106, s. 133, ( /■) 3 Co 14 b. ^^® ^* ^"^^y ^'^ to notice after twelve months ; Meux r. Smitli, 1 1 Sim. 410. {g) Hartly v. O'Flaberty, Beat. 61 ; 1 (;) i & g Vict. c. 110, s. 8. Llo. & Go. t. Plunk. 208 ; 1 &. 2 Vict. c. ; ^ p -^„„ . ^n c -i <, own a , ^ ' (w) Geo. 4, c. 16, s. 6; 1 & 2 Will. 4, 110, s. 13 ; Tpoit, cli. 23. ^ ^g^ ^^ 42 . ^2 & 13 Vict. c. 106, 107. (//.) 16 & 17 Vict. c. 113, s. 144 ; as to at- („) Bird r. Bass, 6 Man. & Gra. 143. en. 13. S. I.] TROCEEDINGS TO BE ENROLLED, &C. 4.35 60. It may, in this place, be observed, that provision is made by the statute of bankruptcy (o) for the enrohuent of the proceedings for the safety of purchasers ; and it is declared, that no fiat, nor any adjudication of bankruptcy or appointment of assignees, or certificate of conformity under such fiat, shall be received in evidence in any court of law and equity, unless the same shall have been first entered of record in the Court of Bankruptcy {p). This, therefore, renders it necessary that the fiat, adjudication, and certificate of the appoint- ment of assignees should be entered of record at the seller's expense. But where the bankrupt joins in the conveyance, either voluntarily or compulsorily, by the direction of the Court {q), and there is no reason to suppose that the fiat will be disputed by third persons, this cannot be necessary ; nor could it be required where it has been omitted, and it has become too late to upset the fiat. 61. And by the 5 & 6 Vict. c. 116, certificates of appointments of assignees are required to be registered in England or Ireland where by law any conveyance or assignment of any property of a petitioner would require to be registered. But it is provided that the title of any purchaser for valuable consideration, who shall have duly regis- tered his deed previous to the registry thereby directed, shall not be invalidated by reason of the appointment of an assignee, or consequent thereon, unless the certificate shall be registered within two months from the date of such appointment (r). 62. Where a man, formerly a bankrupt, sells after-acquired pro- perty, having obtained his certificate, the certificate of conformity should be enrolled. 63. In the same office in the C. P., where judgments are to be searched for, will be found a list of such causes or informations as are intended to bind purchasers by the doctrine of lis pendens. And the filing of a special case, and the entering of appearances thereto by the persons named as defendants therein, are to be taken to be lis pen- dens (s). And no purchaser or mortgagee, without express notice of a lis pendens, will be bound by it, unless and until a memorandum or minute containing the name and the usual or last known place of abode, and the title, trade, or profession of the person Avhose estate is intended to be affected thereby, and the court of equity, and the title of the cause or information, and the day when tlie bill or informa- (o) S Geo. 2, c. 30. s. 41 ; 6 Geo. 4, c. c. 106; expte. Thomas, 2 Gly, & Ja. 278 ; 16, s. 96, 97 ; 1 & 2 Will. 4, c. 56, s. 13, 27, 1 Mon. & M'Ar. 64, 29 ; 2 & 3 Will. 4, c. 114 ; 12 & 13 Vict. c. (r) S. 8 ; 12 & 13 Vict. c. 106, s. 143. 106. As to proof of title under the insol- {s) 13 & 14 Vict. c. 35, s. 17 ; see as to vent Acts, Doe v. Evans, 1 Crom. & Me. petitions in the Irish Court of Chancery, 450; 7 Ad. & El, 909. 13 & 14 Vict, c, 89, s. 42 ; and 13 & 14 {p) 2 & 3 Will, 4, c. 114, s. 8 ; 12 & 13 Vict. c. 29, s. 5, as to re-registering a lis Vict, c, 106, s. 236, pendens in Ireland. (g) 6 Geo. 4, c. 16, s, 78; 12 & 13 Vict. E E 2 436 OF SEARCHING FOP. CROWN DEBTS. [CH. 13. S. I. tlon was filed, is left with the Senior Master of the C. P., who is to enter such particulars in a book, in alphabetical order; and there must be a re-entry every five years {t) ; and the provisions relating to re-registering judgments every five years extends to lis fendens [u)\ and all the provisions equally apply to the counties palatine {x). This list, therefore, should also be searched, and that may render it neces- sary to call for the proceedings in any pending suit or information. 64. There will likewise be found in the same office an index to debtors and accountants to the Crown, Avhich, of course, should also be searched. The book will be found to contain a list of the judg- ments, statutes, or recognizances to the Crown, inquisitions of debt due to the Crown, obligations or specialties made to the Crown under the 33 H. 8, c. 39 ; acceptances of office which bind the officers' land, under the 13 Eliz., c. 4, with all requisite particulars (?/). And where a quietus has been obtained by a debtor or accountant to the Crown, it will probably be found in the list {z). Re-registry is not required, and therefore there should be a general search for some years to come. %5. But this provision is only prospective, and therefore a pur- chaser mvist still ascertain, as well as he can, Avhether there are any Crown debts, &c., created or secured before the Act passed, viz., the 4th June 1839. 66. This list of Crown debts should, in every instance, be searched, where there is any reason to suppose that the seller is a Crown debtor (a) ; for even a prior legal term of years assigned to a trustee for the purchaser to attend the inheritance, cannot be relied upon although he purchased without notice {h) ; bvit where the term never was held in trust for the Crown debtor, it may be used as a defence against the Crown debt (c). But, as we have before observed, the protection afforded by a term for years will soon cease (d). t/Va/^ ^OOD ^^' ^"^^ Avhere a man is an accountant to the Crown, even his future debts would bind the estate which he had at the time he was such accountant in the hands of a purchaser (f'). The same doctrine, it has been observed, holds in respect to the debts of a person who has executed a bond to the Crown to account for the money coming to their hands as receivers. It follows that all their lands are chargeable to the Crown from the execution of the bond, and consequently, though they sell them to a purchaser at a time when they are not {t) 2 Vict. c. 11, s. 7 ; 7 & 8 Vict. c. 90, priority to judgments inter se, M'Minn v. s. 10 (Ireland) ; Jennings v. Bond, 2 Jo. & M'Connell, 2 Jr. C. R. GOO. Lat. 720, (a) Post, ch. 22. (u) 2 Vict. c. 1 1. (x) 1 8 Vict. c. 15, s. 3. (&) Rex v. Smith, btf. ch. IG. (y) 2 Vict. c. 1], s. 7 ; 7^8 Vict. c. 90, (c) Rex v. Lamb, 13 Pri. 049. s. 11 (Ireland). {d) 8 & 9 Vict. c. 112 ; sup. ch. 12. (z) S. 9 ; Ex pte. Fleetwood, 4 Man. & (e) 13 Eliz. c. 4 ; Sh- C. Hatton's ca.se, Gra, G40; see 18 Vict. c. 15, s. 11; 7 & 8 10 Rep. 55 b. cited; Nicholl.s v. How, 2 Vict. c.90,s. 13 (Ireland). This Act gives no Ver. 389; 25 Geo. 3, c. 35. CH. 13. S. I.] OF LIABILITY TO CROWN DEBTS. 437 indebted, and have no money belonging to the Crown in their hands, still the lands are liable to the Crown for their future debts ; and, generally speaking, the same observation applies equally to the sure- ties for the debtor to the Crown as to the debtor himself (/). In these cases, therefore, a quietus should be entered upon record. 68. But if the estate is sold under a writ of extent, or by the Court of the Chancery or Exchequer, and the purchase-money is paid into the receipt of the King's Exchequer, under the 1 & 2 Geo. 4, c. 121, that Avill absolve the purchaser. And now the Treasury is authorised, upon payment of such sums as they may think fit to re- quire into the Exchequer, to be applied in liquidation of the debt or liability of any debtor or accountant to the Crown, or upon such other terms as they may think proper, to exonerate the purchaser from the debt or liability to the Crown, and this is extended to leases for fines, reserving to the Crown the right to the rent and reversion, and enabling the Crown to recover against the other lands liable to the demand (^). 69. It has been determined, that in the case of a purchase for a valuable consideration Avithout notice, and without fraud or covin, from a simple contract debtor of the King, whose debt was not re- corded until after the conveyance, the lands are not bound by such simple contract debt (A). If, as the Coiu't observed, an individual holding no office known to the public to be an accountable office, casually receive part of the King's treasure, and thereby bind his land in the hands of a hondjide purchaser without notice, there would be a universal suspicion of all titles, because it will be impossible to discover who are the persons that may have privately got the King's money into their hands (/). 70. In the case in which this point was decided, the purchaser bought without notice, and that fact is relied upon with the others in the judgment of the Court, but as the simple contract debt does not bind the lands in the hands of a purchaser, it must be indiffisrent whether he buys with or without notice, provided there was no fraud or covin. 7 1 . A parish collector of taxes, although he is liable to the process of the Crown in respect of the money which he has received as such collector, is not that kind of debtor to the Crown which would bind (/) Co. Litt. 209 a. n. 1 ; 191 a. n. 1, s. in which it was not necessary to decide the 5, div. 9. As to bankrupts, 12 & 13 Vict, point, the rule was laid down with too much c. 106, s. 127. latitude, that any person wlio has received ig) 2 Vict, c. 11, s. lOj 11 ; 7 & 8 Vict.c. money belonging to tlie Crown, every ac- 90, s. 14, 15(Ir.). countant of the Crown for money of the (/«) Tlie King w. Smith, Wight. 34. In Crown received falls within the Actj see that case the general words in the statute Casbord v. Ward, Pri. 411, 477. 13 Eliz. c. 4, received a limited and jn'oper (i) Wight. 49. construction. In Wilde v. Fort, 4 Tan. 304, E E o 438 OF SEARCHING THE REGISTRY [CH. 13. S. I. his lantlri so as to affect the existing equitable or legal interest of any tliird person in them. He is not a debtor to the Crown of record, nor one of the persons described in the 13th Eliz., nor does he give bond to the Crown, but he is merely an ordinary simple contract debtoi', and the Crown has no right to his estates until he become a debtor by record, Avhich he will be Avhen an inquisition is taken (k). 72. A purchaser should also search the Court of Common Pleas ^^ for statute deeds, as substitutes for fines and recoveries, and also the indexwoi^oo^tlS^ceraficates of acknowledgments of deeds of husbands and wives, which index contains the names of married women and their husbands, alphabetically arranged (/). 73. If the estate lie in a register county, the registrar's office should be searched, for the purpose of ascertaining not only that the estate is free from incumbrances, but also that the title-deeds are duly registered ; — the estate may be lost by neglecting to do so. And if it appear that any deed has not been duly registered, the vendor must procure it to be registered at his own expense, previously to the completion of the contract; although, indeed, it sometimes happens that an instrument not being registered, prevents an objection being made to the title. To give an instance of this, let us suppose a man to have mortgaged his estate, and paid off the money, but to have neglected to take a re-conveyance. Now, if the mortgage was not registered, the purchaser need not insist upon its being registered, and require a re-conveyance from the mortgagee; because, as the deed Avas not registered, the mortgagee did not acquire the legal estate, or if he did, Avould cease to have it by the registry of the con- veyance to the purchaser ; and, being paid off, he has of course no equity. So where a partial interest in an estate is devised to the heir at law, with a power of leasing, and he grant a lease not autho- rised by his power, the lease may, in some cases, be sustained both at law and in equity, in case the will Avas not registered according to the Act. This, however, is a mode of making a title to Avhich necessity /r^ ^, only should compel us to resort. esi. il ^ h^ -^ 74. A purchaser from a devisee should not complete his contract > '{yC • / till the Avill is duly registered, unless the vendor be both heir at laAV and devisee, or the estate is leasehold, and the seller is entitled either % '^7 ^ ^^ as executor or legate e^ 75. And if a purchaser be already seised of the legal estate, as if he be mortgagee in fee, and has contracted for the equity of re- demption, it is not actually necessary to search the register if he be assvu'cd that notice cannot be proved either on himself or on any one concerned for him. 76. AVhere the estate lies in Middlesex, judgments need only be {h) Casberd », Att.-gen. 6 Pri. 41 1 , 473 ; (0 3 & 4 Will. 4, c. 74, s. 87. Fector v. Pliilliiott, 12 Pri. 197. CH. 13. S. I.] FOR INCUMBRANCES. 439 searched for at the registrar's office, but where the estate lies in Yoi-k, or Kingston-upon-IIull, recent judgments must be searched for in the proper courts. And since the 1st & 2d Vict. c. 110, it would not be prudent to dispense with such a search as regards Middlesex. Upon the purchase of a leasehold estate in a register county, not only the register, but also the proper courts should be searched. 77. The register ought to be searched immediately before the execution of the conveyance, for the same reason that the search for judgments should be delayed till the last moment. 78. And lastly, grants of annuities should be searched for, because any annuities duly granted would of course bind him, unless he could protect himself by a prior legal estate. In a register county they need only be searched for at the registrar's office. By the 17 & 18 Vict. c. 90, repealing the usnry laws, the Act requiring grants of life annuities to be enrolled has been repealed ; but by a later Act, they are still required to be registered as a safeguard to purchasers, inasmuch as the grantee of such an annuity rarely has possession of the title-deeds (m). The register will not show upon what lands the annuities are charged, but a purchaser would of course require the seller to produce the grants. 79. If a purchaser is damnified by his solicitor neglecting to search for incumbrances, he may recover at law against the solicitor, for any loss occasioned by his negligence {/i). 80. So if the chief clerk, whose duty it is to enter up and docket judgments, neglect to do so, by which a purchaser who has made the proper searches sustains any loss (o), he has a remedy against the clerk by an action on the case (p). And any person who is damnified by the neglect of the registrar of either of the registering counties, may bring an action against him, in which he will recover treble damages and costs of suit, by virtue of the registering Acts. 81. "Where the estate is in the possession of a tenant, inquiry should be made of him in regard to the terms of his tenancy, and whether he holds any agreement for purchase of the estate. This is not often done, but upon purchases of small properties it should rarely be neglected, as notice of the tenancy is notice of the tenant's rights. (m) 18 Vict. c. 18, s. 12. v. Chandless, 3 Ca. 17 ; Templer v. M'Lacli- (?t) Brooks V. Day, 2 Dick. 572; For- Ian, 2 New R. 136; Parker v. Rolls, 14 shall V. Cole, 7 Vin. Ab. 64, pi. 6, MS. ; and C. B. 091. Purch. App. No. 18; Green v. Jackson, (o) See M'Minu v. M'Connell, 2 Jr. C. Peak. 236 ; Ireson v. Pearman, 3 Bar. & R. 609. Cres. 799 ; 5 Dow. & Ry. 687. See Baikie (p) Douglas v. Yallop, 2 Bur. 722. E E 4 440 NO BELIEF EEOM INCUMBRANCES [CH. 13. S. II. SECTION II. OF RELIEF FROM INCUMBRANCES. Seller to jjay off incumhrances. Unless pnrcfiase)' has agreed to accept a covenant. Purchaser may recover, though money jjaid, if conveyance 7iot perfected. Election after conveyance not relieved against. Urmston v. Pate. Title under forged instrument. Matthews v. Hollings : erroneous. Neglect of purchaser. Legacy a charge unpaid: remedy. Covenants of earlier vendors. No relief though money seciired. Or sale by the court. Unless in case of misrepresentation. Concealment of defect in title. Purchase with all faults of title. • Issue directed. Relief tchere concealment. No lien on purchase-money after appro- priation. Fund appropriated against a claim, liable for the real claim. Payment by purchaser to a creditor of vendor. Purchaser puisne mortgagee, and pur- chase-money insufficient to clear the estate. Purchase of incumbrances by third per- son — Hou'far binding on purchaser. Purchase of incumbrances by purchaser of estate. Misrepresentation that mortgage -money is charged on other property. Succession duties: liability of purchaser. Seller buying in interests after convey- ance, a trustee for purchaser. 1. Where an incumbrance is discovered previously to the execu- tion of the conveyance, and payment of the purchase-money, the vendor must discharge it, whether he has or has not agreed to cove- nant against incumbrances, before he can compel payment of the purchase-money («) (J). 2. But if a purchaser has notice of an incumbrance xaldcli is con- tingent, and it is by the articles agreed that the vendor shall covenant against incumbrances, the purchaser has chosen his own remedy (/-») ; and he cannot, therefore, detain any part of the purchase-money. 3. Although the purchaser has paid the money, yet if he is evicted before the conveyance is executed by cdl the necessary parties, he may recover the purchase-money in an action for money had and received, although the intended covenants do not extend to the title under which the estate was recovered, and he may be in possession of the estate (e). (a) Anon. 2 Free. lOG ; Vane v. Id. Bar- nard, Gilb. E. R. 6 ; Maynard's case, 2 Free. 1 ; 3 Swan. G51 ; see 1 Ves. 88 ; 2 Ves. 394 ; 2 Ves. j, 441 ; 4 Bro. C. C. 394; Brown v. Stepney, Beat. 688. {V) Vane v. Ld. Barnard, nblsiij]. ; Clarke V. Faux, 3 Rus. 320. (c) Cripps V. Reade, 6 Term R. 606; Matthews v, Hollings, Woodfall's Land. & Ten. 35, cited; Johnson v. Johnson, 3 Bo. & Pul. 162 ; Brigs' case. Pal. 364; Jones v. Ryde, 1 Mars. 157; 5 Tau. 488; Carter v. Uniacke, 4 Jr. C. R. 30. (I) In Robinson i'. Anderton, Peak. 94, Lord Kenyon permitted a purchaser of ^fixtures in a house which were scheduled in the original lease, and belonged to the landlord, to recover the purchase-money, although the person who sold them was an under-tenant, and had himself ignoranthj paid for them. CH. 13. S. II.] AFTER THE CONVEYANCE. 441 4. Where the eviction of a leasehold estate (which had been sold, and the money paid, and possession delivered, but no assignment executed) was occasioned by the seller having taken out administra- tion to the deceased owner by a wrong name, and another person having taken administration by the right name, the money was held to have been paid under a mistake, for both parties supposed the seller was the legal representative, and the purchaser was allowed to recover the purchase -money (rZ). 5. And Avhere a man contracted for a copyhold estate for lives, and paid part of the purchase-money, and was to pay the residue on taking up the copy, but was guilty of laches, yet, upon the seller's death, when the manor went under a settlement to a remainder-man not bound by the contract, the purchaser was permitted to recover the money in equity (e). 6. But if the conveyance has been actually executed by all the necessary parties, and the purchaser is evicted by a title to which the covenants do not extend, he cannot recover the purchase-money either at law(/), or in equity {y). 7. Therefore, Avhere {h) A bought an estate, to one moiety of wdiich there was a clear defect of title, which his counsel had over- looked, and he was afterwards evicted ; he filed a bill asserting his claim to be repaid a moiety of the purchase-money, although the covenants for title did not extend to the eviction, but the bill was dismissed : William Davy devised the estate in question to Sir Robert Ladbroke and Lyde Brown, as tenants in conmion, in fee ; and gave all the residue of his real estate to his brother William Pate, in fee. Sir Robert Ladbroke died in the testator's lifetime. Robert Pate, as devisee of William Pate, the residuary devisee, conceived himself to be entitled to the moiety devised to Sir Robert Ladbroke, which became lapsed by his death, in the testator's lifetime, and accordingly Robert Pate joined Avith the persons entitled to the moiety devised to Lyde Brown in selling the estate to one Urmston. The convey- ance recited the luill of William Davy, and all the subsequent instru- ments, and a covenant was inserted for the title, notwithstanding any act done by Robert Pate, or his ancestors, or any person claiming imder him or them. The purchaser finding Robert Pate had no title to the moiety over which he assumed a power of disposition, but that it had descended to the heir at law of William Davy, filed his bill, praying that the purchase-money might be restored to him. Robert Pate, the vendor, demurred to the bill for Avant of equity, and the demurrer was allowed (?'). {(J) Cripps V. Reade, 6 Term R. G06 ; dol J Anon. 2 Free. lOG; Ty lee i-. Webb, 14 Early v. Garrett, 9 Bar. & Cres. 928. Bea. 14. (e) Awbry i\ Keen, 1 Yer. 472. (A) See 3 Ves. 23^ ; 2 Bo. & Pul, 23 ; (/) Cripps V. Reade ; .lohnson v. John- Craig v. Hopkin.s, 2 Coll. Decis. 517, 518. .son, ubl sup. ; Bree v. Holbech, Doug. 654. (?) Urmston r. Pate, 1 Trea. Eq. 364, n.; {(j) Mayuard's case, 2 Free. 1 ; 3 Swan. 4 Cru. Dig. 90. 442 OF RELIEF FROM INCUMBRANCES [CH. 13. S. II. 8. And it is immaterial that the seller had no interest whatever to transfer ; as where a mortgage which had been forged, was trans- ferred by the personal representative of the mortgagee to a person who advanced the money alleged to be due upon it, and the assign- ment contained only limited covenants, the assignee was not allowed to recover his money back ; it being incumbent on him to look to the goodness of the title (/t). 9. This appears to have been overlooked in a case at nisi prius, before Laurence, J. (/), where a purchaser of a lease, who obtained an absolute assignment of it, was evicted two years afterwards, in consequence of the lessor having been only tenant for life, and having died, and he was allowed to recover his purchase-money upon the authority of Cripps v. Reade, where, as we have seen, no assignment had been executed, which is the distinction upon which these cases turn. 10. So, as we have seen, if a purchaser neglect to look into the title, it will be considered as his own folly, and he can have no relief ()«). 11. Where a legacy was charged on an estate devised, but not personally on the devisee, and he sold the estate to a purchaser, neither of them noticing the legacy, which they appear to have treated as void in law, and the purchaser resold to another person, it was held, that after the conveyance, the legatee had no remedy for the legacy against the devisee (ji), the seller, who did not receive the money to the use of the legatee, for the legacy Avas not recognised as a charge, nor did the devisee commit any fraud on the legatee, nor could the purchaser call upon the seller, the devisee, to pay the legacy as between them, or to indemnify him, the purchaser, against it, as there was no fraud committed on him by the seller. But no doubt the seller Avould have been liable if he had fraudulently concealed the charge (o). 12. Where a purchaser has taken a defective title, and cannot recover against his immediate vendor, his only remedy is to have recourse to the covenants of the earlier vendors, many of which are inherent to the lands, and to some of which, as the covenant for quiet enjoyment, there is no objection, on account of their antiquity, where the breach is recent {p). 13. It seems, that if the conveyance be actually executed, the pur- chaser can obtain no relief, although the money be only secured ; yet in an early case, where A. had sold to B., with covenants only against A., and all claiming by, from, or under him, and B. secured the pur- chase-money ; but before payment, the land was evicted by a title {k) Bree v. Holbech, Doug. 634 ; see 1 title v. Morgan, 1 Term R. 755 ; Anon. 2 Mars. 103, 1G4. Free. 106; Hitclicoek v. Gicldings, 4 Pri. 1 35. (J.) Matthews v. Hollings, VVoodf. Lan. {n) Jellardr.Edgar,3DeGe. & Sma.502. & Ten. 35. (o) Newxnan v. Kent, 1 Mer. 240 ; 3 De {m) Roswell v. Vaughan, 2 Cro. 196; Ge. & Sma. 310, n. wZ. 506. Lysney v. Selby, 2 Ld. Ray. 1118; Good- (p) Butler's u. (I). Co. Litt, 384 a. CH. 13. S. II.] WHEKE PURCHASE-MONEY IS SECURED. 443 paramount to A.''s, the L. C. relieved from the payment of the pur- chase-money (q). If this case were law, the consequences would be serious : for what vendor would permit part of the purchase-money to remain on mortgage of the estate, if he were liable to lose it, sup- posing the estate to be recovered by a person against whose acts he had not covenanted ? Indeed, this point is viewed so differently in practice, that where part of the purchase-money is permitted to remain on mortgage, although the covenants from the vendor be limited, the vendee invariably enters into general unlimited cove- nants, in the same manner as he would have done in the case of an independent mortgage. 14. Even where an estate was sold before a Master under a decree, and the purchaser had paid his money into the Bank, but it was not to be paid out without notice to him, and he took possession and approved of the title, and the conveyance to him was executed by all necessary parties ; but before the money was paid out of the Bank, the tenants Avere served Avith a Avrit of right, at the suit of an adverse claimant ; it was held that the money must be applied under the decree. The Court having given the purchaser possession of the estate which he had purchased, and a conveyance under a title Avhich he himself had previously approved, had done all it could for the purchaser, who could not afterwards object to the application of the purchase- money (?'). 15. But this does not apply to a sale under the Court, Avhere the rent is misrepresented ; for although the money be paid into Court and possession be delivered, and a conveyance executed, yet the Court Avill give to the purchaser out of the funds in Court, a compen- sation for the misrepresentation (.9). 16. Although the purchase-money has been paid, and the convey- ance is executed by all the parties, yet if the defect do not appear on the face of the title-deeds, and the vendor Avas aAvare of the defect, and concealed it from the purchaser, or suppressed the instrument by which the incumbrance Avas created, or on the face of which it ap- peared, he is in every such case guilty of a fraud (t), and the pur- chaser may either bring an action on the case, or file his bill in equity for relief (m). In Bree v. Holbech, Ld. Mansfield said that if the personal representative had discovered the forgery, and had then got rid of the deed as a true security, the case would have been very different. 17. But in a case Avhere a purchaser bought and obtained a con- veyance of an estate rvith all defects and faults of title (x), and the {q) Anon. 2 Ch. C. 19; Fonbl. n. {fj) Cooper, 4 Ir. C. R. 75. 1 Trea. Eq. 361, 2d ed. {t) See Harding v. Neltliorpe, Nels. C. (r) Thomas ?>. Powell, 2 Cox, 394 ; M'Cul- R. 118 ; 2 Free. 2. loch V. Gregory, 3 Eq. R. 495. («) Doug. 654. (a) Cann v. Cann, 3 Sim. 447; Cooper v. [x) Early v. GaiTett, 4 Man. & Ry, 687; 444 CONCEALMENT OF DEFECTS OF TITLE. [CH. 13. S. IL seller stated that no rent had ever been paid, which turned out to be false, and the title being merely under a lease, the lessor recovered the estate ; yet as the jury found that the seller really believed that no rent had ever been paid, the statement, though false in fact, was held not to be fraudulent, and the purchaser, although he lost the estate, was not allowed to recover the purchase-money. The scienter or fraud is the gist of the action where there is not a Avarranty. 18. Where a h\\\ is filed against the vendor, and the Court cannot satisfy itself of the fact, an issue will be directed to try whether the vendor did know of the incumbrance {y). 19. In a case which we have already fully considered, Avhere 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, although he had obtained a regular conveyance and had not been evicted, was relieved against the purchase in equity {z). But after the contract is executed by a conveyance and payment of the purchase-money, a bill cannot be filed merely for compensation («). 20. Although the vendor has fraudulently concealed an incum- brance, yet the purchaser has no lien on the purchase-money after it is appropriated by the vendor {h). In the case of Cator v. Earl of Pembroke, Ld. Bolingbroke was tenant for life of a settled estate, with a power to sell and lay out money arising by sale in other lands, and in the meantime to invest the same in the funds. Ld. Boling- broke granted life-annuities out of the estate, and then he and the trustees of the settlement sold the estate to Cator, who was ignorant of the annuities, and Ld. B. covenanted that Cator should enjoy free from incumbrances. The purchase-money was invested in the funds in the names of the trustees, and Ld. B. granted annuities to Boldero to the extent of the dividends ; and the trustees, at the request of Ld. B., ga-se Boldero an irrevocable power of attorney to receive the dividends. Cator being evicted by the grantee of the annuities charged on the estate, filed his bill, insisting that he had a lien on the purchase-money invested in the funds, and was entitled to the dividends in exclusion of Boldero. The cause was first heard before the Lords Commissioners, who thought that Cator had a lien on the dividends, but that Boldero had a preferable equity, and therefore dismissed the bill. The cause was re-heard before Lcn-d Thurlow (c), who affirmed the decree, and was moreover of opinion, that Cator the fact of a conveyance is not stated in wood, Vo. 41(5, 460; 6 Cla. k Fin. 232; 9 Bar. & Cres. 928; Biitlei-'s n. (1) Co. Lovell r. Hicks, 2 Yo. & Col. 46 ; Piker. Litt. 34 a. Tigers, 2 Dru. & Wal. ] ; sup. (y) Harding v. Neltliorpe, ull sup. (a) Lenliani v. May, 13 Pri. 749. {z) Edwards v. M'Lcay, Coo. 308; affi. (b) Cator i-. Earl of Pembroke, 1 Bro.C. by Lord Eldon on appeal, 11 July 1818, C.301; consider 12 Ves. 3^6, 077; Yo.535. with a reservation of the question as to re- ('•) 2 Bi-o. C. C. 282. pairs. MS.; 2 Swan. 287; Small r. Att- en. 13. S. II.] ArPLICATION OF TURCHASE-MONEY. 445 could not follow the money when tlepositecl with the trustees, but that having taken a covenant for (£uiet enjoyment and a good title, his remedy was that way. 21. But where an estate was agreed to be sold tithe free, and a portion of the purchase-money was set apart as a security against a claim to tithes of part of the estate by the parson of A., and the purchase was completed upon that footing, and the bill filed for tithes was dismissed on the ground that the lands were in the parish of B., the rector of which was entitled to the tithes ; it was held that the purchaser was entitled to be indemnified out of the appropriated fund against the real claimant. It was treated as a case in Avhich the claim was to be indemnified against, but the parties had mistaken the person entitled to make it (d). 22. Where a purchaser pays part of the purchase-money generally to a creditor of the vendor by security affecting the land, and also by security not affecting the land, it will be considered as a payment in satisfaction of the incumbrance which charges the estate (e). 23. Where an equitable mortgagee under an agreement, subject to two prior mortgages, paid off the prior mortgagee, and then bought the property mortgaged, and was of course entitled to have it cleared of all incumbrances, but the purchase-money was insufficient to pay all the advances; it Avas held, that as between him and the executors of the mortgagor "svho were the sellers, he could not stand as a mort- gagee and specialty creditor under the prior mortgage which he had paid off, but was bound on the day appointed for completion of the contract to pay the purchase money, in payment of what was due on the incumbrances, according to their j^riorities, although the effect of that was to leave him as a simple contract creditor for a surplus (/); but this w^as reversed in the Lords, for the sellers were of course bound to pay off the incumbrances ig) (I). ((/)Ci'omptoni\Ld. Melbourne,5Sini.353. (/) Greenwood??. Taylor, 14 Sim. 505; (e) Brett v. Marsh, 1 Ver. 468 ; Hay- Lacey v. Ingle, 2 Phil. 413. ward r. Lomax, i Ver. 24 ; Peters i'. Ander- {g) Att.-gen. «. Cox; Att.-gen. w. Pearce, son, 5 Tau. 696. 3 H. of L. 240. (I) Lord Cottenham in his written judgment observed, that upon the sale of property- subject to a mortgage for its full value, it is the duty of the vendor to pay off the mortgage, is certain, if the purchaser has not the prudence to see that done, and take his title from the moi'tgagee ; but that is not likely to arise, for what purchaser would pay the full value of property to the owner of the equity of redemption, thus leaving the mortgage a charge upon the property, and parting with the money out of which it ought to be paid ? In the judgment under appeal it is laid down as a rule of equity that upon a purchase of property subject to incumbrance for the full value, it is the duty of the vendor to apply the pur- chase-money in payment of what is due on the incumbrances according to their priorities. If there be any such rule it can only arise upon an implied contract in the im])robable case supposed of a purchaser paying the full value to the o\vner of the equity of redemption trusting to his paying off the mortgage without any specific contract for that purpose, for to whom can this iluty be due but to the mortgagor, who is interested in being relieved from all personal responsibilities for payment of what is due on the mortgage. It must be the subject of implied or expressed contract. 446 BUYING IN INCUMBRANCES. [CH. 13. S. II. 24. Unless from tlie particular character which a man fills with relation to the estate, as agent, trustee, heir or executor, he may- enforce the whole of an incumbrance against the estate or the pur- chaser of it, without regard to the price at which he purchased it (/i). Where a solicitor, being a puisne incumbrancer, advised the heir to buy a prior incumbrance as a provision for himself without disclosing the rule of equity, which would give to the incumbrancer the benefit of the purchase, he was not allowed to claim the benefit against the heir(2). And it was thrown out in some early cases (J), that as against a purchaser without notice of an incumbrance, a stranger might not be allowed more than what he really paid for it ; but this is a position which it would seem to be difficult to establish. 25. If a seller is bound to relieve the estate sold from incum- brances, and the purchaser buy them up, he ought not to charge more than he paid, as that is the amount of the damage which he sustains by the breach of the covenant to pay off the incumbrances (A), although of course, if a purchaser buy in an incumbrance to protect his estate, at an under sum, he may hold it till paid the whole charge (Z). 26. If a seller represent to a purchaser of an estate in mortgage that part of the mortgage money is secured on some personal pro- perty, but it prove that the whole was charged on the land, and the purchaser, after completing his purchase, is compelled to pay it oiF, the seller, or his personal representatives, will of course be bound to pay off the part represented to be secured on the chattels (m). T^. / Sf ^/j./ 2^* -^ ^^^ charge has been thrown upon purchasers by the r>^^^^ x^/Succession Duty Act(w), and which should particularly be attended j^ to where reversionary interests are purchased. The duty is made a first charge on the property (o), and every person in whom the pro- perty chargeable shall be vested by alienation or other derivative title at the time of the succession becoming an interest in possession, is made personally accountable to the Crown for the duty to the extent of the property (p). It is, however, provided that every receipt and certificate purporting to be a discharge of the whole duty payable for the time being in respect of any succession, or any part thereof, shall exonerate a hona fide purchaser for valuable consider- ation, and without notice, from such duty, notwithstanding any sup- pression or mis-statement in the account upon the footing whereof the same may have been assessed, or any insufficiency of such assessment ; (1i) Mon'et u. Paske, 2 Atk. 52; Darcy (in) Att.-gen. v. Cox; Att.-gen. u. Pearce, x\ Hall, 1 Ver. 49; Lons; v. Clopton, Id. 3 H. of L. 240. 4G4 ; Hill v. Browne, Dru. 426. («) IG & 17 Vict. c. 61. (i) Bayley v. Wilkins, 3 Jo. & Lat. G30. (o) Sect. 42. (J) Phillips V. Vaughan, 1 Ver. 33G; {y) Sect. 44; but powers of sale and ex- Long ?,'. Clopton, id. 4G4 ; Williams v. change and partition may still be exercised, Springfield, id. 476. and the duty is charged on the substituted (li) 2 Dow, 290. property, s. 42. \V) Ch. 23,;;o«^ CH. 14. S. I.] SUCCESSION DUTY. 447 and no bond fide purchaser of property for valuable consideration under a title not appearing to confer a succession shall be subject to any duty with which such property may be chargeable under the provisions of this Act by reason of any extrinsic circumstances of which he shall not have had notice at the time of such purchase {fj). No purchaser, therefore, can safely complete his purchase who knows that there has been any suppression or mis-statement in the account, or any insufficiency in the assessment, nor if he knows that the pro- perty ought to pay succession duty, although the title does not appear to confer a succession. These are liabilities which ought not to have been created against a purchaser : they add another obstacle to the attempt to render the transfer of property cheap and simple. 28. Whatever interest the seller himself acquires in the estate subsequently to the conveyance, he will be compelled to convey to the purchaser, so as to make good the conveyance to him (r). {q) 16 & 17 Vict. c. 51, s. 52. (r) Ascough u. Johnson, 2 Ver. 66, CHAPTER XIV. OF THE CONVEYANCE AND COVENANTS FOR TITLE. SECTION I. OF THE CONVEYANCE. 1. Expense where inciimbrancers join throivn on seller. 2. Parties agreed vpon, must join although not necessary. 3. Form of conveyance — Recital. 4. Legal estate in trustee or mortgagee. 5. Quantities of parcels. 6. Grant of deeds. 7. Covenants, 8. Disentailing deed, when to he executed. 9. Legal estate in persons under disability. 1 0. Conveyances by married women. 11. Charges by seller after contract to sell. 12. Notice of incumbrance after payment and before conveyance. 13. Statement of objection to title. 14. Mistake in conveyance corrected. 15. Alteration in draft should be communi- cated. 16. When conveyance may be prepared. 17. Discovery of defect before engrossment. 18. Eviction before execution. 19. Preparation of conveyance relying upon a promise by seller. 20. Bad title, no conveyance need be jjrepared. 21. Conveyance to lessee determines cove- nants in lease. Expense of conveyance falls on pur- chaser: of execution on seller. Purchaser pays for surrender and ad- mittance : expenses undei' Trustee Act. Bargain and sale under power to sell copyhold. Sale in lots where vesting order re- quired. Seller to convey or surrender, not by attorney. Seller not bomul to appoint attorney. Expenses of reinvesting price of a settled estate. Draft belongs to purchaser. So deed imperfectly executed. Or deed executed by seller ivhere con- tract is rescinded, as parchments. But it may be cancelled — Purchaser's lien on deeds — Seller's attorney has no lien on conveyance. Seller no lien at law after absolute con- veyance. Conveyance should be registered. Short statute conveyance. Execution of conveyance — Payment of purchase-money. 448 r.VRTIES TO COXVEYANCE : RECITALS. [CH. 14. S. I. 1. The strict rule seems to be, that the vendor must procure tlie fee to be vested either in himself, or a trustee for him ; and that a purchaser is not compellable to bear the expense of a long convey- ance, on account of the legal estate having been outstanding for a length of time, or of the estate being subject to incumbrances Avhich are to be paid off (a). It is not, however, usual to insist upon this, unless the title cannot be perfected without a private Act of Parlia- ment ; in which case, the expense of obtaining it is always borne by the vendor. But Avhere the length of the conveyance is increased bv the junction of incumbrancers, it is not unusual to require the seller to pay the extra expense. In a case (h) where a man agreed to demise to another at a peppercorn for a sum in gross ; being in effect a sale, and the seller could not make a valid lease without the concurrence of a person entitled to an equity of redemption in the pi'operty, it was held that the seller had a right to refuse to procure a release by a separate deed, and that he might insist upon the incumbrancer being made a party to the deed to the purchaser, he (the seller) paying the extra expense occasioned by that person's concurrence in the deed. The Court observed, that the agreement was so expressed that the lessee (or purchaser) had great reason to consider that the demise Avas to be made by the other party alone, and consequently that the expense of the demise which he agreed to bear, was the expense of a demise to be executed by the other party alone. The agreement was the compromise of an action of ejectment, and was in general terms, and w^as silent as to expenses. The true I rule seems to be that the extra expenses in such cases are to be borne by the seller, unless the contract shows that the purchaser was buying an incumbered estate. Where a corporation Avas bound to pay the costs, charges, and expenses of the reinvestment of purchase- monies in other estates, the purchasers' counsel advised that the vendors of estates purchased should take releases of incumbrances by separate deeds, which was done ; and it was held that the costs of the purchasers' solicitor in perusing the drafts, and of the counsel for approval, could not be charged against the corporation (c). A condition that a purchaser shall, if he require a conveyance of any outstanding term, pay the expenses attending the getting in and conveyance of the term, including inquiries, does not extend to a mortgage term on foot at the time of the sale, although monej'- had been carried over before the sale by order of the Court to satisfy the mortgage (rZ). 2. Where the contract provides that certain persons shall be parties to the conveyance, the Court will not enter into the question whether or not they are necessary parties (e). Ui) 1 H. Black. 280. (d) Stronge v. Hawkes, 2 Jur., N. S., (b) Reeves v. Gill, 1 Bea. 375. 388 ; see 4 De Ge. Mac. & Gor. 186. (c) Jones V. Lewis, 1 De Ge. & Sraa, 245; (e) Benson v. Lamb, 9 Bea. 502. inf. pi. 28. CH. 14. S. I.] CONVEYANCE; TRUSTEE ACT. 449 3. The form of the conveyance Is too well known to require any- observation in this place, but even the common recital that the seller is seised in fee may be useful, as it would prevent the seller from indirectly setting up as against the purchaser any preceding estate which he himself had created (/). But unless it can be clearly col- lected from the deed that the parties to it have agreed upon a certain admitted state of facts as the basis on which they contract, it seems impossible to maintain that any recital of the vendor's title can bind the purchaser by estoppel {g). If such were the law, a purchaser would be advised to reject all recitals in his conveyance, beyond that of the mere contract. 4. Where the legal estate is outstanding in a trustee, and the estate is sold in lots, it may be advisable to take a conveyance from him by a separate deed in the first instance ; it would save expense, for the trustee may require recitals in a transfer from him which could not be required by a purchaser (A) ; and besides, a trustee may refuse to convey by parcels, and require to be divested at once of the whole of the estate. And he may refuse to convey by a new descrip- tion. These observations apply to some extent to a mortgagee also(^). The purchaser may divide the purchase-money and prepare convey- ances of the property by separate deeds (/t), but this, no doubt, would not be allowed to an extent which would much increase the vendor's expenses. 5. If the purchaser bought by the acre, and is entitled to the quantity stated, he should not allow the words " more or less," or " by estimation," or the like, to be added in the conveyance to the quantities (/). But, of course, any doubt about quantity should be cleared up before the conveyance is prepared. 6. It is advisable in the present state of the law to add, in a few words, a grant of the deeds where the purchaser is entitled to the custody of them (?«). 7. We shall presently consider fully the covenants to which a pur- chaser is entitled {n), and the construction of covenants for title (o). 8. We have already seen that a seller being tenant in tail is not bound to execute a disentailing deed until he is about to complete the purchase by conveyance. Of course, the expense attending the bar under the statute cannot be thrown on the purchaser. 9. The new Trustee Act enables a title to be made where the estate is in a lunatic or an infant, or in an heir who cannot be traced or found, or in a person who is out of the jurisdiction, or where the (/) Stip.) Doe V. Stone, 3 C. B. 176; (i) Goodson u. Ellison, 3 Rus. 593, 504. Bensley r. Burdon, 2 Sim. & Stu. 519; [h) Clark z;. May, 16 Bea. 273. Right V. Bucknell, 2 Barn. & Ad. 278 ivf. n. (/) Slip. {g) Consider Young?;. Raincock, 7 C. B. ("0 ^^'P- ^i- H, s. 4. 810. (w) /"/. i^- 3. {(>) Inf. c. 15. {h) Holford v. Pliipps, 3 Bea. 434. F r 450 MARRIED WOMEN: .SELLER'S JUDGMENTS, ETC. [CH. 14. S. I. trustee has left no heir, provided he is, or would if living be a trustee within the ])rovisions of the statute, and in other like cases, the enact- ments of which statute have already been sufficiently set forth ; and, as we have seen, extensive powers are given to enable a conveyance to be obtained of an outstanding estate in a mortgagee (/?). 10. We have before pointed out the power of a married Avoman under the 3 & 4 W. 4, c. 74, to concur in barring her estate tail by deed duly acknowledged and enrolled, and also her power to convey her estate generally by deed duly acknowledged (q) ; and in cases provided for she may be permitted by the Common Pleas to convey without her husband's concurrence, and this extends to her copy- holds (/■) ; she can also disclaim by deed duly acknowledged, or re- lease all her contingent interests of every description {s). It may be useful to observe that some late cases have, contrary to previous authority and the general opinion of the Profession, held that a wife is entitled to a settlement out of her equitable interest in a real estate, which doctrine has been carried to an extent that it may be found difficult to support. The decision of the Vice-Chancellor in Sturgis V. Charapneys, Avliicli Lord Cottenham reversed, was, I apprehend, a true exposition of the law {t). A purchaser, however, must act upon the law as laid down by the late cases in purchasing equitable estates to Avhich the seller is entitled in his marital ric-lit. 11. As the seller's interest may be charged by judgments or by conveyance or assignment after the contract and before the convey- ance, the purchaser should keep this in view ; but although a seller may of course assign the purchase-money unpaid to another with the benefit of his lien, yet the assignee, although a bondjide purchaser of the money, Avill take subject to the rights of the purchaser of the estate to have the estate cleared of incumbrances ; and the assignee cannot better his condition by paying off a mortgage, for it is not a case for tacking (?<). 12. If the purchaser receive notice of any incumbrance or adverse title before the conveyance is executed, although the money is paid, he Avould be bound by it, and therefore he should withhold the deed, and require the vendor to clear the estate before it is conveyed {x). 13. If a person concur in a conveyance in order to remove an objection to the title, the objection should be so stated as to convey full information to the party concurring (y). (p) Sup. p. 169 ; 13 & 14 Vict. c. GO ; Vict. c. 76, s. 5. 15 & 16 Vict. c. 55, (0 Sturgis v. Champneys, 5 My. & Cra. (q) Ch. 12, sup.; s. 77, 78, 79, 80, 90, of 97 ; Hanson v. Keating, 4 Ha. 1; Wortham the 3 & 4 W. 4, c. 74. v. Pemberton, 1 l)e Ge. & Sma. 644, which (r) S. 91 ; Ex pte. Shirley, 5 Bin. N. C. canied the doctrine still further, and qu. 226 ; where property is sold under a com- (u) Lacey v. Ingle, 2 I'hil. 413. piilsory provision by statute, sec //* re (x) Inf. ch. 24. Foster, 7 C. B. 120. (y) Ld. Braybroke v. Inskip, 8 Ves. 417; (.?) 8 & 9 Vict. c. 106, s. 6; 7 ; see 7 & 8 post, ch. 23. CH. 14. S. I.] EFFECT OF rRErAllING CONVEYANCE. 451 14. Although the purchaser's attorney prepare the conveyance, yet if by mistake he draw it contrary to the written agreement, it will be corrected in favour of his client the purchaser (z), 15. If a draft of a conveyance be altered by either party, although the alteration be such as would be supported by the Court, yet the draft, as altered, should not be engrossed without a communication being first made to the other party (a). 16. The conveyance should not be prepared before the purchaser is satisfied with the title, and has inspected the title-deeds ; for if the purchase were to go off, because, for example, the deeds could not be produced, the purchaser would not be able to recover the expense of the conveyance ; nor is it material that the seller has adopted the conveyance and actually executed it [b) ; but if any of the parties refuse to execute the conveyance, and the contract is rescinded, the purchaser may recover the expenses as part of the damages (c). 17. And if a defect of title is discovered after the conveyance is engrossed, the Court will inquire into the validity of the objection {d). 18. We have already seen in what cases an eviction, before the conveyance is executed by all parties, enables a purchaser to recover his purchase-money, if he have paid it (e). 19. We have also seen that if a purchaser prepare and engross his conveyance, which is executed, yet he will not be bound to proceed, if he relied upon a previous promise by the seller to produce, if re- quired, the deeds which were in the custody of a third person, and the seller fail to produce them (/). 20. Where a bad title is produced, or the vendor has resold the estate, the purchaser may maintain an action for his deposit, or for damages, without preparing a conveyance ((/). 21. If a lessee is the purchaser, the conveyance, we have seen, puts an end to the covenants in the lease (A). 22. Unless there be an express stipulation to the contrary, the expense of the conveyance falls on the purchaser (/) ; who must prepare and tender the conveyance {k). The expense attending the execution of the conveyance is, however, always borne by the vendor, who is bound to procure the execution of the conveyance by all necessary parties, and if any of them refuse to execute, the contract may be considered as rescinded (/). But of course the vendor does {z) Rob V. Butterwick, 2 Pn. 190. (/) Jarmaiu v. Egelstone, 6 Car. &; Pa., (a) Staines v. Morris, 1 Ves. & Be. 15. 1'2. {h) Jarmain .. Egelstone, 5 Car. & Pa. (^) Reward r. Willock,o Ea. 198 ; Knight 172/ svp., and qu. '■ Crockford, 1 Esp. 189; ^\Iln.ot v. \M1- (c) 3 Bar. & Cres. 231. """J^'l Bh' 69'' ^"'' ''' ' """ (d) Const r. Barr, 2 Mer. 57; the order (;) ^ Ves. j. 155; this is tlie universal by consent. practice of tlie Profession. (e) Siqi. c. 13, s. 2. (/,) Suj}. (1) 3 Bar. & Cres. 229. FF 2 452 COPYHOLDS. EXPENSE OF CONVEYANCE. [CH, 14. S. I. not pay the costs of the purchaser's attorney, where the purchase is completed. 23. If the estate be copyhold, the purchaser must bear the expense both of the surrender to him and of his admission (m) ; and a vendor is not obliged to pay the fine due on the admission of the vendee, although he covenant to surrender and assure the copyholds at his own costs and charges (ji) ; because, it is said, the title:is perfected by the admittance, and the fine is not due till after (o). But, although it is stipulated that the costs of the surrender are to be borne by the purchaser, yet if it turn out that the heir of a trustee is unkno\m,>the expenses of the petition, &c., under the trustee act, must be borne by the seller {p) (I). Neither does a condition that the purchaser shall have proper surrenders, &c., at his own expense, on payment of his purchase-money, cast on him the expense of the fine, &c., on admis- sion of the heir of a trustee who dies after the sale, but before the surrender, for it does not make him liable to the expense of procuring the concurrence of proper parties. If the expense were occasioned by his delay, that would be a different ground {q). 24. Where by will a power to sell a copyhold is given (/•), or where by surrender accepted by the Lord {s), or authorised by custom, for without a custom he may reject the surrender {t), a like power is given, the purchaser can only require the seller to execute a bargain and sale to him, which will entitle him to admittance ; and if he re- quire the seller to be admitted, and pending the delay occasioned by his demand, the Lord seise quousque and bring an ejectment, yet the purchaser will be compelled to complete upon the simple execution of a bargain and sale, and must bear the consequences of the Lord's proceedings (?<). 25. If the estate is in an infant, and is to be obtained by a vesting order, a purchaser of one of several lots may apply for such an order, and the expense must be borne by the estate (.r). This should be guarded against upon a sale. 26. A purchaser has a right to require the vendor himself to sur- (m) Drury v. Man, 1 Atk. 95, Sand. ed. (;;) Bradley v. Munton, IG Bea. 294, (w) Graham v. Sime, 1 Ea. 632. {q) Paramore v. Greenslade, 1 Sma. & (o) Dalton v. Hammond, 4 Co. 28 a; Gif. 541, Rex V. Lord of Manor of Hendon, 2 Term, (r) Glass V. Richardson, 9 Ha. G98; 17 R. 484 ; Fishe v. Rogers, 1 Ro. Ab. 506 (A.) Jur, 916. pi. 1 ; 3 Bur, 1543; Lex Oust. 163; Wood {s) Rex v. Lord of Manor of Oundlc, 3 Inst. 137 ; Gilb. Ten. 205; 1 Watk. Copy. Nev. & Mann, 484, 286; sed qu. Dalton v. Hammond, Cro, (<) Flack u. Downing, Coll. 13 C. B. 045. Eliz. 779; Mo. 622, pi. 851 ; snpp. to Co. (?<) Glass v. Richardson, uhi sup. Copy. s. 10; Parkins v. Titus, MS. (.r) Ayles v. Cox, 17 Bea. 584. (I) Where the trusts are by custom or permission entered on the Rolls, there appears to be an unnecessary difficulty raised in afterwards omitting any reference to the trusts. The Queen v. Lord of Manor of Houghton, 24 L. T. 14, Q. B. CH. 14. S. l] of conveyance BY ATTORNEY. J2.2^^y^^ 453 render the estate, if copyliolcl, and to execute the conveyance, if free- hold; and he cannot be compelled to accept either a surrender or conveyance, under a power of attorney, unless an actual necessity appears for it {y). A power of attorney given for a valuable con- sideration cannot, however, be revoked {z). But the vendor may be dead at the time the power is exercised (a). Where therefore a purchaser permits the conveyance to be executed by attorney, the attorney should execute a declaration of trust, that he Avill stand possessed of the purchase-money in trust for the purchaser, until it either appear by satisfactory evidence, that the vendor was alive at the time of the execution of the deed, or if he shall be dead, until the estate is duly conveyed to the purchaser. 27. On the other hand, if a vendor only covenant to surrender or convey lands to a purchaser upon request, he is not compellable to appoint an attorney for that purpose (6). 28. The expense of reinvesting the purchase-money of a settled estate in another estate Avill not fall upon the purchaser of the settled estate, although he has agreed to pay, after enumerating particular expenses, all other expenses whatsoever of the seller's in consequence of the sale, or arising out of, or in anywise relating thereto (c). 29. The draft of the conveyance is usually left with the attorney, which has been called an act of negligence. The draft is the client's property id). 30. If a purchase were to go off after the delivery of the convey- ance by the purchaser for execution by the seller, the purchaser, if the deed were not executed, or only executed by immaterial parties, would be able to maintain trover for it as a piece of stamped parchment. 31. And even where (e) the conveyance had been executed by the sellers, and remained in the custody of an attorney of theirs, to whom it was delivered by a servant of the sellers, who had given it to the servant in order that it might be sent back, but there were still two other parties to execute, who refused to do so, and the pur- chaser gave up the contract and received back part of the money which he had paid in respect of the purchase, he w^as held entitled to recover the deed from the attorney as a piece of stamped parch- ment, by two judges against one. They did not decide that the deed might not be cancelled, but the purchaser they thought was at all events entitled to have the deed restored to him in a cancelled state. {y) Mitchell. Neale,2Ves.679; Richards 5 Esp. 117 ; BaUey v. Collett, 18 Bea. 179. V. Barton, 1 Esp. 268; ih. 115; Noel v. (b) Symms v. Lady Smith, Cro. Car. Weston, 6 Mad. 50 ; Johnson v. Mason, 1 299 ; God. 445. Esp. 89; Eaton v. Sanxter, 6 Sim. 519; (c) In re London Bridge Acts, 13 Sim. Duke of Beaufort v. Glynn, 1 Jur., N. S., 888. 180 ; sujy. pi. 1 ; sup. e. 2. {z) Walsh V. Whilcomb, 2 Esp. 5G5; {d) Doe v. Seaton, 2 Ad. & Ell. 178; Smart v. Sanders, 5 C. B. 91G. Ex pte. Horsfall, 7 Bar. & Cres. 528. (a) Shipraan v. Thompson, Wynne v. (e) Esdaile v. Oxenham, 3 Bar. & Cres. Thomas, WUles 105, 565 ; Wallace v. Cooke, 225. F F 3 454 purchaser's right to conveyance, attorney's lien, 32. Of course a purchaser, avIio has delivered his conveyance to the seller to be executed by him, so far qualifies his right of property in the deed, that if it be executed the seller has a right to retain it until the purchase-money is paid or tendered, for the stamped parch- ment becomes, by its execution, a deed, and as such, would vest the estate in the purchaser, and the possession of the deed would enable him to recover the estate. The decision in Esdaile v. Oxenham de- pended upon the instrument having been imperfectly executed, and upon the sellers not interposing to claim any interest in it ; and the contract having been rescinded, what might have been a deed was treated as a spoiled parchment. The Court in this view, it appears, made an order in substance, that the deed should be delivered to the purchaser, giving to the sellers the right to cancel it, but cancelled or uncancelled, it was to be delivered to the purchaser (/). The attorney claimed a lien on this deed for money due to him as such attorney, and upon a bill filed by him to establish his lien in equity, the decision at law was adopted ; and as it appeared that the pur- chaser had not been repaid the whole of the money he had paid, and claimed a lien for the residue, and had the other deeds in his posses- sion, the Court, without saying whether the deeds passed the legal estate or not, said, that if they did they ought to belong to the pur- chaser, and go with the other deeds {g). The principle of a vendor's lien, which the attorney claimed through the vendor, had no applica- tion, as the contract had gone oiF by the default of the vendor. This case decides, that if a conveyance prepared by a purchaser finds its way into the hands of the seller's attorney after the execution of it by the seller, the attorney cannot claim a lien on the deed for money due to him as such attorney {Ji) ; nor can the purchaser's solicitor claim a lien on the deeds delivered to him, for his general costs, or for his costs of preparing the conveyance, against a prior mortgage by the purchaser, although he (the solicitor) had no notice of it (z). 33. If a seller convey the estate to a purchaser absolutely and completely, although the money be not paid, he is not entitled to any lien at law, but on the contrary, the purchaser may recover the title-deeds remaining in the seller's possession (A). 34. Where the estate lies in a register county, the conveyance should be registered as soon as it is executed (/) ; and of course that duty devolves on the purchaser for his own security (//?). 35. A late statute enables a party, if he chooses, to convey in a short form, and with covenants simply expressing the operation of (/) See 3 Yo. & Jer, 263. (i) Pelby r. Wathen, 7 Ha. 351 ; 1 De Ge. {g) Oxenham v. Esdaile, 2 Yo. & Jer. Mac. & Gor. 16. 493; 3 Yo. & Jer. 262. {k) Goode v. Burton, 1 Ex. 189. {h) Esdaile v. Oxenham, 3 Bar. & Cres. {I) Hilliard, n. 2, Shep. Touc. 116. 225 ; Oxenham i>. Esdaile, 2 Yo. & Jer, 493 ; (m) Mittelholzer v. FuUarton, 6 Ad. & 3 Yo. & Jer. 262. Ell,, N. S., 989. CH. 14. S. IT.] OF STAMPS. 455 the forms usually adopted ; and gives to such a conveyance the same ojieration as if it were framed in the usual terms (?i). 36. A prudent vendor Avill not execute the conveyance until the purchase is about to be completed and the money paid to him. A purchaser cannot safely pay the purchase-money to the vendor's attorney Avithout the seller's authority, although he is entrusted with the conveyance and is ready to deliver it up (o). (n) 8 & 9 Vict. c. 119 j as to leases, 8 & 9 Vict. c. 124. (o) Slip. p. 38. MC'^ 'i of? SECTION II. OF STAMPS. 1. Instruments may he stamped, so as to exclude doubt— Unstamped or impro- perly, on payment of penalty. 2. Payment of duty and penalty in court: evidence. 3. The ad valorem duty on conveyances on sales. 4. How to he paid: — 1. Where several pur- chasers and property conveyed in parts by one or several deeds. — 2. Where the conveyance is immediate to a sub- purchaser. — 3. Or to several sub-pur- chasers. — 5. Conveyance by purchaser to sub jmrchaser, and the conveyance by the original seller to the sub-pur- chaser. — 6. Where several sellers of distinct properties convey to a pur- chaser by one deed, — 7. Where the consideration is a mortgage or other debt. 5. Duty payable on mortgage money, though jmrchaser not liable to it. 6. Buty attaches on timber, fixtures, Sfc. 7. Annuities, the consideration duty at- taches. 8. Where improper stamps are valid, 9. What is the principal deed. Agreements not to he stamped as con- veyances. False statement of consideration does not avoid the deed. Price may be reduced to save duty, ApportionmeJit of consideration. One set of stamps only to conveyance. Unless other estates or matter not inci- dent. Junction of third person to enter into covenant requires no further stamp. Endorsements, &^c. to be counted. Inventory also. Attornment requires no stamp. Ad valorem duty sufficient, though less than \l. 15 s. Conveyance with mortgage requires two stamps. Award under enclosure does not require advalor em stamp : assignment by sheriff does. Whilst execution in fieri, alterations and re-executions valid without new stamps. Progressive duty, ivhere not payable. Receipt stamp: contract stamp. Seller to obtain projier stamji to an agreement for lease. 1. The late stamp Act has for the first time enabled parties to have their deeds stamped whether previously stamped or not, so as to be absolutely valid as far as regards the stamps. This is a great boon («). A fee of 10 .9. is to be paid at all events, and any penalty if not duly stamped besides the proper duty. So that if any doubt arise as to the proper stamp to be imposed on a deed it can be set at rest by the payment of 10 s,, and an appeal lies from the Commissioners to the Court of Exchequer. Agreements and deeds may be properly (a) 13 & 14 Vict. c. 97, s. 14, 15; Morgan v. Pike, 14 C. B. 473 ; IG & 17 Vict. c. 59, s. 13. F F 4 456 OF STAMPS. [CH. 14. S. II. stamped where they have been executed without any or with im- proper stamps (b), upon payment of a penalty, which may be remitted within twelve months after their execution (c). But if the instru- ment be lost, the want of proper stamps cannot be supplied (d). The Commissioners, where application is made to them in regard to the stamps, are authorised to require evidence by affidavit of the quan- tity of words in the deed, and whether or not the consideration, &c., are truly set forth, and they may refuse to act, except on payment of the duty, which would be chargeable if such matters had been truly set forth (e). 2. Upon the production of any document as evidence at the trial of any cause, the officer of the court is to call the attention of the Judge to any omission or insufficiency of the stamp, and the docu- ment cannot be received in evidence until the. deficiency of duty and the penalty, and 1 /. additional penalty, shall have been paid to the officer of the court (/). But no new trial is to be granted by reason of the ruling of any Judge that the stamp upon any document is sufficient, or that the document does not require a stamp ((/). 3. The ad valorem duty is imposed upon every description of con- veyance upon the sale of any lands, tenements, rents, annuities, or other property, real or personal : it commences with only a half- crown duty where the purchase-money does not exceed 25 /., and increases progressively until the purchase-money exceeds 550 /., and does not exceed 600 Z., when the duty is 3 Z. ; and where the purchase- money exceeds 600 Z., then for every 100 Z. and for any fractional part of 100 Z., the duty is 10 s. And now where the consideration consists of any stock or security the value is to be ascertained as pointed out in the Act, and is to be deemed the purchase-money (A). Any separate deed of covenant on a sale for the conveyance or release of such estate, or for the title to or quiet enjoyment, freedom from incumbrances or further assurance of the same estate or otherwise by way of indemnity in respect of the same, or for the production of the title-deeds or muniments of title, or for all or any of those purposes, is liable at most to an ad valorem duty of 10 5. (i). And this seems clearly to include a covenant upon a sale in lots from one purchaser to another to produce the title-deeds as well as a covenant from the seller for the like purpose. 4. The Act (/t) provides for the mode in which the duty shall be charged in various cases. 1. Where there are several joint purchasers and the property is conveyed in parts by separate deeds, for distinct {h) Rex V. luhab. of Preston, 5 Bar. & {g) Id. s. 31. Ad. 10-28. {h) 13 & 14 Vict. e. 97, Sch. Convey- (c) 13 & 14 Vict. e. 97, s. 12, 13. ance j id. Progressive Duty. (rf) Rappenerr. Wright, 2 Bar. lV Al. 478. (<) Sch. Covenant. (e) 17 & 18 Vict. c. 83, s. 17, 18. (A) 55 Geo. 3, c. 184 ; Sch. Part I. Con- (/) 17 & 18 Vict. c. 125, R. 28, 29. vcyance. CH. 14. S, II.] DUTY, HOW CHAKGED. 457 parts of tlic purcliase -money, the principal or only deed of each sepa- rate part is charged with the ad valorem duty in respect of the con- sideration for the same. But if separate parts are conveyed to different persons by the same deed, then such deed is charged with the ad va- lorem duty on the aggregate amount of the purchase-monies. 2. Where the property is conveyed immediately to a sub-purchaser, the principal or only deed is charged with the ad valorem duty in respect of the purchase -money paid by the suh -pur chaser. 3. Where the conveyance is by the original seller, to several sub-purchasers in parts, the prin- cipal or only deed of conveyance of each part is charged with the ad valorem duty, in respect onlij of the purchase or consideration-money paid by each sub-purchaser, loithout regard to the amount of the original -purchase-money. 4. And in all cases of such sub-sales, the sub-pur- chasers and the persons immediately selling to them are to be deemed and taken to be the purchasers and sellers, within the meaning of the Stamp Acts. 5. But where any sub-purchaser shall take an actual conveyance from the original purchaser, which shall be charged with the ad valorem duty, any conveyance to be afterwards made to him by the original seller is to be exempted from the ad valorem duty. 6. And where any property separately contracted to be purchased of different persons, at distinct j)rices, shall be conveyed to the purchaser by one deed, such deed is to be charged with the ad valorem duty in respect of the aggregate amount of the purchase-monies. 7. And where any property shall be sold and conveyed, in consideration, wholly or in part, of any sum charged thereon by mortgage or other- wise, and then due to the purchaser, or shall be sold and conveyed subject to any mortgage or other debt, or to any gross or entire sum of money to be afterwards paid by the purchaser, such sum of money or debt is to be deemed the purchase-money or part of the purchase- money, in respect whereof the ad valorem duty is to be paid. 5. This 7th provision was held to mean where the purchaser stipu- lates to pay it ; a conveyance merely subject to the charge therefore was not liable to the duty on the mortgage money (/). But now, Avhen the property is sold and conveyed subject to any mortgage bond or other debt, such sum of money or debt shall be deemed the purchase-money, or part thereof, in respect whereof the ad valorem duty shall be paid, notwithstanding the purchaser shall not become personally liable, or shall not undertake or agree to pay the same, or to indemnify the vendor or any person against the same (m). 6. Whatever is transferred by the deed of conveyance, for example, timber or fixtures, will be deemed part of the property liable to ad valorem duty, although a separate price is put upon it. The duty attaches on the sale of good will, although this was thought not to be so. Assignments on or previously to 15th June 1854 are protected (Z) Marquis of Chandost'. Commissioners (m) 16 & 17 Vict. c. tJ9, s. 10. of Inland Revenue, 6 Ex. 464. 458 OF STAMPS: CONSIDERATION. [CH. 14. S. IT. and made available in evidence, although the ad valorem stamp is not the proper one {n). 7. Under the 13 k 14 Vict. c. 97, it was held that where the con- sideration expressed in the conveyance is a rentcharge or annuity, subject to re-purchase, the ad valorem duty attached only where such re-purchase might be enforced at the option of the vendor (o) ; but by the later Act 16 & 17 Vict. c. 59, s. 11, the duty is made charge- able in all cases where such rentcharge or annuity is made redeemable. And by a later Act of the same Session, which with its title is so framed as probably to escape the attention of the general practioner(/»), every conveyance (not being a lease) in consideration of any annual sum payable in perpetuity, or for any indefinite period, was made liable to certain duties, so as to extend them to irredeemable annuities. These duties have since been repealed, and other progressive duties, according to the amount of the annual sum, imposed upon every con- veyance in consideration of an annual sum payable in perpetuity, or for any indefinite period, whether fee-farm or other rent, with ex- emptions of certain leases for lives, which are left liable to the duties previously to the 16 & 17 Vict. c. 63 {q). And where any convey- ance or contract shall be made partly in consideration of such annual sum, and partly in consideration of a sum of money or stock, the same will be chargeable with the ad valorem stamps granted by the several Acts (r) ; and where the deed is made also for any further or other valuable consideration, it is chargeable (except where specially ex- empted) with such further duty as any separate deed for such last- mentioned consideration alone would be chargeable with, except pro- gressive duty (5). 