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 LOS AN^ir-IKS
 
 SERIES OF LETTERS 
 
 TO A 
 
 M^N OF PROPERTY^ 
 
 ON 
 
 SALES, PURCHASES, iMORTGAOES, LEASES, 
 SETTLEMENTS, AND DEX'ISES 
 
 OF 
 
 ESTATES. 
 
 By sir EDWARD I). SUGDEN. 
 
 FBOK THE LONDON KUITION. 
 
 PUBLIsnED Br 
 
 J. S. LITTELL, LAW-BOOKSCLLEK, 
 No. 11, r.EORGE STREET. 
 PniLADELrillA. 
 
 1934. 
 
 671334
 
 r 
 
 M. FITHIAN, PRINTER.
 
 CONTENTS. 
 
 INTRODUCTORY LETTER. p. 1 
 
 LETTER IL - - - p. 3 
 
 OF SALES AMI Pl'HClIASES. 
 
 Diflcrcncc between law and equity — partial execution of a contract — 
 purchaser's remedy where tlie title is had. 
 
 LETTER III. - - - p. 13 
 
 SALES AND PURCHASES CONTINUED. 
 
 Effect of the contract — revokes a will — option to purchase — how pur- 
 chase-money is to he paid — leaseholder huying the fee — effect of co- 
 dicils. 
 
 LETTER IV. - - - p. 22 
 
 SALES AND PURCHASES CONTINUED. 
 
 Moral and legal duties of a seller — misrepresentations — concealments — 
 misdescriptions — incumbrances — value — rent — examination of title — 
 conditions of sale — auctioneer giving credit — huying-in an estate 
 — pulling — return of auction-duty — agent not pursuing his authority. 
 
 LETTER V. - - - p. 34 
 
 SALES AND PURCHASES CONTINUED. 
 
 Purchaser relieved against what incumbrances and defects — purchaser 
 not bound to disclose advantages — false representations by a stranger 
 — inquiry after incumbrances — notice of lease — taking possession — 
 giving notice to trustee — purchase with notice of another's right — 
 implied notice — register acts — employmg the seller's attorney. 
 
 LETTER VI. - - - p. 51 
 
 SALES AND PURCHASES CONTINUED. 
 
 Countermand of a bidding at an auction — verbal contradiction of par- 
 ticulars of sale — agent bidding beyond his authority — j)rincipal deny- 
 ing the authority — agent buying in his own name — purchase in the 
 name of another — purchase i)y a trustee of the trust -i)roperty — pur- 
 chase by an assignee of a bankrupt — purchase or exchange by tenant 
 for life with his own trustees — conveyance in the name of a stranger, 
 or a wife, child, or grandchild — joint purchase — desisting to bid in 
 favour of another person. 
 
 LETTER VII. - - - P- 61 
 
 SALES AND PURCHASES CONTINUED. 
 
 Written agreement essential — letters — proposals — receipt — delivery of 
 rent-rolls, &c. — price of the estate — heir selling his expectancy — 
 price to be fixed by arbitrators — investment of deposite in stock — loss 
 by selling or buying stock — interest — loss by fire or otherwise before
 
 IV CONTENTS. 
 
 the conveyance — dropping of lives, &c. — purchase by mistake of a 
 man's own estate. 
 
 LETTER VIII. - - - p. 74 
 
 SALES AND PURCHASES CONCLUDED. 
 
 Simony — purchase of presentation during vacancy — of the advowson 
 during vacancy — intention to present a particular person — father and 
 child — purchase by a clergyman — bonds of resignation. • 
 
 LETTER IX. - - - p. 79 
 
 OF MORTGAGES, 
 
 Usury — interest made principal — tender of money and notice to pay it 
 off — power of mortgagor — of mortgagee — devises, leases — elections 
 — money belongs to executor — mortgagee in possession — accounts — 
 waste — advowson — mortgagor barred of his redemption by twenty 
 j'ears possession — redemption opened — payment of money presumed 
 by non-payment of interest — redemption by bill in equity — fore- 
 closure — fraudulent mortgagors — transfer — usury — life annuities, 
 
 LETTER X. - - - p. 95 
 
 OF LEASES. 
 
 Leases by parole — written agreement essential — letters — minute of cove- 
 nants — insurance against fire — condition against assignment — pro- 
 perty-tax — lease for 7 or 14 years, by whom determinable — tenant 
 for life — power of leasing — eviction of tenant — fine or bonus — best 
 rent — granting a lease under a power for a man's own benefit — lease 
 of lands, some of which are leased under a power. 
 
 LETTER XI. - - - p. 103 
 
 OF SETTLEMENTS, 
 
 Written agreement essential — letters — fraud — incumbered estate — join- 
 ture and portions — common modes of settlement — provision for a 
 future marriage — pin-money — powers to lease, sell, &c, — sale of 
 estates under a power, and investment of money in stock — right to 
 cut timber — tenant for life pulling down mansion-house — appointment 
 of property to children — execution of powers — hotchpot — covenant 
 to settle estates — covenant to leave a child a fortune equal to the other 
 children — settlement revoking a will — re-publication of a will. 
 
 LETTER Xn. ... p. 129 
 
 OF WILLS. 
 
 Instructions — leaseholds — children's portions — dower — advancement to 
 a child on marriage — copyholds — payment of debts — execution of 
 will — appointment of executor — witnesses — gift of an estate out and 
 out — contingcnces — additional legacies to the same person — re-publi- 
 cation of a will — subsequent will — revocation — giving the heir a 
 shilling — implied revocation by marriage and birth of a child. 
 
 INDEX p. 147
 
 CONCISE VIEW 
 
 OF THE 
 
 LAW ON SALKS, PUUCIIASES, 
 
 LETTER I. 
 
 You complain to me, my dear sir, that, akhoiif!;h utterly ignorant of 
 law, you arc constantly compelled to exercise your own judgment on le- 
 gal points : that you cannot always have your solicitor at your elbow ; 
 and yet a contract for the sale, purchase, or lease of an estate, a loan, or, 
 j)erhaps, even an agreement to maku a settlement on a child's marriage, 
 must be entered into at once ; and it is not until you have gone too far 
 to retreat that you learn what errors you have committed : that you are 
 even at a loss in giving instructions for your will, antl wholly incapable of 
 making the most simple one for yourself ; that, in a word, you have been 
 plunged into a law-suit, which a sliglit previous knowledge might hap- 
 pily "have prevented. It is, untpiestionably, a matter of ^ 
 profound regret, tliat so vast a proportion of contracts re- '- "J 
 spccting estates should lead to litigation. It is equally to be regretted, 
 tliat, however desirous the man of property may be to understand the 
 elTect of his daily contracts, there is no source to whicii he can apply for 
 the desired information. You ask me to remove the cause of your com- 
 plaint. This I may undertake as nfriciiil, without any violation of pro- 
 lessional etiquette ; and I shall therefore readily comply with your 
 wishes. 
 
 In the prosecution of my ])romise, I shall endeavour succcssivelv to 
 point out the precautions to which you .Nhould attend in sellini:, buving, 
 mortgaging, leasing, settling, and devising estates. This I shall do con- 
 cisely, and without encumbering you with many technical phrases. I 
 must premise, that I shall say little which is not warranted by decided 
 cases ; but I shall not burden you with references to them, as they lie 
 scattered in many a bulky volume to which you have not access.
 
 SUGDEN ON SALES, PURCHASES, &C. 
 
 [ *3 ] ^LETTER II. 
 
