UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 THE 
 
 STUDENT'S GUIDE 
 
 TO 
 
 SPECIFIC PERFORMANCE 
 AND MORTGAGES. 
 
 (Two of the Equity Subject* at the Bar Final Examination.) 
 
 - I 
 
 JOHN INDERMAUR, Solicitor, 
 
 (First Prizeman, Michaelmas, 1872), 
 
 Author or ''Principles of Common Law," "The Student's Glide to Trusts and 
 Partnerships," ''The Student's Guide to Common Law," Etc., Etc. 
 
 CHARLES THWAITES, Solicito 
 
 (First Prizeman June, 1880, £c, $c.) 
 Author of " Guide to Criminal Law," &c. 
 
 LONDON : 
 
 PRINTED AND PUBLI'SHED BY GEO. BARBER, 
 
 ■' LAW STUDENTS' JOURNAL " OFFICE, 
 16, CURSITOR STREET, CHANCERY LANE, E.C. 
 
 1886. 
 Price Three Shillings and Sixpence.
 
 
 LONDON : 
 
 PRINTED BY GEO. BA11BEU, CURSITOR STREET 
 
 CHANCERY LANE, E.C. 
 
 40<
 
 ADVERTISEMENT. 
 
 This work forms the fifth and concluding one of the 
 series of Guides to the Bar Final, the first' being on 
 Trusts and Partnership, by Mr. Indermaur ; the 
 second on Criminal Law, by Mr. Thwaites ; the 
 third on Common Law and Practice, by Mr. 
 Indermaur ; and the fourth on the Law of Real 
 and Personal Property, by Mr. Indermaur and Mr. 
 Thwaites. It is contemplated ultimately, at some 
 future time, to consolidate these Guides, and publish 
 them as a complete Guide to the Bar Final. Mr. 
 Indermaur, assisted by Mr. Thwaites, continues to 
 prepare Students both in class and privately, for 
 the Bar, Solicitors' Final, (Pass and Honours) 
 Examinations, and the Solicitors' Intermediate 
 Examination. Particulars on application, personally 
 or by letter, to Mr. Indermaur, 22, Chancery 
 Lane, W.C. 
 
 March, 1886.
 
 CONTENTS. 
 
 PAOI 
 
 Introduction ... ... ... ... ... ... ... 1 
 
 An Elementary Sketch of the Subject of Specific Performance 5 
 
 Questions and Answers on Specific Performance ... ... 33 
 
 An Elementary Sketch of the Law relating to Mortgages ... 56 
 
 Questions and Answers on Mortgages ... ... ... ... 75
 
 THE STUDENT'S GUIDE 
 
 TO 
 
 SPECIFIC PEEFOEMANCE AND 
 MOETGAGES. 
 
 INTRODUCTION. 
 
 This small book may be regarded as a necessary supplement 
 to Mr. Indermaur's Student's Guide to Trusts and Partner- 
 ship. When that work was published in December, 1885, the 
 Equity subjects at the Bar Final were Trusts and Partnership. 
 They have now been altered. The subject of Trusts remains, 
 but for Partnership have been substituted the subjects of 
 Specific Performance, and Mortgages. Mr. Indermaur's Guide 
 is therefore now only of direct use for the examination as re- 
 gards Trusts, and the idea is that the student shall unite with 
 it this present small book, and read the two as if they had 
 originally constituted only one work. 
 
 We purpose here giving our readers — Firstly, general 
 advice on the course of reading on the subjects of Specific Per- 
 formance, and Mortgages ; Secondly, a general sketch of the 
 subject of Specific Performance, followed by a selection of 
 questions and answers on that subject, chiefly framed from 
 actual questions asked at prior examinations at the Bar 
 Final ; and, Thirdly a general sketch of the subject of Mort- 
 gages, followed by a like selection of questions and answers. 
 
 The student will naturally have gained some knowledge on 
 both of the subjects we are dealing with from his perusal of
 
 2 THE STUDENT'S GUIDE TO 
 
 other works, that is, assuming him to have perused any. For 
 instance, in the Guide to Trusts, a general reading of Snell's 
 Principles of Equity, has been advised, and that work con- 
 tains chapters on both subjects. So also in studying the 
 Law of Eeal and Personal Property, a perusal of Mr. Joshua 
 Williams' two works will have furnished the student with 
 some general knowledge on mortgages. It is very advisable, 
 therefore, that, before turning to these particular subjects, 
 those works should have been perused ; but let us now turn 
 to the actual and direct reading on the two subjects. 
 
 There is a recognised text-book on each of these subjects, 
 "Fry on Specific Performance," and "Fisher on Mortgages." 
 They are both very formidable works, and few students will 
 be prepared to go right through them, rather contenting them- 
 selves with referring on occasion to them. Those who have 
 the time and inclination to peruse these works will, if they 
 do so thoroughly, gain all they can desire. But we must deal 
 with the mere ordinary class of students, who certainly will not 
 read such works, and even for those who do, final attention 
 to the following advice will be very advisable. 
 
 To take first Specific Performance. 
 
 1. Eead the sketch of the subject given in this work 
 
 {post p. 5). 
 
 2. Eead the chapter on that subject in Snell's Principles 
 of Equity, viz : Part III., chap. 9. 
 
 3. Specially read and consider the following cases : — 
 Cucldee v. Eutter, and Notes, in White and Tudor's 
 
 Leading Equity Cases, or at the very least from 
 Indermaur's Epitome of Conveyancing and Equity 
 Cases. Eeading from White and Tudor is strongly 
 recommended. 
 
 Seton v. Slade from the same, w r ith the same remarks. 
 Lester v. Foxcroft. The like. 
 Woollam v. Hearn. The like. 
 
 Dunn v. Flood, 28 Ch. D. 586 ; 54 L. J. Ch. 370 ; 33, 
 W. E. 315.
 
 SPECIFIC PERFORMANCE AND MORTGAGES. 6 
 
 4. Study the Digest of Questions and Answers given in 
 
 this book (post, p. 33). 
 To next take Mortgages — 
 
 1. Bead the sketch of the subject given in this book 
 
 (post, p. 56). 
 
 2. Bead the chapter on Mortgages in Williams' Real 
 Property, viz., Part IV., chap. 2. 
 
 3. Read that portion of Chap. 6 of Goodeve's Modern 
 Law of Real Property, directly relating to Mortgages, 
 viz., pages 183-209, (2nd edition). 
 
 4. Read the Dissertations in Prideaux's Conveyancing, Vol. 
 
 I., on Mortgages, and Bills of Sale. 
 
 5. Read the three chapters in Snell's Principles of Equity, 
 relating to Mortgages, viz., Part II., Chaps. 16, 17, 
 and 18. 
 
 6. Specially read and consider the following cases : — 
 Marsh v. Lee, and Notes, in White and Tudor's Leading 
 
 Equity Cases, or, at the very least, from Indermaur's 
 Epitome of Conveyancing and Equity Cases, particu- 
 larly noticing also Brace v. Duchess of Marlborough 
 given in the Notes and in Indermaur's Epitome 
 Reading from White and Tudor is strongly recom- 
 mended. 
 
 Russel v. Russel. The like. 
 
 Le Neve v. Le Neve. The like. 
 
 Lord Braybroke v. Inskip. The like. 
 
 Keech v. Hall, and Notes, from Smith's Leading Cases, 
 or, at the least, from Indermaur's Epitome of Com- 
 mon Law Cases. 
 
 Moss v. Gallimore, and Notes, from Smith's Leading 
 Cases, or, at the least, from Indermaur's Epitome of 
 Common Law Cases. 
 
 Agra Bank v. Barry, L. R., 7, Eng. & Ir., App. 135; 
 Indermaur's Epitomes of Conveyancing and Equity 
 Cases, 5th edition, 102. 
 
 B 3
 
 4 THE STUDENT'S GUIDE TO 
 
 Vint v. Padget, 2 De G. & J., 611; Indermaur's 
 Epitomes of Conveyancing and Equity Cases 85. 
 Reading the Notes to this case in Indermaur's 
 Epitome, and considering the cases there referred 
 to on the doctrine of Consolidation is strongly 
 recommended. 
 
 7. Consider specially the following Statutes :— 
 
 17 & 18 Vict., c. 113^) , 
 
 on „ oir , ~ Q I Locke King's Act and Amend- 
 
 30 & 31 Vict., c. 69 f ° 
 
 .. p ,, ,,. , Q/1 J ment Acts. 
 40 & 41 Vict., c. 34 J 
 
 44&45 Vict., c. 41, sees. 15-29, Conveyancing Act, 1881. 
 
 8. Study the Digest of Questions and Answers given in 
 this book (post, p. 75.) 
 
 •(Although we do not give it as part of the strict course of 
 reading we may also mention Seton on Decrees, Vol. II., Ch. 
 25, pp. 1035-1180, where precedents of various judgments iu 
 foreclosure and redemption suits, &c, will be found together 
 with very valuable notes on the subject of Mortgages. Those 
 students who have time and inclination may well consider 
 some of the forms, and read the notes.) 
 
 As regards the foregoing, the student will observe that the 
 work recommended under Nos. 2, 3, and 4 will also practically 
 have been done by him in his study of the Law of Real and Per- 
 sonal Property, so that the course is not a formidable one. 
 Prideaux may be omitted perhaps, but it will be,well to read it. 
 If the student goes through the above courses thoroughly 
 he need not, we think, be apprehensive as to tbe result. 
 According to the class of reader more or less reference to the 
 large works "Fry" and "Fisher" will be beneficial. We 
 specially draw attention to our sketches of the subjects, and 
 to all strongly recommend a careful study of the Digests of 
 Questions and Answers as the proper conclusion to the 
 reading generally. 
 
 The expression Mortgages of course strictly includes Bills 
 of Sale, a matter dealt with in the portions of Prideaux which 
 we have given abjve for reading, and which is also slightly
 
 SPECIFIC PERFORMANCE AND MORTGAGES. O 
 
 touched on in Williams' Personal Property. See also Inder- 
 maur's Principles of Common Law, 4th edition, pages 103- 
 106, which will have been read in the Common Law. 
 Various points on Specific Performance of course may 
 naturally arise out of the ordinary reading of Contracts in 
 the Common Law, and will have been sufficiently considered 
 under that branch. "We now proceed to give : — 
 
 1. An Elementary sketch of the subject of Specific Per- 
 
 formance. 
 
 2. Digest of Questions and Answers on Specific Perform- 
 ance. 
 
 3. An Elementary sketch of the subject of Mortgages. 
 
 4. Digest of Questions and Answers on Mortgages. 
 
 1.— AN ELEMENTARY SKETCH OF THE SUBJECT OF 
 SPECIFIC PERFORMANCE.* 
 
 By specific performance is meant the carrying out in specie 
 of the terms of an executory contract, either voluntarily by the 
 acts of the parties, or compulsorily under the order of a court 
 of competent jurisdiction. It is this interference of the court 
 by compelling a performance instead of merely granting 
 damages or compensation for a breach of the contract, that 
 is known as the doctrine of specific performance. The 
 jurisdiction is exercised by the Chancery Division of the High 
 Court of Justice as representing the old courts of equity in re- 
 gard to their exclusive jurisdiction ; or, in cases of sale, where 
 .the purchase-money does not exceed £500, and in cases of leases 
 where the value of the property does not exceed that sum, by 
 the county courts, under the County Courts Acts of 1865 
 (sec. 1) and 1867 (sec. 9). Equity acts in personam, and it is 
 by means of this maxim that the court carries out its decrees, 
 
 * This sketch is chiefly founded on Fry on Specific Performance, White and 
 Tudor's Leading Equity Cases, and Grigsby's Story, to the authors and 
 editors of which works all due acknowledgment is here made.
 
 6 THE STUDENTS GUIDE TO 
 
 and compels specific performance by ordering whichever of 
 the parties to the contract is a defaulter to do the very thing 
 he has agreed to do, and, in the event of his refusal, by punish- 
 ing him for contempt of court, even to the extent of imprison- 
 ment, and, in some cases, by the court itself carrying out in 
 one way that which the defaulter had contracted to do in 
 another way, e.g., by making a vesting order to pass an estate 
 where the defaulter was directed to convey it and has disobeyed. 
 
 I. 
 
 The jurisdiction to enforce, positively, executory contracts, 
 i.e., contracts which are not intended to be the final instrument 
 determining the relations of the parties, is distinguishable from 
 actions upon executed contracts, which are only enforced 
 negatively. Thus an agreement to grant a lease will be 
 directed to be carried out ; but when the lease is granted, the 
 court will not order the lessor or lessee to carry out every 
 covenant in it, although it may interfere by injunction to re- 
 strain the breach of a particular covenant. It also differs 
 from an action for the performance of a trust ; for contracts 
 are usually legal instruments creating legal rights, and as to 
 these, specific performance is an alternative to damages ; but 
 trusts are created by instruments which are only binding in 
 equity as regards the trust, and as to these, relief, could only 
 be granted by a court of equity before the Judicature Acts. 
 Specific performance proper is also' distinguishable from 4 
 actions, for delivery of a chattel in specie, for although 
 this may be a mode of specific performance where the right 
 to the chattel arises from contract, the Court of Chancery had 
 an independent jurisdiction to decree the delivery up of 
 unique chattels, whether the right to them arose from con- 
 tract or not. (Fry, 10, 11.) 
 
 The doctrine appears to be peculiar to the courts of equity 
 in this country and its colonies, past and present. It is true 
 that the common law courts could — and did— enforce (I) 
 public duties arising out of private contracts, at first by means 
 of the prerogative writ of mandamus (Norris v. Irish Land
 
 SPECIFIC PERFORMANCE AND MORTGAGES. 7 
 
 Co., 8 El & Bl., 513), and afterwards by the statutory writ 
 of mandamus under section 68 of the Common Law Proce- 
 dure Act, 1854, as interpreted and restricted in Benson v. 
 Paul], 6 El. & BL, 273; (2) under section 75 of the same 
 statute, the delivery of any chattel, by directing in any action 
 for its detention that execution should issue for the chattel 
 without giving the defendant the option of retaining it on 
 payment of its assessed value ; and (3) anciently, a covenant 
 to convey lands, by a writ which was practically a specific 
 performance. But apart from these few instances, the common 
 law courts considered every executory contract for sale or 
 transfer, or for services, as a merely personal contract, bind- 
 ing the persons of the parties but not the property or services 
 contracted for, and the only relief which they afforded for a 
 breach of such a contract was in the shape of an action for 
 damages against the defaulter by the party aggrieved. 
 (Grigsby's Story, 477.) And in some cases this remedy was 
 quite sufficient— for instance, if there was a contract for the 
 sale of goods or stock, and the seller declined to carry out 
 the contract, the purchaser's loss could be accurately 
 measured by damages calculated on the market price of such 
 goods or stock, since, with such damages, the purchaser could 
 go into the market and buy the same quantity of the like 
 goods or (usually) stock. But the common law remedy was 
 manifestly often insufficient — for instance, in the case of a 
 contract to sell land it migbt easily happen that the land 
 itself had some special and peculiar value to the purchaser, 
 for which damages calculated on the general value of land 
 would by no means be an adequate recompense, if the vendor 
 declined to fulfil his bargain. Or, again, on a sale of stock, 
 the stock might be of such small amount and so rarely in the 
 market that the damages could not be fairly ascertained. 
 
 Thus, the remedy at law was often insufficient ; and it 
 happened sometimes that there was no remedy at law. For 
 the plaintiff at law must have proved exact performance of the 
 very terms of his part of the contract, but equity drew a
 
 8 THE STUDENT'S GUIDE TO 
 
 distinction between terms which were of the essence of the 
 contract and those which were not, and enforced the contract 
 with compensation where there could be a substantial per- 
 formance (per Lord Eldon in Mattock v. Buller, 10 Ves. 305.) 
 Again, there might be no relief at law from the subject- 
 matter of the contract — e.g., to assign a chose in action ; or 
 where the performance, or contract to convey, by a particular 
 day, was rendered impossible by the death of the contractor 
 before that day ; or upon a contract in a bond given by A to 
 B, where the parties had subsequently married (Cannel v. 
 Buckle, 2 P. Wms. 248.) 
 
 This being so, equity assumed a jurisdiction to decree 
 specific performance in order to remedy the deficiences of the 
 Common Law tribunals — either on the ground that damages 
 did not afford a complete remedy for breach of contract in 
 particular cases (Adderley v. Dixon, 1 S. & G., 607), or on 
 the ground that the contract, though binding in equity, could 
 not be sued upon at law. 
 
 The jurisdiction is very ancient, and can be traced as far 
 back as the reign of Edward IV. In the Year Book of 8 
 Edward IV., 4 (6), the then Lord Chancellor is reported as 
 laying down that, upon breach of an agreement to build a 
 house, a remedy by subpoena would be granted in Chancery 
 to enforce the agreement. And— although equity will not 
 nowadays (at all events except in very rare cases) decree 
 specific performance of such an agreement, both on the 
 ground that damages afford a complete remedy, and also 
 because the contract is so uncertain that the court would not 
 be able to enforce its own order — the doctrine of specific per- 
 formance has long since overcome the strenuous opposition 
 with which the common law judges treated it, and it is too 
 firmly established as part of our jurisprudence ever to be upset 
 that when one party to a contract wants the thing contracted 
 for in specie courts of equity will compel performance provided 
 sufficient compensation cannot be made otherwise. (Bettes- 
 worth v. Dean of St. Pauls, Sel. Ca. in Ch., 68.)
 
 SPECIFIC PERFORMANCE AND MORTGAGES. 9 
 
 For a long time it was argued — and even laid down as a 
 rule — that equity could not decree specific performance 
 except where the party seeking it could positively succeed in 
 recovering damages if he brought an action at law. Indeed, 
 at one time, unless the plaintiff in equity had actually sued 
 and recovered some damages at law, his bill for performance 
 was dismissed. But even the existence of this rule was 
 denied by Lord Macclesfield in Cannel v. Buckle, 2 P. Wms. 
 244 ; and no such rule is applied at the present time. The 
 exercise, or not, of the jurisdiction is now a matter for the 
 sound and reasonable discretion of the court, guided by the 
 general principles laid down in the decided cases. (Clowes 
 v. Higginson, 1 Ves. & B. 527.) 
 
 II. 
 
 Let us next proceed to enumerate the cases in which it 
 appears to be definitely decided that no__de_cxee for specific 
 performance can be obtained. These may be classed as eight 
 in number. 
 
 Firstly, then, no performance will be decreed in the 
 numerous cases in which damages can be obtained at law, 
 and will be complete and adequate compensation for a breach 
 of the contract, e.g., on an ordinary contract for the sale of 
 goods, where the measure of damages is usually the differ- 
 ence between the market price and the contract price. 
 
 Secondly, performance cannot be obtained of an agree- 
 ment which is entered into for the doing of something 
 illegal or immoral ; or which is contrary to public policy, 
 (Flanagan v. Great Western Kailway, L. B., 7 Eq., 106.) 
 
 Thirdly, a voluntary agreement will not be enforced, for 
 equity will not lend its aid to a volunteer claiming under an 
 executory contract without consideration (Ellison v. Ellison, 
 Indermaur's Conveyancing and Equity Cases, oth ed., 49). 
 The case of Jeffreys v. Jeffreys, Cr. & Ph., 138, is perhaps 
 the most striking illustration of this class of cases. A 
 executed a voluntary settlement, by which he actually con-
 
 10 THE STUDENT'S GUIDE TO 
 
 veyed certain freehold lands upon trusts expressed in the 
 settlement, and covenanted with the trustees that he would 
 surrender certain copyhold lands to them to be held on the 
 like trusts. Subsequently he made a will, by which he 
 devised both the freeholds and the copyholds to W. An action 
 being brought for specific performance of the settlement, the 
 court held that (1) as regards the freeholds which were 
 actually conveyed, the settlement being an executed contract 
 was binding and prevailed ; but (2) as regards the copyholds 
 which were merely covenanted to be surrendered, the 
 covenant, being a voluntary executory contract, was nudum 
 pactum, and could not be set up against the devise, and 
 refused to decree performance as to the copyholds. 
 
 Fourthly, where a contract is wanting in mutuality, no 
 relief can be given. Unless both parties can obtain specific 
 performance, neither can do so, (Adderley v. Dixon.) Thus, if 
 an infant contracts to buy land, he cannot (however desirable 
 it may be for his interest to do so) compel specific per- 
 formance, because the personal privilege of infancy prevents 
 his being sued upon any of his contracts which are not 
 for necessaries. If, however, on obtaining his majority he 
 elects to ratify the contract (which he may do, it being the 
 better opinion that the Infants' Belief Act, 1874, does not 
 apply to this class of contracts when it prohibits ratification) 
 either party can then compel specific performance. It is true 
 there is an apparent exception to this class of cases, where 
 one of the parties only to a contract for the sale of land or an 
 interest in land has signed the written agreement required by 
 the fourth section of the Statute of Frauds ; for here the 
 party who has not signed the contract is allowed to bring an 
 action for specific performance, it being held that his writ 
 and pleadings setting out the contract amount to such a 
 formal placing of the contract on record by him as to make 
 the remedy mutual. 
 
 Fifthly, no relief will be given where the contract is such 
 that the court cannot enforce it. Thus it has been held that
 
 SPECIFIC PERFORMANCE AND MORTGAGES. 11 
 
 covenants in a farming lease cannot be specifically enforced, 
 for that would require a knowledge of good farming on the 
 part of the officer of the court and his personal supervision, 
 and it is not the practice of the court, to carry on a man's 
 business for him. It has also been held that a condition in 
 an insurance policy to accept a lower rate of premium if the 
 insurer is satisfied that the reason for charging an extra pre- 
 mium is removed ; and a contract for the sale of the good- 
 will of a business without the business premises ; and con- 
 tracts for personal acts — e.g., for personal service, or to paint 
 a picture — cannot be specifically enforced. 
 
 Sixthly, where the performance of the contract would be 
 useless, the court will not interfere. For instance, it is laid 
 down that it will not decree performance of a covenant to 
 enter into a partnership at will, for either party might termi- 
 nate such a partnership at pleasure ; nor of a contract to 
 make a settlement, which is to contain a power for the settlor 
 to revoke it at pleasure; nor of a contract to grant a lease 
 with a power of re-entry on breach of covenant, where such 
 a breach has already taken place. (Jessel, M. E., in James v. 
 James, 12 Ves., 188.) But it is submitted that in the last- 
 mentioned instance specific performance would now be 
 decreed, except where the breach of covenant giving rise 
 to the exercise of the power of re-entry is a breach 
 of one of those few covenants against a forfeiture for breach 
 of which section 14 of the Conveyancing Act, 1881, gives no 
 relief. 
 
 Seventhly, if the contract is so uncertain that the court 
 would be unable to enforce its judgment (Errington v. 
 Aynesley, 2 Bro. C. C, 343), the court declines to interfere. 
 Thus contracts to build or repair will not be specifically 
 enforced (Wheatley v. Westminster Brymbo Coal Company, 
 L. E., 9, Eq., 538) except where the work to be done is de- 
 fined, and the plaintiff has such a material interest in its 
 being done that damages will not compensate him, and the 
 defendant has obtained possession of the land from the
 
 12 THE STUDENT'S GUIDE TO 
 
 plaintiff under the contract. (Fry on Specific Performance, 
 2nd edition, p. 38.) 
 
 And lastly, no^decree can be obtained where any Statute 
 forbids the interference of the court. By the Fines and 
 Recoveries Act (3 & 4 Wm. IV., c. 74. sec 47) no disposition 
 of lands under that Act by a legal or equitable tenant in tail, 
 and no consent given by a protector of the settlement under 
 that Act, shall be specifically enforced by a Court of Equity, 
 except where the same is binding and effectual in a court of 
 law. As to the extent of this section, see Hall Dare v. Hall 
 Dare, 55 L. J., Ch. 154. 
 
 III. 
 
 The cases, in which specific performance is sought, divide 
 themselves into three classes, viz., where the contract relates 
 to (1) personal acts, (2) personal chattels, and (3) land. 
 