8. Although the stamps used are of an improper denomination, yet if of equal or greater value in the whole with or than the proper stamps, the deed will be valid, except the stamps used are specifically appropriated to any other instrument by having its name on the face thereof {t). 9. The 65 Geo. 3d provides for what shall be deemed the principal deed or instrument in certain specified cases, and in other cases leaves it to the parties to determine which shall be so deemed {ii). 10. Of course, an agreement is only to be stamped as such, and not with an ad valorem stamp, which is imposed only upon the con- veyance whether the interest be legal or equitable {x), although it may possibly happen that a purchaser might, to avoid the payment of {n) 17 & 18 Vict. c. 83, s. 19. (/•) Id. 13 & 14 Vict. c. 97, and Sch. (0) /« re Stamp Duty ; Gell's Conveyance, (5) 17 & 18 Vict. c. 83, s. 16. 8 Ex. 376. \t) 55 Geo. 3, c. 184, s. 10. {p) 10 & 17 Vict. c. 63, s. 1, and Sch. (^^) Id. Sch. Conveyance. As to duplicates of deeds under this statute, (.r) Wilmot v. AVilkinson, Bar. & Cres. see the relief provided by 17 & 18 Vict. 506; see Boone v. Mitchell, 1 Bar. & c. 83, s. 15. Cres. 18. (9) 17 & 18 Vict. c. 83, s. 1, and Sch. en. 14. s. ii.l OP STAMPS : where one set only. 459 the duty, not take a conveyance of the equitable interest ; but there is no danger of many such cases occurring, as a purchaser of an equit- able estate is always desirous of having a regular conveyance with regular covenants, and Avlthout it might find it difficult to obtain at the proper period a conveyance of the legal estate. 11. The real consideration is required to be set forth in convey- .^^Z'//^/ ances (?/), under severe penalties upon the seller and purchaser, and the person preparing the deed ; and the purchaser may recover from the seller so much of the purchase-money as shall not be truly set forth in the deed. But this direction has properly been held not to vitiate the deed (z), so that although the whole price is not stated and the duty paid upon it, yet the deed will be valid if it is stamped according to the consideration stated upon the face of it («) (I). 12. And a seller may reduce, if he please, the amount to be actually paid, so as to enable the purchaser to bring his purchase-deed within a lower class of duty, or in other words, to evade the higher duty {h), which can often be accomplished without any real sacrifice. 13. Where the purchaser is authorised to distribute the purchase- money between the several conveyances of a property Avhich requires different modes of conveyance, it has always been considered that the purchase-money may, if it can, be so apportioned as to lessen the amount of duty which would have been payable on the aggregate sum, and the words of the statute appear expressly to authorise this view. 14. However numerous the parties to a conveyance may be, and whether they have the fee, some legally and some equitably, as in the- case of mortgagors and mortgagees, or for different estates, as in the case of tenant for life and remainder-men, or are severally interested in the estate, as in the case of tenants in common, only one set of stamps is necessary, and it is indifferent whether the conveyance is to one purchaser or to several jointly, or as tenants in common (c). The statute even provides, as we have seen, that where several persons convey by one deed property separately contracted to be purchased at distinct prices, the ad valorem duty shall bs paid on their aggregate amount, and that where under a joint purchase separate parts are conveyed to different jiersons by the same deed, the duty is to be paid in like manner on the aggregate amount (d). A deed of confirmation (ij) 48 Geo. 3, c. 149, s. 22-26; 35 Geo. where the amount of the rent was not men- 3, c. 184, s. 8 ; 13 & 14 Vict, c. 97 ; Sch. tioned, and it was shown by parol. Conveyance. (b) Shepherd v. Hall, 3 Ca. 180. (z) Robinson v. Macdonnell, 5 Man. & (c) Willis v. Bridge, 4 Ex. 193. Sel. 228 ; Duck v. Braddyll, 13 Pri. 455. (d) 55 Geo. 3, c. 184, Conveyance, Sch., (a) Parry v. Deere, 5 Ad. & El. 551, Part I.; see now 13 & 14 Vict. c. 97, Sch. Conveyance, (I) The duty on a bargain and sale for a year is repealed, 13 & 14 Vict. c. 97, s. 6; and so is the additional duty when the conveyance is by feoffment or bargain and sale enrolled, not accompanied by a lease and release, s. 7. 460 or STAisrrs : endorsements, etc. [ch. 14. s. ii. by the seller (where the conveyance with an ad valorem stamp was executed by an attorney without authority) was of course held not to require an ad valorem stamp (e). But a sale by several tenants in common of a copyhold to the same person, although effected by one surrender, will not lessen the fees and stamps on admittance (/). 15. Where a conveyance on the sale of any property operates also as a conveyance of any other than the property sold, by way of set- tlement, or for any other purpose, or contains any other matter or thing besides what is incident to the sale and conveyance of the pro- perty sold, or relates to the title thereto, the deed is liable to the same duty (exclusive of progressive duty) as a separate deed containing the other matter would be chargeable with {g). 16. But this does not seem to affect a conveyance of the property sold to such uses as the purchaser may choose to direct (Ji) ; and of course no additional stamp is necessary where the deed contains only what is incidental to it, e. g. a covenant to produce deeds, or an assign- ment of terms to attend the inheritance (i). 17. Where, in a lease, a third party joined to enter into a covenant for payment'of the rent, the lease stamp alone of 1 /. 10 5. was held to be sufficient ; for the covenant was only ancillary to the lease, and the question was, what was the leading character of the instrumGnt(^). And a lease with a right of purchase in the lessee was held to require only a lease stamp, and not an agreement stamp also (J). But a sale by an intended lessee of his interest, and a lease by his direction to the purchaser, is a sale within the Stamp Acts, and the lease requires the ad valorem duty {in). 18. The common endorsements, such as attestations, receipts, or the like, are counted as part of the deed ; but certificates of enrol- ment or registry, it is apprehended, would not {ii) ; for they are not Avithin the control of the parties at the time of the execution of the deeds. 19. If an inventory be referred to by an agreement as annexed thereto, although it be not annexed until after the execution of the agreement, it will be counted as part of the agreement in fixing the duty, and it is unimportant that the inventory is stamped as such (o). Conveyance, Covenant, Prog. Duty. As to {i) Wolseley r. Cox, 2 Q. B. 321 ; Rush- leases of separate farms by the same person brook v. Hood, 5 C. B. 131. at different rents, &c. Blount v. Pearman, (Jt) Pratt v. Thomas, 4 Car. & Pa. 554 ; 1 Bin. N. C. 408; 13 & 14 Vict. c. 97, Sch. see Doe v. Phillipps, 1 1 Ad. & El. 796. Lease or Tack. (?) Worthington v. Warrington, 5 C. B. (e) Doe V. Weston, 2 Q. B. 249. 636. / ^\ rnr, ,-, T). 32. In King v. Jones {q), where a woman, whilst sole, mortgaged her estate in fee, and then married, and the mortgagee, by the direc- tion of her and her husband, conveyed to a purchaser in fee, and the (w) 6. H. IV., 1 pi. 5. (jy) Ackroyd v. Smith, 10 C. B. 164. ^ C/3.^^f ^C- (o) Keppell V. Bailey, 2 My. & Ke. 539, \q) 5 Tau. 418. 540; post, App. No. 1. 478 COVENANT RUNNING WITH RENT. [CH. 15. S. I. husband covenanted for further assurance, and the covenant waa broken, it was admitted that this was a covenant which ran with the land ; and yet, it will be observed, that the covenant was entered into by a person having no legal interest in the estate ; but there had been no alienation, the estate descended to the heh, and he main- tained the action. 33. In a late case, where in a lease of land the lessor reserved suit to his mill, it was held, that there was an implied covenant to do such suit, which ran with the land as long as the land and the mill remained in the same person (r), Mr. Justice Bayley observed, that in the case in the 42d Edward 3, the prior and his successors took no interest in the land, yet the covenant to sing in the chapel was held to run with the land. In the case before liim the covenantor was tenant of land to the covenantee, and the suit to be done to the mill was in respect of the land demised. Mr. Justice Holroyd said, that the case from the Year Books seemed to him to govern the present, and was much stronger (I). 34. In another modern case, the Court of King's Bench appear to have held, that a covenant could not run with the land unless the conveyance of it was actually made by the covenantor. I allude to the case of Milnes v. Branch (5), where a man conveyed an estate to the use that he might receive a perpetual rentcharge, and subject thereto to the purchaser in fee (II), and the purchaser covenanted in (r) Vyvyan v. Arthur, 1 Bar. & Cres. Ld. Uxbridge v. Staniland, 1 Ves, 56. 410; 2 My. & Ke. 541 ; 10 Ear. & Cres. {s) 5 Mau. & Sel. 411, qu.; Roach v. «57 ; Vernon v. Smith, 5 Bar. & Al. 10, 11 ; Wadham, inf. (I) A covenant by a lessor to supply the houses demised with good water was held to run wth the land, although water brought on the land in buckets would satisfy the cove- nant: Jourdain v. Wilson, 4 Bar. & Al. 26C. And a covenant to reuew (Doe v. Hayley, 12 Ea. 4G9), or to obtain a renewal from the superior landlord (Simpson v. Clayton, 4 Bin. N. C. 758), runs with the land ; and yet a covenant by a lessee of a public-house to buy all his beer of the lessor appeal's to be considered one which would not run with the land (Hart- ley V. Pehall, Peake 131 ; Doe v. Reid, 10 Bar. & Cres. 849; see 2 My. and Ke.); and where a lessee covenanted to leave all the trees he should plant diu-ing the term, and the lessor covenanted for himself, his executors, and administrators, to pay for the trees at a fair valuation by two persons, one to be named by each party, their executors, administra- tors, or assigns, and the lessor's assignees refused to name an arbitrator, it was held that the covenant to refer to arbitration did not run with the land, and therefore the assignees were not bound by it, the assignees not being named (Gray v. Cuthbertson, 1 Selw. N. P. 485) ; and yet the trees were part of the inheritance, and the naming of an arbitrator was merely a mode of executii-g the obligation to pay for th&m. A covenant by a lessor in an underlease not naming assignees to pay the rent, &c., and perform or indemnify the lessee from the proviso covenants, &c., in the original lease was held not to run with the land so as to bind the assignee of the original lease : which lease contained a covenant to build which had not been performed, and a power of re-entry in case of default in the perform- ance of the covenants, Doughty v. Bowman, 11 Q. B. 444. (II) This was the effect of the deed, only that Branch, the purchaser, did not take the whole seisin, nor the whole legal estate, for the conveyance and limitation was to him and a ti'ustee for liim, in tlie old way, but the Court made no observation upon the seisin or use in tliis view. CH. 15. S. I.] COVENANT RUNNING WITH RENT, 479 the usual way for payment to the seller, his heirs and assigns, of the rent, and to build upon the land for further securing it ; and it was held, that these covenants did not run with the rent in the hands of an assignee ; and one ground Avas, that there was neither privity of contract nor privity of estate : the rent was reserved out of the ori- ginal estate. The argument for the plaintiff, the assignee of the rent, lost sight, it was said, of the conveyance by which the rent was created. It was incorrect to state it as a rentcharge granted by the owner of the fee ; it being a conveyance in fee to certain uses, one of which was, that the grantor should receive the rent, so that the rent arose out of the estate of the feoffors ; it teas therefore not a rjrant hy the oioner of the fee, and the covenant icas a covenant in gross. This was decided by Lord Ellenborough, Mr. Justice Bayley, and Mr. Justice Abbott. 35. In Randall v. Rigby (f), where the conveyance is imperfectly stated, certain lands were conveyed to A and B, their heirs and assigns, to the use that C, a party (probably the person conveying), his heirs and assigns, should receive a yearly rentcharge, and to other uses (probably to the use of A, and B as his trustee), and A. cove- nanted for himself, his heirs, executors, administrators, and assigns, with C, his heirs and assigns, that A and B, their heirs, executors, administrators, and assigns, would pay the yearly rent; Mr. Baron Parke observed, that no doubt this covenant was collateral or in gross in one sense, that it did not run with the land or rent ; for that Milnes and Branch was an authority. 36. These cases depended upon the/orm of the conveyance. The covenants were held not to run with a rent not granted by the cove- nantor. 37. And it has been held, where a rent is created by way of use, out of a grant to a third person, that a covenant by the grantor with that person to pay the rent, will not be transferred with the legal estate in the rent to the cestui que use (I), and even where the grantor of a rent to one directly, covenants to pay it to the grantee, &c., it is doubtful whether the covenant will run Avith the rent in the hands (0 4 Mee. & Wei. 130. (I) This was decided in the case of Bascawen v. Cook, 1 Mod. 223; 2 Mod. 138 ; the latter the best report, where a rentcharge was granted to two and their heirs for the life of a woman, in trust for lier for her life, and the gi-antor covenanted with the trustees to pay the annuity to them for her use, it was held that the use of the rent was executed by the statute of uses ; but it was said that when the statute transfers an estate, it transfers together with it such remedies only as by law are incident to that estate, and not collateral ones, and therefoi-e, as this covenant, being collateral, could not be transferred, the trustees were held entitled to maintain covenant. But this opinion, perhaps, depended upon the special jirovisions of the statute of uses as to rents, and upon the covenant being to pay the rent to the ti'ustees, and not to the cestui que use. 480 COLLATERAL COVENANTS. [CH. 15. S. I. of an assignee («) (I). And the Court of Common Pleas In a recent case considered, tliat a covenant by the mortgagor with the mortgagee to pay the money was a collateral one, and did not run with the land (x) (II). And notwithstanding the case of the coparceners, in a modern case, where, upon a sale, one of two joint- tenants of a lease released his share to the other, and the latter covenanted with the former to pay the rent, and perform the covenants, and indemnify the seller from them, the Court of King's Bench delivered an extra- judicial opinion, that this Avas the purchaser's owni express collateral covenant, not a covenant that ran with the land (r/) (III). (!<) Brewster v. Kidgell, 12 ]\Io(l. 16G; (x) Canham v. Rust, 8 Tau. 227. Milnes v. Branch, 5 Man. & Sel. 411, (ij) Mayor v. Steward, 4 Bur. 2439. (I) Holt, C. J., was of opinion that such a covenant by the gi-antor did run •with the rent in the hands of an assignee, Brewster f. Kidgell, 12 Mod. 160, because it was a covenant annexed to the thing gi'anted ; but Lord Ellenborough, in the case of Milnes v. ijt. Ma^tra-trtL y /J^'y/tjBra.iich, 5 Man. & Sel. 411, said he was inclined to think that the language of Lord Holt • 4rt^^ Au^eJ: Jfft^ . ^g ^Q jjjg right of the assignee of the rent to have covenant was extrajudicial, and putting ■ e - ^vV. .^^-A- aside that dictum, he did not find any authority to warrant the position that the covenant runs with the rent. He did not see how the analogj', as it regarded covenants which run with the land, was to be applied ; unless it be shown that this (the rent) was land, it miglit as well be applied to any covenant respecting a matter merely personal. There was another point in the case, to which we have before adverted, upon which the only other Judge (Mr. Justice Bayley), who gave reasons, relied altogether. There appears to be no ibundation for shaking Holt's opinion. The rentcharge is an incorporeal hereditament, and issues out of the land, and the land is bound by it ; the covenant, therefoi-e, may well run with the rent in the hands of an assignee; the nature of the subject, which savours of the realty, altogether distinguishes the case from a matter merely personal. A covenant by the lessee of tithes not to allow any of the farmers to have any of the tithes, has been held to run with the tithes in the hands of an assignee so as to bind him. Tlie Court said they should consider whether there was any difference between lands and tithes as to this matter; it was objected that tithes were incorporeal, and could not endure or support a covenant by the lessee for him and his assigns to run with them, so as to bind the assignee; but if, it was added, we could strip the mind of the idea of the matter, there seemed to be no difference between an inheritance in lands and an inheritance in tithes. Bally V. Wells, 3 Wils. 25 ; Brewer v. Hill, 2 Anstr. 410 ; Wilm., 346. And although, in this case, the question was as to an assignee of tithes being bound by a covenant entered into by the gi-antee thereof, yet the principle is the same as though the question were, whether the assignee could take advantage of a covenant entered into toitli the grantee : — in each case the point turns upon the subject of the grant being such as a covenant may run with. (II) The mortgage was for years, created by a conveyance to uses, limiting the term to the seller, and subject to it the fee to the purchaser, &c. The reasoning of the Court is, perhaps, not altogether satisfactory, and the opinion was extrajudicial, as the plaintiff really was not assignee, but still such a covenant would probably be held to be a personal one. It is distingiiishable from a covenant, like that in Holt's case, to pay the very thing granted, for here the thing gi-anted is the term of years, and the money, though secured by it, is in the view of a court of law a collateral subject — the payment of it at the time fixed would defeat instead of supporting the estate, and a payment not according to the condition would be altogether inoperative iipon the estate at law. (III) Yet in a case where in a lease there was an implied covenant by the lessee of mines to build a smelting mill, although the lessor had not the property in the wastes upon which the mill was to be built, but only power to erect buildings on them for working the mines, and such buildings when erected belonged to him, and were removable by hinij CH. 15. S. I.] COLLATERAL COVENANTS. 481 38. Where the covenants are in gross and do not run with the land^ still they are binding on the covenantor and his representatives, who may be sued upon them by the covenantee or his representatives {z). And where the covenants entered into with a purchaser are cove- nants in gross, and he afterwards sells, the purchaser from him being- entitled to the benefit of the former covenants, can compel him to allow his name to be used for the purpose of enforcing the covenants («). 39. And where upon a sale, the estate of the covenantor is an equitable and not a legal one, and consequently the covenants for title cannot run with the land, yet they will be deemed a contract for valuable consideration affecting the land, and the covenant for further assurance will in equity be enforced specifically against the seller, the covenantor, and his heir (Z»). 40. We have hitherto considered only in what cases covenants will run with the land in the hands of assignees of the purchaser. But questions often arise how far lands which remain in the hands of a seller are bound by his covenants in the hands of his assignees (c). 41. AVhere the owners of land granted a watercourse through it to a man and his heirs, and covenanted for themselves, their heirs and assigns, to cleanse it, this covenant was held to bind the land in the hands of an assignee, for it was a covenant that ran with the land(c?). 42. In Brewster v. Kidgell(<'), where upon a grant in fee of a (-) stokes V. Russell, 3 Term R. G78 ; 1 sup. pi. 37. II. Black. M2. (fO Holmes v. Buckley, Pre. C. 39j 1 (a) Riddell v. Riddell, 7 Sim. 529. Eq. Ca. Ab. 27, pi. 4. (b) Spencer u. Boyes, 4 Ves. 370. (e) 1 Ld. Ray. 317; 12 Mod. 166 3 see (c) See Canham v. Rust, 8 Tau. 227; Bascawenr. Cook, 1 Mod. 223 ; 2 Mod.138, it was held the covenant ran with the land for the benefit of the lessor's assignees. The covenant was considered to tend to the support of the thing demised, and therefore should pass with the reversion, Sampson v. Easterby, 9 Bar. & Cres. 505. If a man convey land to another, reserving rent, &c., and grant a power of distress over his manor to the same person, his heirs and assigns, in case they shall be distrained upon i'or more services, this right will vest in the assignee. Anon. Moo. 179, pi. 318.— But if a grant of an annuity is made out of an equitable interest under an agreement for a lease, with a power of entry, mortgage and sale, and a legal lease is afterwards obtained by the grantor, and assigned over to a stranger who is not privy to tlie covenant, the powers of course cannot be enforced against him at law, for the interest which he takes under the assignment subsequently to the grant is not the same interest which the grantors originally had in the jjroperty. It is an interest newly created since the grant, and the assignee is not the assignee of any estate in the lands to which the powers of entry, &c., can attach, and thereibre the assign- ment would be a breach of a covenant to do no act to impeach the annuity, Pitt v. Williams, 5 Ad. & El. 855. Where an under lease was made by a lessee for years, and it was covenanted between the parties that, during the term, every month the lessee sliould give an account to the lessor of the wine which he sold, and should pay to liim lor every tun sold so much money, the better opinion of the Court, according to the report, was, that it was not a covenant which did go witli the land or the reversion, but was a collateral thing, and did not pass by the lessor's assignment of his reversion, God. 120 ; sup. pi. 33, n. And yet the payment was really a rent measured by the quantity of wine jjold upon the premises. H H 482 COVENANTS BINDING 'gRANTOR'S LAND. [CH. 15. S. T. rentcliaro-e out of a manor, a question arose whether a memorandum that it was to be paid without any deduction, was simply a covenant, or a part of the grant, and it did not appear whether the owner of the land was heir or assignee. Holt, C. J., said, there Avas another matter in which he had not consulted his brethren, and that was, whether the owner of the land was obliged by the covenant, which was a covenant by the grantor of the rent, who was seised in fee of the manor. Now, if he was assignee, he (the C. J.) did not think him charo-eable in law. He made no doubt but that the assignee of the rent should have covenant against the grantor, because it was a covenant annexed to the thing granted, but that that covenant should run with the rent against the assignee of the land he saw no reason. But it became unnecessary to decide this point, as the other Judges thought that the stipulation formed part of the grant itself, and did not operate as a mere covenant, and Holt's opinion has not been acquiesced in. The ground of Holt's opinion is in one report stated to be that the assignee could not be charged, because the covenant did not run with the land, neither was it annexed to the thing granted, and therefore he ought to bring an action against the grantor or his heirs, for this covenant did not extend to any thing or parcel of the demise, but to taxes, which had not existence at that time, and was for that reason a personal covenant, by which the heir might be charged in respect of assets descended, but not otherwise (/) (I). nom. Cook v. Herle, which seems to have (/) 5 Mod, 374 ; Bally v. Wells, Wilm. depended upon other grounds ; see Dawson 349. V. Baldwin, 1 Hay. & Jo. 24. (I) The case quoted by Holt, of Cook v. Lord Arundel, Hard. 87, does not bear him out. The plaintiff sought to discharge his own lands from, and to make the defendant's lands subject to, the payment of a fee-farm rent, on the ground that the Duke of Norfolk, who formerly held the whole estate subject to the rent, had granted a portion of it to one under whom the plaintiff claimed, and covenanted that these lands should be discharged of the rent, upon wliich covenant the plaintiff sought relief, " and would have it taken to be a real covenant, which shotild run with the land, and charge the other lands with the whole rent." But the Court was clear of opinion that it was no more than an ordinary and a personal covenant, which must charge the heir only in respect of assets, and not other- wise, and thereupon dismissed the bill; see Hatton v. VVaddy, 1 Hay. & Jo. 601. — Now, it was no doubt clear that the covenant was simply a personal one : there was no agree- ment to pay the whole of the rent out of the remaining estate in the Duke's hands, nor does it appear in what character the defendant acquired the remaining estate. The case was no precedent that upon a grant of a rentcharge out of an estate, a covenant to pay it should not, like the rentcharge itself, be a burden upon the estate. But unless the character of the defendant was a protection to him, it seems that there was an equity on the part of the first purchaser to tlu-ow tlie whole of the rent upon the person who subse- quently claimed the residue of the estate under the Duke. This was decided a few years afterwards in a cause much contested, although u]5on points which are no longer doubtful, Backhouse v. Middleton, 1 Ch. Ca. 173; Ld. Coi'ubury v. Middleton, ib, 208; see 1 Hay. & Jo. 620; Averall v. Wade, LI. & Go. t. Sugd. 259, 260.— Wilmot, C. J., in Bally v. Wells, Wilm. 349, considered Holt's opinion A\Tong, although he did not state the opinions CH. 15. S. I.] ROACH V. WADIIAM EXPLAINED. 483 43. In Roach v. Waclliam (^), where, as we have seen, the second purchaser Avas held to take nnder the appointment, and consequently did not take the estate of the first purchaser, and therefore was held not to be bound as assignee by the covenant to pay the rent entered into by the first purchaser, the counsel and the Court were of opinion, that a covenant by a purchaser of the land to pay an annuity granted and secured out of the land to the seller, would run with the land so as to bind the assignee of the land in covenant at law. The Real Property Commissioners observe (A), Avith reference to this case, that Avhether the burthen of such covenants runs Avith the land, so that an action of covenant at hiAV can be maintained against an alienee, seems to have been lately questioned. It has, they add, sometimes been considered to depend on privity of estate, that is, on the party sought to be charged having or not having the estate of the cove- nantor. They then refer to the case of Roach v. Wadliam, and observe, that the Court must in that case have considered this dis- tinction as influencing their decision, for they suifered it to be argued at great length, Avhich Avould have been unnecessary if the action would not lie, even supposing the defendant to have had the estate of the covenantor. They conclude, that it is certain, that the rule of laAV as to this point is not very clearly laid doAvn by the old text books, and it may have been the intention of the Judges in Spencer's case, and other authorities, to confine the rule to covenants entered into by lessees. There is, they add, no doubt, ground for distinction between covenants by lessees and covenants by the OAvners of the fee. 44. These observations hardly do justice to the opinion of the Court in Roach v. Wadham, Avhere both the bar and the bench treated it as clear, that the action Avould -lie if the defendant Avas assignee. Mr. Abbott, for the defendant, contended that the deeds operated as an execution of the poAver, and not as a conveyance of the interest, and that the covenant for the payment of the rent did not pass [that is, run] Avith the estate ; he then argued the ques- tion upon the power, and added, that though if it were considered as a conveyance by the releasee Avith the consent of the first purchaser, still the defendant Avould not be chargeable in this action, because he was not sued as the assignee of the first imrchaser. Not a Avord {(j) G Ea. 289. CO Third Rep. p. 53. of the Court with accuracy ; he said, according to the note which contains the heads of his judgment, " Grant of rentcharge and covenant for enjoyment fi'ee from taxes : the question was, if it follow the land into the hands of assignee. Holt in Salk. thought not, and Lord Raymond with three Judges were of a different opinion against Holt; and this is the better opinion, if notice of the covenant to repel the right of deducting the taxes ; and the case of the covenant to acquit of suit from one parcener to another, is in point in support of it." H h2 484 COVENANTS NOT TO BUILD ON LANDS, ETC. [CH. 15. S. I. escaped liim as to the nonliability of the defendant to the action if he did take the estate of the first purchaser, and yet that would at once have settled the question. Lord EUenborough, who delivered the opinion of the Court, that the second purchaser took under the power, adverted to covenants entered into by the second purchaser with the first purchaser, to pay the rent and indemnify the latter from it, and observed, that the covenants in the deed of conveyance to the second purchaser did not appear to the Court at all to militate with their construction, for had it been the intention of the parties that the second purchaser should take as assignee of the first, such covenant on the part of the latter would have been less necessary than if he were intended to take as appointee, for in the former case, the first purchaser would have had some security that he would not be called upon to pay this rent, arising from the circumstance of the second j)urchaser^s heincj liable to he sued by the original vendor. But he added, that whether the conveyance were intended to operate in one way or the other, these covenants were fit and proper for the security of the first purchaser, for if the second purchaser were the assignee, and liable to be sued in covenant, the original vendor, if the second purchaser did not pay the rent, might sue the first purchaser on his covenant to pay it, and in that case the second purchaser's covenant was proper for the first purchaser's indemnity; and if the second purchaser were not liable to be sued by the original vendor, and it was nevertheless the intention of the parties that the second pur- chaser should pay the rent, a covenant from him to the first purchaser to pay such rent, and to indemnify the first purchaser therefrom, be- came the more necessary. These quotations prove that the Court had the point distinctly under their consideration, and entertained a clear opinion upon it. 45. The observation of the commissioners before quoted, that this question has sometimes been considered to depend on privity of estate, may perhaps mislead the student, for the only question is, whether, where the assignee is in in privity of estate, he is bound by the covenant; if there is no such privity, it is not denied by any that he is not chargeable in such an action. Upon the whole it is submitted, that covenants like those in Brewster v. Kidgell ought to be held to run in both directions ; with the rent or interest carved out of or charged upon it in the hands of the assignee, so as to enable him to sue upon them ; with the land itself In the hands of the assignee, so as to render him liable to be sued upon it. 46. We have already considered whether a covenant to produce deeds runs in both directions. 47. There are covenants sometimes entered Into by owners of land with the purchasers of other adjoining land, that the former shall not CH. 15. S. I.] COVENANTS FOll PKE-EMPTIOX. 485 be built upon or planted, or so as to impose otlicr restrictions upon the mode of enjoyment of land in favour of persons taking no pro- perty in such land (i). Such a contract binds the land in the view of a court of equity, and in cases Avhere the Court can properly interfere, for example, where a person buys with notice of the cove- nant, although it may not run with the land at law, a specific per- formance of it will be enforced, or, Avhat amounts to the same thing, ZrJ^ J ^f ^^'' the owner of the land will be enjoined from committing a breach of the covenant; and it is not open to the objection of creating a per- ^^petuity (A). But a party may so deal with the property retained by ^X'him as to deprive himself of the right in equity to enforce tlie cove- nant against the other party (/). A covenant by a purchaser not to build on the land above a certain height does not give to the seller a right to build so as to use the upper service of light and air (m). 48. Where a man leased part of his estate for years, and cove- nanted that if he, his heirs, or assigns should, during the term, have an advantageous offer for an adjoining piece of freehold land, he would give the lessee, his executors, administrators, or assigns a right of pre-emption, it was said arguendo by the counsel of the lessor, and the purchaser under him, that it might be admitted, that although the assignee of the lessor was named, it did not run with the land demised, according to the case of the Mayor of Congleton u. Patteson (I), because it Avas to do a thing collateral to the demised premises; and the reporter adds, '''^ ace. per curiam'''' (11). This is not accurate, for what must have been intended to be said was, that although the assignee of the lessor was named, it did not run with the land not demised, so as to bind his assignee ; it Avas not necessary to decide the point, nor was it argued, but the opinion of the Court appears to be correct (;^). 49. So, if the case had been reversed, and the lessee had cove- (j) Third Report Real Prop. p. 54. 2 Drew. 391, not a case of covenant ; Lukey {k) Whatman v. Gibson, 9 Sim. 196; t-. Higgs, IJur., N. S., 200, s!). (z) Ilobsou V, MicUllcton, G Bar. & Crcs. (b) Butterfield v. Marsliall, Lutw. by 29-^. Nels. 192; Rhodes r. Bullard, 7 Ea. 116; (a) 9 Bin. 431 ; 2 Mo. & Sco. 599 ; Ld. Shrewsbury v. Gould, 2 Bar. & Al. 493, Ireland v. Bh-cham, 2 Sco. 207. for implication from words of covenants. SECTION III. EXTENT OF RESTRICTIVE AVORDS. 2. General covenants not cut down without , 8. Fifst rjeneral covenant not restrained b^ clear intention. ' other limited ones. 3. Restrictive words to first covenant extend I 0- Smith x. Compton. to all having the same object. | 1^- General covenant does not enlarge sub. 5. Covenant for quiet enjoyment where ge- \ ""^'""^ ^'""'^''^ °"^- neral : Howell v. Richards. ^ U. Or where covenants are of divers natures „,..,,,,,, I — For title and value. o. Nmd\. Marshall. \ ■.„ -^ ., r , i ^ j 13. Equity rejorms general covenants entered 7. Young v. Raincock. \ -^^^ ^^ mistake. CH. 15. S. III.J IN COVENANTS FOR TITLE. 493 1. Although the usual and technical manner of restraining covenants is not adopted, yet an agreement, in any part of a deed, that the covenants shall be restrained to the acts of particular persons, will be good, notwithstanding that the covenants themselves are general and unlimited («). 2. General covenants will not, however, be cut down, unless the intention of the parties clearly appears. Therefore, in the case of Cooke V. Fowndes (Z»), where the vendor covenanted that he was seised of a good estate in fee, according to the indenture made to him hy B (of whom he purchased), it was determined to be a general covenant ; for the reference to the conveyance by B served only to denote the limitation and quality of the estate, and not the defeasible- ness or indefeasibleness of the title. 3. Where restrictive words are inserted in the first of several covenants having the same object, they will be construed as extending to all the covenants, although they are distinct. Thus, in Browning V. Wright (c), where a vendor who claimed an estate in fee by pur- chase, sold the estate, and covenanted first, that notwithstanding any- thing by him done to the contrary, he was seised in fee, " and that he had good riglit, &c. to convey in manner aforesaid," it was holden that the generality of the latter covenant was restrained by the restrictive words in the former (d), for the purchaser was according to the general practice entitled to limited covenants only, and the special covenants would be of no use if the other were general ; besides the words and that coupled the latter part of the covenant with the former part, and the latter part was overridden by the in- troductory limited words. 4. So in a case, wliere the seller of a leasehold estate depending upon a life covenanted that, notwithstanding any act by him done, the lease was valid, and that the same and the term therein expressed was in full force, and in nowise determined, &c., otherwise than by effluxion of time, the second covenant was held to be restrained by the first, and was therefore not broken, although the life upon which the lease depended had dropped before the assignment. It was con- sidered to be no objection to this construction that these last words rendered the restriction nonsensical, as effluxion of time could have been no act of the covenantor (^e). And the facts that the seller knew the life had dropped before the assignment, and had paid rent to the lessor (a) Brown zj. Brown, 1 Lev. .57. Senate, 13 Ea. G3 ; Barton r. Fitzgerald, \b) 1 Lev. 40; 1 Keb. 9j; Noble t". King, 15 Ea. 530; Stannard v. Forbes, G Ad. & 1 H. Black. 34 ; Proctor v. Johnson, Yelv. El- 572. 175; Cro. Eliz. 809; Cro. Jac. 233; 2 (c) 2 Bo. & Pul. 13; Nervin t'. Munns, Brownl. 212, judgment of C. P. affi. The 3 Lev. 4G. grant was of the whole estate, and the con- (rf) 3 Bo. & Pul. 574; Peles r. Jervies, dition was to perform all gi-ants ; see 1 Nev. Dy. 240, marg. ; Cro. Jac. 015, pi. 5. & Per. 639; 2 Bo. & Pul. 25; Seddon r. (e) Stannard r. Forbe.s, 1 Nev,&Per.6333 494 EXTENT OF RESTRICTIVE WORDS [CH. 15. S. III. after tliis knowledge, so as to create a tenancy from year to year, were deemed immaterial ; for the construction of tlie covenant could not depend upon the covenantor's knowledge, and the lease had expired before the tenancy from year to year was created, so that the act of the seller did not affect it. 5. But (_/") where the covenants were introduced Avith the usual words, restricting them to the covenantor's own acts, but the cove- nants for quiet enjoyment ended thus: "of or by the said grantors or any of them, &c. or of or hy any other person or persons whatsoever ;" and the covenant against incumbrances was general, excepting only a chief-rent ; it was determined, that the covenant for quiet enjoyment was not restrained by the introductory words of restriction, but was general and unlimited ; for the covenant was a distinct covenant from the covenant for title (y), and a man may not choose to guarantee his title generally, and yet may readily imdertake that the possession shall not be disturbed ; no case was found in which it was held that the covenant for quiet enjoyment was all one with the covenant for title, or in necessary construction to be governed by it otherwise than as according to the general rules for the construction of deeds. 6. In a later case (A), the covenants in an assignment of a leasehold estate were, 1, that notwithstanding any act by the seller3 the lease was a good lease ; 2, " and further, that " the purchaser might peace- ably enjoy without any interruption from " the seller, his executors, administrators or assigns, or any other person or persons whatsoever having or lawfully claiming, or who should or might at any time or times thereafter, during the said term, have or lawfully claim any estate," &c., in the premises ; and that free from incumbrances by the seller ; and, moreover, for further assurance by the seller, his execu- tors and administrators, and all persons claiming by, from, under or in trust for him or them. All the covenants therefore were restricted to the acts of the seller, except the covenant for quiet enjoyment, which in words expressly extended to all mankind. It was held by three Judges against one, that the covenant for quiet enjoyment was restrained to persons claiming under the seller, and this case was distinofuished from Howell v. liichards, on the o-round that there the covenant, respecting incumbrances, contained words as general as the words of the preceding covenant for quiet enjoyment, with one single exception, viz., the chief rent, which was not an act or default of the party, or of any claiming under him ; this exception, therefore, con- firmed the generality of all the other words. 6 Ad. & El. 572; Broiighton v. Conway, (h) Nincl u. Marshall, 1 Bro. & Bin. 319 Dy. 240 ; Moo. 58 ; 8 Ea. 89 ; 1 Brod. & 3 Moo. 703 ; Foord v. Wilson, 8 Tau. 543 ; Bin. 3-10; 3 Moo. 730. 2 Moo. 592; Barton v. Fitzgerald, 15 Ea. (/) Howell V. Richards, 11 Ea. G33. 530; 3 Bar. & Ad. 195; depended on par- (tj) See Blatchlbrd r. Mayor of Plymouth, tieular circumstances ; general rule the other 3 Bin. N. C. 691. way. CH. 15. S. III.] IN COVENANTS FOR TITLE. 495 7. In a still later case, where it was recited in tlie conveyance that the seller was heir of A, and that A had died intestate, and that the seller was seised in fee, and the covenants were : 1. notwithstanding any act by the seller or A for good title ; 2. and that notwithstanding any such act for right to convey ; 3. and for quiet enjoyment against the seller, his heirs, &c., or any person claiming by, from, or under or in trust for him or them or the said A deceased; 4. and that free from incumbrances by the seller or the said A, or any other person or persons claiming by, from, or under or in trust for them or either of them; and 5, for further assurance by the seller, his heirs, &c., and all persons claiming by, from, or under or in trust for him or the said A deceased. This seems a very plain case, but it was insisted that the recital bound the purchaser by estoppel from averring that the seller was not heir of A (which point was not decided, but which it would be difficult to support), and that the covenant for quiet enjoyment was by construction confined to persons claiming by the acts of the seller or A, in consequence of the words of restriction at the beginning of the covenant. It was of course held that the covenant for quiet enjoyment was not thus restricted, and therefore that it extended to an eviction by the heir at law of J, the seller being illegitimate (i). The purchaser, we may observe, was not only entitled to covenants which Avould protect him against the title of the true heir ; but the covenants were technically drawn and distinct, and the covenant for quiet enjoyment expressly extended to persons claiming under A, so that to cut down the operation of this covenant, most important words must have been struck out of the deed, which, if it had been done, would have rendered that covenant inconsistent Avith those which followed. 8. But where the Jirst covenant is general, a subsequent limited covenant will not restrain the generality of the preceding covenant, unless an express intention to do so appear, or the covenants be incon- sistent, or as expressed by the Court in a case quoted below, unless there appear something to connect the general covenant with the restrictive covenant, or unless there are words in the covenant itself amounting to a qualification (k). In Gainsford v. Griffith (/), on an assignment of a leaseheld estate, the vendor covenanted that the lease was a good, certain, perfect and indefeasible lease in the law, and so should remain during the residue of the term, and that the purchaser, his executors, administrators and assigns, should quietly enjoy the premises without any let, denial, &c. by the vendor, his executors or Jissigns ; and acquitted or otherwise saved harmless of all incum- brances committed by the vendor. The generality of the preceding (i) Young V. Raincock, 7 C. B. 310. 23, 25 ; 1 Bro. & Bin. 331 ; 3 Moo. 723; (k) Smith V. Compton, inf. Martyn r. M'Naniaia, 4 Dru. Si War. 4] 1. (/) 1 Saund. 58; 1 Sid. 328 ; 2 Bo. & Pnl. 496 EXTENT OF RESTRICTIVE WORDS, ETC. [cil. 15. S. III. covenant was held not to be restrained by the latter covenant, for one covenant went to the title and the other to the possessio7i (m). So in Hesse v. Stevenson (?<), where, on an assignment of certain shares of a patent right, the assignor covenanted, that he had good right, &c. to convey the shares, and that he had not by any means, directly or indirectly, forfeited any right or authority he ever had or might have had over the same, it was decided that the generality of the first covenant Avas not restrained by the latter Covenant ; the omission of the words " for and notwithstanding any act by him done to the contrary," was considered almost of itself decisive. 9. In Smith v. Comi;)ton (o), the deed was a common conveyance under a power, the creation of which was recited in the usual way. The covenants by the seller were, 1. That the power was in full force ; 2. and that he had good right to appoint and convey ; 3. and further for quiet enjoyment against the seller or any person or per- sons claiming or to claim by, from or under, or in trust for him ; 4. and that free from incumbrances made by the seller, or any other person or persons claiming or to claim by, from, through, under, or in trust for him ; and 5. for further assurance by the seller, and all persons claiming or to claim by, from or under or in trust for him ; and it was determined that the second covenant for right to convey was absolute and not qualified by the subsequent covenants. 10. And as, on the one hand, a subsequent limited covenant does not restrain a preceding general covenant, so, on the other, a pre- ceding general covenant will not enlarge a subsequent limited cove- nant. Where (p) a person seised in fee under letters patent conveyed the estate to a purchaser, reciting the grant from the Crown, and the title was deduced from the grantee to the vendor, who covenanted, 1, that he was seised in fee; 2, had power to convey; and 3, that there was no reversion in the Crown, notioithstandinc/ any act done by him ; it seems to have been decided that the restrictive words to the last covenant did not extend to the two preceding ones ; the Court presuming the intention to be that the vendor should enter into an absolute covenant for his seisin in fee in all cases but one, namely, that he should not be liable on the objection of a reversion in the Crown, unless that reversion was so vested by his own act {(j). 11. Where the covenants are of divers natures, and concern dif- ferent things, restrictive words added to one shall not control the generality of the others, although they all relate to the same land (/•). Thus, where A covenanted that he was seised in fee notwithstanding any act done by him, and that the lands were of a certain annual (wj) Norman v. Foster, 1 Mod. 191. 1 Sid. 328 ; 2 Bo. & Pul. 19. (n) 3 Bo. & Pul. 565. {q) 2 Bo. & Pul. 25. (o) 3 Bar. & Ad. 189, overruling Milner (/) 3 Lev. 47; Crossfield v. Morrison, V, Horton, M'CIel. G47. 13 Jur. 505. (;>) Trenchard v, Hoskins, Winch, 91 ; CH. 1.5. S. IV.] GENERAL COVENANTS BY MISTAKE, 497 value ; the latter was holdcn lo be an absolute covenant, that the lands were of the stated value (a). 12. A covenant " that lands were of the value of 1,000/. j)er annum, and so should continue, notwithstanduig any act done or to be done by the covenantor," was holden to be only a covenant that the cove- nantor had not lessened the value {i). 13. This subject must not be closed without observing, that if general covenants are entered into contrary to the intention of the parties, equity will, on sufficient proof, correct the mistake in the same manner as errors are corrected in mamage articles, and will relieve against any proceedings at law upon the covenants, as they originally stood (?i). (s) Hughes V, Bennett, Cro, Car. 495 ; 1 Jones, 403 ; Crayford v. Crayford, Cro. Car. 106. (0 Rich V. Rich, Cro. EHz, 43. (?<) Coldcott V. Hill, 1 Ch. C. 15 ; 1 Sid. 328 ; Fielder v. Studly, R. t. Finch, 90 ; 2 Bo. & Pul. 26 ; 3 Bo. & Pul. 676 ; sup. SECTION IV. OF THE REMEDY UNDER COVENANTS FOR TITLE. Action for damages on eviction. But no relief unless within the covenant, or fraud. What is a breach. Damages where copgholdand not freehold. Breach although no estate passed. Purchaser mag trait till eviction. Damages under covenant for further assurance. Interest. Purchaser's remedy under covenants where he has mortgaged. Improvements and buildings. Contingent incumbrance. Effect of want of 7ioiice to seller from purchaser of adverse suit. Bankruptcy, H^'c. no bar of covenant for title. — Action against devisees. Specific performance of covenant for further assurance. Seller bound to confirm, although breach of a covenant by purchaser. Duplicate of conveyance : covenant to produce deeds. Relief against assignees. Relief in equity against covenants for title. Judgments, is,'c. , Limited time for further assurance. . Unnecessary act cannot be required. Costs to be tendered. . Assurance to be devised by counsel or party. — What time is allowed for the execution nf a further assurance. . Bond cannot be required. "\ What covenants may be required in J assurance. , Whe7'e a trustee conveys by xvay of firther assurance. 1. If a purchaser be evicted, and the eviction Is within the cove- nant, he may of course bring an action at law for damages. 2. But, as we have already seen, unless the eviction be within the covenant, or there was a fraudulent concealment of the defect, a pur- chaser cannot recover the purchase-money In case of eviction, either at law or in equity (o). («) Sup. ch. 13, s. 'i. I I 498 OF THE REMEDY UNDER [CH. 15. g. IV. 3. A general covenant that the seller is seised or possessed of the estate for the interest granted, is broken immediately after the execu- tion of the deed if the seller has not the fee or estate granted (b), and the purchaser need not wait till he is evicted ; but this is not peculiar to a general covenant, for a limited covenant would likewise be at once broken if the title were bad within the limits of the covenant. And the pvu'cliaser may negative the alleged seisin or possession of the seller without stating affirmatively what estate he has (c). Of course the same observations apply to a covenant for right to convey {d). But a covenant for quiet enjoyment affords no right of action until a disturbance : the erection of a gate which obstructs the covenantee's necessary right of way, whether set up by right or by Avrong, would be a breach of the latter covenant {e), for in either case an obstruction ought not to be erected there. As to the covenant that the estate is free from incumbrances, which is always connected Avitli the covenant for quiet enjoyment, there is an oljvious distinction between a covenant that the estate is free from incumbrances, which is not the form of the common covenant, and which would be broken as soon as made if there were any incumbrance (f) ; and a covenant • like that commonly entered into by the vendors that the purchaser shall enjoy free from incumbrances^ which so long as he do, the covenant would not be broken (ff). 4. If the estate was sold as freehold, with a general covenant that the seller was seised in fee, and it prove to be copyhold, the measure of damages will be according to that rate that the country values fee-simple laud more than copyhold (A). 5. It is immaterial that no estate passes by the conveyance, for if a man grant to another his manor of Dale, in which he has nothing, and covenants that he had good right to grant this, this clearly is a breach of covenant (i). 6. And the covenantee may Avithout prejudice to his remedy wait till he is evicted, although the breach is the Avant of title or right to convey, and the eviction is only a consequential damage (A). If the only covenant is for quiet enjoyment, the purchaser must wait until lie is evicted. ^ 7. Where the covenant is for further assurance, if the seller will /a- /2'iA- /■^'^' not convey, the purchaser may recover the whole value of the estate (/), although generally it is wise to Avait until the ultimate .(i) Salmon ir. Bradshaw, Cto. Jac. 304. (/) Hurrington v. Rydear, 1 Lev. 02 j (c) S. C, Muscotc. Ballet, Cro.Jac. 360. Moo. 249, pL 393. (rf) Chamberlain v. Ewer, 2 Buls. 11; (r/) Vane «. Ld. Barnard, Gilb. 7. Nash V. Aston, Skin. 42; King r. JoneH, b (/;) Gray v. Briscoe, Noy, 142, (rf. not). Tan. 418, (i) Par AVilliams, J., 2 Buls, 12 (2d (e) Andrews v. Paradise, 8 Mod. 318; number). Morris v. Edgington, 3 Tau. 24 ; Plant v. {Ji) King v. Jones, 5 Tau. 418, James, 5 Bar. & Ad. 794; Kidder v. West, (/) Per Mansfield, C. J., 5 Tau. 420, 3 Lev. 107. CH. 15. S. IV.] COVENANTS FOR TITLE. 499 damage is siu^tained, for otherwise he could not recover the whole value (m) ; but where the title is defective, a purchaser would not be bound to wait, but might bring his action of covenant, and if necessary offer to reconvey the interest or title actually vested in him. 8. In one case, where the purchaser obtained only a mortgage title, and was compelled to reconvey upon payment to him of the mortgage- money, the jury gave him as damages a sum sufficient to make up the residue of the purchase-money and interest since he was evicted ; and this was supported as the plaintiff was entitled to recover damages for all the time j)assed during which he had been kept out of possession {n). 9. If the i^urchaser has made a mortgage, he cannot recover in an action against the seller on the covenants, but the seller would not be permitted to avail himself as against the purchaser of a dealing w4th or release by the mortgagee, for equity would allow the pur- chaser to bring an action against the seller for damages, and would prevent the seller from setting up as a defence the mortgage or the dealings with the mortgagee (o). 10. It is doubtful whether in an action on a covenant for quiet enjoyment of an estate sold, the plaintiff who has been evicted could recover for liis improvements and buildings (/?). 11. Where a man as-rees to take a covenant ao-ainst incumbrances and there is a contingent incumbrance, if an action at law be brought upon the covenant there would not be recovered twopence damages till a breach, which possibly may never ha})pen {(f). 12. A purchaser is not bound to give notice of an adverse suit to the covenantor ; but if he compromise it, may recover the whole sum paid and his costs between solicitor and client, if the claim was within the covenant. But the other party wall be at liberty to prove that the purchaser made an improvident bargain, and that the defen- dant might have obtained better terms if the opportunity had been given to him (r). 13. An action for breach of a covenant for title {s) will not be barred by the bankruptcy and certificate of the covenantor, although the cause of action accrued before the bankruptcy. And now an action of covenant will lie against a devisee {t) ; and damages under a breach of covenant for quiet enjoyment after the death of the (m) Per Heath, J., 5 Tau. 428. see Duffieldw. Scott, 3 Term R. 374; Short (n) King v. Jones, 5 Tau. 418; Ander- v. Kalloway, 11 Ad. & El. 28. ton V. Arrowsmith, 2 Per. & Dav. 408 ; Ware (•'') Hammond v. Toulmiii, 7 Term R. G12; V. Bickerton, 19 L. J., N. S., 254. Mills v. Anriol, 1 H. Black. 433. (o) Thornton v. Court, 3 De Ge. Mac, & {') Wilsons, Knublcy, 7 Ea. 128; Farleyr. Gor. 293. Briant, 3 Ad. & El. 839; 1 W. 4, c. 47, s. 3; {p) 8 Tau. 715. 8 & 4 Will. 4, c. 104 ; 2 My. & Cra. 708; Iq) Per Ld. Cowper, Gilb. E. R. 7. 7 Sim. 54G ; Sparkman v. Timbrell, 8 Sim. (/•) Smith V. Compton, 3 Bar. &: Al. 407 ; 253 ; Hauler's case, 3 De Ge. & Sma. 279. I i2 500 OF THE REMEDY UNDER [CH. 15. S. IV. covenantor are a debt of his within a trust by his will to pay all the just debts which he should owe at his death (ii). But damages re- covered in an action for breach of a covenant running with the land, are not to be considered as part of the inheritance, and therefore a tenant for life recovering would hold the damages for his own benefit, and the remainder-man would be driven to a new action (v). 14. If the title prove bad, and the defect can he supplied hij the vendor, the purchaser may file a bill in equity for a specific per- formance of the covenant for further assurance. And a vendor, who has sold a bad title, will, under a covenant for further assurance, be compellable to convey any title Avhich he may have acquired since the conveyance, although he actually purchased such title for a valu- able consideration {x). But after a conveyance executed, a bill cannot be filed for compensation. 15. If the purchaser has broken a covenant in the deed, yet if that and the covenant for further assurance were not dependent covenants, the seller Avill be compelled to make good the conveyance, and be left to his remedy under the purchaser's covenant {y). If the title is bad, and the loss is a claim on the assets, there may be an issue to ascertain the damages (r). 16. It seems that, under a covenant for further assurance, a pur- chaser may require a duplicate of the conveyance to be executed to him, in case he is compelled to part with the original to a purchaser from him of part of the estate (a) ; but it may be doubted whether he can require a covenant to produce the title-deeds if the purchase was completed without such a covenant (b). 17. So if the vendor become bankrupt, the purchaser may call upon the assignees to execute further assurances, although the vendor was only tenant in tail, and did not bar the entail (c). 18. But if the original contract was not fit to be executed by equity, the Court w411 not interfere in behalf of the purchaser, but leave him to his remedy at law {d). And if the title prove bad, and the purchase was made at a great undervalue, equity will relieve the vendor against an action on the covenants for title, allowing the pur- chaser his purchase-money, with interest only, he discounting the mesne profits (e). (m) Birmingham v. Burke, 2 Jo. & Lat. (o) Napper v. Ld. Allington, 1 Eq. Ca. 699; Morse v. Tucker, 6 Ha. 79; Cox v. Ab. 166, pi. 4. King, 9 Bea. 630 ; Norman v. Stiby, 9 Bea. {b) Fain v. Ayers, 2 Sim. & Stu. 533 ; 560. sup.; HalIett».Middleton,l Bus. 243; and {v) Noble V. Cass, 2 Sim. 343. suj). {x) Taylor v. Debar, 1 Ch. C. 274 ; 2 Ch. (c) Pye v. Daubuz, 3 Bro. C. C. 595 ; see C. 212; Seabourne r. Powell, 2 Ver. 11 ; 3 & 4 Will. 4, c. 74, s. 55 to 69; sup. ch, ch. 23. 12, s. 4. (?/) Gibson v. Goklsmld, 1 Jin-., N. S., 1. ('0 Johnson v. Nott, 1 Ver. 271. {z) Wade r. Paget, 1 Bro. C C. 363. (c) Zouch v. Swaine, 1 Ver. 320. CH. 15. S. IV.] COVENANTS FOR TITLE. 501 19. Under a covenant for further assurance a purchaser may, of course, require the removal of a judgment or other incvmibrances {f). 20. If the time for further assurance be limited, the purchaser must take care to require the act to be done within the time whilst the parties are competent to do it {[/). 21. A covenant to do all reasonable acts means such acts as the law requires ; and if it be an unnecessary act wliich is called for, it is not a reasonable act, or one which would be required by law {h). 22. It was ruled by Holt, C. J. (/), that if A covenant with B to make further assurance to B, at the cost of B, A ought to give notice to B what sort of assurance he will give, and then B ought to tender the costs, and then A ought to make the assurance ; but according to the common covenant for further assurance, the sort of assurance is to be pointed out by the purchaser, so that he would have to tender the costs at the time he required the assurance. 23. If the covenant be to make such further assurance as the pur- chaser's counsel shall advise, the purchaser himself cannot devise the assurance (A), but this technicality is obviated by the usual form, Avhich requires such further assurances to be executed as the pur- chaser, his heirs or assigns, or his or their counsel shall advise, or devise and require, which means what it expresses, that either the party or the counsel may devise the assurance. And the seller should be permitted to read the assurance, and to go to his own counsel to consider it, and to have convenient time after the assurance shown to him to perfect it (/) (I). In the ordinary course of business, the draft of the intended assurance is sent to the seller for his perusal, and to enable him to take counsel's advice upon it ; and the Courts would no doubt, upon a review of the authorities, feel themselves at liberty to adopt a reasonable rule on this subject. (/) Per Heath. J., 5 Tau. 427. see Hallings v. Connard, Cro. Eliz. 317. {g) Nash v. Ashton, Skin. 42. {h) Bennet's case, Cro. Eliz. 9; Baker v. (h) Per Wood, B., in Warn v. Bickford, Bulstrode, 2 Lev. 95; 1 Mod. 104. 9 Pri. 43. {I) Bennet's case, ubl sup. (i) Heron v. Treyne, 2 Ld. Ray. 750; (I) But in Manser's case, according to Coke's report, 2 Rep. H a, it was laid down, that where a man is literate, he is bound by law to deliver it presently upon request, and hath not time to consult upon it with counsel learned in the law ; but the case turned upon the pleading and upon the distinction taken where, as in that case, the act was to be performed by a stranger and not by the covenantor : Moo. 182, pi. 326; and indeed in Leonai-d's report, it is stated, that the obligation was to execute the assurance on the 1st of January, and the deed was not tendered till before sun-setting on the 31st of December, so that, if not then executed, the obligation would have been avoided, and it is there said, that the opinion of the justices was that the obligation was forfeited, for wlien he knew the last instant of time, he ought to liave had his counsel then ready with him : 4 Lev. Gl. But although this point was mooted (see Moo. 183), it does not appear to have arisen in the case: see the pleadings in Coke. The case which was mainly relied upon in Manser's case was decided before Ben- net's case, which latter seems to give the true rule, and the former case can liai-dly be said to raise the point, because the obligor refused to execute the deed, and did not simply I I 3 502 THE REMEDY UNDER COVENANTS FOR TITLE. [CH. 15. S. IV. 24. A mere agreement to convey an estate as a third person should advise, of course would not justify the requisition that beyond the conveyance the seller should enter into a bond for quiet enjoyment against all persons (m), or indeed any bond at all. 25. But this was carried further, and it Avas held that an agree- ment by a seller to convey the estate by such reasonable assurance as by the purchaser should be advised and required, did not authorise the purchaser to require a conveyance Avith common covenants ao-ainst incumbrances by the seller, and for further assurance, be- cause the agreement was not to make the assurance with reasonable covenants (ji). 26. And it is still clear that there must not be ani/ warranty in such a deed, and indeed no warranty is now ever contained in a common conveyance. But in Lassels v. Catterton (o), where under a common covenant for further assurance, a conveyance was tendered Avith the usual covenants, Mr. Justice Twisden said, that he knew it had been held that if a man be bound to make any such reasonable assurance as counsel should advise, usual covenants may be put in, for the covenant shall be so understood. 27. Where the agreement is to convey an estate upon a sale, the purchaser would have a right to a conveyance with usual covenants, although nothing was expressed about covenants in the agreement. But Avhere the couA^eyance is really a further assurance, the pur- chaser must be supposed to have already obtained all such covenants for title as he was entitled to, and therefore could not require any new ones from the seller in the further assurance. If a trustee were to convey an outstanding legal estate to the purchaser, in pursuance of the seller's covenant for further assurance, he not having before entered into any covenant, Avould be bound to covenant in the usual Avay that he had done no act to incumber the estate : and the seller would be compellable to procure a conveyance from him with such a covenant. No real difficulty is likely to arise in practice upon this point. (»n) Staynrode v. Locock, Cro. Jac. 115. (o) 1 Mod. 67. (n) Coles V. Kinder, Cro. Jac. 571. require time to consult his counsel : And the tender itself was traversed ; and it was upon a motion in an-est of judgment that it was said, the obligor required time to place the deed before his counsel to be advised upon it; sed hoc non allocatur Dyer says, for the covenant was peremptory, viz. to be performed presently at his peril : Wotton v. Cooke, Dy. 337 b. pi. 39; Fitzhugh v. Dennington, 2 Ld. Ray. 1096. [ 503 ] CHAPTER XVI. OF SATISFIED TERMS. Cesser of terms under 8 i)' 9 Vicl. Nature of attendant term. Union of term and inheritance a merger. Unless freehold in aiitei" droit. Particularly if union by act in law. Tenant by the curtesy and termor. Executor haiiny a term and buying the fee. Freeholder in his oum right and termor in auter droit no merger — Freeholder marrying the termor — Grant by lessee to the vife of lessor. Purchase of freehold by termor in right of his wife. Lessee appoints freeholder executor no merger. Years may merge in years — Term saved where termor releasee, li^'c. to iises. Resuscitation of tei'm or creation of new one. Law V. Urlwin, Observations thereon. Provisoes for cesser. < Presumption of surrender. 8 (Sf 9 Vict. c. 112, directing terms to cease. y Protection afforded by term Not J against Croivn debt. Utiless term not assigned for Croivn debtor. Against doiver — But term must have been assigned. Freer v. Hesse. Term in gross attends by implication if it would merge by union. Although there is an intervening term to which purchaser is entitled — And a nominal reversion is left outstanding but no charge. Lnplication may be rebutted. The new statute. 1. This was one of the most important chapters in the original work on Vendors and Purchasers, but it is now comparatively of little importance in consequence of the Act to which we have already referred («), which creates an absolute cesser of every term which on the 31st December 1845, by express declaration or by construction of law was attendant on the inheritance. But as the protection of every such term where attendant by express declaration is preserved, it will still in such cases be necessary to revert to the old law. Every term becoming satisfied after that day, and which by express declaration or by construction of law becomes attendant upon the inheritance at once ceases (h), so that it is still necessary to know when a satisfied term attends by construction of law ; and in many cases the question will still arise whether a term has ceased by force of a proviso for cesser in the instrument creating it, or if not, whether a surrender of it can be presumed ; and of course the law as to the merger of terms in the freehold remains unaltered (I). 2. I. Of tlie nature of an attendant term we need now only (a) 8 & 9 Vict. c. 112, s. 1. (6) S. 2. (I) In Ti'oUope v. Routledge, 1 De Ge. & Sma. 6G2, a married woman, legal tenant in tail, subject to a term to secure a jointure, was lield to have an equitable estate during tlie term, wliicli entitled her to a settlement on a bill filed by her. This, I apprehend, is alto- gether a new view of the rights of such a person, and it seems difficult to support the decision. I I 4 504 NATURE or ATTENDANT TERM. [CIT. 16. observe, that, wliether attendant by express declaration or by Impli- cation, It was <>-overned by the same rules as the inheritance itself was subject to. Therefore it would not have been forfeited by the felony of the owner of the inheritance (c) ; but if the inheritance had escheated, the term would have gone with it (d). So where a de\ isor intended the inheritance to pass, but by reason of the infor- mality of the will, it descended to the heir, the term would not have o-one to the devisee but followed the inheritance in its devolution on the heir (^')- The same principle was followed as regarded an at- tendant term being assets for the payment of debts, but the dis- tinctions on this head were swept away before the statute creating a cesser of the term, by the 3 & 4 Will. 4, c. 104, which made all free- hold, customary-hold, and copyhold estates assets to be administered in equity for the payment of even simple contract debts, but cre- ditors by specialty, in which the heirs are bound, are to be paid in full before the creditors by simple contract or by specialty in which the heirs are not bound are to be paid any part of their demands (/) ; which provision makes an equity of redemption of a mortgage in fee legal assets {(/). 3. II. As to the merger, cesser by proviso, or presumption of the surrender of a term : 4. Where a term of years and the inheritance meet in one person in the same right, the term is extinct. 5. So a man cannot, Sir Edward Coke says, have a term for years in his own right, and a freehold in auter droit, to consist together {h) ; and he illustrates this rule by stating, that where a man, lessee for years, takes a feme lessor to wife, the term is extinct. But this position appears to be contradicted by the case of Lichden v. Wins- more (/), in which it was held, that if there be lessee for years, rever- sion for life to A, a, married woman, and the lessee grant his estate to the husband, and then the wife dies, the term is not extinct, because the husband has the estates in several rights, for the freehold was in the wife, and the husband was merely seised in her right; or, to speak more correctly, the freehold was in the husband and wife, although in her right (A). 6. And it is clear, that if in a case like this, the coalition be not (c) Att.-gen. V. Sands, 3 Ch, R. 19; the statute of frauds ; Bret, r, Sawbridge, 3 Hard. 488. Bro. P. C. 141, Tom. ; Fearne Ex. Dev. by (d) Thruxton v. Att.-gen., 1 Ver. 340,357 ; Pow, 145, n. (a) ; App. Purch. No. 17. Ld. Downe v. Morris, 3 Har. 394. As to (/) Price v. Price, 15 Sim. 484. felony, &c. by the trustee, see 4 & 5 Will. 4, {g) Poster v. Ilandley, 1 Sim. N. S. 200. c. 23. {h) 1 Inst. 338 b.; 9 Ea. 372. (e) Tiffin V. Tiffin, 2 Ch. C. p. 49, 55; 2 (i) 2 Rol. R. 472; 1 Ro. Ab. 934, pi. 10; Free. GO ; Whitchurch v. Whitchurch, Gilb. Ben. 141 ; Thorn v. Newman, 3 Swan. 603. E. R. 168; Villiers v. Villiers, 2 Atk. 71 ; (h) Polyhlank r. Hawkins, Doug. 329. Nourse v. Yarworth, Finch, 155, was before en. 16.] OF THE MERGER OF TERMS. 