 To enable you to understand some terms which I must necessarily use 
 in speaking of the remedy for breach of contract, I must explain the dif- 
 ference between law and equity. It is peculiar to the constitution of this 
 country, tliat the law on the same case is frequently administered differ- 
 ently by difiercnt courts ; and that not from a contrary exposition of the 
 sanie rules. It must sound oddly to a foreigner, that on one side of 
 Westminster Hall a man shall recover an estate without argument, on 
 account of the clearness of his title ; and that on the other side of the Hall 
 his adversary shall, with equal facility, recover back the estate. In all 
 other countries the law is tempered with equity ; and the same grounds 
 rule the same cases in all the courts of justice. The division of our law 
 ^ -. into what is termed legal and equitable, arose partly from 
 [ '^'^ -I *necessity, and partly from the desire of the ecclesiastics of 
 former times to usurp a control over the common-law courts. Our legal 
 judges heretofore adhered so strictly to technical rules, although fre- 
 quently subversive of substantial justice, that the chancellors interferred, 
 and moderated the rigour of the law according, as it is termed, to equity 
 and good conscience. The judges in equity soon found it necessary, 
 like the common-law judges,"to adhere to the decisions of their predeces- 
 sors ; whence it has inevitably happened, that there are settled and in- 
 violable rules of equity, which require to be moderated by the rules of 
 good conscience, as much as ever the most rigorous and inflexible rule 
 of law did before the chancellors interposed on equitable grounds. How- 
 ever, as the law of property, is now administered in the different forums, 
 allowino- for the imperfection of all human laws, it exhibits a splendid 
 and comprehensive code of jurisprudence ; and the man will deserve ill 
 of his country who shall ever attempt to confound the rules by which 
 *the courts of law and equity are severally guided. Lord 
 [ ^"^ J Mansfield, than whom a more enlightened judge never graced 
 the bench, and who may be said to have created in this country an un- 
 rivalled system of commercial law, was unhappily too prone to adminis- 
 ter equity in a court of law. The landmarks of tlie law of real property 
 received a severe shock in his time ; and it is painful to reflect, that al- 
 though his sucessors have now subverted the principle of nearly every 
 important decision pronounced by him on the law of property, yet du- 
 ring the period he was chief justice of England there was scarcely a dif- 
 ference of opinion on the bench where he presided, so implicitly were 
 his equitable principles adopted. 
 
 The essential dillerence between law and equity, as it affects the sub- 
 ject ui)on whicli I am writing, consists in this, that equity will give you 
 the thing itself for which you have contracted ; whereas the law can 
 only give you a pecuniary compensation for the dishonesty of the other 
 ^ -. party in not fulfllling his contract. "Thus, if you were to sell 
 L "J your estate to your neighbour Tompson, and were after- 
 wards, disliking the bargain, to refuse to convey it to him, he would 
 have it in bis election to proceed against you either at law or in equity. 
 If he resolved to proceed at law, he would bring an action against you 
 for the recovery of damages for breach of contract, and a jury would
 
 SUGDEN ON SALES, PI'nrKASES, &C. 7 
 
 decide the amount of the daiiiacjcs wliicli y<'ti «)ui;ht to pay ; but still you 
 would retain the estate in tiu! saiiK- niaiuK-r as if you had never contract- 
 ed to sell it. liul if he wishcil to have the estate itself, he would file a hill 
 in e(|uity against you, lor what is termed a specilic performance, or a 
 performance in specie, and the court would not, like a court of law, in 
 effect, let you ofl" the contract on |>aymcnt of damages, hut woidd com- 
 pel you to convey the estate itself to liu' purchaser upon his paying the 
 purchase-money to you. liut of course, as the court com[)(ls you to 
 perform the agreement, there are no damages to pay. Tliis ecjuify is 
 founded upon the principle, that the court considers that as j- ,„ 
 actually •|)erformed which is agreed to he tlone ; so that the ^ ' ' 
 instant after you have entered into a contract to sell an estate, the court 
 considers the estate as belonging to the purchaser, and the purchase-mo- 
 ney as belonging to you, and so vice versa. The terms specific per- 
 formance, and action for breach (f amtract, will now, I hope, he fami- 
 liar to you. I shall iVecpiently he compelled to use them in the course 
 of my correspondence. 
 
 The remedy in equity, I must remark, is open to a seller as well as a 
 buyer, although a seller merely wants the jiurchase-money ; so that if a 
 vendor would prefer getting rid of the property, and receiving the whole 
 of the purchase-money, to keeping the estate, and taking his chance of 
 the amount of damages at law, he may apj^Iy to C([uity for a specific per- 
 formance. 
 
 IJut equity will not interfere in every case. A man acting without 
 good faith cannot require the extraordinary aid of the court, hut will be 
 left to his remedy at law, where his bad conduct will have its full ojiera- 
 tion with a jury. And in *many cases equity will not inter- r *o t 
 fere, although the applicant or plaintiff, as he is called, has ^ J 
 
 acted bond fulc ; for instance, where the estate has by surprise or mis- 
 take been sold at an undervalue. Thus, where the known agent of the 
 seller bid for the estate at an auction on behalf of the purchaser, and 
 other persons present, thinking that he was bidding as a j)uller on the 
 part of the seller, were deterred from bidding, the court, on the ground 
 of surprise, refused to interfere against the seller, who resisted the sale. 
 
 Equity also looks to the substantial intention of the parties, whereas 
 the courts of law adhere more strictly to the letter of the contract. Thus, 
 if an estate is described in a particular of sale to be in good rej)air, and 
 it turns out to be in bad repair, the seller cannot enforce the contract at 
 law ; but equity, if IIk' jjurchaser is not in want of immediate possession, 
 .so that there is lime to tlo the rejKiirs before possession is essential to 
 him, will compel him to take the house upon being allowed a suflicicnt 
 sum to repair it : if a "man sell a leasehold estate, as having ^ ^, 
 70 years to run, and the term is only 6S, the purchaser will L " J 
 in equity be decreed to take the estate with an abatement ; at law, the 
 contract cannot be enforced by the vendor : again, if the time is stij)u- 
 lated for tlie performance of the contract, that sti|)ulation is of the es- 
 sence of the contract at law ; whereas in equity, if^tiie time was not ma- 
 terial, or the party complaining was aware of the cause of the delay at 
 the time of the agreemant, and the other party is not wilfullv lying bv, 
 equity will compel a specilic performance in the same manner as if the 
 party had been ready to perform his agreement by the time stipulated : 
 if the seller cannot make a title to the whole estate sold, the purchaser is 
 
 Vol. III.— 2 II
 
 8 SUGDEN ON SALES, PURCHASES, &C. 
 
 not at law compellable to take the part to which a title can be made ; but 
 in equity, if the part to which a title cannot be made is not necessary to 
 the enjoyment of the rest, equity will compel him to take it, and will 
 allow hini a proper abatement out of the purchase-money. In one case a 
 man purchased a house on the north side of the Thames, which was 
 r *in 1 ^supposed to be in Essex, but which turned out to be in 
 L J Kent, a small part of which county happens to be on the 
 
 other side of the river. Tlie purchaser was told he would be made a 
 churchwarden of Greenwich, when his object was to be a freeholder in 
 Essex ; yet he was compelled to take the house. These instances will 
 sufficiently show the difference, in these respects, between law and 
 equity. The latitude which a court of equity allows itself in enforcing 
 agreements against the letter, and, perhaps, in some cases, contrary to 
 the spirit of the contract, may be narrowed by the express stipulation 
 of the parties. This should always be attended to. 
 
 The ground upon which equity proceeds in the cases which I have 
 mentioned is, that the agreement can be performed in substance. A 
 purchaser cannot be compelled, even in equity, to take an undivided 
 part of an estate, if he contracted for the entirety ; nor a leasehold, 
 however long the term in it may be, or a copyhold instead of a free- 
 hold ; nor if he contract for an estate tithe-free, can he be forced to 
 
 ^ ^ complete *the purchase if the property is subject to tithes, 
 
 L -^ although the seller is willing to allow him a compensation. 
 
 And if you were to buy at an auction a mansion-house in one lot, and 
 farms, &:c. in others, equity would relieve you from the whole contract 
 if no title could be made to the mansion-house. 
 