 Where the contract sought to be enforced relates merely to 
 the doing of some personal act, the general rule is that the 
 court will not grant specific performance, both, because damages 
 are, as a rule, adequate compensation, and also because of the 
 inability of the court to carry out its own decree (Lumley v. 
 Wagner, 1 De G., M. & G., 604). We have already seen that 
 contracts to build or repair, or do any work upon land, will 
 not be enforced specifically, except in a few cases. If, however, 
 such a contract forms part of an agreement, which would 
 usually be enforced by the court, e.g., an agreement to grant 
 a lease, the court has power to sever the special clause, and 
 will decree specific performance of the agreement for the 
 lease, and direct an inquiry as to damages with regard to the 
 covenant to build or repair, under the power conferred upon it 
 by Lord Cairns' Act. By this Act (21 & 22 Vict., c. 27), where 
 the court has power to entertain an application for an injunc- 
 tion against any breach of agreement or wrongful act, or for 
 specific performance, the court has a discretion to award 
 damages, either in addition to, or substitution for, the remedy 
 sought, and give directions for their assessment. The Act
 
 SPECIFIC PERFOKMANCE AND MORTGAGES. 13 
 
 gave no added jurisdiction as to the number or kind of cases 
 in which specific performance might be decreed, but only gave 
 power to award damages in those cases of which the court 
 could take cognizance previous to its passing ; and in Eock 
 Portland Cement Company v. Wilson, 52 L. J., Ch. 214, it was 
 held that in no case where damages could not, before Lord 
 Cairns' Act, have been recovered at law, can they be recovered 
 under the Act. In Wood v. Silcock, 50 L. ,T., 251, Vice- 
 Chancellor Bacon held (1884) that the court will not decree 
 specific performance of a preliminary building agreement, nor 
 give damages in the alternative for its breach; but in Hepburn 
 v. Leather, 50 L. T., 660, the same judge held that, although 
 the court will not, as a rule, specifically enforce contracts to 
 build or repair, it will do so where the contract for building is 
 in its nature precise, and decreed specific performance of a 
 covenant in a conveyance to build a brick wall according to 
 particulars precisely defined in the covenant, against the pur- 
 chaser, on the authority of the three cases there cited. In 
 Todd v. Midland Great Western Railway Company, 9 L. 11., 
 Ir., 85, ajrailway company had agreed to lay down a siding 
 to Todd's mill as compensation for injury to the mill by con- 
 struction of the line ; and as the siding was not used, they 
 removed the points and rails, agreeing to replace them on 
 notice of intention to use the siding. After notice, the com- 
 pany refused to replace the siding unless the plaintiff paid 
 expenses, rendered necessary by an order of the Board of 
 Trade made since the removal, on the opening of any siding 
 not previously used. And in an action for specific performance 
 of the agreement, it was held that the plaintiff was entitled 
 to a decree for the company to replace the siding and 
 keep it in working order ; as the court considered damages an 
 insufficient remedy, and that the non-user and consequent extra 
 expenses formed no defence, and the compan}' were entitled to 
 no indemnity. It appears doubtful whether an agreement for 
 sale of a medical practice can be specifically enforced, as, at 
 all events where the practice is a non-dispensing one and no
 
 14 THE STUDENT'S GUIDE TO 
 
 " doctor's shop " is kept, it is simply an agreement for the 
 personal act of introducing the purchaser to the patients, (per 
 Jessel, M.R., in May v. Thompson, 51 L. J. Ch., 919, 921.) 
 Agreements for separation between husband and wife (but not 
 to take effect at a future date) will be specifically enforced, 
 (Wilson v. Wilson, 5 H. L. C, 40) ; if the agreement provides 
 for the execution of a separation deed with all usual and 
 proper clauses, which do not include a dura casta clause, 
 or a provision for forfeiture of the allowance to the wife on 
 her misconduct, but do import that the wife shall find a 
 trustee (Gibbs v. Harding, 5 L. R. Ch., 336), and that even if 
 the agreement contains a provision to refer to named persons 
 any differences in working out its terms, and is for compromise 
 of a petition for divorce. (Hart v. Hart, 50 L. J. Ch., 697.) 
 An agreement to refer disputes to arbitration will not be 
 specifically enforced (Street v. Digby, 6 Ves., 815), although 
 a covenant in the agreement not to sue at law or in equity 
 may be pleaded as a bar to such proceedings. So also, a 
 contract to lend (Larios v. Gurety, 5 L. R., P. C, 346) or 
 borrow, or pay money (Crampton v. Varna Railway Co., 41 
 L. J., Ch. 817) will not, at all events as long as it remains 
 entirely unperformed, be specifically enforced ; although an 
 agreement to execute a mortgage for money due will be, and 
 that even with an immediate power of sale, where the money 
 has been actually advanced (Ashton v. Corrigan, 13 Eq., 76). 
 In Taylor v. Eckersley, 5 Ch. Div., 740, an agreement to 
 execute a bill of sale was specifically enforced, the whole 
 transaction being prior to the present Bills of Sale Acts, 1878 
 and 1882. Contracts for hiring and service, or agency (e.g., 
 auctioneer, Chinnock v. Sainsbury, 30 L. J., Ch. 409) will not 
 be thus enforced ; and in Lumley v. Wagner (5 De G. & 
 Sm., 485 ; 1 De G. M. & G, 604) where X had agreed with 
 Y to sing at his theatre for a fixed period and not to sing 
 elsewhere without Y's written consent, the court granted an 
 injunction restraining X from singing elsewhere, but refused
 
 SPECIFIC PERFORMANCE AND MORTGAGES. 15 
 
 to decree specific performance of the rest of the agreement as 
 it possessed no power to make her sing. An award is treated 
 as an agreement between the parties to the arbitration, and 
 specifically enforced, or not, according to the foregoing 
 principles, e.g., an award to pay money would not be enforced, 
 but one to convey an estate would. A contract to enter into 
 partnership will not be specifically enforced, where there are no 
 legal difficulties in the way which the court can remove, and 
 where there has been no part performance, and the plaintiff's 
 appropriate remedy is an action at law (Scott v. Eayment, 
 7 Eq. 112). It seems, therefore, that if the contract is for 
 a definite term and there have been acts of part performance, 
 a decree would be made to carry out the contract specifically. 
 
 IV. 
 
 Contracts with regard to personal chattels will not, as a 
 general rule, be enforced, for damages will usually be ade- 
 quate compensation. This rule is strictly as stated, having 
 nothing to do with any difference between real and personal 
 property, and rests on the leading case of Curl dee v. Rutter. 
 In this case R. agreed to sell to C. £1,000 South Sea Stock at 
 a stated price, to be delivered on a day named ; before that 
 day the stock rose considerably in value, and R. did not 
 deliver it, but offered to pay the difference between the 
 contract price and the market price on the day fixed for 
 delivery. C. filed a bill for specific performance, and his suit 
 was dismissed; for there was no difference between this 
 particular £1,000 stock and any other £1,000 of the same 
 stock which the plaintiff might have bought of any other 
 person upon the very day, and the plaintiff suffers no loss if 
 the defendant pays him the difference in price. 
 
 Where damages will not be adequate compensation, then 
 performance can be obtained. It may be as well to cite a few 
 cases in support of this proposition. In one case specific 
 performance was decreed of a contract to sell 800 tons of iron 
 to be delivered and paid for in a certain number of years by
 
 16 THE STUDENT'S GUIDE TO 
 
 instalments, on the ground that such a contract differs from 
 one to be carried out immediately, for the loss depends 
 on future events, and cannot be estimated, and so the 
 damages for its breach must be purely conjectural (see 
 Buxton v. Lister, 3 Atk., 384); but this case has been 
 doubted by Hatherley, V.C., and qucere if it is now law. 
 (Fry, 32.) It is said that performance would be decreed in 
 the case of an owner of land covered with timber contracting 
 to sell it in order to clear the land, or of a ship carpenter 
 buying timber peculiarly convenient to him because of its 
 nearness, since the special circumstances prevent damages 
 being adequate compensation. (White and Tudor's Equity 
 Cases, Vol. I., 856.) Also in the case of a contract to buy 
 articles of unusual beauty, rarity, or distinction, performance 
 may be obtained. Thus a picture painted by an artist and 
 let to the defendants for a fixed period would be ordered to be 
 delivered up at the end of the term, if the artist insisted that 
 the value of the picture should not be left to a jury ; but 
 where by the agreement, the artist put a price upon the 
 picture, performance was refused, as he would recover the 
 price from a jury. (Dowling v. Betjemann, 2 Johnson and 
 Hemming, 552.) In Duncroft v. Albrecht, 12 Sim., 189, 
 performance of a parol agreement for the sale of railway 
 shares was decreed on the ground that, although stock, such 
 as consols, could always be had in the market, shares of the 
 specified kind were limited in number and could not always 
 be bought in the market. Again, in Adderley v. Dixon, 
 1 G-. & S., 607, specific performance was decreed of a contract 
 for the sale of debts proved under two commissions of bank- 
 ruptcy, on the ground that, if the plaintiff were confined to 
 damages only, he would be compelled to sell dividends of 
 unascertained value at a conjectural price. In this case the 
 plaintiff was the vendor, and although he only sought for 
 his purchase money, he obtained a decree for performance, 
 since the remedy must be mutual or not at all. (Withy v. 
 Cottle, 1 Sim. & Stu., 174.)
 
 SPECIFIC PERFORMANCE AND MORTGAGES. 17 
 
 And here should be noticed the jurisdiction of a court 
 of equity to compel the specific delivery of a chattel 
 to the rightful owner, quite irrespective of any contract. 
 This rests solely on the peculiar value of the chattel ; 
 for although, at common law, damages for deprivation 
 might have always been recovered in an action of trover or 
 detinue, equity ruled that, from the peculiar nature of the 
 chattel, its value might not be estimable in damages, and it 
 was not until 1854 that courts of law acquired power to order 
 specific delivery in actions of detinue. Thus in the leading 
 case of Pusey v. Pusey, 1 Vern., 273, it was held in 1684 that 
 where lands had been granted to hold by the tenure of a 
 horn, which, time out of mind, had gone with the lands to 
 the holder for the time being, a court of equity would decree 
 specific delivery of the horn to the heir-at-law. Again, in the 
 leading case of the Duke of Somerset v. Cookson, 3 P. Wms., 
 389, it was held, in 1735, that where X was entitled, as lord of 
 a manor, to treasure trove within the manor, and Y found an old 
 silver altar-piece, remarkable for a Greek inscription and 
 dedication to Hercules, within the manor, and sold it 
 to Z, who took with notice of X's claim, the Court of 
 Chancery would make an order for the delivery up to X 
 of the altar-piece in specie undefaced. Since these cases 
 the jurisdiction to order specific delivery of title-deeds, heir- 
 looms, and any chattels of peculiar value has not been 
 seriously questioned. Indeed, to have decided otherwise, 
 would have been tantamount to laying down that a trespasser 
 could compel the rightful owner of a curiosity, or matter of 
 antiquity or ornament, to part with it, nolens volens, for its 
 intrinsic value. The tobacco-box of a club (Fells v. Bead, 
 3 Ves., 71); a box of jewels at the suit of a person with whom 
 they had been pledged, without the owner and pledger being 
 made a party (Savillev. Tankred, 1 Ves., 101); and an iron box 
 containing heirlooms (Macclesfield v. Davis, 2 V. & B., 15) ; 
 were all ordered to be delivered up under this head. 
 
 Further, in Arundel) v. Phipps, 2 Ph., 383, Lord Cotten-
 
 18 the student's guide to 
 
 bam laid clown that wherever a fiduciary relation exists 
 between the parties, whether it be in the case of an agent, or 
 trustee, or broker, or whether the subject-matter be stock, or 
 cargoes, or chattels of whatever description, the court will 
 either decree specific delivery to the owner or grant an 
 injunction to restrain any wrongful dealing by the agent. 
 
 Besides this peculiar equitable jurisdiction as to delivery 
 of specific chattels, no doubt, since the Judicature Act, the 
 Chancery Division possesses the statutory power, under the Com- 
 mon Law Procedure Act before referred to, in actions of detinue. 
 
 Also under section 110 of the Companies Act, 1862, where 
 a company is in liquidation relief that is practically specific 
 performance may be had by summons in the winding up. 
 
 V. 
 
 Contracts for sale of lands, tenements, and hereditaments 
 are enforced by specific performance as a matter of course, for 
 damages are no adequate compensation. So are contracts 
 for leases, except as mentioned ante, page 11 ; and agree- 
 ments to give mortgages of real estate. But a contract for a 
 yearly tenancy will not be enforced, as the remedy at common 
 law is sufficient. Since equity acts in 'personam, the relief 
 may be given, although the real estate dealt with in the 
 contract is situate out of the jurisdiction, provided the parties 
 are within it, (Penm v.'Lord Baltimore,^ in which case the 
 agreement was for the settlement of the boundaries of two 
 provinces in America.) Where a railway company has given a 
 notice to treat for lands under its statutory powers, and the price 
 has been fixed by agreement or arbitration, the company is 
 on the footing of an ordinary purchaser, and specific per- 
 formance will be decreed. (Harding v. Metropolitan Railway 
 Company, 7 Ch. App., 154.) So where the company has 
 given notice to treat, and paid the purchase-money for, and 
 been let into possession of, leaseholds, they will be compelled 
 to accept an assignment containing the usual covenants, if 
 the lessee sues within a reasonable time. (76.)
 
 SPECIFIC PERFORMANCE AND MORTGAGES. 
 
 19 
 
 VI. 
 
 The Statute of Frauds, 29 Charles, II., c. 3, plays an impor- 
 tant part in the specific performance of contracts. By section 1 
 it enacts that " all interests in lands, tenements and here- 
 ditaments not put in writing and signed by the parties or 
 their agents authorized by writing, shall not have, nor be 
 deemed in law or equity to have, any greater force or effect 
 than leases or estates at will "; except (sec. 2) leases not 
 exceeding three years from the making and on which two thirds 
 of a rack rent is reserved. By the 4th section it enacts, vnter 
 alia, that " no action shall be brought whereby to charge any 
 person upon any agreement made upon consideration of 
 marriage, or upon any contract or sale of lands, tenements or 
 hereditaments, or any interest in or concerning the Bame, or 
 upon any agreement that is not to be performed within the 
 space of one year from the making thereof; unless the agree- 
 ment upon which such action shall be brought, or some note 
 or memorandum thereof, shall be in writing and signed by the 
 party to be charged therewith or soijne other person thereunto 
 by him lawfully authorized." The object of the statute was 
 to prevent the fraudulent setting up of pretended agreements 
 and then supporting them by perj ury, and to prevent even honest 
 mistakes and imperfections of memory ; and acourt of equity is 
 just as much bound by the Act as a court of law. Indeed, even 
 before the statute was passed, courts of equity constantly 
 refused to decree specific performance of parol contracts, unless 
 confessed by the defendant in his answer, or partly performed. 
 (Grigsby's Story's Equity, 499, and cases there quoted.) 
 
 The statute, therefore, is often set up as a defence to an 
 action for specific performance ; but, although contracts to 
 which it applies must generally comply with the statute, the 
 court frequently gives relief where the plaintiff has been put 
 in such an unconscionable position that it would be inequitable 
 for the defendant to be permitted to set up the statute as a bar. 
 
 First, then, where the contract was intended to be put into 
 writing but that was prevented from being done by the fraud
 
 20 THE STUDENT'S GUIDE TO 
 
 ofthe .defendant, the court decrees specific performance. The 
 reason is that the statute was intended to prevent frauds, 
 and not to be a cloak for them. So that if a written agree- 
 ment is drawn up, and another is fraudulently substituted for, 
 and executed instead of, the first ; equity will relieve. And, if 
 instructions for a marriage settlement are given by an 
 intended husband and he promises to have the settlement put 
 into writing, but fraudulently and secretly prevents this being 
 done, and the marriage takes effect in consequence of false 
 contrivances, specific performance will be decreed. (Montacute 
 v. Maxwell, 1 P. Wins. 618.) But if there is no fraud, and no 
 agreement to reduce the settlement into writing; but the 
 other party has relied solely on the honour, word, or promise 
 of the husband, no relief will be given. (Dundas v. Dutens, 1 
 Ves. Jr. 186.) 
 
 Again, specific performance will be decreed of a contract 
 within the Statute, although not put into writing, where it is 
 fully set out in the statement of claim, and is admitted by the 
 statement of defence, provided the defendant does not insist 
 upon the statute as a bar to the relief (Attorney-General v. 
 Sitwell, 1 Younge & Coll., 583). The reason is that no 
 fraud contemplated by the statute can here take place ; and 
 the defendant is considered to have waived the statute as a 
 defence, on the maxim, Qui sque renuntiare protest jure pro se 
 introducto. But if the defence confesses the parol agreement 
 and also insists upon the non-compliance with the statute 
 being a bar to relief, it is now definitely settled that no relief 
 can be given to the plaintiff (Couth v. Jackson, 6 Ves., 37; ; 
 the admission of the parol agreement being immaterial, as the 
 defendant throws it upon the plaintiff to show a complete 
 written agreement (Blagden v. Bradbear, 12 Ves., 471). 
 
 Further, where a parol agreement has been in part per- 
 formed by the party seeking specific performance, the part 
 performance is held to take the case out of the operation of 
 the statute. For, if this were not so, the defendant would 
 clearly be able to practise a fraud on the plaintiff, and thereby
 
 SPECIFIC PERFORMANCE AND MORTGAGES. 21 
 
 do the very thing which the statute was intended to prevent. 
 This exception was established by the leading case of Lester 
 v. Foxcroft (Colles' Parliamentary Cases, 108), in which specific 
 performance was decreed, in 1701, of a verbal agreement to 
 grant a lease, after the lessee had partly performed the 
 agreement by pulling down an old house and building new 
 houses ; as (Bond v. Hopkins, 1 S. & L., 433) it was against 
 conscience to permit the party who had entered and expended 
 his money on the faith of the agreement to be treated as a 
 trespasser, and the other party to enjoy the advantage of the 
 money he had laid out. And here it must be noted that 
 this doctrine of part performance has always been confined to 
 suits as to the sale of interests in land, and was not extended 
 by the Judicature Acts (Brittain v. Bossiter, li, Q. B. Div., 
 123.) It appears to be well settled that the doctrine will not 
 now be extended beyond the scope of former decisions (per 
 Lord Biderdale in Clinan v. Cooke, 1 S. & L., 410) ; but that 
 corporations, and companies, are bound by the doctrine equally 
 with individuals. An agreement by a corporation, not under 
 seal, to let land on lease will be enforced against them, where 
 there has been a part performance by the lessee (Crock v. 
 Corporation of Seaford, 6 Ch. App., 541). 
 
 What then will constitute sufficient part performance of a 
 parol agreement to take the case out of the statute ? To 
 amount to part performance, the acts done must be exclusively 
 referable to the agreement itself ; for, if the acts may have 
 been done with other views, they cannot properly be called 
 a part performance of the agreement, (Gunter v. Halsey, 
 Amb., 586). And the acts must be so clear and certain as to 
 refer beyond doubt to a concluded agreement, of which they 
 are part performance ; and must not be merely preliminary, 
 equivocal, and capable of a doubt in interpretation. The 
 principle of the cases is that the act must be of such a 
 nature that, if stated, it would of itself infer the existence of 
 some agreement ; and then parol evidence is admitted to 
 show what the agreement is (Maddison v. Alderson, 49 L.T.,
 
 22 the student's guide to 
 
 309). It follows that acts, which are merely introductory or 
 auxiliary to an agreement, cannot be considered as part 
 performance of such agreement, even although attended with 
 expense. Thus, the delivery of an abstract of the vendor's 
 title, going to view the estate, giving directions for the 
 conveyance to be drawn and engrossed, fixing upon an 
 appraiser to value stock, making valuations, admeasuring the 
 lands, employing a valuer to value the timber on the lands, 
 registering conveyances, and other acts of a like equivocal 
 nature, have all been held to be insufficient to take a case out 
 of the statute as amounting to part performance. Will 
 possession of the land amount to part performance ? That 
 depends. If the purchaser takes possession, not under the 
 contract, but as a trespasser ; or if the purchaser is a lessee 
 in possession as such — it will not. But if possession of the 
 land is delivered to, and obtained by, the purchaser solely 
 under the contract, it will. In Nunn v. Fabian, 1 Oh. App. 
 35, a landlord verbally agreed with his tenant in possession 
 to grant him a lease for 21 years at an increased rent, with 
 the option for the lessee to buy the freehold. The landlord 
 died before executing the lease; but, before his death, the 
 tenant had paid one quarter's rent at the increased rate, and 
 this was held to be such an act of part performance that a 
 decree for specific performance was granted. Although where 
 a tenant in possession asked for specific performance of an 
 alleged verbal agreement for a lease, his continuance in 
 possession was held not to be, of itself, a part performance ; 
 for the reasonable inference was that he continued in posses- 
 sion under his tenancy (Morphett v. Jones, 1 Swan- 181). 
 So where a farm tenant lays out money in the ordinary 
 course of good farming, this will not be part performance of 
 an alleged verbal contract to convert his tenancy from year 
 to year into a lease; but it would be otherwise, if he laid 
 out money in permanent buildings or improvements pointing 
 to a special agreement. It was at one time thought that pay- 
 ment of purchase-money would constitute part performance ;
 
 SPECIFIC PERFORMANCE AND MORTGAGES. 23 
 
 but in Clinan v. Cooke, (1 S. & L. 410), Lord Redesdale 
 definitely held that payment of a deposit, or the whole, or part, 
 of the purchase-money, or security for it, could not amount to 
 part performance. This decision still prevails, and seems 
 perfectly fair, for the money can be recovered back at law, and 
 the failure to get it back owing to the vendor's insolvency is a 
 matter which the purchaser could easily have foreseen and 
 provided against ; and, though sec. 17 of the statute ex- 
 pressly makes such a payment effectual in a contract for sale 
 of goods above the value of ten pounds, sec. 4 pointedly omits 
 any such provision. The recent case of Maddisonv. Alderson 
 (7 Q.B. Div. 174, affirmed 8 App. Ca. 457) will well repay a 
 perusal. In it, X induced a domestic servant to serve him as 
 housekeeper without wages for many years, and to give up 
 other prospects of establishment in life, by a verbal promise 
 to make a will leaving her a life estate in land. Afterwards 
 X signed a will leaving her the life estate ; but the will was 
 not duly attested, and consequently a nullity. The heir-at- 
 law of X brought an action for delivery to him of the title 
 deeds to the land, and the servant counter-claimed for a 
 declaration that she was entitled to the life estate. The jury 
 found in effect that the verbal agreement had been made. 
 But it was held that the mere continuance in service without 
 any actual payment of wages was not, of itself, evidence of a 
 new contract, much less of a contract as to the master's 
 land ; nor was the relinquishment of any prospective chance 
 of marriage ; the alleged acts of part performance preceded, 
 and could not be evidence of, any contract on the servant's 
 part ; their performance was a condition precedent, without 
 fulfilment of which X's verbal promise could not become a 
 binding contract. Marriage, alone, will not be part performance 
 of a contract in relation to it, for the statute says agreements 
 in consideration of marriage must be in writing (sec. 4; Caton v. 
 Caton, 2 H.L.C. 127); but acts of part performance indepen- 
 dently of marriage will take the contract out of the statute, 
 as in Surcombe v. Pinniger, 3 De G. M. & G. 571. In
 
 24 the student's guide to 
 
 Ungley v. Ungley, 5 Ch. Div. 887, a father made a verbal 
 promise, in consideration of his daughter's marriage, to give 
 her a house as a wedding present ; and, immediately after the 
 marriage, he put the daughter and her husband into posses- 
 sion. The father was then the owner of the house, which 
 was leasehold, and was subject to a charge in favour of a 
 building society, payable by instalments. The father paid 
 the instalments which fell due during his life, and at his 
 death a balance of £110 remained, which fell due shortly 
 afterwards. The court held that the verbal promise being 
 proved, the possession took the case out of the statute ; and 
 that the contract was to give the house free from incum- 
 brances, and the father's estate must pay the £110. A written 
 agreement after marriage in pursuance of a parol ante-nuptial 
 agreement takes the case out of the statute (per Turner, L.J., 
 in Surcombe v. Pinniger), since the object of the 4th section 
 was merely to alter modes of evidence. A memorandum is 
 therefore sufficient if it exists before action brought. But it 
 must clearly contain the agreement : so that where an infant 
 wrote to his fiancee that "as I shall come into my property 
 when of age, and we are to be married shortly after, I will 
 make you a present of " a specified part of the property, being 
 seven houses bringing in £200 a year ; and the marriage 
 took place after the infant attained 21 ; and by a post-nuptial 
 settlement, executed 13 years after the marriage, and which 
 contained no reference, by recital or otherwise, to the ante- 
 nuptial agreement, that, and other, property was settled upon 
 different trusts to those stated in the letter (viz., to the lady 
 for life, then to the husband for life, then as the wife should 
 by deed or will appoint, and in default for the lady absolutely) ; 
 the settlement was held to be no ratification of the contract, 
 and therefore, being voluntary, no defence to an action for 
 specific performance by a purchaser of three of the houses 
 from the husband. (Trowell v. Shenton, 8 Ch. Div., 318.) 
 
 The next question for consideration under this head is 
 the effect of a parol variation on a contract which, to begin
 
 SPECIFIC PERFORMANCE AND MORTGAGES. 25 
 
 with, complies with the statute. The general rule is that 
 parol evidence is not admissible to vary the terms of a written 
 contract on behalf of a plaintiff who seeks specific performance, 
 but is admissible on behalf of a defendant who resists specific 
 performance, without the parol variation (Townshend v. 
 Stangroom, 6 Yes. 328; Woollam v. Hearne, 7 Ves. 211 ; 
 Smith v. Wheatcroft, 9 Ch. Div., 223). In the first case a 
 lessor asked for specific performance of a written agreement 
 for a lease with a parol variation as to the quantity of land ; 
 and the lessee asked for specific performance without the 
 variation. Both claims were dismissed, the foregoing rule 
 being laid down. It is now, however, settled that a plaintiff J 
 can obtain specific performance with a parol variation in 
 four cases— (1) where there have been acts of part^pe*- 
 fojrmauce of the contract as varied by parol ; (2) where the 
 plaintiff sues on the written contract, and defendant pleads 
 the *paro3~v&riation, and plaintiff seeks for specific per- 
 formance with the variation ; (3) where the parol variation 
 has not been put into writing because of defendant's fraud ; 
 and (4) where the parol variation is in favour of the defendant, 
 and plaintiff offers to perform the agreement with the varia- 
 tion. (Martin v. Pycroft, 2 De G. M. & G. 785.) 
 
 VII. 
 
 Let us now consider some of the ordinary defences that 
 may be raised to an action for specific performance, apart 
 from the Statute of Frauds. 
 
 Incapacity to contract is a good defence for both parties, 
 as the remedy must be a mutual one. Thus a lunatic would 
 lack capacity, except during a lucid interval (Hall v. Warren, 
 9 Ves. 605) ; but lunacy occurring after the contract would 
 be no defence. Infancy, or that one of the contracting parties 
 occupied a fiduciary relationship to the other, would also create 
 a disability, which is not however irremoveable. A married 
 woman is now under no disability. 
 