505 occasioned by the act of the termor, the term will not merge. Thus the descent of the fee upon the wife of a termor for years after the intermarriage will not drown the term, because the estates do not coalesce by the act of the termor for years (l), and the term he holds in his own right, and the freehold in right of his wife. But Coke's doctrine was not overruled without opposition. 7. Where, however, a husband, termor for years, seised of the freehold in right of his Avife, has issue by the wife, so that he is entitled, in his own right, as tenant by the curtesy, there seems reason to contend that the term will merge (?w). 8. A term vested in a person as executor ma?/ belong to him beneficially ; and it therefore seems, that if he purchase the reversion, the term will be extinct ; but there is an obiter dictum of Holt's in Cage V. Acton {71), where he admitted (as a point perfectly clear) that if a man hath a term as executor, and purchases the reversion, this is no extinguishment. But in Brooke's Abridgment, it is in three several places (0) stated to have been held by the Judges Hales and Whorwood, in 4 Edw. 6, that if a man has a lease for years as exe- cutor, and afterwards purchases the land in fee, the lease is extinct ; and this position is cited and not denied in several cases (p), and is adopted by Rolle in his Abridgment (q). So in a case in Leonard (r). Dyer explicitly laid down the same doctrine ; and it has been treated as clear law in two cases, one of which is reported by Hetly (.s), and the other by Freeman (t). And in one case one of the Judges thouoht, that even the descent of the fee on the executor would merge the term (m), although Gilbert justly questions this position (x). The rule, that a purchase of the fee by the executor shall merge the term, appears to be founded in reason as well as upon authority ; for, as far as his own interest is concerned, there cannot be any reason why the term should not merge. It is admitted, how- ever, on all hands, that the term shall not be extinct as to creditors, and this I am induced to believe, from Raymond's report of Cage v. Acton, is all that Holt meant (?/), although his dictum is so generally stated in Comyns's and Salkeld's reports of this case. At any rate, it was an obiter dictum, and cannot affect a doctrine apparently so well established ; and it is therefore submitted to the reader, that in a case of this nature the term must merge in the inheritance, except as to creditors. (l) Ly. Piatt V. Sleap, Cro. Jac. 275; 1 (;;) 3 Leo, 111 ; 2 Rol. R. 472, Buls. 118; Jenk. 2d Cent. pi. 38; Doe v. (). But it must be a strong case, and clearly made out, in which he shall not pay interest wher e lie has received the rents and profits (g). 7. Where part of a farm had been allotted in lieu of tithes to an impropriator, who agreed to sell it to the owners of the farm for a i)rice to be paid at a short day, on a good title being made and executed, and the possession remained in the purchaser undisturbed, who paid no tithes, but for want of an award twenty-seven years elapsed before a good title could be made, the purchaser was ordered to pay interest at four per cent, from the day fixed for completing the contract (/•). The act of taking possession is an implied agreement to pay interest ; for so absurd an agreement as that the purchaser was to receive the rents to which he had no legal title, and the vendor was not to have interest, as he had no legal title to the money, coidd never be implied (a-). (m) Wallis v. Bastard, 2 Eq. R. 508; 4 (p) Blount v. Blount, 3 Atk. G:3G. De Ge. IMac. & Gor. 251. (7) 8 Vcs. 148, 14i); Comer r. "Walker (I); (7*) Smith V. Dolman, G Bro. P. C. by T. Reg. Lib. A. 1784, ib. G-25; Smith v. Skel- 2m. ton, Reg. Lib. B. 1799, fo. 807. (0) Blount V. G. S. & W. Ry. Co. 2 Ir. C. (r) Att.-gcn./;. Christ Chm'ch,l.') Sim. 214. R. 40. (i) Fludyer v. Cocker, 12 Ves. 25. (1) The pm-chaser had been in possession 22 years without a conveyance, and the pur- chase-money not paid. The delay was not his, and he said his money was always ready. Ld. Thurlow compelled him to pay four per cent, from the time he entered into possession. liK2 516 OP INTEREST. [ciI. 17. S. I. 8. AikI where a purchaser took possession under the contract (/), and upon the Master's report of a fact which he considered fatal to the title, returned the possession, and the Court ultimately held that he was bound to complete his purchase, Lord Eldon observed, that if the purchaser ultimately obtained possession he must be considered by relation as in possession, undtr that title, from the time at which he took possession, and from that time must receive the rents, and account for interest on the purchase-money. But it is for those who sell, un- dertaking that the purchaser may have possession at a particular day, to show that they were in a condition then to give possession. In that case he must pay interest from the time at which he took posses- sion, and even for the time during which he returned the possession (m). 9. Whilst a material objection to the title remains to be cleared up, a purchaser is of course justified in declining to take possession, and the Court Avill not compel him to pay interest (x). If it be agreed that the purchaser shall take i)ossession of the estate, and pay interest on the purchase-money from that time, and it afterwards ai)pear that a long time must elapse before a title can be made, the purchaser will be entitled to rescind the agreement. But if the purchaser acquiesce in the delay until the contract is nearly carried into execution, he cannot then appropriate the purchase-money, and by giving notice of that circumstance to the vendor, discharge himself from the pay- ment of interest (y) ; nor can he claim any compensation from the (0 2 Swan. 226. Carrodus v. Sharp. 20 Bca. 56. (u) Binks v. Lord Rokeby, 2 Swau. 222. (y) Dickenson r. Heron, Rolls, 16th j^'(.r) Forteblow v. SliMey, 2 Swan. 223; March 1804, MS. (I); FJudyerr. Cocker, «/j[;. /^ -ra])h, and that general rule was fuUowed in the case of Jones v. Mudd (z), where there was no stipulation for interest on the purchase- money (although there was for it as mortgage-money when so secured), and the delay was with the seller, and therefore interest was given only from the time the title was made ; Lord Lyndhurst in affirming the decree expressed his assent "to the rule," as stated in Esdaile v. Stephenson. Lord Cottenham in one case observed that Jones and Mudd cannot be reconciled with Esdaile v. Stephenson, or indeed with jNIonk and Huskisson, to which Ave shall presently refer (I). It is difficult to see how Jones r. Mudd runs adverse to Esdaile v. Stephenson, for in Jones v. Mudd there was no stipulation for interest on the pur- chase-money ; the case depended upon the general rule, and appears to have been properly decided. Esdaile v. Step)lienson depended upon the contract for interest. In a case before Lord Cottenham, where possession and receipt of rents and payment of interest were pro- vided for on and after a day fixed, although the purchase was not completed for a long time afterwards, and the purchaser took and then abandoned possession, and a receiver was appointed — as there Avas no great delay in procuring a release from a jointress, the purchaser was compelled to pay interest from the time he took possession. The fact of possession was of no consequence, because the parties had con- tracted {a). To some extent, therefore, Esdaile v. Stephenson Avas followed. 26. In Esdaile v. Stephenson the simple contract for interest pre- vailed ; yet in the much stronger case of Monk v. Huskisson {h), Avhere the contract fixed a day for the conveyance to be executed, and provided for payment of the purchase-money, and the right of the purchaser to the rents from that day, and provided that if, by reason " of any unforeseen or unavoidable obstacles," the conveyance could not be perfected for execution on the day named, the purchaser should pay interest for the purchase-money from that day at five per cent., and take the rents. Sir John Leach gave the sellers interest only from the time when a good title Avas vshoAvn ; and he held, in opposition to his former decision, that the stipulation Avas not to give interest when interest Avould otherwise not have been payable, but to fix the rate of the interest at 5 1, per cent, instead of 4 /. 27. Lord Cottenham is reported to liaA^e said, that he could not see hr)w the Court could come to that conclusion in Monk v. Huskisson (c). (r) Supra. (b) 4 Rus. 121, n. («) Portman v. Mill, 3 Jur. 357. (f) See Portman v. Mill, 3 Jur. 358. (I) .Tonns and JImlrl lias no boaiiiv,'' niion Monk and IInskissf)n, where tlie contract was wholly diflerent. CH. 17. S. I.] OF INTEREST. 521 The writer always thought tlie decision wrong ; it was impossible to maintain that the only object was to fix the rate of interest at 5 /. per cent, instead of 4 /. ; if such had been the intention, a very different provision would have been inserted. Nevertheless it has been decided that a condition for payment of interest, if by reason of any " anavoid- able obstacle^'' the contract could not be completed by a day named, did not apply to a delay occasioned by the state of the title, and therefore interest was not payable under the condition (rf). The like rule was applied by Lord Cottenham, where {e) the conditions of a sale by the Court made time of the essence of the contract, and the pur- chase-money was to be paid and possession given, or the rents, as from a day named ; but if the purchaser should fail in making such payment at the time, then, "from lokatever cause the delay might have arisen,^'' he was to pay interest at 5 /. per cent., and the vendors were, within a time fixed, to deliver an abstract. The abstract was not delivered within the time, nor was the title made out for some time. Wigram, V. C, decided that interest was payable, according to the contract, as delay "^ from any cause whatever''^ included the act of the vendor. Upon an appeal. Lord Cottenham in effect overruled Esdaile V. Stej)henson, and held that the words " from any cause whatever " mean some cause not provided for by the contract, and do not provide for either of the parties breaking the contract, as the vendor did in this case by not delivering his abstract in time (I). And this was fol- lowed in a later case (/), where on a sale by the Court the purchaser was to pay his purchase-money on a day fixed, and if he did not do so, " from any cause whatever," he was to pay interest at 5/. per cent. ; the INIaster of the Rolls held that the vendor was entitled to interest on the purchase-money only from the confirmation of the Master's report of a good title. Here, then, although it appeared that the purchaser himself was guilty of delay, the condition providing for delay " from any cause Avhatever " was wholly disregarded. 28. And again, where a day was appointed for the payment of the purchase-money and the execution of the conveyance, but in case of default in payment of the purchase-money on that day, the purchaser was to pay to the vendor interest on the purchase -money at four per cent., as the title, in the view of the Court, was not completed till after the suit was instituted, it was held that interest was not payable by the purchaser, and this, although the subject of the sale was an advowson (y). (d) Birch v. Podmore, V. C, 1828; where a good title had been shown in time ; Seton Decrees, 213 a (2). Storry v. Walsh, 18 Bea. 5o8. (e) De Visme v. De Vismc, 1 Mac. & (/) Robertson r. Skclton, 12 Bea. 303: Gor. 336; Wallis v. Smf,[> De Ge. & Sma. 19 L. J., N. 8., 140; Denning r. Hender 4'29; Cowpe v. Bakowell, 13 Bea. 421; son, ace. 12 Jur. 89. Litchfield v. Brown, 23 L. J., N. S., 17G, {(j) Weddall v. Nixon, 17 Bea. 160. (I) The L. C. thought if interest was payable, the pm-chaser would be entitled to damages ; scd qii. 522 OF INTEREST. [CH. 17. 3. I. 29. These cases, in effect, denied to express words their fair mean- injT. But where tliere was no culpable delay on the part of the seller, and the stipulation was for interest from a day named, with a con- dition that under no circumstances whatever should the purchaser be excused from paying interest from that day, the seller was held entitled to interest, although the purchase coidd not be completed at the day. Indeed, in the case now referred to, interest Avould have been payable under a simple stipulation (Ji). Lord Langdale hoped that De Visme's case had settled the point, but it was nevertheless necessary that that case should be acted on with some caution, other- wise no negotiation could take place for the purpose of satisfying the purcliaser as to the title without entangling the vendor in a question of ^ . ^-. interest. It could not be laid down that in all cases where a sufficient r;r^J/ruJ^'2/>v I abstract was not delivered in time the vendor was to lose the interest ^^ .^/^^) which he had stipulated for. In the later case of Sherwin v. Shaks- ^^ y^ peare {i), at the Rolls, there was a condition, that " if from any cause whatever" the purchase should not be completed on the 25th April 1844, Z7yi-^zp,Z-/ ^j^g purchaser should pay interest at four per cent, from that day until the completion of the purchase : subsequent conditions provided for the delivery of an abstract, &c., and of the conveyance, showing that the contract was to be completed on the 25th A})ril. The Master of the Rolls considered that the title was not made out until July 1847. The seller was driven to file a bill, and had the costs of it, but still was denied interest previously to July 1847. The learned Judge did not lay it down as a general rule, where there was such a condition as above, that interest should only be paid from the time the title is made out ; but the vendor should not take ad- vantage of his own wrong. It was not essential that fraud in the vendor should be proved, or that the default made by him be wilful. Delay, the result of gross negligence, or, if the vendor might have remedied the difficulty in the title, would prevent him from obtaining more interest than he would otherwise have been entitled to, e. g. suppose a difficulty and delay from the incorrect statement of a name in a certificate of burial, the Court could not know that the vendor was not aware of the error : so upon a question of identity of parcels. Delay owing to the default of the vendor in making out the title, dispenses with the condition as to interest. But if it is incontestably proved that it was a mere case of accident, or a thing that the vendor could not have guarded against, then he would be entitled to the benefit of the condition. These observations show how difficult it was to maintain the rule in De Visme's case. 30. In the last edition of this Avork it was stated, that " where the delay is occasioned by the state of the title, and is not wilful, that (/^) Rowley v. Adams, 12 Bea. 47G. (0 1? Bea. 2G7, vide sup., p. 351, 352.*^ CII. 17. S. I.] OF INTEREST. 523 seems to fall within the provision of ' any cause whatever.' But that proiv'sion cannot naw he relied vjxm to that extent.'''' The decision at the Rolls, in Shcrwin v. Shakspcare, which we have just considered, showed that this caution was necessary ; but upon appeal, the decree at the Rolls was reversed, and the true rule restored, giving to the words their full import, where there is no vexatious conduct or deal- ing in bad faith or gross negligence on the part of the vendor; and one of the learned Lords Justices agreed in the proposition above quoted without any qualification whatever {It). 31. If, however, a purchaser agree that if the completion of the purchase should be delayed on his part beyond a given day, he will pay interest, and then make default, and when he is ready a trustee for the vendor refuse to join, the purchaser is liable to interest only from the day named until he was ready {I), 32. In Oxenden v. Lord Falmouth (?w), the condition Avas, that if from any cause whatever {except the wilful default of the vendor^ the completion of the purchase made by any purchaser should be delayed beyond the 26th of December, the purcliasers respectively so making delay (I) should pay interest to the vendor, after the rate of five per cent., from that time till the completion of the purchase. The pur- chaser,, when the time appointed for completing the contract arrived, insisted that the contract was no longer binding, and took several objections. The vendor filed a bill for a specific performance, and the Master reported that a good title was shown before the filing of the bill. Exceptions were taken both as to the title and the time of showing it. The former exception was overruled, but the latter allowed. But as the Vice-Chaucellor considered that the suit was rendered necessary by the conduct of the purchaser, independently of title, he held that there was no wilful default within the meaning of the condition, and therefore that interest at five per cent, was payable from the day named. In Birch v. Podmore, where the payment of interest was made to depend upon some unavoidable obstacle, the clearing up of the title was not deemed one ; whilst in this case of Oxenden v. Lord Falmouth, the same act was not deemed a wilful default, so as to defeat the seller's right under a stipulation ibr in- terest, whatever might be the cause of delay, except the seller's wilful default. 33. In a case where a public-house was sold, with the good- will and the licences, and the furniture, stock, &c., were to be taken at a valuation, and the purchase to be completed at a day named, but the {Ti) 5 De Ge. Mac. & Gor. 517, 2 Eq. R. (/) Parry v. Smith, 1 Car. & Mar. 554. 957, and ex ptc. Dean and Chapter of Dur- {m) V. C, 13 Nov. 1833, MS.; Greenwood ham, 2 Jm-., N. S., 345. v. Churchill, 8 Bea. 413. (I) These words seem to import that the delay should be one attributable to the purchaser. 524 OF INTEREST. [ciI. 17. S. I. seller continued to cany on the trade beyond that day, although the valuations were made, the purchaser objecting to the title, it was decided that the purchaser was not liable for the transactions of the trade, and was only to pay for so much of the original stock in trade as could be delivered to him ; but he was charged with the rent and other outgoings of the premises since the time appointed f(jr per- formance of the contract, with interest thereon, and lie was refused an occupation-rent which he claimed from the seller (n). 34. The purchaser never pays interest on the deposit, although by his default the seller may have been prevented from receiving It from the auctioneer (o). 35. Nor is the seller generally liable for interest on the deposit where it has been paid to him, if the contract proceed (j)). 36. It sometimes happens, that part of the purchase-money is left in the hands of the purchaser, for the purpose of paying off incum- brances at some distant period ; and, in that case, the purchaser must pay interest for it to the vendor (//). In Comer y. Walkley (r), it appeared that a sum was left in the purchaser's hands, at interest, as an indemnity against an incumbrance. The purchaser afterwards paid part of the sum to the vendor ; notwithstanding which, the purchaser and his devisees continued to pay interest on the whole for many years. A bill Avas at length filed to compel payment of the residue of the sum deposited ; and the mistake being admitted, the Master was directed to take annual rests of the over-payments, and to com- pute interest thereon at five per cent., and the amount of the over- payment and interest to be deducted from the sum which would be found due from the purchaser. 37. Where a purchaser is entitled to recover at law a deposit paid by him to the vendor, he can also recover interest on it from the time it was paid, Avithout an express agreement. 38. But where he proceeds against the auctioneer to Avhom the deposit was paid, he cannot recover interest. An auctioneer ought not to be liable generally to interest : for an auctioneer is bound to keep a deposit till the execution of the contract, as a banker or depositary of it : for which reason, if he actually made interest of it, he ought not to be compelled to pay interest (.s). And it is unim- portant that the seller, without the concurrence of the purchaser, gave him notice to invest the deposit (t). {7i) Dakin v. Cope, 2 Rus. 170. 3 Bro. C. C. 43 ; 14 Ves. 509; Bvovmc v. (o) Bridges ». Robinson, 3 Mer. G94. .*^outhliouse, 3 Bio. C. C. 107; sed vide (p) But see In re Page, 1 Di'u. k. Wal. Willis v. Commiss. of Appeals, 5 Ea. 22 ; 31 ; et qn. (laljy v. Driver, 2 Yo. & Jer. 549. (). 52. If a defendant in a suit relating to a contract be decreed to pay costs, Avhich he obeys, and the decree is reversed, and the bill dismissed with costs, although he is of course entitled to the repay- ment of his costs, they will not carry interest (q). 53. Where a purchase by a trustee is set aside, and the estate is restored to the cestui que trust, the purchaser is allowed interest on the money paid by him, and is compelled to pay a rent for the estate during his enjoyment of it (r). ^ 54. But where a sale is annulled on account of notice in the purchaser of a prior claim, and he is decreed to account for the rents, it seems that he shall not be charged with interest on the rents {s). 55. Where a purchase was set aside on the ground of fraud, and the purchaser was decreed to pay an occupation-rent, and to be repaid his purchase-money and interest, and the rents exceeded the interest, annual rests were directed, so that the excess of rent beyond the interest might go in reduction of the capital : after the annual rent should have liquidated the principal, there was to be merely an account of the rent without interest (t). 56. An agreement, that if the purchase-money were not paid at the time stipulated, the purchaser should pay a rent for the estate, exceeding the legal interest of the money, Avas not usurious (u). And an agreement to sell an estate for a principal sum, Avhich, with interest added thereto after the rate of 6 /. per cent, per annum, for the time the notes had to run, was secured by certain promissory notes according to the contract, was held not to be an usurious contract {x). Where it was attempted to convert a purchase into a loan in order to avoid it as usurious, the question Avas Avhether a debt had been Incurred or a purchase made. A man might purchase a bond for less than the money due upon it, and might receive the Avhole Avith interest, and yet not be guilty of usury. So a sale of a rent during a lease Avoukl not be usurious, although a calculation Avas made on the effect of the transaction, by Avhicli it appeared that provided the rent was punctually paid, it Avould repay the principal sum Avith interest and something {}}) Small V. Attwood, 3 Yo. & Col. 100. (0 UonovJiii i'. Fricker, Jac. 1G5. {q) S. C. {u) Spuniei- 1;. Mayosjs, 1 Vcs.j. 527; 4 (/•) Infra, cli. 20. Bro. C. C. 28. (s) Macartney v. Blackwood, Ir. Tenn K. (a.-) Beete v. Bidgood, 7 Bar. & Cres. 453 ; G02. Dowling v. Legh, 3 Jo. & Lat. 716. 528 OF INTEREST. [CH. 17. s. I. more ( //), But these distinctions arc no longer important as the usury laws liave been repealed, except as regards acts done i)reviously to the 10th August 1854, the time of passing the Act, to which the old law still applies. And where interest was then payable upon any contract, express or implied, for payment of the legal or current rate of interest, or where upon any debt or sum of money interest was then payable by any rule of law, the same rate of interest will be recoverable as if the Act had not been passed (z). 57. Where interest is recovered at law, it is always at the rate of 5 per cent, (a), but in equity the rate of interest allowed is 4 per cent, (b), 58. In Dickenson v. Heron (c), at the time the i)urchaser took pos- session of the estate, it was agreed he should pay interest on the purchase-money, but no rate Avas fixed. The purchase-money, how- ever, then pro4uced 5 per cent., and it was understood between the parties that interest was to be paid at that rate ; and although this understanding did not appear by any note or writing, the purchaser was decreed to pay interest at 5 per cent. 59. In a later case 5 per cent, was decreed to be paid, although the conditions of sale were silent as to interest. The purchaser was held to have accepted the title by taking })ossession ; and the Court said, that they thought where a purchaser withheld the money from the seller, he ought to pay such interest as the seller might have made of the money had it been paid to him, and that this had fre- quently been done by Lord Alvanley {d). However, this is not the rule of the Court of Chancery, nor does the reasoning apply to times when the market rate of interest is below 5 per cent. Accordingly, in a case where the conditions of sale stipulated that the purchaser should be allowed 5 per cent, on the deposit if a title could not be made, but did not contain any other stipulation as to interest ; after a decree in a bill by the seller for a specific performance, upon a motion to vary the minutes, by making the interest payable on the purchase-money 5 per cent., the Vice-Cliancellor was of opinion that the general rule must prevail, and that the minutes of the decree were correct, confining the interest to 4 per cent., and gave the pur- chaser his costs of opposing the motion (e). (y) Lnkey r. O'Donnell, 2 Sch. & Lef. B. ]804,fo. 1095; Browne ». Fenton, Rolls, 469, 742 ; 2 Sch. & Lef. 472, 473. June 23, 1807, MS., Ld. Rosslyn's judgment (r) 17 & 18 Vict. c. 90. in Lloyd v. Collet, 4 Ves. 609, n. ; Acland («) Sec now 3 & 4 Will. 4, c. 42, s. 28, sup. v. Gaisford, 2 Mad. 28 ; Bradshaw v. Midge- pl. 42, which leaves it to a jury to decide ley, V. C. 13 Nov. 1817, MS. upon the rate in cases falling within the Act. (c) Sup. ; Waldron v. Forester, Ex. 1804* (i) Calcraft v. Roebuck, 1 Ves. j. 221 ; 1807, MS. ; Gaskarth v. Ld. Lowther, 12 Cliild V. Ld. Abingdon, 1 Ves. j. 94 ; Comer Ves. 107 ; id. o03. ^. Walkley, Reg. Lib. A. 1784, fo. 625; Pol- {d) Burnell v. Brown, Ld. C. Barony at lexfen v. Moore, Reg. Lib B. 1745, fo. 283, the Rolls, 7 Feb. 1820, MS. ; 1 .Jac. & Wal. at the bottom ; Smith r. Hibbard, Ch. 1 1 108. July 1789; M'Queeni'. Farquhar, Reg. Lib. (c) Thorp v. Freer, II. T. 1820, MS. CH. 17. S. I.] OF DETERIORATION. 529 60. The same rate of interest seems payable, whether the estate be sold by private agreement, or under a decree of a court of equity. 61. If an agreement stipulate that the purchase-money shall be paid by instalments, with 5 per cent, interest, and by a subsequent agreement another arrangement is made as to the instalments, and that the last instalment shall remain secured by mortgage at 4 ^ per cent., and the purchaser do not perform the second agreement, the interest will remain at 5 per cent (/). II. Of Deterioration. 62. As connected with interest, we may here observe, that if the completion of a purchase has been delayed by the state of the title, the Court will compel the seller to make an allowance for any dete- rioration which the lands, hedges, and fences have suffered by unhus- bandman-like conduct and mismanagement since the date of the contract (^). 63. But a purchaser is not entitled to any allowance for deterio- ration, after he took possession, or after there was a title under which he ought to have taken possession under the contract (A). 64. Where in a specific-performance suit, the purchaser, who claimed an allowance for deterioration, paid his purchase-money into court under an order, and the amount to be allowed for deterioration was afterwards fixed, he w^as held entitled to the amount, with inte- rest from the time when he paid his money into court {i). 65. Where pending the contract the possession of the estate becomes vacant, the seller, if the purchaser will not concur in an interim ma- nagement to abide the result, may safely put a person into posses- sion, and get in the crops, and the Court will, if the merits are on the side of the seller, consider the possession as that of the purchaser, and relieve the seller from his liability without affecting his right to interest. 66. If pending the investigation of title, ornamental timber be cut down upon a residence, that is not a case for compensation, but the purchaser may be relieved from the contract (Ji). 67. But a seller may, during a long investigation of title, cut down coppice Avood at its full growth, for that is in due course of husbandry, although the money produced by it will belong to the purchaser (Z). (/) Attwood V. Taylor, 1 Man. & Gra. (0 Ferguson v. Tachnan, 1 Sim. o30, 279 ; Minchin v. Nance, 4 Bea. 33-2. (/f) Magennis v. Fallon, 2 Mol. 584, 585. (fj) Foster r. Deacon, 3 Mad. 394, and (/) Poole v. Shergold, 1 Cox, 273; the several cases not reporteil. Lordr. Stephens, singular an-angement in that case, deduct- 1 Yo. & Col. 222 ; 3 Yo. & Col. 508 ; Car- ing the value of the growing coppice, must rodus V. Sharp, 20 Bea. 50. have been in consequence of no account oi (h) Bmks r. Ld. Rokeby, 2 Swan. 226 ; interest or rents having been given. Minchin v. Nance, 4 Bea. 332. L L 530 OF DETERIORATION. [CH. 17. S. I. 68. Of course timber bloAvn doAvn between the contract and con- veyance will belong to the purchaser (?») ; and ordinary timber cut down by the seller must be compensated for in money {n). It is obvious that ordinary timber might be cut to an extent and in situations which would induce the Court, instead of giving ordinary compen- sation, to release the purchaser from the contract. 69. In general, if after the contract and before the conveyance, the estate be improved, 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(o). Unless a special case be made, a vendor in possession cannot like a mortgagee be charged with what lie miirht have received, " but for wilful default," and where it is necessary, he may justify reducing the rents (p) ; but a seller receiv- ing interest during the delay, would not be ])ermitted to say, that because the estate was sold he had not used due diligence in getting in the rents. 70. A seller after a contract cannot expend money on improve- ments, and require the purchaser to pay for them (y) ; therefore the decree should not contain an account of repairs and lasting improve- ments by the vendor whilst in possession (y). 71. Where before the purchase is completed the tenant quits under an agreement with the purchaser, the purchaser must submit to the deterioration occasioned by the tenant's quitting, although the tenant acted under a mistake (s). 72. Although a purchaser is bound by the contract to pay interest, yet if the conveyance be executed with a receipt for the purchase- money, the seller is bound by his statement of the amount of the pur- chase-money, and cannot claim any further money, although In point of fact, by mistake, the interest was miscalculated at less than the sum actually due (/). (?«) S. C. 2 Bro. C. C. 118. (q) G Ila. 20G; 8 Ha. GO. («) Magennis v. Fallon, 2 Mol. 588. (?■) .Slierwin ?\ Shakspcare, iil/i sup. (o) See 1 Mad. 589; sup. c. 7, sec. 2. (a) Hartford v. Furrier, 1 3Iad. 532. (p) ISliei-wiu V. Sliakhi])earc, 5 De Ge. Mac. (t) Harding v.Amhlcr, 3 Me. & Wei. 279. & Gor. 517. SECTION II. OF COSTS. 1. Costs at law and in cijuUi/: trustees. 2. In equity, do not follow the event of the cause. 3. Purchaser's bill: no title. 5. Vendor's hill: no title and ttiisrepre- sentation. G. Vendor's bill : no title. 7. Report of (/ood title, but considered too doubtful. 8. Costs of objections abandoned at the hearing. 9. Bad title only prima, facie case for costs. 10. Costs of objections overruled, where report is against the title. CH. 17. S. II.] OF COSTS. 531 II. V2. 13. .14. 15. 10. 17. 18. lU. 20. 21. 22. 23. 24. hnjwoper suit by seller proper one by purchaser. Opinion at law against the title after Master's report contra. Opinion at law in favour of title, but on general view held bad. Good title not till after hill filed. Costs of case at law for the title after Master's report also for it. Title made contrary to abstract: pur- chaser's acquiescence. Untenable grounds on both sides. Costs of appeal where title doubtful. Purchaser may take fair objection — Opinion of counsel does not save costs — Where purchaser is misled. Point decided in a former cause. Dotibtful fact fomtd against purchaser. Necessary and unnecessary evidence re- quired. Materiality of further abstracts consi- dered. Where purchaser might have had the evidence. Purchaser insisting contract is at an end. Suit occasioned by ^JKrcAa.yerV wi- founded claim. Lots, and a good title to some, and all refused. Possession by jjurchaser. Set-off: deposit and costs. Suit occasioned by trustee. Costs of unnecessary action. Picrchascr's conduct dishonourable. Objection taken after waiver. Inadequate price. Improper allegation of fraud, S^'c. Claim by plabitiff contrary to the con- tract. Suit to make a title: death of seller. Suit occasioned by seller's misstatement. Incumbrances iireventing a title. Costs of sale by courts of equity. Dismissal of bill with costs by House of Lords. Motion to pay out purchase-money. 1. At law, the costs abide the event of the action by the vendor or purchaser. In e(i[uity, also, the person who fails in the suit must priiiid facie be deemed liable to the costs; and it is not material that the seller is a trustee and not beneficially entitled to the property («), or that the purchaser is laying out trust money. And upon claims filed, the Court has like jurisdiction over costs. 2. But costs in equity rest entirely in the breast of the Court, for the prima facie claim to costs may Ijc rebutted by the particular cir- cumstances of the case(Z»). 3. If a purchaser file a bill for a specific performance, which is dismissed because the defendant, the seller, cannot make a title ; the rule is now to dismiss the bill without costs (c), and the purchaser's costs cannot be recovered in an action at law (d). 4. But if a purchaser file a bill for a specific performance, insisting that the seller cannot make a good title, he must pay the costs, whether he accept or refuse the title (^). If he file his bill with full knowledge of the objections, and the report is against the title, but he waive the objections, he must pay the costs of investigating the title, but the seller must bear the other costs {f). 5. If the vendor file a bill for a specific performance, which is dis- {(i) Edwards v. Harvey, Coo. 40; Hill v. Morgan, 2 Mo. 460, a case of renewal. (J)) Vancouver v. Bliss, 11 Ves. 458; Scorbrough v. Burton, Barn* C. C. 255; Staines v. Morris, 1 Ves. & Be. 15, 10. (c) Maklou V. Fyson, 9 Bea. 347 ; Benet College V. Carey, 3 Bro. C. C. 390 ; Lewis V. Loxham, 3 Mer. 429. {d) Maiden v. Fyson, 11 Q. B. 292. (e) Niclosou v. Wordsworth, 2 Swaii. 365 ; qu. (/) Bennett o. Fowler, 2 Beu. 302. L L 2 532 OF COSTS. [CH. 17. S. II. missed because he cannot make a title, and the estate was misrepre- sented in the particulars, although without fraud, he must pay the costs (/7). If the estate was misrepresented, and the auctioneer verbally agreed to allow a deduction if any misrepresentation should appear, the seller's bill would be dismissed, with costs, if he sought to compel the purchaser to take the estate without any allowance, because that would be a fraud. If the purchaser do not resort to the defence set up by his answer, until after the institution of the suit, that is a ground not to give costs {h). 6. Where there is no misrepresentation, and the question turns upon a fair point of law, and the opinion of the Court is in favour of the title but against forcing it on a purchaser, and the vendor's bill is dismissed, it may be without costs (z); although if the Court think the title clearly bad, it will dismiss the bill with costs (A), even where the defect is occasioned by an accident after the contract, as where the title-deeds Avere burnt {I). 7. Where the report was in favour of the title, but upon exception the Court thought it too doubtful, the seller's bill Avas dismissed, but w^ithout costs, returning to the purchaser his deposit on filing the exceptions (m). 8. But where the bill Is dismissed against the purchaser with costs, he will not be allowed costs of objections argued before the Master, but abandoned at the hearing (??). 9. The title being bad, makes only ii pi'hitd facie case for costs : in many cases, circumstances outweigh that (o). 10. Where the 1)111 was filed by the seller, and the title proved to be a bad one, the bill Avas dismissed with costs, although the purchaser had taken numerous objections before the Master, and had succeeded only in one (p). 11. Where a seller insisting that he had made a good title, filed a bill for a specific performance, in which suit the Master reported that he could not make a good title, and the purchaser then filed his bill, insistlna' that certain accounts should be taken, which would enable a good title to be made, and the seller took an exception to the Master's report in his cause, which Avas overruled, and ultimately a specific performance Avith a compensation Avas decreed in the second cause, the seller Avas compelled to pay the costs of both causes {q). 12. In the case of Bruce v. Bainbridge (?*), Avhere the bill Avas filed by the seller, the Master's report Avas in favour of the title ; a case (rj) ^^^ncouvcl■ v. Bliss, 11 Ves. 458. (w) Hiiyes r. Bailey, L. CM. T. 1821, MS. (/() AVinchu. Winchester, 1 Ves. & Be. 375. (o) Edwards v. Harvey, Coo. 40, (i) Rose V. Callaiid, 5 Ves. 186j AA'liitc (/?) S. C. ; Townsend v. Champernowne, V. Foljambe, 11 Ves. 337, 403. 3 Yo. & Col. 505. (k) Playibrd v. Here, 3 Yo. & Jer. 175. (q) Burton v. Todd, Todd v. Gee, 1 Swan, (/) Briant v. Busk, 4 Rus. 1. 255. (/«) Willcox V. Bellaers, Tur, & Rus. 401. (r) V, C. 10 Aug, 1821, MS. CII. 17. S. II.] OF COSTS. 533 was sent to the C. P., and the certificate was against the title. The bill was dismissed Avitli costs, from tlie date of the Master's report. 13. Where a pm-chaser, a defendant, disputed the power to sell, and a case was directed to law, and the certificate was in favour of the title, but ultimately, upon the general view of the title in equity, the bill was dismissed, the purchaser was allowed the costs at law as part of the costs of the cause (s). 14. If a good title is not shown until aftej^ the bill is filed, and the purchaser take no step inconsistent with the finding of the Master, the seller must pay the costs of the whole suit (t). Where when the bill was filed by the seller he could not make a title on account of regis- tered judgments, but jjendeiite lite he could have made a title, as the judgments were not re-registered until some time after the five years, it was held that he must pay the costs of his suit, but it was consi- dered that it would have been otherwise had he during the interval of non-registration offered to pay the purchaser's costs to that time, and to give him a conveyance. And although the judgments were a question of conveyance and not of title, yet as they had occasioned the suit, the costs fell on the seller (u). 15. Where the Master found that the seller could make a title in February 1820, which was subsequently to filing the bill, and the purchaser took an exception, and elected to have a case sent to law, which Avas decided against him, and a specific performance was de- creed, the purchaser was paid the costs up to February 1820, and he paid the costs of the subsequent proceedings before the Master and the costs of the case, and the vendor paid the costs of the hearing (x). 16. If a seller, upon a reference to the Master, establish his title upon a different ground from- what appeared in the abstract, the pur- chaser will be allowed the costs of the reference and the applications to the Court (y). So, where a purchaser might in the first instance have rescinded the contract, but binds himself by long acquiescence, the vendor will not be entitled to costs (z). 17. And if both parties have relied upon untenable grounds, although a specific performance is decreed, it may be without costs («). So if both parties sleep on their rights until it becomes necessary for the Court to interfere, each party will be left to bear his own costs (i). (s) Forbes v. Peacock, 12 Sim. 549. MS. ; Lill r. Robinson, Beat. 85 ; Townscnd {t) Annesley r. Muggeridge, V. C. 12 v. Champevnowne, 3 Yo. & Col. 505. Mav. 1 825, MS. ; Osbaldestoii r. Askew, V. (y) Fielder r. Higginson, 3 Yes. & Be. 142. C. 11 Mav. 1829, MS. ; Townscrfd v. Cham- (z) Dickinson r. Heron, sup. p. 51G, n. pernowne, 3 Yo. & Col. 505; Wilkinson v. (n) Sidebotliam i'. l!arrington,5 Bea. 20] ; Hartley, 15 Ves. 188. Weddall». Nixon, 17 Bea. IGO; Carrodusi-. (u) Freer v. Hesse, 2 Eq. R. 13 ; 4 De Ge. Sharp, 20 Bea. 5G. Mac. &Gor. 495. (&) ^Vallis v. Bastard, 4 De Ge. Mac. & (.r) Smith v. Leigh, V. C. 10 Aug. 1821, Gor. 251. L L 3 534 OP COSTS. [CH. 17. S. II. 18. If a seller appeal to the House of Lords with a view to compel the purchaser to accept a title, which that House thinks is not such a title as the purcliascr was bound to accept, the appeal will Lc dis- missed with costs (c). 19. So a purchaser is considered as entitled to take a fair objection, and although it be overruled, yet the Court will not on that ground give costs (d) ; but this depends upon the weight due to the objec- tion (c) ; and he cannot avoid the costs, because he was supported by the opinion of counsel (/). But if he be led to take an objection »//^//^2 - which the Court overrules, by a statement in the abstract and the con- duct of the seller's solicitor, that may be an excuse for costs ((/), 20. Where the objection to the title has already been decided in a former cause, of which the purchaser had notice, the purchaser will be decreed to pay the costs of the suit (A). 21. And although a purchaser may fairly object to a title on the ground of a doubtful fact, yet if the fact is found against him, he can- not claim costs, although he will not be compelled to pay them (/). 22. In a case where the blaster reported that the abstract delivered by the vendor before the filing of the bill was sufficient, but he found that the piu'chaser required certain evidence in support of the abstract, some of which Avas necessary, but not furnished, and some not neces- sary, the Lord Chancellor held that both of the parties were in the wrong ; and that no costs ought to be given on either side {k). 23. Where a seller does not make out his title until after the bill is filed, he is liable, as we have seen, to pay the costs of the suit up to the time that he showed a good title (I). But the Court will not let this rule operate as a trap for the seller ; and if further abstracts are furnished after the bill is filed, Avill inquire whether they are material. So as to evidence. But, as to evidence, much depends upon the fact whether further evidence was required by tlie purchaser. In one case an Act of Parliament, for releasing the estate from certain portions, was obtained after the filing of the bill. The Master found that a good title was shown when the Act was delivered to the purchaser. The purchaser claimed the costs to a later day, on the ground that the Act recited a release by deed of otiier portions, an abstract of which had not been furnished. The Vice-Chancellor held that the Act was tantamount to an abstract, and that the purchaser should have called (c) Blosse V. Ld. Clanmorris, 3Bli. G2. (/) Maling v. Hill, 1 Cox, 18G. (d) Cox V. Chamberlain, 4 Ves. G31 ; (). 42. If after a bill filed for a specific performance, the plaintiff, in {(j) Burnell v. Brown, 1 Ja. & Wal. 175. 472, see ch. 2 supra ; see Hawkins u. Perry, (70 BuiTowes V. Lock, 10 Ve.s. 470. 25 L. J., N. S., G50. (y) Wright v. Howard, 1 i^ini. & Stu. 190. (m) Harrison v. Coppard, 2 Cox, 318. \h) 8. C. (o) Bartlett v. Salmon, G De Ge. Mac. & (l) Williams v. Edwards, 2 Sim. 78. Gor. 42. (?«) Farrer v. Ld. Winterton, 4 Yo. & Col. {p) Sloper v. Fish, 2 Ves. & Be. 145. en. 18.] ArrLICATION OF rURCHASE-MONEY. 539 pursuance of a power in the instrument, determines the contract, the bill will be dismissed without costs (^). 43. We have elsewhere seen in what instances costs are given upon a sale by order of the Court itself (r). The same rules have been extended in Ireland to a sale by assignees of bankrupts (s). 44. If a decree made with costs is reversed in the House of Lords, and the plaintiff's bill is dismissed with costs, that will only extend to the costs of the suit up to the time of the decree in the Court below, and including the settling of the decree, however numerous may have been the subsequent proceedings, for they are considered proceedings arising out of the error of the judge (t) ; and no interest can be given on the costs. 45. A purchaser whose money has been paid into court may before completion of the purchase, upon being served witli a i)etition or a notice of motion for payment of it out, appear, and will be entitled to the costs although he has no objection to offer (m) : but where he has obtained his conveyance, and is served with a petition for dis- tribution of the money, he should not appear, but should inform the petitioners that he has no claim. If he appear he would not obtain any costs (.r). (q) Western v. Perrin, 3 Ves. & Be. 107, (/) Small v. Attwood, 3 Yo. & Col. .OOl. agi'eement for a lease. (r) C. 3. (?/) Bamford v. Watts, 2 Bea. 201. («) In re Page, 1 Dru. &c Wal. 36. (.r) Barton v. Latoiu-, 18 Bea. 520. CHAPTER XVIII. OF THE OBLIGATION OP A PURCHASER TO SEE TO THE APPLICATION OF THE PURCHASE-MONEY. Jf&^f'lo \ Purchase from heir or devisee. I. As to real estate. Purchaser liable to legacies on scheduled debts. \ Sale of more than required valid. Not bound where trust is for debts gene- rally — Or for debts and legacies — Whether bound after decree. Not bound where infants or rmhorn issue entitled. Charge for an infant at majority. Not bound where money is to be applied upon trusts — Or purpose undefined. Or money to be invested. Charge equal to trust. Power by implication. , Charge of annuities. , Existing charges. 14. Ifj. 18. 19. 20. 21. 22. 23. 24. Where debts and legacies are not in- tended to be paid. Charge of debts exonerates jmrchaser in all cases, semb. Fraudulent sale. 7 c^ 8 Vict. c. 76; trustees^ receipts to be discharges : repealed by 8 SfO Vict, c. 106. Trust to raise deficiency of j^ersonal estate, purchaser not liable. Contra of a power. Hoiv such a power should be given. Modes of seeing to the payment of debts, Implied poiver to vary securities. Dealings by trustees with the estate before sale. Payment to one of several trustees bad : receipt by all, contra. 540 ArrLICATION OF rURCHASE-MONEY. [CH. 18. 25. 20. 27. 28. 29. 30. 31. Assignment of polici/ ivith power to receive. Effect of contract on truat for sale, <^-c. What trustees should give receipt — Disclaimer . New trustee hy conveyance. Distinction between receipt under power of attorney and under receipt clause. Mortgage to ttco : receipt of survivor. New trustee appointed by Court. 32. Payment of money to solicitor or agent, 33. Payment upon solicitor's undertaking. II. As to leaseholds. 34. Purchaser of leasehold not bound to see debts paid — Executor cannot sell for his own debts. 35. Sale at undervalue — Fraud. 3G. Laches by legatee. 37. Sale by executor of leasehold specifically bequeathed. 1. Although an heir at law is bound by specialty debts in respect of lands descended, yet a purchaser of those lands, without notice of any debts, was never holden to be subject to them. The statute of fraudulent devises was always considered as placing a devisee on exactly the same footing as an heir at law ; and the debts of the testator will not bind a purchaser from the devisee, if he bought hand fide and without notice (a). Equity will, however, in behalf of creditors, grant an injunction against a purchaser to restrain payment to the heir {h). In Woodgate v. Woodgate (c). Lord Eldon was of opinion, that simple contract creditors, under 47 Geo. 3, c. 74 (fZ), stand in the above respect in the same situation as specialty cre- ditors under the statute of fraudulent devises. And in Spackman v. Timbrell {c), it was decided that the common law and the statutes 3 & 4 Will. & Mary, c. 14, and 47 Geo. 3, c. 74, do not charge the real assets descended or devised with the debts of the ancestor, but make the heir or devisee liable personally to answer the value of the assets, and therefore a purchaser from a devisee of a trader is liable to see to the application of the purchase-money where legacies only are charged on the estate by the will(/); and the same principle applies to the 3 & 4 Will. 4, c. 104, which made freehold and copy- hold estates of persons wdio should die after the 29th of August 1833, assets to he administered in equity for the payment of simple contract as well as specialty debts (//). That Act leaves the distinction be- tween estates subjected to the payment of debts by the will of the debtor and estates subject to debts by the operation of law precisely as it was before (A). The Act extends to lands appointed by will under a general power (J). (ft) See Matthews v. Jones, 2 Anst. 500. {h) Green v. Lowes, 3 Bro. C. C. 217. (c) MS. {d) Repealed and re-enacted hy the 1 Will. 4, c. 47. (e) 8 Sim. 253; Richardson v. Horton, 7 Bea. 112; Pimm v. Insall, 1 Mac. & Gor. 449 ; Dunne v. Doran, 13 Ir. E. R. 545. (/) Horn V. Horn, 2 Sim. & Stu. 448. (. Curtis, 3 Bro. C. C. 96; 301 ; Dunch v. Kent, 1 Vcr.SGO; Anon. Mos. Barker v. Duke of Devon, 3 Mcr. 310. 90; Abbot v. Gibbs, 1 Eq. Ca. Ab. 358, pi. (p) Robinson v. Lowater, 17 Bea. 592 ; 2 ; Elliott V. Merryman, Barn. R. C. 81 ; 5 De Ge. Mae. & Gor. inf. Smith V. Guyon, 1 Bro. C. C. 186, and cases (q) Stony v. Walsh, 18 Bea. 559. Con- in the note (II) ; I Ves. 215. sider the case. The devisees of the devisee (?) Lloyd V. Baldwin, 1 Ves. 173; Binks were of course liable after the conveyance V. Ld. Rokeby, 2 Mad. 227. to them, and they sold upon an assertioa (m) Cotterell v. Hampson, 2 Ver. 5. that all the charges were paid. (?«) Spalding r. Shalmer, 1 Ver. 301. (r) Jebb v. Abbot, Benyon t'.Collins, But- (0) Cases cited above; Humble v. Bill, ler's n., Co. Litt. 290 b. s. 12; Rogers t'. 1 Eq. Ca. Ab. 358, pi. 4; Ex pte. Turner, Skilhcorne, Arab. 188; AValker v. Flam- (1) By the 15 & 16 Vict. c. 86, s. 47, any person claiming to be a creditor of a deceased person, or interested under his will, may ajiply in a summary way for an order ibr the admi- nistration of the real estate of a deceased person, where the whole of such real estate is by devise vested in trustees who are by the will empowered to sell such real estate, and authorised to give receipts for the rents and for the produce of sale, and see sect. 42, stated infra in n., and see sect. 55. (II) One of these cases, Langley v. Lord Oxford, is in Reg. Lib. B, 1747, fol. 300; Amb. 17. The other cases, Tenant tJ. Jackson, and Cotton v. Everall, are in Reg. Lib. 1773, B. fol. 120, 481. (III) And where the whole money has been raised, the heir or devisee will be entitled to the estates unsold, and the creditors or legatees will have no remedy against the same j 542 OF SEEING TO THE APrLICATION [CH. 18, he is not bound to see that only so much of the estate is sojd as is necessary lor the jjurposes of the trust. Nor, according to the pre- vailing opinion, is he bound to see to the application of the money, Avliere there has been a decree ; for the Court takes upon itself the apj)lication of the money (s) (I). 5. Where the time of sale is a7'rived,a,iid the persons entitled to the money are infants or unborn, the purchaser is not bound to see to the application of the money ; because he would otlierwise Ijc implicated in a trust which in some cases might be of long duration {t). 6. But if an estate is charged with a sum of money for an infant, payable at his majority, and there is no direction to appropriate the money, a purchaser cannot safely complete his purchase, although the money be invested in the funds as a security for the payment of the legacy to the infant, Avhen he shall become entitled ; for if, in the event, the fund should turn out deficient for payment of the infant's legacy, he may still have recourse to the estate for the deficiency. And it should seem, that even a court of equity cannot, in a case of this nature, bind the right of an infant (u). The directions of the testator in regard to legacies where they only are charged may not safely be neglected by a jiurchaser (.r). 7. Although the trusts are defined, yet payment to the trustees is .stead, 2 Ld. Keny, 2d part, [>! • Oincrod v. (?t) Dickenson v. Dickenson, 3 Bro. C. Havdman, 5 Ves. 722, which qu. ; Dowling C. 19, et rpi. V. Hudson, 17 liea. 248. (.r) Mills v. Osborne, 7 Sim. 36 : where {s) But see Lloyd r. Baldwin, IVe.s. 173. all portions may be raised, Gillibrand v. {t) Sowarsby v. Lacy, 4 Mad. 142; Goold, 3 Sim. 149 ; Leech u. Leech, 2 Dru. Lavender v. Stanton, (5 Mad. 40; Breedon & War. 608; Shep]iard v. Wilson, 4 Ha. V. Breedon, 1 Rus. & My. 413; Keon v. Sd2, contra. Magawly, 1 Dru. & War. 401. because the estate is debtor for the debts and legacies, but not for the faults of the trus- tees. Anon, in D. P. 1 Salk. 133. It was at one time thought that a purchaser was only liable where there was not a hand a])pointed to receive the money, and the trusts were defined. Mr. Powell (1 Mortg. 312-320, 4th edit.) supported this view on the authority of Cuthbert v. Bakei-, before Lord Thurlow, Lib. Reg. 1790, fo. 442, and Lord Redesdale took the same view of the decision in that case. But an examination of the Registrai''s book proved that the case did not call for any such decision, Purch. 11th edit. 842-846, and Lord Thurlow always referred to the rule as generally understood. Smith v. Guyon, 1 Bro. C. C. 116. The case of Comer v. Walker, Reg. Lib. A. 1784, fo. 625, reported in 2 Dick. 649, nom. Currer v. Walkley is misreported, and the point did not arise there. Purch. 843. It is no longer an open question. (I) The 13 & 16 Vict. c. 86, s. 42, prohibits the taking an objection for want of parties where the suit concerns real or personal estate vested in trustees and declares that such trustees represent the persons beneficially interested under the trust to the same extent as executors in siuts represent the personal estate, but the Court may at the hearing order any of the persons beneficially interested to be made parties ; see also s. 47, stated svpra in n. It has been held that with a view to a proper sale, and to prevent the title of a pur- chaser from being open to iuipeacliment (although, if the Court did proceed in the absence of parties, it woidd protect the purchaser), the parties beneficially entitled should, as a general rule, be made parties to the suit for a sale, which now may be done at a small expense, Doody v. Higgins, 9 Ha. App. 32 ; see Goldsmid v. Stonehewer, id. 38; Hanman t;. Riley, id. 40; Doai-om v. Elworthy, id. 42 ; Fowler v. Bayldon, id. 78. CH. 18.] OF rUECHASE-MONEY OF REAL ESTATE. 543 sufficient, wherever the money is not merely to be paid over to third persons, but is to be applied upon trusts which require time and dis- cretion, as where the trust is to lay out the money in the purchase of estates (?/). And where the trust was to pay the money amongst creditors, who should come in within eighteen months, the estate was sold after that time had elapsed, and it was held that the receipt of the trustees was a good discharge {z). 8. So where the trust is to lay out the money in the funds, &c., upon trusts, if the purchaser see it invested according to the trust, and procure the trustees to execute a declaration of trust, he is dis- charged from the obligation of seeing to the further application of the money («). 9 . T he san ie rules app ear to apply , whetherth e estate be devised or co nveyed to tr ustees t o sell for_pay ment of debt s, &c., or whether it be only cha rfjed with the debts {!)). 10. And where an estate is given to a devisee, he paying the debts, so that the words are sufficient to pass the fee, a purchaser from the devisee cannot be affected by any gift over of the estate, for the devisee has a right to sell to pay the debts, and if the price of the estate is more than will satisfy the debts, the remedy of the devisees over is against the first devisee, and not against the purchaser (c). 11. In a case where in a will, by reference to a devise in the will of another person, powers of sale and exchange were given to the tenants for life, it was held that the power in the will referred to, to give receipts for the purchase-money, was not by implication given to the tenants for life in the principal will, but the Court thought that the difficulty might be removed by paying the money into court under the Trustee Relief Act, 10 & 11 Vict. c. 96 {d). 12. Wliere lands are charged with the payment of annuities, those lands will be liable in the hands of a purchaser, because it was the very purpose of making the lands a fund for that payment, that it should bo a constant and subsisting fund (r). But it is otherwise where there is also a charge of debts (y). 13. So where an estate is devised, sulyect to existing charges, the purchaser must of course see the charges duly })aid. A purchaser buying subject to a pecuniary charge will not be allowed to pay the money into court under the Trustee Relief Act {g). (tj) Doran v. Wiltshire, 3 Swan. 699 ; Walkei- v. Smallwood, Anib. 077 ; 6 Ves. Glyn V. Locke, 3 Dm. & War. 11 ; Ford ». 654, n.; sec Bailey v. Ekins, 7 Ves. 823; Ryan, 4 Ir. C. R. 843; where a policy of Sliaw r. Borrer, 1 Kce. 550; Ball w. Harris, assurance was assigned. 8 Sim. 485 ; 4 My. &; Cra. 264. (-) Balfour t>. Welland, 16 Ves. 151 ; sec (c) Dolton v. Hewen,0 Mad. 9. Groom v. Booth, 1 Drew. 548. (rf) Cox v. Cox, 1 Kay & Jo. 251. {a) 2 Cas. & Op. 114. (<•') Elliott v. Mcrrinian, Barn. R. C. 82; (b) Anon. Mos. 96; Newell v. Ward, Wynn r. Williams, 5 Ves. 130. Nels. C. R. 38 ; Elliott v. Merrymau, Barn. (/; Page v. Adams, 4 Bea. 269. R. C. 78; 2 Atk. 41 ; Amb. 189, marg. ; {g) In re Bucldey's trust, 17 Bea. 110. ^ 544 OF SEEING TO THE APPLICATION [CH. 18. 14. But if the sale or mortgage, from the circumstances of the , . transaction, afford evidence that the purchase-money was not to be \/ l^ftf J^' i f applied for the debts or legacies, the purchaser or mortgagee will be liable to the charo;e (li). But that will not be inferred on lig-ht grounds. It is now settled that the rule applies to the state of things Jo So at the time of the execution of the deed, or at the time of the testator's death, in the case of a will, and therefore if there were debts then, although they have been paid off and the legacies only remain due, and upon a sale the deeds do not, on the face of them, show that the trustees were committing any breach of trust in selling, the purchaser will be safe {i), and even if there were no debts at the testator's death {K), yet a purchaser cannot have satisfactory evidence of the alleged fact (Z), and consequently, it seems, v/ould not be liable to see to the application of the purchase-money, even if the case does not fall within the general rule. 15. It has recently been laid down generally, that if a trust be created for the payment of debts and legacies, the purchaser or mort- gagee shall in no case be bound to see to the application of the money, for where a testator charges his estate with debts and legacies, he shows that he means to invest his trustees with power to receive the money, anticipating that there will be debts, and thus providing for the payment of them; the intention does not cease to operate because there are no debts (;??). X-^^-^^-^Ht-*^*^ trJAc^^/L^ J^S^^ • ^ ^j 16. A merely fraudulent sale, by collusion with the trustee, of J course could not stand. If a devisee has a rinht to sell, but he sells t* < to pay his own debt, which is a manifest breach of trust, and the -*' purchaser is aware or has notice that such is its object, the rule can > afford him no protection (n). But where a man as heir is entitled to the estate, subject to the debts by law, or as devise e is entitled, subject to the debts, or debts and legacies charged by t he will , and which ch arge by implication inc ludes a po'sv cr or trust to sell or mort- ^age, it is no objection that it appears bythe conveyance that the party who sold was dealing with the purchaser as owner of the estate; for he is in truth the owner, subject to a charge, and it is his duty to satisfy the charge, which the sale may be the means of enabling him to do (o). It may be that the devisee subject to the charge is a trustee for others, yet he may sell or mortgage, and give a good dis- {h) Watkin? v. Cheek, 2 Sim. & Stu. 190 ; Balfour v. Wclland, 16 Ves. Ici6. Rogers r. Rogers, 6 Sim. 864 ; 4 Sly. & {Jt) 1 Phil. 72ii, note. Cra. 426; Page v. Adam, 4 Bca. 260; (0 See Lowes r. Lush, 14 Ves. 547. Carter v. Sanders, 2 Drew. 248 ; where the {m) Stronghill v. Anstey, 1 De Ge. Mac. sale has been long delayed, see Stronghill «Sc Gor. 63.j. • V. Anstey, 1 De Ge. Mac. & Gor. 654. (h) Eland v. Eland, 4 My. & Cra. 427. («) Johnson v. Kennett, a very strong (o) S. C. 428 ; Higgins v. Shaw, 2 DrU. case, 6 Sim. 384; reversed, 3 My. & Ke. & War. 356; Stronghillr. Anstey, 1 De Ge. 624 ; Forbes v. Peacock, 12 Sim. 528, re- Mac. & Gor. 635 ; M'Neillie v. Acton, 4 Do versed, 1 Phil. 717; Braithwaite v. Britain, Ge. Mac. iS: Gor. 744. 1 Kc. ':06; Eland f. Eland, 1 Eea. 235; CH. 18.] OF PURCHASE-MONEY OF REAL ESTATE. 545 charge for the purchase-money, only in that case he could not assume to sell as the owner of the estate (/?) (I). This point ought not to be open to doubt, 17. A general power to give a receipt in all these cases was pro- vided by a late statute {q). But it was quickly repealed, as from the 1st of October 1845, so that the power to trustees to give receipts under the Act extends only from the 1st of .January to the 1st of October 1845 (r). 18. Where the trust is to raise so much money as the personal estate shall prove deficient in paying the debts, or debts and legacies, of course the purchaser is not bound to ascertain the deficiency {s). 19. But where a mere power is given to trustees to sell, for the purpose of raising as much money as the personal estate shall prove deficient in paying the debts, or debts and legacies, it seems that unless the personal estate be actually deficient, the power does not arise, and consequently cannot be duly executed {£). 20. As the power is not well executed unless there be a deficiency, a purchaser must at his peril, ascertain the fact, notwithstanding that the trust be for payment of debts generally ; or being for payment of particular debts or legacies, the common clause, that the trustees' receipts shall be sufficient discharges, be inserted in the instrument creating the trust. Wherever, therefore, a power of this nature is given, and even where a trust for such purposes is raised, it seems advisable, as Mr. Butler remarked, to extend this clause a degree farther, by expressly discharging the purchaser or mortgagee from the obligation of inquiring whether the personal estate has been got in and applied ; and by expressly authorising the trustees to raise any money they may think proper by sale or mortgage, though the personal estate be not actually got in or applied. For it frequently happens, that the getting in of the personal estate is attended with great delay and difficulty ; during which the real estate cannot perhaps be resorted to. This will be obviated effectually by inserting a clause to the above effect. It should, however, be accompanied with a further direction, that so much of the personal estate, and the money raised {p) Ball V. Harris, 4 My. & Cra. 2G4; {t) Dike v. Ricks, Cro. Car, 335; Wm. Dolton V. Hewan.pl. 11, sup. Jones, 327 ; 1 Ro. Ab. 329, pi. 9; 3 Vin. (<7) 7 & 8 Vict. c. 76, s. 10. Ab. 419, pi. 9; Pierce r. Scott, 1 Yo. & (r) 8 & 9 Vict. c. lOG, s. 1. Col. 257; where estate A was to be sold f \s) Fearne's Posth. p. 121; Butler, n.(l) before estate B, see the judgment ; Cul- Co. Litt.290b,s. 12; Birdie. Fox, 11 Ha.40. peppers. Aston, 2 C. C. 221; 2C. Ca. 115. (1) Robinson v. Lowater, 17 Bea. 601, 5 De Ge. Mac. & Gor. 272, andWriglcy r. Sykes, ^_^ v '/ / 2 Jur., N. S., 79, have introduced considerable difficulty upon titles, by implying a power oi^r/)f^ '^a^' ^f sale in executors from a charge of debts, although the estate is devised to others. This is 4/3 " H~ contrary to the received opinion. It would not be safe to rely on the authority of these cases. See an article in the Jurist, vol. 2, N. S., 68. * _^ a, M M /J'K/'c^hJo^ 546 OF SEEING TO THE APPLICATION [CH. 18. under the trust, as shall remain after answering the purposes of the trust, shall be laid out in land, to be settled on the devisees of the real estates (?<). 21. Where a purchaser is bound to see the money applied accord- ing to the trust, and the trust is for payment of debts, or legacies, he must see the money actually paid to the creditors or legatees. In cases of this nature, therefore, each creditor or legatee, upon receiving his money, should give as many receipts as there are purchasers, so that each purchaser may have one. Or, if the creditors or legatees are but few, they may be made parties to the conveyances. Another mode by which the purchasers may be secured is, an assignment by all the creditors and legatees of their debts and legacies to a trustee, with a declaration that his receipts shall be sufficient dis- charges ; and then the trustee can be made a party to the several conveyances. 22. Difficulties at times arise where trust money is lent upon real estate, and there is no express authority to the trustees to vary the securities, or to give discharges for the money, although such an authority must, it should seem, be deemed within the general power of such trustees from the necessity of the case ; but in a case where one of several trustees of a fund , which was directed to be invested upon security for cestuis que trust without any further direction, lent it by his description of such trustee, the Master of the Rolls refused to compel the purchaser to accept the title upon the receipt of the mo rtgagee -trustee alone, although he expressed an opinion that the payiuent to such a trustee was _not a breach of trust {x). In such a case a power to vary the securities, or, in other words, to receive the money which the mortgagor has a right to pay off, must exist some- I where ; and where can it exist if not in the person by whom the advance of the money was made ? 23. If an estate be simply made a security by way of indemnity to one trustee in consequence of the fund being advanced to the other, that will not impress the estate with the trusts of the money, so as to prevent a sale without the concurrence of the cestuis que trust (?/). 24. Where three trustees under their trust sold to a purchaser, and gave a receipt for the Avhole of the purchase-money, but only received part of it, and the deeds were deposited Avith one of them, the acting trustee, to secure the residue, and the purchaser paid the balance to that trustee, he was held still liable to the cestuis que trust, for although the trustees had power to invest the money on real secu- rities, this equitable deposit to one was a breach of trust. But the Court observed that there was no authority for holding a man liable (m) Butl. n. Co. Litt. 2D0 b. missed with costs; Wood v. Harman, 3 {x) Hanson v. Beveiley, 17 Mar, 1832; Mad. 368. Reg. Lib. A. 1831, fo. 1110; the bill dis- (y) Groom v. Booth, 1 Drew. 548. CH. 18.] OF PURCHASE-MONEY OF REAL ESTATE. 547 to pay over again purchase-money which he had paid to one of several trustees upon a receipt signed by them all (z). 25. An assignment of a policy by way of mortgage, with a power to receive the money, was of course held sufficient, -without a declaration that the mortgagee's receipt should be a discharge, from the nature of the transaction («). 26. A contract for sale, as we have seen, converts the estate in equity into personalty (Z»). And therefore, if an estate be devised to a trustee for sale, and his receipt be made a valid discharge, and after- wards the testator himself sell the estate, his executor would be the right hand to receive the money, and not the trustee, even if the will state the testator's intention to sell, and direct the trustee to carry into execution any contract for sale entered into by him in his life- time, and remaining uncompleted at his death — for the provision in the will as to the receipts of the trustee, is not applicable to a case in which the testator in his lifetime made the contract for sale ; and it was not competent for the testator to impose fetters on the perform- ance of the contract he had entered into. When he had sold any part of his estates, the receipt clause, from the very nature of the case, became inapplicable : the executor of the testator then became the proper party to give the receipt for the purchase-money. 27. If the names of the trustees be inserted in the usual clause, that the receipts of the trustees shall be discharges, every trustee who has accepted the trust must join in the receipt for the purchase- money, although he may have released the estate to the other trustees (c). But a trustee who has refused to accept the trust, and actually renounced, need not join in any receipts (d). And a release may be considered as a disclaimer (SS' . 32. Purchasers frequently run considerable risk in paying the pur- ;^ /2n^. J*^ /fd*, chase-money to the agent or solicitor of the seller upon the (\.Q\iyeYy y ^/jZ/fiPz/ //^s^, of the conveyance ; of course, if the agent is duly authorise^ to receive it, there will be no risk ; but that is often not the case, and particu- larly where sales are made by trustees, who are all bound to join in /• j, /»/ d 3Pj the receipt, and who would not be justified in allowing their solicitor to receive the purchase-money, being trust money (t). Upon a pur- chase Avhere there were several sets of trustees entitled to the property in shares, as it was impossible that they should be got together to receive the money, an account Avas opened for each set of trustees at a banker's, with Avhose responsibility the purchaser Avas satisfied, and the share of the purchase-money belonging to each set was paid in by the purchaser to their account, and by their direction. This Avas considered by the Avriter to Ije as good a plan as could he devised for his oAvn safety. 33. A purchaser should not pay his purchase-money upon a per- (m) Drayson v. Pocock, 4 Sim. 283. IG Vict. c. 65 ; Siigd. Stat. 380 ; and see 19 \n) Bradford v. Belfield, 2 Sim. 204. & 20 Vict. c. 120, for facilitating leases and (o) Cooke r. Crawford, 13 Sim. 91; sales of settled estates. Jlortimer r. Ireland, Ha. 190. S i^^A^Z^^J (t) See Macdonnell v. Harding, 7 Sim. (jtf) \Vilsonr.Bennett,5De.Ge.&Sma.€75. 170; Vandalenr v. Blagrave, Bca. 505; (q) 2 Sugd. Pow. 507 ; Newman v. AVar- affd. 9 I^ea. Add.; Young v. Guy, 8 Bea. ner,'7 Sim., N. S., 457. I'l' ; Tylec v. AAebb, 14 Bea. 14 ; Griflin v. (r) Wilson v. Bennett, 5 De Ge. k Sma. Clowes, 20 Bea. 01 ; see and consider Hope 475. '-'• Lowell, 2 1 Bea. 1 83 ; sup. Z /)^A r:f^ I//^' (a) 13 & 14 Viet. c. GO, s. 32, 33; 15 & 2^g^rux^ /^^ ^ M M 3 550 OF SEEING TO THE APPLICATION [CH. 18. sonal undertaking of the seller's solicitor to do certain acts to establish the title, as he may find much difficulty in enforcing the undertaking (?/). 34. II. As to leasehold estates, a purchaser of personalty is in no case bound to see to the application of the purchase-money where he purchases bond fide {x) ; but an executor cannot now dispose of his testator's property, as a security for, or in payment or satisfaction of, his own debts (y). 