 From the different rules of law and equity it frequently happens that 
 both courts are resorted to with relation to the same contract. I will 
 give you an instance ol this : Suppose that you had bought an estate of 
 Tompson, and the agreement was to be performed by a day named, and 
 that he made out his title, and was ready to convey to you at the time, 
 but your money was not ready : Tompson might bring an action against 
 you for damages for breach of the contract ; but if the day appointed 
 was not material, you might file a bill against him for what is termed an 
 injunction, and a specific performance ; and equity would accordingly 
 eiijoin him not to proceed further with the action, and would compel 
 him to convey the estate to you upon payment of the purchase-money. 
 
 ,j^ 1 *^^ y°^ ^^^^ ^'^ estate, your title to which proves bad, and 
 
 L -' you cannot cure the defect, equity of course cannot relieve 
 
 the purchaser, unless he choose to take the title with all its faults ; but 
 the purchaser may recover damages against you at law. However, 
 where a man is without fraud incapable of making a good title, a pur- 
 chaser can even at law only recover what are called nominal damages — 
 a shilling, for instance. I dare say that you think it high time this long 
 letter should end. You must, however, preserve your patience, or I 
 shall never make a lawyer of you.
 
 si't;i)KN ON s Ai.h>, riiiciiAsKs, &:c. 
 
 •LETTKK 111. ['151 
 
 In my last letter I mentioned the principle upon which a specific per- 
 formance is decreed, viz. tiiat the court considers that which is agreed 
 to be dotie as actuallv performed ; so that from the time of an ai^nnncnt 
 for sale the estate; in equity l)<'lonu;s to the purchaser, and the purchase- 
 money to the vendor. I hasten to unfold to you the very important 
 conse(|uenccs of this doctrine, to which a sliifjit iuattention on your part 
 might totally overthrow your plans in the disposal of your j)roj)<Tty 
 amongst your family. 
 
 I shall first consider you as a seller. As the estate is no longer your's, 
 if you have devised it, it will not pass to the devisee except as a mere 
 trustee for the purchaser ; and even if you have hy your will directed 
 it to he sold, anil actually given the money to arise hy the sale to a lega- 
 tee, yet if you sell the estate yourself, he will not he entitleil cither to 
 the ])urchase-money or "the estate, liut the j)urchase-money, ^ ,,. -. 
 although not paid, will go to your personal representative in ■- -^ 
 
 the same way as the rest of your personal property. Therefore, where 
 you wish the money to go to the person who would have taken the 
 estate, you should make a bequest of it to him at the time you enter 
 into the agreement. And as you may afterwards abandon the conti*aet, 
 by consent of the other party, or it may be such a contract as a court of 
 equity will not enforce ; you should also provide for a sale of the estate, 
 at all events, in favour of the object of jour bounty. 
 
 It is material here to observe, that if you give a man only an oj)tion 
 to purchase your estate, yet if he accept it, even after your death, the 
 nature of the property is changed. I think that I can make this quite 
 plain to you. You have now both land and money. I will suppose that 
 you have by your will given your estate to your eldest son, and the 
 money amongst your younger children. You then grant a lease of the 
 land to Tomjison, and give him an option to ])urchasc the estate for 
 20,000/. at any time within ten *years. You would think, ^ ^^ -. 
 no doubt, that you had secured the estate to your eldest son. L J 
 
 But, on the contrary, if you die before the end of the 10 years, and 
 Tompson, after your death, elect to purchase the estate, the money 
 would go to your younger children, and your eldest son would be 
 stripped of all his fortune ! To obviate this, if you should enter into a 
 contract after making your will, you must, by a codicil give the money 
 to arise by sale to the person to whom you have given the estate, and 
 then he will be secure of the property : and if you make your will after 
 the contract, expressly declare that your devisee shall have the purchase- 
 money, if the lessee make his option to take the estate. 
 
 I shall now consider you as a buyer. The estate is your's from the 
 moirient the contract is executed ; antl the purchase-money must be paid 
 out of your personal i)ropei-ty. The consequence of efpiity thus deem- 
 ing the estate to belong to you, is, that you may dispose of it by your 
 will, or otherwise, even before the convejancc, just the same as if you 
 had paid the *purchase-n\oney, and the estate were actually . , 
 
 conveyed. You must, therefore, upon jMirchase, always ^ 
 reflect that your disposable cash is decreased by the amount of the pur-
 
 10 SUGDEN ON SALES, PURCHASES, &C. 
 
 chase-money ; and that, unless you otherwise dispose of it, the estate 
 will go to your heir. A moment's reflection will show what serious con- 
 sequence may follow from a neglect on your part ; for suppose you pur- 
 chase an estate with the 50,000/. in the funds, which you have given by 
 your will to your younger children, and which constitutes the bulk of 
 your personal property, and sliould neglect to devise the estate, the 
 money must go to jjay for it, at the expense of your younger children, 
 who would be left nearly destitute, whilst 3'our eldest son, to whom the 
 estate would descend, would have an overgrown fortune. Distressing 
 cases of this kind are continually happening. 
 
 If your personal property undisposed of is not sufficient to pay for 
 the estate, it would be better, perhaps, to direct it to be sold again, and 
 the first purchase-money to be paid out of the money produced by the 
 .^,- -| re-sale. You must *remember that in devising or sufl'ering 
 L -^ an estate to descend which you have purchased and not paid 
 
 for, your devisee or heir will be entitled to have the purchase-money 
 paid out of your personal property, although you may have given it all 
 to another person. A most vexatious case once happened : A younger 
 brother agreed to purchase an estate from his elder brother ; the convey- 
 ance was accordingly executed, but the money was not paid. The 
 younger brother then made his will, giving his property to his brother, 
 subject to legacies, and made him executor. The will, however, was 
 not executed so as to pass the estate. The younger brother died, and 
 the elder brother took the estate as his heir, and also paid himself the 
 purchase-money out of the personal property ; by which he disappointed 
 the legatees, who lost their legacies, whilst he got both the estate and 
 the purchase-money for it. 
 
 On the other hand, you must guard against the chance of the estate 
 not being ultimatel}- conveyed according to the agreement. For if 
 r *ifi 1 ^equity should for any reason refuse to execute the contract, 
 L -^ or a good title cannot be made, the person to whom )-ou 
 
 have given, or sufiered the estate to descend, will not be entitled to have 
 it paid for out of your personal property, although he may be Avilling to 
 accept such a title as can be made to it ; because equity will not inter- 
 fere unless there is a binding contract at the death of the party. You 
 should, therefore, provide for the purchase of another estate, of equal 
 value, for your devisee or heir, in case the one purcliased should not be 
 conveyed to him. I must, however, remark, that if by your uill you 
 direct an estate to be bought, fo)^ ivhich you have not actually con- 
 tracted, and the estate cannot be bought according to your direction, 
 yet equit}' will decree the money to be laid out in the purchase of ano- 
 ther estate for the benefit of the devisee. 
 
 Before I close this letter, I shall give you a caution as to your Hamp- 
 shire estate, wherein you have only a long term of years, which you 
 P ^.f, -. have bequeathed to your second son, John. You *tell me 
 L -I that you arc about to purchase the fee, or, as you express it, 
 
 to buy the estate out and out. Now the effect of a conveyance of the 
 fee to you will clearly be to put an end to the term, and to give you the 
 entire interest in the estate discharged from the lease, and so the bequest 
 to John would be defeated ; and I fear that the efiect will be the same, 
 immediately after the contract is executed, and even before the convey- 
 ance. This, therefore, must be provided against b}^ a codicil to your
 
 srcn .\ ON SALES, prnciiASES, &c. 11 
 
 will. Aiul ii) Rivina; this estate to Jolin, aflrr yon have agreed to buy 
 the fee, hut he-lore tlie ronveyanoe, you must ^0 a strp farther, ami ex- 
 pressly declare that he shall have the lease, allhouu;h he cannot ohlaiu 
 the fee. For if you show an intention to give him the fee, he woulil 
 not, without an express provision, be entitled to the lease, unless he 
 could get the fee also. Tins actually happened in a ca.sc where the per- 
 son who aj!;recd to sell the fee was not owner of it, and the owner sold 
 it to another jierson. 
 