 Want of a concluded agreement also bars the proceedings,
 
 26 the student's guide to 
 
 i.e., the parties must have agreed on the same terms, and 
 signified their assert to them. And the Court will not make 
 an agreement for the parties, they must make their own ; so 
 that, if all that has passed has been mere treaty, or negociation, 
 or an expectation of contract, or an honorary understanding, 
 no decree can be obtained. The onus of proving the complete 
 concluded contract rests on the plaintiff. The want of com- 
 pleteness may arise in the agreement, in which case there is 
 no contract ; or in the evidence, in which case there is not a 
 sufficient memorandum. The contract must be shewn to be 
 complete when the writ is issued, though it has been held 
 that relief can be given where the incompleteness is defen- 
 dant's fault, and can be remedied, or where the Court can 
 reduce the incomplete term to a certaintj 7 . 
 
 But besides the contract being shown to exist, it must be 
 free from inherent defect. All agreements of which specific 
 performanee is sought must be certain and defined, must be 
 equal and fair, and must be proved as the law requires, (per 
 Lord Eosslyn in Walpole v. Orford, 3 Ves. 420). Want of 
 certainty and definiteness may arise (1) as to the parties, 
 (2) as to the subject matter, (3) as to the price, and (4) as to 
 any other term in the agreement. The parties must appear 
 from the contract or memorandum either by name or descrip- 
 tion or reference sufficient to ascertain their identity (Potter 
 v. Duffield, L. E. 18 Eq. 4), Thus a memorandum signed by 
 an agent on behalf of the owner, or the mortgagee, or the 
 proprietor, or by the direction of the executors of A B or 
 of a trustee selling under a trust for sale, had been held 
 sufficient ; but it would be otherwise if the agent signed for 
 the vendor, who was not named in the writing, or for his 
 client, or his principal, or his friend. As to price, that must 
 be fixed or a way stated in which it is, to be fixed, or a fair 
 price agreed for. If the price is to be agreed on by X, Y and 
 Z, and they cannot agree, there is no contract ; for if the 
 contract states the way in which it is essential that the price 
 shall be ascertained, unless and until that way is complied
 
 SPECIFIC PERFORMANCE AND MORTGAGES. 27 
 
 with, there is no binding contract. As to the matter, that 
 must be so stated that it may be known certainly what the 
 purchaser imagined he was contracting for, and that the Court 
 can ascertain what it is, e.g., a contract for sale of " the Bank 
 End Estate " or of " this place " or " the lease " have been 
 held sufficient, but one for the sale of " coals etc " is not. 
 
 The recent case of Shardlow v. Cotterell, 20 Ch. Div. 90, 
 is a striking illustration of the maxim : Id certum est, quod 
 certum reddi potest. A house and premises were put up b} r 
 auction ; the conditions of sale did not describe the property, 
 but it could be inferred from them that they related to real 
 estate ; the property was knocked down to S, and, after the 
 sale, the auctioneer signed and gave to S, (1) a memorandum 
 on the conditions that the property was sold to him and 
 deposit paid, and (2) a receipt for the deposit on property 
 purchased at £420, which named the owner and the purchaser 
 and the day and place of sale. And the Court of Appeal held 
 that the receipt, memorandum, and conditions could be read 
 together (because the word " purchase " in the receipt con- 
 nected them) and constituted a contract, and that parol evi- 
 dence could be given to show of what the property consisted. 
 
 A misrepresentation, having relation to the contract, made 
 by one of the parties, or his agent, to the other, is a ground for 
 refusing the interference of the court in specific performance 
 at the instance of the former party ; and, in some cases, will 
 be ground for the active interference of the court in setting 
 aside the contract at the instance of the party deceived. (Fry, 
 281.) Thus where the owner of a leasehold house employed 
 a surveyor to find a purchaser ; and the surveyor represented 
 to Y that another person whom he named was ready to buy 
 at £7C0, and that if Y were to give £750 he would make a 
 clear profit of 7 per cent., and that such other person had 
 offered to rent the property at €300 or the ground floor only 
 at £200 ; and Y in reliance on these representations, ivhich 
 were not authorized by the vendor but were untrue, contracted 
 to buy for £750 ; and Y, on finding out the falsehood, refused
 
 28 the student's guide to 
 
 to complete ; it was held that no decree could be made, for the 
 false statements of the agent being within his authority were 
 enough to vitiate the contract (Mullens v. Muller, 22 Ch. Div. 
 1 94). Again, where land was granted in fee to X in con- 
 sideration of a rent charge of £84 17s. 10d., and the deed of 
 grant contained a covenant to build houses on the land, the 
 rents of which were to be double the rent charge, without 
 limiting a time within which the houses were to be built ; 
 and X contracted in 1880 to sell to Y ; and Y resisted specific 
 performance, on the ground that X's solicitors had repre- 
 sented that the deed of grant contained no covenants unusually 
 restrictive, and Y proved that the usual covenant in the dis- 
 trict was to build within a limited time (usually two years) : 
 it was held that the covenant, being indefinite as to time, was 
 unusually restrictive, and that no decree for specific per- 
 formance would be made (Andrew v. Aitken, 22 Ch. Div., 218). 
 The court will not interfere to enforce a contract which is 
 tantamount to a breach of trust. Thus in Dunn v. Flood, 
 25 Ch. Div. 629, Dunn was a devisee of realty upon trust, at 
 his discretion, for sale and investment of the proceeds ; in 
 1882 Dunn put up the estate for auction in 33 lots ; as to 
 some of the lots, the conditions of sale provided that the title 
 should commence with a conveyance dated 1872, and that 
 every recital or statement in an abstracted document should be 
 deemed conclusive evidence of the fact or matter recited or 
 stated or to be assumed or implied therefrom, and that the 
 land was sold subject to the existing tenancies, restrictive 
 covenants, and to all easements, quit rents, and other inci- 
 dents of tenure (if any) affecting the same, and the purchasers 
 were to covenant to perform such restrictive covenants and 
 indemnify the vendor. Flood bought the property, but 
 refused to complete. And North, J., held that, though Dunn 
 had acted in good faith with a view to save expense, the con- 
 ditions as to commencement of title and recitals were depre- 
 ciatory conditions, fcrr wh ich there was no necessity under the 
 circmastances of the case; and trustees with unlimited dis-
 
 SPECIFIC PERFORMANCE AND MORTGAGES. 29 
 
 cretion as to conditions, are bound to exercise that discretion 
 in a reasonable and proper manner ; the conditions were so 
 depreciatory as to be a breach of trust, and no decree for per- 
 formance could be made. But on appeal it was held that 
 under the circumstances (vacant land sold in numerous small 
 lots for building purposes) the conditions limiting the title to 
 ten years, and as to recitals, were reasonable ; but that the 
 other condition was unreasonable and depreciatory, there 
 being, in fact, no existing tenancie, and no restrictive 
 covenants except those explicitly set out in another condition ; 
 and dismissed the appeal (28 Cb. Div. 586). 
 
 Mistake is a good defence, and may even give the plaintiff 
 a right to have the contract rescinded. To entitle a plaintiff 
 to more than the common law remedy in damages, the con- 
 tract must be more than legally binding ; it must not be hard 
 or unconscionable, and it must be free from fraud, surprise, and 
 mistake. Where there is a mistake, there is not that consent 
 which is essential to a contract in equity, non videntur qui 
 errant consentire. The mistake may be that (1) of the de- 
 fendant only, (2) of both parties, or (3) of the plaintiff only. 
 Parol evidence is admitted to show mistake, both for the 
 purpose of defence and for correcting the mistake. If the 
 defendant has been led into any error or mistake, the plaintiff 
 will not be permitted to enforce the contract with the mistake. 
 So that where a house and grounds were sold by auction, and 
 the plan showed a shrubbery on the west boundary, and X 
 went to look at the property before sale with the plan in his 
 hand, and found on the west side an iron fence enclosing a 
 belt of shrubs and three ornamental trees ; and X bought 
 the property thinking the fence was the boundary ; but it turned 
 out the real boundary was the line of shrubs, and did not 
 include the trees : the court held that the mistake was due to 
 the vendor's gross negligence, and refused specified per- 
 formance, (Denny v. Hancock, 6 Ch. App. 1). Again where 
 the conditions at an auction sale of a house stated it to be 
 sold subject to all " existing rights and easements of whatever
 
 3U the student's guide to 
 
 nature " ; and it appeared the owner of an adjoining house 
 had an easement to use the kitchen for certain purposes, but 
 on being questioned the auctioneer stated the audience might 
 dismiss any such claim from their minds, in the presence of 
 the vendor's solicitor, who knew of the rumoured existence of 
 the easement but forebore to make enquiries ; and the property 
 was knocked down to M. ; the conditions and statement 
 were held to be so misleading that performance was refused 
 as against the purchaser (Hayward v. Mallalieu, 25 Ch. 
 Div. 357.) Sometimes, mistake purely attributable to the 
 defendant, is a good defence, and in one case a mistake iu a 
 deed was rectified at the instance of the draughtsman ; but in 
 these cases the mistake must have been such that hardship 
 amounting to injustice would result from enforcing the bar- 
 gain, and it is not sufficient for the purchaser to merely say 
 " I thought " so and so, as he must exercise reasonable care. 
 (Tamplin v. Jones, 15 Ch. Div. 220.) Where mistake is set 
 up, the circumstances of each case have to be considered, 
 (lb. 222). What is the effect of a parol variation when set 
 up as a defence on the ground of mistake ? If the mistake 
 arose merely in putting the agreement into writing, specific 
 performance of the true agreement, i.e., the writing as varied 
 by the evidence, will be decreed ; but if the evidence shows that 
 X understood one thing and Y another, there is no contract 
 which can be enforced. And where the mistake is mutual, 
 and there is no fraud, the Court will not compel the purchaser 
 to complete, e.g., if a man contracts to buy his own land under 
 a common mistake (see Jones v. Clifford, 3 Ch. Div., 790), or 
 to take a lease of it, (Cooper v. Phipps, 2 H. L. C, 149.) 
 
 Misdescription of the property, inducing a man to buy that 
 which he did not intend to, is also a defence ; the principle, on 
 which the court acts, being that the purchaser shall have sub- 
 stantially that which he contracted for or not be compelled 
 to take that which he did not intend to have. If, therefore, 
 the vendor sues for specific performance, and a misdescription 
 is proved — (1) where the misdescription is so substantial
 
 SPECIFIC PERFOKMANCE AND MORTGAGES. 31 
 
 as not to admit of compensation the action will be dismissed, 
 thus a purchaser will not be compelled to take freeholds 
 where he agreed to buy copyholds, or an underlease where he 
 agreed to buy a lease ; but (2) if the misdescription is im- 
 material and admits of compensation, e.g., where fourteen 
 acres were sold as water meadow and only twelve were so, a 
 decree will be granted at the vendor's instance on condition 
 that he makes proper compensation. In a recent case, where 
 particulars of sale of freeholds described the property as 
 " enclosed by a brick wall with a tradesmen's side entrance," 
 and it turned out that the wall did not belong to the pro- 
 perty and the entrance was used on sufferance only, the court 
 rescinded the contract, and refused to decree performance 
 with compensation, although the conditions provided that 
 mistake or error in the description or particulars should 
 not annul the sale, but be compensated, (Brewer 
 v. Brown, 28 Ch. Div., 309.) But where, in cases 
 of misdescription, the purchaser seeks for specific perform- 
 ance, the rule is that he is entitled to performance so far as 
 the vendor can give it, with a corresponding abatement in 
 price. Thus, in Barker v. Cox, 4 Ch. Div., 969, where A con- 
 tracted to sell property to B, and to procure the concurrence 
 of all necessary parties in a proper assurance; and the property 
 was settled on C for life, with remainder to A in fee ; and just 
 before conveyance, A died, and C afterwards refused to con- 
 vey the life estate : it was held that the purchaser was en- 
 titled to demand specific performance, with an abatement of 
 purchase-money in respect of the life interest. Unless the 
 contract states that errors or misdescription shall only be com- 
 pensated if discovered before conveyance, the purchaser is 
 entitled to claim compensation for errors discovered after the 
 conveyance. (Flewitt v. Walker, 53 L.T., 287, where a lot de- 
 scribed as containing 248 square yards, and having a frontage 
 of 39 feet, was found after conveyance to contain only 135 
 square yards, and have a frontage of 18 feet.) But if the 
 property is referred to by the contract as defined in the annexed
 
 32 the student's guide to 
 
 plan, and edged round with pink, and the plan is signed by 
 the parties, and made part of the agreement, the vendors will 
 not be entitled to compensation on finding the land contains 
 an acre more than the quantity named in the contract. 
 (Orange to Wright, 54 L.J., Ch. 590.) 
 
 That the vendor cannot make such a good title as the 
 purchaser is entitled to under the contract, is a good defence 
 to an action by him. So that, if the vendor has no title at all, 
 or there is a reasonable probability of litigation, or 
 there is an adverse decision as to the vendor's title, or the 
 title rests on documents of doubtful construction, or the 
 evidence is presumptively fatal to the title (e.c/., where the exer- 
 cise of a power on which the title depends was a fraud on the 
 power), the Court decline to decree performance against an 
 unwilling purchaser. (See Fry, 383-394.) 
 
 Lapse of time may be a defence. Thus, where time is of 
 the essence of the contract, by express stipulation, or by neces- 
 sary implication— e.g., in the sale of reversionary interests (for 
 these vary in value by lapse of time), or annuities on lives or 
 stock in a public house (for these vary in value daily), or 
 public houses (the object being commercial enterprise), or mines 
 (which are liable to unforeseen losses), or a patent — the 
 court will not interfere, where the prescribed limit has gone by. 
 Options to purchase under a right of pre-emption are always 
 construed strictly, and must be exercised at the time prescribed. 
 And where time is not of the essence of the contract to begin 
 with, either party may make it so by notice fixing a reasonable 
 time for completion, provided the other party has been guilty of 
 unreasonable default or delay. And, of course, on the principle 
 I Vigilantibus non dormientibus cequitas subvenit, the right to 
 I a decree may be lost by unreasonable delay in coming to the 
 court for relief. As to this, and the two previous defences, 
 see the Notes to Seton v. Slade, in Vol. II. of the Leading 
 Equity Cases Where time is of the essence of the contract, 
 it may be waived, or enlarged, either by the acts of the parties 
 or by a new agreement (e.g., where the time fixed by the con-
 
 SPECIFIC PERFORMANCE AND MORTGAGES. 33 
 
 tract had gone by when the vendor delivered his abstract of 
 title, but the purchaser received and retained it (Seton v. 
 Slade). 
 
 II.— QUESTIONS AND ANSWERS ON SPECIFIC 
 PERFORMANCE. 
 
 Q. State shortly the essentials of a valid simple contract 
 both as regards the ordinary requisites of such a contract and 
 the nature of the property ? 
 
 A. It must possess the ordinary essentials of every simple 
 contract which are (1) Parties able to contract; (2) Such 
 parties' mutual assent to the contract ; (3) A valuable consi- 
 deration; and (4) Something to be done or omitted which 
 forms the object of the contract. (Indermaur's Principles of 
 Common Law, 29.) As regards the nature of the property it 
 must be such that damages will not afford complete and ade- 
 quate compensation, e.g., a contract for the sale of land, and 
 here writing is required under the 4th section of the Statute 
 of Frauds. (29 Car. II., c. 3.) 
 
 Q. Will the court enforce a voluntary contract in the nature 
 of a settlement ? Does it make any difference whether the con- 
 tract is under seal ? 
 
 A. No, the court will not enforce a voluntary contract, 
 and it makes no difference that it is under seal. Thus volun- 
 tary trusts executory by deed, will not be enforced, though 
 if executed, or by will, the court will enforce them. (See 
 Ellison v. Ellison, Indermaur's Conveyancing and Equity 
 Cases, 49 ; and see Indermaur's Guide to Trusts and Part- 
 nership, 8.) 
 
 Q. A bids at an auction for a house, which is knocked 
 doivn to him, and he signs a memorandum on the back of the 
 particulars agreeing to purchase, and the auctioneer signs a 
 memorandum, " as agent for the vendor," agreeing to sell. Can 
 specific performance of this contract be enforced f Would it
 
 34 the student's guide to 
 
 make any difference if the auctioneer had signed as agent for 
 the proprietor f 
 
 A. The court would not enforce specific performance, 
 because the signature of the auctioneer, " as agent for the 
 vendor," is not a sufficient description to satisfy the Statute of 
 Frauds. (Potter v. Duffield, L. R., 18 Eq. 4 ; 43 L. J., Ch. 
 472.) The proper course is to fill in the vendor's name, 
 but it has been held that the word "proprietor" is a 
 sufficient description (Rossiter v. Miller, L. R., 3 Appeal 
 Cases, 1124 ; 48 L. J., Ch. 10), therefore in this case specific 
 performance might be ordered. 
 
 Q. Give a short outline of the rules ivhich have been 
 established as to cases in which specific performance of 
 contracts of sale will not be ordered, by reason (1) of the 
 nature of the property contracted to be sold, or by reason (2) of 
 the contract containing stipulations which the court tvill not 
 enforce. 
 
 A. (1) The rule is that specific performance will not be 
 decreed when the nature of the property is such that damages 
 will afford complete compensation, e.g., generally contracts 
 respecting personal chattels. (Cuddee v. Rutter, and Notes 
 in Indermaur's Conveyancing and Equity Cases, 93.) (2) The 
 court will not decree specific performance of a contract to do 
 an illegal, or immoral act, or one that would be contrary to 
 public policy, e.g., for future separation between husband and 
 wife, nor where the act contracted to be done is one involving 
 personal skill. (Snell's Principles of Equity, 535, 538.) 
 
 Q. Show that a contract must (as a rule) be mutual in 
 order that it may be specifically enforced by the court. In a 
 case where a contract is required by the Statute of Frauds to 
 be in writing, can it be enforced by a party ivho has not 
 signed it ? 
 
 A. It is a rule that the court will not enforce specific 
 performance of a contract wanting in mutuality, for the 
 court upon equitable principles is giving relief beyond what 
 could have been obtained at law, and it would be inequitable
 
 SPECIFIC PERFORMANCE AND MORTGAGES. 35 
 
 not to observe this rule. It follows, therefore, that though at 
 law the rule is that infancy is a personal privilege, yet, if one 
 of the parties to a contract is an infant, he cannot sustain an 
 action for specific performance, for the court cannot decree 
 specific performance against him, he not being liable on his 
 contracts except for necessaries. An apparent, but no real, 
 exception to this rule arises under the Statute of Frauds, for 
 the plaintiff may obtain specific performance of a contract 
 signed by the defendant though not signed by himself, 
 because the Statute of Frauds only requires the agreement 
 to be signed by the party to be charged, and the plaintiff, by 
 commencing the action, has, it is said, made the remedy 
 mutual. (Snell, 537.) 
 
 Q. Explain the objections to a suit for specific performance 
 of an agreement founded, (1) on want of consideration, and 
 (2) on want of mutuality. 
 
 A. (!) It is a rule even at common law, as regards simple 
 contracts, that ex nudopacto non oritur actio, and therefore a 
 fortiori equity would not decree specific performance of a 
 simple contract not founded on valuable consideration, and 
 this rule has always been held to apply equally in equity as 
 regards specific performance, for the plaintiff is here seeking 
 more than he could get at common law, and it would be 
 inequitable to give it to him (see Jefferys v. Jefferys, Cr. & 
 Ph. 141). (2) The objection to the court enforcing specific 
 performance where there is a want of mutuality is also 
 founded on equitable principles, for if the one party cannot 
 get specific performance it would be unjust to let the other. 
 (Snell, 535, 537.) 
 
 Q. When will letters as to the sale and purchase of land 
 passing between two persons constitute a contract of which the 
 court will decree specific performance ? 
 
 A. When there is an offer on one side accepted un- 
 conditionally on the other, and the court can collect from a 
 fair interpretation of the letters that they import a concluded 
 agreement. Thus if A writes to B offering to sell his house
 
 36 the student's guide to 
 
 for £1,000 and B writes back simply accepting the offer, here 
 there is a binding contract. But if B in accepting the offer 
 were to insert as a condition that half the purchase -money 
 should remain on mortgage, here there would be no binding 
 contract. (Fry on Specific Performance, 124). The tendency 
 of modern decisions is to apply greater strictness to the con- 
 struction of a series of letters than was formerly done (See 
 Nesham v. Selby, L. R. 7 Ch. 406 ; May v. Thomson 20 Ch. 
 D. 705). 
 
 Q. Will specific performance be adjudged of a contract for 
 the sale of lands (1) at a "fair valuation" f (2) at a price 
 to be ascertained by X (who has died or refused to value) ? (3) 
 at a fixed price, but ivith a clause that furniture (bearing a 
 small proportion to the value of the estate) is to be taken at 
 the valuation of valuers to be mutually agreed on (the vendor 
 refuses to appoint one) ? 
 
 A. It may now be considered as settled that an agreement 
 to sell at a " fair valuation " will be specifically enforced, as 
 the court will enquire into the value, but if the parties them- 
 selves define the way in which the valuation is to be made, 
 and that cannot take place, then the contract cannot be en- 
 forced, but this does not apply to cases in which the property 
 is sold for an ascertained sum, and a non-essential adjunct 
 is to be taken at a valuation. In case No. 1, therefore, 
 specific performance will be ordered ; in case No. 2 it will not 
 be ordered ; in case No. 3 specific performance of the contract 
 as to the estate will be ordered, but not as to the furniture, 
 which part of the contract the plaintiff will have to abandon. 
 (Clerke & Humphrey's Sales of Land, 38-43 ; Fry on Specific 
 Performance, 150-156.) 
 
 Q. In what cases has the Chancery Division jurisdiction 
 in an action for specific performance to award damages for 
 the non-performance of a contract ? 
 
 A. Under Lord Cairns' Act (21 & 22 Vict., c. 27), the 
 court may, if it thinks fit, award damages, either in addition 
 to, or in substitution for, specific performance. Although that
 
 SPECIFIC PERFORMANCE AND MORTGAGES. 37 
 
 statute was repealed by the Statute Law Revision Act, 1883 
 (46 & 47 Vict,, c. 49), the practical effect of its enactment is 
 kept alive by sec. 5, and it has been held that the jurisdiction 
 of the court to award damages has not been effected. (Sayers 
 v. Collier, 28 Ch. D., 103 ; 54 L. J., Ch. 1.) 
 
 Q. If, upon investigation, a vendor's title to real estate 
 is ascertained to be bad, what is the rule as to the damages 
 or compensation which the purchaser can recover against 
 him ? Does the rule admit of any, and, if any, what ex- 
 ception? What, if any, condition on the subject is commonly 
 used on sales by auction ? 
 
 A. The purchaser is entitled to recover as his damages 
 any expenses he has properly incurred in investigatiDg the 
 title ; and also, if he has paid a deposit, such deposit and 
 interest thereon ; but he is not entitled to recover anything 
 for expenses incurred purely on his own behalf and not 
 actually necessary, e.g., surveying the estate; nor any expense 
 he has incurred before the proper time, e.g., the preparing of 
 the conveyance in anticipation. This rule is now settled to 
 be an absolute one, and not subject to any exception, if the 
 action is simply one for damages for a breach of the contract, 
 but there may be circumstances justifying an action for fraud 
 and deceit, which will enable the purchaser to recover sub- 
 stantial further damages, as where the vendor knew he had 
 no title. (Fleureau v. Thornhill, 2 W. Bl. 1078 ; Bain v. 
 Fothergill, L. R., 7 H. L., 158; Indermaur's Principles of 
 Common Law, 426.) It is usual on a sale by auction, or in 
 any private agreement for sale, to insert a condition pro- 
 viding that should the sale not be completed through defect 
 of title, the purchaser shall only be entitled to the return of 
 his deposit, without interest, and nothing else. 
 
 Q. Will courts of equity decree specific performance of (I) 
 contracts for sale of chattels ; (2) contracts to build or 
 repair ? 
 
 A. (1) As a general rule it will not, but it will when a 
 compensation in damages furnishes no complete and satis-
 
 38 the student's guide to 
 
 factory remedy, e.g., in cases of a contract for the sale of (a) 
 shares in a railway or other company which are limited in 
 number, (6) assigned debts under a bankruptcy, (c) rare and 
 beautiful articles. (2) The court will not, in general, decree 
 specific performance of a contract to build or repair, because 
 damages will compensate the party, and such contracts are 
 for the most part too uncertain to enable the court to carry 
 them out, but in some exceptional cases the court will do so, 
 provided the agreement is clear and definite. (Snell, 536.) 
 
 Q. When will the court decree specific delivery of chattels 
 irrespective of contract betiveen the parties f 
 
 A. (1) Where a fiduciary or quasi-fiduciary relationship 
 exists, and the person occupying the fiduciary position omits 
 to deliver up any property which he should (Snell, 541). 
 (2) In the case of heir-looms or other articles of peculiar 
 value, e.g., in Pusey v. Pusey (Indermaur's Conveyancing and 
 Equity Cases, 97), where the plaintiff obtained specific 
 delivery up of a certain horn which, in ancient times was 
 delivered to his ancestors to hold their lands by. In any 
 action of detinue also under the Common Law Procedure Act, 
 1854 (17 & 18 Vict., c. 125, sec. 78), the court has a discretion 
 to order delivery up of the chattel without giving the defendant 
 the option of retaining it on paying its value. 
 
 Q. Will the court decree specific performance of a contract 
 for the sale of the goodwill of a business ? 
 
 A. No. Firstly, because damages would compensate ; 
 and secondly, because of the uncertainty of the subject- 
 matter, and the consequent incapacity of the court to give 
 specific directions as to what is to be done to transfer it. If, 
 however, the contract is for the sale and purchase of premises, 
 together with the goodwill of a business carried on there, 
 then the court will decree specific performance. (Snell, 536.) 
 