35. If the executor sell at an undervalue, or to one who has notice that there are no debts, or that all the debts are paid {£), or if there be any express or implied fraud or collusion between the executor and purchaser, the sale cannot be supported (a). Fraud and covin will vitiate any transaction, and turn it to a mere colour. If one con- certs with an executor or legatee, by obtaining the testator's effects at a nominal price, or at a fraudulent undervalue, or by applying the real value to the purchase of other subjects for his own behoof, or in extinguishing the private debt of the executor, or in any other manner (which Lord Eldon has said are very material words), contrary to the duty of office of executor, such concert will involve the seeming pur- chaser, and make him liable for the full value (Z»). 36. But if the legatee permit a long time to elapse without assert- ing his claim, and there are several mesne purchasers, equity Avill not set aside the sale, although there are suspicious circumstances of fraud (c). And although the legatee has only a contingent interest or a claim in remainder, yet that will be no excuse for delay (fZ) (I). (w) Peart v. Bushell, 2 Sim. 38. Ves. 169; Cubbidge v. Boatwi-i^ht, 1 Rus. {x) Elliot I?. Men-iraan, Barn. R. C. 78; 549; M'Leod u. Drummond, 14 Ves. 353; 2 Atk. 41; Watts v. Kancy, Tot. 141 ; S. 17 Ves. 152; Fan- v. Newman, 4 Term C. ib. 227, nom. Mutts v. Kancie ; Nm-ton R. G21 ; Keane v. Roberts, 4 Mad. 332; V. Nm-ton, ih. ; Hmnble v. Bill, 2 Ver. 444; Haynes v. Forshaw, 11 Ha. 93. 1 Eq. Ca. Ab. 358, pi. 4 ; Savage v. Hmnble, {-) Ewer v. Corbet, 2 P. Wins. 148. 1 Bro. P. C. 71 ; 17 Ves. ItiO, 161 ; Ewer {n) Crane v. Drake, 2 Ver. 616; Vin. V. Corbet, 2 P. Wms. 148; Bunting v. 43, pi. 13; 18 Vin. 121, pi. 11, side notes; Stonnard, 2 P. Wms. 150; Andrew v. Bomiey v. Ridgard, 2 Bro. C. C. 438, cited ; Wrigley, 4 Bro. C. C. 137 ; Dickenson Nugent v. Gifford, 1 Atk. 463 ; Gilb. E. R. V. Dickenson, 4 Ves. 36; see Sneesby v. 113; Prec. C. 434; Whale v. Booth, 4 Thorne, 1 Jm-.', N. S., 536 ; 3 C. Law R. 849. Term. R. 625, n. ; 17 Ves. 167. {y) Nugent v. Gifford, 1 Atk. 463 ; Mead {b) 2 Dick. 725 ; see 1 Burr. 475. V. Lord Orrery, 3 Atk. 235 ; Ithell v. Beane, (c) Bonney v. Ridgard, 2 Bro. C. C. 438 ; 1 Ves. 215; Scott v. Tyler, 2 Dick. 724; 17 Ves. 97, 165; Scott y. Dunbar, 1 Mol. 442. 2 Bro. C. C. 4:H ; 17 Ves. 164 ; Bonney v. (d) Andrew v. Wrigley, 4 Bro. C. C. 125; Ridgard, 2 Bro. C. C. 433; 4 Bro. C. C. but see Ld. Bandon v. Becher, 3 Cla. & 130; 7 Ves. 167; Andrew v. Wrigley, 4 Fin. 479 ; Mead r. Ld. Orrery, 3 Atk. 241 ; Bro. C. C. 125; Hill v. Simpson, 7 Ves. 17 Ves. 161, 162. 152; Lowther v. Lowther, 13 Ves. 65; 17 (I) In Howarth v. Powell, Ld. Keeper Henley said, that a party having a claim in re- mainder to an estate, though not to the possession, if he sees the possession wi'ongfully usurped, ought to file his bill for relief before his right to possession accrues, for otherwise he stands by and countenances the possessor in his act of ownership, MS. S. C. 1 Ed. 351, nom. Howarth r. Deem. en. 19.] OF PUECHASE-MONEY OF CHATTELS. 551 37. A particular chattel specifically bequeathed may, it seems, be safely purchased from an executor (e), but certainly, in some cases, such a purchase could not be recommended without the concuijence of the legatee, because the executor may have assented to the be- quest (/) ; but this difficulty is not likely to arise where the sale is recently after the death, or the possession accompanies the purchase. But no question can arise where the specific legatee of the chattel is also executor (g). And an executor may sell until there is a decree in a suit for administering the assets (A). So an executor or adminis- trator may mortgage honajide, and give a power of sale to the mort- gagee, a sale under which would be enforced against a purchaser (z). (e) Langley v. Ld. Oxford, Amb. 17; Elliott V. Merriman, Barn. C. R. 78 ; An- drew V. Wrigley, 4 Bro. C. C. 125. (/■) Thomlinson v. Smith, Finch, 378. (V) Taylor y. Hawkins, 8 Ves 20.0; Att.- gen. V. Potter, 5 Bea. 164 ; where there are several executors, see Cole v. Muddle, 10 Ha. 186. (h) Neaves v. Barrage, 14 Jur. 177; see Maltby v. Russell, 2 Sim. & Stu. 227. (i) Russell V. Plaice, 18 Bea. 21 ; 2 Eq. R. 1149. CHAPTER XIX. OF THE vendor's LIEN ON THE ESTATE FOU THE PURCHASE- MONEY UNPAID : AND THE DISCHARGE OF IT BY TAKING OTHER SECURITIES. Vendor's lien. Purchaser's lien. C Vendor's lien, allJiough agreement for \ bond during the seller's life: Winter L V. Lord Anson. No lien tvhere conveyance in considera- tion of covenants : Clarke v. Royle. Clarke v. Royle not overruled. Mortgage to third perso7i with seller's consent : no lien. Bonds with sureties. Covenant by purchaser and surety, and consent required to re-sale — Convey- ance for bond; no lien : Parrot v. Sweetland. Intention not important. Money to be paid after re-sale: no lien. Independent security : no lien — As upon stock — Mortgage of another estate, or of estate sold for part. A bond and mortgage of part of estate : no lien. Bond or note does not destroy lien. Effect of a covenant. Annuity the price, lohether bond or note excludes the lien. M 16 17, 18, 19, 20, 21 22 23 24 25 26 27, 28 29 30 31 32 33, 34, 35. 36. 38, M 4 . Part left with one trustee tvhere several sell. Lien of trustees on new purchase by tenant for life. Lien for part and none for rest. Set-off against assignees. Action and suit by the seller at the same time not allowed. . Declaration to prevent lien. . Assets marshalled. , Contribution. Vendor keeping the deeds. . Lien prevails against whom. . Possession of seller as lessee not notice. . Assignees of bankrupt hound by lien. . Sale under lien. , Lien on plant ; bankruptcy. . Creditors under conveyance bound. . Qui prior est tempore potior est jure. . Equitable mortgagee by deposit of deeds overreaches lien. Priorities according to time. Deposit of deeds binds the Crown. Security for jmr chase-money to third person. Assignment of lien. Barred by non-claim. 552 LIEN FOR PURCHASE-MONEY [CH. 19. ^/. ^322- 1. Where a vendor delivei-s possession of an estate to a purchaser, without receiving the purchase-money, equity, whether the estate be (a) or be not (6) conveyed, and although there was not any special agreement for that purpose, and whether the estate be freehold or co[)yhold (c), and whether the Avhole or only part of the money is un- paid (f^), gives the vendor a lien on the land for the money, but this does not prevail at law {e) ; nor in equity if the purchaser has aban- doned the contract, and treated the advances as not made under it (/). y)^^/// 2. So, on the other hand, if the vendor cannot make a title, and the purchaser has paid any part of the purchase-money, it seems that he has a lien for it on the estate, although he may have taken a distinct security for the money advanced {(j) (I). The general question came lately before the Court upon a demurrer to a bill for the deposit and subsequent advances, and for delivering up of the contract, and the ^y^.3 fa y^^ demurrer was overruled. The opinion of the V. C. was in favour of ^ the lien in the common case of an owner selling and receiving a de- posit, and the contract going off for want of title, or for any other reason, not being actual misconduct on the part of the purchaser, but he did not decide the point. If such a lien can be maintained, and a mortgagee were to sell under a power, and the lien could not be established generally, so as to bind the mortgagor, yet it would prevail to the extent of his OAvn interest (A). The right to a lien seems clear upon principle. In the case of a vendor who has actually conveyed, the lien remains, although he has no longer the estate. The principle is, that the lien for the purchase-money represented the estate which in equity no longer was his : this right the conveyance did not defeat. Now the purchaser, upon the execution of the contract, becomes in equity owner of the estate, and the money belongs to the vendor. If all the money is paid, he obtains the estate itself. The money is in exchange for the estate. A deposit is part payment. Therefore part payment to that extent constitutes the purchaser actually owner of the estate : consequently if the contract do not proceed without the fault of the purchaser, the seller, to recover the equitable ownership, must repay the deposit, which, representing a portion of the interest in the property, is a lien upon it. In another view, the lieu of the vendor («) Chapman v. Tanner, 1 Ver. 267 ; {d) Infra. Pollexfen v. Moore, 3 Atk. 272; 1 Bro. {e) Goods t>. Burton, 1 Ex. 189. C.C. 302, 424; 6 Ves. 483; Mackretli v. (/) Dinn r. Grant, 3 De Ge. & Sma. 451. Symmons, 15 Ves. 329. {(j) See Lacon v. Mertins, 3 Atk. 1 ; {b) Smithr.Hibbai-d,2 Dick. 730; Charles Oxenham v. Esdaile, 2 Yo, & Jer. 493; 3 V. Andrews, 9 Mod. 152; Topham v. Con- Yo. & Jer. 262. stantine, Taml. 135; Evans v. Tweedy, 1 {h) Withes v. Lee, 3 Drew. 396; 2 Jur., Bea. 55. N. S., 130; see p. 209 svp. p. 245, and n. (c) Winter v. Ld. Anson, 3 Rus. 488. (I) As to chattels capable of delivery, as timber felled, see ex parte Gwyne, 12 Ves. jun. 379 ; and as to advances by the seller, see ex parte Linden, 1 Mont. Dea. &l De Ge. 428. CH. 19.] WHERE COVENANT TAKEN. 553 for all the money may, upon receipt of a portion of tlie money from the purchaser, be considered as transferred to that extent to the pur- chaser. But where the purchase cannot be enforced on the ground of its illegality, by statute, there is, it seems, no lien, for such a lien would, to that extent, be giving to the purchaser the benefit of the illegal contract (i). 3. And even in Winter v. Lord Anson, where the purchase-money was to be secured by the purchaser's bond at interest, and to remain so secured during the life of the seller, on the regular payment of the interest, and the conveyance expressed all the money to be })aid, but a bond was given for a large portion of it, the lien was held to exist ; Sir John Leach having first decided for the lien, and ultimately against it, and upon appeal Lord Lyndhurst having preferred the first opinion, and reversed the ultimate decree (A). 4. In Clarke v. Royle (/), the conveyance recited a contract by A to convey to B, in consideration of the latter entering into covenants for payment to A, during his life, of an annuity of 60 /., and also of his entering into the other covenant after contained; and then, in consideration of these covenants, A conveyed the estate to B, in fee ; and B covenanted with A to pay to him an annuity of 60 /. for his life, and in case he, B, should marry, he, his heirs, &c. would pay, as A should think proper, 3,000 /. unto certain persons named in the deed. And it was held that the purchaser had no lien for the annuity, and that there was none for the 3,000 /. The case was decided upon the authority of Winter v. Lord Anson. 5. When this case was decided, it seems not to have been known that Winter v. Lord Anson had been reversed, and therefore was no longer an authority in support of the view taken by the Court ; and it has been supposed to folloAv, that the case of Clarke and Royle was not itself an authority. The fault in the reasoning of Sir John Leach, V. C , in Winter v. Lord Anson, appears to be that he placed the case upon grounds which did not exist. He put it as in effect a case where the conveyance was in consideration of a covenant in a deed to pay the price at the future period. But although the con- veyance was in pursuance of the agreement, yet it did not refer to it, and his reasoning therefore Avould apply to nearly every case, for in general the agreement to take a bond or other security precedes the conveyance, although in the latter the money is expressed to be paid. Indeed the agreement in Winter v. Lord Anson, was to accept a bond, and not a covenant. It would seem, therefore, to be safer to adhere to the rule as first laid down by Sir John Leach himself, and after- wards confirmed by the Lord Chancellor. But this would not shake (i) Ewing7>.Osbaldeston,2My.&Ci'a.88. (/) G Sim. 499; Panott v. Sweetlaud, {k) Winter v. Ld. Anson, V, C. 27 Nov. 3 My. & Ke. 655 ; see Stuart v. Ferguson, 182] , MS. ; 1 Sim. & Stu. 434 ; 3 Rus. 488. 1 Hay. 452 ; 13 Sim. 406 ; i^t. 554 LIEN FOR PURCHASE-MONET [CS. 19. the decision in Clarke v. lloyle, for there the very case arose which was assumed to exist in Winter v. Lord Anson. The conveyance really Avas made in consideration of covenants entered into by the same deed for payment of the price ; and it may be fairly considered contrary to the meaning of such a security for the purchase-money, to i-aisc another security upon the estate itself by implication from the very transaction. There is a marked distinction between a con- veyance as for money paid with a separate security for the price, whether by covenant, bond, or note, and a conveyance expressed to be in consideration of covenants which the purchaser enters into by the deed itself. The price too might never become payable, and it appears not to have been strictly a sale, for no sale is recited, and the two parties bore the same surname, and the 3,000 /. was only to be payable in case the man to Avhom the estate was conveyed married, and then not to the former owner, but, although by his direction, to third persons evidently relations. It Avas partly in the nature of a purchase, and i:)artly a family transaction, and the learned Judge appears to have come to a j ust conclusion, which the reversal of the original decree in Winter v. Lord Anson does not seem to disturb. 6. And where a purchaser borrowed part of the purchase-money of a third person, which he paid to the seller, and all parties joined in a deed which stated the transaction, and by which the purchaser gave a security on the estate to the lender for the money advanced, it was held that by the assent of the seller to this transaction, he lost his lien at least as against the mortgagee (m). 7. And in the same case, it aj^peared that several persons agreed to join with the purchaser in bonds to secure the residue of the pur- chase-money, and the agreement was recited, and they were made parties to the deed executed upon the sale, although it is not stated in the report whether they entered into any covenants by the deed ; it is not clear that the Chief Baron decided this further point, but he said there Avas this material difference in the facts between this case and those in Mackreth v. Symmons {n) ; there the bond was taken by the original seller of the estate from the purchaser alone ; here he took a bond with sureties. There seems to be but little doubt that the Chief Baron, if he did not decide that no lien existed, Avould have so decided if the question had been properly before him. 8. In Elliot V. Edwards (o), the vendor assigned a leasehold estate to the purchaser, upon payment of part of the purchase-money. The purchaser and another person as his surety, covenanted by the assignment for payment of the residue of the purchase-money ; ajid in the assignment teas contained a proviso, that the estate should not he assigned until all the money was duly paid, loithout the joint consent of {m) Good V. Pollard, 9 Pri. 544 ; 10 Pri. (n) Infra. 109, Good r. Good. (o) 3 Bo. & Pul. 181. CH. 19.] WHERE COVENANT TAKEN. 555 the vendor and the suretij. Lord Alvauley was of opinion, that the vendor had an equitable lien. But in a late case where a daughter conveyed her remainder in fee in an estate to her father, the tenant for life, who Avas to pay a mortgage on the estate, the consideration was expressed to be " the sum of 3,000 /. advanced, or agreed to be advanced or secured to the daughter in contemplation of her intended marriage, upon the terms expressed in a bond bearing even date herewith." And the rccei^Jt indorsed was of "a bond for 3,000/., being the full consideration within expressed." The condition of the bond provided an annuity of 100 /. to the daughter and her husband, and the payment of 3,000 /. in certain events, with a proviso, to avoid the payment of the 3,000 /. if the father should by deed or will give property to that amount to the husband or wife — it was held that there was no lien on the estate for the 3,000 /. It Avas considered that this was not the case of a security, but a substitution for the price, which the vendor had agreed to accept, and that the lien for the purchase-money Avas consequently discharged (7;). And yet there Avas no doubt that the security Avas the very one referred to by the conveyance, and that no ncAV arrangement Avas made in regard to the price subsequently to the couA'cyance ; and there seems to be no reason Avhy the modification of payment Avithout any alteration in the security should take aAvay the lien. Upon an appeal the decree Avas affirmed upon the grounds that the husband Avas content to accept the bond as the fortune of his Avife — that it Avas a sort of family arrangement — that the receipt Avas for the bond and not for the 3,000 L, and the parties Avere bargaining for a security and not for a stipulated sum, and no question of lien arose, because the purchaser had actually received the consideration, that is, she Avas in effect paid by the receipt of the bond. 9. It is immaterial that the seller had no intention to reserve such a lien {(f), or even intended to rest satisfied Avith the personal security (r) : in either case, the lien Avill be raised in his favour, if the security Avhich he has accepted does not, from the nature of it, preclude the claim. But an actual agreement, although by jjarol, to accept the personal security as the only one, Avould discharge the lien (5), Avhilst a like agreement that the money shall be secured on the estate Avould be binding, although on the face of the deed money in part and a bill for the remainder are declared to be " in full satisfaction for the absolute purchase " {t). 10. A stipulation that the purchase -money should be })ald Avithin two years after a resale, Avas held to discharge the vendor's lien(?<). 11. If a vendor take a distinct and independent security for the {p) Parrottt;. Sweetlaud,3My.&Ke.G55. {s) 1 Sim. & Stu. 438, 445. {q) Mackreth v. Symmons. 15 Ves. 329. (0 iSee Frail v. Elli;?, IG Bea. 350. {)■) Winteru.Ld. Anson, 1 Sim. & Stu. 438. (w) Ex pte. Paikes, 1 Gly. &i Ja. 228. 556 WHERE THERE IS A BOXD, ETC. [CH. 19. purchase-money, his lien on the estate is gone; such a security is Z7^/;^^^^'~ evidence that he did not trust to the estate as a pledge for his money (x) ; as Avhere he accepted some stock for the money (i/), with an agreement, that in case it did not within a limited time produce a sum named, the purchaser should make it up that sum ; or Avhere a vendor accepted a mortgage of another estate for the purchase-money, the obvious intention of burthening one estate being, that the other shall remain free and unincumbered (z) ; so, even where the vendor ^/A -^ A. takes a mortgage of the estate sold for only part of the purchase- •//A. CC ~ nioney (a). And these appear to be well-founded general rules ; although Lord Eldon thought they might be liable to some excep- tions (b). Again, a bond, and a mortgage of part of the estate, have been held to exclude the lien over the rest of the estate (c). ^/ ///i'5 12. But taking a bond or note for the purchase-money will not affect the vendor's lien (d) ; and although this has been decided other- wise (e), it is now a settled point (/). 13. And bills or promissory notes especially are taken, not as a security, but as a mode of payment ((/) ; and this holds even where the purchase-money is paid by bills drawn by the purchaser, and accepted by him and a third person [h). And it is not important that the note or bill has been negotiated (z). 14. There appears to be no reason why the same rule should not extend to a covenant for the purchase-money, although, as we have seen, where the conveyance is in consideration of a covenant entered into by the deed itself, that riiai/ prevent a lien from arising (k). 15. And after much difference of opinion, it is settled that a lieu will be raised in the vendor's favour, although the estate is sold for an annuity, and a bond or note is taken for securing the payment of it (Z) (I). But if from the frame of the transaction — for example, (ar) 6 Ves. 483 ; 15 Yes. 348, 349. C. C. 421, n. ; 2 Dick. 48.j. {y) Nairn v. Prowse, 6 Ves. lo'2; but (/) lilackburu v. Gregson, 1 Cox, UO ; see Ld. Eldou's observations. 1 Ero. C. C. 420 ; Tarditf v, Sci'ughan, ib. (z) 'Sah-n r. Prowse; but see lo Ves. 423; ] 5 Ves. 336, 337; G Ves. 752. 341 ; 2 Bal. & Bea. 515. (g) Hughes v. Kearney, 1 Sell, & Lef. (a) Bond v. Kent, 2 Vcr. 281 ; 1 Sch. & 132; Lynn v. Chaters, 2 Ke. 521 ; Teed v. Lei. 195. CaiTuthers, 2 Yo. & Col. C. C. 40. (6) 15 Ves. 341, 348, 349 ; see Cowell v. (Ii) Grant v. Mills, 2 Ves. & Be. 306 ; 1 Simpson, 16 Ves. 278, 280. Sch. & Lef. 132, 136. ' (c) Capper u. Spottiswoode, Taml. 21. (i) Ex pte. Loaring, 2 Ro. 79; Comer (d) Hearne r. Botelers, Cary 25; Tardiff v. Walkley, Reg. Lib. A. 1784, fol. 625; V. Scrughan, 1 Bro, C. C. 422; Harrison v. iMackreth v. Symmons, 15 Yes. 329; but it Southcote, 2 Ves. 389 ; JEx pte. Latcy, 2 is otherwise at law upon a sale of goods, Jlon. & Ay. 609; see 15 Ves. 338, 343; Bunney f. Poyntz, 1 Nev. and Man. 229. Gibbons v. Baddale, 2 Eq. Ca. Ab. GS2, n. (Ti) Supra, 554. (b)to(D.); 7?.c ;;?. Symmons, 15 Ves. 329; Winter v. Rus. 340. Ld. Anson, 3 Rus. 493. (e) Emus3 v. Smith, 2 De Ge. & Sma. (A) 1 Bro. C. C. 302. 722; see 17 & 18 Vict. c. 113. (0 2 Yo. k Col. 234; 4Yo. & Col. 570. CH. 19.] NOTICE OP LIEN. 561 money, although he had acknowledged the receipt of it in the body of the deed and by indorsement, was in possession of the estate as lessee to the equitable tenant for life under the settlement, for the uses of which the estate was purchased, annuitants under the equi- table tenant for life were held not to be bound by the vendor's lien, in consequence of their attorney having had notice that the seller was in possession of the estate : for as the seller had declared by the conveyance that he had received all the money (I), no man could be expected to inquire whether the purchase-money had been paid (k) ; yet, where the purchase-money not being paid the seller retained the conveyance and the title-deeds, and a man took a mortgage from the purchaser without inquiring for the deeds, it was held that he was bound by constructive notice of the seller's lien for the unpaid pur- chase-money (/). 27. Persons coming in under the purchaser by act of law, as assignees of a bankrujot (m), are bound by an equitable lien, although they had no notice of its existence (n). 28. In some cases, by force of the seller's lien, the Court can at once sell the estate and pay the purchase-money to the seller (o). 29. But where a brewhouse, plant and fixtures, were contracted to be sold, and the purchaser was let into possession, and there was a decree for a specific performance, but the purchaser became bankrupt before the money was paid, it was held that there was no lien against the plant, which fell within the provision of the 21 Jac. 1, c. 19 (ji). 30. And creditors claiming under a conveyance from the pur- chaser, are bound in like manner as assignees {q), because they stand in the same situation as creditors under a commission. 31. Text writers generally quote the rule, that as between persons having only equitable interests ^'mi prior est tempore potior est jure, and then show the exception. It has been said, that the following is the mode in which the rule should be stated with perfect accuracy : As between persons having only equitable interests, if their equities {k) White V. Wakefield, 7 Sim. 401. the late statutes. (J.) Wortliington v, Morgan, 16 Sim. 547, (o) Sup. ; as to the right to the lien, and post. also against the assets of a deceased pur- {m) Blackburne v. Grcgson, 1 Bro. C. C. chaser, see Rome v. Young, 3 Yo. & Col. 199. 420; Bowles v. Rogers, 6 Ves. 95, n. ; {p) Ex pte.TiaXe, 1 Buck, 3G5. Expte. Hanson, 12 Ves. 346. {q) Fawell v. Ileolis, Arab. 724; 1 Bro. (ii) 9 Ves. 100; 2 Ves. & Be. 309; see C. C. 302. (I) A receipt for the purchase-money, although signed by the seller, is in equity of no avail if the money be not actually paid ; Coppin v. Coppin, 2 P. Wms. 291 ; Griffin v. Clowes, 20 Bea. 61 : nor even at law, for the receipt indorsed not being under seal, cannot amount to an estoppel ; Lampon v. Corke, 5 Bai*. & Al. 606 ; Henderson v. Wild, 2 Ca. C. 561 ; but at law the receipt in the body of the deed is binding upon the parties ; Rown- tree v. Jacob, 2 Tau. 141 (where tliere was also a receipt indorsed); whilst in equity it is no more binding against the truth of the transaction than the indorsement ; Croly v. Cal- laghan, 5 Ir. E. R. 25; Ex pte. Morrell, 22 L. T. 194. In equity payment will be pre- sumed after a gi-eat length of time, Bidlake v. Arundel, 1 Ch. R. 93. N N 662 PEOrERTIES OF LIEN. DEPOSIT OF DEEDS. [CH. 19. are in all other res-pects equal, priority of time gives the better equity, or qui i)rior est tempore potior est jure (r). 32. An equitable mortgage by the purchaser, by deposit of deeds to a person, hondjide, and without notice, will give the latter a pre- ferable equity, which will overreach the vendor's equitable lien on the estate for any part of the purchase-money (5). This, which was before considered to be the law, has been so decided in the late case of Rice V. liice {t), where the purchaser had possession of the con- veyance, with a regular receipt indorsed, and deposited it with the other deeds as a security. 33. In Mackreth v. Symmons, where the vendor had a lien (ii), the legal fee was outstanding in a trustee to secure annuities, and a mortgagee (who had not originally looked to the security of the estate) claimed under a contract to make a mortgage to him, when he had no notice of the vendor's lien ; and also under a regular mort- gage of the equitable estate, when he had notice of the lien, but he had not a deposit of the deeds, and it was decided that as they were both equities, priorities must rank according to time, and consequently the mortgage be postponed to the lien. V. C. Kindersley has ob- served, that he had no doubt that in this case, if the equitable mort- gagee had, in addition to his contract for a mortgage, obtained the title-deeds from his mortgagor. Lord Eldon would have decided in his favour {x). 34. A deposit of title-deeds by a simple-contract debtor of the Crown, for securing part of the purchase-money for another estate, binds the Crown as an equitable mortgage, although the purchaser also gave his bond to the seller for the money {y). 35 . If the seller agree that the purchase-money shall be paid to a third person, and the purchaser accordingly give a note to that person for the amount, the lien on the estate will, it seems, go with the note (z). 36. The seller may of course assign the purchase-money unpaid to another with his lien ; but although the assignee may be a bondjide purchaser of the money, yet he will take, subject to the rights of the purchaser of the estate to have it cleared of incumbrances, and cannot better his condition by paying off a mortgage, for it is not a case for tacking (a). (r) 2 Drew. 78, %bpcr Kindersley, V. C; (a;) 2 Drew. 82. sec Gibson v. Goldsniid, 5 De Ge. Mac. & (//) Casberd v. Ward, 6 Pri. 411 ; Fector Gor. 757. t>. Philpott, 12 Pri. 197. (s) Nairno v. Prowse, 6 Ves. 752 ; 2 Ves. {z) Dryden v. Frost, 3 My. & Cra. 670, & Be. 149; Stanhope r. Ld.Vcrney; 2 Eden, where the third person was a prior mort- 81 ; Butler, n. Co. Litt. 290 b, 2 Drew. 80; gagee and attorney, and had the deeds in consider Frere v, Moore, 8 Pri. 475. In his po.ssession. Mackreth v. Symmons, 15 Ves. 329, there («) Lacey v. Ingle, 2 Phil. 413; Dryden was no deposit of deeds, v. Frost, 3 My. & Cra. G70, as to an assign- (0 2 Drew. 73. («) 15 Ves. 329. ment by parol. CH. 20. S. I.] OF PERSONS INCAPABLE OF PURCHASING. 563 37. If a purchaser deposit the deeds with a third person, as a col- lateral security for part of the purchase-money, the seller, although he obtain possession of the conveyance to the purchaser from the depositary, and pledge it to persons who advance money upon it bond fide, cannot give them a lien beyond the amount of the purchase- money actually unpaid to him {h). 38 . Lastly, as we have seen, the lien may be barred by nonclaim (c). But, as we have also seen, whilst the principal remains unbarred, the interest will run, and not be confined to six years. The principal would not become payable till the title was shown ; that is the time for completion, and the right to receive interest accrues at the same time, although it is payable from the time of the contract (rf). (i) Hooper v. Kamsbottom, 4 Ca. 121 ; G Tau. 12 ; Harrington v. Price, 3 Bar. k. Ad. 170; suf.; see Manningford v, Tole- man, 1 Col. 670. (c) Sup. ch. 12; Toft v. Stephenson, 7 Ha. 1, {d) Toft V. Stevenson, 5 De Ge. Mac. & Gor. 735. CHAPTER XX. OF THE PERSONS INCAPABLE OF PURCHASING. SECTION I. OF PERSONS INCAPABLE OF PURCHASING. The several incapacities. Parishioners, 8fc. —Parson and church- wardens in London. Aliens purchase for benefit of Crown — Denizen may purchase and hold — Office found — Felons and traitors — Corporations, Infants may at age waive a purchase — Femes covert: husband's dissent — Contract to purchase by feme covert ivith separate estate Feme covert buying with husband's authority — Lunatics — Roman Catholics. 1 . This incapacity is of three kinds ; 1st, An absolute Incapacity ; 2dly, An incapacity to hold, although an ability to purchase ; and, 3dly, An incapacity to purchase, except suh modo. 2. The parishioners, or inhabitants of any place, or the church- wardens, are incapable of purchasing lands (a) by those names. But it seems that in London the parson and churchwardens are a corpo- ration to purchase lands (b). And churchwardens and overseers are enabled by statute law (c), to purchase a workhouse for the poor, but this is merely as trustees, and does not aftcct the general rule of law. And in many other cases powers for public purposes are given to purchase lands. (a) Co. Litt. 3 a. grave's n. (4) Co. Litt. 3 a. (6) Warner's case, Cro, Jac. 532; liar- {c) 9 Geo, 1, c, 7, s. 4. N N 2 564 OF THE PERSONS CAPABLE OP PURCHASING SUB MODO, [CH.20.8.1. 3. II. With respect to persons who are capable of purchasing, but incapable ol" holding : They are, 1 . Aliens ; for although they may purchase, yet it can only be for the benefit of the King : and upon an office found, the King shall have it by his prerogative {d). And an alien cannot protect himself by taking the conveyance in the name of a trustee (e). But the interest of an alien under a devise to trustees to sell for the benefit of him and others, does not go to the Crown (/). If an alien be made a denizen by the King's letters patent, he is then capable of holding lands {(/) purchased after his denization. And if an alien purchase lands, and before office found the King make him a denizen by letters patent (A), and confirm his estate, the confirmation will be good ; as the land is not in the King till office found (i).. 2. Persons who have committed felony (A) or treason, or have been guilty of the offence of prcemunire, and afterwards purchase lands, and then are attainted ; for they have ability to purchase, although not to hold ; and for that reason the lord of the fee shall have the lands ; but if they purchase after they are attainted, they are then in the same situation with aliens, and the lands must go to the King (Z). 3. Corporations sole or aggregate, either ecclesiastical or temporal, cannot hold lands without authority of Parliament or due license for that purpose (ni)', and the lord of the fee, or in default thereof within the time limited by the statutes, the King may enter (n). 4. III. With respect to persons capable of purchasing suh modo : They are, 1. Infants under the age of twenty-one years, who may purchase, and at their full age may bind themselves by agreeing to the purchase ; or may waive the purchase without alleging any cause for so doing : and if they do not agree to the purchase after their full age, their heirs may waive the purchase in the same manner as the infants themselves could have done (o) (I). 2. Femes cover t, \iho oxe capable of purchasing, but their husbands may disagree thereunto, and divest the whole estate, and maintain trover for the purchase- {d) Co. Litt. 2 b ; Dumoncel v. Dumon- c. 66, s. 3, as to leases to alien Mends, eel, 13 Ir. E. R. 92. (ft) See as to felony 55 Geo. 3, c. 145, (e) The King v. Holland, All. 14; Sty. svp. p. 383 n.; 3 & 4 W. 4, c. 106, s. 10, 20, 40, 75, 84, tJO, 94; 1 Ro. Ab. 194, pl.8. sup. 383. (/) Du Ilourmelin v. Sheldon, 1 Bea. 79 ; (/) Co. Litt. 2 b ; Rex v. Inhab. of Had- 4 My. & Cra. 525. denham, 15 Ea. 463. (). If a husband neither agree nor disagree, the purchase by his wife will be effectual ; but after his death she may waive the purchase, without giving any reason for so doing, although her husband may have agreed to it. And if, after her husband's death, she do not agree to it, her heirs may waive it (q). If she have separate property, she may contract as if she were a feme sole for the purchase of an estate, and her separate property will be bound by the contract, although she do not refer to it (r) ; and a feme covert may purchase lands pursuant to an authority given by her husband, and he cannot avoid it afterwards (s). 3. Lunatics or idiots, who are capable of purchasing ; but although they recover their senses, cannot themselves, it should seem, waive the purchase {t): and if they recover and agree thereunto, their heirs cannot set it aside. If they die during their lunacy or idiocy, then their heirs may avoid the purchase (?<). But where the insane state of mind was unknown to the other party, and no advantage was taken of the lunatic, the defence cannot prevail after his death, especially where the parties cannot be restored to their original position (.r). As the King has the custody of idiots, upon an office found he may annul the pur- chase (y) ; and after the lunatic is found so by inquisition, his com- mittee may vacate the purchase {z), 4. We need now only refer to the former disability of Roman Catholics (a). (p) Garbrand v. Allen, 1 Ld. Ray. 224 ; Francis v. Wigzell, 1 Mad. 258. (q) Co. Litt. 3 a; Barnfather v. Jordan, Doug. 452. (r) Dowling v. Maguirc, Llo. & Goo. t. Plunk. 1 ; but see Chester v. Piatt, s!^^. p. 1 73. (s) Garbrand v. Allen, ubi sup. ; 1 Sugd. Pow. 79, 181, 202, 20G; 2 Pow. 96. (t) 2 Black. Com. 291, 7th edit. ; and as to contracts by lunatics, p. 148, sup. ; 2 Sugd. Pow. 178. (u) Co. Litt. 2 b. (.r) Molton v. Camroux, 2 Ex. 487, 4 Ex. 17 ; Beavan v. M'Donnell, 10 Ex. 309. (y) Co. Litt. 247 a. {z) Clerk v. Clerk, 2 Ver. 412; Addison V. Uawson, 2 Ver. 678 ; Ridler v. Ridler, 1 Eq. Ca. Ab. 279. (n) Purch. 885, 1st ed. SECTION II. :^c^ / ^ S^S' OF PURCHASES BY TRUSTEES, AGENTS, &C."^^^ ^^ ^^ 10. 11. 12, 13. Trustees, 8fc. incapahle of purchasing. > Purchases by agents. Agent buying his own estate for prin- cipal. Execution creditor may buy. So may ynortgagee — Unless a trustee of a power to sell. Attorney cannot buy from client. Arbitrator cannot buy claims. Prohibition extends to buying as agent. Although by auction or before a Master. Guardian and ward. Relation of trustee purchasing. 14. 15. 16. 17. 19. Tenant for life purchasing under his potver of Kale. Trustees relinquishing their office Trustee for creditors : majority of creditors. Trustee may buy from cestui que trust when confidence at an end — Authority from attorney to buy. Attorney may buy from client at ann's length. Hotv purchase to be effected where cestui quo t7'ust not sui juris. Mortgagee relieved against purchase. Estate not re-sold to be re-conveyed. N N 3 566 OF THE PERSONS INCAPABLE OF PURCHASING. [CH. 20. S. II. 22. Terms ujjon which purchase is set aside where estate is resold. 23. New sale. 24. Li lots. 25. Rise in funds where money invested. 26. Allowance for rejjairs, Sfc. — Old build- ings pulled down. 27. Rise in funds no objection to relief. 28. Increased price, to be paid to cestui que trust. 29. Costs. 31. Purchasers with notice bound by the equity. 32. Acquiescence. 33. Laches: creditors — Knowledge of cestui que trust. 34. Confirmation, 1 . It may be laid down as a general proposition, that trustees (a) Avho have accepted the trusts {b), unless they are nominally such, as trustees to preserve contingent remainders (c), agents {d), commis- sioners of bankrupts (e), assignees of bankrupts (/) or their partners in business (y) (I), solicitors to the commission {h), auctioneers {i), (a) Fox V. Mackreth, 2 Bro. C. C. 400 ; 4 Bro. P. C. by T. 258; Hall v. Noyes, 3 Bro. C. C. 483 ; 3 Ves. 748 ; KilHck v. Flexney, 4 Bro. C. C. 161 ; Whiteote v. LawTence, 3 Vcs. 740 ; Campbell v. Walker, 5 Ves. 678 ; Whitackre v. Whitackre, Sel. C. C. 13 ; Pike v. Vigers, 2 Dru. & Wal. 262 ; consider Hamilton v. Wright, 9 Cla. 6 Fin. Ill ; Sugd. H. of L. 727 ; Aberdeen Ry. Co. V. Blakie, 1 Macq. 461 ; Att.-gen. V. Ld. Clarendon, 17 Ves. 600, as to a governor of a charity. (b) Stacey v. Elph, 1 My. & Ke. 195. (c) Parks v. White, 11 Ves. 226. (d) York-Build. Co. v. Mackenzie, 8 Bro. P. C. 42 ; Lowther v. Lowther, 13 Ves. 95 ; Watt V. Grove, 2 Scli. & Lef. 492 ; Whit- comb V. Minchin, 5 Mad. 91 ; Woodhouse V. Meredith, 1 Ja. & Wal. 204 j In re Bloye's trust, 1 Mac. & Gor. 488. (e) Expte. Bennett, 10 Ves. 381 ; ex pte. Dumbell, Aug. 13, 1806 ; Mont, notes, 33, cited ; ex pte. Hanison, 1 Buck, 17 ; ex j}te. Baynton, 7 Jur. 244. (/) Expte. RejTiolds, 5Ves. 707; expte. Lacey, 6 Ves. 625 ; ex pte. Bage, 4 Mad. 459 ; ex pte. Badcock, 1 Mon. & Mac. 231 ; ex pte. Thwaites, 1 Mon. & Ay. 323; ex pte. Alexander, 2 Mon. & Ay. 492; 7 Jur. 334; 9 Jur. 1085. {(l) Expte. Barnell, 7 Jur. 116. (/(.) Owen V. Foulkes, 6 Ves. 630, n. {h) ; Sidny V. Ranger, 12 Sim. 118; ex /)^e. Lin- wood ; ex pte. Churchill, 8 Ves. 343; expte. Bennett, 10 Ves. 381; ex pte. Dumbell, Aug. 13, 1806; Mon. n. 33, cited; 12 Ves. 372 ; 3 Mer. 200 ; ex pte. Town, 2 Mon. & Ay. 29. (i) Bai-kett v. Cafe, 4 De Ge. & Sma.388. (I) Lord Eldon has said, that the rule is to be more peculiarly applied with unrelenting jealousy in the case of an assignee of a bankrupt ; adding, that it must be understood, that, whenever assignees purchase, they must expect an inquiry into the circumstances. See 6 Ves. 630, n. (b) ; 8 Ves. 346 ; 10 Ves. 395. And an assignee purchasing the estate himself, or permitting his co-assignee to purchase it, will be a sufficient cause of removal. Ex pte. Reynolds, 5 Ves. 707. If an assignee purchase an estate sold under the commission, and upon an accidental increase in the value of the property, he afterwards sells it at a considerable advance, he cannot, upon discovering that he ought not to have been a purchaser, pay the difference of the sales to the general fund of the creditors. Expte. Morgan, Feb. 24, 1806 ; Mon. n. 31. And where upon the sale of a bankrupt's estate by auction, in two lots, both of the lots were bought in by the assignee, without the consent of the creditors, the Lord Chancellor, although there was a profit on the re-sale of one lot, which was more than equal to the loss on the re sale of the other, so that the balance was in favour of the estate, held the assignee liable to make good the loss on the lot which was re-sold at a less sum, without permitting him to set off the profit gained by the re-sale of the other lot, e.v pte. Lewis, 1 Gly. & Ja. 69. Ex pte. Buxton, ib. 355. An assignee, with the consent of his co-assig- nees, has been removed from liis office in order to enable him to bid, when little competition was expected. Ex pte, Perkes, 3 Mon. Dea. & De Ge. 385. CH. 20. 8. II.] or THE PERSONS INCAPABLE OP PURCHASING. 567 creditors who have been consulted as to the mode of sale (J), counsel (A), J^^J ^ ^^^ or any persons who, by being employed or concerned in the affairs of _ ^ ^^. jf^ S another, have acquired a knowledge of liis property,* are incapable of purchasing such property themselves, except under the restrictions which will shortly be mentioned. For if persons having a confidential character were permitted to avail themselves of any knowledge ac- quired in that capacity, they might be induced to conceal their inform- ation, and not to exercise it for the benefit of the persons relying on their integrity. The characters are inconsistent. Emptor emit quam minima potest, venditor vendit quam maxima potest (I). 2. So where a trustee or agent agrees to accept a benefit from an intended purchaser, the purchase cannot be maintained {I). Again, if the agent make use of another person's name as the purchaser instead of his own, however fair the transaction, it has no vaUdity in equity (m). 3. Where even an agent was deemed capable of purchasing an estate in Ireland from his principal, but the seller was not aware that he was disposing of the only or principal turf bog on the estate, the sale was not enforced (ji). 4. So if an agent were to buy for his jorincipal an estate vested in a third party, but who was secretly a trustee for the agent, the pur- chase would be set aside (o). 5. And to set aside the transaction it is not necessary that the trustee should have made any advantage of his purchase (jo). 6. A creditor having taken out execution may buy the estate sold under the execution {q). Indeed this was never doubted where the transaction was a fair one. 7. And the rule does not apply to a purchase by a mortgagee from / the mortgagor (r). But if a mortgagee take a conveyance with a ^'^- -^^^ ' (J) jG.r jB^e. Hughes, 6 Ves. 617; Coles t". (o) Brookman r. Rothschild, 3 Sim. 1 53 ; Trecotliick, 9 Ves. 234; Oliver v. Coui-t, 8 3 Dow & Cla. 188; Sugd. H. of L, 662; Pri. 127; Sugd. H. ofL. 721 ; Jur. 1085. Gillett v. Peppercorne, 3 ]?ea. 78. (S) Carter v. Palmer, 1 Dru. & Wal. 722; {p) Ex pte. Lacey, 6 Ves. 626 ; Hamilton 8 Cla. & Fin. 687, 705. v. Wright, 9 Cla. & Fin. 124. (0 Bailey v. Watkins, Sugd. H. of L. 726. {q) Stratford v. Twynam, Jac. 418. \m) Ld.Hardwicke U.Vernon, 4 Ves. 411; (r) Webb v. Rorke, 2 Sch. & Lef. 673; 14 Ves. 604; 2 Bro. C. C. 410, n. ; Murphy 1 Bal. & Be. 164; ex pte. Marsh, 1 Mad. V. O'Shea, 2 Jo. & Lat, 422 ; Charter ?;. Tre- 148; Chambers v. Waters, 3 Sim. 42; velyan, U Cla. &; Fin. 714; Sugd. H. of L. Waters v. Groom, 11 Cla. &Fin. 684; WiUis 730; In re Bloye's ti-ust, 1 INlac. & Gor. v, Latham, 1 Rep. t. Flun. 68, which case 488; ex -pte. Gore, 6 Jur. 1118, 7 Jm*. 136; turned upon the letters ; Knight v. Marjori- Lewis V. Hillman, 3 H. of L. 607. banks, 2 Mac. & Gor. 10. (n) Chambers v. Betty, Beat. 488. (I) This principle has been attended to in the general Inclosure Act, which renders commissioners incapable of purchasing any estate in the parish in which the lands are intended to be inclosed, either in the names of themselves or others, until five years after the date and execution of the award, 41 Geo. 3, c. 109, s. 2; nor can valuers under the Commons Inclosure Act, until after seven years after the confirmation of the award, 8 & 9 Vict. c. 118, s. 219; as to a purchase by an agent of a landlord fi-om a tenant, see Smith Vi Ward, 1 Hay. & Jo. 705. N N 4 '?^'} 568 DISABILITY OF ATTORNEY, TRUSTEE OR AGENT. [CH. 20. S. II. power of sale, he is a trustee for sale, and as such disabled from pur- chasing (5). 8. The principle has, however, been extended to a purchase by an y4C^ y /* attorney from his client, while the relation subsists (i?); but Avhere the solicitor was one of several judgment creditors, and there was a /, S^i^^ sale by the sheriff, and the solicitor bought for himself, alledging that he had a right to attend the sale and to purchase, and that ' he was acting in the character of judgment creditor, it was con- sidered that he had a right to throw off his character of solicitor at that particular time (?<) ; and where there has been delay and no conveyance executed, the seller, the client, may be left to his remedy at law, and yet a bill for specific performance by the attorney may be dismissed (.r). But although an attorney can show that he is entitled to purchase, yet if, instead of openly purchasing, he pur- chases in the name of a trustee or agent without disclosing the fact, no such purchase can stand (y), nor can a conveyance for a small sum as on a purchase during the relation be sustained by evidence as a pure glft(r). Of course, where there is no fraud, it Is no objection that the seller constitutes as his agent for sale his solicitor, who is also the solicitor of the man w ho purchases («). 9. So a person chosen as an arbitrator cannot buy up the unascer- tained claims of any of the parties to the reference : it would corrupt the fountain, and contaminate the award (i). 10. Where a person cannot purchase the estate himself, he cannot buy It as agent for another (c), and perhaps cannot even employ a third person to contract or bid for the estate on the behalf of a stranger (0?). So if a party is disabled from purchasing, his solicitor or agent employed in the transaction is equally disabled, although for his own benefit(e)(I). is) Downes v. Glazebrook, 3 Mer. 200; 11 Cla. & Fin. 714; Kingr. Savory, 1 Sma. expte. Davis, 1 Mon. & Ay. 89; 3 Jur. 19; & Gif. 258, D. P. May 1856. Waters t;. Groom, 11 Cla. & Fin. 684; 1 Mac. (?<) Austin il Chambers, 6 Cla. & Fin. I. & Gor. 488 ; see Otter v. Ld. Vaux, 2 Kay (a-) Salmon v. Cutts, Cutts v. Salmon, & Jo. 650. 4 Do Go. & Sma. 125. 130; 16 Jur. 023. (0 Bellew V. Russell, 1 Bal. & Be. 90; (y) Lewis v. Hillman, 3 II. of L. 030; 9 Ves. 290 ; 13 Ves. 138 as io^gifts, which wf. p. 570. cite the early cases ; as to a barrister and {z) Tomson v. Judge, 3 Drew. 306. agent, Carter v. Palmer, 1 Dru. & Wal. 722, (a) Hesse v. Briant, 2 Jur., N. S., 922. hif. See Ld. Selsey v. Rhoades, 2 Sim. & {b) Blennerhasset v. Day, 2 Bal. & Be. Stu. 41 ; Williams v. Llewellyn, 2 Yo. & 116; Cane v. Ld. Allen, 2 Dow, 289. Jer. 08; Champion v. Rigby, 1 Rus. & My. (r)9Ves.248; e-r/j^c. Bennett, 10 Ves. 381. 539; Jones v. Thomas, 2 Yo. & Col. 498; {d) Ex pte. Bennett, jibi sup.; sed qtu Casborne v. Barsham, 2 Bea. 70; Austin v. (e) See Hesse v. Briant, 2 Jur., N. S., 922, Chambers, 6 Cla. & Fin. 1 ; Kevv. Ld. Dun- and ijii. what Lord Eldon did say in ei/'te.Ben- gannon, 1 Dru. & War. 542; Lawless v. nett; /?t re Bloye's trust, 1 Mack Gor. 488. Mansfield, ib. 557 ; Charter v. Ti'evelyan, (I) In Davidson U.Gardner, Ch. 21, Feb. 1743, MS., see Lambert r.3ainton,lCh.Ca.l9p, Lord Hardwicke laid down the following rules as to a trustee purchasing of his cestui que trust. 1st, That in all cases of a trustee purchasing of the cestui que trxtst, the Court will look upon it with a jealous eye. 2dly, It has been laid down as a general rule, that CH.20. S.II.] PURCHASE BY GUARDIAN. RELATION OF TRUSTEE, &C. 569 11. A purchase by a trustee, whetlier for adults or infants, cannot now be supported, although the estate be sold by public auction (/), or by the Court, under a decree for sale {g). The trustee may know not only the surface value, but that there are minerals (A). So there may be a great many clandestine dealings, which may bring it to a price far short of that which would be produced if full information was given (z). But of course the Court has the power to allow a purchase by a trustee before the Court, where it is greatly for the benefit of the estate (A). 12. Lord Hardwicke said, that it was improper for a guardian to purchase his ward's estate immediately on his coming of age ; but though it has a suspicious look, yet if he paid the full consideration, it cannot be set aside. But it seems clear, that such a purchase would noAV be set aside on general principles, without reference to the adequacy of the consideration (/). 13. It appears, however, that unless fraud can be proved, the cir- cumstance of the purchaser being related to the trustee, agent, or other person having a confidential character, cannot even be opposed as a bar to the aid of the Court in favour of the purchaser (in). (/) York-Build. Co. v. Mackenzie, 8 Bro. {h) 10 Ves. 394. P. C. 4-2 ; Wliichcote v. Lawrence, 3 Ves. {i) 8 Ves. 349. 740 ; Campbell v. Walker, 5 Ves. G78 ; San- {k) Wren v. Kirton, 8 Ves. 502 ; ex pte. derson v. Walker, 13 Ves. 601; ex pte. Molineux, 2 Mon. & Ay. 245, as to assignees. James, 8 Ves. 337 ; 10 Ves. 393; Att.-gen. (I) Oldin v. Samborne, 2 Atk. 15 ; Daw- V. Ld. Dudley, Coo. 146. son v. Massey, 1 Bal. & Be. 219. (gr) Price v. Byi-n, 5 Ves. 681; Cary ??. (/«) Prestaget;. Langford,3Wood. 248,n. ; Gary, 2 Sch. & Lef. 173. Coles v. Trecothick, 9 Ves. 234. where a trustee for persons not sui juris, as infants and femes covert, becomes both buyer and seller, the Court will under no circumstances whatever, be they never so fair between the parties (as consulting the friends of the infant, or of their refusing to purchase, or the like), establish a purchase of that kind, unless the transaction is legitimated by the act of the Court, or some public act. And the reason is, because if such purchases were allowed they would be liable to very great abuses ; and this is the reason why the Court will not allow a trustee any thing for his trouble. So, where a trustee renewed a lease in his own name, though it was proved that all the friends of the infant were consulted, and they refused to renew it, the Court decreed it to be in trust for the infant, though not the least unfairness appeared ; which was the case of Rumford Market, before Lord King. But if a bill is brought, and a sale ordered, and notice of the sale before the Master, and the trustee purchases, the Court has refused to set such sale aside, all the other circumstances being fair. So where there was a public sale of an estate by proclamation in the country ; which was the case of Saunders v. Burroughs, before the present Master of the Rolls; but if that had been a private sale, though the consent of all the relations was had, and no unfairness appeared, I think such a sale should be set aside, at least not carried into execution. But it might be inconvenient to extend the rule so far as to prevent a trustee irom purchasing of one who was sid juris, where no unfairness appeared. And in the principal case, which was of a mixed kind, the defendant who had purchased being a trustee for the plaintiff, who was a feme covert, and had the estate to her separate use, and therefore in a court of equity considered as a feme sole, and sni juris, as to the disposal of her estate ; Lord Hardwicke dismissed the bill, which was brought to set aside the assignment she had made of her interest in a brewhouse to the defendant ; it appear- ing that she had received a full value, and no particular instances of fraud being proved. 570 HOW TRUSTEES, ATTORNEY, &C. MAY BUY. [CII. 20. S. II. 14. We have before seen, that where a power Is given by a settle- ment to trustees to sell the estate with the consent of the tenant for life, or to the tenant for life to sell with the consent of the trustees, the estate may be safely purchased by the tenant for life himself (w). But a bishop whose consent was required to a sale, was deemed in- competent to buy an annuity charged upon a rectory (o). 15. The Court will not permit trustees or other prohibited persons in general to give up their office, and to bid, as it would lead to infinite mischief. The cestuis que trust themselves can decide this [p). And where creditors are entitled, it is doubtful whether the purchase can be supported unless all the creditors consent, al- though convenience, and the general rule of transactions by a body of persons, are strongly in favour of its validity where it is sanctioned by the great majority of the creditors {q). 16. It must not be understood that a trustee cannot buy from his cestui qi iejrust where he is sui juri s ; the rule is, that he cannot buy from himself (r). If the cestui que trust clearly discharges the trustee from the trust, and considers him as an indifferent person, he may purchase (s) ; but it must clearly appear, that the purchaser, at the time of the purchase, had shaken off his confidential character, by the consent of the cestui que trust freely given, afterjullinfor mation, ajid_bargaining__for jthe_righ t to purchase it). The attorney of the cestui que trust could not give validity to a sale to the trustee himself. Avithout a special authority (u), 17. An attorney is not incapable of contracting with his client, but the relation must be dissolved, or the parties must take the character of purchaser and vendor ; and all the duties of those characters must be performed. If an attorney deal with his client without another attorney to advise with him as to the value, there will be thrown upon him the whole 07ius of the case (x). So if an attorney be employed as agent in the management of a landed estate, he cannot deal with his principal for that estate without honestly communicating to the principal all the knowledge respecting its value which he had acquired as his agent (?/). {n) 9 Ves. 52; 11 Ves. 410; but see ib. {t) 8 Ves. 353. (w) 3 Mer. 209. 476, 477 ; Howard v. Ducane, Tur. & Rus. (x) Gibson v. Jeyes, G Ves. 266 ; p. 277, 81 ; Grover v. Hugell, 3 Rus. 428; Beaden 278 ; Wood v. Downes, 18 Ves. 120; Mon- V. King, 9 Ha. 499. tesquieu v. Sandys, ib. 302 ; Bulkley v. Wil- (o) Greenlaw v. King, 3 Bea. 49. ford,2Cla.&Fin.l02; Molonyr. L'Estrange, {p) Expte. James, 8 Ves. 352. Beat. 406 ; Edwards v. Meyrick, 2 Ha. 60; {q) Wlielpdale v. Cookson, 1 Ves. 9; 11 Jur. 80; Langley «. Fisher, 9 Bea. 102; 5 Ves. 682, n.; contra, 6 Ves. 628; see Ward v. Ilartpole, 3 Bli., N. S., 470; Hol- ex pte. Bage, 4 Mad. 459. man v. Loynes, 4 De Ge. Mac. & Gor. 270; (r) 10 Ves. 246; Ayliffev. MuiTay,2 Atk. 2 Eq. R. 715; Spencer v. Topham, 2 Jui-., 58; Grower. Ballai-d, 3 Bro. C. C. 117; N. S., 865; Saveryu. King, D. P.May, 1856. •^ 1 Vbb. j. 216. («) 6 Ves. 627. (y) Cane v. Ld. Allen, 2 Dow, 289, CH.20. S. II.] TRUSTEE FOR PERSON NOT SUIJURIS. REMEDY. 571 18. The same circumstances that will authorise a trustee to contract for himself will enable him to purchase as the agent of another {z). 19. A trustee for a person not sui juris can only buy the estate under the authority of the Court. Lord Alvanley said there are cases in which the Court would permit it ; as if only 500 /. Avas offered, and the trustee will give 1,000 Z. («). 20. The remedy of the cestui que trust, where his trustee has pur- chased the trust-estate contrary to the rules of the Court, goes to the same persons who were entitled to the estate before the sale. There- fore a legal or equitable mortgagee on the estate, who was not satisfied by the purchase-money, may pursue the remedy against the trustee. And the circumstance of the mortgagee having been present at the sale, where he bid for the estate, is no objection to his claim against the owner of the estate, where the latter has set aside the sale, and derived any advantage from it (h). 21. If the trustee has not sold the estate, the cestui que trust may insist on the purchase being avoided, and may reclaim his estate (c) ; for it need not be shown that the trustee has made an advantage (d). 22. If the cestui que trust require a reconveyance of the estate, he must repay to the trustee the original price of the estate, and also all sums laid out for permanent benefit and improvement of the estate, and interest thereon from the times they were actually disbursed ; and the trustee must pay and allow all the rents received by him, and the yearly value of such parts as have been in his own occupation, and all sums received by the sale of timber or other parts of the in- heritance, and interest thereon, from the times of their being received. In the York-Buildings Co. v. Mackenzie, in the Lords (e), the House allowed the purchaser the value of improvements of all kinds, even in the instance of a mansion-house erected, and plantations of shrubs, &c. (/). If the decree direct a reconveyance independently of any- thing else, the purchaser must reconvey although the amount of what is due to him for the purchase- money has not been taken (^). 23. Where the cestui que trust is not desirous to take back the estate, he may require it to be put up to sale again at the price at which it was bought by the trustee : and that if any one bid more, {z) 9 Ves. 248. (c) 8 Bro. P. C.42; Trevelyan v. White, (rt) Campbell v. Walker, 5 Ves. 678 ; 1 Bea. 588. 13 Ves. 601 ; 1 Bal. & Be. 418. (/) 6 Ves. G24. This must have been {b) Ex pte. Lacey, 6 Ves. 625 ; 12 Ves. decided in some of the subsequent appeals; 8; ex 2}te. Morgan, 12 Ves. 6. 8 Bro. P. C. 71, n.; e.r;;^c. Hughes, Ves. (c) See 6 Ves. 627 ; York 13. Co. v. Mac- 617; ex pte. Bennett, 10 Ves. 381 ; William- kenzie, 8 Bro. P. C. 42; Ld. Hardwieke v. son v. Seaber, 3 Yo. & Col. 717 ; as to a Vernon, 4 Ves, 411 ; Randall v. Errington, colourable purchase, see Wilkinson v. 10 Ves. 423. Fowkes, 9 Ha. 592. {d) 8 Ves. 348; 10 Ves. 385, 393. {g) Trevelyan v. Charter, 9 Bea. 140. 572 REMEDY AGAINST TRUSTEE WHO HAS PURCHASED. [CH. 20. S. 11. the trustee shall not have the estate : but if not, that he may be com- pelled to keep it (A). 24. If, however, the cestui que trust be desirous to have the estate put up in lots, and it was bought by the trustee in one lot, he must repay the trustee the purchase-money with such interest as he would have been liable to pay upon his bargain, he accounting for the rents received, or paying an occupation-rent for the estate, if he personally occupied it (i). 25. Where the trustee paid part of the purchase-money into Court in a cause, and it had been invested, and the funds had risen, he was refused the benefit of the rise, as he could not have been compelled to take the stock if it had fallen (/t). 26. In case of a resale the money allowed for improvements will be added to the amount of the purchase-money, and the estate will be put up at the aggregate sum ; deducting, hoAvever, an allowance for acts that deteriorate the value of the estate (/). If any old buildings have been pulled down by the purchaser, and new ones erected, the old buildings, if they were incapable of repair, will be valued as old materials, but otherwise as buildings standing (m). 27. But it is no ground in his favour that stocks have greatly risen since his purchase, so that he cannot lay out his money to the same advantage (w). 28. If the trustee has actually sold the estate, the cestui que trust may compel the trustee to pay him what he may have received above the original purchase-money (o). 29. Generally, although there be no fraud, the trustee ought to pay the costs of a suit occasioned by his improper dealing with the estate (p). And Avhere infants are concerned, the decree for the resale will be with costs (<7). 30. Where the property has been resold by the trustee, although a like property can be purchased, as where the subject is a share in a public company, whose shares are on sale, the Court will not decree it to be replaced, but compel the trustee to account for the profit with interest (r). 31. A purchaser from the trustee with notice of the previous trans- action would be liable to the same equity as the trustee was subject to (5). But this doctrine cannot be extended to the mere case of a (i^) Ex pte. Reynolds, 5 Ves. 707 ; ex (71) Ex pte. James, 8 Ves. 337. ;3^irchase-77ione^ is paid hy the principal, and there is no written agreement, he cannot compel the agent to convey the estate to him, as that Avould be directly in the teeth of the statute of frauds {q) ; even if the agent be afterwards convicted of perjury in denying the trust (?•). a/2/ « Where the Purchase is in the Name of a Child. ' "^ * 14. If a father purchase in the name of a child, although a „ qi/i. female (5), or illegitimate (t), who is without a provision («), or in the {h) Sketti;.Whitmore,2Free.289; New- (o) Benbow v. Townsend, 1 My. & Ke. ton V. Preston, Pre. C. 103; Cottington v. 500 ; Crop v. Norton, 9 Mad. 233 ; per Ld. Fletcher, 2 Atk. 155; Bartlett v. Pickers- Ilardwicke, semble co7itrii', but Wray v. gill, 4 Ea. 577, n. (6). Steel, 2 Ves. & Be. 388, ace. See James v. (i) Delane».Delaiie,7Bro.P.C.byT.279. Price, 3 Bli., N.S., 419j Sugd. H. of L.666. (/t) Willis V. V\^illis, 2 Atk. 71 ; Ryall v. (p) 3 Ridg. P. C. 178. Ryall, 1 Atk. 59; Amb. 413; Lench v. (q) Bartlett v. Pickersgill, Bur. 2255; Lench, 10 Ves. 511. 4 Ea. 577, n. (b) ; 1 Ed. 515. See Rastel (I) Leman ?!. Wliitley, 4 Rus. 423, serf <2'"' v. Hutchinson, 1 Dick. 44. (m) Cripps V. Jee, 4 Bro. C. C. 472 ; 4 (/•) The King v. Boston, 4 Ea. 572; Fell Rus. 420, 427. v. Chamberlain, 2 Dick. 484 ; the King v. (n) Ly. Bellasis v. Compton, 2 Ver. 204 ; Dalby, Peake, 12, and cases cited in the note. Ld. Altham v. Ld. Anglesea, Gilb. E. R. 10; (s) Lady Gorge's case, 3 Cro. 550, cited; Roe V. Popham, Doug. 25 ; Langfieldc v. Gilb. Lex. Prcc. 272, contra. Hodges, Lofft, 230; Rider ?;. Kidder, 10 Ves. (t) Beckford v. Beckford, Lofft, 490; 360; Taylor v. Alston, Watk. Cop. 216; Fearne Posth. 327 ; Fonb. n. (1) 2Trea. Eq. MS.; Goodrightw.Hodges,f6.227; Lofft,230; 127, 2d edit. 2 Ea. 534, n. ; Maddison v. Andrews, 1 Ves. (u) Elliot v. Elliot, 2 Ch. C. 231 ; Rep. t. 57 ; Edwards v. Edwards, 2 Yo. & Col. 123. Finch, 341 . CH. 21.S. I.] NAMES OF CHILDREN OR WIFE. 579 joint names of such a child and of another person (.r), it will not be ^^ , deemed a resulting trust for the father, but a gift or advancement for -wr^//). 18. If the conveyance of the fee to a son is proved to be for a par- ticular purpose, as to sever a joint-tenancy, the child Avill be a trustee for tlie father {q). 19. A i)iu'cliase by a father, in the joint names of himself and son, will be considered as an advancement for the child, if he is unprovided for; and consequently equity will not assist to defeat his legal claim (r). Lord Ilardwicke considered this a weak case for advance- ment (s), and accordingly {t), Avhere a father purchased an estate in the names of himself and son, and had no other estate to which a judg- mentrcreditor could resort, the creditor was relieved in equity against the survivorship at law ; the settlement being considered as voluntary and fraudulent against creditors. But there does not appear to be much weight in the objections which have been raised. A moiety of some estates may be a much better provision than the entirety of others. The chance of survivorsliip wliich the father takes is an inci- dent to tlie tenancy, and extends equally to the son, who, after he attains his majority, may sever the joint-tenancy. If he die during his minority, it is as well that the estate should survive to the father, who paid the purchase-money, and perhaps took the conveyance to himself and son as joint-tenants, with the express view of advancing him only in tlie event of liis attaining that age at which the law con- siders a man capable of managing his fortune. During the son's minority and the life of his father, upon wliom should he be dependent if not upon his own parent? If the father die during the son's minority, the estate will survive to him ; so that, perhaps, it is im- possible to contend, that a purchase by a parent in the name of himself and child, as joint-tenants, is not as strong a case for an advancement as a purchase in the name of the child solely. Fraud is of course an exception to every rule. 20. A purchase in the name of a child solely, or jointly with the parent's name, is not, however, within the 27 Eliz. {u), and therefore a subsequent purchaser, although hondjide, will not be relieved against it(.r). Whether such a purchase falls within the 12 & 13 Vict. c. 106, (w) Woodman r. Morrell, 2 Tree. 32; (•/■) Scroope v. Scroopo, 1 Ch. C. 27; Elliot u. Elliot, 2 Ch.C.2;31 ; RecUiigton r. Crabb v. Crabb, 1 My. & Ke. 511; see Rcdington, 3 Rid. P. C. ICG. Stileman v. Aslidown, 2 Atk. 477; Polo r, (o) JMuiiima i\ Jlumma, 2 Ver. 19; Dyev Pole, 1 Vcs. 7G. V. Dyer, Watk. Copy. 21(5 ; Crabb ?'. Crabb, {s) 2 Atk. 480; see Pole v. Pole, 1 Ves. 7G, 1 My. & Ke. 511. {p) 2 Free. 252. (/) Stileman v. Ashdown, 2 Atk. 477. (7) Baylis v. Newton, 2 Ver. 28; Bircli («) C. 4. V. Blaprave, Anib. 204 ; Raleigli'M case, (.r) Ly. Gorge's case, 3 Cro. 550, cited. Hard. 497. CH.21. S. I.] NAMES OF CHILDREN Oii WIFE. 581 s. 126, altlioiigli the bankrupt is at the time insolvent, may 1)g made a question (I). 21. If the father be dead, a purchase liy the grandfather, in the name of his grandchild, is subject to the same rules as govern a pur- chase by a father in the name of his child (?/). 22. So a purchase by a husband in the name of his wife is also deemed an advancement and provision for her (r). But if a purchase in the name of wife or child be voluntary, it may be fraudulent as against creditors (a), within the operation of the statute of 13 Eliz. (II). It was doubtful whether a purchase was within the latter statute, unless there was fraud {b) ; but a purchase followed by a conveyance by the purchaser's direction to trustees for his wife and children, was lately held to be within this statute (c). Although a conveyance be made to the husband as the purchaser, it may be proved that the money was her separate estate, and that the purchase was made for her benefit (<-/). 23. A purchase by a trader in the name of his wife seems subject to the same rules as a purchase by a trader in the name of his child (c). (y) Ebrand v. Dancer, 2 Ch. C. 26 ; Lloyd tiiidalc v. Booth, 3 Bar. L Ad. 493; 19 Ves. V. Road, 1 P. Wms. G08. 493. (z) Kingdome v. Bridges, Back v. An- (d) Fletcher v. Sidley, 2 Ver. 490 ; Proc- drews, 2 Ver. 07, 120. tor r. Warren, Scl. C. C. 78 ; 8 Ves. 199. («) Christ's Hosp. r.Biidgin, 2 Ver. 633; (c) Barton v. Vanheythuysen, 11 Ha. Lusli V. Wilkinson, 5 Ves. 384 ; Sharp v. 126. Soulby, 1 Mac. & Gor. 3G4; Dewey r. Bayn- (d) Darkin v. Darkin, 17 Bca. 578. ton, 6 Ea. 257; Ly. Arundell v. Pliipps, (e) Glaistcr w. Heaver, 8 Ves. 195; 9 Ves. 10 Ves. 139; Jezepht). Ingram,8Tan. 838; 12; 11 Ves. 377; Ryland ?;. Smith, 1 My. & Latimer v. Batson, 4 Bar. Ac Ores. 652; Mar- Cra. 53. (I) Compare 1 Jac. 1, c. 15, s. 5 (Walker tu Bnrrov^'S, 1 Atk. 93; Fryer v. Flood, 1 Bro. C. C. ICO; Glaister v. Hewer, 8 Ves. 195; and consult Crisj) v. Pratt, Cro. Ca. 541 ; Lilly r. Osborn, 3 P. Wms. 298 ; Maguire v. Nicholson, Beat. 592), with 6 Geo. 4, c. 16, s. 73, now repealed; and 12 & 13 Vict. c. 106, s. 126. (II) 13 Eliz. c. 5 (29 Eliz. c. 5), makes void fraudulent conveyances against creditors, but it saves all interests under conveyances made upon good consideration and bond fide to any person without notice of the fraud : s. 6 ; Twyne's case, 3 Rep. 80 ; Owen v. Body, 5Ad. &E1.28; Townsend ?>. Wcstacott, 2 Bea. 340, 4 Bca. 58; Christy v. Courtcnay, 13 Bea. 96; Goldsmith v. Russell, 5 De Ge. Mac. & Gor. 547. As to a conveyance for creditors, see Siggers v. Evan, 5 E. & B. 367 ; Lee v. Green, 25 L. .1., N. S., 269 ; 6 De Go. Mac. & Gor. 155. A sale for good consideration is not void because it was made for the ])ur- posc of defeating an execution of a judgment creditor : Wood v. Dixie, 7 Q. B. 892. Being indebted is not sufficient to invalidate the settlement, but it is not necessary to prove that the settlor was indebted to the extent of insolvency : Townsend v. Westacott, 2 Bea. 340 ; Christy V. Courtenay, 13 Bea. 96; but the party must be indebted at the time of the settlement: Skarf z?. Soulby, 1 Mac. & Gor. 364. A subsequent creditor may claim against the settle- ment if any of the antecedent debts remain unsatisfied : Jenkyn v. Vaughan, 3 Drew. 419. But a creditor who has assisted in the preparation of the deed, and in the execution of the trusts, cannot impeach the deed : OUiver v. King, 1 Jur., N. 8., 1066; 4 Week. Rep. 382, reversed. A contingent annuity secured to the seller's wife upon a sale by an insolvent of his business, &c. was held to be void against creditors without distui'bing the sale : French v. French, 6 De Ge. I\Iac. & Gor. 95. O O 3 582 OF PURCHASES WITH TRUST-MONEY. [CH. 21. S. II. But ;i purchase by a trader of the land-tax on his wife's estate, for her benefit (/), or of an enfranchisement of his wife's copyhold estate, or money laid out l^y him in building on her estate, cannot be made a ground of charo;e asrainst her or her estate by his creditors, although he was insolvent at the time {(j). (/) Burrougli's case, 17 Ves. 2G7. {g) Campion v. Cotton, 17 Ves. 263. SECTION 11. OF rURCHASES WITH TRUST-MONEY : AND OF THE PERFORMANCE OF A COVENANT TO PURCHASE AND SETTLE AN ESTATE. 1. Purchase hy trustee or executor ivith assets in his own name. 2. Parol evidence. 3. Ifljound to invest in land, jn-esmnption accordingly Unless he claimed the money — Purchase by executor of mort- gagee of equity of redemption. 4. Purchase by person who has agreed to purchase and settle lands, a perform- ance — Although purchase only partial. b. Or trustees ivere to buy — Or consent required. G. Lands and money taken in exchange liable. 7. Where descended lands go in perform- ance of covenant. 8 "1 ' > What estates will satisfy the covenant. 10. Improper investment may be followed. 11. Value how to be taken. 12. Additional sum invested : improvements an advancement. 13. Where covenant is a lien. 14. Where a covenant to settle is confined to an existing contract to purchase. 15. Renewals, ifc. by trustees. 1. If a trustee, or executor, purchase estates with his trust-money or assets, and take the conveyance in his own name, without the trust appearing on the face of the deeds, the estates will not be liable to the trusts, although he die insolvent, unless the application of the pur- chase-money can be clearly proved. And tlie same principle applies to a purchase by a husband with trust-money belonging to his wife, of which he may have obtained possession fram the trustee, whether with or without the wife's consent ; or to a purchase by an agent or steward with monies remitted to him by his principal («). If the trust- money is traced, the cestuis _quc trust may claim either the property purchased or the money. 2. Parol evidence of the investment of the trust-money is admis- sible either in the lifetime, or after the decease of the trustee : but mere parol evidence of declarations made by the purchaser will be received with great caution (/>). (a) Bennet v. Mayliew, 1 Bro. C. C. 232 ; 2 Bro. C. C. 287 ; Deg v. Deg, 2 P. VVms. 414 ; Kirk v. Webb, Heron v. Heron, Hal- cot V. Marlcant, Pre. C. 81, 163, 168; Ken- dar V. Milward, 2 Ver. 440; Pre. C. 171 ; Cox V. Bateman, 2 Ves. 19; Anon. Sel. C. C. 57; Lane v. Dighton, Amb, 409; Balg- ney v. Hamilton, ib. ; Ryall v. Ryall, 1 Atk. 59; Amb. 413; Ld. Plymouth ?'. Hickman, 2 Ver. 167. (b) Lencb v. Lencli, 10 Ves. 511 ; Wilson V. Foreman, 2 Dick. 593, as corrected, 10 Ves. 519; Anon. Sel. C. C. 57. CH. 21. S. II.] OF PURCHASES WITH TRUST-MONEY. 583 3. Where a trustee or agent is boimd by the trust to lay out the money in land, a purchase will be presumed to have been made in execution of the trust (c), unless he considered himself entitled to the trust-money (d). And where an executor of a mortgagee for a term of years purchased the equity of redemption in fee for a small sum in his own name, and for his own benefit, he was held to be a trustee of the fee for the benefit of his testator's estate () Tubbs v. Broadwood, 2 Rus. k. My. 487. o o 4 584 OF THE PERFORMANCE OF COVENANTS [CH. 21. g. II. in exchange and the money should go in substitution of the estate covenanted to be settled, and that the money was a s])eclalty deht (rj). 