 I nuist remind you that any estate which you "may here- „ ^^ , 
 after pinrhase will not ])ass hy your |)rescnt will, hut will L ~ J 
 descend to your heir at law, although, indeed, if you expressly dcviso 
 all the estates of which you may die seised, and make other provisions 
 by your will for your heir at law, equity would compel him to elect to 
 take under or in ojiposition to the will. If he elect to take under it, ho 
 must convey the after-purchased estate to your devisee. If he take in 
 opposition to your will, the after-purchased estate will of course belong 
 to him, but the benefits provided lur him by your will will go to the 
 disappointed devisee. 
 
 If you do not intend to dispose of an after-purchased estate from your 
 heir at law, you must be cautious not to execute any codicil to your will 
 in the presence of three witnesses without proper advice ; because such 
 a codicil, although you merely give a money-legacy by it, may be held 
 to pass the estate under general words in your will. You must be satis- 
 fied with this caution without the reasons that suggest it. 
 
 But where you have devised the estate after *the agree- ^ *^. , 
 ment for purchase of it, but before it is actualli/ conrei/eU L " J 
 to i/ou, I would advise you to republish your will after the conveyance 
 is executed, for it may happen that the mere form of the conveyance 
 may operate as a revocation of your will in this respect. 
 
 ^LETTER IV. [ *22 ] 
 
 I HAVE not yet written to you upon the precautions to be observed 
 on the sale and purchase of estates as between yourself and the other 
 party. This I shall now do ; and first, as to your conduct and duty as a 
 seller. 
 
 I will not argue with you, whether in selling an estate you are hound 
 in conscience to disclose all its defects to tiie purchaser. Moralists, as 
 you know, agree that a seller is bound to do so, although the |)rinciplc 
 lias been controverted. I shall content myself with stating how the 
 law on this subject stands. 
 
 If the person to whom you sell was aware of all the defects in the 
 estate, of course he cannot impute bail faith to you in not repeating to 
 him what he already knew ; neillier will you be liable if you were 
 yourself ignorant of the slate of the jjroperty. Ami even if the pur- 
 chaser was at the time of the contract ignorant of the deficls, . ,,-,.^ -, 
 *and you arc acquainted with them, and did not disclose L 
 your knowledge to him, yet he will be without a remedy if they were 
 
 2 II 2
 
 12 SUGDEN OX SALES, PURCHASESj &C. 
 
 such as might have been discovered by a vigilant man. The disclosure 
 of such defects is at most what the civilians term a duty of imperfect 
 obligation. Jlgilantihris non (lonnienlibiis jura siibvemiint is an 
 ancient maxim of our law, and forms an insurmountable barrier against 
 the claims of an improvident purchaser. If, however, you should 
 during the treaty inchistriously prevent the purchaser from seeing a 
 defect which might otherwise have easily been discovered — for example, 
 if you carefully conceal from him the necessary repairs of a wall to pre- 
 serve the estate from the sea — )'0u certainly could not obtain a specific 
 performance against him ; and I conceive that you could not even main- 
 tain an action for breach of contract; or, in other words, the contract 
 would not bind the purcliaser either at law or in equity. 
 
 So if there is a latent defect in your estate, of which you are aware, 
 r *oA 1 ^^^^ which the purchaser *couId not by any attention what- 
 L ~ -' ever possibly discover, you are, it seems, bound to disclose 
 it to him, although you should sell the estate expressly subject to all its 
 faults. Upon this point, however, the authorities are divided. 
 
 If you actually describe the estate in the particulars of sale or agree- 
 ment, you will of course be bound by the description. And if you 
 misdescribe the estate with a fraudulent intent, it is unimportant that 
 you expressly stipulated that an error in the description of it should not 
 annul the sale. This was decided in a late case, where the estate was 
 described to be about a mile from a borough-town ; and it was pro- 
 vided in the conditions of sale that an error in the description should 
 not vitiate the sale. It turned out that the estate was between three and 
 four miles from the place, and, therefore, the purchaser resisted the con- 
 tract, and brought an action for recovery of the deposite which he had 
 paid. It was left to the jury to say, whether this was merely an erro- 
 neous statement, or the misdescription was wilfully introduced to make 
 r *ot; n '^^^ \dA\^ appear more valuable from being in the neighbour- 
 •- " J hood of a borough-town. In the former case, the contract 
 remained in force ; but in the latter case, the purchaser was to be re- 
 lieved from it, and was entitled to recover back his deposite. The pur- 
 chaser had a verdict ; so that the jury must have thought the misdescrip- 
 tion fraudulent. 
 
 But although you misrepresent the nature of the propert}'-, yet the 
 purchaser cannot be relieved if he bought with full knowledge of the 
 actual state of it : thus, if you describe an estate to be in a ring-fence, 
 and the buyer knew that it was intersected by other lands ; or you war- 
 rant a house to be in perfect repair, and he knew that it was without a 
 roof or windows, he cannot in either case object that the property does 
 not agree with the description of it. 
 
 The same rules apply to incumbrances on the estate, and defects in the 
 title to it, as to defects in the estate itself You must either deliver to 
 the purchaser the instrument by which the incumbrances were created, 
 P .f^c -I oi' on which the defects '^arise, or you must acquaint him 
 ■- -' with the facts, if tiiey do not appear on the title-deeds. If 
 
 you neglect this, you are guilty of a direct fraud, which the purchaser, 
 however vigilant, has no means of discovering. And if your attorney 
 keep back any incumbrance, he as well as you will be answerable for 
 the fraud. 
 
 Thus I have told you what truths you must disclose. I shall now tell
 
 SUCDEN ON SALES, PmCHASES, &C. 13 
 
 you what falsehoods you may utter in regard to your estate. In the first 
 place, you may falsely praise, or, as it is vulgarly termed, pufT your 
 property ; for our law, followinp; the civil law, liolds that a purchaser 
 ought not to rely upon va^;ue expressions uttered hy a vendor at random 
 in praise of his property. And it has even hecn tiecided, that no rehef 
 lies ai:;ainst a vendor for havinj; aflirmcd, contrarily to truth, that a per- 
 son hid a particular sum for the estate, although the huver was therehy 
 induced to purchase it, and was dectuved in the value. So yon may 
 allirm the estate to he of any value which you choose to name, for it is 
 deemed a purchaser's own folly to credit a 'hare assertion ^ ^ .,_ , 
 like this. Besides, value consists in judgment and eslima- L *" J 
 tion, in which many men diflbr. 
 
 But if you should allirm that the estate was valued, hy persons of 
 judgment, at a greater price than it actually was, and the j)urchaser act 
 upon such misrepresentation, you coidd not enforce the contract in 
 equity. Nor can you with impunity misstate the quantum of rent |)aid 
 for the estate, hccausc that is a circumstance within your own know- 
 ledge : the purchaser may have no other source of information ; or your 
 tenants, if he were to apply to them, might comhine with you, and so 
 misinform and cheat him. And the purchaser will have a remedy 
 against you for the fraud, although he did not depend upon your state- 
 ment, hut inquired further. 
 
 \Vhnt 1 have hitherto said applies mostly to your own conduct. I 
 have still a few cautions to give you in regard to those tilings which 
 must he performed i)y your agents. 
 
 Although it is the usual practice, yet you should never permit the 
 particulars and conditions *of sale to he prcj)arcd hy an ^ ,^_ -. 
 auctioneer. Auctioneers know nothing of the title, and con- L " J 
 tinual disputes arise from their misstatements. When a man has an 
 estate to sell, he generally goes first to an auctioneer; hut I advise you 
 to go to an attornev. 
 