 Q. Yfhat power in the nature of specific performance was 
 conferred on the courts of law by the Mercantile Law Amend- 
 ment Act, 1856 (19 <& 20 Vict., c. 97)? 
 
 A. This statute (sec. 2) provides that on a verdict for
 
 SPECIFIC PERFORMANCE AND MORTGAGES. 39 
 
 plaintiff, in an action for breach of contract, to deliver 
 specific goods, on the application of the plaintiff, and by 
 leave of the judge the jury shall find (1) what are the goods in 
 question, (2) what (if anything) the plaintiff would have 
 been liable to pay for delivery thereof, (3) what damages 
 (if any) the plaintiff will be entitled to if the goods are 
 delivered in execution as thereinafter mentioned, and (4) 
 what damages if not so delivered ; and thereupon, on the 
 plaintiff's application, the judge may order execution to be 
 issued for delivery of the goods themselves on payment by 
 the plaintiff of the sum (if anything) found by the jury to 
 be paid by him, without giving the defendant the option of 
 retaining the same upon paying the damages assessed. (See 
 Indermaur's Conveyancing and Equity Cases, 98.) 
 
 Q. What is the rule as to the interference of equity 
 ivith respect to contracts, ivhich provide for the rendering 
 of personal service by one party in favour of the other ? 
 Apply the rule to cases where (a) The contract provides that 
 defendant shall serve plaintiff for a given time for stated 
 money payment, and shall serve no one else during that time ; 
 (b) The express negative stipulation is omitted, but the services 
 to be rendered by defendant are inconsistent with his serving 
 another ; (c) The contract provides amongst other things, that 
 defendant shall execute a deed of covenant to render personal 
 service on stated terms. 
 
 A. The rule is that the court will not decree specific perform- 
 ance of contracts for the rendering of personal services by 
 reason of its inability to enforce the doing of the acts, (a) 
 The court cannot actually decree specific performance, but on 
 account of the negative stipulation may interfere by injunc- 
 tion to prevent the defendant serving any one else (Lumley v. 
 Wagner, 1 De G. M. and G., 604) ; (6) The court here also 
 might interfere by injunction, as though there is no express 
 negative stipulation yet it can be implied (Webster v. Dillon, 
 5 W. E., 867) ; (c) If the execution of the deed only consti- 
 tutes a part of the contract and the court cannot decree
 
 40 THE STUDENT'S GUIDE TO 
 
 specific performance of the other r part, neither will it decree 
 execution of the deed, but if the deed covers all the matter 
 then the court will decree its execution, the real contract 
 which the court is here enforcing not being the personal 
 service but the execution of the deed. (South Wales Eailway 
 Co. v. Wythes, 1 K. and J., 186 ; see Fry on Specific Per- 
 formance, 357-377.) 
 
 Q. When do courts of equity enforce by injunction the nega- 
 tive part of an agreement which contains both negative and 
 affi/rmative stipulations ? 
 
 A. When the defendant is acting or threatening to act 
 contrary to the stipulations in the agreement to the prejudice 
 of the plaintiff. (Lumley v. Wagner, 1 De G. M. and G., 
 604.) 
 
 Q. Hoiu far, if at all, will the court interfere to compel 
 specific performance of an agreement for a partnership ? 
 
 A. Equity will not enforce a contract to enter into a 
 partnership at will, as that would be useless ; nor will it 
 always do so even if the agreement is for a partnership for a 
 time certain ; but it will do so where the parties have agreed 
 to execute some formal instrument which would confer rights 
 not existing until the instrument is executed,^although the 
 partnership might be immediately dissolved. (Snell, 506.) 
 
 Q. Explain the difference between law and equity as to 
 time being of the essence of contracts. Under what circum- 
 stances do they coincide? Where equity holds time non- 
 essential, is there any and what, remedy against delay ? Is 
 lapse of time ever, and, if so, tinder what circumstances, fatal 
 to an action for specific performance though not to an action 
 for damages. 
 
 A. At law time was always of the essence of the contract, 
 but in equity it was not, unless, it was expressly so stipulated 
 or made so by reasonable notice, or it appeared to be 
 intended to be so, from the nature of the property, e.g., a 
 contract for the sale of an annuity, or a reversion, or a 
 contract for the sale of a business as a going concern, in
 
 SPECIFIC PERFORMANCE AND MORTGAGES. 41 
 
 which cases the rules of law and equity coincided. The 
 equity rule now universally prevails. (Judicature Act, 1873, 
 sec. 25 (7.)) Where lapse of time is such as to constitute 
 laches, this is fatal to an action for specific performance, hut 
 yet the right to maintain an action for damages would exist 
 until barred by the Statutes of Limitation. What will be 
 laches must depend on the circumstances of every case, but 
 in none of the cases has a delay under twelve months been 
 held, when unaccompanied by other circumstances, to amount 
 to evidence of abandonment. (Snell, 561, 562.) 
 
 Q. A agrees to buy of B for £1,000 an annuity of £100 a 
 year payable to B during the life of C. Before completion C 
 dies. Can B enforce this contract ? 
 
 A. Yes, under the maxim equity looks on that as done 
 which is agreed to be done. There is here a case of positive 
 contract, and there is no case of accident in which the court 
 could relieve. It would be the same were A to have agreed 
 to buy a house of B, and before completion the house was 
 destroyed by fire. (Snell, 441.) It must be borne in mind, 
 however, that the case put in the question is one in which 
 time is, from the nature of the case, of the essence of the 
 contract. 
 
 Q. In ivhat cases will the court decree specific performance 
 of a contract made by ivord of mouth only, but which ought 
 under the Statute of Frauds to have been reduced into 
 writing ? 
 
 A. In three cases, viz.: — (1) Where there has been some 
 act of part performance ; (2) where the plaintiff sets forth 
 the parol contract in his statement of claim, and the defen- 
 dant admits it in his defence, and does not set up the statute 
 as a bar ; and (3) where the agreement was intended to have 
 been reduced into writing, but that was prevented by the 
 fraud of the other party. (Lester v. Foxcroft, and Notes, 
 Indermaur's Conveyancing and Equity Cases, 94, 95.) 
 
 Q. Shoiv that the courts of equity will not allow the Statute 
 of Frauds to be made the instrument of fraud.
 
 42 the student's guide to 
 
 A. This is well shown by the fact that although a contract 
 for the sale of land is by word of mouth only, yet if it was 
 prevented from being reduced into writing by the fraud of 
 the other party, the court will nevertheless decree specific 
 performance, for to do otherwise would, in fact, be to allow 
 the statute to be made an instrument of fraud. So, also, 
 where there have been acts of part performance of the nature 
 detailed in the next answer the court will decree specific per- 
 formance of a contract though not in writing, upon the prin- 
 ciple, practically, that a fraud would be committed through the 
 instrumentality of the statute were it not to do so. (Snell, 
 543, 550.) 
 
 Q. Examine the doctrine of equity as to part performance 
 of parol contracts. 
 
 A. The doctrine is that although a contract is required by 
 the Statute of Frauds to be in writing, and is, in fact, by word 
 of mouth, yet if it has been partly performed the court will, 
 nevertheless, decree specific performance upon the ground that 
 it would be a fraud upon the part of the person who has 
 allowed the acts of part performance to be done not to carry 
 out bis part of the contract. Acts to be a part performance 
 must be exclusively referable to the agreement, and done with 
 no other view than to perform it, and must be such that really 
 not carrying out the contract amounts to a fraud. Thus 
 letting a purchaser into possession is a sufficient act of part 
 performance, but part payment of purchase-money or delivery 
 of the abstract are not. (Lester v. Foxcroft, and Notes, In- 
 dermaur's Conveyancing and Equity Cases, 94, 95.) 
 
 Q. What are and ivhat are not acts of part performance 
 sufficient to take a parol agreement for the sale of lands out of 
 the Statute of Frauds ? 
 
 A. Any acts are sufficient which are exclusively referable 
 to the agreement, done with no other view than to perform 
 it, and of such a nature that for the other party not to carry 
 out the contract after allowing them to be done would be a 
 fraud. Thus, letting a purchaser into possession, allowing a
 
 SPECIFIC PERFORMANCE AND MORTGAGES. 43 
 
 tenant already in possession to lay out money in improve- 
 ments, or such a tenant paying an increased rent on account 
 of a parol contract for a new lease, would be sufficient ; but 
 part payment of the purchase-money, delivery of the ab- 
 stract, or preparation of the draft conveyance would not be 
 sufficient. (Notes to Lester v. Foxcroft, 1 White & Tudor.) 
 
 Q. Examine the grounds of the doctrine of part perform- 
 ance as an answer to the Statute of Frauds. Does it make 
 any difference whether the acts of part performance relied on 
 are done by the person setting up, or by the person resisting 
 the contract ? What value, as an answer to the statute, have 
 the following acts, viz., possession? marriage, 'payment of 
 'purchase-money, delivery of abstract, preparation of draft 
 conveyance, outlay of money in improvements," payment of 
 additional rent ?^ 
 
 A. The doctrine is that where certain acts of part per- 
 formance have been allowed to be done, the court will not 
 allow the Statute of Frauds to be set up, for to do so would 
 be to open the door to fraud. The whole principle is that, 
 after what has taken place, it would be inequitable not to 
 carry out the contract. Where the acts of part performance 
 have been done by the person setting up the contract, this 
 principle always applies, but not usually where done by the per- 
 son resisting it, for if he is content that, notwithstanding his 
 part performance, yet there shall be no contract, the other 
 party is not injured, and there is no case of fraud. The de- 
 livery of possession, the outlay of money in improvements, 
 and the payment of an additional rent, have all been held to 
 be sufficient acts of part performance, but the other acts 
 mentioned in the question have been held not to be. (See 
 Fry on Specific Performance, 252-276.) 
 
 Q. Will marriage be a sufficient act of part performance 
 to enable the court to decree specific performance of a parol 
 contract relating to land ' 
 
 A. No, marriage alone is not a sufficient part perform- 
 ance, for to hold this would be to overrule the Statute of
 
 44 the student's guide to 
 
 Frauds, which enacts that every agreement in consideration of 
 marriage, to be binding, must be in writing. But a parol 
 contract may be taken out of the statute by acts of part per- 
 formance, independently of the marriage. Thus, in Surcombe 
 v. Pinniger (3 De G., M. & G., 571), a father, previously to 
 the marriage of his daughter, told her intended husband that 
 he intended to give them certain leasehold property on their 
 marriage, and after the marriage he gave up possession of 
 the property to the husband. It was held that there was 
 here sufficient part performance — not the marriage, but the 
 giving possession. (Snell, 547.) 
 
 Q. A, on the marriage of his daughter ivith B, by word of 
 mouth, promises B that in consideration of the marriage he 
 will settle a certain house on B and his wife after the mar- 
 riage. He also represents that he has already transferred 
 £1,000 Consols into B's name. After the marriage A refuses 
 to settle the house, and it also turns out he never transferred 
 the £1,000 Consols, and he refuses to do so. Has B any 
 remedy ? 
 
 A. As to the contract to settle the house B has no 
 remedy, for this is a contract in consideration of marriage, 
 and is required by the 4th section of the Statute of Frauds 
 to be in writing, and though the marriage has taken place on 
 the strength of the contract, yet this is no sufficient part per- 
 formance, for to hold it to be so would be in effect to repeal the 
 Statute of Frauds. But as to the €1,000 Consols, if B can 
 show that the marriage took place on the faith of the repre- 
 sentation that that sum had been thus transferred, B could 
 enforce its transfer, for it is a representation as regards an 
 existing fact, and not a mere promise or agreement. (Snell, 
 547, 549.) 
 
 Q. A by word of mouth agrees to settle a house on his 
 daughter B on her marriage. After the marriage he enters 
 into a written agreement to do so. Can this be enforced? 
 
 A. Yes, it seems that if there is a written agreement after 
 marriage in pursuance of a parol agreement before marriage,
 
 SPECIFIC PERFORMANCE AND MORTGAGES. 45 
 
 this takes the case out of the Statute of Frauds, and the 
 reason is this, that the object of the statute was not to alter 
 principles of law but modes of evidence. It is, therefore, 
 sufficient if there be a memorandum clearly containing the 
 terms of the agreement before the action arises. (Snell, 548.) 
 
 Q. For ivhat purposes and under what limitations do 
 Courts of Equity permit a 'plaintiff and defendant to an 
 action for specific performance to adduce* oral evidence ivith 
 reference to a written contract ? 
 
 A. A defendant is always allowed to give evidence to show 
 that there was a subsequent parol variation of the written 
 contract, as a defence to the action for specific performance, 
 for the Statute of Frauds though saying that an unwritten 
 agreement as to the sale of land shall not bind, does not say 
 that a written contract must necessarily bind. A plaintiff is 
 not generally allowed to give such evidence, but he is allowed 
 to in three cases, which are analogous to those cases in which 
 the court will decree specific performance of an originally 
 parol contract, viz: — (1) after acts of part performance of 
 the parol variation ; (2) when the defendant sets up the parol 
 variation, and the plaintiff seeks specific performance with it, 
 and (3) when it has not been put into writing because of 
 the fraud of the defendant. (Woollam v. Hearn, Indermaur's 
 Conveyancing and Equity Cases, 94, 96.) 
 
 Q. What are the rules as to the admissibility of parol 
 evidence in actions for specific performance of contracts for 
 the sale of lands ? Apply it to the following cases, stating in 
 each whether the parol evidence will be admissible, and, if so, 
 what will be its effect :— (1) Vendor, as plaintiff, seeks to 
 enforce specific performance of the written contract, as varied 
 by a subsequent verbal contract of which he tenders evidence. 
 (2) The like, with the addition of evidence that there has been 
 part performance of the verbal contract. (3) Vendor, as 
 plaintiff, seeks to enforce the written contract, but defendant 
 tenders evidence that the price has been reduced by subsequent 
 verbal agreement. (4) Vendor, as plaintiff, seeks to enforce
 
 46 the student's guide to 
 
 the written contract, but defendant tenders jpa/rol evidence that 
 an intended term in the defendant 's favour had by mistake 
 been omitted therefrom. 
 
 A. The rules are stated in the last answer. To apply 
 them to the cases stated in the question : — (1) Generally the 
 plaintiff cannot get specific performance of the written con- 
 tract with the parol variation. (2) The plaintiff can get 
 specific performance if the act is a sufficient part perform- 
 ance — e.g., a letting into possession. (3 and 4.) The defen- 
 dant may give the evidence in both of these cases, and if he 
 establishes these facts will have a good defence, for it would 
 be inequitable to here decree specific performance. (Snell, 
 554.) 
 
 Q. In what, if any, case will equity refuse specific per- 
 formance of a contract, notwithstanding that it is valid, and 
 is such in respect of subject-matter and terms, as to be within 
 the jurisdiction of equity as to specific performance? On what 
 principle does your answer rest ? 
 
 A. Where there is any fraud or misrepresentation inducing 
 the contract, when there has been a substantial misdescrip- 
 tion of the property, where the land turns out to be of a 
 different tenure than that contracted for, where the plaintiff 
 has been guilty of laches in coming to the court, or in cases 
 where time is of the essence of the contract when that time 
 has not been observed, or where to enforce specific per- 
 formance would be to inflict a great hardship on the defendant. 
 The principle is that the granting of specific performance is 
 discretionary in the court, and that all the above are cases in 
 which it would be unequitable for the court to thus interfere. 
 (Snell, 550-563). 
 
 Q. To what extent is the fact that property agreed to 
 be purchased turns out to be of a different tenure than what 
 was contracted for, a good defence to an action by the vendor 
 for specific performance ? 
 
 A. It has always been laid down that difference of tenure 
 is a good defence, and that the vendor cannot compel specific
 
 SPECIFIC PEERORMANCE AND MORTGAGES. 47 
 
 performance, notwithstanding a special condition that errors 
 in the description should not invalidate the sale. (Snell, 558.) 
 In case, however, of long leasehold property capable under 
 the 65th section of the Conveyancing Act, 1881 (as amended 
 by the Conveyancing Act, 1882, sec. 11) of being converted 
 into a fee simple, the fact that it was described as freehold 
 when it was in fact leasehold, would appear to be immaterial, 
 as the vendor can at once make it freehold. 
 
 Q. A made a post-nuptial settlement of certain real estate 
 upon his wife and children. He subsequently contracted to 
 sell the estate to B. B refused to complete, and A noiv sues 
 him for specific performance. Is there any objection to such a 
 suit ? 
 
 A. Yes, although under 27 Eliz., c. 4, a voluntary settle- 
 ment is void against a bond fide purchaser for value, either 
 with or without notice, yet the meritorious or voluntary settle- 
 ment is good as against the grantor, who, therefore, cannot 
 compel specific performance of the subsequent contract, 
 although the voluntary settlement would be no answer to an 
 action by the purchaser against the vendor for specific per- 
 formance. (Snell, 76, 77.) 
 
 Q. Enumerate some ordinary grounds of defence to an action 
 for specific performance. 
 
 A. (1) Fraud of the plaintiff inducing the contract. (2) 
 Mistake on the part of the defendant. (3) Material misde- 
 scription of the property. (4) That the property was of a 
 different tenure to that contracted for. (5) That the remedy 
 was not mutual, e.g., that the plaintiff was an infant. (6J 
 That the subject-matter of the contract is such that damages 
 would afford complete and adequate compensation. 
 
 Q. To what extent will a court of equity grant specific per- 
 formance of contracts for purchase by an agent for sale from 
 his principal ? 
 
 A. An agent for sale, and, indeed, any one occupying a 
 fiduciary position towards the vendor, cannot purchase, unless 
 he can make it perfectly clear that he furnished his employer
 
 48 the student's guide to 
 
 with all the knowledge which he himself possessed. (Clerke 
 aud Humphrey's Sale of Land, 409). Therefore, the court 
 would only decree specific performance at the instance of the 
 agent, if he could clearly show this, but as against him, the 
 court will always decree specific performance, for he would 
 not be allowed to set up his own wrong. 
 
 Q. Discuss fully mistake — as (I) the defence to a suit for 
 specific performance, (2) the ground for a suit for rescission of 
 a contract, and (3) the ground for a suit for rectification. 
 
 A. (1) Mistake as regards some matter of fact is a good 
 defence to an action for specific performance because, it would 
 be inequitable in such a case to grant specific performance, 
 and parol evidence may here be admitted to show the mistake 
 for the Statute of Frauds does not say that the court must 
 necessarily give effect to a written contract, but only that an 
 unwritten contract shall not bind. Mistake may here be set 
 up even although it is attributable to the defendant's own 
 negligence ; (2) where as a defendant a party would have a 
 good defence to an action for specific performance, on this 
 ground he can generally come to the court for rescission of 
 the contract ; (3) the general rule is that where by mistake 
 an instrument inter vivos is not what the parties intended, or 
 there has been a mistake in it other than a mistake in law, 
 and the mistake is clearly made out by admissible and satis- 
 factory evidence, or is admitted by the other side, or is evident 
 from the nature of the case or from the rest of the instru- 
 ment the court will rectify the mistake. Thus, if articles are 
 made before marriage and then after marriage a settlement 
 is made which differs from the articles, the Court will rectify 
 the settlement on this ground. (Snell 551, 552, 450.) 
 
 Q. How far, and on what grounds, does mistake (1) of laiv; 
 (2) of fact, operate as a defence to an action for specific per- 
 formance in cases where the mistake is (\) ivholly on the part 
 of the plaintiff ; (2) ivholly on the part of the defendant ? Give 
 examples. 
 
 A. Mere mistake of law is no defence for the rule is Ignor-
 
 SPECIFIC PERFORMANCE AND MORTGAGES. 49 
 
 antia legis neminem excusat, but mistake of a material fact is 
 a good defence, the rule being Ignorantia facti excused. Thus 
 A agrees to sell bis remainder in property under tbe mistaken 
 impression that it is contingent when, in fact, it is vested, the 
 court will not ordinarily relieve ; but if A agrees to sell his 
 reversion under the belief that the tenant for life is still living 
 when, in fact, he is actually dead at the time, the court will 
 relieve. Where the mistake is wholly that of the plaintiff, 
 and no injustice can be done the defendant, the court will 
 decree specific performance if the plaintiff desires, as in the 
 last instance given ; but as regards a defendant though the 
 mistake is wholly his, yet the court will relieve, as where the 
 defendant bid at an auction for Lot 2, which was knocked 
 down to him when he believed, in fact, he was bidding for, 
 and intended to purchase Lot 3. (Snell, 443, 447, 552.) 
 
 Q. A enters into a contract with B by bidding at an auc- 
 tion for Lot 1. A in so bidding, through his own sole mis- 
 take, thinks that he is bidding for Lot 2 ; he refuses to com- 
 plete the contract, whereupon B sues A for specific performance. 
 Has A good defence ? 
 
 A. Yes, though the mistake was entirely attributable to 
 his own negligence, the court will not decree specific per- 
 formance, as it would be inequitable to do so. (Malins v. 
 Freeman, 2 Keen, 25 ; Snell, 552.) 
 
 Q. Where a vendor has entered into a contract for the sale 
 of real estate, and it turns out in fact that the area is substan- 
 tially less than that specified in the contract, what are the 
 respective rights of (1) the vendor, and (2) the purchaser, as to 
 insisting upon the specific performance of the contract ? 
 
 A. (1) The vendor cannot generally enforce specific 
 performance if the area is substantially less, but if the 
 difference is not material, and is such that it is a proper 
 subject for compensation, the court will enforce the contract 
 at the suit of the vendor, compelling him to make compen- 
 sation to the purchaser — thus, where 14 acres were sold 
 as water meadow, and only 12 answered that description, it
 
 50 THE STUDENT'S GUIDE TO 
 
 was held a fit subject for compensation (Scott v. Hanson, 
 1 K. & My. 128), but this principle of granting compensation 
 in lieu of rescinding the contract will never be applied where 
 there has been any fraud or misrepresentation. (2) The 
 purchaser has always a right to specific performance, with 
 compensation for the deficiency, if the compensation is 
 capable of being assessed, provided he was not aware of the 
 deficiency when he entered into his contract. (Gierke and 
 Humphrey's Sales of Land, 375, 377 ; Snell, 559, 560.) 
 
 Q. Property is put up for sale in two lots, and is simply 
 described as leasehold. Lot 1 is held by the vendor under an 
 underlease, the covenants in which are somewhat different from 
 those in the original lease. Lot 2 is part of a larger property 
 all comprised in one lease, but nothing is stated in the par- 
 ticulars on this point. Will the Court enforce specific perform- 
 ance in either of these cases ? 
 
 A. No, in neither. As to Lot 1 it would be unjust to do 
 so, because the purchaser would be subject to forfeiture for 
 breaches of covenant in the superior lease, and as to Lot 2 
 because he would be liable to forfeiture on account of breaches 
 of covenant contained in the lease as regards the other portion of 
 the property, (Prideaux's Conveyancing, Vol. L, p. 9; Snell,558). 
 
 Q. To what extent if at all can the defence of a doubtful 
 title be set up by a defendant in an action for specific per- 
 formance ? 
 
 A. As a general rule the court will not allow this defence 
 to hold, but will itself determine whether the title is good or 
 bad (Alexander v. Mills, 6 Ch. D., 124) unless, indeed, it is 
 some matter of great difficulty, and there are parties not 
 before the court whose interests may be affected. The de- 
 fence will also be allowed where the doubt is not one on some 
 general rule of law, but turns on the construction of some badly- 
 worded instrument as to which the court itself is doubtful. 
 (Clerke and Humphrey's Sales of Land, 475.) 
 
 Q. A brings an action in the Chancery Division of the 
 High Court of Justice against B for specific performance of
 
 SPECIFIC PERFORMANCE AND MORTGAGES. 51 
 
 an agreement to purchase an estate. B was induced to execute 
 the agreement and to pay an instalment of the purchase-money 
 by the fraud of A. What course should B take f 
 
 A. B should set up the fraud as a defence, and should also 
 counter-claim for a return of his deposit, and interest, and any 
 damages he has sustained. 
 
 Q. Where A, by means of a misrepresentation of fact, made 
 under a bond fide belief in the truth of his statement, induces 
 B to enter into a contract with him to "purchase a house. What 
 are B's rights f Does it make any difference that B might by 
 personal enquiry have learnt the truth ? 
 
 A. If B can show that the representation was as to some 
 definite existing fact and not merely indefinite statements, 
 mere commendation, or promises of what should be done, B 
 has a good defence to any action for specific performance, and 
 may also himself bring an action for rescission of the con- 
 tract. And though B might by personal enquiry have learnt 
 the truth, yet if in fact he did not, but relied on A's repre- 
 sentations, B has equally the same right. (Redgrave v. 
 Hurd, 20 Ch. D., 1 ; Smith v. Chadwick, 20 Ch. D., 44 ; Clerke 
 and Humphrey's Sales of Land, 407.) 
 
 Q. What, if any, is the effect on a vendor's right to compel 
 specific performance of a contract to purchase a house, that he 
 has (1) omitted to disclose a structural defect, or {2) adopted 
 means to prevent such defect from being observed, or (3) made 
 untrue verbal statements, on occasion of the contract being 
 entered into, as to the house being free from certain defects f 
 What, if any, remedies has the purchaser open to him in the 
 above cases respectively ? Draw any distinctions which appear 
 to you material. 
 