7. Where a clear intent appears to Ic/t/ out the entire sum in the future purchase of lands, estates of which the covenantor was seised at the time of the covenant, and which he permitted to descend, can- not go in performance of the agreement (?•). 8. And to enure as a performance, the property purchased must be such as will answer the intent of the settlement (s). Therefore, under a covenant to purchase fee simple lands in possession, estates in reversion expectant upon lives Avill not go in performance (t), unless, perhaps, they fall into possession in the covenantor's lifetime ; neither will leaseholds for lives, nor terms of years, even with cove- nants to purchase the fee, go in performance, as they cannot descend to the heir (?/.). 9. So a moiety of a house Avould not be considered a kind of pro- perty within a covenant to purchase lands of inheritance : nor would lands, having a different descent, as borough-English lands, which descend to the youngest son, instead of lands descendible to the eldest son, according to the course of the common law (x). Neither will copyhold estates go in part performance of a covenant to pur- chase freehold lands, where the nature of the tenure would prevent compliance with the terms of the settlement, as where the estate is to be settled on one for life loithout impeachment of waste (y). But where this circumstance docs not occur, copyhold estates may, it should seem, go in part performance of a covenant to purchase real estates {z), although Lord Hardwicke seems to have doubted whether copyhold lands could go in performance, as they are liable to dif- ferent tenures and to forfeiture (a). 10. But although the money be improperly invested, yet it may be followed in the land purchased with it. Thus where the money ought to have been laid out in the purchase of land of inheritance, and the tenant for life laid it out in his own name in the purchase of a valuable leasehold estate, and mortgaged it to the trustees, and demised a portion of it to the attorney employed, at a small rent, and the trustees confirmed the lease, the estate purchased was held to be bound by the settlement discharged of the lease {b). So if the husband with the assent of the trustees invest the trust money in a (^) Powdrell i). Jones, 2 Sma. &Gif.335; (a;) Pcnnill ?;. Hallett, Amb. 106; see no question was raised as to the exchange 3 & 4 W. 4, c. lOG, sup. itself. (y) S. C. (r) Lechmere v. Ld. Carlisle, For. 80; {z) Wilks v. Wilks, 5 Vin. Ah. 293 j the Davys v. Howard, 5 Bro. P. C. 552. covenant was generally to purchase lands, (s) Lewes v. Hill, 1 Ves. 274. (a) Whorwood v. Whon\'ood, 1 Ves. 540 ; {t) Lechmere v. Ld. Carlisle, 3 P. Wms. Trench v. Harrison, 17 Sim. Ill, right ot' 211 ; Deacon t'. Smith, 3 Atk. 323 ; Whor- cestui que trust. wood V. Whorwood, 1 Ves. 540. (6) Phaj-re v. Perce, 3 Dow, 116; Sugdi (h) Lechmere v. Ld. Carlisle, uU sup. II. of L. 160. /C /W.^^^. 2X f/[. 0^^' . ^6 CH.21. S. II.] TO PURCHASE AND SETTLE ESTATES. 585 property not autliorlsecl Ly the settlement, yet as between him and the trustees, he will be held to have purchased the estate for them (c). 11. "Where the purchase was made bona fide with an intent to perform the covenant, the lands must, it is conceived, in most cases Idc taken at the price paid for them {d), or at least at their value at that time. This construction, however, is not made to the prejudice of purchasers, for if the covenantor sell the estates, it will he evidence of his intention that they should not be bound by the settlement {e). But it is no objection in these cases that the arrangement will affect specialty creditors (/). If the covenantor only mortgage the pur- chased estate, the equity of redemption may still go to the uses of the settlement {cf). 12. Where under a power, upon an investment in land of trust monies, the husband advanced a further sum, and the estate was con- veyed to the trustees, without noticing the sum advanced by the husband, this was held an advancement, and in such a case it requires very strong evidence to show that he did not intend it for the benefit of all parties under the settlement {]i) ; nor can the husband claim for improvements on the estate {i). 13. It is a general rule, although it may not hold universally true, that a covenant to convey and settle lands will not be a specific lien on the lands of the covenantor, but the covenantee will be a creditor by specialty. 14. A man may of course covenant to settle an estate if the person with whom he has contracted for it can make a good title to it, limiting his responsibility to that contract, and reserving to himself, if a title cannot be made, the right to buy the estate from any other person for his own benefit ; and a purchase under that reservation will not give any right, cither at law or in equity, to the persons claiming under the settlement (/t). In favour of the intention, a covenant by a husband to charge a jointure out of " estates he should thereafter acquire," may extend to estates over Avhich by contract he had already obtained the equitable ownership (Z). 15. It may here be observed generally, that Avhcrc an executor or trustee obtains a further interest by purchase, it will enure to the benefit of the persons entitled to the original interest (?«). (r) Trench v. Harrison, 17 Sim. 111. (») Horlock v. Smith, 22 L. T. 232, See ((/) Lechmere v. Ld. Carhi^le, For. 80 ; Robinson v. Sykes, 2 Jm-., N. S., 895. consider Pennill v. Hallett, Amb. lOG. (^i) jjoe v. Rowe, 4 Bin. N. C. 737. (e) Smith t'. Deacon, 3 Atk. 323. /7x ■,,- a ^at a ■^n -o mo ; ' (Z) \A arde v. Warde, 16 Bea. 103. {g) Expte. Poole, 11 Jnr. 1005. (w) James r. Dean, 11 Ves.383; 15Ves. {h) Ouseley «. Anstruther, 10 Bea. 461 j 236; Fosbrooke r. Balguy, 1 My. & Ke. the estate had been re-sold, and the money 226; marg. n. incorrect, see pi. 3, mp. received by the husband. [ 586 ] [CH. 22. s. 1. CHAPTER XXII. OF THE PROTECTION AND RELIEF AFFORDED TO PURCHASERS BY STATUTES. SECTION I. OF FRAUDULENT AND VOLUNTARY SETTLEMENTS, AND SETTLE- MENTS WITH POWERS OF REVOCATION. 27 Eliz. c. 4 •.fraudulent conveyancesvoid against purchaser — So conveyance with 2)0wer of revocation in grantor. Act extends to copyholds : mortgagee a jmrchaser — Kirig — Adequacy of j)ur- chaser^s consideration Purchaser must buy an existing interest. Fraudident conveyances void though not made by the vendor. Purchaser xinder second voluntary grantee preferred to first voluntary grantee. Binds the Crown. Voluntary settlements are void against purchaser. Deposit of deeds. Conveyance to wife or children volun- tary. Purchase in name ofivife or child. Settlement jirior to marriage not volun- tary. Marriage consideration runs through the settlement How far marriage consideration extends to collaterals — Remainders to collaterals not step- ported though settlor tenant in tail — Re-settlement hy two, on the survivor — Settlement of ivoman^s estate. 12, Settlement siqiported hy additional por- tion, &fc. — Or by wife's concurrence in destroying another settlement. 13. Separation with deed of indemnity Settlement of personal estate binding. ] 4. Purchase for and conveyance by seller to charity. 1 5. Stranger not aided in equity. 1 6. Voluntary settlement good by matter ex post facto. 17. Applied to equitable rights — Marriage upon the faith of voluntary settle- ment. 18. Settlement for valuable consideration apparently voluntary. 19. Contract to sell by voluntary settlor enforced for purchaser — Vendor can- not enforce the agreement. 20. Suit to enforce voluntary settlement : sale by settlor. 21. Poivers of revocation : jjartial 2}0iver — Povjer with colourable conditions — Binding poivers Settlement with power void, although made for valu- able consideration. 22. Future power, and sale before the day — Extinguishment of power inojjera- tive. 1. By 27 Eliz. c. 4 (a), all conveyances, &c., of any hereditaments, for the intent and of purpose to defraud and deceive purchasers are made void as against them (I). And so are conveyances of any heredita- ments with any clause of revocation at pleasure which the grantor shall afterwards sell, the first conveyance not being revoked accord- ing to the power reserved by the secret conveyance. 2. The Act extends as Avell to copyholds as to freeholds (h), and a (a) Perpetual by 39 Eliz. 18, s. 3. \l)) Doe V. Bottriell, 5 Bar. & Ad. 131 ; Currie v, Nincl, 1 My. & Cra. 17. (I) 12 & 13 Vict. c. 95, 8. 6; 13 & 14 Vict. c. 29, s. 8, making void voluntary convey- ances against judgment creditors in Ireland j General Act, 10 Car. ], s. 2, c. 3. See Evana V. Evans, 2 Ir. C. R. 242 ; Hyde v. Atkinson, id. 246. C'H. 22. S. I.] FRAUDULENT AND VOLUNTARY SETTLEMENTS. 587 mortgagee is of course a purchaser pro tanto (c). And it extends also to fraudulent conveyances to the king (r/) ; and notice to a pur- chaser is of no consequence (e). But to take advantage of this statute, a person must have purchased bond Jide and for a valuable consideration (/), v/hich must not be so small as to be palpably fraudulent (^). The settlor cannot by his admission of receipt of money cut down the previous settlement made by himself ; his sub- sequent declarations will not affect the settlement (A). And the sub- ject of the sale must be an existing lawful interest {i). 3. Although the fraudulent conveyance is not made by the vendor himself, yet it is void against a purchaser. Therefore, if a father make a fraudulent lease, and then die, and the person claiming under him sell the estate, the purchaser shall avoid the lease, whether the vendor did or did not know of its existence (A). But the rule has never been carried to this extent, that a father's bond Jide conveyance of the fee or of any partial interest, although voluntary, can be set aside by a sale by the devisee or heir at law of the father. The rule properly confined to transactions really fraudulent, or fraudulently kept on foot, seems to be open to no solid objection, and it is not likely to be carried further (I). And this point has now been de- cided, so that an heir or devisee of a person who has made a volun- tary conveyance cannot by a sale avoid such conveyance, and the decision in Burrell's case has been referred to the true ground {in). 4. Where a man made two voluntary conveyances to difl?erent persons, and the grantee under the last of those conveyances sold for value, it was held that the purchaser should avoid the first of the voluntary conveyances {n). But this has been overruled, for after the first voluntary conveyance, the grantor had no estate in him which he could convey to any one but a purchaser for value ; the second conveyance, therefore, passed nothing, and a purchaser from the grantee under it could not prevail over the first voluntary grantee. This places the law on a proper footing (o). (c) Doe V. Webber, 1 Ad. & El. 733. (i) Co. Litt. 3, b ; Ilattou v. Jones, Bui. {d) Magdalen Coll. case, 11 Rep. GG ; N. P. 90. Wiseman's case ; Chomley's case, 2 Rep. (A) Burrell's case, G Rep. 72 ; Jones v. 15, 50 ; 2 Ro. Ab. 393 ; 3 & 4 W. 4, c. 74. Groobham, Co. Lit. 3, b. ; Warburton r. (e) Gooch's case, 5 Rep. GO. Loveland, 1 Dom', & Cla. 497; Blake v. ^ if) Humpbreys v. Pensam, 1 My. & Cra. ] fyland, 2 Dru. & Wal. 397 ; Clerk v. Rut- ^^0- land. Lane, 113; Wyun v. Williams, 5 Ves. {g) Upton V. Bassett, Cro. Eliz. 444; 130 ; but ^;/. tliis case. Needham^,. Beaumont, 3 Rep. 83, b; 2And. ^^^ p^^.^^^. ^ barter, 4 Ha. 409, 410; 233 ; Doe v. Routledge, Cow. 705 ; Bullock p^^ ^,_ ^ewis, 11 C. B. 1035. V. Sadlier, Amb. 7G4 ; Hill v. B. of Exeter, . x ^ t. , , ., . ^ „ rr r>r. -rw t i f> t:< cm ta ("0 Doe V. Rusham, 17 Q. B. 723. 2 Tau. G9; Doe v. James, IG Ea. 212; Doe ^ ' > <- V. Rowe, 4 Bin. N. C. 737 ; 1 Ves. & Be. (") "^^"^^ (l*^«s^« Moffatt) v. Wittaker, 184 ; Sugd. Pow. 1 ^o"- ^ Tow. 141 . (70 Doe ?;. Webber, 3 Nev. & Man. 58G; (o) Doe v. Rusham, 17 Q. B. 723. 1 Ad. & El. 733. 588 PROTECTION FROM VOLUNTARY SETTLEMENTS, [CH. 22. S. 1. 5. The statute being general, and to suppress fraud, extends to fraudulent conveyances to the King (p), although by his prerogative at common law the estate in the CroAvn could not be affected {q). //JE'/ ^» /^-^ ^' ^ voluntary settlement, although made hondjide, and the pur- chaser have direct notice of it, is made void by the Act as against the purchaser (r). This Avas ruled by Taylor v. Stile (*•). A settled lands, after his marriage, on his wife for life, and then sold the lands to B, Avho had notice of the wife's estate for life, and took counsel's opinion on the point. A died, and his wife brought her bill to be let into her life estate. Lord Northington held the law to be clear, that a subsequent purchaser for a valuable consideration, though with notice, should set aside a voluntary settlement ; but it being suggested that there was no valuable consideration, an issue was directed to try that fact, which coming on before Bathurst, J., at York, he suffered the counsel to enter into the equity ; and after hearing the argument, said, he knew Lord Hardwicke had deter- mined, in twenty instances, in the same manner as Lord Northington. The consideration Avas proved, and the case came on to be heard before the Chancellor on the equity reserved, who thereupon dis- missed the bill ; and this has been frequently followed. Nor will a purchaser from the settlor be affected by a covenant by him in the settlement, that the purchase-money should be paid to the trustees,' to be laid out by them in other lands to be settled to the same uses {t) ; nor can a voluntary settlement be supported because it was made by direction of the Court (?<)• 7. But a deposit of the title-deeds by a settlor after a voluntary settlement, will not prevail at law against the settlement ; trover may be maintained for the deeds {v) ; nor will a })rior voluntary con- veyance be defeated by a subsequent settlement for value beyond the extent required to give effect to the limitations created for value iu the later settlement {x). The same principle Avould apply to a subsequent sale of a partial interest in the estate. 8. Any conveyance executed by a husband in favour of his Avifc or children, after marriage, Avhich rests A\'holly on his moral duty to provide for them, is voluntary, and void against purchasers by force of the Act (y). So a like settlement by a Avife after marriage, Avhe- (;>) Magdalen Col. case, 11 Rep. 6G. (0 Evelyn v. Templar, 2 Bro. C. C. 148; («7) Wiseman's case; Cliomley's case, 18 Ves. 01, 93, 11 2. 2 Rep. 15, 50 ; 2 Ro. Ab. 303. (") ^^^^'"^ ^'- Martin, 2 Rus. & My. 507. if) Kerrison v. Donicn, 9 Bin. 76; Moo. (r) EveljTi t7. Templar, 2 Bro. C. C. 148 ; & Sco. 114. Doe r. Martyr, 1 New R. 332 ; Doe?;. Hop- /^,> g^,,rj jj „fL 148 kins, Ea. 70 ; Doe v. Manning, Ea. 50 ; ^^^^ Wo"odie's"case,"cro."jae. 158 ; Cliap- IliU V. Bp. of Exeter, 2 Tan. GO; 18 Vcs. man i;. Emery, Cow. 278; Evelyn r. Templar, 141 ; Gully v. Bp. of Exeter, 10 Bar. & o Bro. C. C. 148 ; Doe v. Rowe, 4 Bin. N. Crcs. 601. C^ 737 . Parker v. Serjeant, Finch, 146. As (s) Chy. 1 7G3, MS. to bankrupts, see 12 & 1 3 Vict- c. 106, s. 126. CII. 22. S. I.] EXTENT OF MARRIAGE CONSIDERATION. 589 tlier under a power (z) or as owner of the fee with her husband (a), has been hekl to be voluntary ; but this was not followed in a subse- quent case in Ireland (b), although it has been in a still later case in England (c). Where the husband parts by the settlement with an /^ a interest in his marital right in the estate in favour of his wife, the ,1^^ . *se> settlement Avould be for valuable consideration {d). 9. But ^■purcliase in the name of a wife or child is not within the Act(f); and a settlement by a widow, previously to her second marriage, of her estate on the children of the first marriage, has not been deemed fraudulent (j^') ; yet it has been decided that a contract for a purchase by a man cannot be protec^ted by taking the convey- ance to trustees to sell for the benefit of his wife and family. A mortgage of " all the man's real estate " was held to carry the estate so purchased against the voluntary settlement (^). 10. A settlement made on a wife or children yrior to marriage, is .yf^^ /3z^ a conveyance for valuable consideration (A), but a settlement after a ^77 '^ marriage in Scotland will not be so deemed, although the marriage is after the settlement re-celebrated in England (z). A husband acquiring an estate merely in his marital right, is not a purchaser ■ within the meaning of the statute (li). 11. The marriage consideration runs through the whole settlement, "^ ^ as far as it relates to the husband, and wife, and issue (/) ; but the marriage consideration will not extend to remainders to collateral relations, so as to support them against a subsequent sale to a hona fide purchaser (wi), although the remainders may of course be con- tracted for, and so brought within the consideration {n) ; and they appear to have been supported when after a vested estate tail (o). And they are valid where they are interposed between two limita- tions to the difterent classes of issue of the marriage, for that con- struction is necessary to support the ultimate remainder to the issue of the marriage (/j) (I). And where the concurrence of several per- (-) Goodriglit v. Moses, 2 Black. 1019; Doiiglasse v. Waad, 1 Cli. C. 99; Brown v. CuiTie V. Niud, 1 My. & Cra. 17. Jones, 1 Atk. 188. («) Buttei'field v. Heath, 15 Bea. 408; (i) Expte. Hall, 1 Ves. & Be. 112. I Eq. R. 230, {It) Doe v. Lewis, 11 C. B. 1035. {b) Greene v. O'Kearney, 2 Ir. C. L. R. {I) Nairn v. Prowse, 6 Ves. 752; 18 Ves. 2C7 ; see Parker v. Carter, 4 Ha. 409. 92 ; Lane, 22 ; 2 Ro. R. 306 ; Jason v. Jer- (c) Crofts V. Middleton, 2 Ka. & Jo. 194. vis, 1 Yen. 28G; see Barham v. Ld. Claren- {tl) Hewison v. Negus, 16 Bea. 594; and don, 10 Ha. 126. see Crofts v. Middleton, 2 Ka. &; 'Jo. 194; {m) Johnson v. Legard, Tur. & Rns.281. reversed, 27 L. T. 114. \n) 18 Ves. 92; Fordr. Stuart, 15Rea.493. (e) Svjjra. (o) White v. Stringer, 2 Lev. 105; 2 P. (/) Newstead v. Searles, 1 Atk. 265; VVms. 255. Cow. 280 ; Cotton r. King, 2 P.Wms. 674. (/j) Clayton v. Ld. Wilton, see 3 Mad. 302; {(j) Barton or Stone v. Van Heythusyen, Roe v. Mitton, 2 Wils. 356; Sutton t;. Chet- II Ha. 126. wynd, 3Mcr. 249; Sugd.H.ofL. 153; Llo. Qi) Colvile V. Parker, Cro. Jac. 158; & Go. ?. Sugd. 343. (1) In Clayton v. Ld. Wilton, before Lord Eldon, Ch., MS., a man previously to his marriage, had settled an estate to the xise of himself for life; remainder to trustees to pre- 0*^ 590 OF VALUABLE CONSIDERATIONS. [CH. 22. S. 1. sons is necessary, as in a resettlement by father and son, remainders to collaterals, for example, younger brothers of the son, would be valid as having been in effect contracted for by the father («/). But tenant for life and remainder-man cannot resettle the estate to the survivor in fee in remainder, so as to prevent them both from selling to a purchaser (r). Nor can a voluntary settlement be supported merely because under a prior settlement the grantor was tenant in tail and the grantees were tenants in tail in remainder (s). And the Ac ^^ /^^ o-eneral rule prevails where a womarHs estate is settled previously to ^^.f^r 'T^" -Carriage, with remainders to her collaterals, so that she and her hus- ^J^//^4" .band may destroy them by a sale for value (J:). >< A .c..2/f^ / 12. If an agreement be entered into before the marriage for a set- tlement of the estate (?0 (I), or the husband receive an additional portion with his wife (.r), the settlement, although made after mar- riage, will be deemed valuable. Even an agreement to pay the hus- band a sum of money as a portion, or a refusal by a trustee to pay the wife's money without a settlement (//), will support a settlement made after marriage, if the money is paid according to the agree- ment iz). So the concurrence of the wife in destroying an existing {q) Osgood V. Sti-ode, 2 P. Wms. 245 ; where the agi-eement before the marriage is Heap V. Tonge, 9 Ha. 90. by parol; Randall v. Morgan, 12 Ves. 74; (r) Doe w. Rolfe, 8 Ad. & E1.C50; Tarle- Battersbee v. Farrington, 1 Swan. 106; ton V. LiddeU, 17 Q. B. 390. 1 Wils. 88 ; Sugd. Pow.; Sugd. H, of L. 53. (*) Cormick v. Trapaiid, 6 Dow, GO. (.t) Cohile v. Parker, Cro. Jac. 158; (0 Cotterell v. Horner, 13 Sim. 506; see Jones v. Marsh, For. 64; Stileman v. Ash- Kekewich v. Manning, 1 De Ge. Mac. & down, 2 Atk. 477 ; Ramsden ». Hylton, Gor. 176. 2 Ves. 304. [%C) Griffin v. Stanhope, Cro. Jac. 454 ; (y) Brown v. Jones, 1 Atk. 188. Sir R. Bovie's case, 1 Vent. 193; but qu. (z) S. C. serve ; remainder to the first and other sons of the marriage, successively in tail male ; remainder to the first and other sons of the husband by any after-taken wife, suc- cessively in tail male ; remainder to the daughters of the intended man-iage, as tenants in common in tail, with cross remainders between them in tail, with reversion to himself in fee. The wife died in her husband's life-time without issue. The husband, not having been man-ied again, mortgaged the estate. The legal estate was outstanding, and the question was, whether it was to be conveyed to the mortgagee or not. A case was directed to the King's Bench, in which the settlement was stated as a legal settlement : and it was stated, that the settlor had sold for a full and valuable consideration. The Judges of B. R. on the 31st May 1813, certified their opinion, that the conveyance by the plaintiff to the purchaser was no^ a good and valid conveyance against the issue of the plaintiff's second maniage. Therefore, the limitations to the collaterals were supported: but it is observable, that in order to support the limitations to the daughters of the first marriage, it was necessary to support the remainders to the sons of the second marriage. That was of itself a sufficient ground to support the remainders. It has, on the same principle, been considered, that an estate to a stranger may be supported, under a cove- nant to stand seised, if required to give efiect to subsequent limitations within the con- sideration. The same circumstances, precisely, however, appeared to have occurred in Roe V. Mitton, but this ground does not appear to have been urged in its support. See Fairfield v. Birch, 11th edit. Purch. App. No. 23, (I) As to a parol agi-eement followed by possession, &c. after marriage, binding the party, see Surcome v. Rinniger, 3 De Ge. Mac, & Gor. 57 1 ; Stronghill v. Gulliver, 27 L. T. 258. CH. 22. S. I.] SETTLEMENT UPON SEPAEATION. 591 settlement on her for the benefit of the husband, is a suflScicnt con- sideration (a). 13. And if upon a separation, a friend of the wife's covenant to indemnify the husband against her debts, this will be a sufficient consideration to uphold a settlement as valuable (b). Indeed, if a person, whose concurrence the parties think essential, join in a settle- ment, his concurrence will be deemed a valuable consideration, al- though he did not substantially part Avith anything (c). But where a resettlement by father and son was fraudulent and void on the father's part, who was a trader, so that the son did not take the interest which the father purported to convey to him, the settlement by the son Avas held to be voluntary, there having been no other con- sideration (d). And it should be observed, that the statute of Eliza- beth does not affect settlements of personal estate (e). 14. Where a corporation provided a hospital under an Act of Parliament, and bought estates for it as an endowment, which by their direction ivere co?ive7/ed hy the sellers to the hospital, it was held that the corporation could not defeat the conveyance by a sale by them to a purchaser (y). But they never had the estates vested in them to convey, and they intended to transfer the rights of the hospital to another estate, and not to defeat them, and they did not follow the estate which had been sold. The case, therefore, does not establish that a voluntary conveyance to an ordinary charity may not be de- feated by a subsequent sale for value to a purchaser (y). 15. Equity will not assist a mere stranger in making good a volun- tary settlement upon him, unless the property was so transferred as to create the relation of trustee and cestui que trust. In one case, however, a voluntary assignment of an equitable reversionary interest to trustees, for a stranger, was established, although as the settlement Avas merely equitable, the person claiming under it of course had not any right to the property at law (li). In a recent case some thin dis- tinctions were taken on this subject, and an equitable estate regularly («) Scottw. Bell, 2Lev.70; Ball v. Burn- (/) Att.-gen. v. Corpor. of Newcastle, ford. Pre. C. 113 ; 1 Eq. Ca. Ab. 354, pi. 5; S Bea. 307 : 12 Cla. & Fin. 402. Clerk V. Nettleship, 2 Lev. 148. {g) TayllC Coi-por. of Gloucester, 14 Bea. {b) Stephens v. Olive, 2 Bro. C. C. 90; 181, 182. King V. Brewer, ib. 93, n. ; Ld. St. John v. (h) Sloane v. Cadogan, Rolls, Dec. 1 808, Ly. St. John, 11 Ves. 526; Worrallv. Jacob, MS. App. Purch. No. 24; ex pte. Pye, 3 Mer. 25G. 18 Ves. 140; Fenner v. Taylor, 2 Rus. &. (c) Roe V. Mitton, 2 Wils. 356; Myddle- My. 195; Edwards v. Jones, 2 My. & Cra. ton r. Ld. Kenyon, 2 Ves. 391 ; Hill f. Bp. 226; Collinson v. Pattrich, 2 Ke. 123; of Exeter, 2 Tau. 69 ; 18 Ves. 92; Gully w. Blakely v. Brady, 2 Dru. & Wal. 311; Bp. of Exeter, 5 Bin. 171; 2 Moo. & Pa. M'Fadden v. Jenkyns, Meek ij. Kettlewell, 105, 206, 276. 1 Ha. 458, 464; Beatson v. Beatson, 12 Sim. (d) Tarleton v. Liddell, 17 Q. B. 390; 281 ; 8 Bea. 201 ; Kekewich v. Manning, 4 De Ge. & Sma. 538. 1 De Ge. Mae. & Gor. 176 ; Donaldson v. (e) Sloane v. Cadogan, ivf.; Jones v. Donaldson, 1 Kay, 711. Croucher, 1 Sim. & Stu. 315. 592 or TROTECTION FROM SETTLEMENTS. [CH. 22. S. I. transferred in favour of strangers was held to be invalid. This seems t/1/fir'.29h open to reconsideration (/). 16. A voluntary deed may become good by matter ex post facto : as if a man make a feoffment by covin, or without any valuable con- sideration, and tlic feoffee make a feoffment for valuable consideration, the latter will be valid against any later conveyance by the first feoffor for valuable consideration (A). 17. Lord Eldon applied this rule to persons having only equitable rights (/). So if a person is induced to marry a voluntary grantee on account of such provision, the deed, though void in its creation as to , purchasers, will no longer remain voluntary (?72). And it must be i 1^ ^/f presumed that the parties did act upon the provision (?<). 18. Notwithstanding the decisions as to voluntary settlements, it is seldom that a purchaser can be advised to accept a title where there is a prior settlement ; for although apparently voluntary, yet if a J'/}.^.fA ■'2) valuable consideration Averc paid or given, parol evidence would be '^^ admissible of the transaction, in order to support the deed, and rebut the supposed fraud (o) ; yet in the absence of some proof, -the objec- tion could not be maintained (;>). If the settlement be for a nominal consideration and divers other good and valuable considerations, the Court, in favour of a purchaser, will inquire into the nature of the consideration (5'). 1 9. A contract to sell the settled estate to a person with full notice of the voluntary settlement will be enforced at the suit of the pur- chaser (r), but the seller cannot himself compel a specific performance of the contract {s) (I). K^f^. 2//h (') Bridge v. Rridp:c, 16 Bea.^ l^u and rars v. Cherry, 2 Ver. 384; Senhouse v. ^. /if. ?c} 3<^' see and (7?*. Beech tJ. Keep, 18 Bea. 28/^. Earlo, Amb,285; 2 Ves. GO,n.; Purch.938; r^g^^,^^- W Pi'odgers v. Langham, 1 Sid. 133; Pott v. Todhunter, 2 Col. 70; Clifford v. Newport's case, Skin. 423; Wilson «?. Wor- Turrell, 1 Yo. & Col. C. C. 138; 9 Jur. mal, God. 161, pi. 226; Doe v. Martyr, 633, aff. 1 New. R. .332; Parr v. Eliason, 1 Ea. 92; {))) Butterfield v. Heath, 15 Bea. 408. Ly. Burg's case, Mo. 602; 3 Atk. 377. InBucklew. Mitchell, the jJMrcAfl^e;- claimed (/) George v. Milbank,9Ves.l90; 1 Mer. the benefit of the purchase, see 15 Bea. 414. 638 ; 7 Cla. & Fin. 463. ( though registered (i), because A after the grant to 23 had nothing left to grant except by a rer/istered deed executed by himself. And an assignment under an in- solvency in England must be registered in Ireland as to estates there (^). 5. Upon the head of notice it has been decided, 1 , That a person having the legal estate as a mortgagee, and advancing more money without notice of a second mortgage duly registered, shall hold against the second mortgagee until he is satisfied all the money (/) ; 2, That- the registry is not notice, and therefore a purchaser without notice obtaining the legal estate will not be prejudiced by a prior equitable incumbrance registered previously to his purchase (m) ; 3, That a purchaser with notice of a prior unregistered incumbrance is bound by it (n). But of course iiotice of a prior unregistered instrument is unim- portant at law. The first registered inst rument must prevail at law (o). JiirhZ-O-^7, A purchaser therefore may in equity be bound by a judgment (;^) or a deed, although not registered ; but it must be satisfiictorily proved {d) Scrafton i». Quincey, 2 Ves. 413. Busliell v. Bushell, 1 Scli. & Lef. 103; (fl) Honeycomb v. Waldi'on, 2 Str. 1064. Latouche v. Lord Dunsany, id. 157. (/) Malcolm v. Charlesworth, 1 Ke. 63. (") ^^- fortes v. Deniston, 4 Bro. P. C. ^^ ' „ . ,,. „c. 189; 2 Eq. Ca. Ab. 482, pi. 19; 3 Atk. (,) 6 An. c. 2 ; 13 & 14 V:ct. c. 72. ^..3 ^ ^^ J^^^ ^ ^.^^^^^^^^ ^^^ ^^^ . ^^^^^.^ (h) Warbmion v. Loveland, 2 Dow & ^_ gj^^j^j^^ 1 Eq.Ca. Ab. 357, pi. 11 ; Blades Cla. 480. ^_ Blades, id. 358. pi. 12 ; Hine v. Dodd, 2 (0 Jack V. Armstrong, 1 Hud. & Bro. ^^j^_ 275; Le Never. LeNeve, 3 Atk. 646; 727; Fmyr. Smith, id. 735; Mill «. Hill, gheldon v. Cox, Amb. 624; Jolland v. 3 H. of L. 828. Stainbndge, 3 Ves. 478 ; Cow. 712 ; 1 Bur. (4) Battersby v. Rochfort, 2 Jo. & Lat. ^^^ . , g^j^^ ^^ Le. 102 ; Biddulph v. St. "^-^^^ • John, 2 Sch. & Le. 521 ; Eyre v. Dolphin, (/) Bedford v. Backhouse, 2 Eq. Ca. Ab. 2 Bal. & Be. 290. 615 ; Wrightson v. Hudson, id. 609. (^) Tunstall v. Trappes, 3 Sim. 301. {m) Moreeock v. Dickens, Amb. 678; (^) Doe v. Allsopp, 5 Bar. & Al. 142. (I) Judgments do not bind glebe lands, but they are bound by the delivery of the ■WTit, consequently the judgment need not be registered; Cottle V. Warrington, 2 Nev. & Man. 227. p p 4 X 600 CONTENTS or MEMORIAL. [CH. 22. S. IV. that the person wlio registers the subsequent deed must have known exactly the situations of the persons having the prior deed; and knowing that registered, in order to defraud them of that title he knew at the time Avas in them {(/). Apparent fraud, or clear and undoubted notice, would be a proper ground of relief ; but suspicion ^/^j^jy^ of notice, though a strong suspicion, is not sufficient to justify the Court in breaking in upon an Act of Parliament (r). A Us j^endens is not deemed notice for that purpose (s). If a settlement be executed before marriage, but not then registered, and after the marriage the party claiming under it have notice of a prior unregistered incum- brance, yet he may obtain priority by registering the settlement before the prior incumbrance is registered {t). 6. Under the Irish Act, however, equitable estates created for valuable consideration by a registered instrument, bind a purchaser even without notice as equitable estates, and he would be compelled to give effect to them {u). t^Q *^ 7. The Acts require the memorial, the body of which may be litho- ' graphed (x), to be under the hand and seal of some or one of the grantors or grantees, his or their heirs, executors, or administrators, guardians, or trustees, attested by two witnesses, one whereof to be one of the witnesses to the execution of the deed, and he is to prove on oath both the execution of the memorial and of the deed itself (y). Where the witnesses are dead or absent, a re-execution in the pre- sence of a new witness, for the i:)urpose of registry, would be inope- rative {z). If a representative require the registration he need not re-execute the deed, it will be sufficient to execute the memorial only in the presence of two witnesses, " one whereof to be one of the wit- nesses to the execution of such deed or conveyance," which witness Avill then, according to the very words of the Act, prove the signing and sealing of the memorial, and the execution of the deed or con- veyance mentioned in such memorial (I). A corporation affixing their seal is tantamount to a signiny and sealing by an individual (a). The registration of certificates of writs of execution (6), decrees or {q) 3 Ves. 485. (x) The Queen v. Reg. of Middlesex, 7 (?•) 2 Atk. 276; Irons v. Kidwell, 1 Ves. Q. B. 15G. G9; Wyattr. Banvell, 19 Ves. 435; Lene- {y) In the Act for the North Riding of lian V, ISI'Cabe, 2 Ir. E. R. 342 ; Ford v. York, the words " one whereof to be one AVhite, 10 Bea. 120. of the witnesses," is omitted by mistake. (s) 19 Ves. 439; Wallace r. Ld. Donegal, {z) Essex v. Bangh, 1 Yo. & Col. C. C. 1 Dru. & Wal. 4G1. G20 ; Jack v. Armstrong, 1 Hud. & Bro. (0 Elsey V. Lutyens, 8 Ila. 159. 727 ; Hobhouse v. Hamilton, 1 Sch. & Lef. (m) Bushcll V. Bushell, 1 Sch. & Le. 90 ; 207, Thompson v. Simpson, 1 Dru. & War. 459, {a) Doe v. Hogg, 1 New R. 306. 485; Mill V. Hill, 12 Ir. E. R. 107; 3 II. \b) Rigge, Free. 35, p. 148; see 1 Hud. of L. 828 ; see Ford v. White, IG Bea. 120. & Bro. 760. (I) As to the persons who answer the description required to entitle them to execute the memorial, see 8 Geo. l,c. 15, Ir. ; Murphy?'. Leader, 1 .Teb. & Bour. 6G. en. 22. S. IV.] CONTENTS OF MEMORIAL. 601 orders from the courts of equity, or rules of the courts of law (c), office copies of wills (r/), and certificates of the discharge of judgments (f), is wholly nugatory, so far as any priority or effect is attempted to be given to them by force of the Act. 8. In regard to the contents of the memorial — the anxiety of the Legislature not wantonly to compel the disclosure of the concerns of individuals, induced them simply to require that every memorial should contain, first, the day of the month and year when the deed, &c. bears date, and the names and additions of all the parties to it, and of the devisor or testatrix of a will, and of all the witnesses to such deed, &c., and the places of their abode ; and secondly, the honors, manors, lands, tenements, and hereditaments contained in such deed, &c., and the names of the parishes, &c. where any such estates lie that are comprised in or affected by such deed, &c. in such manner as the same are expressed or mentioned in such deed, &c. or to the same effect (y). It seems, however, advisable to go a step farther, and to state to whom the estate is conveyed, as this, Avhere there are more than two parties, will facilitate a search for incumbrances on the estate ; but no good reason can be given why the parties should be put to expense by stating the instrument more fully. When a purchaser discovers what deeds were executed, he will of course require the production of them ; and so no mischief can arise by a strict adherence to the letter of the Act. 9. With respect to the parcels it is provided, that where there are more writings than one for making or perfecting any conveyance or security which concerns the same estates, it shall be a sufficient me- morial thereof, if all the estates are only once named in the memorial of ani/ one of the deeds or writings, and the dates of the rest of the deeds or writings, Avith the names and additions of the parties and witnesses, and the places of their abodes, are only set down in the memorials of the same, with a reference to the deed or writing whereof the memorial is so registered, that contains the parcels mentioned in all the deeds, and directions how to find the registering of the same(//). This provision has been extended in practice. It is usual, for instance, in a memorial of an assignment of a lease, to refer for the parcels to the prior registry of the lease, although a separate and distinct trans- action. This, however, is very incorrect (I). The statute only au- thorises such a reference where several Avrltings are executed to perfect the same conveyance or security. And Avherc the memorial (c) Rigge, 83, n. (h). (/) 7 An. c. 20, s. G ; as to Ireland, see {(l) Rigge, 96, n. (s). Delacoiir v. Freeman, 2 Ir. C. R. 633. [e) Rigge, Pree. 87, n. {fj) 7 An. c. 20, s. 7. (I) See now a new form, 15 Q. B., 978, which the Judges in that case approved of. 602 EXCEPTION OF COPYHOLDS. APPOINTMENT OP [CH. 22. S. IV. does not comply Avitli the directions of the Act, the person claiming under the deed defectively registered cannot insist on the benefit of the statute against a subsequent purchaser without notice, whose conveyance is duly registered. 10. Where a proposed memorial of an assignment of a lease (which lease was not registered) described the house as it was described in the lease, and then added " by the description of the premises in the within-Avritten lease," the memorial was rejected, for the descrip- tion in it was not contained in the assignment to be registered, which described the premises only by reference to the lease, and there was no statement in the memorial showing from whence the description was obtained. In the case of a second deed indorsed on a former deed, and importing by reference the description of the j^remises from the former deed, the Court thought that the particulars of the description according to the truth should be given, and that this would not be done unless the dates and parties to both deeds Avere specified, together with the description from both deeds (h). 1.1. In regard to the exceptions in the Acts. The first exception is of copyhold estates. This exception is general; and it may be thought that no deed relating to a copyhold estate need be registered ; but it is advisable to register such leases of copyhold estates as would require registry if the estate were freehold. The next exception is of leases at rack-rent. It frequently happens that a lease originally at rack-rent becomes of some value in the course of a few years, but perhaps the better opinion is, that a lease originally at rack-rent, and within the exception in the Acts, continues so during the term, although it may become a valuable and saleable interest. The next exception is of leases not exceeding twenty-one years, Avhere the actual possession and occupation go along with the lease. Where such a leas e is assign e d^ by way pf mortgage, it is always iisual in practice to require it to be registered, and the Acts seem cautiously worded, so as not to exempt the lease in that event. But an assign- ment of the lease out and out for a valuable consideration cannot take it out of the exception. It still remains within, as well the sjiirit as the words of the exception. While the possession and occupation go along with the lease no one can be deceived, and the lease still con- tinues " a lease not exceeding twenty-one years, where the possession and occupation go along with the lease" {D. The last exception re- quiring notice is of the chambers in Serjeant's Inn, which is within the city ; and it has therefore been doubted, whether the Legislature did not intend the Act of 7 Anne to include in its operation the whole (/() The Queen v. Reg. of Middlesex, 15 (I) Fuvy r. Smith, 1 Hud. & Bro. 73-5 j Q. B. 97G. 6 An. c. 2, s. 14, Ireland. CH. 22. S. IV.] ASSiaNEE OF INSOLVENT TO BE REGISTERED. 603 metropolis, except tlic borough of Southwark (h). But there is not the least ground for this doubt. It is not surprising that the mistake should have been made, and it is impossible to argue, that such an error shall make an Act passed relating to lands " in the county of Middlesex," upon the petition of the " justices of the peace and grand jury of the county of Middlesex," extend to the city of London. This construction would invalidate some thousands of leases, as the general opinion of the Profession is, that the Act does not extend to the city. 12. There are still two other provisions as to registry. The 46th section of the 1 & 2 Vict. c. 110, which makes a copy of any order under the Act vesting the estate of any prisoner in the provisional assignee, evidence of such order and appointment respectively having been made, and of the title of the provisional assignee, and of such other assignee or assignees respectively, under the same, provides that where any conveyance of property of an insolvent debtor would be required to be registered in any registry-office, then such copy as therein is described of such order, and a like copy of the appointment of an assignee or assignees under the Act, shall be registered in the proper registry-office ; and the registry shall have the like effect as the registry of such conveyance would have had ; and the title of any purchaser of any such pi'operty as last aforesaid for valuable consider- ation, without notice of any such order or appointment as aforesaid, who shall have duly registered his purchase-deed previously to the registry thereby directed, shall not be invalidated by reason of such order as aforesaid, or the appointment of an assignee or assignees as aforesaid, or the vesting of such property in him or them consequent thereupon respectively, unless a copy of such orders, and a copy of such appointment, if any, shall be registered in Great Britain and Ireland, within two months after the date of sucli order and appoint- ment respectively (I). And, as we have seen, certificates of appoint- ments of assignees are required to be registered in England or Ireland, where by law any conveyance or assignment of any property of a peti- tioner would require to be registered (/). (k) Rigge, 88, n. (p). s. 143; sup. s. 3, pi. 7; see Gardiner v. (l) S. 8, sup. p. 434 ; 12 & 13 Vict. c. 106, Blessinton, 1 Ir. C. R. 04. (I) 3 & 4 W. 4, c. 74, s. 74, as to em-olment of deeds under that statute, and supra. 604 OF PROTECTION FROM DEFECTS [CH. 22. S. V. SECTION V. OF TROTECTION FROM DEFECTS IN RECOVERIES, AND FROM DEFECTS IN SALES FOR LAND-TAX, AND OF PURCHASES BY ROMAN CATHOLICS. 1. Purchaser protected against defect of record or of recovery deed. 2. Provisions in 3 cV 4 Will. 4, c. 74, i7i favour of purchasers. 3. Defective sales for land-tax rendered valid. 4. Power to commissioners for taxes to confirm sales for land-tax. 5. Extent of power. C. Purchaser with notice. 7. Purchases hy Roman Catholics. -r 1- The 14 Geo. 2, c. 20, s. 4, contained some provisions in favour if-i^Xj.-^x^ of purchasers, wher e noj;e cord could be found^f ^a recove rj^or the j^ A-x^ same should ap pear not to be regularly entered of record, or where ^^n<^ the deed making the tenant to the -precipe should be lost or not ap- - 9 pear («), but they have now little operation. 2. The Act of 3 & 4 W. 4, c. 74, which abolished fines and re- coveries, contains several provisions in favour of purchasers, in order where a voidable estate is in a purchaser for value under a tenant in tail, to make any subsequent assurance imder the Act, as far as may be, operate as a confirmation of his title (Z»), even where the subse- quent assurance is under the bankrupt Acts (c) ; provided in both cases that if the disposition by such assurance should be made to a purchaser for value who has not express notice of the voidable estate, the voidable estate sliall not be confirmed against such purchaser. But it is provided id) that in cases of dispositions under the Act by tenants in tail, and also in cases of consent by protectors of settle- ments, the jurisdiction of equity shall be altogether excluded, either on the behalf of a person claiming for a valuable or meritorious con- sideration or not, in regard to the specific performance of contracts and the supplying of defects in the execution either of the powers of disposition given by the Act to tenants in tail, or of the powers of consent given by the Act to protectors of settlements, and the sup- plying under any circumstances of the want of execution of such powers of disposition and consent respectively. 3. The 12th section of the 54 Geo. 3, c. 173, gives validity to sales under the Land-tax Redemption Acts, although made by persons not strictly authorised to sell without some further assurance, or by reason that all the lands of such persons did not stand settled to the same uses, or by reason that a greater quantity was sold than neces- («) 11th edit. Purch. 1000. (b) S. 38. (r;) S. (i-2; 12 & 13 Vict. c. lOG; sup. s. 3, and c. 12, s. 2. (tc. Knott, 11 A^es. 609 ; Shine f. by T. 29 ; Robinson v. Davison, 1 Bro. C. C. Gough, 1 Bal. & Be. 436 ; Bowen v. Evans, 63 ; Expte. Knott, 1 1 Ves. 619 ; Barnett v. 1 Jo. & Lat. 264 ; Parker v. Cartel-; 4 Ha. Weston, 12 Ves. 134, 135. 400; Hartly v. O'Flaherty, Beat. 80, 81 ; (/) 15 Ves. 335; 11th edit. Purch, 1016. 3 Sim. 300. (g) Frere v. Moore, 8 Pri. 475, where (d) Joyce v. I)e Moleyns, 2 Jo. & Lat. some of the dates are incorrectly stated, 374; see Frazor r. Jones, 5 Ha. 475; 12 but by comparing the statement of the case Jur. 443, on app. with the judgment, the errors may be (c) Peacock v. Burt, Coote Blortg. C93 ; readily corrected. Bracer. Duchess of Marlborough, 2 P. Wms. (h) This is a legal point, Eight r. Buck- 491; Belchieri;. Butler, Renforth r. Ironside, nell, 2 Bar. & Ad. 278. (I) The trustee was a party to the deed, but it appears by tlie judgment that he did not execute it. (II) Leach, V. C, in Benslcy v. Burden, 2 Sim. & Stu. 519, held that a conveyance was an estoppel, upon the general ground that it was a deed inde)ited, and that the natrire of the conveyance, namely, lease and release, made no difference. This was corrected in Right V. Bucknell, upon the authority of Littleton. Bensley v. Burdon was affirmed solely because there was an allegation of a particular fact, viz., that the grantor was CH. 23. S. I.] AND PROTECTION. 609 7. An assignee of the purchase-money cannot by getting in a first mortgage tack so as to affect the rights of the purchaser to have the estate cleared of incumbrances (i). 8. A purchaser cannot protect himself by taking a conveyance or assignment of a legal estate from a trustee in whom it was vested upon express trusts (/e). 9. The Court of Chancery will not supersede a commission of bank- ruptcy even for fraud, where there have been purchasers under it (/) ; for a commission being superseded, all falls with it(m). So equity will not relieve against a hand fide purchaser without notice, although the remedy be gone by accident (w), nor will it compel him to dis- cover any writings which may weaken his title (o) ; or take any advantage from him by which he may protect himself at law, or obtain terms of his antagonist (p) ; neither will equity give any person an advantage over {ff) a purchaser, or any assistance against him (?') ; and his having taken a collateral security for the title will not make his case Avorsc (5^, unless the purchase by the vendor was fraudulent, in which case it would have considerable weight with a court of equity it). But some of the early cases would not now be followed {11). 10. If a man purchase for valuable consideration, without notice from a disseisor, and the disseisee is a trustee for another, although the general rule is, that a trustee is bound to convey, upon request, to his cestui que trust, yet if in this case the trustee refuse to convey the legal estate to the cestui que trust, or to suffer the latter to bring an ejectment in his (the trustee's) name, a court of equity will not compel the trustee to do so, because it would in effect be granting (i) Lacy I'. Ingle, 2 Phil. 413. Free. 24; Jerrard v. Saunders, 2 Ves. j. (70 Saunders r. Dehew, 2 Ver. 271 ; 2 454. Free. 123; Allen v. Knight, 5 Ha. 272 ; 11 {p) Wahvynn v, Lee, 9 Ves. 24. Jur. 527. (?) Bechinall v. Arnold, 1 Ver. 354. (/) Ex pte. Edwards, 10 Ves. 104 ; Ex ('•) Graham v. Graham, 1 Ves. 202. pte. Leman, 13 Ves. 271 ; Ex jjte. Rawson, {s) Lowther v. Carleton, For. 187; biit 1 Ves. & Be. 160 ; Ex j^tc. Lautour, 1 Men. see White v. Stringer, 2 Lev. 105 ; Jennings & Bli. 89. V. Selleck, 1 Ver. 407. (m) 1 Ves. &; Be. 60. {t) How v. Weldou, 2 Ves. 516; see 2 In) Harv-y v. Woodhousc, Sel. C. C. 80; Free. 123 ; Siddon v. Charnells, Bun. 208 ; Bell V. Cundall, Amb. 101. Fagg's case, 1 Ver. 52 ; 1 Ch. C. 68, 7ioni. (0) Bp. of Worcester v. Parker, 2 Ver. Sherly v. Fagg, where the circumstance of 255; Hall r. Adkinson, 2 Ver. 463; 1 theft does not appear ; Harcourtr, Knowcl, Eq. Ca. Ab. 333, pi. 54; Millard's case, 2 Ver. 159. 2 Free. 43; Sir J. Burlace v. Cook, 2 (w) Culpeper's case, 2 Free. 124. entitled to the interest granted, whereas in the case in the King's Bench there was no such precise averment, but a recital only that the giantor was legally or equitably entitled, 2 Barn. & Ad. 282, 8 L. J. Ch. 85. How far the recitals in a release of this nature' will operate to pass the estate by estoppel, requires further consideration. Lord Lyndhurst, in his judgment, does not seem to have distinguished between lease and release and other deeds; the case was not finally disposed of. This point was considered in Crofts v. Middleton, 2 Kay & Jo. 194, reversed 27 L. T. 114, Q Q 610 OF EQUITABLE RELIEF [CH. 23. S. I. relief against a purcliaser (.r). This case strongly marks the favour shown to a bond fide purchaser. And a bond fide purchaser without notice will be relieved against incumbrances which have lain dormant for a long time (y). 11. So equity will relieve a purchaser for valuable consideration against a defective execution of a power, in the same manner as against a defective surrender of copyholds (^r). But if a devisee, having an estate for life, with a power to dispose of the inheritance by ivill, sell the estate in his lifetime, equity cannot relieve the pur- chaser, although by the effect of accident he has got the legal estate in fee-simple ; for in a case like this, the testator cannot be under- stood to mean that the devisee should so execute the power (a). 12. If tlie purchaser's deed have circumstances on the back of it wliich tend to show that the execution of it was obtained by fraud, the purchaser will be compelled to produce the deed itself (/>*). 13. The mistake or ignorance of any of the parties to a conveyance of their rights in the estate will not turn to the prejudice of a bond fide purchaser for a valuable consideration (c). And Avhere a man, being already married, performed the marriage ceremony with ano- ther, and then joined with her as his wife in assigning her property to a purchaser — although she was deceived — the assignment to the purchaser was supported {d). And where contracting parties act without fraud on a bond fide apprehension of their interests, although it is discovered afterwards that these interests are differently modified, the purchaser cannot be affected (e). ^~y / . 14. If upon a piu'chase, any person is required to join to obviate an obiection to the title, and the obiection is stated in such a manner rt 2.// T P . • / (^ as not to convey full information, the purchaser cannot avail himself "■^ of the instrument against the person executing it ; but if a person having only a general statement that there are objections to a title which his concurrence will obviate, upon that communication conveys, he is bound (/). 15. And even where a party joining without consideration in a release to facilitate a sale may be entitled in equity still to retain his security on the property as against the owner, yet he may be bound as against purchasers (^). (;r) Tm-iier v. Back, 22 Vin. p. 21, pi, 5, {b) Kennedy r. Green, G Sim. 6. where the cestui que trust claimed under a (c) Maiden v. Menill, 2 Atk. S. voluntary settlement. (d) Sturge v. Starr, 2 My. & Ke. 195. (y) Biu-gh V. Wolf; Tot. 22G ; Smith v. (e) Marshall v. Collett, 1 Yo. & Col. 238. Rosewell, lb. 247, 224; Abdy r. Loveday, (/) Ld. Braybroke v. luskip, 8 Ves. Finch, 250; Sibson v. Fletcher, 1 Ch. R. 417 ; 3 Swan. 73; Malcolm r. Charlesworth, 32; Ld. Dillon v. Costelloe, 2 Mol. 512; 1 Ke. 63; Addis v. Campbell, 4 I3ea. 401. Wallace i». Ld. Donegal, 1 Dru. & Wal. 401 . {(j) Hatchell v. Cremome, 1 Rep. t. {z) Chapman v. Gibson, 3 Bro. C. C. Plunk. 230, qri. and consider the case ; 229 ; 2 Sugd. Pow. 92. Stronge v. Hawkes, 4 De Ge. Mac. & Gor. (a) Pc'/-LordEldou; Reid v. Shergold, 180. 10 Ves. 370. CH. 23. S. I.] AND PROTECTION. 611 16. Where parties join in a conveyance to a purchaser, all their rights ought to be considered as transferred to him, unless any of" them are expressly reserved. It is much too dangerous to speculate upon intentions not declared, with a view to confine the operation of the deed and to cut down the interest for which the purchaser contracted. This Avas lost sight of in a case in the House of Lords, which was deemed so dangerous a precedent that it was in contemplation to in- troduce a bill to reverse the decision {h). Unascertained and unde- fined advantages Avill pass by the general words of the grant of a manor, although not in the contemplation of either party at the time. Minerals in the lord's waste would pass, although the existence of them was not known or suspected by any of the parties ; so also an advowson appendant to a manor will pass under the general words accompanying a grant of the manor (/). 17. If a person having a right to an estate permit or encourage a purchaser to buy it of another, the purchaser shall hold it against the person who has the right {k), although covert (/), or under age {m). And even at law, as to chattels, a party who negligently or culpably stands by and allows another to contract on the understanding of a fact which he can contradict, cannot afterwards dispute that fact in an action against the person whom he has himself assisted in deceiv- ing (n). Where an incumbrancer stood by at a treaty for the settle- ment of the incumbered estate on the marriage of the owner's son, without opposition, and fraudulently concealed his charge, and pri- vately assured the father of the son that he would trust to his personal security, he was compelled to relinquish his charge as against the son and his wife, and the issue of the marriage (o). And the same rule prevails even where the representation is made tlu'ough a mistake, if the person making it might have had notice of liis right (j)) (I). But (h) Fausset v. Carpenter, 2 Dow & Cla. (l) Savage v. Foster, 9 Mod. 35 ; Evans 232; Sugd. H. of L. 76; see Evans v. r, BiekueU, 6 Vcs. 174. Jones, 1 Kay, 29. (?«) Watts r. Cresswell, 9 Vin. 415; 9 (i) Att.-gen. I'. Ewelme Hospital, 17 Bea, Mod. 38, 96, 97; 4 Bro. C, C. 507, n. ; 385, 386, per Cur. Clare v. Earl of Bedford, 1 3 Vin. 536 ; 3 {k) Hobs V. Norton, 2 Ch. C. 128 ; Han- Cli. C. 85, 123 ; Cory v. Gerteken, 2 Mad. ning V. Ferrers, 2 Eq. C. Ab. 356, pi. 20 ; 4G ; Overton v. Banister, 3 Ha. 503 ; 1 Free. 310 ; IGVes. 253; Govett v. Rich- Stokeman v. Dawson, 1 De Ge. & Suia.90; mond, 7 Sim. 1 ; Nicholson v. Hooper, 4 Wright v. Snow, 2 De Ge. & Sma. 321 ; My. & Cra. 185, 186; Sandys v. Hodgson, Vaughan v. Vanderstegen, 2 Drew. 363. 10 Ad. & El. 472, a dog cause; Stevens v. {n) Gregg v. Wells, 10 Ad. & El. 90; Stevens, 2 Col. 20 ; Leader v. Ahearne, 4 Gerhard v. Bates, 2 Q. B. 476. Dru. & War. 495; Boyd v. Belton, 1 Jo. & (o) Berrisford v. Milward, 2 Atk. 49. Lat. 730 ; Thompson v. Simpson, 2 Jo. &c {])) Pearson v. Morgan, 2 Bro. C. C. Lat. 110 ; Crofts v. Middleton, 2 Kay & Jo. 888* ; Teasdale v. Teasdale, Sel. C. C. 59; 194, reversed ; 27 L. T. 114. but observe the circumstances of that case. . (I ) Sed qu. this as a general rule, unless there he fraud 1 Haycraft v. Creasy, 2 Ea. 92 ; Tapp V. Lee, 3 Bo. & Pul. 367; Holmes v. Custauce, 12 Ves. 279; Barley v. Walford, 9 Q. B. 197. QQ2 612 OF EQUITABLE RELIEF [CH. 23, S. I. if parties cannot agree upon terms, a proposed purchaser cannot go and build upon the land, and then, upon the allegation of the owner standing by, demand the land at its value before it was built upon {q). 18. So when a person inquires of another whether he has any in- cumbrance on the estate, and states his intention, to buy it, if the person of whom the inquiry is made deny the fact, equity will relieve the purchaser against the incumbrance (r). Again, where a pur- chaser of an equitable right inquires of tlie trustee of the legal estate whether he knows of any incumbrance, and he answers in the nega- tive, if it turn out that he had notice of any charge, he will be answer- able to the purchaser, although he plead forgetfulness in excuse {s). 19. But a person having an incumbrance upon an estate is not bound to give notice of it to any person whom lie knows to be in treaty for the purchase of the estate {f). Nor, it has been held, is a first mortgagee (with a power of sale) bound in purchasing the inte- rest of a second mortgagee to communicate to him a previous parol agreement not binding, to sell part of the property to an advantage {u). 20. If a purchaser take a defective conveyance from the vendor, equity will compel the vendor and his heirs, and all other persons claiming under him by act of law, as assignees of a bankrupt, although without notice, and even persons claiming as purchasers for valuable consideration, if with notice, to make good the conveyance (x). So a purchaser, by a defective conveyance, will be relieved against per- sons who did not consider the land as their original or primary secu- rity, e. g. judgment creditors ; although they may have obtained an advantage at law (y). And although he who seeks to have equity must do equity, yet where the conveyance was intended to pass the interest, but is defective for some collateral matter which the seller can make good, he will be compelled to do so, although the purchaser has not performed a covenant for indemnity contained in the convey- ance, and the Court in that suit will not compel him to perform it ; the parties will thus be placed in the same relative position which was intended at the time the conveyance Avas executed {z). 21. 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 (7) Meynell r. Siirtees, 25 L. J., N. S, {y) Burgh v. Francis, Finch, 28; Gilb. 2G6, quoting E.I. Co. I'. Vincent, 2 Atk. 83. For. Rom. 223; Averall r. Wade, Llo. & (r) Boyd v. Belton, 1 Jo. & Lat. 730. Go. t. Sugd. 252; 15 Vcs. 354 ; Prior i). (s) Burrowes v. Lock, 10 Ves. 470. Penpraze, 4 Pri. 99, whei-e the judgment Is (t) Osliorn V, Lea, 9 Mod. 96; Ingram wrong in saying the creditor had only an V. Thorp, 7 Ha. 67. equitable, not a legal lien ; Hughes v. Wil- (u) Dolman r. Nokes, 27 L. T. 178. Hams, 3 Mac. & Gor. 683; Chappell r. (x) Jaques v. Huutly, 1 Ch. R. 5 ; Tay- Recs, 1 De Ge. Mac. & Gor. 393. lor V. Wheeler, 2 Ver. 564 ; Morse v. (z) Gibson v. Goldsmid, 1 Jur., N. S. 1 ; Faulkner, 1 Ans. 1 1 ; 2 Ves. j. 151; 6 Ves. there was a covenant for further assilr- 745; 11 Vcs. 625; Dimes r. Grand J. C. ance. V^^t. ■^ i,{^\ ^\'l Co., 3 H. of L. 794. ^ ^ '^ ' ' ^ ' CH. 23. S. I.] AND PROTECTION. 613 the purchaser. But it seems to have been considered that this is a personal equity attaching on the conscience of the party, and not descending with the hmd ; 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 Avill not be bound by his ancestor's contract (a). This opinion, however, deserves great consideration (/>). 22. A conveyance under a power of sale to a purchaser by a person who was by mistake supposed to be the trustee, has been supported upon acquiescence and the acts of the cestids que trust sub- sequently to the sale. If the Court had set aside the sale, yet it would have assisted the purchaser to recover from the supposed trustee the purchase-money still in his hands or for which he might remain liable (c). 23. Where a man upon a sale conveyed a contingent remainder to the purchaser, which was afterwards destroyed by the tenant for life, who, having acquired the fee, by his will gave the seller other interests in the estates, the seller w^as compelled to convey those interests to the purchaser {d). 24. If trustees suffer a tenant for life of a rencAvable leasehold to enjoy all the profits in breach of a trust to renew out of the rents and profits, the assets of the tenant for life will be applicable in the first instance to their indemnity, and a purchaser from the tenant for life of his life-interest will also, it seems, be answerable to the person for whose benefit the renewal ought to have been made. But, as between the trustees and the purchaser, the latter is not primarily answerable. If they permit the tenant for life to apply to his own use all the rents and profits, and abstain from performing the trust, they cannot contend that it was the purchaser's duty to withhold any part of the rents and profits, or the consideration that came in place of them (e). 25. Where the conveyance is not perfected with the solemnities positively required by an Act of Parliament, as in the case of the Ship-registry Acts, equity cannot relieve, as it would be against the policy of the Acts, unless perhaps there Avere direct fraud, in which case it would seem that equity would relieve (/). 26. In a case in Ireland {g), where Sir A. Hart and Lord Plunket differed in opinion, in the result they appear to have agreed, that (a) Morse v. Faulkner, 1 Ans. 11 ; Cai-le- interest of an assenting party; Osborne v. ton V. Leighton, 3 Mer. 667 ; Bensley v. Smith, 4 Ir. C. R. 58. Burdon, 2 Sim. & Stu. .516, upon app. (e) Ld. Montford v. Ld. Cadogan, 17 affirmed; Otterr. Ld.Vaux,2 Kay& J0.60O. Yes. 485; Wallaeev. Ld. Donegal, 1 Dru. & (6) Llo. & Goo. t. Sugd. 260, 261; 1 Wal. 461; Houlditchu. Ld. Donegal, i6. 503. Dru. & War. 159. (/) Speldt v. Lechmere, 13 Ves. 588 ; (c) Hope V. Liddell, 21 Bea. 183. Expte. Yallop, 15 Ves. 60; Exi^te. Wright, (V) Noel V. Bewley, 3 Sim. 103 ; Jones 1 Ro. 308. i;. Kearney, 1 Dru. & War. 159; Smiths, ((). Of course he cannot protect himself against his own incumbrances. Where a man made two mortgages, and the first contained a power of sale under which he himself purchased the estate, but the purchase-money was not more than the amount of the first mortgage, the second mort- gagee was held to still have his charge on the estate against the mortgagor and purchaser, and against subsequent incumbrancers, with notice (ossession in seller not notice of adverse title. Recital, ifc. leading to other facts bind- ing. Eland v. Eland. Purchase from heir with notice of a will. Unusual receipt indorsed, notice: soli- citor committing fraud and acting for purchaser. Notice of bills for 2)urchase-money, notice of lien : advowson : notice of lunacy. 07ie estate liable in equity to clear an- other of incrmibrances : notice of deed binds. Hamilton v, Royse. But notice of contemplated deed 7iot suf- ficient. Purchaser fr07n husband under settle- jnent bound by the wife's equities. A7nbiguous 7-ecitals, 77iere suspicio7i of fraud 7iot notice. Cou)-t rolls not 7iotice, se7nble. Stewaj-d of ma7ior has notice of the admissio7is. Effect of notice of77iortgage title. Witnessing a deed not notice. Lrqjroper Setlle7nent 7mder articles: the latter, how far binding on a purchaser. 1. Notice is either aetual or constructive; but there is no dif- ference between them in its consequences (a). 2. Of actual notice it need only be remarked, as a general rule, that, to constitute a binding notice, it must be given by a person interested in the property, and in the course of the treaty for the purchase. Vague reports from persons not interested in the property will not aifect the purchaser's conscience ; nor will he be bound by notice in a previous transaction which he may have forgotten (b). {a) Amb. 62G. (b) Wildgoose r, Weyland, Goold, 147 ; Coimvallis's case, Tot. 254. 622 OF NOTICE. [CH. 24. S. I. And not only a mere assertion, that some other person claims a title is not sufficient, but, perhaps, a general claim is not sufficient to affect a })urchaser with notice of a deed, of which he does not appear to have had knowledge (c). And the notice to the purchaser must be in the same transaction (d). The rule is settled that a purchaser is not bound to attend to vague rumors — to statements by mere strangers; that a notice, in order to be binding, must proceed from some person interested in the property (e). 3. Constructive notice, in its nature, is no more than evidence of notice, the presumptions of which are so violent, that the Court will not allow even of its being controverted (/); but courts of equity will not extend the doctrine to cases to which it has not hitherto been held applicable. The question upon constructive notice is not whether the purchaser had the means of obtaining, and might, by j)rudent caution, have obtained the knowledge in question, but whether the not obtaining it was an act of gross or culpable negligence (f/). 4. Notice to the purchaser's counsel, attorney, or agent (A) (I), ^x/^Vv/^i 111 though himself the vendor (^), or although he be concerned for both // /77Z vendor and purchaser (A), binds the latter, and notice to a solicitor in ' the country is notice to a purchaser, although he acts by a town '• /SdJ agent (Z), and notice to the town agent of the purchaser's attorney in ., /^3Z the country would also be notice to the purchaser, and this prevails /r^ although the purchase is made under the direction of a court of / equity ; and infants are equally bound wdth adults (m). 5. And if a person, with notice of any claim, purchase an estate in the name of another without his consent, yet if he afterwards assent to it, he is bound by the notice to his agent (ji. ) So a man cannot (c) JoUand v. Stainbridge, 3 Ves. 478 ; Trappes, 3 Sim. 301 ; Lenehan v. M'Cabe, Fry V. Porter, 1 Mod. 300; Butcher v. 2 Ir. E. R. 342; Att.-geii. v. Gower, 2 Eq. Stapeley, 1 Ver. 363. Ca. Ab. 683, pi. 11 ; Amb. 626. {d) East Grimstead's case, Duke, 640; (/) Sheldon v. Cox, Amb. 624; Diyden the cases bif. as to uotice to an agent; ?». Frost, 3 My. & Cra. 670 ; Majoribanksw. 1 Ves. j. 42.5 ; Hamilton v. Royse, 2 Sch. & Hovenden, 6 Ir. E. R. 238 ; Dru. 11 ; Ken- Le. 327; Mountford v. Scot, 3 Mad. 34; nedy ». Green, 3 My. & Ke. 699; Hewitt r. 1 Tur. & Rus. 274. Loosemore, 9 Ha. 449 ; Robinson v. Briggs, (e) Barnhart v. Greenshields, 2 Eq. R. 1 Sma. & Gif. 188; Tucker v. Henzill, 4 Ir, 12-21, per Cur. 9 Moo. P. C. 18. Ch. Rep. 313 ; Spencer v. Topham, 2 Jur., (f) 2 Anst. 438. ' N. S., 865. (y) Ware v. Ld. Egmont, 4 De. Ge. Mac. (k) Le Neve v. Le Neve, 3 Atk. 646. & Gor. 473; Att.-gen. v. Stephens, 6 De (/) Non-is v. Le Neve, 3 Atk. 26. Ge. Mac. & Gor. 148. (»«) Toulndn v. Steere, 3 Mer. 210. {h) Newstead v. Searles, 1 Atk. 265; («) Merry u. Abney, 1 Ch. C 38 ; 1 Eq. Le Neve v. Le Neve, 3 Atk. 646; 1 Ves. Ca. Ab. 330; 2 Free. 151 ; Nels. C. R. 59; 64; Brothcrton v. Hatt, 2 Ver. 574 ; Ash- Jennings r. Moore, 2 Ver. 609; 1 Bro. P. ley V. Baillie, 2 Ves. 368; Maddo.x v. Mad- C 244. do.v, 1 Ves. 61 ; 3 Ch. C. 110 ; Tunstall v. (I) The knowledge of the vendor's agent ought to be binding on the principal ; but this in a case with powerful circumstances to entitle a purchaser to relief, was held otherwise in Gibson v. D'Este, 1 H. of L. Cas. 605 ; Sugd. H. of L. 614. en. 24. s. I.] OF NOTICE. 623 elude the effect of having notice, by procuring the conveyance to be made to a third person (o). If a man's wife was a trustee of the pro- l)erty, he is answerable for her, and bound by her liabilities, although he claim as a purchaser under a settlement on the marriage without notice (/j). 6. Although the counsel, attorney, or agent be employed only in part, and not throughout the transaction, the purchaser is equally affected by the notice. This was doubted in one case (. Powell, T. Vac, 17.58, MS.; 1 Ed. 51, E. E. 13, as noticed in 1 Ha. 63, 9 Moo, nora. Howorth v. Deem ; Malpas v. Ack- P. C. 34, land, 3 Rus. 273; Buckley r. Lanauze, 1 (a) Barnhart v. Grcenshields, 9 Moo, P. Rep. t. Plunk. 327 ; Da-vies v. Thomas, 2 Yo. C. 18, 2 Eq. R. 1217, yer Pemberton Leigh, & Col, 234; Webb v. Lugar, 2 Yo. & Col. P. C. 247; 1 Ha. 69; 1 Phil. 254; 2 Ha, 257; {b) Bisco V. Earl of Banbury, I Ch. C. Nixon v. Robinson, 2 Jo. & Lat. 14. 87 ; Moore r. Bennett, 2 Ch. C. 246; Fer- (c) Tanner v, Florence, 1 Ch. C. 259; 634 OF NOTICE. [cii. 24. S. I. 38. And where a mortgage was made by a devisee in fee, who was subject to debts and legacies, and the legacies were left as charges on the estate by the mortgage, and a second mortgage was made to a third person, which referred to the first mortgage, but did not notice the charge of the legacies ; yet the second mortgagee was held to have notice of it, because she could only be considered as a mortgagee of the equity of redemption, which remained in the mortgagor after the execution of the first mortgage (a?). 39. Where a purchaser from an heir-at-law, with notice of a will by the ancestor, is ignorant of the contents of the will, or is misled by the heir-at-law, it seems that if the testator has been long dead, and the heir long in possession, and the other circumstances sucli as to leave the purchaser in credit for perfect good faith, equity would not inter- fere against the legal estate only because the purchaser had notice of a will respecting which he was misled. If the death of the testator were recent, other circumstances might arise aiFecting the purchaser with the imputation of fraudulent blindness {e). We should distin- guish between general notice of an instrument which may bind a pur- chaser to all its contents, and notice given by a purchaser of a chose in action to trustees, in which he omits to mention a portion of the interests secured to him, which latter would only bind a subsequent bond Jide purchaser to the extent of the interest mentioned in the notice (/). 40. Where in a deed of conveyance to himself obtained by a solici- tor by fraud there was an unusual indorsement of the receipt for the consideration-money, so that it might have been fraudidently used ; it was held that this was notice, as it naturally led to inquiry. And as the solicitor who committed the fraud acted for a morta;ao;ee of whom he borrowed money, the latter was held bound by this con- structive notice to his solicitor (^), although he was also his mortgagor. This is a case of great nicety and difficulty. 41. In a later case (A) in which the consideration was paid partly in money and partly by a bill, which by the deed were acknowledged to be " in full satisfaction for the absolute purchase," an opinion was expressed, on the authority of Kennedy v. Green, that a subsequent purchaser was, from the form of the deed, and the bill not having come to maturity, bound to inquire of the first seller whether his lien for the purchase-money had been discharged, or whether the contract Taylor v. Stibbert, 2 Ves. j. 437 ; Hall v. (/) In re Bight's trustees, 21 Bea. 430. Smith, 14 Ves. 4'26; Daniels v. Davison, (gr) Kennedy ?j. Green, 3 My. & Ke. 399 ; 16 Ves. 249; which have overruled Philips 1 Ha. 57; 1 Phil. 256; Neesom v. Clark- V. Redhil, 2 Ver. 160 ; Stewart v. Marquis son, 2 Ha. 163; Atkins v. Delmage, 12 Ir. of Conyngham, 1 Jr. C. R. 545; Drysdalo E. R. 1; Hiorns v. Holtorn, 16 Bea. 259; V. Mace, 2 Sma. & Gif 225. Robinson v. Briggs, 1 Sma. & Gif. 188. (rf) Eland j>. Eland, 1 Bea. 235; Hoper. (A) Frail v. Ellis, 16 Bea. 350. There Liddell, 21 Bea. 183. was a parol agreement for a lien, and the (e) Jones r. Smith, 1 Ha. 60, 61, jue?- Cur. purchaser had notice of it. CH. 24. S. I.] OF NOTICE. 635 was to take the bill as a substitution for the money. But it is hard to bind purchasers by such ambiguous words, and a disinclination has been shown to extend this doctrine. Upon the sale of an advowson, a sub -purchaser was not deemed to have had constructive notice of the original seller's alleged lunacy, from the circumstances, — 1, that no receipt for the purchase-money (which was paid) was endorsed on the deed ; 2, the non-residence of the incumbent ; and 3, the alleged inadequacy of the consideration (i). 