 If the estate which you intend to sell has hecn in your family for a 
 length of time, or the title has not hecn recently investigated, it would 
 be prudent to have an abstract of it submitted to counsel in the first 
 instance. This will enable you to clear up any objection which occurs, 
 before j'ou enter into a contract for sale of the estate. By this precau- 
 tion you will prevent any delay on your part which might impede the 
 completion of the sale by the time stipulated ; and you will, in many 
 cases, avoid the expense neccssarilv attending tedious discussions of a 
 title. Another advantage of this measure is, that if ihc-re should be any 
 defect in the title wiiicii cannot be cured, it will be known only to your 
 own agents and counsel. It is, believe me, of the utmost importance to 
 keep defects in your *title from the knowledge of persons ^ ».,, , 
 not concerned for you. It has frequently haj)pened, that L ~ J 
 persons concerned for purchasers have communicated fatal defects in a 
 vendor's title to the person interested in taking advantage of them, by 
 which many titles have been disturl)e<l. 
 
 It woulil be useless to state to you what provisions .should be con- 
 tained in the j)articulars and conditions of sale. They must be prepared 
 by your solicitor. I may, howe^•er, observe, that the nature of the |)ro- 
 perty should be correctly stated, and that where the estate is held under 
 the same title, and sold in lots, some provision should be made as to the
 
 14 SrCDEX ox SALES, PURCHASES, &C. 
 
 expense of copies of deeds, to which all the purchasers would otherwise 
 be entitled at your expense ; a burden that has frequently considerably 
 reduced the amount of the purchase-money. It is generally provided 
 that the auction-duty sjiall be paid in moieties by the vendor and pur- 
 chaser. If no stipulation is made to it, the whole will fall upon you. 
 
 ^„^ -. If your auctioneer, without an authority for 'that purpose, 
 - J give credit to the purchaser, or accept a security for the de- 
 
 posite, it is entirely at his own risk — you may recover the money from 
 him. But where the deposite is directed to be paid to the auctioneer, 
 he is entitled to retain it until the contract is completed, without paying 
 interest for it, because he is considered as a stakeholder or depositary. 
 To obviate this, where the sum is large, it may be provided that the de- 
 posite shall be invested in exchequer bills. You should be cautious 
 whom you employ as an auctioneer, for it is not clear that any loss by 
 his insolvency would not fall upon you. 
 
 If you, or your agent, buy in the estate at an auction, no auction-duty 
 will be payable ; but before you venture to bid, you must ascertain that 
 the proper notices required in this case by act of parliament have been 
 given to the auctioneer ; for otherwise you must pay the duty on your 
 bidding, in the same way as if you had actually purchased another's 
 estate. If the auctioneer state to you, before witnesses, that he has done 
 i.r^-1 -1 ^vhat is necessary to avoid payment of *the duty, you will 
 L "^ -'be safe ; and if he has neglected, or even mistaken the pro- 
 per means, he himself will be liable to it. With the above precaution, 
 you may, without public notice, appoint a person to bid for you at the 
 sale, in order to prevent the estate from being sold at an undervalue. 
 This is generally termed puffing. Cicero in his Offices declares his opi- 
 nion, that a vendor ought not to appoint a puffer to raise the price ; nor 
 ought the purchaser to appoint a person to depreciate the value of an es- 
 tate intended to be sold. And Huber, the civilian, lays it down, that if 
 a vendor employ a puffer, he shall be compelled to sell the estate to the 
 highest bond fide bidder, because it is against the faith of the agreement 
 by which it is stipulated that the highest bidder shall be the buyer. 
 Great contrariety of opinion has prevailed in our courts as to the legality 
 of appointing a puffer ; but it is now settled, that you may employ a 
 person to prevent a sale at an undervalue. But if you go beyond this, 
 l- ^-^ -, and send a puffer to take advantage of the eagerness of ^bid- 
 L " ^ clers to screw up the pi'ice, that will be deemed a fraud, and 
 the sale will not be binding on the purchaser. Neither can you appoint 
 more than one person to bid. It is proper, that a man should be per- 
 mitted to appoint a person to guard his interests against the intrigues of 
 bidders ; but it does not follow that he may appoint more than one. 
 The only possible object of such a proceeding is fraud. An auction so 
 constituted is simply a mock auction. Your case would be oljnoxious to 
 /.he same rule were you to appoint even one puller, with unlimited 
 power to take advantage of the eagerness of bidders to increase the 
 biddings. And if you state in the particulars, or advertisements, that 
 the estate is to be sold without reserve, the sale would be void against a 
 purchaser if any person were employed as a puffer, and actually bid at 
 the sale. 
 
 If the estate is sold at the auction, but your title prove bad, so that the 
 purchase goes off, you will be entitled to a return of the auction-duty.
 
 SUODKN OV SALES, PIRCHASES, &C. 15 
 
 This is provided for liy the auclion-cUity "acts ; hut the pro- ^ «„„ -• 
 vision is loo frci|iieiUly a deatl Ictlcr, owiiij; to the vrry ^ J 
 
 strict evidence wliich is required hy the commissioners of excise, of 
 the selirr's inahilily to make a title. It has fri.cpiently lia|)|)ened, that 
 altliouj^li a man was bond fide incapahle of making; a title, and the sale 
 was not completed, yet he has, in direct opposition to the jjrovision 
 which 1 have referred to, been refused a return of the duty. 
 
 If you employ an ai^cnt to sell an estate by j)ul)lie auction, a sale liy 
 jirivate contract is not witliin his authority ; nor does it seem to he ma- 
 terial that the estate sold for more than tin- ])rice lix(!d, for it mi^lit have 
 letcheil a still i2;reatcr sum at a public auction. liul if an a<j;ent is di- 
 rectetl to sell an estate by |)rivate contract, and he ilispose of it by pub- 
 lic auction lor a larger sum than the principal re(piire(l, I conceive, that 
 in most cases, the sale would be binding on tlie principal. 
 
 * LETTER V. [ *34 ] 
 
 I sitAi.K now dismiss you from your character of a sellei", and treat 
 you as a buyer. 
 
 In runninij; over, in my last letter, the misstatements which a seller 
 may with impunity make, I of course was lookinii; to the situation in 
 wiiicii 1 now consider you to stand ; for when you know how far an un- 
 l)rinci|)led vendor ina}i with safety go, you can guard against fraud by 
 not trusting to misrepresentations which arc made without fear of retri- 
 bution. 
 
 With the exception of a vendor, or his agent, suppressing an incum- 
 brance, or a defect in the title, it seems clear that a purcliaser cannot ob- 
 tain relief against him iov any incumbrance or defect to which his cove- 
 nants do not extend ; anil therefore if a jnirchascr neglect to have the 
 title investigated, or his counsel overlook any defect in it, he has no 
 I'cmcdy beyond what the seller's covenants may aflord. It has even 
 *been laid down, that if one sell another's estate, without ^ ,^- -, 
 covenant or warranty for the enjoyment, it is at the peril of ^ -* 
 
 the purchaser, because he might have lookeil into the title ; and there is 
 no reason he should have an action by the law, where he did not provide 
 for himself. I may reniark, by the way, that as counsel, that is, barris- 
 ters, iiave no remedy for recovery of their fees, which are consiilered 
 purely gratuitous and honorary, ihey are not deemed liable to their 
 clients for any blunders which they commit, however gross. But it is 
 otherwise as to attorneys ; they may maintain an action for their fees ; 
 and if a purchaser is damnified by the gross want of skill in an attorney, 
 or by his neglect to search for incumbrances, he may recover at law 
 against the attorney for any loss which he may sustain. But where the 
 attorney has acted under the advice of counsel he is safe. To return : — 
 You will collect from the observations in my last letter, that as a pur- 
 cliaser you are entitled to relief on account of any latent defects 
 in the estate, or the title to it, which were not disclosed to you, and
 
 16 SrGDEX ON SALES, PURCHASES, &C. 
 
 ^ , *of which the vendor, or his ae;ent, was aware. In addition 
 
 t ^^ J to this protection afforded by the law, you, as a provident 
 man, ought not to trust to the description of the vendor, or his agents, 
 but to examine and ascertain the quality and value of the estate your- 
 self, and you should have the title to it inspected by counsel. 
 