 A. In none of these cases can the vendor enforce specific 
 performance, for in each case there is fraud. In the first case 
 the nature of the fraud is suppressio veri, for it was a latent 
 defect which the purchaser could not discover for himself and 
 had a right to have disclosed to him ; in the second and third 
 cases there is suggestio falsi, which is even stronger. The 
 
 £2
 
 52 the student's guide to 
 
 purchaser could set this up as a defence to any action for 
 specific performance, and counter-claim for the return of any 
 deposit paid, and interest, and damages, or he could bring a 
 separate action for setting aside the contract, and for the 
 return of the deposit, and interest, and for damages. (Snell, 
 459, 463.) 
 
 Q. A is a trustee, and under his powers put certain pro- 
 perty up for sale by auction. What is his duty as to the con- 
 ditions of sale, and how may a breach of his duty in this 
 respect affect his right to enforce specific performance against 
 a purchaser at the sale ? 
 
 A. A being a trustee his duty is to sell under proper con- 
 ditions ; he must not make them so strict that they may tend 
 to deter purchasers, nor, on the other hand, must he let them 
 be too loose, as this might throw unnecessary costs on his 
 cestuisque trusts. If he does not observe these points he is, in 
 fact, guilty of a breach of trust, and could not enforce specific 
 performance against a purchaser who set up his breach as a 
 defence to such an action. (l)unn v. Flood, 28 Ch. D., 586 ; 
 54 L. J., Ch. Appeals, 370 ; Indermaur's Guide to Trusts and 
 Partnership, 22, 23.) 
 
 Q. A agrees to sell a house to B for £1000, and B agrees to 
 buy. What ivould be the effect if before completion and pay- 
 ment of the price (1) the vendor became a bankrupt/, (2) the 
 purchaser became a bankrupt ? 
 
 A. (1) The vendor's trustee in bankruptcy could enforce 
 specific performance, or it could be enforced against him by 
 the purchaser ; (2) the purchaser's trustee could enforce 
 specific performance on due payment of the price, or he could 
 disclaim it under the provisions of the Bankruptcy Act, 1883 
 (46 & 47 Vict., c. 52, sec. 55), as being onerous property. 
 
 Q. On what grounds has specific performance of agree- 
 ments for future separation between husband and wife been 
 refused, ? In what does the consideration for a separation deed 
 usually consist t Has the Married Women's Property Act, 1 882, 
 made any difference ivith regard to separation deeds ?
 
 SPECIFIC PERFORMANCE AND MORTGAGES. 53 
 
 A. Upon the ground that a provision for future separation 
 is contrary to public policy. The most usual consideration in 
 a separation deed is the engagement of the trustees to indem- 
 nify the husband from the wife's debts. Prior to the Married 
 Women's Property Act, 1882, the intervention of trustees 
 was generally necessary to the validity of a separation deed; 
 but since this Act this is no longer so, as the wife is a distinct 
 person, capable of contracting with the husband. (Fry on 
 Specific Performance, 648-651 ; Edwards and Hamilton's 
 Law of Husband and Wife, 52.) 
 
 Q. Will the Court of Equity enforce specific performance of 
 an agreement for reference to arbitration ? 
 
 A. No, it will not, deeming it against public policy to ex- 
 clude any person from the appropriate tribunal. But the 
 parties may enter into a binding submission to arbitration 
 containing an agreement to make it a rule of court, and if so 
 made a rule of court, it cannot then be revoked. And under 
 the Common Law Procedure Act, 1854 (17 & 18 Vict., c. 125, 
 sec. 11) where parties to any instrument, e.g., a partnership 
 deed, agree to refer to arbitration any difficulties that may 
 arise, and one of the parties nevertheless afterwards com- 
 mences an action, the court may stay the proceedings, on such 
 terms as it thinks fit, on being satisfied that no sufficient 
 reason exists why the matters cannot be so referred, and that 
 the defendant was at the time of bringing the action, and 
 still is, ready and willing to concur in all acts necessary for 
 causing the matter to be decided by arbitration. (Snell, 508 ; 
 Cope v. Cope, W. N. (1885), 110; 52 L. T., 607.) 
 
 Q. State the effect of the provision of " The Vendors' and 
 Purchasers' Act, 1874," for enabling either party to a contract 
 of sale in certain cases to obtain a decision of differ- 
 ences between them. Does the statute apply to all con- 
 tracts of sale, and to the settlement of all differences relating 
 thereto ? If not, how is its application restricted ? 
 
 A. Under this enactment application may be made by 
 either party by means of a summons in chambers in the
 
 54 the student's guide to 
 
 Chancery Division for the determination of the differences, 
 and the judge shall on such application make such order as 
 shall appear to him just, and shall order how and by whom 
 all or any of the costs of, and incident to, the application 
 shall be borne and paid. This enactment applies to all con- 
 tracts for sale of real or leasehold property in England, but 
 is restricted in not applying to enable a question affecting 
 the existence or validity of the contract to be thus deter- 
 mined. It may be noticed also, that an order for specific 
 performance could not be obtained in this summary way. 
 (37 & 38 Vict., c. 78, sec. 9.) 
 
 Q. State the general rules as to ivho are the proper parties 
 to an action for specific performance. 
 
 A. There must be brought before the court all such per- 
 sons as are necessary to enable the court to do complete justice, 
 and to render the parties safe. The plaintiff must, therefore, 
 bring before the court, either as co-plaintiffs or defendants, or 
 by afterwards serving them with notice of the judgment, all 
 persons so circumstanced, that, unless their rights were bound 
 by the judgment of the court, they might cause future moles- 
 tation or inconvenience to the party against whom the relief 
 was sought. Ordinarily speaking, of course, the parties would 
 simply be the vendor and purchaser, but there may be other 
 persons who have acquired an interest in the estate ; e.g., if 
 A agrees to sell to B, and B then agrees with C that A shall 
 transfer the estate to C. In this case, to get specific perform- 
 ance against A, C would be a necessary party. (Daniell's 
 Ch. Pr., 202, 204.) 
 
 Q. Wlio are the proper parties to a suit for specific per- 
 formance (I) by the vendor, where the purchaser has died 
 before completion of the contract ; (2) by the purchaser when 
 the vendor has died before completion ? 
 
 A. (1) If the purchaser has died intestate, the vendor 
 must make as defendants his heir at law and his administrator, 
 and if testate his devisee and his executor, for though his 
 claim is against the personal representative for the purchase-
 
 SPECIFIC PERFORMANCE AND MORTGAGES. 55 
 
 money, yet the heir or devisee as the case may be is 
 entitled to the estate, though now subject to the payment of 
 the purchase-money (30 & 31 Vict. c. 69 ; 40 & 41 Vict. 
 c. 34). (2) Now if the death was on or since 1st January, 
 1882, as under Sec. 4 of the Conveyancing Act, 1881, the 
 personal representative may in such a case convey, it would 
 only be necessary for the purchaser to make him a defendant, 
 but, if the death were prior to that date, then the heir or 
 devisee as well as the personal representative would be a 
 necessary party. ("Daniell's Ch. Pr., 259.) 
 
 Q. State shortly the proceedings in an ordinary vendor's 
 action for specific performance of a contract to sell freeholds 
 ivhen the title has not been accepted. 
 
 A. The pleadings are the same as in any ordinary action, 
 and on the hearing the court will grant specific performance 
 subject to an enquiry in chambers as to whether a good title 
 can be made, and if the action is by the vendor the right to 
 specific performance is made contingent on a good title being 
 shewn. Subject to this the judgment may also contain all 
 necessary directions for carrying the contract into effect, and 
 the costs may also be dealt with, or the further consideration 
 of the cause may be adjourned until after the enquiry in 
 chambers, and then on the further consideration the whole 
 matter will be disposed of. (Daniell's Ch. Pr., 1375.) 
 
 Q. Intern action by vendor for specific performance the 
 chief clerk certifies that a good title cannot be made. What 
 will be the nature of the order on further consideration ? 
 
 A. The order will be for the plaintiff to pay the defendant's 
 costs and to return his deposit (with interest unless there is a 
 provision in the contract for sale that interest shall not be 
 paid), and that on this being done the action shall be dismissed. 
 The defendant may also have a declaration, if he requires it f 
 that his deposit, interest (if auy), and costs are a lien on the 
 estate, with power to apply in chambers to give effect to such 
 lien. (Daniell's Ch. Pr.) 
 
 Q. In an action for specific performance the court decrees
 
 56 the student's guide to 
 
 specific performance, and directs the defendant to execute a 
 conveyance to be settled in chambers in case the parties differ. 
 Hoiu in practice is this done ? 
 
 A. If the parties cannot agree upon the deed, a summons 
 to proceed with its settlement in chambers is issued. Upon 
 the return of the summons the party entitled to prepare the 
 draft deed is directed to deliver a copy thereof, within such 
 time as the Judge shall think fit, to the party entitled to 
 object thereto, and the party so entitled to object is directed 
 to deliver to the other party a statement in writing of his 
 objections (if any) within eight days after the delivery of such 
 copy, and the proceedings are then adjourned until after the 
 expiration of such period of eight days. The deed is then 
 considered and settled by the Judge in Chambers. (Inder- 
 maur's Manual of Practice, 216.) 
 
 Ill— AN ELEMENTAEY SKETCH OF THE LAW 
 RELATING TO MORTGAGES.* 
 
 A mortgage in its widest sense, may be defined as a 
 security whereby the property in land or goods is passed by 
 one person to another conditionally. Mortgages of land are 
 ordinarily affected by means of a formal deed of mortgage, 
 and mortgages of chattels by means of some such like instru- 
 ment, which is designated a bill of sale. Mortgages of land — 
 including therein, of course, houses — are by far the most 
 important, both practically and in a legal sense, and the 
 main part of this sketch will be devoted, therefore, to their 
 consideration, mortgages of personal chattels, or bills of sale, 
 Jbeing shortly dealt with in conclusion. 
 
 Mortgages of land may either be by way of vivum vadium, 
 
 * This sketch is chiefly founded on Fisher on Mortgages, Stephen's Com- 
 mentaries, and Snell's Principles of Equity, to the authors and editors of 
 which works all due acknowledgment is here made.
 
 SPECIFIC PERFORMANCE AND MORTGAGES. 57 
 
 that is, a living pledge, or mortuum vadium, a dead pledge, 
 though the former is, at any rate at the present day, prac- 
 tically unknown. A vivum vadium is where the mortgagor 
 borrows a sum of money and grants his estate to the mort- 
 gagee to hold until the rents and profits shall repay the sum 
 so borrowed, and when this object is accomplished then the 
 estate in natural course results back to the borrower. On 
 the other hand, a mortuum vadium is where the mortgagor 
 borrows a sum of money and grants his estate to the mort- 
 gagee to hold absolutely, subject to this, that if the mortgagor 
 shall repay the money with interest on a given day, then the 
 mortgagee shall reconvey the estate to the mortgagor. This 
 is still the letter of an ordinary mortgage deed, and we must 
 here notice the different way in which all such mortgages 
 have always been looked upon at law and in equity. At law, 
 the day named was required to be strictly observed, and if 
 the money was not paid on that day, the mortgagor's rights 
 were at an end, and the mortgagee was the absolute owner. 
 The estate in fact was granted to the mortgagee absolutely, 
 subject to a certain condition, which condition was required to 
 be strictly observed, and if it was not, the mortgagor's right 
 was gone for ever. But equity always regarded the transac- 
 tion in a different light, viz., as purely and simply meant as 
 a security for money, and acting on the maxim, " Equity 
 regards the spirit and not the letter," the Court of Chancery 
 always allowed to the mortgagor a right to come and redeem 
 his property on payment of principal, interest, and costs, 
 which right is styled the mortgagor's equity of redemption. 
 The maxim just referred to is the very found ation of the 
 doctrine of equity on this subject, and this coupled with 
 another maxim, "Once a mortgage always a mortgage," 
 forms the foundation of the principles there observed relating 
 to mortgages. This latter maxim may be shortly stated to 
 mean, that when a transaction is clearly shown to be a mort- 
 gage, then a mortgage it must remain ; thus, a clause in the 
 mortgage deed, providing that if the money is not paid within
 
 58 the student's guide to 
 
 five years, the mortgagor shall have no further right of equity 
 of redemption, would be perfectly useless. Whilst law and 
 equity were distinct systems, we had, therefore, two distinct 
 rules applying ; but it must be remembered that now, under 
 the Judicature Act, 1873 (sec. 25), the equity rule is the pre- 
 vailing one in all divisions of the court, and that the common 
 law rule is only, as it were, a relic of what has been. 
 
 But for the principle to exist that a person who has con- 
 veyed property to another, subject to a condition for recon- 
 veyance to himself on payment on a certain day, need not 
 really strictly observe that day, it must be clearly made out 
 that the transaction is one by way of mortgage, a matter not 
 always perfectly plain. Sometimes there may really be a 
 transaction whereby A conveys property to B, say for £1,000, 
 reserving to himself a right to buy it back by a given date, 
 say, for £1,100. Now, here the question would arise, is this 
 a mortgage, or is it not an out and out sale, with a right of 
 re-purchase on a given day ? If the former, then the prin- 
 ciples we have referred to apply, but if the latter, then they 
 have no application, and the day named must be rigidly 
 adhered to, and there is no principle upon which the court 
 can allow to the conveying party an extension of his privilege 
 of re-purchase, beyond the day named. There being but 
 little difference in the form of such instruments, it is often 
 necessary to look to surrounding circumstances, to ascertain 
 the real nature of the transaction, and the following circum- 
 stances will be more or less cogent evidence to show that it 
 was reaJly intended as a mortgage, and not as an out and out 
 sale — viz. : (1) That the conveying party was allowed to 
 remain in possession, merely accounting for rents as an 
 equivalent to interest. (2) That though the party to whom 
 the property was conveyed was let into possession, he yet 
 accounted to the conveying party. (3) That the conveying 
 party paid the whole costs of the instrument. (4) That the 
 money paid was utterly inadequate to what would be the 
 purchase-money.
 
 SPECIFIC PERFORMANCE AND MORTGAGES. 59 
 
 The whole idea of the Court of Chancery in continually 
 allowing to the mortgagor the right of redemption, embraces 
 the doctrine of the objection of the court to penalties. The 
 court in fact has always regarded the naming of a day by 
 which if the money is not paid the estate is to be the mort- 
 gagee's absolutely, as a penalty. Though this was reasonable 
 enough in some respects, the idea has probably been carried 
 too far. Thus, it has been laid down that a provision in a 
 mortgage deed to the effect that if interest is not punctually 
 paid it shall be converted into principal, and added to the 
 mortgage debt, so as itself to carry interest, partakes of the 
 nature of a penalty, and cannot be enforced. This, however, 
 cannot now be considered to be the law, it having been held 
 in Clarkson v. Henderson (14 Ch. D., 348; 49 L. J., Ch., 
 289), that a provision in a mortgage deed for such capitalisa- 
 tion of interest to become in arrear, is not contrary to any 
 rule of equity, and will be given effect to. This is a deci- 
 sion which undoubtedly commends itself to one's common 
 sense. 
 
 Again, it has been held that a provision that if interest is 
 not punctually paid it shall be increased, cannot be enforced 
 as being really a provision in the nature of a penalty. Thus, 
 to reserve £5 per cent, interest, making it £6 per cent, if it is 
 not paid within fourteen days of becoming due, has been held 
 bad, and yet the same idea could satisfactorily be carried out 
 by reserving £6 per cent, reducible to £5 per cent, if paid 
 within fourteen days of becoming due. This seems really 
 very absurd, and it is submitted that a different decision 
 would now be come to, a view to a certain extent justified by 
 the recent case of General Credit and Discount Company v. 
 Glegg. (22 Ch. D., 549 ; 52 L. J., Ch., 297.) 
 
 A mortgage of freeholds is effected by an ordinary deed of 
 conveyance, reserving the right of redemption on a day 
 usually six months from the date of the instrument. It is 
 not in practice ordinarily contemplated that this day will be 
 observed, and the mortgage deed contains provisions for future
 
 60 THE STUDENT'S GUIDE TO 
 
 payment of interest. A mortgage of copyholds is effected by 
 a conditional surrender, the mortgagee not being admitted 
 unless he wishes to enforce his security. If a mortgage of 
 copyholds were effected by an ordinary surrender the mort- 
 gagee would be admitted, and then on payment off he would 
 have to surrender to the mortgagor, who would have to be 
 re-admitted. This would be inconvenient and expensive, for 
 there would be the fines to pay on each admittance. But 
 carrying it out in the way mentioned this expense is saved, 
 and the mortgagor remains, as is meant he should, the 
 practical and ostensible owner, whilst the mortgagee has all the 
 security he can require, for should events arise which render 
 it necessary, he has a right to be admitted on his conditional 
 surrender. A mortgage of leaseholds may be effected by 
 assignment or underlease, but the latter is the preferable 
 plan, because thereby the mortgagee is in no way connected 
 with the lessor of the property ; there is, in fact, no privity 
 of estate between them, and he is not liable in respect of the 
 rent and covenants reserved in the lease. Yet he has full 
 practical security, for his mortgage by way of underlease is 
 for the whole term less the last few days, and the mortgage 
 provides that should the mortgagee sell the property, the 
 mortgagor shall stand possessed of these last few days, as a 
 trustee for the purchaser. It was at one time thought that a 
 difficulty might here arise should the mortgagor become a 
 bankrupt, and his trustee disclaim the mortgaged property, 
 considering it as mortgaged up to its full value. The idea of 
 difficulty was that the estate would on disclaimer result to the 
 lessor, and that practically the mortgagee's estate would be 
 destroyed. It is, however, now decided that there is here no 
 such risk incurred, as the disclaimer only operates over the 
 mortgagor's interest in the property, and the mortgagee's 
 rights are not affected. (Smalley v. Hardinge, 7 Q.B.D., 524 ; 
 50 L.J., Q.B., 365 ; Ex parte Walton re Levy, 17 Ch. D., 746 ; 
 50 L.J., Ch. 657.) The Bankruptcy Act, 1833 (46 & 47 Vict., 
 c. 52, sec. 55), also contains a provision under which, on any
 
 SPECIFIC PERFORMANCE AND MORTGAGES, 61 
 
 such disclaimer, the mortgagee can obtain an order vesting 
 the whole estate of the mortgagor in him upon the terms of 
 his becoming subject to the same liabilities and obligations as 
 the bankrupt mortgagor was subject to, and if the mortgagee 
 will not agree to this he is to be excluded from all interest in 
 and security upon the property. It is, therefore, still advisable 
 to take a mortgage of leaseholds by way of underlease, at any 
 rate when there is any heavy rent, or there are any onerous 
 covenants, for the mortgagor thus escapes any direct liability 
 at first, although it is true that he may afterwards, for his 
 own protection, have to take such liability upon himself. A 
 mortgage of property, be it freehold, copyhold, or leasehold, 
 may, besides being affected in any of the foregoing direct ways 
 (which are called legal mortgages), be effected by way of 
 equitable mortgage, that is by a memorandum or charge on 
 the property, without any direct conveyance, or by a deposit 
 of the muniments of title, either simply, or accompanied by a 
 memorandum. That a mere deposit of deeds should create a 
 charge on land, may at first sight appear strange, bearing in 
 mind the 4th section of the Statute of Frauds, (29 Car. 2, c. 3), 
 but the point was decided long ago in the well-known case of 
 Eussel v. Russel, (Indermaur's Conveyancing and Equity 
 Cases, 5th edition, 92), and the theory is this, that it does so as 
 a matter of necessity, for if the depositor sued at law to 
 recover back his muniments, the lien of the depositee 
 thereon would be an answer, and if he sued in equity for 
 their specific delivery up he would be met with the maxim, 
 " He who seeks equity must do equity," and it certainly would 
 not be equity to order their restoration to him without pay- 
 ment of the money. He, therefore, could in no way so get 
 them. 
 
 One peculiar and out-of-the-way mortgage may also be 
 noticed, viz., what is known as a Welsh mortgage, which is a 
 transaction whereby the estate is conveyed to the mortgagee, 
 who is to go into possession and take the rents and profits as 
 an equivalent for his interest, the principal remaining undi-
 
 62 the student's guide to 
 
 minished. In such a transaction there is no contract, express 
 or implied, between the parties for the repayment of the debt 
 at a given time, and though the mortgagee has no remedy to 
 enforce payment of his money, yet the mortgagor or his heirs 
 may redeem at any time. 
 
 We have shortly referred to the form of a mortgage, and 
 must now mention the provisions of the Conveyancing Act, 
 1881 (44 & 45 Vict., c. 41). Firstly, as to covenants for title. 
 Every mortgagor is naturally required by his mortgagee to 
 give the ordinary covenants for title, which must be absolute 
 in their nature, extending to protect him against the acts of 
 the whole world, but by sec. 7 of the Conveyancing Act, 1881, 
 there is no need to specify them, for if the mortgagor is ex- 
 pressed to convey as beneficial owner they are implied. 
 Secondly, as to the mortgagee's powers and remedies, certain 
 of them are now, in mortgages ? made since that Act, implied by 
 force of section 18, viz.: (a) A power of granting leases; 
 (b) A power of sale ; (c) A power to appoint a receiver ; (d) A 
 power to insure ; (e) A power to cut timber in certain cases. 
 These powers are hereafter further referred to. Thirdly, if a 
 mortgage is expressed to be by way of statutory mortgage it 
 may be in a certain specially short form prescribed by the 
 Act, and in any such deed there are deemed to be included 
 and implied covenants for repayment of principal, and pay- 
 ment of interest half-yearly, and proviso for redemption (Sec. 
 26, and Part I. of Schedule 3 to the Act). Provisions are 
 also made for special short statutory forms of transfer and 
 re-conveyance. (Sec. 27 & 29, and Part III. of Schedule 3 to 
 the Act.) 
 
 Bearing in mind that the mortgagor of property remains 
 the real and substantial owner of the property, subject only 
 to the mortgagee's right, we will now consider more par- 
 ticularly the position, rights, and powers of the mortgagor 
 after executing a mortgage, first observing that in strict legal 
 construction he becomes a tenant at sufferance to the mort- 
 gagee, in whom is now vested the legal estate. Here we find
 
 SPECIFIC PERFORMANCE AND MORTGAGES. 63 
 
 that bis position has been greatly ameliorated and improved 
 by modern legislation, for originally the law would scarcely 
 recognise his position as being any longer that of owner of his 
 property. The law in fact simply considered that, whilst 
 allowed by the mortgagee to remain on the premises, he might 
 take any crops or profits of the land without accounting to 
 the mortgagee, but this was about all. The Judicature Act, 
 1873 (36 & 37 Vict., c. 66, sec. 25 &26), ameliorated the harsh 
 rule of the common law by providing that a mortgagor 
 entitled for the time being to the possession or receipt of the 
 rents and profits of any land, as to which no notice of inten- 
 tion to enter has been given by the mortgagee, may sue for 
 the possession of such premises, or for the recovery of such 
 rents and profits, or to prevent or recover damages in respect 
 of any trespass or other wrong relative thereto, in his own 
 name only. 
 
 The mortgagor also, at common law, having parted with 
 the legal estate, could not make any valid lease of the mort- 
 gaged property, and any lessee claiming under a lease made 
 by an owner, after he had mortgaged his estate, was liable to 
 be ejected. (Keech v. Hall, Indermaur's Common Law Cases, 
 6th edition, 47). Any lease had in fact to be made by the 
 mortgagor and mortgagee together, the rent being reserved to 
 the mortgagee until redemption, and then to the mortgagor. 
 The Conveyancing Act, 1881 (sec. 18), has now improved the 
 mortgagor's position in this respect, for under that provision, 
 in the case of mortgages made since the Act, whilst the mort- 
 gagor remains in possession he has power to make leases as 
 follows, viz. : An agricultural or occupation lease for not ex- 
 ceeding 21 years, and a building lease for not exceeding 99 
 years, such leases to take effect within a year, to be at the 
 best rent, without fine, and to contain usual covenants, and a 
 condition for re-entry on non-payment of rent for not exceed- 
 ing 30 days. The mortgagor must also within one month of 
 making such a lease deliver to the mortgagee, or where more 
 than one, then to the mortgagee first in priority, a counterpart
 
 64 the student's guide to 
 
 of the lease duly executed by the lessee, although the lessee 
 is not to be concerned to see that this provision is complied 
 with. 
 
 We have stated that the mortgagor has in equity a continual 
 right of equity of redemption, but this right is limited (1) by 
 the mortgagee's right of foreclosure, and (2) by the Statute of 
 Limitations. The subject of foreclosure is dealt with later in 
 considering the mortgagee's rights. The second restriction of 
 the mortgagor's right is contained in the Keal Property Limi- 
 tations Act, 1874 (37 & 38 Vict., c. 57, sec. 7), which provides 
 that where the mortgagee enters into possession and holds 
 for a period of 12 years without giving any written acknow- 
 ledgment of the mortgagor's rights, his title is absolute, and 
 the mortgagor is barred from any further right of equity of 
 redemption, and it has been decided that in this case there 
 is no further extension of time in the case of disability, but 
 that the mortgagor's right is absolutely lost after the one 
 period of 12 years. (Forster v. Patterson, 17 Ch. D., 132.) 
 The mode of the mortgagor exercising his right of equity of 
 redemption is to tender to the mortgagee his principal, inte- 
 rest, and costs, and if not accepted, then he may commence 
 an action in the Chancery Division for redemption. In 
 such an action an account is taken of what is due to the 
 mortgagee for principal, interest, and costs, and, on payment 
 of this, the mortgagee must reconvey to the mortgagor. It is 
 a common expression, " You foreclose down, and redeem up," 
 by which is meant that a mortgagee can only foreclose or 
 shut out those interested in the property subsequent to him, 
 whilst a mortgagor must redeem all mortgages, and any mort- 
 gagee must redeem any prior mortgages to give him the full 
 rights of a first mortgagee over the property. 
 