42. If a man agrees to purchase under limitations in a deed, which makes it necessary upon that transaction for him to look into that deed, he must be taken to have seen tlie whole, and must conse- quently be presumed to have taken notice of every thing contained in it affecting his purchase {k). 43. So if an estate be subject to incumbrances, and be given by the owner in consideration of another estate given to him, the latter estate is subject in equity to the incumbrances charged at law on the former, and a purchaser, with notice of the transaction, is lial)le to the incumbrances, although he had not notice of them. This was decided by Lord Redesdale, who considered it sufficient that the pur- chaser, by notice of the deeds, had notice of the equity, although he had not notice of the particular incumbrance. This, he said, was an equity of which every purchaser under a settlement must have notice ; for it is a clear rule, that a man cannot claim under a deed, and avoid the deed ; he must submit to the whole ; and he has notice of every thing of which the vendor had notice, so far as concerns that deed (Z). This, it may be observed, was an opinion not intended to decide the case, although it was acquiesced in. It carries the rule much farther, it is apprehended, than is warranted by either principle or authority (?w). 44. But if a purchaser had notice only that a draft of a deed was prepared, and not that the deed was executed, he would not be bound by the notice, although the deed really was executed ; for a purchaser is not to be affected by notice of a deed in coritemplation (n). 45. Where a husband has not performed a marriage agreement on his part, he is not entitled to claim the benefit of it (o), and a purchaser from him of the consideration for the settlement by the wife, with notice of the deed, will be bound by the same equity as the husband was {p). 46. So where mutual settlements had been made by husband and wife previously to marriage, and the wife surviving, had fraudulently (0 Greenslade v. Dare, 20 Bea. 284. (71) Cothay v. Sydenham, 2 Bro. C. C. (k) Hamilton v. Royse, 2 Sch. & Le. 326. 391 3 1 Ha. 63 ; 1 Phil. 256. (l) Hamilton v. Royse, 2 Sch. & Le. 31.5; (0) Mitford v. Mitford, 9 Ves. 87 ; Basevi 4 Ir. C. R. 415; Harryman v. Collins, 18 r, Sen-a, 14 Ves. 313. Bea. 11 ; sup. (p) Harvey v, Ashley, 2 Sch. & Le. (m) Llo. & Goo. ^Sugd. 263,2(34; Power 328. V. Standish, 8 Ir. E. R. 526. 636 OF NOTICE. [CH. 24. S. T. obtained the funds settled by her, a rent-charge secured to her by a separate deed npon the husband's estate was held liable to make good the loss occasioned by her fraud, and a purchaser from her of the rent-charge, with notice of the transaction, was held equally liable (^). But there the purchaser had notice of all the facts. 47. But the recital in a deed of a fact, which may or may not, according to circumstances, be held in a court of equity to amount to a fraud, will not affect a purchaser for valuable consideration denying actual notice of the fraud (r). Nor will circumstances amounting to a mere suspicion of fraud be deemed notice thereof to a purchaser. This question constantly arises in practice, on sales by tenant for life and a child to whom he has appointed the estate under an exclusive power of appointment amongst his children. If there was any under- hand agreement between the father and son, the power Avould be deemed fraudulently executed, and the other children might be re- lieved against it. The difficulty on the part of a purchaser is to ascertain wdiat circumstances, independently of a direct statement of the fact, are suflicient to fix the purchaser with presumptive notice of fraud. Lord Eldon has greatly relieved this difficulty by deciding, that the mere circumstance of the father first contracting to sell the estate, and then appointing to one child, who joins in the sale, will not affect the purchaser where the contract appears to have been fair, and the purchase-money to have been paid to all the parties, and there is nothing to show that the son was not to receive a due proportion of the money {s). 48. It has been said that the court-rolls are the title-deeds of copyholds, and a purchaser is affected with notice of the court-rolls as far back as a search is necessary for the security of the title (t). But this does not accord with the general rule as to judgments, regis- tered deeds, and the like, and would lead to great inconvenience in practice. It frequently happens that purchasers of property of small value accept the title of a great family under the last settlement, and it would be impossible to hold that they were bound by notice of the contents of the early deeds if not referred to by the settlement. A purchaser of a copyhold estate is furnished with an abstract of the surrenders and admissions, and requires copies of the material ones ; but, in point of fact, the court-rolls are scarcely ever searched by a purchaser, and it has always been understood, in practice, that he is not bound by notice of their contents. 49. But a steward of a manor who has admitted mortgagees cannot {q) Woodyatt v. Gresloy, 8 Sim. 180. Vcs. 402; Bugdcn v. Bignold, 2 Yo. & Col. (/•) Kenuey v. Browne, 3 Ridg. P. C. C. C. 377, conlra; sec as to a deposit of 512; 17 Ves. 293. copy of court-roll, Tylce r. Webb, Bea. (*•) M'Quecn tJ. Farquhar, 11 Ves. 4G7. Sf/i; 14 Bea, 14; as to relief against the {t) Pearce v. Newlyn, 3 Mad. 18G; 18 solicitor. en. 24. S. I.] OF NOTICE. 637 afterwards take a mortgage lilmself, and, alleging want of notice, buy- in the first, and so exclude the mesne incumbrances (u). 50. If a purchaser liave notice that the title is a mortgage one, he must run the risk whether it is redeemable or not (x). 51. The better opinion is, that being a witness to the execution of a deed will not of itself be notice ; for a witness, in practice, is not privy to the contents of the deed (2/). This question might arise between a purchaser who had, previously to his purchase, attested the execution of a deed relating to the estate, and the person in whose favour the deed was executed. But such a purchaser acting bondjide would not incur any risk. 52. Where a settlement Is made in pursuance of articles, but the estate is, contrary to the intention of the parties, limited so as to enable the parent to dispose of it, the Court will rectify the settle- ment according to the intention, in favour of the issue, as between themselves, or as between themselves and persons claiming under the parent without consideration ; but this has never yet been done against a purchaser (z). In Senhouse v. Earle (a), Lord Hardwicke drew a distinction between ancient articles and modern ones, and expressed his opinion, that in the case of ancient articles the pur- chaser should not be disturbed, because modern methods of convey- ancing were not to be construed to affect ancient notions of equity ; but in case of notice of modern articles, he thought the Court ouo-ht to carry them into execution against a purchaser. But in a later case (b), Lord Northington seemed rather of opinion that no relief should be granted against a purchaser ; but this case is not satls- lactory, as the language attributed to the Chancellor, on the principal question in that case, is not consistent with the prior authorities. Of course a purchaser cannot be advised to accept a title dependlno- on a settlement made in pursuance of articles, but not framed accord- ing to the general rules of equity ; and, certainly, a court of equity would not compel a purchaser to take such a title, although no relief might be granted to his prejudice if he actually had purchased. (u) Brothers v. Bence, Fitz. 118. Dow, 224, 210 ; Sugd. H. of L. 70; Abbott (.r) Hansard v. Hardy, 18 Ves. 462. v. Geraghty, 4 Jr. C. L. Rep. 15. {y) Mocatta v. Murgatroyd, 1 P. Wms. (~) Warrick v. Warrick, 3 Atk. 291 . 393; Welfordr. Bcezlcy. 1 Ves. 6; Beckett (a) Amb. 285. V. Cordley, 1 Bro. C. C. 357; 1 Ves. j. 55; (6) Cordwell r. Mackrill, Amb. 51 k}i.ii: Harding- u. Crethorn, 1 Esp. 60 ; Holmes v. 2 Ed. 347 ; Hardy t'. Reeves 4 Ves. 460- distance, 12 Ves. 279; Biddulpli v. St. 5 Ves. 420; Parker ij. Brooke, 9 Ves. 583 ; John, 2 Sch. & Le. 521 ; Reed v. WilHams, Matthews v. Jones, 2 Ans. 590; Davies v. 5 Tau. 257; 6 Dow, 224; Doe v. Burdett, Davies, 4 Bea. 54. 1 Per.. & Da. C70 ; Rancliff v. Parkyns, G 638 OF THE PROOF OF NOTICE. [cn. 24. s.ii. SECTION II. OF THE PROOF OF NOTICE. 1 . Not to be proved by cotoisel, &fc. 2. Nor can he produce ike purchaser's documents. \ Opinions may be withheld : old cases. 4.j 5, Communications to attorney for both parties — Communications by mistake to person not an attorney, not pro- tected. 6. Attorney a icitness must prove deed — Map. 7. Communications upon sales and pur- chases protected : advising on title. 8. Purchaser how charged in account. 1. The counsel, attorney, or agent of the purchaser cannot be admitted to prove notice, (aid this is the privilege of the client, not of the counsel or attorney ; for it is contrary to the policy of the law to permit any person to betray a secret with which the law has entrusted him {a). 2. And the rule applies of course to documents left in the hands of an attorney belonging to the client (b). But the attorney may be compelled to show the endorsement on the back of the deed for the purpose of identifying the instrument (c). 3. And a purchaser is not bound to produce any legal opinion which he may have taken {d). Even cases which have been long before stated for the opinion of counsel, are protected where the subsequent litigation, although with third parties, is respecting the same subject-matter, and involves the same question (e). 4. In a suit by a purchaser for discovery, after a bill by the seller for specific performance, letters written to the solicitor and statements made for the opinion of counsel by the sellers before the sale were, although confidential communications in one sense, for the attorney (a) Lindsay v. Talbot, Bui. N. P. 284; Wilson v.Rastall,4TermR. 763; 2Esp.716; Wright V. Mayer, 6 Ves. 280 ; Slouian v. Heme, 2 Esp. 6i)5 ; Robson v. Kemp, 5 Esp. 52; Brand r. Ackerman, id. 119; Rex v. Withers, 2 Cam. 578 ; Parkhurst v. Lowten, 2 Swan. 194. (b) Doe V. Seaton, 2 Ad. & El. 171; Chant V. Brown, 7 Ha. 79 ; see Banner v. Jackson, 1 De Ge. & Sma. 472; Volant v. Soyer, 13 C. B. 231. (c) Phelps V. Prew, 3 E. & B. 430. (d) Nias V. Nor. & East. Rail. Co. 2 Ke. 76 ; 3 My. & Cra. 355 ; Bolton v. Corp. of Liverpool, 3 Sim. 483 ; 1 My. & Ke. 88 ; Holmes v. Baddeley, 1 Phil. 476 ; Knight V. Ld. Waterford, 2 Yo. & Col. 37 ; Storey V. Ld. G. Lennox, 1 Ke. 341, 1 My. & Cra. 525; Wright «;. Mayer, 6 Yes. 280; Walker V. Wildman, 6 Mad. 47 ; but see Radcliffe ?-'. Fursman, 2 Bro. P. C. by T. 514; Richai'ds V. Jackson, 18 Ves. 472; Preston v. Carr, 1 Yo. & Jei'. 175; and see 4 Cla. & Fin. 470, 471 ; Bunbury v. Bunbury, 2 Bea. 173; Combe v. Mayor of London, 1 Yo. & Col. C. C. 631 ; Ld. Walsingham v. Goodi-icke, 3 Ha. 122 ; Woods v. Woods, 4 Ha. 83 ; Pearse v. Pearse, 1 De Ge. & Sma. 12; Reynell v. Sprye, 10 Bea. 51 ; Beadon v. King, 17 Sim. 34; Flight v. Robinson, 8 Bea. 22, overruled by Reece v. Try, 9 Bea. 31G; Penruddock v. Hammond, 11 Bea. 59 ; Manser v. Dix, 1 Kay & Jo. 451 ; see Brown v. Oakshott, 12 Bea. 252, as between trustee and cestui que trust. (c) Holmes v. Baddeley, 6 Bea. 521 ; 1 Phil. 476; see 3 My. & Cra. 357, 3.58; Greenlaw v. King, 1 Bea. 137. CH. 24. S. II.] OF THE PROOF OF NOTICE. 639 would not have been permitted to disclose them, ordered to be pro- duced by the sellers. But cases relating to the actual sale, the objections taken by the purchaser to the title, the steps taken by the sellers to clear up the objections, and so on, were considered as com- munications made with reference to the dispute, which resulted in the litigation, and therefore protected. And so where cases laid before counsel in the progress of the cause with reference to the matters in dispute (/). But the learned judge who made this deci- sion in a later case yielded to higher authority and refused to order the production of any cases or opinions prior to the litigation (^) ; and the same rule applies to drafts prepared by counsel, and opinions thereon, although all long ante litejn motam (A). 5. Where the same attorney is employed for both seller and pur- chaser, the privilege is confined to such communications as are made to him by either party in the character of his own attorney only (i). A communication by mistake to a person not actually an attorney is not protected (Jt) ; and an attorney may give evidence of the time of executing a deed (Z). 6. So, if an attorney put his name to an instrument as a witness, his signature binds him to disclose all that passed at the time re- specting the execution of the instrument ; but not what took place in the preparation of the deed, or at any other time, and not con- nected with the execution of it. Every person who claims an interest in the property has a right to call upon the attorney, as being the attesting witness {m) ; nor does this privilege extend to communica- tions from collateral quarters, although made to him in consequence of his character of attorney ; the privilege is restricted to communica- tions, Avhether oral or written, from the client to his attorney in)^ but it is not necessary that a cause should have commenced (o). If a map is given to him to show the extent of the property to be sold, it is no longer protected (/>). 7. The privilege is not limited to communications made in relation to a suit in existence or expected. Communications made in relation to the sale and purchase of estates, reserving a bidding, and other matters connected with the sale, are protected (§-). So is knowledge (/) Flight V. Bobinson, 8 Bea. 22. (n) Spenceleyr.Schulenburgh, 7 Ea.357; {(j) Reece v. Try, 9 Bea. 316 ; see Peai-se Knight v. Ld. Waterford, 2 Yo. & Col. 37 ; V. Pearse, 1 De Ge. & Sma. 12; Penrud- Bramwell v. Lucas, 2 Bar. & Cres. 745; dock V. Hammond, 11 Bea. 59. Sawj-er v. Birchmore, 3 My. & Ke. 572. {h) Manser v. Dix, 1 Kay & Jo. 451. (o) Clark v. Clark, 2 Moo. & Mai. 3; Cla- (i) Parry v. Smith, 9 Mee. & Wei. G31 ; gett v. Phillips, 2 Yo. & Col. C. C. 82. consider Warde v. Warde. 1 Sim. N. S. 1 8. (p) Doe v. Ld. Hertford, 13 Jur. 632, Q. B. {k) Fountain u. Young, GEsp. 113; Bun- (r/) Mynn v. Joliffe, 1 Moo. & Rob. 325; bury V. Bunbm-y, 2 Bea. 173; see Calley v. Taylor v. Blacklow, 3 Bin. N. C. 235; see Richards, 19 Bea. 401. Ld. Walsingham v. Goodricke, 3 Ha. 122; {I) Ld. Say and Seal's case, 10 Mod. 41. Carpmeal v. Powis, 1 Phil. 687 ; Hawkins (m) Robson V. Kemp, 5 Esp. 52 ; Doe v. v. Gathercole, I Sim. N. S. 150; Goodall Andi'ews, Cow. 845. v. Little, id. 155. 640 OF PLEADING A PURCHASE. [cn. 25. acquired in advising on a title. And an attorney in the habit of lendino- the money of his clients, who peruses the abstract of a bor- rower with a view to a loan, falls within the rule (r). 8. Although a purchaser being fixed with notice may be decreed to account for the rents received by him, yet he will not, like a mort- gagee in possession, be made responsible for what, without his default or neo-lect, he might have received, and he will be entitled to all just allowances. And if by his answer he admit that he has for the time past been in possession or in receipt of the rents, yet he will not be charged with rents not actually received by him (s). (/■) Doe r.Watkins, 3 Bin. N. C. 421 ; Herring v. Clobery, Jones v. Pugli, 1 Phil. 91, 96. (s) Howell V. Howell, 2 My. &; Cra. 478. CHAPTER XXV. OF PLEADING A PURCHASE. 1 . Ground of plea. 3. Must he sworn : anstver overruling or supporting plea. 4. Deeds of purchase to be stated. 5. Averment of seisin. G. And of possession : reversion. 7. And of payment of price. 8- And denial of notice. 9. And particular instances to he denied specially : possession of papers. 10. Where general denial of notice sufficient. 11. Notice to be denied hy answer also. 13. Plea no protection where want of due diligence. 14. Decree after an issue and then appeal to Dorn. Proc. 15. Plea protects against a legal title. IG. But relief given to a legal mortgagee. 17. And injunction to prevent the institution of a clerk. 1. " Supposing a plaintiff to have a full title to the relief he prays, and the defendant can set up no defence in bar of that title, yet if the defendant has an equal claim to the protection of a court of equity to defend his possession, as the plaintiff has to the assistance of the Court to assert his right, the Court will not interfere on either side. This is the case where the defendant claims under a purchase for valuable consideration, without notice of the plaintiff's title, which he may plead in bar of the suit (a)." 2. The principle of this plea, Lord Eldon observes, Is this : " I have honestly and bo7id fide paid for this estate, in order to make myself the owner of it ; and you shall have no information from me as to the perfection or imperfection of my title until you deliver me from the peril in which you state I have placed myself in the article of purchasing bona fide (Z>)." 3. This plea is a peremptory plea, and must be sworn by the (a) Mitf. Plead. 2d edit. p. 215; Gougli V. Stedman, Fincli, 208; Purcell v. Kelly, Beat. 493. (6) Wallwyn v. Lee, 9 Ves. 24; Ld. Rancliffe v. Parkyns, 6 Dow, 230. CH. 25.] OF PLEADING A PURCHASE. 641 pleader (c). It must be put in ante litem contestatam, because it is a plea Avhy an ansAver should not be put in ; and, therefore, if a defen- dant answers to any thing to which he may plead, he overrules his plea {d), but he may answer any thing in suhsidium of his plea, as he may deny notice in his answer, which he may deny also in his plea ; because that is not putting any thing to issue which he should cover by his plea from being put in issue, but it is adding, by way of answer, that which will support his j^lea, and not an answer to a charge in the bill, which by the plea he would decline. But the pur- chaser must protect himself by plea, for if he answer he is bound to answer fully (), and {l) Trevanian v. Mosse, 1 Ver. 246 ; 3 Mildmay r. Mildniay, Amb. 767 ; Bullock Ves. 32, 226 ; Lady Lanesborough v. Ld. v. Sadlier, Amb. 764. Kilmaine, 2 Mol. 403. (m) Moor v. Mayhow, 1 Ch. C. 34; Wag- {m) Hughes v. Garth, Amb. 421. staffs. Read, 2 Ch. C. 156. (?0 Seymour v. Nosworth, 2 Free. 128 ; {x) Lady Bodmiu v. Vendebendy, 1 Ver. 3 Ch. R. 23 ; Nels. C. R. 135. 179; Anon. 2 Vent. 361, No. 2. (o) Moor V. Mayhow, 1 Ch. C. 34 ; 2 Atk. (//) Moor v. Mayhow, 1 Ch. C. 34 ; Story 241 ; Molouy v. Kernan, 2 Dru. & War. 31. v. Ld. Windsor, 2 Atk. 630 ; Att.-gen. v. (p) Maitland v. Wilson, 3 Atk. 814. Gower, 2 Eq. Ca. Ab. 685. (. Price, 3 P. Wins. 244, n. (/) ; 6th reaol. Brace 1 Ver. 185. V. Duchess of Marlborough, 2 P. Wms. (i) Harris v. Ingledew, 3 P. Wms. 91 > 491 ; Hughes v. Garner, 2 Yo. & Col. 328. Meadows v. Duchess of Kingston, Mitf. {d) Meder v. Birt, Gilb. E. R. 185 ; Rad- Plead. 2d edit. 216, n, ford V. Wilson, 3 Atk. 815; Jerrard v. (k) Anon. 2 Ch. C. 161. Saunders, 2 Ves. j. 187 ; 4 Bro. C. C. 322 ; (l) Coke v. Wilcocks, Mose. 73. 6 Dow, 230 ; Foley v. Hill, 3 My. & Cra. 478. (m) Harris v. Ingledew, 3 P. V\^ms. 91 ; (e) Hardman v. Ellames,, 6 Sim. 650 ; Eyre v. Dolphin, 2 Bal. & Be. 102. 2 My. & Ke. 732 ; see since the late orders, (?j) Williams v. Williams, 1 Ch. C. 2. Gordon v. Shaw, 14 Sim. 393. (o) Hardy v. Reeves, 5 Ves. 426. (/) Ovey V. Leighton, 2 Sim. & Stu. 234. (p) Jackson v. Rowe, 2 Sim. & Stu. 472, (g) Pennington v. Beechey, 2 Sim. & Stu. heard upon appeal ; Hamilton v. Lyster, 7 282 ; Tlu-ing v. Edgar, 2 Sim. & Stu. 274. Ir. E. R. 660. S S2 641 OF PLEADING A PURCHASE. [cH. 25. the purchaser, and he then carries an appeal to the House of Lords, it will be dismissed, and the decree affirmed without further inquiry (q). 15. The title of a purchaser for valuable consideration without notice is a shield to defend the possession of the purchaser (;•), not a sword to attack the possession of others (s). It is clear that it will protect his possession from an equitable title, although even that has been sometimes questioned {t) : and it now seems to be settled that it will avail against a legal title. In Burlase v. Cooke {u), Lord Nottingham held the plea to be good against a legal estate ; but in the subsequent case of Rogers v. Seale (x), he is reported to have been of a different opinion, and to have decreed accordingly. But both these cases appear to be very ill reported. In Parker v. Blythmore (?/), the Master of the Rolls thought the plea good against a legal estate. But in Williams v. Lambe (z), upon a bill filed by a dowress against a hondjide purchaser, without notice of the marriage. Lord Thurlow overruled the plea. He said that the only question was, whether a plea of purchase without notice would lie against a bill to set out dower ; that he thought where the party is pursuing a legal title, as dower is, the plea did not apply, it being only a bar to an equitable, not a legal claim. In a later case (a). Lord Rosslyn considered it impossible that Rogers v, Seale could be the decision of Lord Not- tingham, and decreed that the plea could stand against a legal as well as an equitable title. Lord Rosslyn did not, however, mention the case of Williams v. Lambe, which is against the doctrine he laid down; nor did he notice the case of Parker v. Blythmore, which is in favour of it. And in a late case, the Master of the Rolls, following the case of Williams v. Lambe, was of opinion that the defence was of no avail against a legal title {h). Upon principle, it would seem that Lord Rosslyn's decision was the correct one, and it has accord- ingly been since acted upon (c). 16. In a late case {d), where a legal mortgagee filed a bill of fore- closure against a purchaser without notice, the Master of the Rolls, not meaning to disturb the doctrine of equity with respect to pur- chasers for value without notice, or to deny that the title of the latter could be used as a defence against a legal title, held that a legal mort- gagee is entitled to enforce his equitable remedy incidental to his {q) Lewis v. Fielding, Coll. P. C. 301. (c) Bowen v. Evans, 1 Jo. & La. 263; (?•) Patterson f. Slaughter, Amb. 292. Joyce v. De Moleyns, 2 Jo. & La, 374; see*'^ (5) 3 Ves. 225. Penny v. Watts, 1 Mac. & Gor. 150; 2 De (0 1 Bal. & Be. 17L Ge. & Sma. 501 ; Att.-gen. v. Wilkins, 17 (m) 2 Free. 24. (x) 2 Free. 84. Bea. 285; Lane v. Jackson, 20 Bea. 535; (y) 2 Eq. Ca. Ab. 79. Hope v. Liddell, 21 Bea. 183; 2 Jur., N. S., {z) 3 Bro. C. C. 264. 105. (a) Jerrard v. Saunders, 2 Ves. j. 454. {d) Finch v. Shaw, Colyer v. Finch, 19 {b) Collins i>. Archer, 1 Rus. & My. 284; Bea. 500; 2 Eq. Rep. 1117, atfd. D. P. Payne v. Compton, 2 Yo. & Coll. 457. 185G. CII. 25.] OF PLEADING A TURCHASE. 645 security against a subsequent purchaser or mortgagee, without notice (c), and this has been affirmed in D. P. Yet no doubt the decree gave equitable relief against such a purchaser. 17. And where a bill was filed to set aside a sale and conveyance of an advowson, and a subsequent purchaser, who was made a de- fendant, set up as a defence that he was a purchaser for value witliout notice, yet an injunction to prevent the institution of a clerk presented by the latter was granted, for the cause must proceed to a hearing, and therefore the jjroperty should be preserved till then (/). (e ) Finch I?. Shaw, Colyei- r, Fmch, 19 (/■) Greensladew.Dare,17Bea.502. The Bea. 500; 2 Eq. Rep. 1117, affd. D. P. bill was ulthnately dismissed with costs, 20 1850. Bea. 284. S S3 L 646 ] APPENDIX. No. I.— Pacncd. The purchaser agreed witli the heir at law, in court, to pay an additional 1,800 I. Lord Hardwicke observed, that in the west of Eng- land estates were constantly let out upon lives, and small conventionary rents reserved, but the chief profits arose from the dropping in of lives, whicli was not considered as accidental, but as part of the annual profits of the estate. The pur- chaser, he oI)served, had been obstructed in taking possession, and the estate was worth a great deal more by the dropping in of lives. The question tlien was, who was to have this advantage, or what recompense was to be made for it. After reierring to purchases by private contract, he said that the present was a case of a difi'erent nature, being a bidding under a decree of the Court, and upon which the Court must finally make a determination. The purchaser had ])lainly a consider- able advantage by the dropping in of lives, and had it not been for the agreement to pay the 1,300 I. he should have inclined to direct an inquiry what interest was proper to be paid by the purchaser; for if the Court were not to give such direc- tion, there would be a manifest injustice. But as the purchaser had agreed to pay 1,800 I. more, he did think he was entitled to the advantage arising from the drop- ping in of the lives. In this case the purchaser was not in defiiult ; he was desi- rous of taking possession, but was kept out by an incumbrancer ; yet, as there (/() See also 11 Boa. 582. (i) Moxhay v. Inderwick, 1 De Ge. & Sma. 708. {{) 2 Atk. 489. No. II.] INTEREST, &C. 653 was a benefit gained to the estate, and it was not alleged that the purchaser had not the benefit of the purchase-money, it was considered that he ought to pay interest, but the liability was not carried beyond interest. The case of Blount v. Blount, before Lord Hardwicke, at a later period, is not accurately reported (l). The facts, as they are collected from the statement and the judgment, were, that a man created a 1,000 years' term for particular pur- poses, and the trustees did not take possession on the grantor's death. The son, as heir at law, therefore took possession, and the estate having been put up to sale by the Court, in a suit instituted by him for payment of the father's debts, he bought the estate, and his purchase Avas confirmed absolutely ; and four years afterwards an application was made that he should pay interest from the time the report was so confirmed. At the time he took possession, a small part of the estate consisted in rackrents, but the greatest part was standing out in reversions upon lives ; two of these reversionary estates had fallen in since the purchase, and the purchaser had accounted for profits before the Master for a year after being con- firmed the purchaser. Lord Hardwicke was of opinion that the purchaser was not to pay interest. He observed, that it was said the purchase was of a reversionary estate, but it was not so ; the purchaser bought a 1,000 years' term, and was him- self owner of the reversion ; he was not in possession under the purchase, but as heir at law of his father, on the trustees of the term refusing to take possession : no possession was delivered to the purchaser by virtue of his purchase, and he loas subject to an account, and therefore no pretence for making him pay interest. But he directed the Master to inquire Avhat increase of value had arisen by the falling in of lives since the purchase of the estate, and what had been received for heriots by the purchaser, or for fines in letting out estates again ; and he declared they ought to be considered as part of the profits of the trust estate of the 1,000 years, and the purchaser was ordered to account for the same in a subsequent account, and to proceed in the purchase. This case, therefoi-e, altogether depended upon the possession having been referred to the 1,000 years' term, under which indeed the purchaser had acted, for he had already accounted for the profits down to a period a year beA'ond that when his purchase was confirmed absolute ; and he neither paid interest nor received any benefit from the wearing or dropi>ing of lives before he completed his purchase. Lord Hardwicke, however, in this case made some general observations. He said the estates consisted chiefly of lifeholds, and therefore it was insisted, as they were perpetually falling in, the purchaser ought not to run away with the benefit of this and yet not pay interest for the purchase-money. And to be sure, Lord Hardwicke added, in general this may be right. Where estates have dropt in between a person's being reported the best purchaser by the Master, and his taking possession, the Court have either directed a purchaser to make some compensation in consideration of the estates being bettered, or otherwise to go before a Master again, and the estate to be put up for a new bidding. — As to what had been said of the advantage a purchaser receives from wearing out of lives, he never knew the Court take this into consideration as a reason for a purchaser's paving interest. But these dicta, if they are rightly reported, do not accord with the law of the Court, which is settled as before stated — the purchaser from the time the report is confirmed is entitled to any benefit from the dropping of lives, and is liable to pay interest from that period. This was decided by Lord Thurlow in Child v. Lord Abingdon (m), where the property purchased from the Court was a reversion upon an estate for lives, on which there was one life remaining at a very trifling rent : the purchaser was re- ported the best bidder before Christmas 1788, and in February 1790, he having taken no steps to complete the purchase, an application was made that he might pay interest from the time of the report, and Lord Thurlow said he must pay (0 3Atk.63C. (w) I Ves.j.94. 654 DROPPING OF LIVES. [^PP- interest. A man cannot purchase a dry reversion, and then lie by for years, and expect to pay no more for it then than if he had completed it immediately. In a late case in the House of Lords, where the contract stipulated for a good title on the 1st of May 1813, and that the purchaser should be entitled to the rents from that period, or from such time as the purchase should be completed, and the purchaser having paid part, agreed to pay the remainder of the purchase-money on the 1st of May 1818 ; and as there were many leases for lives, some of which had already dropped, the purchaser agreed to pay the value on such lives, and pro- vision was made for payment to the purchaser and others entitled to the money of interest on the deposit, from the day it was paid to the time of the completion of the purchase. Upon a bill filed l)y the sellers, it was decreed, after the usual references as to the title, that the Master should inquire whether any of the persons for whose lives any part of the estate w^as held on the 29Lh September 1811, had died since that time, and should also inquire how much the value of the estate had been increased by the deaths of such persons. After a long litigation it was established that the title was a good one, and that the sellers were able to make such a title before the commencement of the suit, but that a good title was not shown until several years afterwards (I). After the decree, an order was made (which was reversed for irregularity) for the Master to inquire generally how much the value of the estate had been increased by the wearing of the lives or in- crease of the ages of the persons for whose lives any part of the estates was held. And this was considered in the House of Lords to be correct, without reference to the conduct of the purchaser, and upon the ground that the purchaser could not have the benefit of an increase in the value of the estate without paying interest : it was admitted that if the amount of interest exceeded the increased value, he would only have to pay so much as was equivalent to the increased value (u). It was not, however, possil)le to decide these points, as the order itself was reversed for irregularity ; and upon an appeal to the House of Lords against the original decree, by the sellers, upon the ground that it ought to have directed an inquiry as to how much the value of the estate had been increased by the wearing of the lives, or otherwise that the directions as to the dropping of the lives should be omitted, the original decree was affirmed. It was considered that the parties had stipulated that the rents should be the property of the purchaser only from the time the purchase was completed. It followed, from the reservation of the rents to the vendor, that the purchaser was not to be called upon to pay interest on the purchase-money. The case was decided ujjon the ground that the contract excluded the claim by the seller, of interest, and of the benefit of the increased value by the wearing of the lives (o). The decree of affirmance in the Lords of the original decree of course overruled tJie view expressed by the law-Lords in the appeal from the interlocutory order {p). The Court below afterwards, upon further directions, observed that as the property would, by the conveyance, in truth be placed in the purchaser's possession ab antecedenti by the intermediate wearing of the lives, it was necessary, in order to do equity between the parties, tliat the conveyance should be dated from the earliest period when a good title was shown by the sellers, and that they sliould be entitled to the principal mone}', Avith interest, and the purchaser to the rents and profits from that earliest date : therefore, the period when the Master found a good title had been shown was taken for the commencement of the several rights to interest, and the rents and pi'ofits. But the seller was also decreed to be entitled to the increased value arising from the drojyping of lives, between the period up to which the parties had agreed (n) Cliampernowne v. Brooke, 3 CI. & Fin. 4. (/j) Sugd. II. of L. GG6. (o) 4 CI. & Fin. 589; 3 Yo. & Col. 510, 511. (I) This is not accurately stated in 3 CI. & Fiu. 11. No. II.] INTEREST, &C. 655 to a fixed compensation (I) and the period when the interest was to commence. The principle on which this increased value was to be calculated was not settled (q). It seems clear that the allowance ought not to exceed the amount of interest on the purchase-money, for if it should, the vendor would derive a greater benefit from his laches than he would have been entitled to if his title had been ready at the day named (II). The opinion delivered in the House of Lords in the above case was considered to be in opposition to that expressed by Lord Hardwicke in Blount V. Blount, but it was thought that matters of this sort were now better understood. The equity was considered clear, that the purchaser should not be allowed a profit on the pui'chase-money and the advantage of receiving the rent both at the same time (from whatever cause he may have been kept out of possession of the estate), but that the seller should either have interest on the purchase-money or the profits of the land. This, as we have seen, was finally overruled by the House of Lords as applicable to the case before it, the contract having excluded the claim ; but, as a general rule, uncontrolled by the provisions of the particular contract, it is fully warranted by the authorities. (q) Townsend v. Champernowne, 3 Yo. & Col. 505. (I) This was the period when the purchaser received a draft conveyance stating the agreement. (II) The matter was, I am told, at last compromised. -J- [ 656 ] The Appendix to the Eleventh and several preceding Editions contained the following Cases, &c., to which it is considered now necessary only to refer : Nos. 1, 2, 3. Conditions of Sale and Agreements for Sale. No. 4. Bratt v. Ellis (Auctioneer Damages). No. 5. Jones v. Dyke (The like). No. 6. Wyatt v. Allan (Agent). No. 7. Morshead v. Frederick (Purchase by mistake). No. 8. Bill for extending provisions of Stat, of Frauds. No. 9. Ex parte Tomkins (Assignees Bidding). No. 10. Reasons for Appellant, in King v. Hamlet. No. 11. Observations on the Annuity Act. No. 12. Coussmaker v. Sewell (Lost Deeds. Title). No. 13. Clay v. Sharpe (Mortgage. Power to sell). No. 14. Belch v. Harvey (Time. Disabilities). No. 15. The King v. Smith (Purchaser. Crown Debts). No. 16. Att.-Gen. v. Lockley (Trust Estate. Dower). No. 17. Bret v. Sawbridge (Limitations of a term, with a note). No. 18. Forshall v. Cole (Purchaser. Notice). No. 19. Burton v. Todd (Purchaser. Rent and Interest). No. 21. Rea v. Williams (Joint Purchase). No. 22. Lechmere v. Lechmere (Satisfaction of Covenant). No. 23. Special verdict in Fairfield v. Birch (Remainders to Collaterals). No. 24. Sloane v. Cadogan (Voluntary Settlement). No. 25. Bury v. Bury (Notice to a Purchaser). No. 26. Of presuming a surrender of Terms (All the Cases considered). [ 657 ] I N D E X. ABANDONMENT, Page. of contract, good defence in equity, 139 of contract, its operation on seller's Avill 156, 160 letter written on, not a ratification, 112 ABATEMENT, in price for misrepresentation, 269-271 to one joint-purchaser, enures to both ...... 575 of rent, agreement must be in writing - - - - - 121 ABSENCE, after seven years, death presumed, 847 ABSTRACT, charge for drawing and copy - 337 of title to be perused before sale - 7 where a perfect abstract must be delivered - - - - 17, 229 false abstract does not bind pur- chaser - - - - - 18 imperfect deeds when produced may be objected to - 289, 290, 855 cannot supply the want of an agreement - - - - 113 delivery of, not a part perform- ance - - - - - 128 non-delivery, not waived, where, 151 receipt of, where a waiver of time, 224 if not ready at the day, vendor can- not enforce contract at law - 217,224 but equity will relieve, Avhere, 220, 224 long possession of, without objec- tion, acceptance of title - - 295 acceptance of title on abstract confined to it - - - - 289 statements in, as to deeds, binding, if no objection - - - - ib. showing bad title, purchaser not bound by filing a bill - - 294 no inquiry whether perfect or de- ficient allowed _ - _ 295 how to be prepared - - 336, 337 - of deeds must be furnished - ib. of a leasehold title - - 308, 340 of an exchanged estate - - 311 ABSTRACT— contintied. Page, of an inclosure - -311,337,338 of exchanged estates under inclo- sure acts - - - - ib. of an act of parliament - -340 of an enfranchised copyhold - 310 of an allotment - - - - 311 of recitals - - - - - 338 of witnessing and granting parts - ib. of parcels - - - - - ib. of title to estate sold in lots - - ib. of exceptions, habendum, and limitations - - - - ib. of limitations, provisoes, powers, and covenants - - - ib. 339 of ceremonies, receipts, registry, intestacy, &c. - - .- ib. 340 of title to terms - - - - 340 of copartner's title - - - 314 of lessor's title - - - - 307 of descent, pedigree - - 340, 844 of wills - - - - - ib. of judgments, crown debts - ib. 414 of decrees - - - - - ib. to be examined with deeds and wills 341 where examination may be delayed - - - - ib. of commissions or fiats in bank- ruptcy - - - - 340, 341 how to be perused - 242, et seq, when complete - - - 351, 354 to whom it belongs - - - 355 where to be examined with deeds, 356, 357 to be verified, although condition against production of deeds, 355, 358 office copies, where to be pro- duced 858 negligently prepared, seller not liable 359 time for j^roduction of, enlarged in equity - - - - ib. where prior title should be pro- duced 306 at what period it should begin - 305 T T 658 I N D E X'. ABSTRACT— continued. Page, of title to lay tithes, modus, ad- vowsoii, &c. - - - - 207 perused by attorney, lie cannot disclose his knowledge - 040, G41 ACCEPTANCE, of offer, what sufficient - 105, 106 ACCEPTANCE OF TITLE, by possession _ - - - 286 by granting a lease - - - 287 by attempted resale - - - 288 by preparation of conveyance - ib. acts of ownership after authorized possession, not an - - - 287 confined to the abstract - - 289 not a waiver of proof of title - ib. not, whilst objection maintained, 290 ACCIDENT, loss by fire before certificate of purchaser confirmed absolute, does not fall on him - - 82, 241 remedy lost by, not restored against a purchaser - - - - C09 ACCOUNTANT TO THE CROWN, purchaser from, how far bound - 436 where sale is under extent, &c. - 437 lands not bound by simple con- tract debt, where - - - ib. parish collector of taxes, not an, ib. 438 his appointment to be registered, 436 treasury may consent to his selling or leasing - - _ _ 437 ACCOUNTANT-GENERAL, notice to him inoperative - - 315 ACCRETION, to estate before conveyance be- longs to purchaser - - - 1 48 ACKNOWLEDGMENT, of title in writing, effect of - 400 written, by mortgagee, its effect, 403 as regards money - _ . 40,5 of deeds - - _ _ _ 433 ACQUIESCENCE, where binding generally - - 211 not binding whilst same embar- rassment continues - - - 212 by vendor in purchaser's objection, 225 in award - - - _ _ 289 in tenure of estate - - 252, 258 ACQ^VIESCENCE— continued. Page. where it is a waiver of objections to title - - - - 289,290 rule of equity not altered b^^ sta- tute of limitations - - - 403 in purchase by a trustee - - 573 ACQUISITION, of title after sale . - _ 297 ACRES, contents of an acre - - 271, 272 what deemed customary, and what statute - - - - - 272 operation of the statute for fixing the measure - - - - ib. where compensation must be made for deficiency - - - 269-271 ACT OF PARLIAMENT, sale under - - - 12, 88, 89 compulsory sale under - - 61 where vendor not bound to procure, 819 abstract of - - 837, 338, 340 expense of private, falls on seller, 448 public, is notice _ - - 624 private, is not notice - - - ib. ACT OF OWNERSHIP, not waiver of objections to title, where 287 fall of underwood - - - ib. stubbing up osier bed, &c. - - ib. re-sale, &c. _ _ _ _ 288 ACTION, on the case for fraud - - - 13 for stipulated damages - - 82 equity cannot relieve against - 185 for general damages, although spe- cial condition - - - - ib. by purchaser for fraud, although money paid - - - - 197 cannot be maintained by pui'- cliaser, having waived an ob- jection in equity - - - ib. by seller or purchaser after bill dismissed - - ib. 197, 198 one, for breach of contract, the only remedy - - - 187, 198 interest, where it can be recovered, 214 expenses of investigating title, re- coverable in - - - SOO-804 by purchaser for non-performance, or for money had and received - 198 nominal damages only where no title - - - - 199, 800 INDEX. 659 ACTION — continued. Page. or where an agent, without fraud, sells without authority, 199 by purchaser, must give vendor a particular of facts - - ib. 200 but not of legal objections, ib. 304 nor of special damage - - ib. by heir or executor of purchaser, where - - - - - ib. by purchaser, should tender con- veyance and purchase -money, 202 unless the title is bad, or vendor cannot perform contract - ib. 203 by vendor, should execute con- veyance, or offer to do so - - 201 unless the purchaser has dis- charged him - _ _ 201 on the case for deceitful represen- tation - - - - - 208 by purchaser, injunction against it, 300 title must be proved bad, in : how to be averred - - - - ib. where restrained after seller's bill dismissed - - - - ib. bill dismissed with liberty to bring an action - - - - ib. title not duubtful at law - - 832 at law, equitable objection may be considered - - - - ib. under new statute of limitations, 395 heir entitled to action for breach in ancestor's lifetime - - 466 seller must lend his name where covenants do not run with land, 481 right of, under covenants for title, not barred by bankruptcy - 499 ADDITIONAL RENT, paid by tenant, its effect in evi- dence . - - . 121, 123 ADDITIONAL SUM, given yearly for improvements, not rent ----- 121 ADEMPTION, of legacy , e ffecte d by sale by testator, 161 ADMINISTRATOR, time runs against him from death, 398 ADMINISTRATION, LETTERS OF, production of, as evidence - 340 mistake in taking out - - - 441 ADMISSION TO COPYHOLDS, fines and expenses - _ - 452 ADOPTION, Page, of act of alleged agent - - 120 AD VALOREM STAMP - - 450 ADVANCEMENT, by a purchase by father in name of child - - - - - 579 by a purchase by father in the joint names of himself and child, 580 where by a purchase by the grand- father 581 by purchase by husband in the name of his wife - - - ib. by father in the name of wife or child, voidable by creditors - ib. so by trader in name of wife, ib. 582 ADVERSE POSSESSION, not necessary for time to bar - 39G ADVERSE RIGHT, vendor obtaining a release of - 182 purchaser obtaining it, cannot make it an objection - - 323 purchaser with covenants may compromise without notice to seller - - - - - 499 party having, not party to bill for specific performance - - - 195 how to be dealt with - - - 296 ADVOWSON, statement, that a voidance was likely to occur soon, not bind- ing 2 vacancy by resignation after con- tract does not belong to purchaser, where delay - - - - 242 bought in fee of tenant in tail in remainder, partial performance enforced ----- 257 sale of, when valid - - - 299 root of title to - - - - ib. not subject to old statute of limi- tations ----- 307 where barred by time under new statute - - - - ib. 403 what amounts on sale to notice of lunacy ----- 635 injunction against instituting a clerk pending suit - - - 192 AGENCY, implied in an auctioneer, not to be extended - - - - 119 T T 2 660 INDEX. 87 181 40 37 38 38 AGENT, Page. bidding beyond bis authority, liable _ _ - - - selling contrary to his authority, direction to, by seller, to pay to a third person, when binding per-centage cannot be recovered until money is received relief, v»'here principal denies his authority - - - - - his offer to sell, if accepted, bind- ing - - " . " . ■ swearing he was principal, may be 2)roved to be agent authority to sell is none to receive purchase-money - - - 38 may vary terms of payment of purchase-money, where - ib. 89 general, payment to him payment to principal - - - - 42 payment to vendor's agent before time appointed, bad - - 89, 40 may pay to his principal, although embarrassed - - - - ib. creditor of seller, authorised to deduct his debt, purchaser pay- ing stands in his place - - ib. after selling or buying, cannot vary terms of contract - 39, 291 when order to or authority, re- vocable - - - ib. 40, 118 buying by parol and completing, principal bound sale by private contract, not with- in authority to sell by auction - purchase by an alleged agent, under decree, bound, although authority not proved by parol to buy an estate, valid - 118 act of alleged, may be adopted - 120 buying of principal, must not mis- represent - - - - - selling, and becoming owner,where not bound _ _ _ _ purchaser assuming to be agent, must disclose that he is principal before he bring action purchaser buying as pretended agent for friend of the seller's - seller falsely assuming to be an agent - - _ effect of his evidence against his signature as agent - - - nuist generally be a third person, - 46 49 86 176 181 - 199 183 - 184 ib. 119 AGENT — continued. Page. clerk of, cannot contract without authority _ - - - 119 contract of, may be ratified - 120 payment of deposit by purchaser's agent may be recovered by prin- cipal - - - - - 198 fraudulent misrepresentation, &c. by, binds the principal - - 209 reference to an ignorant agent by seller with knoAvledge of defect 210 cannot buy the estate of his prin- cipal _ . - - - 566 nor incumbrances for his own profit _ _ - - - 446 prohibited person cannot buy as agent for another _ - - 568 by parol to buy an estate, paying the money, not a trustee - - 578 but principal may prove per- jury, in case of denial - - ib. AGREEMENT. See Contract. general, to sell, means a sale in fee- simple - - - - 14, 247 what amounts to an acceptance of title . - - - 288, 289 to buy with all defects of title, what statements bind seller, 443, 444 term added to by one party after execution - - - - 130 written, cannot be varied by parol, 129 should be signed after sale, though by auction - - - - 34, 45 when signed, puts an end to treaty, &c. 45 unless there be fraud - - 46 though void under the statute, may operate as a license - - 99 where agreement by letter must be delivered to be stamped - 105 retractation of - - - 106, 107 abandonment of - - - 112 terras added to, after execution destroys rights of the party - 130 in writing entire, cannot be al- tered by parol - - - - 137 parties compelled to produce it, where 200 where not necessary to prove execution by subscribing wit- ness 201 covenants in, dependent - - 200 I X D E X. 661 183 184 185 175 AGREE'SlElSiT—contiimed. Page, will be enforced in equity, against whom - - - _ 146,171 although the agreement is by jjarol, where - - 100, 120, 137 the vendor or vendee becomes bankrupt - - - . 146 the vendor is in prison - - 177 the vendor or vendee be dead - 147 the purchaser is a nominal con- tractor - - - - - void at law, Avhere - - - a penalty be imposed the property be an annuity out of dividends or particular stock with certificates - - - the estate is destroyed, where, 241, 243 a contingent consideration has failed - - - - - 244 the vendor has not the interest he sold - - - - 247-259 the purchaser knew the seller could not grant the interest sold - - . - 254,255 the estate is freehold, and was sold as copyhold - - - 251 the estate be defective, where, 247-259 will not be enforced in equity, against whom - - _ 171 a feme covert, unless settled to her separate use - - 172, 173 or a lunatic, or an infant, 174, 175 where an agent has sold the estate contrary to his authority an agent or trustee has com- mitted a breach of trust in the sale - - - - made in a state of intoxica- tion - - - - - where the seller has improperly turned the purchaser out of pos- session - - - - - the property is stock the party is not competent to do the act it would be hard on the party - there has been suppressio veri, or suggestio falsi - - - or mistake, surprise, or misre- presentation - - - ib. vendor has concealed a patent defect - - - - - - 181 181 Page. 177 177 175 - 1: ib. 179 180 279 AGREEMENT— coM««n««?. will not be enforced in equity, where vendor has not disclosed a latent defect - - _ 277 or was not bond fide owner, or cannot make a title - - 181 the remedy is not mutual - 182 the seller has only a power of substitution - - - - 183 the seller has cut ornamental timber - - - _ _ 197 the purchaser can obtain only an undivided part - - 262 the estate is leasehold or copy- hold instead of freehold - 250, 251 but the purchaser may elect to take them - - _ _ 253 general rules in equity on specific performance - - _ _ 175 to provide a purchaser for an es- tate ----- _ 47 enforced, though there is a volun- tary settlement - _ . 592 to pay interest, part performed, enforced ----- to purchase and settle an estate - ALIEN, can only purchase for the king's benefit, unless made a denizen, children born abroad of a mother a natural-born subject, not aliens, 384 ALIENATION, by husband and wife under statute deeds - . _ . 393^ 394 ALIUNDE, purchaser may show title bad- - - - 15,289,308 ALLOTMENT, abstract of title to title to, before award - carried by conveyance of the es tate, where - _ _ 518 583 i64 _ 311, 312 - ib. ib. ALTERATION, of draft conveyance, not an agree- ment within stat. of frauds - 1 17 should be communicated to the other party - - - - 451 AMBIGUOUS WORDS - 281, 282 may be explained by parol evi- dence - - - - I38j 142 ANCESTOR, lineal, ma}'- be heir to his issue - 583 T t3 662 INDEX. ANCIENT DEMESNE, fines and recoveries of ANCILLARY ACTS, to agreement, their effect Page. - 386 - 123 ANNUITY, false representation of circum- stances of grantor - - - 3 what grantor must disclose - 5 wliere a purchaser is liable only to a proportion - - - 12 condition as to evidence of non- payment of - - - - 16 under Avill, when right accrues - 898 right to redeem, not stated in par- ticulars, fatal - - - - 22 life, sold, purchaser hound though life drop - - - 80, 241, 245 purchaser of life annuity under decree, when entitled to it, 82, 493, 518 of life interest, when entitled to dividends - - - - ib. the price of an estate, how to be secured ----- 165 sale of, specifically enforced - 175 price for, where inadequate - 231 estate sold for life annuity be- longs to purchaser, though an- nuitant die before conveyance - 244 unless payment became due, and was not made - - - ib. agreement for, during lives not named, valid if delay is in seller, 184 distress for arrears ; effect of the stat. of limitations - - - 405 liability of, to judgments - - 421 . lien for, where the consideration for an estate - - - 556, & n. lands charged with, liable in the hands of purchaser - - - 543 purchaser of one lot where liable only to a portion of the annuity, 12 power to redeem it not mentioned on sale, fatal - _ _ - 247 stamps on deed where annuity the price ----- 458 should be searched for - - 439 ANSWER, confession of agreement by - 121 reference of title before - - 193 payment of purchase-money into Court, before - - - - ib. ANSWER — continued. Page, where plea of purchase must be supported by - - - - 643 where charge of possession of docu- ments to be answered - - ib. notice must be denied by answer, ib. new answer may be put in - ib. APPEAL, House of Lords will not decide doubtful point - - - - 323 effect of decision of Lords upon title 821 APPLICATION OF PURCHASE- MONEY, where purchaser is bound to see to it - - - - 540 et seq. APPOINTEE, where covenants for title run with the land in his hands - - 469 APPOINTMENT, defeated judgment under old law, 418 but not under new, unless for purchaser without notice, 421, 429 to child pendente lite, to remove objection ----- 327 where the mode of executing powder doubtful, title not forced on pur- chaser ----- 335 must be registered under the Re- gistry Act - _ . - 599 of assignee of insolvent, to be re- gistered - - - - - 603 of receiver, effect of under statute of limitations - - - - 403 APPORTIONMENT, of rent under stat. 4 & 6 Will. 4, c. 22 - _ - - - 152 of rent, must be by deed - - 318 apportioned rent, title to - - ib. of covenants for title - - 486, 487 APPROPRIATION, of purchase-money, to save in- terest ----- 514 APPROVAL, of draft conveyance not an agree- ment within statute - - - 117 ARBITRATORS, where price fixed by, is not bind- ing ----- - 238 may take the opinion of a third person ----- ib. INDEX. 663 ARBITRATORS— continued. Page. rrnist fix the price, or no sale - 238 death of party, countermand of their power, wliere - - - 239 where a valuation by, will be com- pelled - - - - - ib. contract to refer to, a ruk of Court, no attachment - - - - 240 rules and powers under 17 & 18 Vict. - - - - - 239 ■where new arbitrator may be ap- pointed - - - - - ib. or an umpire - - - - ib. cannot buy up claims of parties to the reference _ - - - 508 award of, as to title and convey- ance, with an indemnity, bad, 254, 318 ARREARS, under statute of limitation - - 405 ASSENT, to investment of deposit, where implied ----- 43 ASSETS, purchase-money part of vendor's, 148 for payment of purchase-money, for the heir _ - - - IGl pecuniary legatees not entitled to have them marshalled against the heir 383 freehold and copyhold, assets for simple contract debts - - 504 laid out in estates, can be fol- lowed, where - - - - 582 ASSIGNEES, where entitled to benefit of cove- nants for title - - 405 ei seq. of lessees where so entitled - - 4G6 operation of 32 H. 8 - - - ib. of reversion, where so entitled, ib. 471 of grantor of watercourse, bound by his covenant to cleanse it - 481 ASSIGNEES OF BANKRUPTS, not entitled to indemnity on sale of leaseholds - - - - 30 what condition will confine the title to such as they have - 14, 30 when to sell - - - - 49 sale not to be postponed if a credi- tor object _ _ - - ib. not chargeable by attempt to sell lease by auction - - - 52 ASSIGNEES OF BANKRUPTS— cOHit. Page. sale by creditor's assignee binding on official assignee - - - 52 not bound by bankrupt's off"er to sell - - - V. .. 110 accepting a lease relieves the bank- rupt ----- 53 buying in an estate without au- thority, personally bound - - 52 where sale for mortgagee, they cannot reserve a bidding - - ib. estate liable for damages on sale by assignees, where - - - ib. liable to make the same title as a vendor 5Z«j;Mm - - 54,314 must furnish attested copies, &c. where - - - - - 54 covenant only that they have not incumbered - - - _ 4(54 bound to execute further assur- ances - - - _ _ 500 bound by seller's lien - - 561 cannot purchase the bankrupt's estate - _ - _ 55^ 566 such a purchase is a cause of re- moval - _ _ _ 5GG n. so if an assignee permit his co- assignee to buy - - - ib. ASSIGNEES OF INSOLVENTS, sale by, of insolvent's estate - 49 ASSIGNMENT, must be by deed - - - 98, 410 notice of - - - 314-3ir. of legacy carries stock - - 166 ASSIGNMENT OF TERMS. See Terms of Years. ATTAINDER, where of no force in descents - 383 ATTENDANT TERMS, abolished in what cases' 411 ATTESTATION, of receipt of purchase-money, its effect - . - - 23G, 237 liable to stamp duty - - - 460 ATTESTED COPIES, expense of, should be provided for on sales - - - - - 28 should be taken of parcels, where estate is sold in Jots _- - - 46 T T 4 664 INDEX. ib. ATTESTED COFIE?)— continued. Page, purchaser entitled to them, at seller's expense _ - _ 372 but not of instruments on re- cord, unless in the seller's possession _ - - - 37-3 of court rolls, semble - - 874, 375 of bargain and sale, under the sta- tute of Anne - - - - ib. right to, not excluded by agree- ment to produce deeds, qu. - ib. assignees must furnish them - 376 covenant to allow them to be taken, 377 ATTORNEY, not disclosing an incumbrance, re- sponsible ----- 5 the vendor's, should not be em- ployed by the purchaser - - ib. w^here he may not disclose a defect, ib. of the grantor of an annuity em- ployed by the grantee, how far bound . _ - - - bidding beyond his authority, liable where has what remedy where the prin- cipal denies the authority buying without authority is per- sonally bound - - - 37, 88 by what agreement personally bound, and how enforced buying in estate in sale by Court, bound _ - - - - accepting title for client, and then buying, bound - •; stating to counsel that objections are removed, not binding - how he should examine abstract, evidence of deed executed by, 345, 346 Avhere purchaser's attorney is to travel to examine abstract - 357 country attorney should leave ex- amination of abstract to town agent ----- ib. answerable for neglect in searches, 439 seller not allowed or compelled to convey or surrender by attorney, 453 revocation of letter of.attorney - ib. how conveyance by attorney should be taken _ - - not entitled to draft of convey- ance - . - of seller has no lien on convey- ance ------ - 37 38 - 46 96 - 286 289 341 ib. - ib. 464 A.ITO^'^EY— continued. Page, answerable to seller for improper covenants _ _ _ _ 453 purchase-money should not be paid to seller's attorney - - 549 notice to him, notice to client - 622 although he act by a town agent, ib. and notice to town agent binding, ib. fraud by, on seller, not binding on purchaser employing him with- out notice _ _ _ . 023 contra, if deed leads to inquiry, 634 cannot prove notice against his client 638 but a man assuming to act as an attorney, no protection - ib. and he must prove deeds he has attested 639 privileged communications to him, ib. upon a sale or purchase, pro- tected - - - - - ib. cannot disclose knowledge of title, ib. 640 cannot buy from his client whilst relation subsists - - 566, 568 but may contract with him - 570 in bankruptcy cannot purchase the estate - - - - 566 ATTORNMENT requires no stamp - - - 461 AUCTION, sales by, vitiated by the employ- ment of puffers - - - 8, 9 putting up estate, will not charge assignees as owners - - - 62 sales by auction within the statute of frauds - - - - - 84 sale by, not void for inadequate price _ - « - - 236 bidding may be countermanded - 11 where trust, &c. estates should be sold by - - - - - 49 AUCTIONEER, his verbal declarations at auction cannot be received - 12, 13, 130 reading of lease by, no excuse for misdescription - - - - 18 selling Avithout authority, liable to costs and interests - - 36 when his authority may be re- voked ----- 36 officer of court acting as auc- tioneer - - - - - 10 appointed in sales by the Court - 77 INDEX. 665 AVCTlO^EER—condnKed. Page. cannot delegate his authority - JIG not entitled to commission, if sale void by his neglect - - - ib. amount of commission - ib. 37 commission for finding a pur- chaser ----- ,37 when commission is payable - ib. cannot give credit for the purchase- money ----- 38 should keep deposit till contract is completed - - - - 40 an action will lie against him for recovery of the deposit - - ib. is not liable to pay interest on de- posit - - - 42, 524, 525 may file bill of interpleader, and for injunction, where - ib. 41 loss by his insolvency falls on seller _ - - _ - 42 liable to damages, unless he dis- close the name of principal - ib. ought to sign agreement - - 84 agent for vendor and purchaser, upon sale by auction 34, 35, 119 his clerk is agent for both parties, where ----- 12O his receipt or entry amounts to an agreement, where - 34,112 selling, after authority expired - 199 not liable to expenses of investi- gating title - - - - 303 cannot buy the estate himself - 566 AUTER DROIT, freehold, or term in, merging - 506 AWARD, acquiescence in - - - - 239 title to allotment before - 311, 312 stamp on - - - - - 461 BABBLE OF AUCTION ROOM - 12 BAD TITLE, cannot be claimed by heir at ex- pense of personal estate - - 162 BANKERS, deposit of monej'' by pxirchaser, not binding on seller - - 44 BANKRUPT, when relieved from rent and cove- nants - - - - - 53 seller, to be tenant from year to BA'NKR'UFT—contimied. Page. year to purchaser, yet contract for sale enforced - _ - 246 seller, remaining in possession and owing rent, lien - - _ ssg purchase by, in the name of wife or child - - - - 580, 581 prevented impeaching purchaser's title, where - - _ _ 597 generally covenants for title - 464 BANKRUPTCY, vendor's remedy on a resale, 33, 225 effect of, on title - - - 333 power under, where tenancy in tail ------ 892 provisions in favour of pur- chasers - - - - ib. 393 judgments, where binding against, 419 et seq. searches for _ _ - - 431 enrolment of proceedings under - 435 certificate of conformity to be enrolled - - - - ib. certificate no bar of covenants for title - - - - - 499 set-ofF between vendor and pur- chaser in cases of - - - 559 will not discharge a contract for sale ------ 143 biddings opened - - - - 53 protection against - - - 147 after, contract may be rescinded by Chancellor - - - - ib. effect of generally - 329,333,597 docket not notice of - - - 625 purchaser protected against act if without notice - - - 147, 695 what is not notice - - 596, 626 payments, how protected - 595, 596 plea of bankruptcy subsequently to bill filed - - - - 147 contract overreached by bank- ruptcy of vendor - - - ib. disposition under statute for aboli- tion of fines and recoveries, 386, 394 BARGAIN, LOSS OF, no damages in action for - 199, 300 BARGAIN AND SALE, only can be required of copyholds, where ---_.. 452 BARON AND FEME. See Feme Covert. where his contract for sale of her estate will be enforced - - 172 6GG INDEX. BARON AND FEMll—continnecl Page, statute deeds, and surrender by, 173, (589, .^O.'J, 394 wife of natural-born subject, natu- ralized ----- 8C4 wife's right to settlement out of equitable interests - - - 450 covenants for title by husband of feme mortgagor whether they run - - - - - 477, 478 merger of terms of years in each otiier's freeholds - - 504, 505 purcliase by feme covert - 564, 5G5 purchase by husband with wife's trust-money _ - - - 581 in the names of both - - ib. so, where the husband is a trader - - - - - ib. how far binding on creditors - ib. where settlements are voluntary and where not - - - 588, 591 settlement upon separation, where valuable - - - - - 591 what is a valid consideration for a settlement on a wife - - 590 land-tax purchased, enfranchise- ment of copyholds, repairs, &c. by husband, enure to wife - 582 husband must perform marriage agreement before he can claim under it - - - - - G35 purchaser of the consideration for the settlement by the wife is bound also _ - _ ib. conveying to purchaser bound, al- though marriage void - - 610 BASE FEE, created before new statute of limi- tations, how affected - 401, 402 BENEFIT, to estate before conveyance be- longs to purchaser - - 148, 241 as upon the dropping of lives - 241 unless he is guilty of delay, where ----- 242 BIDDING, private, on the part of owner, wliere not fraudulent _ - 8 stipulation for by owner - - 9 may be countermanded before lot is knocked down - - - 10 1)Y an agent beyond his autiiority, 37 BIDDING— cowiwmec?. Page. by insane person - - - 80 opened on sale of bankrupt's es- tate 53 opened upon sales by courts of equity - - - - - 90 for a third person by an agent appointed by a person incapable of purchasing, qu. - - - 508 BILL IN EQUITY, several purchasers of lots cannot be included in one - - - 195 stewards or receivers should not be made parties - - - ib. adverse claimant should not be a party ----- ib. nor a mortgagee - - - ib. where different agreements are proved - - - - - ib. may be filed by seller though de- posit retained - - - - 1 90 dismissed, what relief may be given - - - - ib. 214 filing, prevents the operation of the statute of limitations - - 403 BILL OF EXCHANGE, for purchase-money at day certain must be paid, though seller re- fuse to convey - - - - 202 when payment may be resisted, il). does not discharge lien for pur- chase-money - - - - 556 BILLS DISMISSED, seller to repay deposit with in- terest, though his bill dismissed, 526 where plaintiff entitled to account of rents - - - - - 196 effect of, upon reversal of decree - 527 BISHOP'S LEASE, title to 308 BOND, to be accepted for title - - 16 of reference to fix price, an agree- ment 113 to the Crown, to be registered - 436 treasury may consent to obligor selling or leasing - - _ 437 not a dischaige of lien for pur- cliase-money - - - _ 550 for purchase-money and lien not to-be sued upon at the same time, 559 INDEX. 667 BOROUGH ENGLISH, Page, not to he bought, where - - 58-i BOUNDAllIES, douhtful, between freeliold and copyhold sold together not an objection - - - - - 15 BREACH OF CONTRACT, remedies for _ _ - 168, 187 notice of intention to rescind con- tract, when to be given - - 227 BRICK-BUILT, meaning of term - - - 23 BROKER, sale by - - - - - 89 BUILDING, included inlease removed, title bad, 21 described as brick-built, its mean- ing 23 first - rate building - ground, its meaning ----- 24 a part performance, where - - 123 no liability to covenant, under re- striction against building, 31, 484, 485 whether expense of, can be reco- vered under covenants on evic- tion - 499 by joint lessees, a partnership - 574 CALAMITIES OF TIMES, no ground of relief - - - 231 CASE, special, for opinion of court - 188 cannot now be directed to law, 188, 321 CAVEAT EMPTOR, where the rule applies - - 273, 279 CERTIFICATES, production of, as evidence 344, 345 of stockbroker - - - - 850 of acknowledgments of deeds - 438 stamp on - - - - - 460 of title by Masters' clerks - - 293 CESSER, proviso for, of terms - -508,509 CESTUI QUE TRUST, tenant at will to trustee - - 397 barred by time, from period of sale, unless concealed fraud - 402 where he should covenant for title, 464 CHAMPERTY, what is not - - - • - 299 CHANCE OF SUCCESSION, Page, may be sold _ _ _ . 298 CHANCEL, sale of estate, subject to repair of, 818, 319 CHARGE OF DEBTS, equal to a devise on trust - - 543 CHARITABLE USES, will affect a purchaser, where - 594 CHARITIES, how affected by new statute of limitations _ - - - 402 purchase-money under contract cannot be bequeathed to acharity, 148 purchaser of charity lease, how bound 633 CHATTELS, under the statute of frauds - 102 representation on sale of, 206, 281 n. 298 n. chattel real - - - - 298 where a specific performance in relation to - - - - 175 CHEQUE, on banker for deposit may be re- fused payment where purchaser could recover the deposit - - 89 for purchase-money, effect of it, 38, 39 CHIEF CLERK of EQUITY JUDGES, powers and duties of, 70,79,81, 83, 189, 190,293 loss by fire, &c. before certificate confirmed absolute - - - 79 CHILD, purchase in the name of, an ad- vancement _ _ - _ 578 settlement upon, where voluntary, 588 settlement by father and child, where voluntary - _ - 590 CHOSE IN ACTION, purchaser abides by the case of vendor, where - - - 314, 316 but notice to trustee gives pri- ority - - - - - 315 how notice should be given ; no previous inquiry necessary - ib. rule confined to choses in action, ib. CHURCH LEASE - - - 253, 254 CHURCH PROPERTY, where time runs against 406 668 INDEX. CHURCHWARDENS, Page. can purchase a workhouse - - ^)()P> CLAIM, may be filed, in lieu of bill - 188, 189 adverse claim to estate - - 29G under new statute of limitations, 897, 398 "CLEAR" YEARLY RENT, what it is - - - - - 22 CLERK, to auctioneer, signing an agree- ment - " - -119,120 to auctioneer or solicitor, cannot contract without authority, 118, 291 to auctioneer, is the agent of both parties to take down the bid- dings ----- 49, 120 CODICIL, republication of will by - - 155 COLLATERAL MATTERS, evidence of - - - - 129 COLLATERAL SECURITY, purchaser not affected by taking it, unless the first purchase was fraudulent - - - - 609 COLLATERALS, where the marriage consideration extends to _ - - - 689 COLLIERY, purchaser under decree, when en- titled to profits - - - 83 COMMISSION. See Auctioneer. of auctioneer or agent - - 30 when his commission, &c., al- lowed on bill filed - - 41 COMMISSION OF BANKRUPTCY, not superseded for fraud, where there are purchasers - - 609 COMMISSIONERS OF BANKRUPTS, cannot buy the estate - - 560 COMMITTEE OF LUNATIC, conveyances by - - - - 174 COMMON. See Mines. right of over inclosed estate fatal, 258,205 unlimited right of sold, limited right only for sheep, bad - - ib. COMMOlli—contimiecl Page, sheep walks not forced on pur- chaser of freehold - - 258, 205 right of, where barred by time - 408 exchange of common field lands - 311 COMMUNICATIONS, to attorney, privileged, where, 038, 039 COMMUTATION OF TITHES - 207 COMPENSATION, none for right of sporting, after waiver ----- 280 none for want of title ; unless con- tractor re-sell, qte. - . - 190 none for loss by funds, where no title - '- - - - 199 where purchaser bound to take, 261, 817 for small quit rents - - 259 where purchaser evicted before or after conveyance - - 440, et seq. for rent misrepresented - - 443 not after contract executed - 1 97 condition to take, in case of errors of description - - - 22, 23 what misdescription of interest is a subject of - - - 201,262 right of sporting not a subject of ; nor where a mis-statement of tenancy ; nor right of common ; nor right to dig for mines ; nor repairs of chancel ; nor large rents . - - . 258, 259 for rent where sale is by the court, 76 where irregular sale confirmed, 89 lost by purchaser's conduct - 252 purchaser may elect to take partial interests of vendor with compen- sation, where - - - 253, 254 purchaser interruptingseller bound to take compensation - - 208 purchaser entitled to, for a defici- ency in quantity - - 209-271 for dispositions b}'' seller pending suit - - - - - 196 where seller entitled to, for over- plus lands - - _ _ 271 bill for, will not not lie after con- tract executed - - -197,211 CONCEALMENT, where it amounts to a fraud, 4, 6, 279 to what relief purchaser is entitled, 176 INDEX. 