 I may here remark, that althongh a vendor is bound to tell the pur- 
 chaser of latent defects, yet a purchaser is not bound to inform the 
 vendor of any latent advantage in the estate. — If you were to discover 
 that there was a mine on an estate, for which you were in treaty, you 
 would not be bound to disclose that circumstance to the vendor, although 
 you knew that he was ignorant of it. Nor need you as a purchaser ad- 
 here closely to truth in procuring the estate at as cheap a price as you 
 can. In a iate case, where a false statement by a purchaser was held not 
 to give the seller a right of action. Lord C. J. Mansfield said, that the 
 question was, whether the purchaser was bound to disclose the highest 
 r »o7 -1 price he chose to give, or *whether he was not at liberty to 
 \- '^' ^ do that as a purchaser which every seller in this town does 
 every day, who tells every falsehood he can to induce a buyer to pur- 
 chase. 
 
 In regard to false representations to a purchaser of value or rent, I 
 must still observe, that the same remedy will lie against a person not in- 
 terested in the property, for making such false representations as might 
 be resorted to, in case such person were owner of the estate ; but the 
 statement must be made fraudulently, that is, with an intention to de- 
 ceive ; whether it be to favour the owner, or from an expectation of ad- 
 vantage to the party himself, or from ill-will toward the other, or from 
 mere wantonness, is immaterial. And in these cases, to use the language 
 of Sir William Grant, it will be sufficient proof of fraud to show, first, 
 that the fact as represented is false : secondly, that the person making 
 the representation had a knowledge of a fact contrary to it. The injured 
 party cannot dive into the secret recesses of the other's heart, so as to 
 P ^Kn„ -| know whether he did or *did not recollect the fact ; and 
 •- -^ therefore it is no excuse in the party who made the repre- 
 
 sentation to say, that though he had received information of the fact, he 
 did not at that time recollect it. 
 
 And on the same ground, if a person having aright to an estate, per- 
 mit, or encourage a purchaser to buy it of another, the purchaser will be 
 entitled to hold it against the person who has the right, although a mar- 
 ried woman, or under age. And the same rule has ever been extended 
 to a case where the representation was made through a mistake, as the 
 person making it might have had notice of his right. 
 
 If you suspect that any person has a claim on an estate which you have 
 contracted to buy, you should, before proper witnesses, inquire the fact 
 of him, at the same time stating that you intend to purchase the 
 estate ; and if the person of whom the inquiry is made have an incum- 
 brance on the estate, and deny it, equity would not afterwards permit him 
 to enforce his demand against you. The witnesses in this case should 
 r *an ^ ^'t^'^R ^ ^^ote of what passes, because a witness may refresh 
 L ■ J his memory by looking at any paper, if he can afterwards 
 swear to the facts from his own memory. 
 
 Where it is stated upon a sale, even by auction, that the estate is in 
 lease, and there is no /nisreprescntation, the purchaser will not be enti-
 
 SrCDEN ON SALE!*, PrRCHASES, &C. 17 
 
 tied to any compensation, allhoiii^h tlu re are covenants in the lease con- 
 trary t<j the ciislont ol' the comilry, l)ecaiise whoever huys willi notice of 
 a lease is lielcl conusant of all its contents. If therefore you have notice 
 of a lease, or even that the estate is in the occupaticui of a tenant, you 
 should not sij^n a contract for the purchase of the estate until your soli- 
 citor has seen and read the leases, unless the vendor will stipulate in 
 writinj^ that they contain such covejiants only as are justilied hy the cus- 
 tom of the country. And even such a stipulation is not (piite satisfacto- 
 ry, for there is frequently j^reat dillercnce of opinion as to what is the 
 custom of any particular place. 
 
 Where dilVicullies arise in making out a good 'Utlo, you ^ , 
 sliouKI not take jiossession of the estati' until every ohslacic *■ * J 
 is removed. Purchasers frecpienlly take this stejj, under an impression 
 that it gives them an advantage over the vendor, hut this is a false notion : 
 such a measure would, in some cases, he deemed an accej)tance of the 
 title. If, however, the objections to the title he remediable, and you 
 should be desirous to accc])t possession of the estate, you may in most 
 cases venture to do so, provided the seller will sign a memorandum im- 
 porting that your taking j)ossession shall not be deemed a waiver of the 
 objections to the title. And althougli it is not atlvisable to do so, yet 
 you may, with the concurrence of the seller, safely take possession of the 
 estate at the time the contract is entered into ; because you cannot be 
 held to have waived objections of which you were not aware ; and if ulti- 
 mately the purchase cannot be completeil on account of objections to the 
 title, you will not be bound to j)ay any rent for the estate unless the oc- 
 cupation of it prove beneficial to you. 
 
 •Where you purchase any equitable right, of which im- |- ^ » 
 
 mediate possession cannot be had — for instance, money in ^ J 
 
 the funds, standing in the names of trustees, in trust for a father, for life, 
 and after his decease, for his son ; and you buy the son's interest during 
 the father's life-time, you should, previously to comjileting the contract, 
 inquire of the trustee, in whom the property is vested, whether he has 
 bad notice of any incumbrance. If the trustee make a false rej)resenta- 
 tion. equity would compel him to make good the loss which you may sus- 
 tain in consequence of the fraudulent statement. When the contract is 
 completed you shoidd give notice of the sale to the trustee. 'J'hc notice 
 would certainly affect his conscience, so as to make him liable in equity 
 should he transfer the property to any subsequent purchaser ; and would 
 also give you a preferable title to any former purchaser or incumbrancer 
 who had neglected the same precaution. The .safest course, however, 
 is to prevail upon the trustee, if you can, to join in the assignment to 
 you, or if he decline to "join, to allow you to indorse on his ^ „ .,, -. 
 settlement a memorandum of the assignment to you. L "J 
 
 If you should purchase, with notice of the claim of another, although 
 he has not a conveyance, and you actually procure the esLate to be con- 
 veyed to you, yet you will be bound in equity by the notice ; for it is a 
 general rule in equity, that a purchaser with notice is bound to the same 
 extent, and in the same manner, as the person was of whom he purchased. 
 I will give you an instxmcc of this : You know that I have lent Tompson 
 1,000/., and that he has agreed to secure it by a mortgage upon his estate. 
 Now lliis gives me merely an equity, that is, a right to call upon him in a 
 court of equity to execute a mortgage to me. Till that is done, the entire
 
 18 SUGDEX ON SALES, PURCHASES, &C. 
 
 ownership at law remains in him. If you should purchase the estate from 
 him before the mortgage is executed, without notice of my loan, you 
 would hold the estate discharged from it ; for by the conveyance you 
 would o-ct the legal estate, and by the contract the equitable estate ; 
 
 ^ ^'^ , so that having both law and equity on your side, you 
 t "^^ J *would prevail over me who have equity only. For it is a 
 rule, never departed from, that a bond fide purchaser for a valuable con- 
 sideration, and without notice, shall not be affected in equity. This has 
 been carried so far, that a purchaser has been allowed to take advantage 
 of a deed relating to the estate, which he stole out of a window by means 
 of a ladder. I coul* hardly, however, advise you to be so bold at the 
 present day. But in my case, as you have notice of the loan, you would 
 be bound by it, although you procure the legal estate, and equity would 
 accordingly compel you to execute a mortgage to me pursuant to Tomp- 
 son's agreement. In all these cases, therefore, you should stop your 
 hand. 
 
 Notice, I must observe, before payment of all the purchase-money, 
 although it be secured, and the conveyance actually executed, or before 
 the execution of the conveyance, notwithstanding that the money be 
 paid, is equivalent to notice before the contract. 
 