 There is, in every mortgage, a day named for payment 
 by the mortgagor, and if he does not observe this day, then 
 he is not entitled at any moment to come forward and 
 pay the money with interest to date, but he must give six 
 months' notice of his intention to repay, or in lieu thereof
 
 SPECIFIC PERFORMANCE AND MORTGAGES. 65 
 
 pay six months' interest. This is so that the mortgagee may 
 have proper opportunity of seeking another security for his 
 money. If the mortgagee is dead, and the property is free- 
 hold, formerly it was not always perfectly easy to determine 
 who should reconvey to the mortgagor. In the absence of 
 any devise of the mortgaged property, the rule was that 
 whilst the mortgagor must pay his money to the personal 
 representatives of the mortgagee, the heir of the mort- 
 gagee was the person to reconvey, but if there was any 
 devise of the mortgaged property, then the devisee was the 
 only person concerned. Difficulties often arose as to whether 
 there had been a devise of the mortgaged property, for it was 
 held that under a general devise mortgaged property 
 would pass, unless a contrary intention was shewn (Lord 
 Braybrooke v. Inskip, Indermaur's Conveyancing and Equity 
 Cases, oth edition, 40) ; but it was by no means easy 
 to determine whether there was a contrary intention or not, 
 for instance, supposing the property comprised in the general 
 devise was charged with payment of debts, or was subject to a 
 series of complicated limitations, here there was usually held 
 to be sufficient contrary intention. The Vendors' and Pur- 
 chasers' Act, 1874 (37 & 38 Vict., c. 78, sec. 4), however, pro- 
 vided that in all cases the legal personal representative of the 
 mortgagee might reconvey, but it was strangely enough held 
 that this enactment, though applying to a reconveyance to 
 the mortgagor, did not operate to enable the personal repre- 
 sentative to transfer. (Ee Spradbery's Mortgage, 14 Ch. D., 
 514 ; 49 L.J., Ch. 623). Now, however, the Conveyancing 
 Act, 1881 (sec. 30), meets all cases by enacting that the 
 mortgaged property shall, on death of the mortgagee, always 
 go to the personal representatives, notwithstanding any testa- 
 mentary disposition, and they shall have all powers both of 
 reconveyance and transfer, and they are deemed, for the pur- 
 poses of this enactment, the heirs and assigns of the deceased. 
 But though a mortgagor was always entitled to reconvey- 
 ance of the property, or to have it transferred to his nominee,
 
 66 the student's guide to 
 
 he was not formerly entitled to call upon the mortgagee to 
 assign the mortgage debt itself, the reason for which was that 
 the debt was a chose in action, and only assignable at law by 
 means of a power of attorney to the assignee to sue in the 
 mortgagee's name, and it was not reasonable that a mort- 
 gagee should bave cast upon him the risk of liability for costs 
 in any action brought for the debt in his name. But when 
 the Judicature Act, 1873 (sec. 25 (6)), made choses in action 
 assignable, this reasoning no longer held good, and by the 
 Conveyancing Act, 1881 (sec. 15), as amended by the Con- 
 veyancing Act, 1882 (sec. 12), it is provided that in the case 
 of all mortgages, the mortgagee shall on payment, be bound, 
 if required, not only to reconvey or transfer, but also to assign 
 the mortgage debt, but a requisition for its assignment by an 
 incumbrancer prevails over the requisition of the mortgagor, 
 and, as between incumbrancers, a requisition of a prior 
 incumbrancer prevails over a requisition of a subsequent 
 incumbrancer. 
 
 Passing on now to the general position and particular 
 rights and powers of the mortgagee, we have already seen that 
 he holds the estate but as a security for his money, that being 
 the real nature of the transaction. But the property may 
 become his absolutely, as already noticed, either by force of 
 the Statute of Limitations, or by foreclosure. The mortgagee 
 at first is not let into possession of the property, there is no 
 need that he should be, for if the money is paid when required 
 that is all he can want, but assuming it is not, then we 
 have to consider his remedies, and there are several, a]l of 
 which he may if he pleases exercise concurrently. These 
 remedies are chiefly as follows; — (1) To sue for his money. 
 (2) To enter into possession and eject the mortgagee, and 
 then also he has certain other incidental powers. (3) To sell 
 either under express powers conferred by the mortgage deed, 
 or given by statute. (4) To foreclose. 
 
 Any action by the mortgagee for his money must now be 
 brought within 12 years, under the provisions of the Real
 
 SPECIFIC PERFORMANCE AND MORTGAGES. 67 
 
 Property Limitations Act, 1874 (37 & 38 Vict., c. 57, sec. 7) ; 
 (Sutton v. Sutton, 22 Ch. D., 511; 52 L. J., Ch., 333;) and 
 this even though apart from the mortgage, there is a collateral 
 bond by the mortgagor (Fearnsicle v. Flint, 22 Ch. D., 579 ; 
 52 L. J., Ch., 479); but if there is a collateral bond by a third 
 person, then as against such third person an action on the 
 covenant may be brought within 20 years. {Re Powers, 
 Lindsell v. Phillips, 30 Ch. D., 291.) The period of 12 
 years dates from the deed, or from the last acknowledgment 
 or payment of interest, or part payment of principal. 
 
 As soon as the mortgage is created, the mortgagee, in the 
 absence of any stipulation to the contrary, might immediately 
 enter on the lands, but would be bound to restore them upon 
 performance of the condition by payment of the money on 
 the day named in the deed, and, therefore, it is usual to 
 insert a provision that the mortgagor shall hold the land till 
 the day named for payment. Practically, therefore, a mort- 
 gagor cannot enter until default is made, nor is it ever meant 
 that he should, but after default then he can do so if he 
 thinks fit, and if the mortgagor will not go quietly, he may 
 be turned out by means of an action of ejectment. Subject 
 to the provision of the Conveyancing Act 1881 (already 
 referred to), enabling a mortgagor now to make valid leases, 
 this power of ejectment applies not only to the mortgagor, 
 but to his tenants claiming since the mortgage (Keech 
 v. Hall, Indermaur's Common Law Cases, 6th edition, 47, 
 but with regard to tenants claiming under leases made 
 prior to the mortgage, all the mortgagee can do is to give 
 them notice to pay their rents to him (Moss v. Gallimore, 
 Indermaur's Common Law Cases, 6th edition, 47), and this 
 would now apply to tenants since the mortgage holding under 
 leases made by force of the Conveyancing Act, 1881. Once 
 in possession, the mortgagee may take the rents and profits, 
 but must always be prepared to account for them, and he is 
 liable indeed, not only for everything that he actually 
 receives, but also for everything that he might but for his 
 
 F 2
 
 68 the student's guide to 
 
 default have received. The usual position of a mortgagee in 
 possession is that he receives the rents and applies them in 
 payment of costs and interest, and accumulates any surplus 
 until he has collected enough to pay himself oft" in one lump 
 sum ; but where no interest was in arrear when he entered 
 into possession, and there was no other special reason for his 
 going into possession— e.g., in the case of a mortgage of lease- 
 holds to prevent forfeiture for breach of covenant— annual 
 rests will be made, that is, a yearly balance will be struck, 
 and any surplus after payment of costs and interest 
 will from time to time be applied in reduction of his 
 principal, which will produce a corresponding abatement of 
 interest ; in other words, here he will, contrary to the general 
 rule, be compelled to take payment of his principal by 
 driblets. A mortgagee in possession is entitled to add to his 
 mortgage debt any proper costs incurred, any money he may 
 properly expend in maintaining his title, any sums paid for 
 renewing renewable leaseholds, and any money expended in 
 necessary repairs. But he may not add to his principal, 
 money expended in improvements, for he has no right to 
 make the estate more expensive and difficult for the mort- 
 gagor to redeem than is necessary. However, it has recently 
 been decided that if a mortgagor comes to redeem, the mort- 
 gagee is entitled to an inquiry as to what money has been 
 spent by him in permanent improvements, and in so far as 
 the estate is really benefitted, the mortgagor is not entitled to 
 redeem without payment of this also. (Shepard v. Jones, 21 
 Ch. D., 469.) This is upon the principle that the mortgagor 
 is seeking the equity of the court, and he who seeks equity 
 must himself do equity. A mortgagee in possession may 
 make leases similar to those already noticed as being capable 
 of being made by a mortgagor in possession under the pro- 
 visions of the Conveyancing Act, 1881. Formerly he could, 
 in the absence of express power, make no satisfactory leases, 
 for the tenancies would end as regards the mortgagor on 
 redemption by him. By the Conveyancing Act, 1881, also, it
 
 SPECIFIC PERFORMANCE AND MORTGAGES. 69 
 
 is provided (sec. 19) that a mortgagee in possession may cut 
 and sell timber ripe and fit for cutting, and not planted for 
 shelter or ornament ; any such sale to be completed within 
 12 months from making of any contract of sale. Before this 
 enactment a mortgagee could only fell timber when his security 
 was insufficient. 
 
 It is not now usual to insert in mortgages an express 
 power of sale, ample power being conferred by the Convey- 
 ancing Act, 1881, that statute enacting (sees. 19 — 22), that in 
 the case of mortgages made since the Act the mortgagee shall, 
 when the principal money becomes due, have a power of sale 
 in the ordinary way, but such power is not to be exercised 
 until default in payment after three months' notice to the 
 mortgagor, or unless interest is in arrear for two months, or 
 unless there is a breach of some other provision in the mort- 
 gage deed. Money received from any such sale is applied in 
 discharging prior incumbrances, then all costs of sale, then 
 the particular mortgage debt, and lastly any balance is paid 
 to the mortgagor. With regard to any balance on a sale the 
 mortgagee is a constructive trustee for the mortgagor. Any 
 action by the mortgagor for such balance must be brought 
 within six years. (Knox v. Gye, L. E., 5 H. L., 656.) 
 
 Foreclosure consists of an action by the mortgagee against 
 the mortgagor, and any subsequent mortgagees, for the pur- 
 pose of shutting them out from any further right of equity of 
 redemption. It is brought in the Chancery Division, and in 
 it an account is taken by the court of what is due to the 
 mortgagee for principal, interest, and costs, and a day is 
 named, usually six months from the date of the chief clerk's 
 certificate, for payment. If not paid, then the mortgagor and 
 other persons interested in the equity of redemption, are shut 
 out, and the mortgagee is at last the absolute owner. This 
 is not a course usually adopted, as sale is in most cases prefer- 
 able ; but there may be cases in which it is an advisable remedy 
 e.g., where the mortgagee has a scanty security, but thinks he 
 may, as absolute owner, work it out advantageously, e.g., by
 
 70 THE STUDENT'S GUIDE TO 
 
 building on the land, a thing he could not safely do in his 
 capacity of mortgagee. In the one case also of an equitable 
 mortgage by deposit of deeds, foreclosure is indeed the proper 
 and only remedy against the land (James v. James, L. E. 16 
 Eq., 153), but if the deposit is accompanied by a memorandum 
 of agreement to execute a legal mortgage, then the mortgagee's 
 action may, at his option, be either for foreclosure or sale. 
 (York Union Bank v. Artley, 11 Ch. D., 205.) It may here 
 be noticed that in any foreclosure or redemption suit, the 
 court has, under the Conveyancing Act, 1881, (sec. 25), full 
 power to direct a sale on such terms as it thinks fit, including, 
 if it thinks fit, the deposit in court of a reasonable sum to meet 
 the expenses of sale, and to secure the performance of the 
 terms. (See Oldham v. Stringer, 33 W.R., 251 ; 51 L.T., 895). 
 Other incidental powers of a mortgagee are, to appoint a 
 receiver, and to insure, both of which are conferred by the 
 Conveyancing Act, 1881 (sees. 19, 23, 2-1). The mortgagee's 
 power of appointing a receiver arises as soon as the principal 
 money is due, and he is entitled to exercise his power of sale. 
 Such receiver is considered the agent of the mortgagor, but 
 has to deal with the money he receives thus : — («) In dis- 
 charging rents, rates, outgoings, &c. (6) In keeping down all 
 annual or other payments, and the interest on any principal 
 sums having priority, (c) In payment of his commission, 
 and of any premiums on proper policies of insurance, and of 
 any sums for necessary or proper repairs directed in writing 
 by the mortgagee, (d) In payment of interest accruing in 
 respect of the principal money due under the mortgage ; and, 
 (e) The residue he pays to the person who, but for his posses- 
 sion, would be entitled to receive the income of the mortgaged 
 property- The mortgagee's power of insurance against fire 
 arises at any time after the date of the mortgage deed, and 
 the insurance must not exceed the amount specified in the 
 mortgage deed, or if no amount specified, then two-thirds of 
 the amount that would be required, in case of total destruction, 
 to restore the property. All moneys received under the in-
 
 SPECIFIC PERFORMANCE AND MORTGAGES. 71 
 
 surance are, in the option of the mortgagee, applied in rebuild- 
 ing, or in or towards discharge of the mortgage debt. This 
 power of insuring does not exist when there is a declaration 
 in the mortgage that no insurance is required, or when the 
 mortgagor keeps up an insurance in accordance with the 
 mortgage deed, or when the mortgage deed contains no 
 covenant as to insurance, and the mortgagor insures to the 
 amount which the mortgagee is authorized to insure for. 
 
 It has already been stated that a mortgagee may exercise 
 all his remedies concurrently so far as feasible, but it should 
 be observed that if he forecloses and then sues, the effect is to 
 re-open the foreclosure and to give the mortgagor a renewed 
 right to redeem. If, therefore, the mortgagee sells after fore- 
 closing, he cannot then sue for any deficiency. (Lockhart v. 
 Hardy, 9 Beav. 349.) This principle, however, does not 
 appear to apply to a mortgagee who sells under his power of 
 sale, who it seems can still sue for any deficiency. (Rudge v. 
 Rickens, L. R. 8 C. P., 358 ; Fisher on Mortgages, 4th edition, 
 959, 960.) 
 
 We now propose to shortly refer to two doctrines that may 
 arise in connection with mortgages, viz., Tacking, and Con- 
 solidation, doctrines which, though sometimes confused, are 
 yet wholly distinct. Tacking is the uniting of two incum- 
 brances with the view of squeezing out an intervening one, 
 prior in point of time to the security tacked — thus A, B, and 
 C are first, second, and third mortgagees respectively, but C 
 when he advanced his money thought he was second mort- 
 gagee, here if he can buy in A's mortgage and so clothe 
 himself with the legal estate, he will be able to get payment 
 of both mortgages before B. This doctrine is founded upon 
 the equitable maxim that where the equities are equal the 
 law shall prevail ; in point of equity and conscience C has 
 as good a right as B, and now, getting in the legal estate, he 
 is allowed to oust B. The essence, therefore, of the doctrine 
 is the existence of a legal estate; if all parties have but 
 equitable interests, then the doctrine cannot apply, and they
 
 72 the student's guide to 
 
 must be relegated to the order of their existence, for the rule 
 then is Qui prior est tempore potior est jure. (Marsh v. Lee, 
 Indermaur's Conveyancing and Equity Cases, 5th edition, 83.) 
 
 Another great feature that must be found to enable a person 
 to tack is the absence of notice, either actual or constructive, at 
 the time he advanced his money, of the security he is seeking 
 now to squeeze out. Middlesex and Yorkshire are counties 
 in which registration of all dealings with land is provided 
 for, and the question arose long ago whether registration of a 
 mortgage in itself constituted notice, a question which was 
 decided in the negative, but it has also been held that where 
 there are several charges they take effect according to priority 
 of registration, and cannot be tacked. (Credland v. Potter, 
 10 Ch., App. 8.) And with regard to Yorkshire, it 
 has been specially provided by the Yorkshire Registries' 
 Act, 1884 (47 & 48 Vict. c. 54, sec. 16), that no protec- 
 tion or priority by means of the legal estate or tacking 
 shall, as from the 1st January, 1885, be permitted as re- 
 gards lands in Yorkshire except against an estate or interest 
 existing prior to that date. 
 
 The justice of the doctrine of tacking is undoubtedly open 
 to question, and the recent legislative provisions as to it 
 show the wavering in lawyers' minds with regard to it. By 
 the Vendors' and Purchasers' Act, 1874 (sec. 7), the doctrine 
 of tacking was abolished as regards estates and interests 
 created on or since 7th August, 1874, but by the Land 
 Transfer Act, 1875 (38 & 39 Vict. c. 87, sec. 129), this pro- 
 vision was repealed except as to anything done before the 
 commencement of the Act (1st January, 1876). Therefore, 
 between 7th August, 1874, and 31st December, 1875, both in- 
 clusive, tacking was non-existent. 
 
 Tacking in a certain sense may be provided for by a 
 mortgage. Thus, a mortgage may be for £1,000, with power 
 to the mortgagee to make further advances up to £2,000, and 
 add them to his security. It has been decided that if such 
 a mortgagee makes further advances with notice of a mesne
 
 SPECIFIC PERFORMANCE AND MORTGAGES. 73 
 
 incumbrance, he will not be entitled to priority in respect of 
 such further advances. (Rolt v. Hopkinson, 9 H. L. C, 
 514.) 
 
 Tacking, as, has been shown, depends on the possession, 
 or, at any rate, the best right to call for, the legal estate ; 
 but consolidation of mortgages rests on principles wholly 
 different. Consolidation may be denned as the right of a 
 mortgagee having two or more securities from the same 
 mortgagor, to refuse to allow the mortgagor to redeem 
 one of them without redeeming the other or others, — a 
 doctrine very harmless in its early stages. Thus, if A 
 mortgages to B, Whifceacre, and then Blackacre, to avoid 
 multiplicity of actions, B may refuse to allow Whiteacre to 
 be redeemed by itself. Again, he who seeks equity must 
 do equity ; and B may have advanced on Blackacre, knowing 
 it to be an insufficient security, but knowing also that White- 
 acre was very ample, and thinking that the deficiency on the 
 one would be made up by the surplus on the other; and it 
 would be inequitable to allow the mortgagor to come and 
 redeem the ample security alone. It was he^d that the rule 
 was the same also, where, though the mortgages were 
 originally to different persons, yet they ultimately became 
 vested in one (Vint v. Padget, Indermaur's Conveyancing and 
 Equity Cases, 5th edition, 85). In late years, however, the 
 doctrine of consolidation has been considerably and reason- 
 ably modified, it having been decided that for consolidation 
 to exist, both or all of the mortgaged properties must have 
 not only been created, but have become vested in the same 
 mortgagee before any dealing with the equity of redemption 
 in one of them. (Jennings v. Jordan, L.R., 6 Appeal Cases, 
 698 ; 51 L. J., Ch. 129 ; Harter v. Colman, 19 Ch. Div., 630 ; 
 51 L. J. Ch., 481). Thus, if A mortgages Whiteacre to B., 
 and Blackacre to C, and then sells the equity of redemption 
 of Whiteacre to D, and then B buys up C's mortgage, B v;ill 
 not be allowed to consolidate to the prejudice of D. It has 
 also been held that consolidation is not to be allowed unless
 
 74 the student's guide to 
 
 there is default by the mortgagor on both mortgages. (Cum- 
 mins v. Fletcher, 14 Ch. T)., 69 ; 49 L. J., Ch. App., 563.) In 
 addition to these modifying decisions the doctrine in question 
 has been considerably affected by the Conveyapcing Act, 1881 
 (sec. 17), which provides that with regard to cases in which 
 the mortgages, or one of them, are or is made on or after 1st 
 January, 1882, and so far as no contrary intention is 
 expressed, a mortgagor seeking to redeem shall be entitled to 
 do so without paying over money due under any separate 
 mortgage made by him, or by any person through whom he 
 claims, on property other than that comprised in the 
 mortgage which he seeks to redeem. 
 
 Mortgages of chattels, commonly known as Bills of Sale, 
 are now governed by the Bills of Sale Act, 1882 (45 & 46 Vict., 
 c. 43), which applies to all bills of sale given by way of 
 security for money, and which Act came into operation on 1st 
 November, 1882. Under this Act every bill of sale by way of 
 security for money, must be in a certain prescribed form, and 
 must not be for less than £30. Such instruments must be 
 attested by som$ credible witness and must be registered in the 
 Central Office of the High Court of Justice within seven days. 
 If these necessities are not complied with then the bill of sale 
 is absolutely void, and it is therefore most important to 
 strictly observe them. Particular attention must be paid to 
 the form of the bill of sale so as to see that it really is sub- 
 stantially in accordance with that given in the Act. (Davis 
 v. Burton, 11 Q. B. D., 537; 52 L. J., Q. B., 636; Re 
 Townsend, Law Student's Journal, March, 1886; Ex 'parte 
 Stanford, Re Barber, lb. ; Myers v. Elliott, lb.) In framing 
 a bill of sale it is not open to the parties to prescribe any 
 number of events on which seizure under the security may 
 be made, as the Act (section 7) prescribes the only events on 
 which seizure can be made. It has been held that though a 
 bill of sale was given before the Act of 1882, yet if the 
 mortgagee is seizing after the Act, he can only seize on the 
 events prescribed by the Act. {Ex pa.He Cotton, 11 Q. B. D.,
 
 SPECIFIC PERFORMANCE AND MORTGAGES. 75 
 
 301 ; 32 W. R., 58.) Where the mortgagee seizes be is not 
 at liberty to at once sell, but must wait in possession five days, 
 during which time the mortgagor may apply to the court for 
 the mortgagee to be ordered to withdraw, on showing that 
 the cause of seizure no longer exists. 
 
 Somewhat allied to the subject of mortgages of chattels, is 
 that of pledges, and also that of liens on goods. A mere 
 right of lien on goods, however, generally speaking, gives but 
 a right to retain property, and no active right in respect of it ; 
 but a mortgage passes the actual property in the goods to the 
 mortgagee, whilst a pledge simply gives a special ov qualified 
 property, and a limited right of possession. The proper 
 remedy of a pledgee of goods to recover his money is, on 
 reasonable notice, to sell the subject of the pledge, or to sue, 
 or if necessary he may adopt both remedies. As to one par- 
 ticular kind of pledgees, viz., pawnbrokers, their position and 
 rights are mainly governed by the Pawnbrokers' Act, 1872 (35 
 & 36 Vict., c. 93). Any further reference to pledges and 
 liens is outside the scope of this sketch, the idea of which 
 is simply to put before the student, in a concise shape, a 
 general elementary view of the subject of mortgages. 
 
 IV.— QUESTIONS AND ANSWERS ON MORTGAGES. 
 Q. Sketch an ordinary mortgage of freeholds f 
 A. This indenture, made the day of , 1886, 
 
 between A. B , of &c. (mortgagor), of the one part, and C. D., 
 of &c. (mortgagee), of the other part, Witnesseth that in con- 
 sideration of the sum of £ , paid to the said A. B. by the 
 said C. D. on or before the execution of these presents (the 
 receipt whereof the said A. B. hereby acknowledges) the said 
 A. B. hereby covenants with the said C. D. to pay to him on 
 the day of next the sum of £ , with interest 
 
 thereon in the meantime after the rate of £ per cent, per 
 annum, computed from the date of these presents, and also 
 so long after that day as any principal money remains due
 
 76 the student's guide to 
 
 under these presents to pay to him interest thereon after the 
 same rate by equal half-yearly payments on the day of 
 
 and the day of And this inden- 
 
 ture also witnesseth that for the consideration aforesaid the 
 said A. B., as beneficial owner, hereby conveys unto the said 
 C. D. All that (here describe property) To hold the same unto 
 and to the use of the said C. D. in fee simple. Provided 
 always that if the said sum of & , with interest thereon, shall 
 be paid on the day of next, according to the 
 
 foregoing covenant in that behalf the said premises shall, at 
 the request and cost of the said A. B., his heirs or assigns, be 
 reconveyed to him or them. In witness, &c. 
 
 Q. Sketch in outline an ordinary form of mortgage of 
 leaseholds ? 
 
 A. This in substance will be the same as the ordinary 
 mortgage of freehold just set out. It is usual, however, to 
 recite the lease, and demise or assign by reference to that in 
 the parcels. The mortgage may be in form either by 
 assignment or underlease, but the latter is the preferable plan } 
 and if this is so, then as to the residue of the term a clause 
 is inserted declaring that after any sale the mortgagor shall 
 stand possessed thereof in trust for the purchaser. (See Form 
 No. IX in Precedents of Mortgages, Vol. I of Prideaux's 
 Conveyancing.) 
 
 Q. Sketch a form of statutory mortgage in fee as given in the 
 3rd Schedule of the Conveyancing Act, 1881, and state what is 
 by virtue of Section 26 of that Act implied in such a mortgage ? 
 
 A. This indenture made by way of statutory mortgage 
 the day of 1886, Between A. B. of &c. (mortgagor), 
 
 of the one part, and C D., of, &c. (mortgagee) of the other 
 part Witnesseth that in consideration of the sum of £ 
 now paid to the said A. B., by the said C. D., (of which sum 
 the said A. B. hereby acknowledges the receipt) the said A. B 
 as mortgagor and as beneficial owner hereby conveys to the 
 said CD. All that (here describe property) To hold to and to 
 the use of the said C. D., in fee simple for securing payment
 
 SPECIFIC PERFORMANCE AND MORTGAGES. 77 
 
 on the day of of the principal sum of £ as 
 
 the mortgage money with interest thereon at the rate of 
 
 per centum per annum. In witness, &c. 
 
 Under Sec. 26 of the Conveyancing Act 1881, there is in such 
 a statutory mortgage implied a covenant by the mortgagor to 
 pay the mortgage money on the day named in the deed with 
 interest thereon at the stated rate, and if not then paid, to pay 
 interest at such rate half-yearly, the first payment to be at 
 the end of six calendar months for the day stated for 
 payment of the mortgage money. There is also implied a 
 proviso for redemption on payment. 
 