66^ CONCEALMENT— fo«i;«n«erf. Page, of defect of title - - - 207 Avliere unreasonable price, sale set aside . _ - - 230,231 fatal, although sale ■with all faults, 277 of repair of a river wall - - 179 of a defect in a wall - - - 270 of incumbrance, purchaser relieved against ... - 443,498 of judgment, upon sale of part, residue of estate charged - 013,014 CONDITION, that statute of frauds shall have no operation - - - - 12 power to repurchase upon - - 107 where precedent _ _ _ 201 as to delivering abstract of title - 218 production of deeds at one of several places _ _ _ 358 benefit of, may be taken under deed, though taker not a party - 410 CONDITIONS OF SALE, liberally construed - - - 12 obscure - . - - ib. 15 cannot be verbally contradicted, where - - - ib. 13,130 that sale shall be void on non-per- formance of an act is at the option of the other party - - - 18 for the payment of timber - - 13 regarding deeds - - - -10 for the acceptance of title - 14, 281 as to evidence - - - - 17 for avoidance of contract - - 18 estate should be minutely de- scribed ----- 18 "free public-house," meaning of term - - - - - ib, " common and usual covenants," 21 rights of way ; lights ; right to wall - - - 20,21,23,24 brick-built, meaning of term - 23 fen land, taxes - - - - 22 annuity out of tolls of Waterloo Bridge ----- ib. wood, mis-statement of - - ib. clear yearly rent - - - ib. reading of lease, immaterial if mis- stated in particulars - - - 21 what is a suflicient statement of covenants in lease - - G, 21 powers of redemption and pre- emption not stated - - - 22 CONDITIONS OF SALE— cont. Page, redeemable annuity - - - 22 incorrect statement of trees, ib. 25, 26 fraudulent errors - - - ib. erroneous description - - - 24 for small quit rents, &c. - - 259 for tithes - - - - 200,267 substantial misdescription - - 24 conditioii as to compensation, 23, 209 misdescription by carelessness or error - - - - - 25 purchaser of under-lease bound by usual covenants in original lease, 179 where bound by notice of un- usual covenants - - - ib. as to the payment for timber or fixtures - - - - - 25 as to the non-pi*oduction of deeds, 27 purchaser of " largest lot " to have the deeds 28 as to searches, &c. - - - ib. as to the expense of attested copies, ib. as to the non-production of lessor's title 29 as to preparation of conveyance - 31 on sales by private contract - 45 as to forfeiture of deposit, and right to re-bell - - - - 31, 32 reference to, may supply terms in agreement - - - - 109 inust be referred to, or annexed to agreement - - _ - 112 what provisions should be inserted in ------ 34 if misrepresentation, purchaser entitled to compensation - - 22 to guard against misdescription, extend only to unintentional errors, 23 and error, must be fit subject for compensation - - - ib. and capable of having value fixed, 24 and property must be identical, 23,24 where binding on third party - 34 to accept a bond for title, 10, 281 , 283 or an indemnity - - - 284 CONFIRMATION, destroys right to rescind a con- tract - - - - - 212 although new circumstance of fraud discovered - - - ib. valid, althougli contrac fraudu- lent, semhle - - - - ib. ( 670 INDEX. CONFIRMATION— contimied. Page. party must be aware of his right, and under no influence - ib. 21.'3 and of tlie consequences in law, ib. must be given freely _ - - ib. ■what requisite as between trustee and ccsttci que trust - - - 573 CONSENT, of protector to disentailing deeds, 88d,etseq. of third j)erson necessary to title, 190, 218, G17 CONSIDERATION, unreasonable, no ground to refuse the aid of equity - - - 230 unless fraud, misrepresentation, or concealment - - - 231 inadequacy not a ground for relief, ib. value of life-annuity may be weighed - - - - - ib. concealment which leads to in- adequacy, right to relief - - 232 or misrepresentation, where - ib. inadequate, not material where value known to neither - - ib, after conveyance, inadequacy without fraud insufficient - 233 unless seller was ignorant and purchaser knew of his right - ib. or advantage is taken of seller's distress - - - - ib. inadequate, in sale by heir of ex- pectancy, relieved against - ib. 234 although heir unprovided for, and interest remote - - ib. purchaser must prove adequacy, ib. inadequate in sales of reversions a ground for relief, where - - 235 although property part in pos- session - - - = - 236 but sale binding if bona fide at market price _ - _ 235 or sale is by auction ; or by tenant for life and remainder- man ; or seller can substantially grant a possession ; or landlord extends a tenant's term - 23G but not if contingency is not the subject of valuation - ib. receipt for consideration, operation of ib. inadequate,^ how ascertained - 237 inadequate, relief lost by delay or confirmation _ - - - ib. CONSIDERATION— confiHMCc?. Page, relief upon the principle of re- demption _ - - - 237 purchaser allowed for improve- ments ----- ib. not charged for wilful default, ib. contingent, failing before the con- veyance, estate belongs to pur- chaser - - - - 243,244 fixed by a referee, good, where - 237 agreed to be fixed by valuation, agreement enforced - - - 238 but where persons are appointed the sale is void unless they act, ib. so if one of the parties die before the award - - 239 powers of arbitrators - - ib. CONSTRUCTION OF THE PARTIES, not admissible to explain instru- ment - - - - - 141 CONSTRUCTIVE NOTICE. See Notice ----- 632 CONTINGENCY, not admitting of valuation - - 236 CONTINGENT, interests, pass by will - - 159 consideration •: - - - 245 tenant in tail, his power - 388, 394 interests may be conveyed under the statutes - - - - 169 CONTINGENT REMAINDERS, title depending on destruction of, good 323 trustees to preserve, may buy - 566 sold and barred, and new right acquired by seller, to be conveyed to purchaser _ - - - 613 iinder new law, supported without preceding estate - - 324, 411 contingent remainder-man not en- titled to deeds - - - - 370 CONTRACT. See Agreement. transfer of after fraud in the bid- COSTS— continued. Page, apportioned between seller and purchaser _ _ - _ 533 affected by misrepresentation, though by mistake - - 532, 538 or the state of the title - - ib. or a doubtful fact - - - 534 or the evidence of title - ib. 535 purchaser may take fair objection, 534 upon appeal to D. P. - 534, 539 opinion of counsel will not save costs - - - - _ conduct of parties affects costs - •where purchaser takes possession, not set off" against a deposit where a trustee pays costs - of action, paid by party who has no equity, resorting to law fraud set up as a defence, which fails, involves costs - - - effect of death of vendor must be borne by vendor, if suit necessary to confer title - 534 537 ib. ib. ib. - ib. 538 71 - 534 COUNSEL, opinion of, not a waiver of objec- tions to title - - - 289, 350 nor of objection to a misdescrip- tion 290 opinion of, against title, not ad- mitted in action - - - 300 opinion of conveyancing counsel to the Court - - 74, 84, 297 opinion of, on abstract, to whom it belongs - - - - 356 how he should peruse an abstract, 842 notice to, notice to client - - G22 cannot prove notice against his client G38 purchaser not bound to produce case or opinion of - 85 G, 638, 639 COUNTERMAND, of bidding - - - - - 11 of authority of arbitrators by death of party ----- 239 COUNTERMANDABLE LICENCE, 99 COUNTIES PALATINE, judgments in - - 420, 423, 424 COURT ROLLS, should be searched - - - 345 production of copies of - - 359 not notice to a purchaser, semhir, G3G COURTS OF EQUITY, . P sales by - - - - - 2:)ower of, under Trustee Acts sale by, equitable estate forced on purchaser - . - 84, may enforce contracts by tenant in tail - - - - ,"53, but cannot aid defects luider act _ _ _ - - purchaser under decree bound by judgments . - _ _ decrees, orders, &c. where binding as judgments - - - 420, sales by, what covenants fur title may be required _ - _ COVENANTS, purchaser Avilling to be subject to covenants not to build, not bound to covenant - - _ - operation of covenants not to build, kc. - - - 484, for repair stated, when to seller's knowledge no power to enforce them, avoids contract broken, Avhere no objection to title . - - - 809, how far enforced in equity, 178, where the only remedy right to re-enter on breach of, title bad if sale in lots not to bar dower, binding - accepted against an incum.brance, not to be implied from "give" or "grant" where they run with the land - to reside in a house, whether it runs . - - _ 4.73^ so to exercise a trade therein - by purchaser to pay a rentcharge created by the conveyance to him, does not run - - 478- whether a covenant to pay a rent runs with it in any case - by mortgagor to pay the money, does not run - b}'' one joint-tenant on sale to the other, to pay the rent on a lease, &c. does not run _ _ _ not running with land, seller must lend his name - - - for right of pre-emption do not run with the land - - - to contribute to expenses of suit, do not run - - - _ U U ige. 7'> ic.;) ^.29 354 il). 418 421 432 31 485 - 179 310 485 211 317 382 440 410 465 474 477 ■480 470 480 ib. 481 485 48G 674 INDEX. COYE^A^TS— continued. Page. for value of estate, a distinct co- venant - - - - 49G, 497 in lease, where properly stated in particulars - - - - 21 " common and usual," meaning of term ----- ib. in lease, enure to purchaser of re- version - - - - - 152 in lease to purchaser cease on con- veyance to him - _ - 149 purchaser of underlease bound by usual covenants in original lease, 179 where bound by notice of un- usual ones - - - - ib. prohibitory covenant against pur- chaser's declared object and seller silent, fatal - - - - ib. in agreement for purchase, are de- pendent ----- 201 for purchase-money, no discharge of lien 55G to purchase and settle an estate, what amounts to a performance, 583 not a lien on the covenantor's lands - _ . . _ 585 COVENANT TO PRODUCE DEEDS, seller cannot withhold deeds be- cause he has entered into such a covenant ----- 801 where part of mortgaged estate sold 362 where right to, excluded by con- dition ----- 28 extent of right - - - - 377 how it may be qualified - - ib. under covenant for further assur- ance - _ - _ _ 3g4 covenant to produce copies of court roll - - _ _ 374 should be by a separate deed - 37G seller of part, with such a cove- nant, enters into a new one - 377 should be entered into by the legal holder of the deeds - - - ib. runs with the land through the purchaser _ _ - - ib. whether with tlie remaining land in the seller - - - ib. title may be valid, though cove- nant do not run with the land - 878 COVENANTS FOR TITLE, trustees, &c. not bound to enter into ----- 54 COVENANTS FOR TITLE— coh?. Page, remedy under covenants of earlier vendors ----- 442 the usual ----- 4G2 to guard against a known defect, ib. right to, under a contract of sale, ib. 4G3 against whom a seller is bound to covenant ----- 4G3 purchaser not entitled to a regu- lar chain of - - - - 404 short form of, under statute - ib. run with the land to assignees, heirs, devisees - - - 465, 4GG so as to assignees, &c. of lease- holds - ' - - - ib. covenants run where there is a seisin to uses - - . - 467 entered into with cestui que use taking a power, do not run if power executed - - ib. 468 covenants with cestui que use do run 408 covenants go to appointee under original seisin - - - - ib. so covenants entered into with appointee will run - - ib. where the fee is required to make covenants run - - 469, 470, 471 privity of estate for covenants to run ----- ib. 471 what it is - - - 470, n. covenants by husband of feme mortgagor - _ - 477^ 473 value of - - - - - 486 whether apportionable - - ib. general, do not extend to tortious evictions, where - - - 488 unless person named in cove- nant - - - - - ib. will not be restrained on slight grounds - _ _ .. 493 mistake may be rectified in equity ----- 497 suit in equity, a disturbance - 488 for right to convey, extends to grantor's capacity - - . 439 limited, to whom they extend - ib. acts and means, construction of, ib. 490 who claim under grantor - - 490 what rents and arrears within co- venants - - - - - ib. neglect or default, their mean- ing 491 INDEX. 675 COVENANTS FOR TITLE— coj?^. Page, permitted or suffered, pfivty or prh^y to, their meaning - - 491 restrictive words in first of several covenants, -with the same object, extend to all - - - - 49,3 but first covenant, if unlimited, not restrained by a later limited one _ _ - - _ 495 nor will a prior general one en- large a subsequent limited one, 40G where they concern different things, they are not controlled by restrictive words added to one - - - - - ib. purchaser's remedy under - 497, 502 where covenant is broken - - 498 measure of damages - - ib. 499 whetlier improvements can be re- covered for _ _ - - 499 purchaser may wait till eviction, 498 purchaser's remedy after he has mortgaged . _ . - 499 action against devisees, &c. - ib. jiurchaser need not give notice of adverse suit to covenantor - ib. COVENANT FOR FURTHER AS- SURANCE, covenant to produce deeds not ■within, Semite - - - - 364 not running with the land, spe- cifically enforced - - 481, 500 purchaser may require duplicate of conveyance - - - - 500 and judgments, &c. to be re- moved ----- 501 act must be required within the time limited - - - - ib, reasonable, means necessary acts - 502 at w^hose cost to be made - - 501 as counsel shall devise - - 502 seller to be allowed to read assur- ance - - - - - ib. indemnity or warranty cannot be required - - - - - ib. seller must confirm, although pur- chaser has broken an independent covenant ----- 500 CREDITORS, how for bound by judgments of debtor - - - - - 430 void conveyances, againdt - 581, n. bound by seller's lien- - - 5G1 CREDITORS— co??i;n27Ae<7, Page, consulted as to sale, cannot buy the property- - _ _ - 5C7 execution creditor may buy the estate - - - - - ib. laches, its effect against - - 573 CROP of undervi'ood cut, not an accept- ance of title - - - - 287 CROPS, where they can be sold by parol, 100 taking of, during delay - - 529 CROSS BILL, where not necessary - - - 196 not to be filed by purchaser if no title - . - . 296, 207 CROWN, grant by - - - - - 306 no covenants for title in sale by - 464 bound by deposit of deeds, where, 562 bound by time - - - 323, 324 CROWN DEBTS, should be abstracted - - - 340 register of - - - - - 436 should be searched for - - ib. where protected against by term ofj'ears - - - - - ib. bind a purchaser, where term as- signed for debtor - - - ib. but not where term first as- signed for purchaser - - ib. bonds for, judgments, &c. to be registered - - - - ib. quietus may be registered - -437 sale under 1 & 2 Geo. 4 - - ib. sale under 2 Vict, with consent of Treasury - - - - - ib. CROWN RENT, estate charged with CUSTODY OF DEEDS - 316, 317 - 368 DAMAGES, unliquidated - - - - 33 none for loss of bargain where no title - - 198, 297, 800, 302 where costs of suit cannot be re- covered - - - - - 198 amount of, where a breach under covenants for title - - 498, 499 whether improvements can be recovered - . - _ 499 nominal, where incumbrance con- tingent - - - - - ib. u u 2 G76 I N D E X. DAMAGES — con'iuKcd. Pago, wliere auctioneer sells alter autho- rity ex2)ireon niisreprcsentatiou - 304 of deeds for both parties - - 3G8 as a security _ - - - 5G2 of the title-deeds by a settler after voluntary settlement - - 588 DESCENDED ESTATES - - 540 DESCENT, abstract of title under to be traced from the purchaser - person last entitled the purchaser, where _ _ _ - - seisin unnecessary _ _ _ effect of father's illegitimacy - ib. heir, a devisee, takes as such limitation to grantor or his heirs, they take as purchasers between brothers and sisters, to be traced through parent lineal ancestor may be heir to his issue . _ _ - - males preferred to females - mother of more remote male paternal ancestor, how pre- ferred - - - - - half blood admitted - - - 2)ossessio fratris at an end - ib. attainder of no force, where when the new law commenced - pedigree, how to be traced under new law - - - . child born abroad of a mother natural-born subject - - - ib, DESCRIPTION OF AN ESTATE, vague descriptions - - 291, false ----- -275, new description, where trustee conveys - - - - - description of interest, title DEVISES, under old law * - - 153-158 under new law : which bar dower - _ - 382 to heir, he takes as devisee, 159, 383 of real and personal estate pass all at death - - - - 384 infants cannot make a will - 385 how wills are to be executed - ib. revocation of will - - - ib. four modes of revocation - 159, 385 confined to estates created - 159 340 350 382 ib. 383 ib. 383 ib. ib. ib. ib. ib. 384 383 ib. - 384 328 276 449 IG D'ENISE'S— continued. Page, under new law — continued. residuary or general, include lapsed and illegal devises - 384 general, include estates of every tenure, and subject to general powers - - ib. ib. - ib. ib. 159 fee passes, without words of in- heritance - - - - 385 "die without issue," &:c., con- fined to time of death estate tail does not lapse if issue - - - to issue, leaving issue, do not lapse - - - - - of estates contracted for, valid, operation of, where a term passed and the fee bought, 154, 159 election, now altered - - 159 cautions in purchasing of heir at law ib. contract to sell, a revocation, 154, IGO contract not executed by equity, or scmble abandoned, no revo- cation - - - - 156, 157 by seller of estate contracted to be sold, its effect - - - 157 DEVISEE, tenant for life, &c. to convey to purchaser from devisor - 169, 170 of estate contracted for, not enti- tled to estate or purchase-money, if no title - - - - 162 contra, if an estate is directed to be bought - - - ib. refusing to convey - - 330, 331 how liable to testator's debts - 540 marshalling against, where lien for purchase-money and simple contract debts - _ - - 560 not for legatees - - - ib. contributions between devisee and legatees - - - - ib. takes benefit of covenants for title, broken in testator's lifetime - 466 liable to action of covenant - 499 DILAPIDATIONS, where purchaser entitled to allow- ance for - - - - - 529 where the allowance carries in- terest - - - - - 530 INDEX. 679 DISABILITIES, Payo. ten years allowed for, after re- moval - - - . 30G, 400 but not exceeding fort}^ years - ib. in the case of easements - 407-409 DISCLAIMER, by married woman - - 393,411 by trustee ----- 547 DISCOVERY, purchaser not compelled to dis- cover writings - - - - 609 unless suspicious on the face of them 010 DISCRETIONARY POWER, trustees cannot be compelled to exercise - - - - - 181 DISTRESS, where a purchaser can distrain - 152 under statute of limitations - 390 advantage taken of vendor's dis- tressed circumstances - - 233 DOCKET, notice of, its effect - _ _ 596 DOCUMENTS, production of, may be compelled, 368-371 destruction of, by lire before con- veyance ----- 243 DOUBTFUL TITLE, not enforced against purchaser, 292, 320, 334 upon law or fact _ _ _ ,321 Avhat is deemed a - - - 320 bare possibility not an objection, ib. suggestions of old entails, &c., not an objection _ _ _ jb. nor mere suspicion of fraud - 327 no title doubtful at law - - 332 upon questions of fact - - 333 issue directed - - - - 335 upon pedigree, legitimacy - - ib. DOWER, of equitable estate - - IGl, 379 affected by 3 & 4 Will. 4, c. 105, 172 how barred by the old law - - ib. under the new law _ - - 380 attaches under old limitations to bar it ----- 381 in husband's power, by will or otherwise - _ - 172, 381 saving in the act - - - 382 BOyVER— continued. Page. covenant not to bar, binding - 382 arrears ibr six years only can be recovered ----- 405 DRAFT, of conveyance altered, should be communicated - - - - 451 belongs to client - - - 453 of conveyance approved, not an agreement - - - - 114 nor although written by party, ib. of deed, Avhere not notice - - 635 DROPPING OF LIVES, effect of - - 244, 517, App. No. 2 DRUNKARD, contract by - - - 232 ^/>> DRY ROT 278 EARNEST, rins: given as 40 EASEMENTS, repi'esentation of, in particulars - 20 notice of right to - _ -. 629 title to 313 where barred by time - 407, 408 ECCLESIASTICAL LEASES, recitals in, where conclusive - 309 EJECTMENT, the remedy under new stat. of limitations - - _ - 396 without notice against purchaser in possession - - - - 150 not barred by purchaser's posses- sion - - _ . 150, 151 ELECTION AGAINST HEIR, 155, 159 ELEGIT ------ 418 EMBLEMENTS - - - - 100 ENCROACHMENT, title to ----- 313 ENDOWMENTS, liable to stamp duty - - - 460 ENFRANCHISED LANDS, title to 10 ENROLMENT, of devises, &c. - - - - 196 of bargains and sales - - - 344 of disentailing deed, &c. - - 389 of deeds of married women, 393, 394 TJ U 4 680 INDEX. E^TRV, RIGHT OF, devisable by ■will effect of, on titles disposition of, by deed confined to twenty years Page. - lo'J - 200 391,411 - 396 Avhen time begins to run - ib. entry, eiTect of 399 EQUITABLE ESTATE, title to - - - - - 310 purchaser not l)ound to take - 320 unless he buy under decree, 84, 329 but not a title to be supported by injunction - - - 330 and a sub-purchaser will not be bound _ - - - ib. nor a purchaser out of court going in under suit - 290, 330 vendor with equitable estate, bound 292 recovery of legal entail, with equit- able tenant to the prtccipe - 387 Iiow barred by non-claim - - 402 bound by judgments - - - 153 purchase of - - -314,315 EQUITABLE DEFENCES, under new law - - - 186, 333 EQUITABLE OBJECTIONS, how- far noticed at law - 332, 333 EQUITY, powers of courts of, under trus- tees' acts - - - - 168-171 after bill filed, will prevent act to the injury of either party - 192 protects purchasers hond fide and without notice - _ _ C07 EQUITY OF REDEMPTION, purchase of, its effect between real and personal representatives - 163 notice of alienation of, unneces- sary - - - - - 315 operation of time on - - - 403 how affected by judgments - 403 ERRORS, of description - - 18-24,261 ESCHEAT, effect of, on terms attendant - 504 ESCROW .-•--- 360 ESTATE, should be minutely described in particulars; rights of way; plan of new street ; lights ; right to wall . - - . _ 20 EST AT E— colli in tied. Page, not properly iu the place named, 19,23 part not mentioned in deed - 328 where a plot cannot be discovered, 19 in bad repair, and described to be in thorough - - _ - 27G eondition to guard against mis- description of, its effect - 22, 23 must be hond fide - - - ib. substantial misdescription fatal, although not wilful - - 24, 25 where vendor may retain both estate and money - - - 244 ESTATE TAIL, how far bound l)y contract - - 171 legal or equitable - ib. 390, 391 by devise, does not lapse if issue, 385 by what conveyances to be barred, 389 and remainders bound by judg- ments ----- 422 ESTIMATION, effect of words " by estimation," 269 ESTOPPEL, by recitals _ - - - 449 conveyance by lease and release not an estoppel _ _ - 608 EVICTION, purchaser before, may be relieved against fraud - - - - 207 of purchaser, where relieved against - - - - 440-445 right to damages under covenants on eviction _ - - - 497 EVIDENCE, conditions as to evidence - - 17 between two purchasers of right to a wall 21 as to identity of parcels - - ib. required of facts, whether to be deemed matter of title - 351,352 on reference as to title - - 296 in support of abstract of title, 343, et seq. expense of production of evi- dence ----- 345 of deed executed by attorney. 345, 346 of pedigrees - 340, 344, 346, 347 recitals, where evidence of pedi- gree _ - _ . 348,349 office copies to verify abstract - 346 of grant from the Crown - - 358 of deeds which are burned - - 359 INDEX. 681 3G4 ib. 36.3 EVIDENCE — coitiiiiaed. I'agc. negative, in support of iilistnict - 347 in support of abstract, although not admissible at law - 3-1(3, 317 of deeds which are lost - - 3G3 of execution of title deeds not re- quired - - - . - the rule in an action will must be produced, although mislaid as null, and the seller heir - - _ - _ covenant for production of nega- tive evidence - - - - 376 In descents, that person last en- titled was the purchaser - - 382 of proceedings in bankruptcy - 435 by declarations under the statute, 350 of documents attested unneces- sarily . - - _ 3G4, n. by comparison of hand-writing - ib. of contract not admissible to prove what passed by conveyance - 271 with reference to stamp duty, 455 et seq. EVIDENCE, PAROL, admissible, where : to prove consideration consistent with the deed - - . of collateral matters in support of deed - - - - - as a defence against a specific performance on fraud, mistake or surprise - - - - to explain latent ambiguities - to explain the meaning of an- cient instrumen.ts - - - 141 to show what is parcel or not, of the thing conveyed - - 140 to explain a mistake, where, and where not - - - - 142 on the ground of fraud - - ib. what is fraud - - - 144 to prove a resulting trust, where - - - - 577, 578 to rebut a resulting trust, or equitable presumption - purchase in the name of stran- ger, he is to rclmt the resulting trust - - - - - contra, where the purchase is in the name of a child - 579 not admissible, where : to disannul or vary a written aQ:veement - <• - - 129 129 ib. 131 140 ib. 578 EVIDENCE, V M\OL— continual Page, not admissible, where — continued. to correct printed conditions of sale - - - - 180, 132 of what passed before agree- ment, to vary it - - - il). the rules are the same in equitj', ib. as a defence, if the agreement correctly reduced to writing - 134 of collateral matters, not men- tioned in the agreement - 135 of the variation of an agreement, ib. unless in part performed - 137 of the waiver of a contract as a defence in equity - - 135, 138 to explain a patent ambiguity - 138 to restrain general words in equity ----- 140 of the construction of the parties, ib. where a provision was left out as illegal - - - - 144 EXAMINATION, of married woman to statute deed, . 393, 39 1 EXCEPTIONS, in deeds should be abstracted - 338 EXCHANGE, duty of trustees acting under power of - - - - - 55 must be hy deed - - 98,410 abstract oftitleunder an exchange, 310 of common field lands - -311 title to, under inclosure act - ib. power of commissioners - - 311 not to imply condition - - 410 EXECUTION, of title-deeds, when to be proved, 364 in part of an agreement, by pos- session - - - - - 123 EXECUTOR, where compelled to take a lease - 173 may sell before decree, although bill filed 333 title of, to purchase-money - 148 where bound to pay purchase- money for the heir - - - 161 action by, for breach in purchaser's life 200,303 merger of term in his own rever- sion ------ 505 cannot mortgage assets for liis private debt - - - - 550 682 I N D E X. EXECUTOR— continued. Page. his receipt a discliargo for pur- chase-money - - - - ojO buying estate with assets, can be followed, where - - 582, 5S5 buying equity of redemption, a trustee - - - - 583 EXECUTORY INTERESTS, disposable of by will - - - 384 EXEMPTION FROM TITHES, when established by time - 406, 407 EXPENSES, of re-sale, where the purchaser becomes bankrupt - - - 33 unusual, agreed to be paid by pur- chaser, and omitted by mistake, a defence - - - - - 131 of investigating a title, ^'c, pur- chaser entitled to, under decree, where no title - - - 84, 85 upon private sale, may be re- covered if no title - 199,302 what expenses are recoverable, 300-304 not from auctioneer ; nor where contract by parol ; nor pre- liminary exjienses ; nor of pre- paring conveyance ; nor of survey ----- 303 but of searching for judgments may - - - - - ib. of conveyance fall on purchaser who prepares it - - - 202 of examining abstract with deeds, 366 of journeys for that purpose - 357 of long conveyance from incum- brances fall on seller - - 448 of private act of i^arliament also - ib. of surrender and admission - 452 vendor's preliminary expenses cannot be recovered if no title - 303 EXTENT, sale under, where a title cannot be made ----- 96 contract witli part of money paid, overreached by extent - - 147 payment of purchase-money on sale under extent - - _ 437 FACT, title depending upon questions of, 333, 336 a deed may be avoidable by extrinsic circumstances - - 334 FACT — continued. Page, wlierc a seller having the en- tirety, devised his moiety and other shares . - - - 334 doubtful cflect of at law - -336 mistake in conveying parties as to matters of fact - - - - 610 FACULTY, may be presumed _ _ _ 313 FALSE REPRESENTATIONS, by a stranger : where writing re- quired ----- 4 description of estate fatal - - 275 FATHER AND SON, dealing between, as to reversion- ary interests - - - _ 234 title under, after an appointment, 327 under father, tenant for life, who bought of his son - - - 329 effect of re-settlement where void against father's creditors - - 591 operation of purchase by father in the child's name - - _ 578 FAULTS, sale with all - - - - 277 in a mine, do not avoid the sale - 213 FEE, general contract of sale means in fee 247 FEE-FARM RENTS. small ones, subjects of compensa- tion ------ 262 condition as to evidence of pay- ment, &c. - - - - 14 FELONS, can purchase, but not hold - 564 FEME COVERT. See Baron and Feme. sale o^\\iix separate estate enforced, 172 with power, whether contract binds it - - - - - ib. with separate estate purchasing, enforced - - - - - 173 dispositions by, by deed - 393, 39i may disclaim by deed - - 411 may suspend or extinguish a power, 393 as protector, consent by - - 389 surrenders by, of copyliolds - 393 husband must concur in bar of estate tail - - - - - ib. husband's consent may be dis- pensed with, where - - ib. 394 INDEX. 683 FEME COVERT— continued. Page, wliere barred by time duriiiQ; co- verture _..--- 400 operation of her possession as re- gards time _ - - - 398 can only purcliase sul^ modo, ex- cept with separate property, 564, 568, n. unless authorised by her hus- band ----- 565 expenditure by husband on her estate, for her benefit - - 5S2 is answerable in equity for a fraud, 611 FEN LAND, purchaser takes liable to taxes - 22 FEOFFMENT, deed required _ - - 98, 410 FIAT IN BANKRUPTCY, to be stated in abstract - 340, 341 FILING A BILL, stops time running - - - 403 FINES, on renewals, mis-statement of, 2, 3, 277 of lands in ancient demesne ren- dered valid - - - - 386 in courtwithoutjurisdiction,good, 387 errors in, cured - - - - lb. abolished by stat. 3 & 4 Will. 4, c. 74 - - - . 171, 386 FIRE, loss by, after contract, to be borne by the purchaser - - - 241 conti'a, where estate is sold by the Court, and the certificate is not confirmed absolute, 79, 82, 241 deeds burnt after examination of abstract, title bad, unless second- ary evidence - - - 243, 359 conveyance burned, seller must execute a new one - - - 364 FIXTURES, purchaser where entitled to, 27, 561 sold by parol by tenant to land- lord, valid - - - - 101 FOOTPATH, not mentioned, purchaser bound, 273 FORFEITURE, Page. of deposit - - - - 31 et seq. waiver of - - - - - 219 by lessor ----- 243 Avhen time begins to run - - 398 FORGED INSTRUMENT, title of purchaser under, pro- tected in equity - - 442, 607 FRAUD, misdescriptions by - - 23, 204 misdescrijitions by error - - 23 representations by, during treaty, not excluded by agreement signed - - - - - 46 avoids agreement in law and equity ----- 145 improperly charged may defeat the plaintiff 's right - - 207,538 a ground for opening biddings - 93 in deed not rectified against pur- chaser without notice - - 145 in misrepresenting the character filled by the purchaser - - 183 action for, after payment of pur- chase-money - - - - 197 in contract, purchase-money fol- lowed after conveyance, qu. - 215 conveyance impeached for, when to be produced in suit - - 370 suspicion of, where an objection to title 327 upon sale by father and son after an appointment to the latter - - - - - ib. concealed, time does not run in equity, till when - _ - 402 purchaser without notice not a party to fraud, not affected - ib. statement false, but not fraudu- lent 443, 444 by purchaser and executor in sale of leaseholds - - - - 550 on the face of a deed binds a pur- chaser ----- 610 persons having a right, bound by encouraging a purchaser to bu}', 6II effect of a false representation to purchaser by mistake - - 612 mere suspicion of, not notice to a purchaser - . _ . 636 conveyance set aside for, occupa- tion rent, interests and rests - 527 in sales for payment of debts - 544 684 INDEX. FRAUDULENT CONVEYANCE, Page, settlement witli general power of rcvoeation, void against a pur- chaser _ - - - - 593 FRAUDULENT MISREPRESEN- TATION, by agent binds principal, where, 209 FREEBENCH, in husband's power - - - 172 FREEHOLD, sold, leasehold or copyhold not sufficient - - ^ - 250, 251 purchaser of copyhold not bound to take freehold _ - - ib. sale as partly freehold and partly leasehold - - - - 15, 251 sale as, but copyhold — measure of damages ----- 498 in auter droit and a term of years, 506 FREE PUBLIC-HOUSE, meanins: of term - - - 18 GUARDIAN, Pivge. cannot purchase ward's estate on bis coming of age HALF-BLOOD, admitted in descents HAND-BILL, in aucti(jn room - - 295 - 43 - ib. - 44 - 569 383 - 21 HARDSHIP, where no objection to a specific performance HEIR, of vendor, when entitled to inter- mediate ren*s - - - - takes, under the new law, as de- visee _ _ , - - legatee not entitled to have assets marshalled against - - - - 177 158 383 ib. FRIVOLOUS OBJECTIONS, by purchaser to title - FUNDS, investment of deposit - of purchase-money - benefit of rise profit and loss of investment go to estate wbere purchase by trustee set aside ----- 572 rising, after purchase by trustee - ib. loss by, not to be compensated where no title - - - - 199 GENERAL WORDS, restrained in equitv, where mis- take - - ' - - - 143 GRANDFATHER, purchase by, in the name of grand- child, an advancement - - 581 GRANT, from the crown, presumption of, 347 evidence of - _ - - 358 of deeds - - - - "4^9 from the crown, of tithes - - 306 the word doesnotim]dyacoveuant, 410 GROUND RENT, rack rent described as, fatal, 23, 291 GROWING CROPS - - - 100 GROWTH OF HOPS - - - 101 HEIR AT LAW, relieved against a sale, for inade- quate price - - - 233, 234 bound by ancestor's contract, 146, 168 where title acquired after sale, qu. 297 what should be attended to in buy- ing of him _ _ - 155,159 entitled to lands contracted for by his ancestor, where - - 153, 161 his power over them - - ib. executor completing, a trustee for heir- - _ - - ib. if heir pay, he is to be repaid out of the assets - - - 162 if contract rescinded from tem- porary want of assets, another estate to be bought - - ib. if heir wrongfully api)ly per- sonalty to the purchase, it creates a charge - - - ib. of purchaser, no claim if no title to estate contracted for - - ib. of vendor, where a necessary party to a suit - - - - 196 put to his election, when - 155, 159 where title tobe established against, 365 an infant can convey to purchaser from ancestor - - - 169-171 mav maintain action for breach in ancestor's life - - - 200, 303 selling, must produce will, al- though inoperative - - - 365 younger brother's, &c. possession not his ----- 384 how liable to ances'or's debts - 540 I N D E X. 685 HEIR AT 'LXV^— continued. Page, mai'slialling against where a sel- ler's lien exists - - 551), OGO IIERIOTS, under new statute of limitations, J396 HOUSE, described as in good repair - - 270 HUSBAND AND WIFE. See Bauox AND Feme. IDENTITY, condition against liability to sliow, 15, 21 inquiry upon, by motion - - 295 in pedigrees - - - 347, 352 IDIOTS, can only purchase sub modo - 565 IGNORANCE, of parties conveying to a pur- chaser - - - - -610 ILLEGAL CONTRACT, ■where purchase-money can be re- covered ----- 299 not illegal to sell estate if it shall be devised to seller - - - ib. sale for a lottery illegal - - 10 ILLEGITIMATE CHILD, purchase in name of, an advance- ment ----- 578 IMPLICATION, terms attendant by - - - 511 IMPROVEMENTS, representation of intended - 20, 180 in consideration of additional yearly sum, not rent - - 121 where a part performance - - 123 purchaser allowed for, if sale set aside for inadequacy - - - 237 not for, when possession before sale confirmed - - - - 87 on adjoining property to be made by purchaser must bo made by the day - - - - ICO, 107 purchaser allowed for what - 237 by seller after contract not re- coverable ----- 530 by purchaser may warrant a par- tial performance _ - - 257 whetiier recoverable iinder cove- nants for title - - - - 499 - 530 574 614 327 - 530 IMPROVEMENTS— co?/«2;i?/«7. Page by accident before conveyance l)elong to purchaser - by trustee, whose purchase is set aside allowed for . - _ old buildings pulled down, and new erections - . _ by one of two purchasers, a lien on the land - _ - _ by purchaser allowed, where not if relief is at law - - 615 purchaser not bound, if to be sub- ject to regulations as to fences, ike. - - seller cannot charge for improve ments after contract - by father, after purchase in child's name ----- 579 INADEQUATE CONSIDERATION, 231 INCAPACITY, to purchase ; or to hold - - 563 of trustees, agents, &c. to purchase, 566 INCLOSURE, abstract of title to estate under an inclosure act - - - 311,312 title where an exchange is under an inclosure act - - - 311 title to allotment before award, ib. 312 where the legal estate can be conveyed - - - - ib. regulations as to planting, &c. purchaser not bou iid to complete, 327 commissioners cannot purchase until 5 years after award - 567, n. their power over exchanges - 311 INCOME TAX, when not deducted - - - 78 INCREASE OF PRICE, for more than described - - 27 1 INCUMBRANCES, should be disclosed to a purchaser, 5 denied to a purchaser, relieved against ----- G not suppressed, purchaser's reme- dy is under the covenants - - 5 purchaser should inquire of a supposed incumbrancer - - 6 p:iyment of, en sales by the Court, 81, 86 titlie or land t;ix not an incum- brance - - - . 067, 268 686 INDEX. I'^CVMB'RA'NCES— continued. Page. however large, no objection to title - . - - 351, 3o2 must be discharged by vendor - 445 incumbrancer willing to join, cures objection - - ib. 450 \vhere properly the subject of in- demnity or compensation, 316-319 discovered before completion must be discharged - - - - 440 unless agreement to take security, ib. eviction on account of, before con- veyance, purchaser will be re- lieved _ - - - ib. 441 but not after the conveyance -441 unless the seller concealed the incumbrance, &c. - - - 443 where the sale is with all defects of title, <72<. - - - - ib. appropriation of money binding on purchaser _ _ - 444 payment by purchaser to third person with two claims, satisfies incumbrance - - - - 445 bought by third person, how far available ----- 446 bought by purchaser, how far allowed ----- ib. right of purchaser to throw them on seller's remaining estate - ib. purchase-money left with purcha- ser to discharge them, carries in- terest - - - - - 524 let in, by payment offof prior ones, 615 purchaser buying subject to, bound, though defective, 614,618, 619 purchaser of exchanged estates bound to clear the other estate, where ----- 635 incumbrancer not bound to give notice to a purchaser - - 612 allowance to one of two purchasers by incumbrancers enures to both, 575 dormant, purchaser relievedagainst, 610 marshalling - - - - 614 incumbrancer concealing them from a purchaser, bound - - 611 protected against by attendant term, still, in certain cases, 511, 512 INDEMNITY, against an alleged forged deed - 16 by purchaser to seller of lease, against rent, &c., - 30, 165, 166 INDEMNITY— cow^mMe^?. Page, to seller against mortgage, or incumbrance - - 30, 165, 166 agreement to give indemnity on real security, enforced - - ] 66 award directing acceptance of title and indemnity, bad - - - 318 vendor or purchaser not compelled to give or accept - - 254,316 what is a sufficient - - - 319 to be given by purchaser of one lot, the others must accept his charge ----- 318 INDENTURE, need not be indented - - - 410 INDORSEMENTS, of memorandum of purchase on retained deed - - - - 376 where subject to stamp duty - 460 INFANTS, feoffment by, under a custom, 99, 410 conveyance by, under 13 & 14 Vict. c. 60, &c. - 169-171, 172 vesting order during infancy of tenant in tail with consent of protector ----- 389 cannot enforce contract for sale of purchase - - - - - 175 not bound by contract unless guilty of fraud - - - - ib. cannot recover a deposit if he re- fuse to complete - - - ib. charges for - - - - 316 sales where legal estate is in an infant 330 seller dying leaving infant heir - ib. cannot make a will - - _ 335 can only purchase sub modo - 564 are answerable in equity for a fraud - - - - 175,611 are bound by notice - - - 622 INJUNCTION, for auctioneer, on bill of inter- pleader - - - - - 40 to restrain improvident sale by trustees ----- 51 to prevent waste by purchaser under decree - - - 86, 87 or by purchaser by contract •• 192 to prevent seller from conveying the legal estate - - - ib. from cutting timber - - ib. INDEX. 687 l^ J VNCTW^— continued. Page, but not to prevent distress after conveyance - - - - 193 against agents not parties to suit, 11). to restrain the j^resentation to a living - - - - - ib. against purchaser bringing action after decree - - - - 197 against seller bringing action after bill dismissed for want of title - ib. but generally otherwise - - ib. for seller, upon terms, deposit brought in - - - 29-J, 29G till report of title - - - 300 staying payment of instalments of interest, though bill dismissed, not interest upon interest - - 520 by common-law courts - - ISG INQUTRY, oftenant of his interests in theestate, 439 of an incumbrancer - - -612 for title-deeds necessary - - 630 notice of what leads to a fact is notice of it - - - - 633 where purchaser bound to inquire if description of lot be correct - 18 INROLMEiNT, of deeds under substitution for recovery act _ - - _ 389 protection to purchasers against deeds not enrolled - - _ 394 searches for, in insolvency - - 435 INSANE PERSON, buying at an auction - - - 80 INSOLVENCY, agent may pay to insolvent prin- cipal - - - - - 42 of auctioneer, loss falls on the seller, ib. ajjpointment of assignee, &c, to be registered _ _ _ - 435 court of, to be searched by pur- chaser _ - _ - . 434 estates of insolvent debtors should be sold by auction - - - 49 where contract by insolvent may be delivered up to seller - - 147 INSTRUCTIONS, to draw agreement - - - 110 force of agreement sent as - - 113 INSURx^NCE AGAINST FIRE, consequence of vendor's not keep- ing up 241 INTEREST, Page, what allowed, on rescinding a contract - - - - 85, 214 effect of payment of, in creating a tenancy . - - 1,50, 1,51 postponed in payment by plaintiff during suit must be paid if bill dismissed - - - - -214 but not interest on the interest for delay - - - - ib. not upon costs repaid upon an order of reversal - -215,527 paid by purchaser of leasehold ; occupation rent by vendor - 250 on deposit to be paid !)y vendor where title bad - - - 199, 302 and on purchase-money if it has lain dead - _ _ - ib. on deposit where no title - - ib. must be paid by purchaser from the time contract ought to be completed - - _ _ 513 although a reversion be sold, 514, App. No. 2. unless the money has lain dead, with notice, and the delay is by the vendor _ - _ 514 what amounts to an appropria- tion of the purchase-money - ib. possession gives a right to interest, ib. although the purchaser quits - 516 or a receiver be appointed, where - _ - _ 515 purchaser in possession paying in- terest may rescind, if long delay, 516 agreement to pay costs excludes interest - - - - - 517 on timber, runs from the valuation, ib. upon sale by court of a possession, ib. of a reversion ; wearing of lives, ib. 518, App, No. 2. on purchase-money of leasehold estate, and the vendor pays a rent ------ 518 payable on a deposit with pur- chaser for incumbrancers - - 524 annuity, purchaser entitled to, when, 518 paid in excess, rests, and balance carries interest - - - - ib. lessee with option, buying, pays interest ----- 519 vendor receiving interest liable for rents - - - - - ib. 688 INDEX. ib. 524 INTEREST— contmued. Page, and for interest thereon it' the pureliase-money is paid - olO not payable wliere delay is in tlie vendor, unless by stipulation, ib. et scq. agreement to pay interest, signed l)y seller, may bind - - - 518 none payable by purchaser on the deposit ----- 524 nor by vendor if contract proceed, ib. can be recovered by a purchaser for want of title on a deposit paid to a principal, or auctioneer but not against an auctioneer, ib. payable by a vendor who cannot make a title, if purchase-money has lain dead - - - - by a vendor who cannot make a title, on deposit - - - although plaintiff and bill dis- missed ----- 520 by a person opening biddings, 525, 526 set-ofF where mortgagee buys - 515 investment at vendor's request, rise or fall, his chance payable by purchaser on sum paid into court to stay execution if bill dismissed - - - - not on instalments of interest where injunction _ - - instalmentsof, suspended by court, to be paid by purchaser, though his bill dismissed - _ - instalments of, not due, not paya- ble by purchaser, though his bill to rescind is dismissed not on costs paid by a defendant, although decree reversed - on allowance for dilapidations allowed to trustee where his pur- chase of trust property is set aside, 572 not payable on rents in account against purchaser with notice - 527 what rate of interest is payable, 528, 529 in what cases payable under 3 & 4 Will. 4, c. 42 - - - - 525 arrears of, recoverablefor six years, 405 not barred by time where prin- cipal not payable - - 525, 5G3 INTERMEDIATE RENTS, between contract and conversion, 158 526 ib. ib. ib. ib. 527 529 INTERPLEADER, by auctioneer statute of - Page. - 43 - ib. INTESTACY, proof of - - - - - 339 INTOXICATION, agreement during, not enforced in equity - - - - - 177 INVESTIGATION OF TITLE, right to, lost by delay - 286, 287 expenses of - - 300, 302, 359 INVESTMENT, of deposit in a cause binding on seller and purchaser - - - 43 purchaser not bound by, without his assent - - . - ih. assent to, not implied from notice without reply - - - - ib. vendor not entitled to benefit of, if not bound by - - ib. 44 so of a deposit at a banker's - ib. on purchaser's application, and contract rescinded, he takes back stock ----- 95 of legacy enures to purchaser of it, 166 of intei'est payable to seller, during purchaser's suit, seller entitled to stock if bill dismissed - - 214 ISSUE, in case of an incumbrance - - 444 issue of the body, bound under the recovery act - - - 1 72 and by judgments of tenant in tail 422 take in case of lajise, where - 385 JOINT PURCHASERS AND JOINT TENANTS, contract for sale to, cannot be proved by parol to be for one with security to the other - 130 their rights and liabilities - 422, 574 where agreement is to sell to two, 575 parol evidence inadmissible of purchase by one - - - il). abatements obtained by one, enure to both ----- ib. where joint tenants not severed by conveyance - - - - 574 where joint purchasers arc joint tenants ----- ib. mutual right to deeds - 369,371 n. INDEX. 689 JOINT PURCHASERS, &c.—cont. Page, sale by one enforced against the survivor ----- 172 covenants by one vv'itli the other, not running _ - - - 480 purchase by father in the names of himself and child - - - u80 possession of one, not possession of the other - - - - 399 effect of judgment against one of several 398 JOINTURE, effect of eviction of, under old law, 381 discharge of, on sale of estate - 293 JOURNEYS, to examine deeds, expense of, 357, 358 JUDGES, majr be called in by Equity Judges ----- 321 JUDGMENTS, how far bound by sales by courts of equity - - - - 88 bind equitable interest of pur- chaser ----- 153 expense of search recoverable if bad title - - - - - 303 where an objection to title - - 329 within 42d sec. of new Limitation Act ----- 405 should be abstracted - - 340, 414 after payment of purchase-money, relieved against - - - 415 how far binding on purchasers under old law - - - - 414 how far binding under new law - 419 purchasers before 1 Oct. 1838 not affected - - - - ib. all estates, legal or equitable, in freeholds, copyholds, lease- holds, &c. bound - - - ib. judgments an actual charge, 420, 423, 423 decrees, &c. equal to judgments, 420 bind issue in tail and remainder- man ----- 422 must be registered to bind pur- chasers - _ _ - 423 and re-registered every five years - _ - 425, 426 registered not binding on pur- JUBGME^TS— continued. Page, liow far binding under new law — cont. chasers without notice farther tlian under old law - 428, 429, 430 trust estates, how far bound, with or without notice - - 429 conveyance to trustees to sell, &c, the like - - - ib. purchaser without notice pro- tected by legal estate - - ib. appointment still operative for purchaser without notice, 421, 422 leaseholds and copyholds, how far bound, with or without notice - - - - 421,430 should be searched for - 430, 431 although estate in register county, ib, against tenant in tail - - 422 new register of - - - - 423 may bind although not entered by officer ----- 404 search for, may be postponed, where - - - - -431 against bankrupts, where they operate - - - - 432,433 in case of insolvency - - - 433 of inferior courts, wliere binding on purcliaser - - - - 420 contribution to, where - - 434 to crown to be registered - - 436 concealed upon sale of part, resi- due of estate charged - - 614 where contribution is enforced between purchasers - - 613,614 of judgments in Ireland - 419, n. Court may order satisfaction to be entered up - - - - 434 LACHES, in the performance of agreements, 219 LANDS CLAUSES ACT - 57 LANDLORD, liability of, for nuisance, 47 LANDLORD AND TENANT, determination of relation between, J 48 LAND SOCIETY, sale by, under special conditions - 281 LAND TAX, not an incumbrance - - - 268 where merged - - - - ib. effect of obscure conditions as to redeemed land tax - - - ib. X X 690 INDEX. LAND T AX— continued. Page. redeemed, equitable charge in lieu, binding on purchaser with notice, 600 effect of notice of contract for re- denijition, by an infant - - 632 where covenant extends to ar- rears of - - - - - 491 title to 313 assessments to, as evidence - - 340 defects in sales for redemption of land tax amended - - - 604 bought by husband on wife's es- tate, enures for her benefit - 582 LAPSE, lapsed devises fall into residue, 161,385 LARGEST LOT, meaning of - - - - 28 LATENT DEFECTS, • purchaser not bound by - - 2, 277 LEASE, should be inspected by purchaser, 6 notice of, is notice of all the cove- nants in it - - - ib. 398 effect of purchaser's perusing the lease - - . - 13,317 condition as to evidence of per- forming covenants - - - 17 reading of, at auction, not material if terms misstated in particulars, ib. title bad, if any building has been removed - - - - - 21 covenants in, where properly stated in particulars - - - - ib. conditions in, as to trades, &«., where properly stated - - 24 upon sale of, purchaser to indem- nify against rent, &c. - 30, 165 for longer period than mentioned, where not an objection - - 221 sold as renewable, but not so - 29 benefit to purchaser under bad lease, 14 sold, held for less term than repre- sented, where sale enforced, 247, 248 where purchaser not bound to be- come liable to covenants as as- signee - - _ _ _ 250 or to be answerable for part let off, 264 where contract delayed, seller pays occupation rent, purchaser interest, 250 notforcedonpiirchaser for freehold, ib. underlease not decreed under agree- ment to assign - - _ . 248 nor new lease in lieu of original, 249 LEASE — continued. Page, where it must be b}^ deed - - 410 new, obtained by one partner, enures to both _ - - 575 parol agreement to grant a lease where binding on a purchaser - 616 not registered, invalid, though as- signment is registered - - 599 what leases need not be registered, 602 of estate sold, whether seller can impeach it, after sale - - 619 at a pepper-corn, of estate sold, Avhere interest payable - - 518 sold Avithout possession, interest and occupation rent payable - ib. of settled estates, where authorised, 414 LEASE UNDER POWERS, where rendered valid by statute - 412 LEASE AND RELEASE, conveyance by, not an estoppel - 608 lease for a year abolished - - 410 LEASEHOLD ESTATES, condition against production of lessor's title, &c. - 15, 16, 29, 307 where part of buildings removed, 21 purchaser of must indemnify ven- dor - 30 abstract of, and title to - - 307 lost assignments, effect of - - 309 purchaser's right to lessor's title, where ----- 307 renewable, title to - - 308, 309 lessor's consent where necessary, to be obtained by seller - - 310 sold in lots, and jjower of re-entry on non-paj'ment of rents - - 317 where covenants broken, not fatal to title 309 bound by judgments, 417,421,429, 430 purchaser may pay purchase- money to executors, although specifically bequeathed, unless there be fraud - - - - 551 LEGACY, invested, assigned as sterling money - _ _ . _ \qq specific, purchase of - - - 316 when barred by time - - 404, 405 legacy out of personalty is within statute of limitations - - 405 liability to, charged on land, but left unpaid on sale - - - 442 INDEX. 691 LEGAL ESTATE, Page. seller need not have, but must procure it - - 183, 292, 290 in lunatic ----- 29G Avhere conveyance of, will be pre- sumed - - - - - 331 general contract gives a right to, 281 in heir not found - - - 353 conveyance of, by trustee - - 449 notice of, notice of trust - - 626 LEGATEE, assignment of legacy not to be re- gistered ----- 599 where the seller is not liable for the legacy - - - - 018 legacy when barred by time - 405 LEGITIMACY, conclusion of jury upon presump- tion - - - - - 335,349 issue upon ; evidence concerning, 335 rumours against, where admissible for a 2)urchaser - - - - ib. LESSEE, selling, entitled to what indemnity from purchaser - - - 30 purchasing, tenancy is determined, where ----- 148 although for a term certain, where - - - - ib. 149 covenants between him and lessor, determine on conveyance of in- heritance - - - - - ib, payment of additional rent, &c., a part performance - - 123, 137 entitled to see lessor's title, where, 307 n. when time runs against him, 390, 399 covenant by, to do suit to mill, runs with the land - - - 471 other covenants which run - 478 n. covenant to give lessor pre-emp- tion of other lands does not run, 485, 486 ■with option to purchase, rent ceases and interest runs - - 519 joint-lessees building, a partner- ship ------ 674 his possession is notice of his title, 626 but not of the lessor's title - 628 LESSOR, condition not to call for lessor's title - - - - 15, 282, 307 LESSOR — conlinucd. Page. power of, as against assignees of bankrupt or insolvent lessee - 53 waiver of lessor's title - 307, 308 right of purchaser to lessor's title on sale of lease - - - - 307 to produce his title to lessee, where, 307 n. his title appearing defective on abstract, purchaser not bound - 308 his consent where necessary to be procured by seller - - - 310 his consent necessary to appor- tionment of rent - - - 318 right of re-entry on breach of covenant, and sale in lots, title bad - - - - - - 317 covenant by, to give lessee right of pre-emption over other land, does not run - - - _ 485 covenants which do run - 478 n. LETTERS, are agreements within the statute of frauds, where - - 106-112 a reference in, may supply the defect in an agreement - - 109 abandoning contract cannot ope- rate as a ratification - - - 112 must, to be added to agreement, refer to the same contract - ib. written to third persons, operate as agreements, where - - 113 several, should be connected with each other - •• - - 111 require only one stamp - - 201 construction of - - - 112,113 may prove trust - - - ^76 either an agreement, or evidence of a parol one - - - LIABILITY, of estates to tithe or substitu- tionary rentcharge - - - 268 LICENCE, by parol, when valid - - - 98 when binding on third person - 34 to assign, effect, where necessary, 219 LIEN, for purchase-money, as an ob- jection to title - - - 326, 455 is a charge under new limitation act, 404 seller's attorney has none on con- veyance ----- 453 X X 2 114 692 INDEX. 33 244 ib. ib. LIEN— cojit'inucd. Page. of seller for expenses, kc. of re- sale in case of purchaser's bank- ruptcy - - - - - whether any, for money received by vendor before conveyance, where purchaser dies without heirs _ . - - - of lessee not notice, where, having sold the fee, he gave a receipt for purchase-money - - 560, 561 against Crown by deposit of deeds, 562 on deeds for loan, only liable for amount ----- 563 purchaser has a lien on estate for money paid, if no title - - 552 vendor's lien for purchase-money unpaid, where - - - 552-559 a mortgage of part of the estate excludes the lieu - - - 556 or a mortgage of another estate, ib. but a bond, bill, or note will not discharge it - - nor a covenant _ _ - where the sale is for an annuity, 556 & n. may prevail for part - - - 558 intention of seller not important - 555 cannot be sued upon in equity by seller, whilst suing at law on the bond - - - - - 559 of trustees on purcliase-money in the hands of tenant for life, where ----- 558 extends to whom - - - ib. prevails against whom - 560, 561 not against purchaser Avithout notice _ - - - 5(50, 628 notice of title, not notice of lien, 560 nor notice of occupation by seller as lessee - - ib. assignees or trustees for creditors, bound - - - - - where all claims are in equity where owner conveys to trustee as a purchaser . - - - equitable mortgage by deposit of title-deeds prevails over lien, semble - _ - - - LIGHTS, right after sale to build against purcliasev's lights - - - right of, where barred by time - LIQUIDATED DAMAGES - LIS PENDENS, Page. registry of - - - - - 435 not binding on purchaser without express notice, unless registered, 624 LIVES, misrepresentation of - - 3> 248 condition as to evidence of non- payment of life annuity - - 16 stated to be in existence in par- ticulars, parol statement inad- missible that one had dropped - 13 misstatement of age of tenant for life, reversion depending on his failure of issue, fatal - - 24 annuity for lives not named, sale enforced if vendor delay - -185 if lives for which estate is held drop after contract, loss falls on purchaser - - 80,241,245 dropping after contract for the reversion, benefit belongs to pur- chaser ----- •4d death of vendor after contract, where the price is an annuity for his life, estate belongs to pur- chaser - - - - ' -''*'* where tenant for life of leaseholds took the purchase-money - - 167 sufficient description of lease for lives and years - - - - 247 root of title ; lives to be shown to be in existence - - 305, 306 LOAN, under the mask of trading - - 234 where purchase will be deemed ! a loan 1^6 where a, and not a purchase - 527 attorney perusing abstract on loan cannot disclose his knowledge - 640 5G1 ib. 562 578 562 21 407 32 LORD OF MANOR, title of, to freehold after enfran- chisement - - - - 310 LORDS, HOUSE OF, operation of order on purchaser to perform the contract - 321, 323 LOSS OF BARGAIN, no damages for, where - 198, 300 LOSS, by insolvency of bankers or agent, 42 by fall of funds sold out - - 302 to estate before conveyance, falls on purchaser - - - - 148 I X D E X. 693 LOSS — continued. Page, as by dropping- of lives or by fire - - - - - 241 of mortgage deed, purchaser must pay on an indemnity - - 1(55 by investment during a suit, falls on whom - - - - 214, 572 LOST DEEDS, evidence of - - - - 309 LOTTERY, sale by illegal - - - 10,299 LOTS, estate sold in, a distinct contract arises upon each - - 34, 195 trust estate may be sold in - - 50 part performance of one, not ex- tended to others distinct - - 126 sale in, purchaser compelled to take those not complicated with the rest if no title to all - 265, 536 but if lot without title so com- plicated, sale as to all bad - 266 even at law- - - ib. n. largest lot means quantity - - 27 where attested copies should be taken of lots conveyed - - 46 vesting orders on sale of infant's estate in lots - - . - 171 sale of estate subject to a rent in lots 317, 318 LUNATIC, bidding by - - - - 174 right to deposit where he pur- chases - - - - - 174 orders by L. C, operate as judg- ments, where - - - - 421 trustee or mortgagee under trus- tee act of 1850, Sec. - - - 169 agreement by to be performed by committee - - - - 174 can only purchase sub inodo - 565 what is not notice of lunacy - 635 MAINTENANCE, assignment of subject of suit, is not 299 MANDAMUS, to enforce specific performance, 186, 203 MANOR, on purchase of, appointment of steward to be required ■ - 167 MARKET PRICE, Page, where it should prevail - - 235 MARRIAGE, jiresumption of - - - - 349 a revocation of a will - - 385 conveyance by parties not legally married ----- GIO MARRIAGE CONSIDERATION, valuable - - - - 589, 590 whether it extends to collaterals, 589 makes good prior voluntary settle- ment _ - _ - - .592 MARSHALLING, between vendor's lien, and per- sonal estate of purchaser - - 560 contribution between legatees and devisees ----- ib. incumbrances - - _ - 614 MEADOW LAND, sold as rich water meadow - 2, 275 MEASURE - - . . 271, 272 MEMORIAL, of deeds to be registered, how to be executed and attested - - 600 deeds cannot be re-executed for the purpose of registry - - ib. sealed by a corporation, equivalent to signing and sealing - - ib. should contain what - - . 601 may be secondary evidence - 364 MERGER, of lay tithes - _ _ . 353 of terms ----- 504 of attendant terms under new law-, 509 MINERALS, power of entry for, implied where, 166 where they pass - - - 611 MINES, share in mining company, cannot be sold by parol - - - 101 unless on cost-book principle, or shareholders take no interest in the mine itself - - - - 102 where time a bar : profits in, 396 n. title to 314 title to, where right of entry re- served to Crown - - - 326 where otherwise reserved - ib. where under a common - - ib. fault in - - - - 213,277 X X 3 694 INDEX. MISAPPREHENSION, in bidding for estate Page. - 180 MISDESCRIPTION, of estate, &c. in particulars, 18 et seq. condition to guard against, its operation _ _ _ 22, 258 ■where the error is unintentional, 25 where it is by fraud - - ib. proper name of house improperly described : Regency-square Mouse, Brighton - •• - - - 18 MISREPRESENTATION, of value - - . 3, 204, 209 rent _ _ _ _ ib. 4 valuation . _ _ _ 4 circumstances of grantor - - 3, 5 fines on renewals - - 2, 3, 176 health of life - - - - 3 age of life - - - - 24 material fact unknown to the other party - - - - 180 income of trade - - 208, 209 speedy avoidance of advowson - 2 of the fund upon which mort- gage is charged _ _ _ 446 of water meadow - - 2, 275 slight - - - - - 206 of occupiers as lessees - - 258 nature of tenancy - - - 22 incumbrances - - - - 5 title ------ ib. by a stranger - - _ _ 4 by an attorney - - - - 6 in particulars, &c. of sale - - 23 if wilful, a fraud - - - 25 by mistake, how far fatal =■ ib. 176 by fraud - - - - 23, 183 by agent - - - 176, 209, 232 where price unreasonable - - 206 may be a defence, although too late to object to title - 17, 18 by purchaser, he is not entitled to a jjerformance in part - - 257 abatement in price for - 269-271 relief as to, after conveyance, 441, 443 its effect upon costs, although by mistake ----- 533 MISTAKE, ground for rescinding contract - 95 as to what sold - - 118, 179, 260 if a person buy his own estate he will be relieved - - - 2O6 M.lW^k'K'E— continued. Page. a defence against a specific per- formance - - - - -131 in written instruments corrected by equity according to parol evi- dence ----- 142 not to the prejudice of purchaser without notice - - - 145 condition that mistakes shall not affect the sale, only covers unin- tentional errors - - - 23 mutual, as to part sold, equity will not assist either party - - 179 as to extent of seller's interest - 180 in puffer bidding for the wrong estate, not enforced in equity - ib. contract before a Master rescinded on tlie ground of - - - 95 when discovered no delay must occur - - - - - ib. denial of by defendant, effect of - 131 I)resumed where purchaser knew the seller had not a title - - 254 of the purchaser as to operation of his purchase, no bar to a specific performance - - - - 275 in payment of purchase-money - 441 in prejjaring conveyance, corrected, 497 of conveying parties to purchaser of their rights, not material - 610 false representation by mistake, 611,612 in calculating interest - - 530 MODUS, where established by statute of limitations - - _ - 406 MONEY, right to, when barred - 404, 405 MONEY HAD AND RECEIVED, what may be recovered in action for - - 198,199,209,300,303 MONTH, in a contract may be lunar or calendar, according to intent - 216 MORE OR LESS, effect of words - - - _ 269 insertion of, in conve^-ance - - 449 MORTGAGE, by trustees for sale not justified - 51 power of sale in - - - - 63 purchase of estate in mortgage INDEX. 695 MOKr G AGE— conlimied. Page, where personalty the primary fund - - . _ 163, 1G4 notice to mortgagor of purcliase - 16 1 purchaser must indemnify vendor against the mortgage money, IC"), lUG proceedings in ejectment not stop- l^ed, where mortgagee has agreed to purchase _ _ _ _ ig4 mortgagee's advances to mortga- gor after sale by him without notice, binding on purchaser - ib. purchaser of equity of redemption should give notice of sale to mort- gagee _____ 1G4 effect of purchase by mortgagee where incumbrances exceed the purchase-money - - - IGG pui'chaser of mortgage should buy with privity of mortgagor - 165 purchase will be deemed a mort- gage, where - - - - 166 loss of mortgage deed, to be in- demnified against - - _ 165 covenant to produce deeds where part of estate in mortgage sold - 362 no production of deeds against mortgagee - - - - ib. power of sale in, title valid - - 53 mortgagee may recover within twenty years - _ - - 397 mortgagor barred by twenty years, where - _ - - - 403 where several mortgagors or mort- gagees - ib. mortgagee, where bound by judg- ments - - - 417 e« seq. covenants for title by husband of feme mortgagor, whether they run ------ 477 covenants hy lessee with mort- gagor do not run _ - - 472 covenant by mortgagor to pay the money does not run - - - 480 purchaser's remedy under cove- nants for title after he has mort- gaged _ - - - _ 499 joint purchasers make their estate the primary fund, where - - 575 equitable, will prevail over lien for purchase-money - - - 562 where it discharges lien for pur- chase-money - - - - 556 deposit of deeds by simple contract MO IVr GAGE— continued. Page, debtor, binds the Crown as an equitable mortgage - - - 5G2 executor buying equity of re- demption, a trustee _ - _ 583 legal mortgiigee making further advances without notice, safe - 608 mortgiigee may purchase from the mortgagor _ _ - _ 567 first mortgagee, with notice of second, may transfer to the third, 608 dormant, purchaser relieved against _ - - - - GIO mortgagee buying with notice of agreement for lease by mortga- gor, bound _ _ - . 615 notice of mortgage-title is notice of actual right - - _ - 629 where purchaser of an equity of redemption may be compelled to redeem two estates - - - 164 money, on sale subject to stamp duty - - - - - 457 MORTGAGEE, with power of sale, how to sell, 53, 178 of bankrupt selling, assignees can- not reserve bidding - - - 52 where liable to loss by insolvency of auctioneer - - - - 42 with power of sale, a trustee - 53 liable to make a good title - 54 liable to costs of bill dismissed for misdescription - - - 55 purchasing, a set-off, where - 149 sale by, after foreclosure - - 178 sale by under power, purchaser not bound to accept title under owners and incumbrancers -218 in foreclosure suit, cannot conduct the sale and bid - - - 54 whose debt exceeds purchase- money, when entitled to posses- sion upon sale b}"" Court - - 82 where not compelled to produce deeds - - - - 3G2, 371 not obtaining the deeds from te- nant for life - - - - 370 lunatic, within Trustee Acts - 169 Avhere his heir is within the same Acts ib. should not be made a part}^ to specific performance suit - - 195 bar of, under new Limitation Act, 403 Avhere bound by judgments - 421 xx4 696 INDEX. MORTGAGEE— co7itinued. Page, judgments against mortgagee paid off do not bind purchaser - - 421 legal, may foreclose a purchaser without notice - - - - 644 MORTGAGOR, relief of, against sale by mortgagee, 53 not tenant at will under new sta- tute of limitations - - - 399 where barred under statute - 403 his covenant to pay does not run with the land - - - - 480 cannot defeat second charge by buying under power in first - 615 MORTMAIN ACT, devise of land agreed to be sold, for a charity void - - - - 148 MOTION, decree upon, under new law -192 reference of title, upon - - 294 not where answer raises another objection - - - - ib. to inquire when title first shown, ib. into identity - _ - 295 for payment of purchase-money into Court - - - - 193 NEXT OF KIN, Page, taking deceased vendor's estate - 158 MULTIFARIOUS - 195 MUTUAL SALES, between two parties, separate con- tracts 264 MUTUALITY, in agreements - - - 182, 2G4 NATURALIZATION - - 384,564 NE EXEAT REGNO, lies against a purchaser - - 203 NEGLECT, to examine title, no relief - 298, 442 in preparing abstract, no liability, 359 in leaving deeds in the hands of seller, effect of - - - - 361 to make searches, attorney an- swerable for - _ - _ 439 to make entries of judgments, clerk answerable for - - - ib. in seller, amounting to fraud - 25 of auctioneer, whereby sale is de- feated, no commission - - 86 NEW ORDERS, provision of, as to reference to Master - - - - 189, 190 NEXT PRESENTATION, when it may be sold - - 299 NOMINAL CONTRACTOR, contract by, enforced - - - 183 unless seller be led to believe the purchase is for his friend - - ib. seller may pretend to be an agent, where - - - - - 184 NOMINAL PURCHASER, trust, how proved _ - - 578 NONCLAIM, title by - - - 395 NOTICE, purchaser of equitable rightshould give notice to trustee - 7, 314, 315 purchaser Avithout notice of prior contract, safe - - - 147, 153 deeds left with purchaser's soli- citor for inspection, notice of covenants in them - - - 179 of title being limited, followed by contract, a waiver - - - 289 of inability to produce lessor's title, binding - - - - 308 where particulars of sale amount to ib. what is not notice of lunacy - 635 purchaser without express notice, protected by substitution for re- covery act ... 388, 392 purchaser without, protected against judgments, where - - 427 purchaser with, not bound by judgments not registered, 427, 428, 429 purchaser with covenants for title not bound to give seller notice of adverse suit - - - - 499 of money lying dead, to obtain interest ----- 514 of lien for purchase-money - - 560 not implied from notice of title, ib. or of seller's occupation as lessee, ib. 561 of voluntary settlement, not bind- ing ------ 588 what formerly constituted notice, ib. 596 purchaser without, protected against act of bankruptcy - - 595 INDEX. 697 J^OTICE—co)i filmed. r'age. of deeds not duly registered binds purchaser . - . _ 599 but notice of unregistered deed unimportant at law - - _ 599 of riglit to an easement - - G29 that land tax was redeemed by an infant - - - - * - 632 of covenant to rebuild after fire - ib. to purchaser from an heir of a will, 634 purchaser with notice bound like the seller 616 to be binding must be had, when, 619 not binding after money paid and deed executed - - - ib. 620 nor at any time after the pur- chase ----- 620 purchaser without, not affected by notice in his vendor - - - ib. purchaser with, not affected, if his vendor had no notice - 328, 620 but such a title not forced on a purchaser - - - - 335 not material that purchase was made under the direction of the court - - - - - 619 infants are bound by - - - 622 binding, although purchase in name of agent - - - - ib. is either actual or constructive - 621 actual must be given by person interested, during treaty - ib. vague reports not notice - - ib. must be in the same transac- tion 622 •what is constructive notice, ib. ct seq. ■what is not constructive notice, 624 et seq. of deed, notice of all its contents, 633, 634 what is sufficient evidence of notice _ - - - _ 638 how denial of notice should be pleaded ----- 642 not necessary to preserve priority in equitable estates - - - 608 NUISANCE, on property sold, purchaser liable, 47, 210 ■where seller liable - - - ib. OBJECTIONS, to title, within limited period, 16, 17,211,354 OBJECTIONS— con<2H2 599 INDEX. 