 It is not necessary that you should have *express notice ; 
 L '*'* J for instance, in my case it is not essential that you should 
 actually see and read Tompson's agreement with me ; for equity holds 
 many acts to amount to constructive notice to a purchaser ; and construc- 
 tive notice is equally binding with actual notice. Against some of these 
 you cannot guard by any precaution, but there is one of which I must 
 warn you. Notice to your counsel, attorney, or agent, would be notice 
 to you, for otherwise, to use Lord Chancellor Talbot's w^ords, a man 
 who had a mind to get -another's estate, might shut his own eyes, and 
 employ another to treat for him, which would be a manifest cheat. And 
 the same rule prevails, although the counsel, attorney, or agent, be the 
 vendor, or be concerned for both vendor and purchaser. The notice, 
 however, must be in the same transaction, because, as Lord Chancellor 
 Hardwicke observed, if this were not the rule of the court it would be of 
 dangerous consequence, as it would be an objection against the most able 
 counsel, because of course they would be more liable than others of less 
 ^ eminence to '^have notice, as they are engaged in a great 
 
 L -J number of affairs of this kind. 
 
 It can seldom happen, that your attorney, or agent, has notice of any 
 incumbrance on an estate which you intend to purchase, unless he is 
 employed by the seller, as well as you. Attorneys are frequently em- 
 ployed on both sides, in order to save expense. This practice has been 
 discountenanced by the courts, and is often productive of the most seri- 
 ous consequences ; for it not rarely happens, that there are incumbrances 
 on an estate which can only be sustained in equity, and which will not 
 bind a purchaser who obtains a conveyance without notice of them. 
 Now, as I have just mentioned, notice to your agent, although concerned 
 for the vendor as well as you, is treated in equity as notice to you ; and 
 therefore, if the attorney is aware of any incumbrance you will be bound 
 by it, although you yourself were ignorant of its existence. 
 
 And by employing the vendor's attorney you may even deprive your- 
 •elf of the benefit to be derived from the estate lying in a register coun-
 
 SUCDEV ON SALF.x, PmrnASES, &c. 19 
 
 ly ; *thc roo^lstpr may be soarrliod, ami no innimhranro ap- r •,/« -t 
 pear ; yet if the attorney have notice of any unrcnistcred ^ ■' 
 
 incumbrance, equity will assist the incumbrancer in establi^binp his de- 
 mand af^ainst yon. I must explain to you that the repisler counties are 
 Middlesex and York : and all instruments aflectini; lands in those coun- 
 ties are required by acts of parliament to be registered in ofllees kept for 
 that j)urpose, and they are declared to be bindinji, ;H*cordiii^ to their 
 priority of registry. Hut although your conveyance shotdd be dulv re- 
 2;i.st»-red, yet if you had notice of a prior unre^jistered conveyance, equity 
 would hold you liable to it; for the acts of parliament were only intended 
 to give you notice of prior deeds ; and if you have notice independently of 
 the acts, the intent of the legislature is answerable. 
 
 Another powerful reason why you shoidd not employ the vendor's 
 attorney is, that if the vendor be guilty of a fraud in the sale of the estate, 
 to which the attorney is privy, you, although it be proved that you were 
 innocent, will hv responsible "for the miscomluct of your ^ i, ,. , 
 agent. In one case a purchaser lost an estate, for which he L ' ^ 
 
 gave nearly ^,000/., merely by employing the vendor's attorney, who 
 was privy to a fraudulent disposition of the purchase-money. 
 
 I may observe, that it is now under consitleration whether there should 
 not be a general registry throughout England. This plan would entail 
 a great and certain expense on property for a very uncertain benefit. I 
 have often directed my attention to the expediency of a general registry; 
 and my settled conviction is, that it would imt be advisal)le. I once, at 
 the rerpicst of a friend, settled a proposed bill for establishing a general 
 registry, but I at the same time stated that I should use my best exer- 
 tions to prevent its being passed into a law. A general registry wan- 
 tonly exj)oses the concerns of all mankind ; and, by the negligence of an 
 agent, a purchaser or mortgagee may lose the estate, if the seller or mort- 
 gagor fraudulently sell or mortgage to another person whose deed is the 
 iirst registered, and questions upon the priority of registered deeds often 
 lead to litigation. The *exj)ense of registry is considerable ; ^ j, ^ , 
 and if register-ofTiccs were once established througiiout the L -' 
 
 kingdom, with all the patronage annexed to them, they never could be 
 got rid of, however objectionable they might prove, without at least the 
 country's paying a heavy compensation for the loss to the ollicers in 
 possession. If the law made every unregistered deed void, it would be 
 as mischievous a law as ever was passed. No registry act has vet gone 
 beyond the purpose of protecting purchasers who register their (leeds 
 (fi^ainsf prior deeds not 7'egistered. No law can impart activity and 
 intelligence to idle and ignorant persons ; and therefore many clients 
 would i)c ruined, without any neglect of their ov/n, by tJie oj)eration of 
 the pro|)oscd law. It has been said, if, under such a law, a man were 
 to purchase and pay for an estate, and his conveyance were not registered 
 within the time prescribed, it would be void. The land therefore would 
 revert to the seller, and he would have back the estate, and also keep the 
 price jiaid to him. Woulil this be en»lured ? 
 
 "It has been said, that the disclosure of private concerns ^ . , 
 
 can scarcely be insisted on as an objection, in a country ^ ' -I 
 
 where wills, which contain almost exclusivelv their general arrangement, 
 arc rendered public documents. Hut that this in eO'ect is avoided by 
 adopting a registration of the substance only. Now the substance of 
 
 Voh.'lll.— 2 I
 
 20 SUGDEX ON SALES, PURCHASES, &C. 
 
 men's deeds is precisely what they wish to keep secret. Dead men's 
 wills cannot be compared to living men's deeds. It is one thing to 
 know what I possess under a will, and another how I dispose of it. 
 Mere curiosity, I am told, constantly leads great numbers pf persons to 
 take the trouble — and a crcat labour it is — to inspect the wills at Doctors 
 Commons. If, again, all deeds were directed to take effect according to 
 priority of execution, a subsequent purchaser or mortgagee could never 
 be sure that there was not some prior deed which might be registered 
 after his, and yet have precedence over it. If, on the other hand, all 
 deeds were to take efi'ect according to priority of registration, the delay 
 ^ of a prior purchaser or *mortgagee might, by rendering void 
 
 t J his deed, prove highly advantageous to a subsequent pur- 
 
 chaser or mortgagee. The register would never show the existing state 
 of incumbrances'on an estate, by which a purchaser or mortgagee would 
 be bound, unless priority of registration were the rule, and that very 
 rule would place many men's property for a time in jeopardy. 
 
 [ -51 ] *LETTER VI. 
 
 I HAVE not yet dismissed you from your character of a purchaser. 
 In bidding at an auction, you may countermand your bidding at any 
 time before the lot is actually knocked down ; because the assent of both 
 parties is necessary to make the contract binding ; that is signified on the 
 part of the seller by knocking down the hammer. Every bidding is 
 nothing more than an offer on one side, which is not binding on either 
 side till it is assented to. If a bidding was binding on the bidder before 
 the hammer was knocked down, he would be bound by his offer, and 
 the vendor would not, which can never be allowed. 
 
 At a sale you need onl)' look at the particulars and conditions. An 
 auctioneer cannot contradict them at the time of sale by a verbal state- 
 *eo 1 rnent ; ^although, perhaps, you would be bound, if he could 
 L "J bring home to you particular personal information of it. A 
 
 mere general statement to the company will not however affect you, 
 either at law or in equity. I need not suggest to you how far a man 
 may, consistently with good faith, take advantage of the omission in the 
 particulars, if he distinctly understood the verbal statement at the sale. 
 
 If you employ a person to bid for you, and he bid more for the estate 
 than you empowered him to do, he himself would be liable, but you 
 would not. But unless you expressly limited him as to price, it seems 
 that you would be bound. 
 