 Q. Sketch a form of cm ordinary mortgage of coyyholds ? 
 
 A. This indenture made the day of 1886, 
 
 between A. B., of &c. (mortgagor), of the one part, and C. D., 
 of &c. (mortgagee), of the other part, Witnesseth that in con- 
 sideration of the sum of £ , paid to the said A. B. by the 
 said C. D., on or before the execution of these presents, (the 
 receipt whereof the said A. B. hereby acknowledges) the 
 said A. B. hereby covenants (covenant for payment for 
 principal and interest as in mortgage of freeholds, ante, 
 p. 75). And this Indenture also witnesseth that for 
 the consideration aforesaid, the said A. B. as beneficial 
 owner, hereby covenants with the said C. D. that he 
 the said A. B. will forthwith at his own cost surrender or 
 cause to be surrendered into the hands of the lord of the 
 manor of according to the custom of the said manor 
 All that (here describe property) to the use of the said C D. 
 in customary fee simple, according to the custom of the said 
 manor, by and under the rents suits and services therefor 
 due and of right accustomed subject nevertheless to a con- 
 dition for making void the said surrender if the said sum of 
 £ with interest thereon shall be paid according to the 
 foregoing covenants in that behalf In witness, &c. 
 
 Q. Sketch a form of Bill of Sale for securing money under 
 the Bills of Exchange Act, 1882. Is it necessary to strictly 
 adhere to this form f
 
 78 the student's guide to 
 
 A. This indenture made the day of , 1886, 
 
 between A. B., of, &c. (mortgagor), of the one part, and CD., 
 of, &c. (mortgagee) of the other part Witnesseth that in 
 consideration of the sum of £ , now paid to A. B. by C. D., 
 the receipt of which the said A. B. hereby acknowledges he 
 the said A. B. doth hereby assign unto C. D. his executors 
 administrators and assigns All and singular the several 
 chattels and things specifically described in the schedule 
 hereto annexed by way of security for the payment of the 
 sum of £ and interest thereon at the rate of per 
 
 cent, per annum And the said A. B. doth further agree and 
 declare that he will duly pay to the said C. D. the principal 
 sum aforesaid, together with the interest then due by equal 
 
 payments of £ on the day 
 
 (or as may be arranged) And the said A. B. doth also agree 
 with the said C. D. that he will [here insert terms as to 
 insurance, payment of rent, or otherwise, which the parties 
 may agree to for the maintenance or defeasance of the 
 security]. Provided always that the chattels hereby assigned 
 shall not be liable to seizure or to be taken possession of by 
 the said C. D. for any cause other than those specified in 
 section 7 of the Bills of Sale Act (1878) Amendment Act 
 (1882) In witness, &c. 
 
 It is necessary to strictly adhere to this form, and any 
 substantial departure therefrom will invalidate the security. 
 (See ante, p. 74, and cases there quoted.) 
 
 Q. State shortly the ordinary mode of framing a legal 
 mortgage of freehold property. Hoiv are mortgages of lease- 
 holds, and personal chattels usually effected. 
 
 A. The ordinary mode is by deed by which, in consideration 
 of money advanced, the mortgagor conveys his estate to the 
 mortgagee, subject to a proviso for redemption on a day 
 usually six months hence. The deed contains covenants for 
 payment of principal and interest, and other general cove- 
 nants and powers according to arrangement, but most of the 
 powers may now be omitted by reason of the Conveyancing Act,
 
 SPECIFIC PERFORMANCE AND MORTGAGES. 79 
 
 1881 (sees. 18-21). The same Act (sec. 26) also provides for 
 a special short statutory mortgage which may be used if 
 desired. Leaseholds may be mortgaged by assignment or by 
 underlease, the latter being the preferable plan, because the 
 mortgagee does not under such an instrument incur any 
 liability in respect of rent or covenants. Personal chattels 
 are mortgaged by bill of sale under the Bills of Sale Act, 
 
 1882 (45 and 46 Vict., c. 43), and in the form there pre- 
 scribed. 
 
 Q. When is it proper to insert an attornment clause in a 
 mortgage deed? What is the object of such a clause? Is any 
 registration of a mortgage deed containing such a clause 
 required, and what is the effect of want of such registration ? 
 
 A. It has always been considered proper to insert this 
 clause when the mortgagor is himself in possession, the 
 design being that the mortgagee may distrain for his interest 
 as rent. We submit that it is now useless to insert the ordinary 
 attornment clause. The Bills of Sale Act of 1882 (45 and 46 
 Vict., c. 43) requires all bills of sale to be on a certain form 
 and registered, otherwise they are void. This is here imprac- 
 ticable, and therefore the attorment clause is useless, for any 
 distress underX it would be illegal (see Be Townsend ex 
 parte Parson's, Weekly Notes (1886) 9 ; L. S. J., March, 
 (1886.) It would appear, however, that the result might 
 be arrived at, at any rate as between mortgagor and mort- 
 gagee, by reciting in the deed that the mortgagee was in 
 possession, and then proceeding to lease to the mortgagor at 
 a rent equivalent to the interest. The mortgagor would be 
 estopped from denying this, and a lease by a mortgagee in 
 possession is expressly excepted from being a bill of sale by 
 the Bills of Sale Act, 1878. (41 & 42 Vict., c. 31, sec. 6 ; 
 Daubuz v. Lavington, 13 Q. B. D. 347; 53 L. J., Q. B., 
 283.) 
 
 Q. Distinguish a lien (strictly so called) from a mortgage 
 and a pledge, and distinguish these from one another. 
 
 A. A lien, generally speaking, gives but a right to retain
 
 80 THE STUDENT'S GUIDE TO 
 
 property and no active right in respect of it ; a mortgage 
 passes the actual property in the goods to the mortgagee ; but 
 a pledge simply gives a special or qualified property, and a 
 limited right of possession. (Indermaur's Principles of Com- 
 mon Law, 110). 
 
 Q. In ivhat different light was a mortgage regarded at law 
 and in equity respectively. Explain the bearing of the maxim 
 " Equity regards the spjirit and not the letter " on this subject. 
 
 A. At law a mortgage was considered as a conveyance on 
 condition that the estate should be reconveyed on payment on 
 a certain day, and if that day was not observed the mort- 
 gagor's interest was absolutely gone. In Equity, however, 
 on the principle of the maxim referred to in the question, the 
 mortgagor was always, after the day named, allowed his right 
 of Equity of redemption. Now, under the Judicature Act, 
 1873 (sec. 25), it is provided that where the rules of law and 
 equity clash, the rules of equity shall prevail. (Snell's 
 Principles of Equity, 294, 295). 
 
 Q. A conveys his property to B absolutely in consideration 
 of £5,000 and the deed contains a proviso that A shall have 
 the right on a certain day named to repurchase the property for 
 £5,500. A does not exercise this right by the day named but 
 a feiv months afterwards desires to do so but B refuses to 
 reconvey. Can A compjel him to do so f 
 
 A. This depends upon the point of whether on the true 
 construction of the deed it is a mortgage or an out and out 
 conveyance with a right of re-purchase. If the former, A still 
 has his right of Equity of redemption, but if the latter, he has 
 now no right, having allowed the day to go by. If the instru- 
 ment is so ambiguous that it is difficult to determine whether 
 it is a mortgage or an out and out sale with a right of re- 
 purchase, any of the following circumstances will lead to the 
 conclusion that it is the former, viz. : That the conveying 
 party remained in possession only accounting for a portion 
 of the rents equivalent to interest ; that though the party to 
 whom the property was conveyed was let into possession, yet
 
 SPECIFIC PEEFOKMANCE AND MOETGAGES. 81 
 
 he accounted to the conveying party for the rents ; that the 
 conveying party paid the whole costs of the instrument ; that 
 the price was utterly inadequate for an out and out sale. 
 (Snell's Principles of Equity, 296, 297). 
 
 Q. What are the requisites of, and ivhat is the effect of, an 
 equitable mortgage by deposit of deeds. 
 
 A. An equitable mortgage may be created by deposit of 
 title deeds with or without a memorandum, or by memorandum 
 without deposit. Its effect is to create a valid charge, but the 
 equitable mortgagee will lose his security as against a subse- 
 quent bond fide legal mortgagee without notice, for when the 
 equities are equal the law shall prevail. (Russel v. Russel and 
 Notes, Indermaur's Conveyancing and Equity Cases, 92.) 
 
 Q. In ivhat different ivays may an equitable mortgagee of 
 real estate be effected ? How does the Statute of Frauds affect 
 the question ? 
 
 A. By deposit of deeds with or without a memorandum, 
 or by a memorandum alone. A good equitable mortgage may 
 be created by deposit of deeds, notwithstanding the 4th sec. 
 of the Statute of Frauds, for the depositor cannot in any 
 way get back his deeds without payment of the money, for at 
 law the lien of the depositee would always have been a com- 
 plete answer, and equity would have always refused to order 
 delivery up without payment, upon the principle that " He 
 who seeks equity must do equity." (Russel v. Russel, Inder- 
 maur's Conveyancing and Equity Cases, 92.) 
 
 Q. State shortly the rights and remedies of an' equitable 
 mortgagee by deposit of title deeds ? 
 
 A. The equitable mortgagee has a charge on the land, but 
 is liable to lose it, as against a subsequent bona fide legal 
 mortgagee without notice. The proper remedy of an equitable 
 mortgagee by deposit is foreclosure (James v. James, L. R. 16 
 Equity, 153). And the court has a discretion to direct a sale 
 under sec. 25 of the Conveyancing Act, 1881 (Oldham v. 
 Stringer, 33 W. R. 251; 51 L.T., 895.) And if there is a 
 memorandum containing an agreement to execute a legal
 
 82 the student's guide to 
 
 mortgage, the mortgagee can come to the court for fore- 
 closure or sale at bis option (York Union Bank v. Artley, 
 11 Ch, D., 205 ; see notes to Eussel v. Eussel, Indermaur's 
 Conveyancing and Equity Cases, 92). 
 
 Q. In ivhat different ways may an equitable mortgage of 
 real estate be effected ? What are the rights and remedies of an 
 equitable mortgagee (1) against the mortgagor (2) against the 
 mortgaged property ? Under what circumstances, if any, will 
 a legal mortgage be postponed to an equitable mortgage by 
 deposit of title deeds ? 
 
 A. An equitable mortgage may be created by deposit oftbe 
 title deeds witb or without an accompanying memorandum, or 
 by a memorandum alone. (1) The equitable mortgagee may 
 sue for his mortgage money within 12 years (37 & 38 Vict. c. 
 57, sec. 8). (2) He may foreclose (James v. James, supra), 
 and if there is a memorandum containing an agreement to 
 execute a legal mortgage he may come to the court either for 
 foreclosure or sale (York Union Bank v. Artley, supra). 
 
 Q. A and B, being tenants in common, deposit the title 
 deeds of the estate with a bank, to secure what may from 
 time to time be due on B's banking account. B dies largely 
 indebted to the bank. What remedies has the bank (1) against 
 A ; (2) against the personal representatives of B ; (3) against 
 A's moiety ; (4) against B's moiety of the estate ? 
 
 A. (1) No remedy against A personally for he has not. in 
 writing under the 4th sec. of the Statute of Frauds guaranteed 
 B's debt. (2) The bank may sue B's personal representatives for 
 the balance owing. (3 & 4) A valid security against both A's 
 and B's moieties was created by the deposit, and the bank 
 may foreclose the whole estate, but A will have a right to be 
 indemnified out of B's estate. 
 
 Q. What is necessary to constitute a valid mortgage of a 
 chose in action ? To whom should, notice of such a mortgage 
 be given, and why is such notice necessary or advisable ? When 
 a mortgage is made of a fund in Court ivhat should the 
 mortgagee do in order to protect his rights ?
 
 SPECIFIC PERFORMANCE AND MORTGAGES. bo 
 
 A. There must be some assignment or charge, and notice 
 must be given to the holder of the chose so as to complete 
 the title, and prevent any subsequent incumbrance without 
 notice obtaining priority. (Fisher on Mortgages, 509.) In 
 the case of a fund in Court the mortgagee should at once 
 proceed to obtain a stop order. (lb., 609.) 
 
 Q. Explain the saying " Once a mortgage, always a mort- 
 gage" May a second mortgagee buy .the mortgaged property 
 from the first mortgagee selling under his power of sale ? Will 
 the Court ever, and, if so, under what circumstances, prevent 
 the mortgagee with a poiver of sale from exercising it ? 
 
 A. This means that when a transaction is in its origin a 
 mortgage, it cannot by the same deed be made at a certain 
 time something else. Thus a provision in a mortgage that if 
 the mortgage money is not paid in five years the estate shall 
 be the mortgagee's absolutely, would be of no effect. (Snell's 
 Principles of Equity, 296.) Yes, a second mortgagee may so 
 buy from the prior mortgagee selling under his power, and 
 may in all respects, as if he were a stranger to the estate, 
 acquire an irredeemable title, provided he has not used his 
 position as mortgagee to get an undue advantage or otherwise 
 acted maid fide. (Fisher on Mortgages, 459.) The Court 
 will not ordinarily interfere to prevent a mortgagee from 
 exercising his power of sale, for the power is given him for 
 his own benefit, and he is not a trustee for the mortgagor, 
 and the Court will not therefore inquire into his motives in 
 executing it. But if the power of sale is being exercised 
 for fraudulent purposes, or the mortgage money has been 
 paid or tendered the Court will so interfere. (lb., 457, 
 458.) 
 
 Q. In what respects does the position {&) of a mortgagee 
 towards his mortgagor, (b) of a vendor of real estate towards 
 the purchaser before completion of the purchase, differ from 
 that of a trustee towards his cestui qui trust ? 
 
 A. Between trustee and cestui que trust there is an actual 
 fiduciary relationship existing, and lapse of time will form no 
 
 G 2
 
 84 the student's guide to 
 
 bar to the cestui que trust's claims. (Judicature Act, 1873, 
 sec. 25 ; Indermaur's Guide to Trusts and Partnerships, 27.) 
 There is no such actual relationship, however, existing in 
 either cases, (a) or (b), above mentioned ; but a mortgagee in 
 possession is a constructive trustee of the rents and profits, 
 and bound to apply them in a due course of administration, 
 and after sale he is a constructive trustee as regards any 
 surplus, but lapse of time would bar the mortgagor's right. 
 (Knox v. Gye, L. E. 5, H. L. 656.) After a binding contract 
 for sale and purchase the vendor is also a constructive trustee 
 for the purchaser. (Underbill on Trusts, 144, 146; Snell's 
 Principles of Equity, 147.) 
 
 Q. WJiat is the effect of a mortgage by husband and wife 
 of the wife's estate ? And is it altered by the reservation of the 
 equity of redemption to the husband and his heirs ? 
 
 A. If the mortgage was for the husband's purposes it is 
 considered only as surety for him, and he must ultimately 
 discharge the liability, and this notwithstanding the way in 
 which the estate has afterwards been dealt with. The mere 
 reservation of the equity of redemption to the husband will 
 not alter this, but if it clearly appears that the wife's inten- 
 tion was to alter the limitation of the equity of redemption, 
 then effect will be given to that intention. In the absence of 
 such intention if, on payment off by the husband, the estate 
 is reconveyed to him, he holds as an implied trustee for the 
 wife. (Huntingdon v. Huntingdon and Notes, Indermaur's 
 Conveyancing and Equity Cases, 76, 78 ; Indermaur's Guide 
 to Trusts and Partnership, 13.) 
 
 Q. Property in Middlesex was mortgaged to A, and after- 
 wards to B, and subsequently to G, who had notice of B's 
 mortgage. C registered his mortgage before B, and afterwards 
 transferred it to D, who had no notice of B's moiigage. Was 
 D entitled to priority over B or not ? 
 
 A. This question presents the facts in Ford v. White 
 (16 Beav. 120) in which case it was held that as C's interest 
 was equitable, he could not by assigning it to D without
 
 SPECIFIC PERFORMANCE AND MORTGAGES.. 85 
 
 notice, put him in a better situation than himself, and con- 
 sequently that D was not entitled to priority over B. 
 
 Q. A died in the year 1870 having by his will, made in the 
 year 1 869, directed all his debts to be paid out of his personal 
 estate. Part of his freehold estate was at the time of his death 
 subject to a mortgage created by himself, and the devisee of that 
 freehold insisted upon having the mortgage debt paid out of 
 A's personal estate. Was this right or wrong, and why ? 
 
 A. It was wrong, because Locke King's Act (17 & 18 
 Vict. c. 113) provides that when a person dies after 31st 
 December 1854, seised of or entitled to any estate or interest 
 in land subject to a mortgage, then in the absence of a con- 
 trary intention the heir or devisee shall not be entitled to 
 have the same discharged out of the general personal estate, 
 but the estate shall go cum onere. It may be noticed that 
 this provision formerly did not apply to leaseholds (Solomon 
 v. Solomon, 12 W. E. 540), but it does now (40 & 41 Vict., 
 c. 34) 
 
 Q. What are the provisions of the Statute of Limitations 
 applicable to mortgages (a) for the benefit of the mortgagor (b) 
 for the benefit of the mortgagee ? 
 
 A. (a) The mortgagee must bring his action either for 
 foreclosure, or on the covenant contained in the mortgage or 
 any collateral bond, within 12 years after the accrual of his 
 right to receive the money, or after the last payment of 
 principal, or interest, or written acknowledgment. (37 & 38 
 Vict., c. 57, sec. 8; Sutton v. Sutton, 22 Ch. D., 511; 
 Fearnside v. Flint, 22 Ch. D., 579.) (6) If the mortgagee 
 enters and holds for 12 years without giving any written 
 acknowledgment his title becomes absolute, and the mort- 
 gagor loses his right of equity of redemption. (37 & 38 Vict., 
 c. 57, sec. 6 ; Snell's Principles of Equity, 302, 303.) 
 
 Q. A mortgages his house to X to secure £1,000, and Z gives 
 a collateral bond as guarantor for the amount. Within what 
 time must B proceed (a) to foreclose (b) to sue X (c) to 
 me Z.
 
 86 the student's guide to 
 
 A. (a) 12 years. (37 & 38 Vict., c. 57, sec. 8.) (6) 
 12 years. {lb., Sutton v. Sutton, supra.) (c) 20 years 
 (3 & 4 Wm. IV., c. 42, see 3), the principles of Sutton v. 
 Sutton not applying to a bond given by a third person. 
 (Re Powers, Lindsell v. Phillips, 30 Ch. D. 291.; 
 
 Q. When does the mortgager's right of redemption arise ? 
 What notice must a mortgagor give of his intention to pay off 
 the mortgage ? 
 
 A. As soon as the day named in the mortgage has arrived 
 the mortgagor can redeem, but strictly not before, and if the 
 mortgagee should, as a matter of indulgence, consent to 
 accept payment before the legal period for redemption, he is 
 entitled to the full amount of interest up to that time. A 
 mortgagor desiring to redeem after the day named in the 
 mortgage, must give the mortgagee six months' notice orjpay 
 six months' interest, so as to give him an opportunity of 
 finding a fresh security for his money. If, however, the 
 mortgagee should himself commence an action to recover his 
 debt he is not entitled to six months' notice or to interest in 
 lieu thereof. (Sneli's Principles of Equity, 301.) 
 
 Q. Explain the nature of the right of redemption, and by 
 whom it may be exercised. To what extent is it affected by tlte 
 Statutes of Limitation ? 
 
 A. By equity of redemption i3 meant that estate remain- 
 ing in a mortgagor after he has mortgaged his property, and 
 it is founded upon the maxim that " Equity regards the 
 spirit and not the letter." (Sneli's Principles of Equity, 
 299). The Keal Property Limitations Acts, 1874 (37 & 38 Vict., 
 c. 57, sec. 7) provides that where a mortgagee takes pos- 
 session and holds for twelve years the mortgagor shall be 
 barred of his equity of redemption, unless the mortgagee, or 
 person claiming through him, gives an acknowledgment in 
 writing, signed, of his right to redeem. It has been decided 
 that twelve years' uninterrupted possession by the mortgagee 
 without acknowledgment is an absolute bar as against the mort- 
 gagor and any person or persons claiming under him, although
 
 SPECIFIC PERFORMANCE AND MORTGAGES. 87 
 
 he or they may have been under disability. (Forster v. 
 Patterson, 17 Ch. D., 132 ; 50 L. J., Ch. 603.) 
 
 Q. A mortgages his property to B, C and D respectively by 
 three separate mortgages. A then sells his equity of redemption 
 to Z. What is Z's position, and would it make any difference 
 if B had been the purchaser ? 
 
 A. Z stands exactly in the mortgagor's shoes as regards 
 the estate. If B bought, however, unless there was some 
 intention shown to keep his mortgage on foot as against the 
 estate, the result would be that he could not set up his mort- 
 gage against C and D, whose position would thus be improved. 
 (Toulmin v. Steere, 3 Mer. 210). B's contrary intention 
 might satisfactorily be shown by a declaration being inserted 
 in the deed under which he purchased the equity of redemp- 
 tion, that it was intended to keep the mortgage alive. 
 (Goodeve, 200-203). 
 
 Q. The owner of lands mortgages them in fee and dies in- 
 testate. The mortgagee enters on the lands and holds them for 
 20 years without accounting or acknowledging the title of the 
 heir of the mortgagor. At the time of the entry the heir was 
 an infant and abroad, and has continued an infant and 
 abroad ever since. Can the mortgagee hold as absolute owner 
 against a claim by the heir. 
 
 A. Yes. (Forster v. Patterson, supra). 
 
 Q. Has a mortgagor any right to call upon his mortgagee 
 to produce the deeds for his inspection. 
 
 A. The rule was that he could not, though it was held 
 that this did not apply to the mortgage deed itself, as that 
 constituted the evidence of the mortgagor's right to redeem. 
 (Patch v. Ward, L. K. 1, Equity, 436.) Now, however, as 
 regards mortgages made on or since 1st January, 1882, the 
 Conveyancing Act, 1881, provides that the mortgagor shall, as 
 long as his right to redeem subsists, be entitled at reasonable 
 times, at his own cost and on payment of the mortgagee's 
 costs and expenses, to inspect and make copies or abstracts 
 or extracts from the deeds. (44 & 45 Vict,, c 41, sec. 16.)
 
 88 the student's guide to 
 
 Q. A mortgage contains a provision that if the interest is 
 not punctually paid it shall be added to principal, and carry 
 interest. Can this provision be enforced? Can a stipulation 
 in a mortgage that if interest is not punctually paid the rate 
 shall be increased be enforced f 
 
 A. It was formerly considered that a provision for the 
 conversion of interest into principal partook of the nature of 
 a penalty and could not be enforced, but the contrary has now 
 been decided. (Clarkson v. Henderson, 14 Ch. D. 348 ; 49 L. J. 
 Ch. 289.) It has been held, and is still generally laid down, 
 that a provision for increasing the rate of interest on non- 
 punctual payment partakes of the nature of a penalty and 
 cannot be enforced, though the result might be arrived at by 
 reserving the higher rate and providing for the acceptance of 
 the lesser rate on punctual payment ; (Snell's Principles of 
 Equity, 307) ; but it is submitted that a contrary decision 
 would now be arrived at on the principle of the above-men- 
 tioned case of Clarkson v. Henderson, and the case of General 
 Credit and Discount Company v. Glegg. (22 Ch. D., 549 ; 52 L. 
 J., Ch. 297.) 
 
 Q. Explain and illustrate the equitable doctrine of the 
 consolidation of mortgages, and trace its bearing on the 
 right of redemption ? 
 
 A. It is the right of a mortgagee having several securities 
 of the same mortgagor to refuse to allow one to be redeemed 
 without the other, a doctrine manifestly affecting the right of 
 redemption which would otherwise be to redeem any one of 
 the securities alone. The Conveyancing Act, 1881 (sec. 17), 
 abolishes the doctrine where either mortgage is made on or 
 since 1st January, 1882, provided there is no contrary intention 
 expressed in the mortgage deeds or one of them. In cases in 
 which consolidation still exists, it is necessary that both the 
 securities should not only have been created, but also have 
 got into the same mortgagees's hands before any dealing with 
 the equity of redemption in either of the mortgaged properties. 
 (Jennings v. Jordan, 6 App. Cases, 698 ; 51 L. J., Ch. D., 129 ;
 
 SPECIFIC PERFORMANCE AND MORTGAGES. 89 
 
 Harter v. Colman, 19 Cb. Div., 630; 51 L. J., Ch. 481.) 
 The following would be an illustration of tbe doctrine of con- 
 solidation : — A mortgages Blackacre to B, and Wbiteacre to 
 C. B buys up C's mortgage. Assuming this to be before the 
 Conveyancing Act, 1881, A cannot redeem tbe one estate 
 without redeeming the other. (See hereon Vint v. Padgett, 
 and Notes, Indermaur's Conveyancing and Equity Cases, 85.) 
 
 Q. Explain the doctrine of consolidation of mortgages, 
 distinguishing between the right of consolidation and the rigid. 
 of tacking ? 
 
 A. The doctrine of Consolidation is explained in the 
 previous answer. It is distinguished from Tacking in that, 
 whilst that doctrine depends on the point of no notice and 
 acquirement of the legal estate by force of the maxim 
 " Where the equities are equal the law shall prevail," Con- 
 solidation has nothing to do with such points, but exists on 
 principles of general equity and convenience,the court consider- 
 ing that the subsequent mortgage may have been taken on the 
 faith of a probable surplus on the previous security, and that 
 it might be unfair to allow the mortgagor to redeem one 
 property without redeeming the other, and the maxim is " He 
 who seeks equity must do equity ! " It is also to a certain 
 extent allowed with a view to prevention of circuity of action 
 and multiplicity of suits. (Indermaur's Conveyancing and 
 Equity Cases, 83-85). 
 