707 REGISTER— cmtinued. Page. copyhold estates not within the acts (502 leases at rack rents not to be re- gistered, nor leases not exceeding 21 years, &c. - - - - ib. what the memorial should con- tain ------ GOl by whom it should be executed and attested - - - - 600 parcels how to be described in, 601, 602 of orders and documents under l&2Vict. c. no - - -603 assignment of legacy need not be registered _ _ _ - 599 lease unregistered not valid 1)y registry of assignment - - ib. what instruments not authorized to be registered - - 600, 601 registration of a re -executed deed where nugatory - - - 600 is not notice to a person, seised of legal estate - _ - 427, 625 purchaser with notice of a non-re- gistered incumbrance bound by it - - - - - - 599 power to register deeds for sales to redeem land-tax - - - 605 of judgments and bonds to the Crown, and acceptance of office, 436 of certificates of appointments of assignees ----- 597 RELEASE, of adverse right, vendor obtain- ing -' 182 REMAINDER. See Reversion. barred before sold, purchaser re- lieved . - - - 208,298 barred after sale and new title in seller 613 man, not entitled to production of deeds by tenant for life, where . - - - 369, 370 title to, after estate tail - - 328 when time runs against - - 398 man, barred by time where tenant in tail barred - - - - 401 man, may be barred by time, where a grantee under imperfect assurance by tenant in tail - ib. man^ bound by judgment of tenant in tail, where - - - 419, 420 REMEDY, Page, where seller knows there is none for covenants broken, and is silent, the contract is void - 179 RENEWABLE LEASEHOLDS, title to - - - 253,308,309 purchaser from tenant for life, how far liable to renew - - 613 purchaser entitled to renewed lease to seller after the contract, 252 compensation, where lease not re- newable as represented - - 29 RENTCHARGE, in lieu of tithe - - - 208,267 of land-tax - - - - 268 how affected by statute of limi- tations ----- 396 created out of estate of seller, covenant by seller to pay it does not run ----- 479 created by way of use, covenant by grantor does not run - - ib. covenant to pay, whether it runs with the rent in any case - 481, 482 whether it runs with the gran- tor's land - - - - 482 RENTS, false affirmation of amount of rent, 3 abatement in, need not be com- municated to purchaser - - 3 construction of the words clear yearly rent - - - - 22 rack rent described as ground rent • fatal ----- 23 purchaser under decree entitled to, from what time - - - 82 indemnity against, by purchaser of leaseholds - - - - 87 apportionment of, should be pro- vided for on sales - - - 34 so should payment of by tenant purchasing - - - - 149 right to under contract - - 152 an account of, for plaintifiF, if bill dismissed, where - - - 196 may be recovered by purchaser, where 152 apportioned by statute - - ib. sold with revei-sion, not known by whom paid - - - - 1 79 power to purchaser to recover, not champerty - - - - 299 Y y2 708 INDEX. RENTS — continued. Page, small, subject of compensation - 259 apportioned rent must be shown by deed 318 power of re-entry ou nonpayment of, and sale in lots - - 317, 318 arrears of, six years recoverable - 405 receipt of, its effect under statute of limitations - - - - 399 to what, the statute extends - 396 misrepresentation of amount of - 443 or of payment of - - - ib. receipt of, by purchaser, he must pay interest on purchase-money, 615 occupation rent, when payable by seller . . - - 518,527 seller receiving interest, answer- able for rents - - - 519, 530 but purchaser not, where sale set aside - - - - ib. interest on, where payable by seller, ib. interest on not payable by pur- chaser, though sale set aside - 527 payable by trustee where pur- chase is rescinded - - - ib. RENUNCIATION, by trustee - - 547 REPAIRS, allowance for - - - . 214 time required for, estate sold as in good repair, where allowed - 221 false statement avoids the con- tract, where - - - - 276 unless purchaser knew its con- dition - - - - - ib. subject of compensation, where, ib. 277 by father, after purchase in the name of child, unimportant - 579 REPRESENTATION, chain of, in title to term - - 343 RE-PURCHASE, right of - - - 158 n., 167 RE-REGISTRY OF JUDGMENTS, 425, 426 RE-SALE, action by purchaser for deposit after re-sale by seller * - 451 condition for, in case of default - 31 RESCINDING A CONTRACT, vender rescinding cannot retain deposit, where - - - 32, 33 notice of, should be given - - 204 where there is delay - - 227 RESCINDING A CONTRACT -toM^ Page, fraud necessary - - - - 205 in case of concealment - - 204 where purchaser was induced to execute deeds in his solicitox"'s absence ----- 205 upon mis-statement of basis of agreement _ _ - _ 204 whether there should not be fraud - - - - - 205 specific performance refused, but contract not ordered to be deli- vered up - - - - - 206 where, after conveyance executed, ib. not for unreasonable price in general - - - - ib. nor for inadequate consideration, ib. 207 effect of poverty and ignorance, ib. 212 for a man buying his own estate, 206 where the seller concealed the want of title to part - - 207 althoughpurchaserisnotevicted, ib. where a remainder was barred before the sale - - - 208 mistake in description - - 207 where, upon fraudulent repre- sentations - - - - 208 where right accrues - - - 212 right lost by confirmation - 211,212 or by acquiescence - - - ib. or by time - - ib. 213,214 or by short delay - - - ib. upon what terras - - - ib. interest - - - - - ib. costs - - - - - ib. occupation rent - - - ib. improvements allowed for - ib. unless made after knowledge of defect of title - - ib. to reinstate a house altered into a shop - - - - - ib. where by death or bankruptcy money cannot be paid - - 225 or purchaser, who is to make a mortgage, neglect to com- plete - - - _ ib. 22(5 where the term of years is much less than that sold - - . 247 effect of decrees and reversals on interest, ike. - - - 526, 627 RESIDENCE, purchase for 221 INDEX. 709 RESTS, Page, where made, with a view to in- terest - - - - 214,518 upon an occupation rent - - 527 RESULTING TRUST, conveyance in the name of stran- ger, a trust results - - - 577 but a parol declaration prevents it - - - - - ib, 578 RETRACTATION, of bidding at auction sale - - 8 of offer before acceptance - - 106 REVERSAL, effect of, upon fund paid into court ----- 214 in the House of Lords, how to be executed by court below - - 215 REVERSION. See Remainder. falling in before contract com- pleted 83 sold with rent, not bound to show by whom payable - - - 179 time material in sale of - - 221 sale of, at inadequate price, where relieved against _ - _ 233 question is, whether a fair market price was given - _ _ 225 upon a life interest not forced on purchaser of the fee - - - 252 expectant on lease - - - 411 assignee of, with reference to cove- nants - - 471, 473, App. No. 2 interest on sale of - - 514, 517 where the sale is by court - 517 bill against a purchaser of rever- sion to perpetuate testimony - 615 REVERSIONER, liability of, for nuisance - - 47 when time runs against - - 398 REVOCATION, of power of agent - - 39, 40 of will, how effected - - 159,385 of will, by marriage - - - ib. by contract to sell, where - 156, 160 effect of repurchase of estate de- vised - _ - - 160, 161 general power avoids settlement against a purchaser - - - 593 RIGHT OF ENTRY. See Entry, Right of. RIGHT OF WAY, Page, where properly disclosed, 19, 273,274 RING-FENCE, estate described as within - - 276 ROADS, to be made, where a subject of compensation - - - . 253 ROMAN CATHOLICS, relief bill 565 SALES BY THE COURT, power of court to sell in suits - 73 in foreclosure suits - - - ib. charges for abstracts, conditions, &c. ----- 74 opinion of conveyancing counsel, ib. auctioneer appointed - - - 77 jiuffing at sale - - - - 78 reserved bidding, where authorised, 75 particulars, how prepared - - 76 what they should state - - ib. misrepresentation of rent - ib. advertisements - - - - 75 conducted, how - - - - 77 proceedings after the sale - 79, 81 deposit, regulations as to - - 78 possession, where given - - 82 if taken, purchase-money must be paid - - - - 83 new purchaser substituted, where, ib. purchaser re-selling at a profit without leave, estate entitled to profit 78 of more than sufficient, binding - 87 where proceedings irregular, how far purchaser is bound - 85, 87 how far binding on judgment cre- ditors 88 when the sale is complete - - 79 purchaser will be compelled to complete, Avhen - - - 80 will be discharged, upon what terms - - - - - 78 entitled to costs, if title bad - 84 and expenses of investigating title ib. may abandon the contract, and forfeit his deposit, where - 95 may be discharged where he has, by mistake, given an unrea- sonable price - - - ib. but there must not be delay, ib. is entitled to possession or rents, from what time - - - 82 Y y3 710 INDEX. 82 ib. ib. 83 - 85 79 SALES BY THE COVRT— continued. Page, not to profits belonging to another - - - - when entitled to life annuity - when to dividends of life interest, when to profits of colliery purchaser dying before confirm- ation of certificate, conveyance to his devisees - loss by fire, &c. before report con' firmed falls on estate life interest sold, purchaser bound although life drop - - 80,83 to an insane person, resale - - ib. purchase-money may be paid, when - - - - 81,83 may be applied in payment of incumbrances, where is entitled to a conveyance, when - - - conveyance to be settled, by whom - - - - - exceptions to conveyance or title, joint purchasers must pay their money together _ _ - court will not sell a bad title but will enforce an equitable title - reversion sold, purchaser entitled to possession, falling after con- firmation - - - - - sale must be made as ordered purchaser with notice, without remedy _ _ - - are not within the statute of frauds, purchaser enjoined from commit- ting waste _ - - - investment by purchaser's desire returned to him if sale rescinded, biddings will be opened, where, 90-9fi advance to be paid on opening biddings - - - - estate may be allotted in a dif- ferent manner not opened generally after con- firmation of certificate - but fraud sufficient party may open l)iddings though present at sale - - _ costs of opening biddings opening one lot opens all - several lots sold to several per- sons, separate motions to open biddings ib. - 81 83 84 82 78 - 84 83 86 ib. ib. 87 95 91 - 93 92 93 SALES BY THE COVRT— continued. Page, by private contract, not opened, 96 if Ijad title discovered before conveyance the money will be returned - - - 75,96 who are trustees, after decree for sale of settled estates under the powers of 19 & 20 Vict. - 412 solicitor buying in estate bound - ib. interest payable where estate is in possession - - - - 517 where it is in reversion - - ib. SALE OF EXTENDED ESTATE, if no title, purchaser discharged, but no costs - - - - 96 SATISFIED ATTENDANT TERMS, cessor of, &c. - - - - 411 SCIENTER, THE - - - - 278 SEAL, contract under, and subsequent agreement not - - - - 219 SEARCH, of register, notice to the extent of it 625 SEARCHES, condition as to expense of - - 28 what should be directed - - 345 for judgments, expense of, when recoverable - . - - 431 where to be made - - - 423 when to be made - - 345, 431 and for what period ~ - 345 for insolvency - - - - ib. for bankruptcy - - - ~ ib. for statute deeds, under substitu- tion for recovery act - - 438 and like deeds by husband and wife ib. for registered deeds in register counties - - - - - ib. should be, just before execution of conveyance _ - - 439 for annuities - - - - ib. attorney answerable for negli- gence - - - - - ib. so chief clerk of judgments - ib. or registrar of deeds - - ib. how far notice - - - - 625 - ib. SECRET PURCHASE, by trustee - -667 INDEX. 711 SERVICES AND SUITS, Page, under statute of limitations - 396 SET OFF, of mortgage against purchase- money - - - - - 149 not of costs against deposit, where purchaser's bill dismissed - - 537 SETTLED ESTATES, power in equity to sell them, 41'2, 413 SETTLEMENT, corrected, where - - 142, 144 voluntary ----- 586 where an equity to rectify it, is binding on purchaser - - 637 SHARES, purchaser of entirety not bound to take 262 but may elect to do so - ib, 264 where seller not bound to convey, 263 title to, in companies - - 314 SHEEP WALKS - - - - 258 SIGNATURE, requisite to valid agreement - 115 mustgiveauthenticity to the whole instrument - - - - ib. at beginning of the agreement sufficient - - - - - ib. by party, as a witness, valid - ib. so by agent, with authority - 116 of name of bidder, though an agent, sufficient - - - ib. of initials valid - - - - ib. on the back of conditions, &c. valid, 117 supplied by signed writing referred to - - - - - - ib. altering, &c. draft of conveyance, not a signing - - - - ib. by party to be charged, sufficient, 103 SIMPLE CONTRACT DEBTS, freeholds and copyholds, assets for, 504 marshalling for - - - - 560 SIXTY YEARS' TITLE, purchaser still entitled to - - 305 SLANDER OF TITLE, what is - - - - 299 SMALL RENTS, the subjects of compensation - 259 SOLICITOR, purchasing of client - - - 568 SPECIAL CASE, Page, may be stated for opinion of Court, 1 88 SPECIFIC CHATTEL, may be recovered at law - - 186 SPECIFIC PERFORMANCE. See Ageeements. grounds of relief - - 175,176 where of chattels - - - 175 under the new statutes - - 184 where no action can be maintained, ib. not enforced by court of review - 168 must be enforced as to the whole contract - - - - - 179 powers of common law over - 186 although relief at law - 177, 184 not where mistake or surprise or misrepresentation - 179, 180, 181 parties to bill for - - - 195 not where purchaser is turned out of possession - - - - 177 where seller has equitable estate, 292 in discretion of Court - - - ib. reference of title in suits for - 193 not against seller without title - 182 but purchaser may accept the title - - - - ib. 183 not where title doubtful or equit- able - - - - 292,320 against tenant in tail - - - 171 after decree, seller may dismiss his bill on purchaser's default - 215 of covenant for further assurance, 500 although seller bought his new title - - - - ib. 297 not if contract was inequitable, ib. covenants not to build, &c. en- forced - - - - 484, 485 not against purchaser where there is a voluntaiy settlement - - 592 will be enforced for him, though he had notice - - - ib. SPLITTING VOTES - - - 299 SPORTING, right of, not disclosed till after sale, but waived - - - 6 not a subject of compensation, 258 STACKING COALS, liberty of, not within statute of frauds 98 STAMPS, where letters are an agreement, only one stamp - - - 201 Y Y 4 712 INDEX. STAMFS-contimied. Page. either party may obtain the letter or agreement from the other to stamp it 200 draft without, may be given in evidence - - - - -117 the proper ones on conveyances, 456 provisions of new stamp acts, ib. et seq. seller bound to procure agreement for lease to be stamped - - 4G1 STANDING CROP - - - 100 STANDING UNDERWOOD - - ib. STATUTE OF FRAUDS, contract for sale of lands to be in writing, and signed by the person to be charged - - - - 97 nature of interests excepted, 97, 99 whether a licence is within the act, 99 agreement by tenant to pay an additional sum per ann. for im- provements, is binding - - 101 agreement for assignment of lease is within the act - - - 99 so is a sale of a standing croj) of grass _ - _ - 100 or of poles, underwood, or tim- ber growing - - - - ib. or a share in a mining company, 101 but a crop of wheat not; nor tim- ber as trees ; nor potatoes in the ground ; nor turnips ; nor grow- ing hops ; nor fixtures - 100, 101 or railway shares - - - 102 sale of crops by parol between tenants valid - - - - 101 where crops are goods and chattels Avithin 17th section - - - ib. agreement void as to part is void in toto ----- 102 signature of party to be charged sufficient ----- 103 a letter or a receipt is a sufficient writing . - - - 104, 105 but it must be stamped unless admitted by answer - - ib. and it must specify all the terras, 107 for a trifling omission will be fatal 109 but if it refer to a writing not signed, containing the terms, it is valid - - - - ib. the paper must l)e clearly re- ferred to - - - 111, 112 STATUTE OF YRXVH^— continued Page, how property may be identified - 109 reply by letter to an offer must be a simple acceptance - - - 106 and if special acceptance neces- sary, it must be expressed - 107 offer in writing fairly accepted binding - - - - 105, lOG may be retracted, before accep- tance - - - - lOG, 107 sent by post, when binding - 107 what entry by auctioneer in his books will bind - - - ll'i letter to third person sufficient - 113 bond of reference to fix price oper- ative - - - - - ib. rent rolls, &c. not an agreement although signed - - - ib. nor particulars of property - ib. sending an agreement as instruc- tions is binding - - ib. 114 draft of conveyance, reciting terms and approved, insufficient - 114 what is a sufficient signature - 113 agent may be authorised to con- tract by parol - - - - 118 but his clerk cannot act with- out special authority - - ib. and authority may be re- voked ib. auctioneer or his clerk an agent for both - - - - 111) sales by auction of estates are within the statute - - - 120 so is a sale in bankruptcy - - ib. sales before a master, &c. not within the statute - - - ib. or under the authority of the Court 121 or where the agreement is con- fessed by the answer - - ib. unless the defendant plead the statute - - ib. 122 sales not within the statute where it would protect fraud, as where agreement is to reduce the con- tract into writing, and prevented by fraud 123 or an agreement partly per- formed - - - - - ib. delivery of possession in gene- ral a part performance - ib. but ancillary acts are not - ib. where payment of additional INDEX. 713 STATUTE OF l-RAV BS-conilinted. Page, rent, or expenditure, willmake parol conti'act binding - - 123 acts done to the defendant's own prejudice not part perfor- mance - - - - - 125 nor payment of purchase-money, 124 part performance as to one lot does not extend to other dis- tinct lots - - - - 126 where part performance. Court will try to ascertain the terms, ib. parol agreement by tenant for life, with power to lease, not binding on remainder-man - - - 128 unless expenditure and acqui- escence - - - - - ib. contract by, cannot be enforced by ]'emainder-man - - 181 contract by, may be adopted by trustees so as to bind purchaser, 182 one of two persons desisting from treating, not a part performance, 57G plea of, allowed - - - - 1 22 STATUTE DEEDS, search for ----- 438 STATUTE OF LIMITATIONS. time limited for appeals or re- hearings - - - - - 190 the operation of the old law - 305 title nnder it - - - - 323 time run before act passed, counts, 39G right extinguished by new act - 395 entry to be within twenty years, 396 ejectment, the remedy - - ib. person through whom another claims where he had the right, ib. when time begins to run - ib. 397 where there was a possession - ib. in the claimant - - - ib. in a deceased person - ib. 398 in a grantor - - - - ib. mortgagee's right within twenty years after last payment - 397, 403 annuitant under will, when right accrues ----- 398 when time begins to run Avliere there is a reversion - - - ib. where no possession - - ib. where title by forfeiture, Ike. - ib. effect of previous possession - ib. several rights in one person barred - - - - - ib. STATUTE OF LIMITATIONS— con/. Page. administrator's right from death - 398 rent received from lessee a receipt of profits 396 tenant at will, when right against him accrues - - _ _ ,393 tenant from year to year, &c. by parol, when right against him accrues - - _ _ _ 399 tenant under lease at rent of 20 s. or more, when right against him accrues - - - - - ib. entry, effect of - - - - ib. coparceners, joint tenants, &c. in possession, not the possession of companions - - - . il,. possession of relation not the pos- session of heir - - - _ ilj. acknowledgment of title in writ- ing, effect of - - - - 400 disabilities allowed ten years - ib. but not beyond forty years, ib. 401 what places not beyond the seas, 400 n., 406 n. adverse possession not neces- sary ------ 400 time (forty years) runs against feme covert, when - - - ib. remainder-man barred, where - 401 base fees created before act, how affected - - _ _ - 402 voidable fees, how affected - - ib. suits in equity the same as actions, 213, 402 express trust, time runs from pur- chase for value - - - . ii), concealed fraud, time runs, from what period - - - • . 402 purchaser without notice not affected unless party to fraud, ib. mortgagor, where barred - - 403 church property and advowsons, when barred - - - - ib. money, legacies, &c. when barred, 404 dower, rents, interest, when barred, 40/3, 525 arrears of annuity, when barred - il). arrears of rent, when barred - ib. arrears of interest of subsequent incumbrance, wliere - - _ ij), rights of common, way, lights, when barred - - - _ 407 moduses and exemption from tithes, when established - - 406 714 INDEX. STEWARD OF A MANOR, Page, appointed for life not affected by sale of manor - - - - 167 bound by notice of admittances by him - . . - 636,037 STIPULATED DAMAGES, condition as to - - - - 32 STOCK, purchaser of life interest in, en- titled to first dividend - - 82 sale of, where specifically en- forced - - - - - 175 loss of purchaser by sale of, no ground for compensation - - 199 bought with purchase-money at seller's request, belongs to him - 520 STRANGER, effect of covenants for title entered into by - - - - - 476 purchase in the name of, and proof ----- 577 voluntary settlement on, where aided 591 STRIPS OF LAND NEXT HIGH- WAYS, title to - - - 257,261,313 between the house and the road - 261 SUBSALE 78, 95, 153, 165 SUBSTITUTION OF PURCHASER, before Court - - - 78, 95 SUCCESSION, hope of, devisable by will - 159, 384 SURETY, for debtor to crown Page. - 437 SUCCESSION DUTY, purchaser liable to 7,446 SUGGESTIO FALSI, a ground to refuse specific per- formance - - - - - 179 SUIT IN EQUITY, subject to statute of limitations - 213 confined to time in which action /^ may be brought _ - - 402 SUPPORT, vendor retaining part, bound to leave a support for land sold - 48 SUPPRESSIO VERI, a ground to refuse specific per- formance - - - - - 179 SURPRISE, a defence against a specific per- formance - - - - - 131 where seller's agent bidding for purchaser was considered a puff'er 180 where the purchaser was so con- sidered - - - - - ib. SURRENDER, must be by deed, where - 98, 410 of estate tail in copyholds - 172, 391 of term, when presumed - - 508 SURVEY, costs of, not recoverable if no title, 303 SURVEYORS, estimate of value, weight due to it, 235 SUSPICION, of fraud not binding on purchaser, 327, 636 against title not sufficient - - 320 TACKING, by subsequent mortgagee - 608, 609 TAXES, what is a sufficient statement of - 36 parol agreement to pay, cannot be proved for plaintiff - - - 135 tax-gatherer, how far a crown debtor 437 TENANT, inquiry of, as to his claims - 489 agreements for the sale and pur- chase of crops - - - 100, 101 failure of, purchaser bears the loss 530 effect of purchaser's dealing with, before conveyance - - - ib. claiming to hold adversely - - 22 TENANT FROM YEAR TO YEAR, purchase by - - - - 148 where vendor was to become, of estate sold - - _ . 246 not specifically enforced - 175, 246 under statute of limitations - 399 TENANT AT WILL, determined by contract - - 148 creation of, between vendor and purchaser - - - - 150 under statute of limitations, 598, 399 INDEX. 715 TENANT FOR LIFE, Page. when entitled to rents of estate directed to be sold - - - 55 of leasehold, Avhen entitled to pur- chase-money - - - - 1G7 trustees of power of sale not hound to adopt his contract - - 50 effect of improper payments to, by purchaser - - - - 89 forfeited deposit by a purchaser goes to settlement - - - 44 entitled to custody of deeds - 371 n. with power of leasing, cannot bind remainder-man by parol con- tract 128 under will, to convey to purchaser under devisor - - - - 1 09 where compelled to partially ex- ecute a power of leasing - - 254 with remainder in fee, selling in fee cannot enforce contract par- tially 255 but purchaser may take the partial interests, where - ib. 250 may purchase settled estates, al- though his consent is required to the sale - - - - 50, 570 merger of tithes by - - - 207 mortgagee under, with title deeds, without notice - - - - 370 may convey the fee under 13 & 14 Vict. c. 00 - - - - 381 exercise of easement during te- nancy for life, effect of - - 409 covenants for title, where - - 404 TENANTS IN COMMON, title to share of - - - - 355 possession of one, not the posses- sion of the other _ _ , 399 mutual right to deeds - - 369 purchase of several, and title only to some 202 contract by one, where not bind- ing without the other - - 204 contract by one to sell to the other _ . - - - 355 where joint purchasers are - - 574 TENANT IN TAIL, contracts by - - 171,353,354 fraudulent sale by - - 171 n. can make a title when, 853, 354, 449 defects in title under, made good, 386, 387 TENANT IN TAIL— continued. Page. who is deemed such within the act, 388 power to acquire the fee - - il). against whom disposition valid, ib. in contingency, his power - - ib. contracts void under the act, but may be enforced - - _ 389 voidable fee in purchaser con- firmed by subsequent act - - 888 but not against purchaser with- out express notice - - ib. base fee may be enlarged - - 892 where it merges - - 388 n. partial dispositions by - - 388 protector's power, &c. - 389, 890 by what deeds estates tail are to be barred - - - - ib. protector is to consent - 388, 889 husband of, must concur - - ib, deeds to be enrolled - - - ib. equity cannot relieve against de- fect 390 base fee created, not under act - ib. of copyliolds, his power - - 391 priority of subsequent purchaser without notice - - _ ih, where bankrupt, power in com- missioner to bar entail - - 892 provisions in favour of pur- chasers - - - - ib. protection to purchasers against deeds not enrolled - - 394 barred by time, remainder-man barred also - _ _ _ 401 time allowed to him not extended by his death - - - - ib. imperfect assurance by, time runs in favour of grantee against re- mainder-man - - - - 401 provision not retrospective - ib. judgments against, bind issue and remainder-men _ _ . 422 when to execute disentailing deed, on sale - - _ - _ 449 voidable estate in favour of a pur- chaser, where enlarged - - 004 so, in the case of bankruptcy - ib. vesting order under trustee act, with consent of protector, during infancy of tenant in tail 389 TENDER, conveyance to be tendered by the purchaser _ , - 20I, 202 716 INDEX. TERMS OF YEARS, Page. where less than that sold - - 247 title to 310 presumed to be surrendered where, 508 covenants for title run with them 4GG cease by force of proviso for cesser, where ----- 508 merge by an union with the fee, where ----- 504 satisfied attendant terms abolished, 411, 509 assigned in trust for purchaser, protect against what incum- brances ----- 509 where a protection against judg- ments - - - - 417,429 where against crown debts - 436 attend the inheritance by impli- cation, where - - - 510, 511 purchaser entitled to benefit, with- out assignment of, where - - 510 attendant, were not forfeited by felony, but followed an escheat, 504 TESTIMONY, bill to perpetuate it against a pur- chaser ----- C15 TIMBER, conditions for payment for - 13, 22 on copyholds, which cannot be cut - - - - - - 26 separately valued on sale by court, how biddings to be opened - 92 quantities omitted, cannot be sup- plied by parol - - - - 132 what is considered timber - - 26 agreement to sell standing, not within 4th sect, of statute - 100 interest runs from valuation - 517 purchaser restrained from cutting, before payment - - 148,193 option to purchase, personal estate after seller's death - - - 158 power to cut, upon notice - ib. n. ordinary, cut by seller after con- tract, subject of compensation - 530 but not ornamental - 197, 529 but coppice may be cut - - 629 blown down before conveyance, belongs to purchaser - - 530 TIME, allowed by conditions, confined by implication to purchaser - 33 TIME — continued. Page. fixed for completing contract is at law the essence of contract, 216,217,219 and cannot be varied or enlarged by parol at law - - -219 secus in equity - - - ib. where of the essence of the con- tract in equity - 17, 226, 227 material in equity where a party has not shown himself ready - - - - 219, 220 or where the sale is by eccle- siastical corporation - - 222 if vendor take no steps, although urged in time, equity will not relieve him - - - - 220 vendor will be relieved after the daj'', if not guilty of gross negligence - - - - ib. or the purchaser has waived the time - - - - 224 receiving an abstract, a waiver, ib. required for repairs of estate sold as in good repair not material, unless possession wanted - - 221 which a lease has to run not material, where - - - ib. no relief after long delay - - 222 is most attended to in sales of reversions - - _ - 221 or where estate is sold, to pay incumbrances, &c. - - ib. material where a public house is sold 222 delays occasioned by defects in the title not a bar in equity where time not material - - 222, 223 allowed a vendor in equity to procure a title, where - - 223 purchaser not to wait the result of new proceedings - - - ib. or until an account be taken - ib. not in general allowed after re- port 224 not material where purchaser pro- ceeds with knowledge of defects, ib. where no time is limited, 218, 228, 229 where time is of the essence, 228, 229 waiver of time, being of the es- sence ----- 224 where title at time of trial suffi- cient ----- 218 I N D E X. 717 TIME — continued. Page, &CCUS, if vendor cannot verify his abstract at the time limited - 218 dormant treaty enforced if con- tract not abandoned - - - 225 vendor bound by acquiescence in purchaser's rejection of title - ib. allowed to cure objections - - 223 not where a new suit necessary, ib. notice to complete within a period fixed - - . - 225, 227 inquiry at what time title made, 229, 294 for production of deeds, enlarged in equit}' ----- 359 where a bar by non-claim - - 395 where by death or bankruptcy purchase-money cannot be paid, vendor may rescind - - - 225 enlarged by conduct of seller or purchaser - - - - 210 may be made of the essence of contract, in equity - - 17, 226 but may be waived - - 219, 225 the effect of delay where no time is appointed - - - - 218 bill filed prematurely - - - 177 TITHES, where a subject of compensation, 266, 267 whether estate is tithe-free is a question of fact - - - 267 commutation of - - - - ib. power to merge - - - - ib. not an incumbrance - - - 268 impropriate, grant of - - - 358 merger of, &c. - - - ib. title to 306 title to an estate free from - - 307 modus, title to - - - - ib. how affected by statute of limita- tions 396 exemptions from , when established by time 406 covenant to contribute to expense of suit for modus does not run - 486 TITLE, where it should be inspected before sale . . - - i doubtful, purchaser should not take possession - - - - 6 right to, implied from contract - 14 "l.V^liY^— continued. Page. what condition excludes the right to - - - - - 14, 29 ^ or confines it to an equitable interest - - - - 15 may be proved bad aliunde - ib. where the abstract shows a de- fective title - - - - ib. condition not to require mort- gagor's concurrence - - - ib. to accept a bond for title - 16 bad, where tenant in adverse pos- session ----- 22 condition that deeds, all that he has, shall be delivered up, does not bar right to title- - - 16 condition where vendor's title is deemed doubtful - - - ib. deeds may be required to prove title, although purchaser not entitled to their custody - - 26 proceedings on, before the court - 84 costs of, in purchase of court when title bad ----- ib. stipulation for, cannot be waived at law - - - - - 136 inquiry as to title under new law, 191 purchaser may take the title such as it is - - - 182, 183,261 will be referred before the answer, &c. where - - - - 193 at what time title must be shown at law 218 in equity at date of report, or pur- chaser discharged, where - - 223 sold with all defects, false state- ment, not fraudulent, immate- rial 279 seller must make a good title though claiming under purchaser as mortgagee, where - - 280 good, right to under contract by law "- 281 condition that purchaser shall accept the title, valid - 14, 281 but must be unambiguous - 15 what statement will not bind purchaser - - - 15, 16 condition not to require lessor's title - - - - 14, 15 right to good title not excluded by stipulation to produce a title prior to the last conve^-ance, where - - - - - 15 718 INDEX. TlTLE~co7itinued. Page. condition to accept ground by a description in the deed, existence of ground must be shown - - Ip condition to accept a bond for title, binding ----- 16 ] conditions to make contract void if title objected to - - 16, 17 condition to avoid contract by a day if title not made, is at the purchaser's option - - - 18 what amounts to a waiver of - 286 accepted by possession and abstract, not objecting - - - - ib. accepted by lease, conveyance, &c., 287, 288 by re-sale, &c. - - 288 by contract after notice - 289 by acquiescence, without possession . - - 290 not by opinion of purchaser's couiisel - - - 289, 291 nor by acts of ownership after an authorised possession - 287 acceptance of, confined to abstract, 289 no acceptance by acts, whilst ob- jections maintained - - - 290 purchaser not compelled to take bad title, though after waiver - ib. reference of, in suits for specific performance - - 292, et scq. good, if party entitled agree to join, 293 bad, shown by abstract, purchaser not bound by filing bill - - 294 inquiry at what time made - ib. 354 where bad, must be accepted or rejected - - - - - ib. good, should not be reported con- ditionally - - - - 296 vendor acquiring a title after sale, effect of - - - - - 297 no relief against neglect to examine title 298 sale of pretended - - - ib. action for slander of - - - 299 amount of incumbrances, no ob- jection - - - - 351,352 may be valid, although no cove- nant to produce deeds running with the land - - - - 404 root of, under the old law - - 305 prior, where to be produced - 306 root of, under the new law, sixty years ----- 805 to lay tithes - - - - ib* TYILE— continued. Page, to estate free from tithes - - 307 to modus ----- ib. to advowson - - - - ib. lessor's title to be produced on sale of lease - - - - ib. even at law - - - - ib. but purchaser bound by notice of inability to produce the title 308 and is bound by agreement, although title bad - - - ib. but in general may show title is bad aliunde - - - ib. of lessor, a bishop, cannot be required - - - - ib. root of lessor's title, where lease sold ib. 309 to renewable leaseholds - - ib. to equitable estate - - - 310 to enfranchised lands - - ib. to exchanged lands - ib. 811, 315 to allotments - - - ib. 311 to strips of land next highways, 313, 325 to encroachments, &c. - - ib. to easements - - - 313^ 409 to a pew - - - - - ib. to land-tax - - - - ib. to share in mining company - 314 to railway shares - - - ib. to bankrupt's estate - - - ib. to a chose in action - - ib. 315 to share of tenant in common - 314 to estate charged for benefit of infants - - - - - 316 with indemnity, Avhere enforced - ib. to apportioned rent - - - 3I8 of leaseholds bad, where sale in lots, and lessor has power of re- entry 317 doubtful, not enforced against purchaser _ _ _ _ 320 where right of entry for mines re- served to Crown, &c. - 326, 327 suspicion of fraud, its operation on title - - - - - ib. suggestion of old entails, &c. its operation on - - - 326, 327 depending on presumption - - 331 depending on a pedigree - - 835 where third party has filed a bill - 327 to long term and forfeited mort- gage in fee, not good - - ib. INDEX. 719 TITLE — continued. Page. where part of estate not described in deeds, bad - - - - 327 depending on destruction of con- tingent remainders, valid - - 323 or on statute of limitations - ib. 395 what title purchaser compellable to take in equity - - 323 n. 395 although there has been a volun- tary settlement - - - 324 equitable, when enforced on pur- chaser - - - - 84, 329 to reversion _ _ _ _ 320 without title deeds - - 350, 364 when good title shown - - 351 under power in mortgage-deed, good - - - - - 53 effect of act of bankruptcy on - 329 cases where titles decided to be good at law - - - 321, 382 at law, not doubtful - - - 332 equitable objections to, considered at law - - - - ib. 333 depending upon questions of fact, 333, 336 under old statutes of limitation, 305, 323 defective, no relief after comple- tion ------ 441 not examined, purchaser's risk - 442 purchase with all defects of title - - - - - 443 to what covenants for, a purchaser is entitled - - 462, et seq. joint purchasers, one paying, the other must accept the title - 576 where there is a voluntary settle- ment 592 defective, purchaser entitled to what relief after conveyance, 441, 445 person joining upon purchase to obviate an objection, not bound unless it is fully stated - - 610 but if general statement, he will be bound - - - - ib. slander of - - - - - 299 TITLE DEEDS. See Deeds. lost, effect on contract - 363, 364 where no protection to a purchaser, 361 title without deeds - - 350, 364 production of - - - - 368 destruction of - - - 359, 364 go with inheritance - - - 860 TITLE D^FJ)^— continued. Page, execution of - - - 364, 365 grant of - - - - - 367 registration of - - - - 598 recovery of by purchaser - - 361 TOLLS, title to 284 TRADE, estate purchased for : plant, 222, 561 sale of, valuation, rent and interest, 528, 624 TRADER, conveyance by, where valid - 581 purchase by, in wife's name - ib. TREASON, traitors can purchase, but not hold, 564 TREASURY, may consent to sale by Crown debtor - 437 TREATY, representations on, at an end when agreement signed, unless there be fraud - - - - 45, 204 desisting from, not a part perfor- mance - - _ _ _ 57g TROVER, for deeds belonging to purchaser, 361 TRUST, how affected by statute of limita- tions 402 TRUSTEE ACTS OF 1850, &c., 169,449 TRUSTEES, answerable to purchaser for false representation of incumbrances - 7 notice of sale of equitable interest to be given to them - - - ib. liability of, for deposit - - 42 should ascertain value of property before sale - - - - 48 reasonable price, what it means in trust for sale - - - - 49 may sell by private contract, where, ib. may sell in lots - - - - 50 sale by auction binding, though full price not obtained - - 50 selling without due diligence, purchaser not assisted - - ib. 720 INDEX. TRUSTEES — continued. Page. " convenient speed," ■what it means in trusts foi* sale - - ib. time for sale limited, extended by equity - - - - - 5G may buy in estate _ - - lb. Avlien sale by, will be stayed 1)y equity - - - - - 51 should sell immediately, and not mortgage ■where trust for conver- sion out and out - - - ib. cannot sell without leave of court, where bill filed - _ - ib. cannot impose beneficial condi- tions for creator of trust - - ib. all liable, if sale not duly made - ib. or purchase-money is retained by one and misapplied - - ib. liable to make the same title as \enAo\s sui juris - - - 54 when liable to furnish attested copies of deeds, &c. - - - ib. purchaser from, entitled to com- pensation for deficiency in quan- tity - - - - ib. 55 cannot sell to themselves - - 55 of legal estate must convey to equitable trustees to sell - - ib. of power of Sale or exchange, how they should act ... ib. acting bond fide, cannot be con- trolled by equity - - - 56 nor bound to adopt contract of tenant for life - _ - ib. may sell to tenant for life, though his consent is required to the sale ib. their contract binds the es- tate - - - - ib. 175 discretion not controlled - - 181 effect of trustees selling contrary to obligation - - - - ib. liability of, for purchase-money, or costs - - - - - 56 under disabilities, empowered to convey ----- 169 who are trustees after a decree for sale _ - - . 030,381 upon whom expenses of vest- ing order under trustee act falls 452 upon express trusts, how time runs upon alienation - - 402 can convey, discharged of judg- ments, where - - - - 416 506 TRUSTEES — continued. Page, covenants by, how construed - 491 their receipts are discharges for purchase-money, where - - 541 new trustees appointed by court can give receipts - - 548, 549 every trustee who accepts the trust must join in the receipt, 547 but not if he renounced - cannot buy the trust estate unless discharged from the trust, 570 for creditors cannot buy without consent of all - - - - ib. for persons not sui juris cannot buy without the sanction of equity ----- ,571 but such a purchase may be con- firmed under circumstances - 569 a relation of, may purchase, unless fraud - - - - - ib. remedy of cestui que trust against trustee selling to himself - - 571 mortgagee may set aside the sale - - - - - ib. cestui que trust \)S.XYQ^ Ijy laches, or confirmation - - - 573 where their purchase set aside, al- lowed interest and pay rent - 527 the terms upon which their pur- chase is set aside - . . 571 estate to be reconveyed or re- sold - . - - - ih. purchasing with trust money estate l)ound, where - - . 582 where trustee bound to buy, trust will attach - - - 583 unless he claimed the pur- chase-money - - - ib. upon express trusts cannot give a protection to a purchaser - - 609 may refuse to attack a purchaser's title ib. selling improperly, new title in him bound - - . - 620 TRUST ESTATES, bound by judgments 429 TRUST MONEY, invested in a purchase can be fol- lowed, where - . « - 582 UNCERTAINTY, ground for refusing specific per- formance ... - 178 INDEX. 721 UNDERLEASE, Page, charge upon - - - - 152 notice of covenants in lease - 179 sold as lease, purchaser not bound, 248 not decreed on agreement to assign, ib. where act of underlessee not within covenant for title - 489, 490 UNREASONABLE CONSIDERA- TION - - - - 230, 231 USAGE, explanation of ancient statutes by, 141 USE AND OCCUPATION, action for, against purchaser, does not lie, where no title - 149, 1.50 where it lies under contract - 151 against vendor lies, where - - ib. USES, whether deeds pass with seisin - 8G6 conveyance to, with whora the covenants should be entered into, 467 rents created by, where covenant to pay runs with them - 469, 479 USUAL CONDITIONS OF SALE, benefit of - - - - - 34 USUAL COVENANTS, lease described as held under - 21 notice of - - - - - 179 for title 462 USURY, laws repealed - - - 439, 527 VALUE, false affirmation of - - 8, 177 increased, before conveyance be- longs to purchaser - - - 530 of estates, purchased under cove- nant, at what time to be taken - 585 covenant as to value - - - 497 VALUATIONS, need not be communicated to pur- chaser ----- 3 may be made by trustees - - 48 not a part performance - - 123 ambiguous statements as to what timber to be valued - 25, 26, 132 by actuary . - - - 235 by surveyors - - - - ib. by arbitrators - - - - 237 VARIATION, Page, by parol, not admissible in proof, 135, 1.36 but if part performed, will be enforced by equity - - 137 l)y parol, where agreement com- jnises lands and goods, void as to all ib. VENDOR, ignorant of defects in estate not answerable - - _ _ i not bound to disclose patent de- fects 2 but must not conceal them, ib. 279 and is bound to disclose latent defects - - - - 2, 277 is not bound by false affirmation of value ----- 2 but is for false affirmation of rent ----- 3 or of a valuation - - - ib. must not conceal incumbrances, 5, 277 of leasehold, entitled to indem- nity 30 liable for loss by auctioneer's insol- ^ vency - - - - - 42 a trustee for purchaser - - 146 his bankruptcy or death does not avoid the contract - - ib. 147 in prison for debt, may sell - 177 effect of turning purchaser out of possession - - - - ib. not being absolute owner - - 181 where entitled to both estate and money ----- 244 can only assign purchase-mone}' subject to purchaser's rights - 450 may pretend to sell as agent, where - - - - - 184 restrained from conveying away the legal estate - - - 1 92 but not from disposing of his pro- perty ----- ib, selling to a second purchaser - 196 liable to interest, where - 525, 526 his lien on estate sold for pur- chase-money unpaid - - 552 must make good a defective con- veyance, where - - - 612 although he has acquired title, subsequently _ _ - 297 selling an estate subject to leases, whether he can set them aside after the sale - - - - G19 Z Z 722 INDEX. VERBAL CONTRADICTIONS, Page, of particulars, &c. of sale, void - 12 VESTING ORDER, under 13 & 14 Vict. c. 60 331 VOID AND VOIDABLE, sale to be void by default of either party, is at the option of the other 18 VOIDABLE FEE, how affected by new statute of limitations _ _ _ - 401 created by tenant in tail, where confirmed _ _ _ _ 388 not against purchaser without express notice - ~ - ib. VOLUNTARY CONVEYANCE, void against purchasers - - 68G ■what consideration in purchaser sufficient - _ _ - 587 ■what interest he must purchase, ib. purchase by father, in the name of child or wife, not voluntary - 589 two voluntary conveyances, the first prevails although second grantee sell _ - - - 587 notice to purchaser of conveyance immaterial _ _ - - 588 pledge of deeds invalid against - ib. may become good by matter ex post facto - . - - - 592 what is a valuable consideration, 588-591 whether consideration of mar- riage extends to collaterals - 589 parol evidence admissible, al- though apparently voluntary - 592 purchaser with notice of, whether he should complete - - - ib. specific performance not en- forced against him - - ib. will be enforced for him, though he bought with notice - - - - ib. aided by equity, where - 591 , 593 voluntary settlor not restrained from selling - - - - ib. VOTES, conveyance to multiply them - 299 WAGERING POLICY, sale of hope of succession is not - 299 WAIVER, Page. of objection, what amounts to, 7, 252 of demand of possession - - 219 of time, by receiving abstract, &c. - - - - - - 224 of time being of Ihe essence - ib. of reference of title - . - 292 by parol of written agreement, 136, 137 clear evidence required - 137,139 and contract must be dissolved, l."7 whether it operates at law, ib. 139 of a parol agreement, effect of - 139 of tenure of property - - 252, 258 of fraudulent misrepresentations, 279 WAIVER OF TITLE, by acquiescence _ . _ 290 by possession - - - 286, 295 of objection to right of sporting, no compensation - 6, 258, 286 by lease, conveyance, &c. - - 287 by acts of ownership, where - ib. by re-sale, where _ . . 288 of lessor's title - - - - ib. by contract for purchase after notice 289 not, by opinion of counsel - - ib. yet compensation allowed for part, 286 relying upon one objection not a waiver of another - - - 290 rebutted by seller's producing further title - - - - 295 of right to title, by previous notice 289 WALL, evidence upon dispute between two purchasers - - - 21 concealment of defects, &c. in, 179,279 WANT OF PARTIES WARRANTY, on sale of goods - 642 n. 281 n. WATERCOURSE, right of, under new limitation act . _ . - . 408 covenant by grantor to cleanse it, runs with his land - - - 481 covenant by purchaser not to sell water from ■well to injure seller's waterworks, whether it runs - 486 INDEX. 723 W ATERCOVRSE— conti7iued. Page. covenant for purchaser to draw water not included in a covenant for seisin in fee - - . 492 rights of water held only for years - - _ _ _ 251 WATER MEADOW, misdescription of 2,275 WAY, reserved or granted by implica- tion on sale - - - 19 n. foot, binding on purchaser - - 273 what is not misrepresentation of, ib.274 rights of, description in particu- lars 19, 265 effect of exhibition of plan of new street, &c. - - - - ib. right of, under new limitation act 408 obstruction of, by gate, a breach of covenant for quiet enjoy- ment - - _ _ _ 498 WEARING OF LIVES, allowance for - - App. No. 2 WHARF AND HOUSE, sold together, and title to one only . . - . 261, 262 WHEAT 100 WIDOW, dower of, out of equitable estate, 161 oiit of mere legal estate - free bench of - - - 379 172 WILFUL DEFAULT, Page. purchaser not charged or in ac- count, where sale set aside for inadequacy - - - -213 where seller or purchaser answer- able for as to rents - - - 630 effect of, in stipulation as to in- terest 623 WILL, production of probate of, as evi- dence - - - - 340, 343 execution of - - - - 8'44 must be produced, although ino- perative and seller is heir - - 365 need not be proved in equity - ib. how to be executed - - - 160 revocation of - - - - 159 all wills to be executed in the same manner - - - - ib. where it should be registered - 699 WITHOUT RESERVE, 8 WITNESS, signature by party as a witness, where binding - - - - 116 so by an unauthorised agent - ib. to a deed, not bound by its con- tents 637 where his evidence may be dis- pensed with - - - 364 n. two witnesses required to a will, 159, 160 WOODS, representation of produce of - 277 LONDOK : PRINTED BY HENRY HANSARD, NEAR LINCOLN'8-INN FIELDS. LAW BOOKS PUBLISHED BY H. SWEET, 3, CHANCEEY LANE, Eontron. SUGDEN'S (LORD ST. LEONARDS) VENDORS AND PURCHASERS. A Treatise on the Law of Vendors and Purchasers of Estates. The Thirteenth Edition, with important Additions. By Edward Sugden, now Lord St. Leonards. This Edition contains between 1,100 to 1,200 Cases, in addition to those in the last Edition ; and it will restore the Work to its original character of a Practical Treatise, whilst, like the last Edition, it will still be a concise and prac- tical view of the subject. The Author has bestowed great pains on this Edition. In 1 vol. royal 8vo. Price 1/. 10«. cloth. 1857 SIR E. V. W^ILLIAMS ON EXECUTORS AND ADMINISTRATORS. A Treatise on the Law of Executors and Administrators. By Sir Edward Vaughan Williams, one of the Judges of Her Majesty's Court of Common Pleas. Fifth Edition, much enlarged. Price 3^. \os. 6d. 1856 COLE'S LATV AND PRACTICE IN EJECTMENT. 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A Compendium of the Law of Merchant Shipping, with an Appendix, containing all the Statutes of practical utility. By Frederick Philip Maude and Charles Edward Pollock, Esqrs., of the Inner Temple, Barristers at Law. In 1 vol. Svo. Price 20«. cloth boards. 1853 ■WOOLRYCH'S METROPOLIS BUILDING ACT, 1855. The Metropolis Building Act, 18 & 19 Vict. c. 122; with Notes, Introduction, Glossary, and Indexes. By Humphry William Woolrych, Serjeant at Law. In 12mo. Price 5s. boards. 1856 " He has abundantly annotated the recent Statute, familiarly explained its provisions, copiously indexed it, and printed it in a small volume, so that it can easily be carried about. This is precisely what was wanted, and being wanted, it will be sure to succeed." — Law Times, \2lh April, 1856. H. SWEET, CHANCERY LANE. TVOODFALIi'S LAW OF LANDLORD AND TENANT.— BY H. HORN. A Practical Treatise on tliu Law of Landlord and Tenant, with a full Collection of Precedents and Forms of Procedure. By S. B. Hakkison, Esq. Seventh Edition. By Henry Horn, Esq., Recorder of Hereford. In 1 thick vol. royal 8vo. Price 11. lis. 6d. cloth. 185C GALE'S LAW OF EASEMENTS. A Treatise on tlie Law of Easements. By Charles James Gale, Esq., of the Inner Temple, Barrister at Law. The Second Edition. In 1 vol. 8vo. Price 16*. boards. 1849 ^VISE'S BANKRUPT LAW^. The Bankrupt Law Consolidation Act, 1849 (12 & 13 Vict c. 106), with the New Rules, an Introductory Analysis and Notes, and a very copious Index. The Second Edition, greatly enlarged, and containing the Practice under the Abscond- ing Debtors Arrest Act. By Edward Wise, Esq., of the Middle Temple, Barrister at Law. In 1 vol. 12mo. Price lis. cloth boards. 1853 SW^EET'S LIMITED LIABILITY ACT, 185 S. The Acts for the Registration, Incorporation, and Regulation of Joint Stock Companies (7 & 8 Vict. c. 110, and 10 & 11 Vict. c. 78), under which Companies, with Limited Liability, are to be formed. With an Introduction, Notes, Forms, and Index. By George Sweet, Esq., of the Inner Temple, Barrister at Law, Editor of Bythewood's Conveyancing. In 12mo. Price 9*. cloth. 1855 Contents: I. Introduction. — 1. Liability of Ordinary Partners.— Sharing Profits. — Provisional Commit- teemen. — 2. Joint Stock Companies at the Common Law, by Charter or Letters Patent, and by Private Act. — 3. The Joint Stock Companies' Registration Act. — Provisional and Comjilete Registration. — Duties, Liabilities and Powers of Promoters, Shaeholders and Directors. — Con- tracts, Bills of Exchange, &c. — 4. Companies with Limited Liability. — Whether Certificate conclusive. — Execution against Shareholders. — Evasion of Limited Liability. — Increase of Capital prohibited. — Auditor. — Dissolution. — Winding-up Acts. IL The Statutes, with Notes, %c.—1 & 8 Vict. c. 110 ; 10 & 11 Vict. c. 78 ; 18 & 19 Vict. c. 133. List of Fonus for Registration and Scale of Fees. III. Appendix. — Precedents of Deed of Settlement, Abstract of and Schedule to Deed, Supple- mentary Deed for obtaining Limited Liability, Declaration by Promoters, Petition and Licence to hold Land. — Observations on the Rule for ascertaining the Debtor in Mercantile Trans- actions. — Index. BATEMAN'S GENERAL TURNPIKE ROAD ACTS.— BY ^VELSBY. The General Turnpike Road Acts; with Notes, Forms, &c. Fourth Edition. By W. N. Welsby, Esq., Barrister at Law, Recorder of Chester. In 12mo. Price 12s. cloth. 1854 OLIPHANT'S LAW^ OF HORSES, GAMING, ETC. The Law of Horses ; including the Bargain and Sale of Chattels : also the Law of Racing, Wagers, and Gaming. By George Henry Hewitt Olipuant, Esq., of the Inner Temple, Barrister at Law, Author of " The Law of Pews and Pro- hibition," " The Law of Church Ornaments," &c. Second Edition. In 1 vol. 12mo. Price I2s. cloth boards. 1854 10 LAW BOOKS PUBLISHED BY SHEIiFORD'S REAL PROPERTY STATUTES. The Real Property Statutes passed in the Reigns of William IV. and Queen Victoria, including- Prescription, Limitations of Actions, Abolition of Fines, &c., Payment of Debts, Wills, Judgments, &c. ; the Trustee Acts, and Leases and Sales of Settled Estates ; with copious Notes and Forms of Deeds. Corrected and enlarged with New Cases and Statutes. By Leonard Siielford, Esq., Barrister at Law. Sixth Edition, with many Alterations and Additions. In 1 thick voL 12mo. Price 1/. 5s. boards. 1856 SYDNEY SMITH'S PRINCIPLES OF EQUITY. A Treatise on the Principles of Equity. By John Sydney Smith, Esq., Bar- rister at Law, Author of "The Practice of the Court of Chancery." In 1 vol. 8vo. Price U. 5s. cloth. 1856 " A Work on the Principles of Equity was required both by the Practitioner and Student. This desideratum has been ably supplied by Jlr. Sydney Smith." — Legal Observer, Nov. 8, 1S56. SUGDEN'S TREATISE ON POAVERS. A Practical Treatise on Powers. By Sir Edward Sugden (now Lord St. Leonards). The Seventh Edition. In 2 vols, royal 8vo. Price 2/. boards. 1845 SUGDEN'S LA-W OF PROPERTY. A Treatise on the Law of Property, as administered by the House of Lords; with an Introductory Chapter on the Jurisdiction of the House of Lords. By Sir Edward Sugden (now Lord St. Leonards). In 1 vol. royal 8vo. Price 1/. lis. 6d. cloth boards. 1849 SUGDEN'S REAL PROPERTY STATUTES. An Essay on the New Statutes relating to Limitations of Time, Estates Tail, Dower, Descent, Operation of Deeds, Merger of Attendant Terms, Defective Execution of Powers of Leasing, Wills, Trustees, and Mortgagees. By Sir Ed- ward Sugden (now Lord St. Leonards). In 1 vol. 8vo. Price 16s. cloth boards. 1S52 CLERK'S LAVr OF ELECTIONS. A Practical Treatise on the Law of Elections of the United Kingdom, and " The Conrupt Practices Prevention Act, 1854;" with an Appendix of Statutes. By John Clerk, Esq., of the Inner Temple, Barrister at Law. In 1 vol. royal Timo. Price 10,5. 6d. cloth boards. 1855 Also, hij the same Author, The Law and Practice of Election Committees, containing all the recent De- cisions of Election Committees ; with an Appendix of Petitions and Statutes. Price 12s. cloth, 1852 " We have read several of the most important Chapters, and have looked carefully through the whole Work, and we can with confidence recommend it to any person requiring information upon the subject treated of. The style is concise and clear, and the absence of professional jargon will, we are sure, render it a favourite handbook with members of the House of Com- mons. In an Appendix the Author gives a collection of useful Forms, and the Statutes to which reference has most frequently to be made.'' — The Leader, October 9, 1852. H. SWEET, CHANCERY LANE. 11 TOULMIN SMITH'S NUISANCES REMOVAL ACT, 1855. Practical Proceedings for the Removal of Nuisances and Execution of Drainage Works in every Parish, Town, and Place in England and Wales, under the Nuisances Removal Act, 18.55, and by other course of Law, with numerous Pornis and complete Instructions for the conduct of Parish Committees. To which is added " The Diseases Prevention Act, 1855." By Toulmin Smith, Esq., Ban-ister at Law, Author of " The Parish," &c. &c. The Second Edition, greatly enlarged. In 12mo. Price 5s. boards. 1856 Books of FORMS necessary for carrying into operation the Nuisances Re- moval Act for England, 1855. Prepared, with Instructions for use, by Toulmin Smith, Esq. I. Presentment Book for Entry of Complaints. (100 sheets in each book, price 7*. 6d. bound.) II. Inspector's Report Book. (100 sheets in each book, price 7s. Gd. bound.) III. Order of Authorization to Inspector. (100 sheets in each book, price 6s. bound.) IV. Notice of Application for Order of Admission. 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The Common Law Procedure Act, 1854 (17 & 18 Vict. c. 125) ; with Treatises on Injunction and Relief. By Henry Thurston Holland and Thomas Chandless, jun., of the Inner Temple, Esqrs., Barristers at Law. Also, a Trea- tise on Inspection and Discovery, under the above Act and the 14 & 15 Vict. c. 99. By Charles Edward Pollock, of the Inner Temple, Esq., Barrister at Law. Together with Notes, Cases, Index, and the New Rules and Forms of Michaelmas Vacation. In 1 vol. 12mo. Price 10s. cloth boards. 1854 12 LAW BOOKS PUBLISHED BY JARiaAN'S N£W^ CHANCERY PRACTICE. The New Practice of the High Court of Chancery, relative to the conduct of Suits by Bill, Claim, or original Summons, and to Proceedings in the Judges' Chambers and Masters' Offices, including Forms of Costs and numerous other Forms, the Practice relating to Special Cases, the several Acts concerning Trustees and Charitable Trusts, and the Indemnity of Executors and Administrators, with the Orders and Decisions of the Courts thereunder ; and a copious Index. Second Edition. In 12mo. Price 18s. cloth. 1854' " The plan of placing in one continuous series, under one general headins, all tlie ordinary proceedings of a suit, and of thus showing the several proceedinfj;s in each form of suit, adopted by Mr. Jarnian in his first Edition, tofjether with the lucid methodical treatment of his subject, have been appreciated by the Profession, and a second Edition has been called for. We wish it a rapid sale." — Law Magazine, No. 106, Feb. 1855. SMITH'S IiAW^ OF MASTER AND SERVANT. A Treatise on the Law of Master and Servant, including therein Masters and Workmen in every Description of Trade and Occupation ; with an Appendix of Statutes. By Charles Manley Smith, of the Inner Temple, Special Pleader. In 1 vol. 12mo. Price \2s. cloth boards. 1852 Contents of the Work : Table of Cases. Introduction, Chap. I. The Parties to the Contract; who may contract the Relationship of Master and Servant. Chap. II. Contract of Hiring and Service. Chap. III. The Duties of the Servant to the Master, and the Rights and Remedies of the Master to enforce the Performance of them. Ciiap. IV. The Duties of the Master to the Servant, and the Rights and Remedies of the Servant to enforce the Performance of them. Chap. V. The Liability of a Master to Third Persons for the Acts of his Servant. Chap. VI. The Liability of a Servant to Third Persons for Acts done on behalf of his Master. Chap. VII. The Servant's Character. Chap. VIII. Offences by Servants against their Masters. Chap. IX. Jurisdiction of Justices in Disputes between Masters and Servants. Chap. X. Combination amongst Masters and Workmen. Chap. XI. Legacies to Servants. Appendix of Statutes from 5 Eliz. c. 4 to 14 & 15 Vict. c. 11. STAMP'S COMPREHENSIVE INDEX TO THE STATUTE LAW. Stamp's Comprehensive Index to the Statute Law of England, brought down to the present time. Second Edition, much enlarged. Price 14«. cloth. 1853 HAYES AND JARMAN'S CONCISE FORMS OF V/IIiIiS. Concise Forms of Wills, with Practical Notes. By W. Hayes and Thomas Jarman, of the Middle Temple, Esqrs., Barristers at Law. The Fourth Edition, enlarged. In 1 vol. royal 12mo. Price \5s. cloth boards. 1849 CHITTY'S EQUITY INDE X.— B Y MACAULAY. Chitty's Index to all the Reported Cases, and Statutes, in or relating to the Principles, Pleading and Practice of Equity and Bankruptcy in the several Courts of Equity in England and Ireland, the Privy Council and the House of Lords, from the earliest period. Third Edition. By J. Macaulay, Esq., Barrister at Law. In 4 thick volumes, royal 8vo. Price "il. Is. cloth. 1853 H. SWEET, CHANCERY LANE. 13 BURN'S JUSTICE OF THE PEACE AND PARISH OFFICER. The Twenty-ninth Edition, corrected and greatly Enlarged, containing the Statutes and Cases to 7 & 8 Vict, inclusive ; with a New Collection of Precedents. The title "Poor" by Mr. Commissioner Bere, of the Exeter District Court of Bankruptcy ; the rest of the work by Thomas Chitty, Esq., of the Inner Temple. With a Supplement, containing the Cases and Statutes to Hilary Term, 18.52. By Edward Wise, Esq., Barrister at Law. In 7 very thick vols. 8vo. Price Tl. \Qs. strong cloth boards. 1845-52 SUPPLEMENT TO CHITTY'S BURN'S JUSTICE.— BY W^ISE. A Supplement to the Twenty-ninth Edition of Chitty's Burn's Justice of the Peace and Parish Officer, containing all the Cases and Statutes to Hilary Term, 1852. By Edward Wise, Esq., of the Middle Temple, Barrister at Law. In 1 thick vol. 8vo. Price \l. 8.5. cloth boards. 1852 BURN'S ECCLESIASTICAI. LAW.— BY PHILLIMORE. The Ninth Edition, corrected, with very considerable Additions, including the Statutes and Cases to the time of Publication. By Robert Piiillimore, Advo- cate in Doctors' Commons, Barrister of the Middle Temple. In 4 vols. 8vo. Price 3/. 16s. boards. 1842 ■WORDSWORTH ON JOINT-STOCK COMPANIES. The Law of Railway, Canal, Water, Dock, Gas and other Companies, requiring express Authority of Parliament, together with the Law of Abandonment and Winding-up, and that of Parliamentary Costs ; with Forms and all the Statutes, including the Consolidation Acts of 1845 and 1847. Sixth Edition. By C. F. F. Wordsworth, Esq., Barrister at Law. Royal 8vo. Price \l. lis. Qd. cloth. 1851 W^ISE'S COMMON LAW^ PROCEDURE ACT. The Common Law Procedure Act, 15 & 16 Vict. c. 76, arranged in a Practical Form, with an Introductory Analysis of the Changes effected by the Statutes ; the New Rules, Tables of Fees and Costs, the Cases to time of Publication ; Explana- tory Notes and Copious Index. By Edward Wise, Esq., of the Middle Temple, Barrister at Law. 12mo. Price 13s. cloth boards. 1853 POLLOCK'S NEW^ LAW OF EVIDENCE. A Treatise on the Power of the Courts of Common Law to compel the Produc- tion of Documents for Inspection ; with an Appendix, containing the Act to Amend the Law of Evidence, 14 & 15 Vict. c. 90, and Notes thereto. By Charles Edward Pollock, Esq., of the Inner Temple. Price 3s. boards. 1851 14 LAW BOOKS PUBLISHEB BY CROWN CASES RESERVED. (In Continuation of Denison and Pearce.) Crown Cases Reserved for consideration, and decided by the Judges of England. , and Cases relating to Indictable Offences and the Practice of the Criminal Law, ai'gued and determined in the Court of Queen's Bench and the Courts of Error. From Michaelmas Term, 1852, to 26th April, 1856. By H. R. Deausly, Esq., Barrister at Law. Vol. I., Parts L to VIIL, price 21, Is. sewed. (To be con- tinued.) 1852-G COLLIER'S RAILWAY, &c., CLAUSES CONSOLIDATION ACTS.— BY MACNAMARA. The Railway Clauses, Companies' Clauses, and Lands Clauses Consolidation Acts, with Notes : with an Appendix, treating of the Formation of a Railway Company, the Mode of passing a Bill through Parliament, &c.; and an Addenda of Statutes and Forms. Second Edition. By H. Macnamara, Esq. In 12mo. Price lis. boards. 1847 ROGERS' ECCLESIASTICAL LAW. A Practical Arrangement of Ecclesiastical Law, including a Treatise on Pro- hibition, and showing the Practice of the Ecclesiastical Courts. Second Edition- By F. N. Rogers, Esq., one of Her Majesty's Counsel. In 8vo. Price II. I6s' boards. 1849 HARRISON'S ANNUAL DIGEST FOR 1855. A Digested Index to all the Reported Decisions in the several Courts of Law and Equity, published during the year 1855. By R. A. Fisher, Esq., of the Middle Temple. Imperial 8vo. Price 10s. 6d. sewed. {To he continued Annuallij.) BYTHEW^OOD'S AND JARMAN CONVEYANCING.— BY SW^EET. A Selection of Precedents from modern Manuscript Collections and Drafts of actual Practice, forming a System of Conveyancing ; with Dissertations and Prac- tical Notes. By the late W. M. Bytiiewood, Esq., continued and completed by Thomas Jarman, Esq., of the Middle Temple, Barrister at Law. The Third Edition, very considerably enlarged, by George Sweet, Esq., Barrister at Law. Royal 8vo. Vols. L to VII., Vol. IX. and Vol. XL Price 12Z. 2*. boards. *»* In this Edition the Precedents are corrected and adapted to the present State of the Law, New Fonns are added, and the Notes on the Law of Conveyancing — which in the former Editions were dispersed among the Precedents — are collected into distinct Treatises at the commencement of each Title, and such subjects as appeared deficient are supplied. Vols. I. to VII., Vol. IX. and Vol. XI. contain the Titles— Abstracts, Acknowledgments, Administration, Agreements, Annuities, Appointments, Apportionment, Arbitration, Assent, Attestation, Attornment, Award, Bargain and Sale, Bond, Confirmation, Covenant, Covenant to stand seised, Defeazance, Direction, Disclaimer, Exchange, Feoffment, Forfeiture, Grant, Indemnity, Leases (with a complete Treatise), Mortgages (with a com- plete Treatise), Transfers and Reconveyances of Mortgages, Nomination of New Trustees, Notices, Partition, Partnership, Patent and Copyright, Purchase Deeds, Releases and Wills. The remaining Volumes will be published as expeditiously as may be consistent ■with a due regard to accuracy. H. SWEET, CHANCERY LANE. 15 ROSCOE'S NISI PRIUS EVIDENCE. Roscoe's Digest of the Law of Evidence on the Trial of Actions at Nisi Prius. Eighth Edition, with considerable Additions. By E. Smikke, Esq. In royal 12mo. Price 11. 5s. boards. 1851 TAYLOR'S JOINT-STOCK COMPANIES REGISTRATION ACT. A Practical Treatise on the Act for the Registration, Regulation and Incorpora- tion of Joint-Stock Coni])anies, 7 & 8 Vict. c. 110 (as amended by 10 & 11 Vict. C.78), with Directions for tlie provisional and complete Registration of Companies ; intended as a Guide to Persons concerned in the Formation and Management of Companies towards compliance with the Provisions of the Registration Act. To which is added, a Precedent of a Deed of Settlement, prepared and settled in con- formity with the Provisions of the Act. By G. Taylor, Esq., Assistant Registrar of Joint-Stock Companies. In Svo. Price 14s. boards. 184-7 A R N O U I. D ON MARINE INSURANCE. A Treatise on the Law of Marine Insurance and Average ; with References to the American Cases and the later Continental Autliorities. By Joseph Aknould, Esq., Barrister at Law. In 2 vols, royal Svo. Price 21. 10s. boards. 1848 LUND ON LETTERS-PATENT. A Treatise on the Substantive Law relating to Letters-Patent for Inventions. By Henry Lund, Esq., of Trinity College, Cambridge, M.A., and of Lincoln's Inn, Barrister at Law. In 1 vol. 12mo. Price 6s. cloth boards. 1851 NORMAN'S LA-W & PRACTICE OF COPYRIGHT & REGISTRATION. The Law and Practice of the Copyright, Registration and Provisional Registra- tion of Designs, and the Copyright and Registration of Sculpture ; with Practical Directions: the Remedies, Pleadings and Evidence in Cases of Piracy: with an Appendix of Tables of Fees, Statutes and the Rules of the Board of Trade. By John Paxton Norman, M.A., of the Inner Temple, Special Pleader. In 12mo. Price 4s. 6d. cloth. 1851 BEAUMONT'S COPYHOLD ENFRANCHISEMENT ACT. The New Copyhold Enfranchisement Act, 15 & 16 Vict. c. 51, with Notes and full Abstract of the Preceding Acts ; including also Plain Directions for Copyhold .Valuers, and Short Tables of Values of Life Estates. By G. D. Baruer Beau- mont, Esq., Barrister at Law. Author of "The Law of Fire and Life Insurance," and " Inquiry into the Origin of Copyhold Tenure." Price 2*'. sewed. 1852 PERRY'S CASES ILLUSTRATIVE OF ORIENTAL MANNERS. Cases Illustrative of Oriental Manners, and of the application of English Law to India; decided in Her Majesty's Supreme Court, Bombay. By Sir Erskine Perry, late Chief Justice. In 1 vol. royal Svo, Price IZ. 10s. cloth boards. 1853 16 LAW BOOKS PUBLISHED BY MIIiIiER'S LAND TAX. The Laws relating to the Land Tax, its Assessment, Collection, Redemption and Sale; with a Statement of the Rights and Remedies of Persons unequally Assessed, and an Appendix containing all the Statutes in force ; with a copious Index. By Samuel Miller, Esq., Barrister at Law. In 1 vol. 8vo. Price 12*. cloth boards. 1849 JERVIS'S OFFICE AND DUTIES OF CORONERS,— BY \VEI.SBY. A Practical Treatise on the Office and Duties of Coroners; with Forms and Precedents. By John Jervis, Esq. (now Lord Chief Justice of Her Majesty's Court of Common Pleas). Second Edition. By W. N. Welsby, Esq., Barrister at Law, Recorder of Chester. In 12mo. Price IO5. 6d. boards. 18-54 LOCKE'S LA^V AND PRACTICE OF FOREIGN ATTACHMENT. The Law and Practice of Foreign Attachment in the Lord Mayor's Court, under the New Rules of Practice : with an Appendix of the Forms and Proceedings in Attachments and in Ordinary Actions. By John Locke, M.A., Barrister at Law, and one of the Common Pleaders of the City of London. 12mo. 5s. boards. 1853 MAYNE'S EQUITABLE DEFENCES. A Treatise on Equitable Defences and Replications under the Common Law Procedure Act of 1854. By John D. Mayne, Esq., of the Inner Temple, Barrister at Law. Price 4s. boards. 1855 FAVrCETT'S CRIMINAL JUSTICE ACT, 1855. The Criminal Justice Act, 18 & 19 Vict. c. 126, with short Notes and Forms. By John Fawcett. Esq., Barrister at Law. In 12mo. Price 1*. 6d. sewed. 1855 HOSACK ON NEUTRALS. The Rights of British and Neutral Commerce, as affected by recent Royal Declarations and Orders in Council. By John Hosack, Esq., Barrister at Law. 12mo. cloth. Price 5s. cloth. 1854 COLLYER ON PARTNERSHIP. A Practical Treatise on the Law of Partnership ; with an Appendix of Forms. By John Collyer, of Lincoln's Inn, Barrister at Law. Second Edition. Royal 8vo. Price IZ. lis. 6(i. boards. 1840 LORD CAMPBELL'S ACTS, 14 & 15 VICT., CAPS. 11, 19, 55 & lOO. Lord Campbell's Acts, for the further improving the Administration of Criminal Justice and the better Prevention of Offences, together with the Act for the better Protection of Apprentices and Servants, and the Act for amending the Law relating to the Expenses of Prosecutions : with Notes, Observations and Indictments. By C. S. Greaves, Esq., Q. C. Royal 8vo. Price 7s. boards. 1851 >^/ Ol. / T-T?\RY O ■i^orjNiA '^^^ UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 857 018 6