 Q. What is an equity of redemption? WJud peculiar risk 
 attends the purchase of such an estate ? 
 
 A. An equity of redemption is that estate remaining in a 
 mortgagor after he has mortgaged his property (Snell Princi- 
 ples of Equity, 299). The particular risk referred to is that of 
 consolidation, for formerly the purchaser when he desired to 
 redeem might find that the mortgagee had acquired some 
 other mortgage from the same mortgagor, and the mortgagee 
 would have a right to unite the two and refuse to allow the 
 one to be redeemed without the other (see Vint v. Padgett, 
 supra) ; but even irrespective of the provision of sec. 17 of the
 
 90 THE STUDENT'S GUIDE TO 
 
 Conveyancing Act 1881, this could not be so now, as consoli- 
 dation is only allowed where both mortgages become vested 
 in the same mortgagee before the equity of redemption in one 
 of them is disposed of (Harter v. Colman, supra). Therefore 
 if the purchaser now enquires of the mortgagee of the property, 
 and finds he has no other property in mortgage to him at that 
 date he is practically safe, provided he at once gives notice of 
 his purchase to the mortgagee. 
 
 Q. Qui prior est tempore potior est jure. Explain and 
 illustrate the application of this rule to mortgages of real 
 estate, and state to what exceptions it is subject. 
 
 A. This maxim means that as between persons having 
 only equitable interests, if such equities are in all other 
 respects equal, then priority of time is made the ground of 
 preference. This maxim has no application where one party 
 has the legal estate, for then the maxim is, "Where the 
 equities are equal the law shall prevail." Nor does it apply 
 unless the equities are strictly equal, so that if the first 
 claimant has been guilty of any laches he will be postponed 
 to a subsequent one. An illustration of the application of 
 the maxim would be found in the case of two equitable 
 charges on property, for here the point of date of the charge 
 would ordinarily determine who should have priority. (Snell's 
 Principles of Equity, 22, 23.) 
 
 Q. Explain the expression "tacking of securities" and 
 when does it apply ? 
 
 A. Tacking has been defined as the uniting of two en- 
 cumbrances with the view of squeezing out an intervening 
 one, prior in point of time to the security tacked. It arises 
 where a third mortgagee advances money without notice of a 
 second, for here if he can afterwards get in the first 
 mortgage, thus clothing himself with the legal estate, he 
 is allowed to unite the two and get paid both before the 
 second mortgagee. So also the same result wouJd ensue if a 
 first mortgagee made a further advance without notice of a 
 second mortgage. The doctrine of tacking depends upon
 
 SPECIFIC PERFORMANCE AND MORTGAGES. 91 
 
 the maxim, "When the equities are equal the law shall prevail." 
 (Marsh v. Lee and Notes, Indermaur's Conveyancing and 
 Equity Cases, 83.) It may be noticed that the doctrine of 
 tacking was abolished by the Vendors' and Purchasers' Act 
 1874 (37 & 38 Vict. c. 78, sec. 7), but that provision was 
 repealed by the Land Transfer Act 1875 (38 & 39 Vict. c. 87, 
 sec. 129) except so to anything duly done thereunder before 
 the commencement of the Act, so that between 1st August, 
 1874, and 31st December, 1875, both inclusive, the doctrine 
 
 did not exist. 
 
 Q. A, B, C and D are encumbrancers upon the same pro- 
 perty to an aggregate amount greatly exceeding its value. 
 Upon what principles will their respective priorities be deter- 
 mined when the property consists of (a) real estate; (b) per- 
 sonal chattels in the possession of the debtor ; (c) consols sta idl- 
 ing to the credit of an action in the Chancery Division; (d) 
 a fund invested in the names of trustees ? 
 
 A. (a) Firstly the priorities will be determined by the 
 principle of who has the legal estate, for that person who has 
 it will come first, though his security may be later in point of 
 date, for " Where the equities are equal the law shall prevail." 
 Subject to this, and assuming that the equities are equal in 
 all other respects, the dates of the respective securities will 
 determine their priorities, for qui prior est tempore potior est 
 jure (Snell's Principles of Equity, 312). (6) The security 
 here will be by bill of sale and the Bills of Sale Act, 1882 (45 
 & 46 Vict., c. 43, sec. 43), provides that the one registered 
 first shall have priority, (c) The incumbrancer who, taking 
 his security without notice, first obtains a stop order on the 
 fund will have priority. (Fisher on Mortgages, 608, 609.) (d) 
 The incumbrancer who, taking without notice, first gives notice 
 to the trustees, will have priority. (16., 606.) 
 
 Q. In a foreclosure or redemption suit the court directs a 
 sale. A buys the properly for €5,000, but before the certificate 
 of result of sale is mule, B offers £5,200 for the property. Can 
 his offer be entertained ? 
 
 A. Formerly it could have been, for the court would have
 
 92 the student's guide to 
 
 re-opened the biddings, but this is no longer so. (30 & 31 
 Vict., c. 48.) A is therefore the purchaser, and, except by his 
 consent, B's offer cannot be entertained. 
 
 Q. Under ivhat circumstances can a mortgagor bring an 
 action of ejectment in his own name to recover the mortgaged 
 premises from a third party ? 
 
 A. When the mortgagor is entitled for the time being to 
 possession, and the mortgagee is not in possession, and has 
 given no notice of his intention to take possession. (Judica- 
 ture Act, 1873, sec. 25 (5.) 
 
 Q. A made a legal mortgage in fee to B. The mortgaged 
 property was let to a tenant, but B did not enter into receipt of 
 the rents and profits. The tenant refuses to pay his rent to A. 
 What remedy has A for recovery of the rent ? 
 
 A. He was always able to distrain in the name of and as 
 the bailiff of the mortgagee, under an implied authority from 
 him to enforce payment of the fund out of which his interest 
 may be paid. But formerly he could not have sued to recover 
 it, the legal estate being in the mortgagee. Now, however, he 
 may also sue, the Judicature Act, 1873 (sec. 25 (5)) pro- 
 viding that a mortgagor entitled for the time being to posses- 
 sion, when the mortgagee has given no notice of his intention 
 to take possession, may sue to recover possession, or for 
 rents and profits, or to prevent or recover damages in respect 
 of any trespass or other wrong relative thereto, in his own 
 name alone, unless the cause of action arises upon a lease or 
 other contract made by him jointly with any other person 
 (Fisher on Mortgages, 404). 
 
 Q. What changes in the laiu have been effected by the Judi- 
 cature Act 1873 and the Conveyancing Act, 1881, respectively, 
 ivith respect to the mortgagor's rights (I) to sue for possession, 
 (2) to grant leases of the mortgaged property ? 
 
 A. (1) Under the Judicature Act, 1873 (sec. 25 (5)), the 
 mortgagor can under the circumstances detailed in the last 
 two questions and answers sue for possession, or for rents 
 and profits or for trespass, which he could not formerly do.
 
 SPECIFIC PERFOKMANCE AND MORTGAGES. 93 
 
 (2) Under the Conveyancing Act, 1881 (sec. 18), a mortgagor 
 may until the mortgagee gives notice of his intention to enter 
 and take possession, make valid leases for the following terms, 
 viz., an agricultural or occupation lease not exceeding 21 
 years, and a building lease not exceeding 99 years. Such 
 leases must be made to take effect within 12 months, at the 
 best rent, and must contain a covenant for payment of rent 
 and a condition of re-entry on non-payment within a time not 
 exceeding 30 days, and within one month the mortgagor 
 must deliver a counterpart duly executed to the mortgagee, or 
 the mortgagee first in priority. Formerly a mortgagor could 
 not after the mortgage make a valid lease. (Keech v. Hall, 
 Indermaur's Common Law Cases, 42.) 
 
 Q. What is the effect of entry by the mortgagee into posses- 
 sion of the mortgaged property, as regards (a) the mortgagor ; 
 (b) the mortgagee ; (c) persons claiming under tenancies created 
 by the mortgagor after the date of the security, ivith or without 
 the concurrence of the mortgagee ? 
 
 A. (a) The mortgagor, though his estate has gone at law, 
 yet has his right of redemption in equity within twelve years 
 of the mortgagee taking possession, or giving an acknowledg- 
 ment in writing of his right to redeem. (6) The mortgagee 
 may take the rents and profits, but has ultimately to render 
 accounts to the mortgagor, and if he holds for twelve years, 
 the property will be his free from any equity of redemption 
 (37 & 38 Vict., c. 57, sec. 6). He is justified in expending money 
 in necessary repairs, and generally must manage the property 
 properly. He may make leases as provided by section 18 of 
 the Conveyancing Act, 1881, and under section 19 of the same 
 Act, he may cut and sell timber ripe and fit for cutting, and 
 not planted for shelter or ornament, (c) As regards tenants 
 from the mortgagor since the mortgage, he may eject them. 
 (Keech v. Hall, Indermaur's Common Law Cases, 6th ed., 47), 
 unless they hold under leases made on or since the 1st January, 
 1882 in accordance with the provision of section 18 of 
 the Conveyancing Act, 1881, when he can only give
 
 94 the student's guide to 
 
 them notice to pay their rent to him, and this last would be 
 his only course if they were leases made with his concurrence. 
 
 Q. Classify the different conveyances by way of mortgage, in 
 which covenants for title are to be implied by virtue of the Con- 
 veyancing Act 1881, stating what covenants are to be implied 
 in each case ? 
 
 A. (1) Mortgage of freeholds, in which case, if the mort- 
 gagor is expressed to convey as beneficial owner, covenants 
 are implied for good right to convey, for quiet enjoyment, free 
 from incumbrances, and for further assurance. (2) Mort- 
 gage of leaseholds, in which case, if the mortgagor is 
 expressed to convey as beneficial owner, in addition to the 
 foregoing, covenants are also implied for the validity of the 
 lease, that all rent has been paid and covenants performed, 
 for payment of all future rent and performance of all future 
 covenants, and to indemnify the mortgagee against all actions 
 and proceedings in respect of rent and covenants. (Sec. 7.) 
 
 Q. What powers are conferred on mortgagees by the Con- 
 veyancing and Law of Property Act 1881, with regard to (1) 
 sale, (2) insurance, (3) appointment of a receiver, (4) cutting of 
 timber ? Are these provisions applicable to all mortgages ? 
 If not state what mortgages are and what are not within the 
 operation of the Act ? 
 
 A. (1) A general power of sale, when the money is 
 due, is conferred either by public auction or private contract, 
 the same not to be exercised until notice to pay off has been 
 given and default has been made for three months, or interest 
 is in arrear for two months, or there has been a breach of 
 some other provision contained in the mortgage-deed. (2) 
 A power to insure is given at any time after the date of the 
 mortgage-deed, unless an insurance is duly kept up by the 
 mortgagor, or the deed contains a declaration that no 
 insurance is required. The amount of the insurance is not 
 not to exceed two-thirds of what would be required to restore 
 the property if totally destroyed. (3) The mortgagee has the 
 power of appointing a receiver of the income of the mort-
 
 ECIPIC PERFORMANCE AND MORTGAGES. 95 
 
 gaged property when any of the mortgage money is due. 
 The receiver is deemed the agent of the mortgagor, who is 
 responsible for his acts. (4) Power is given to a mortgagee 
 in possession to cut and sell timber and other trees ripe for 
 cutting and not planted or left standing for shelter or 
 ornament, or to contract for any such cutting or sale, to be 
 completed within 12 months of the contract. (Sees. 19-24.) 
 
 Q. What is the present law as to the devolution of mort- 
 gage estates on the death of the 'mortgagee ? A, being a sole 
 mortgagee in fee, dies intestate. The mortgagor desires to pay 
 of the mortgage. Hoiu is he to obtain a reconveyance and a 
 discharge for the mortgage debt ? 
 
 A. By sec. 30 of the Conveyancing Act 1881 (44 & 45 Vict., 
 c. 41) such estates, notwithstanding any testamentary disposi- 
 tion, vest absolutely in the personal representative. In the case 
 put, therefore, A's administrator is the proper person to re- 
 convey and to give a discharge for the mortgage debt. (See 
 notes to Lord Braybroke v. Inskip, Indermaur's Conveyanc- 
 ing and Equity Cases, 41). 
 
 Q. A first mortgage is given to A to secure a present ad- 
 mnce of £5.000 and future advances up to £10,000. A second 
 mortgage of the same property is then executed to B to secure a 
 loan of £5,000. A makes the future advances contemplated 
 by his security, some being 'made before and some after, the 
 date of IPs loan. The estate is sold and only realizes £10,000. 
 Hoiv is the fund to be apportioned ? 
 
 A. As regards A's £5,000 and all further advances made 
 prior to A having received notice of B's mortgage, payment 
 must first be made to A. As regards further advances made 
 by A after notice of B's mortgage, A will be postponed to B. 
 (Hopkinson v. Bolt, 9 H. of L. C 514; Fisher on Mortgages 
 570). 
 
 Q. A mortgagee in possession has received rents which in 
 each year were considerably in excess of the interest on his d'.bt. 
 In what manner will an account between a mortgagor and 
 mortgagee be directed, (a) When some interest ivas in arrear
 
 96 the student's guide to 
 
 at the time, (b) When no interest ivas in arrear when he took 
 possession ? 
 
 A. (a) The mortgagee will be allowed interest on the full 
 amount of his mortgage, notwithstanding the balance of rents 
 from time to time in his hands, because he entered to get 
 payment of his interest, and he will not be compelled to take 
 payment off of his principal by driblets, (b) It will here 
 ordinarily be otherwise, for, no interest being in arrear, he 
 must have entered to get payment of his principal, and he 
 has thus shown a willingness to take payment off by driblets, 
 and annual rests will be taken, so that credit is from time to 
 time given for the balances, and the interest on the mortgage 
 is thus from time to time reduced. This principle, however, 
 does not apply when there was some other necessity for 
 entering, e.g., if it were a mortgage of leasehold property, and 
 the mortgagee entered to prevent a forfeiture under the lease. 
 (Snell's Principles of Equity, 309.) 
 
 Q. May a mortgagee with a power of sale ever, and if so 
 under ivhat circumstances, become the purchaser of the mort- 
 gaged estate ? May he buy the equity of redemption from the 
 mortgagor? May his agent or solicitor do either of these 
 things ? Can a mortgagor buy from, the first mortgagee, sell- ' 
 ing under a power of sale f What rights, if any, has a second 
 mortgagee in the event of such a sale taking place ? 
 
 A. A mortgagee selling, or his agent, or solicitor, cannot 
 himself become the purchaser, unless the sale is by the Court, 
 and he has obtained leave to bid. A mortgagee may buy the 
 equity of redemption of the mortgagor, and so may his agent 
 or solicitor with his conseut. (Fisher on Mortgages, 458.) A 
 mortgagor can buy from the first mortgagee selling under his 
 power of sale, but he cannot set up the incumbrance or his 
 ownership, to the prejudice of a subsequent incumbrancer, and 
 the result of his doing so would therefore be that the second 
 mortgagee would become, in fact, the first mortgagee. (lb., 756.) 
 
 Q. In ivhat cases ivill the Court grant a receiver in aid of 
 a mortgagee's title ?
 
 SPECIFIC PERFORMANCE AND MORTGAGES. 97 
 
 A. Formerly the court would not ordinarily do so at the 
 instance of a legal mortgagee, his proper remedy being to 
 take possession, but it would do so on behalf of a puisne 
 mortgagee or other equitable incumbrancer, provided the 
 court was satisfied of the existence of the equitable right of 
 the applicant. Now, since the provisions of the Judicature 
 Act, 1873, sec. 25 (8), which enables the court to appoint a 
 receiver when it shall appear to be just and convenient to do 
 so, such appointments are as freely made if the appointment 
 of a receiver is desirable, as in cases in which the mortgagee 
 has only an equitable interest. (Fisher on Mortgages, 359). 
 
 Q. Where there are three mortgages on an estate, who ivill 
 be the necessary parties to a foreclosure action by the second 
 mortgagee ? Give reasons for your answer ? 
 
 A. The necessary parties would be the third mortgagee, 
 the mortgagor or any person who has acquired his equity of 
 redemption, and the first mortgagee, and the Statement of 
 Claim should contain an offer to pay the first mortgagee off. 
 It is a common expression to say, " You redeem up, but 
 you foreclose down," signifying that an incumbrancer redeems 
 prior incumbrances and forecloses subsequent ones. 
 
 Q. Explain the nature of a foreclosure judgment. Hoiu 
 far is it open to a mortgagee who has obtained such a decree, 
 to pursue his other rights against the mortgagor in respect of 
 his debt ? 
 
 A. It is a judgment whereby an account is directed to be 
 taken of what is due to the mortgagee for principal, interest, 
 and costs, and then if the total amount is not paid by a certain 
 date (usually six months from the chief clerk's certificate), 
 the mortgagor is absolutely foreclosed or shut out from any 
 further right of equity of redemption, which is the design 
 of the action. Under the Conveyancing Act, 1881 (44 & 45 
 Vict., c. 41, sec. 25), the court has power to direct a sale 
 instead of a foreclosure in its discretion. A mortgagee can 
 exercise all his remedies at once if he chooses, and after fore- 
 closure can still sue, but the effect of so suing is to re-open 
 
 H
 
 98 the student's guide to 
 
 the foreclosure and give the mortgagor a renewed right to 
 redeem, so that if the mortgagee has sold the estate after fore- 
 closure he cannot pursue his other remedies, (Lockhart v. 
 Hardy, 9 Beav., 349; Fisher on Mortgage, 309, 313, 476.) 
 
 Q. What is meant by opening a foreclosure ? A mortgagee 
 of real estate, having his debt collaterally secured by the mort- 
 gagor's bond, forecloses, and then sells the estate for less than 
 the amount of the debt, and conveys to the purchaser. He 
 afterwards sues the mortgagor upon his bond. Ought he to be 
 allowed to proceed with his action ? If not, why not ? 
 
 A. By opening the foreclosure is meant giving the mort- 
 gagor a renewed right to redeem, which happens when, after 
 foreclosure, the mortgagor sues for his mortgage money. The 
 action, under the circumstances mentioned in the question, 
 could not be maintained, because the mortgagee by selling 
 after foreclosure has rendered it impossible to restore the 
 estate to the mortgagor on payment. (Lockhart v. Hardy, 
 supra.) But this principle does not, it appears, apply to a 
 mortgagee who has sold without foreclosing, in which case it 
 is submitted that he can sue on the mortgagor's covenant or 
 bond for any deficiency. (Budge v. Rickens, L. R. 8 C. P., 
 358 ; Fisher on Mortgages, 313.) 
 
 Q. A deposits the title deeds of a house ivith B to secure 
 payment of £1,000 and interest, and shortlyafterwards becomes 
 bankrupt. What course should you advis&JSrto take to enforce 
 his security f 
 
 A. I should advise B to apply to the Bankruptcy Court under 
 Rules 65-69 of the Bankruptcy Act 1883, which provides that 
 any mortgagee may apply and the court may enquire what is 
 due, and the trustee in bankruptcy may be directed to sell, 
 and after paying costs of sale pay the mortgagee, and then if 
 there is any surplus that will belong to the bankrupt's estate 
 for the benefit of his creditors. It is not however imperative 
 on a mortgagee to adopt this course, but he in this case being 
 an equitable mortgagee, it is a better course than proceeding 
 in the ordinary way by foreclosure.
 
 SPECIFIC PERFORMANCE AND MORTGAGES. 99 
 
 Q. Enumerate the proceedings in an ordinary action for 
 the foreclosure of a mortgage of freeholds ? 
 
 A. Writ is issued to which the defendant appears within 
 ight days. Statement of Claim within six weeks of appear- 
 ance, or if demanded, within five weeks of demand ; State- 
 ment of Defence within ten days of delivery of Statement of 
 Claim ; Statement of Reply within twenty-one days of defence. 
 Notice of trial within six weeks of Reply and entry of cause. 
 If no defence the plaintiff might proceed to hearing on 
 motion for judgment, and if the defendant has not appeared, 
 or even if he has appeared, and the plaintiff's mortgage is not 
 contested, a summons might be taken out under Order XV., and 
 a formal hearing avoided. The first judgment or order will 
 be one directing an account to be taken of what is due to the 
 plaintiff for principal, interest, and costs. The judgment will 
 be carried into the judge's chambers, and the account taken 
 there when the chief clerk makes his certificate, and after the 
 lapse of six months from the certificate, on an affidavit of non- 
 payment the foreclosure is usually made absolute. (Inder- 
 maur's Manual of Practice, 195; see also next question and 
 answer). 
 
 Q. What order can a mortgagee or mortgagor noiv obtain 
 by summons at chambers ? 
 
 A. Under Order LV., rule 5a, any mortgagor or mortgagee, 
 whether legal or equitable, or any person entitled to or having 
 property subject to a legal or equitable charge, or any person 
 having the right to foreclose or redeem any mortgage whether 
 legal or equitable, may take out as of course, an originating 
 summons, returnable in chambers in the Chancery Division, 
 for such relief of the nature or kind following as may by the 
 summons be specified, and as the circumstances of the case 
 may require; that is to say, sale, foreclosure, delivery of 
 possession by the mortgagor, redemption, reconveyance, deli- 
 very of possession by the mortgagee. (Rule 21 of Rules 
 of Court, December, 1885.)
 
 1U0 THE STUDENT'S GUIDE TO 
 
 Q. Who are the persons to be served with such a summons 
 as mentioned in the last question? 
 
 A. Such persons as under the existing practice of the 
 court would be proper defendants to an action for the like 
 relief as that specified by the summons. (Order LV., rule 5b, 
 being Kule 22 of Rules of December, 1885); that is to say, 
 in a foreclosure suit the defendants would be all persons 
 interested in the equity of redemption, and in a redemption 
 suit all prior incumbrancers. 
 
 Q. Can a mortgagee take proceedings for the enforcement 
 of his mortgage security, and also for the administration of 
 the real and personal estate of the mortgagor ? If so, explain 
 the nature of the judgment in such a suit ? 
 
 A. Yes, there is nothing to prevent him proceeding not 
 only against the particular estate mortgaged to him, but also 
 to charge the general assets. In such a case the proceedings 
 for administration should be for himself and all other creditors 
 of the mortgagor. He can take both courses in one action, 
 and the judgment will ordinarily direct a sale of the mortgaged 
 property, and if that is insufficient, then a general adminis- 
 tration of the estate of the deceased mortgagee. (Seton on 
 Decrees, Vol. II., 823, 825.) 
 
 Q. Give the ordinary form of judgment in actions for 
 foreclosure ? 
 
 A. Let an account be taken of what is due to the plaintiff 
 for principal and interest on (under and by virtue of or in res- 
 pect of) his mortgage in the pleadings mentioned, and for 
 his costs of suit, such costs to be taxed, &c ; and let upon 
 the defendant paying to the plaintiff what shall be certified to 
 be due to him for principal, interest, and costs as aforesaid 
 within six calendar months after the date of the chief clerk's 
 certificate, at such time and place as shall be thereby ap- 
 pointed, the plaintiff re-convey (re-surrender or re-assign) the 
 hereditaments, &c, comprised in the said mortgage free and 
 clear of and from all incumbrances done by him or any per- 
 sons claiming by, from, or under him (if plaintiff be
 
 SPECIFIC PERFORMANCE AND MORTGAGES. 101 
 
 representative of the mortgagee or otherwise claim by derived 
 title add, or by those under whom he claims,) and deliver up 
 upon oath all deeds and writings in his custody or power re- 
 lating thereto to the defendant or to whom he shall appoint ; 
 but in default of the defendant paying to the plaintiff what 
 shall be so certified to be due to him for such principal, 
 interest, and costs as aforesaid, by the time aforesaid, the de- 
 fendant is from thenceforth to stand absolutely debarred and 
 foreclosed of and from all right, title, interest, and equity of 
 redemption, of in and to the said mortgaged hereditaments. 
 Liberty to apply. (Seton on Decrees, Vol. II. 1035). 
 
 Q. Give the ordinary form of judgment in actions for 
 redemption? 
 
 A. Let the following accounts be taken, that is to say (1) 
 An account of what is due to the defendant for principal and 
 interest on his mortgage in the pleadings mentioned, and for 
 his costs of suit, such costs to be taxed, &c. (2.) If the 
 defendant has been in possession, account of rents and 
 profits and amount to be deducted. And let, upon the plain- 
 tiff paying to the defendant what shall be certified to be due 
 to him for principal, interest, and costs (after such deduction 
 as aforesaid), within six calendar months after the date 
 of the chief clerk's certificate at such time and place as shall 
 be thereby appointed, the defendant reconvey (re-surrender or 
 re-assign) the mortgaged hereditaments free and clear of and 
 from all incumbrances done by him or any person claiming by 
 from or under him, and deliver up all deeds and writings in 
 his custody or power relating thereto. But in default of the 
 plaintiff paying to the defendant what shall be certified to be 
 due to him for such principal, interest, and costs, after such 
 deduction as aforesaid by the time aforesaid, Let 
 action from thenceforth stand dismissed out of this court 
 with costs to be taxed, &c. But if it shall appear on taking 
 the said accounts that there is nothing due to the defendant 
 in respect of principal, interest, and costs, Let the Defendant 
 within twenty-one days after the date of the chief clerk's certifi-
 
 102 THE STUDENT'S GUIDE, &C. 
 
 cate, convey, &c. And let the defendant within the time afore- 
 said pay to the plaintiff the amount, if any, which shall be 
 certified to be due from the defendant in excess of the said 
 principal, interest, and costs as aforesaid, such amount to be 
 certified ; Liberty to apply. (Seton on Decrees, Vol. II.) 
 
 UEO. BARBER, PRINTER, CUR6ITOR STREET, CHANCERY LANE.
 
 AA 000 800 078 8