 If after employing a man to bid, you should be so dishonest as to deny 
 the authority (in seeking instruction you must not quarrel with your 
 master's mode of conveying it,) the agent, unless he could prove the 
 commission, would be comi)clled to complete the purchase himself; but 
 he would afterwards, by filing a bill in chancer}^, be able to put you to 
 r «co 1 your oath as to the transaction ; *and if you denied the au- 
 I- -' thority, he might have the question tried by a jury ; and if 
 
 you admitted, or he could prove the authority, you would be compelled
 
 SUCDEX ON SALES, PURCnASE-S, &.C. / 
 
 to lake the estate at the sum which yon authorized him to hid for it. 
 need not tell you, tlial l)y lalsely denyint:; the authority in your an>\vcr 
 to his hill, you would inour the risk of the pillory. 
 
 On the other hand, if you merely emj)loy a n>;m hy parole, that is, hy 
 word of mouth, to huy an estate for you, although he huy it accordingly, 
 yet if he hold himself out as the real purchaser, r///r/ no part of the pur- 
 chusc-muney was p(n'(/ by yoit, you cannot coinpri him to convey the 
 estate to you, hecause that would he directly ap;ainst the {provisions of an 
 act of parliament, calle(l the statute of frauds ('.i!» Charles th<' Second, 
 cluipter ;J,) whicii rccpiires a writing in such cases. An<l althoti<^h the 
 man should afterwards he convicted of perjury m tienying the trust, yet 
 that will not enable c(|uity to compel him to convey the estate to you ; 
 but as you cannot avail yourself, in any civil proceeding, j. .^ . .. 
 •of the man's conviction, you would be a competent witness L J 
 
 to prove the perjury. Vou would therefore have at least the satisfaction 
 of making an example of him ; the only legitimate object of all punish- 
 ment. 
 
 The vendor cannot object that your agent purchased in his own name, 
 whereas he is a trustee for you ; for it ha])i)ens in a vast proportion of 
 cases that the contract is entered into in the name of a trustee ; and the 
 mere fact of a quarrel having taken place between the seller and you, 
 totally unconnected with the subject of the contract, or even a bare re- 
 fusal by the seller to deal with you, is not a sulTicicnt ground for his 
 refusing to convey to you. 
 
 ]iut if you applied to purchase the estate, and the owner expressly 
 refused to treat with you unless the money was paid down, wiiich you 
 were unable to pay, and then you j)rocured some other person to |)ur- 
 chasc the estate on your account, it seems clear, that at least the j)ur- 
 chase-money must be ready at the very day •appointed. So ^ ,p. -. 
 if you should apply to JSIr. Bigg, to sell you an estate on L "* J 
 behalf of Tompson, lor whom, as we know, he has a great aflection, and 
 Bigg should on that account be induced to take less lor the estate than 
 he otherwise would have done, or even, ])erhaps, without this circum- 
 stance, the agreement could not be enforced against Bigg, unless it was 
 really made on behalf of Tom|)son ; but if Tompson would patronize 
 the sale, execution of the agreement would be compelled, although he 
 might sell the estate to you the next day. 
 
 The following case shows to what extent tliis doctrine is carried. A 
 purchaser of a house adjoining to another occupied by the seller, agreed 
 \vith the seller verbally, that he would not let the house to any person 
 not agreeable to him. A man of the name of Langstalle applied for a 
 lease, and stated that he knew the venilor intimately, and that there 
 would be no objection to granting him a lease. The seller, however, 
 disapi)rovcd of Langstaflb, and so far from knowing him intimately, had 
 only seen *him at a tavern. Lord Chancellor Cainden set r men -i 
 aside the agreement which Langstpfll; had obtained, with ^ -' 
 
 costs. A similar case is mentioned in Hawkins's Lite of Johnson. 
 
 I must here observe, that you cannot, even at an auction, purchase 
 any property for yourself of which you are a trustee for another. If, 
 however, the person for whom you are a trustee is, what we lawyers 
 term sui Juris, that is, of legal cajiaoity to contract lor himself, he may 
 certainly sell to you, but you must first, with his assent, shake off your
 
 22 SUGDEX OX SALESj PURCHASES, &.C . 
 
 character of a trustee, and you must freely disclose to him all your 
 knowledge of the property. For the rule is, not that you may not buy 
 from the person for whom you are trustee, but that as a trustee you can- 
 not buy from yourself. And in all cases of this nature, equity looks 
 with a jealous eye on the transaction. The same rule forbids an as- 
 signee of a bankrupt to buy the bankrupt's estate himself, without at 
 least the consent of the majority of the creditors ; and it has even been 
 
 *e7 T thought by high authority *that the consent of all the cre- 
 L J ditors is absolutely requisite. The rule applies equally to 
 
 commissioners of bankrupt, agents and auctioneers. 
 
 I may here notice a case which will probably happen to you. Under 
 your settlement, on your first marriage, you are tenant for life, with a 
 power to sell or exchange the estate with the consent of your trustees ; 
 and under the settlement on your second marriage, you are tenant for 
 lilc of another estate, with a similar power, only it is to be exercised by 
 the trustees with your consent. Under similar powers, many tenants 
 for life, with the concurrence of the trustees, formerly bought the es- 
 tates, or took them in exchange for some of their other estates of equal 
 value ; and after great doubt in the profession on the point, it has finally 
 been determined that such sales and exchanges are valid. You may, 
 therefore, if you should be so desirous, deal with your trustees under 
 either of your powers. 
 
 ^ -. If you purchase an estate, and take a conve)'ance *of it 
 
 L J in the name of a stranger, as the real purchaser, although you 
 
 have no declaration of trust from him, yet you will be entitled to the 
 estate if it can be proved that it was paid for with your money. If, 
 however, you deliberately declare, although A'erbally, that the purchase 
 was made for the man's benefit, he will be entitled to retain the estate 
 as his own. And if you take a conve3'ance in the name of one of your 
 children, for whom you have not made a provision, without declaring 
 him a trustee for you, the consideration of blood between you will fix 
 the estate in the child, although illegitimate, for his own benefit : nor 
 can you defeat his claim by any subsequent declaration of your inten- 
 tion. The same rule applies to a purchase in the name of your Avife, 
 or of a grand-child, if its parent is dead. But all purchases of this kind 
 are open to much objection. If you intend the conveyance to be for the 
 party's own benefit, it should be expressly declared to be so on the face 
 r *«o n °^ ^^' ^^' ^^ t'^*^ contrary, you mean it to be in trust for 
 L J *yourself, the trust should be declared by the deed, or you 
 
 should take a declaration of trust by a separate instrument. 
 
 If you and another purchase lands, and advance the money in equal 
 portions, and take a conveyance to yourselves and your heirs, the sur- 
 vivor will take the whole estate ; for the purchase would be considered 
 to be made by you jointly of the chance of survivorship, which may 
 happen to the one of you as well as the other. But wheie the propor- 
 tions of the money are not equal, and this appears in the deed itself, the 
 rule is otherwise, and tlie survivor will be a trustee for the representa- 
 tives of the other, in j)ro])ortion to the sums which you severally ad- 
 vanced. However, even where the money is advanced equally, you 
 should never take a conveyance in this way ; but the estate should be 
 conveyed to you and the other purchaser in moieties. There is no rely- 
 ing on the joint-tenancy : the other party may defeat it by a secret deed,
 
 SUGDEX ON SALES, PfRCnASES, &.C. 23 
 
 which, if you survive, will be produced, and his heir will be entitled to 
 his "share ; whereas if he survive he will Ufcp it back, aiul r- ^-,, -. 
 cluini the whole estate. '- 
 
 I must still observe, that in all cases of joint luidtrlakiim; or partner- 
 ship, allhouj^b the estate will belong; to the survivor at law, yet in ecpiity 
 he will be a trustee as to the share of the deceased partner lor his re- 
 jireseiitatives ; so tliat if you and another were to take a buildini^-leasc 
 jointly, and lay out money in erectini; houses on the land, the siu\ivor 
 would be compelled to assii^n a moiety of it to the represeulali\es of the 
 deceased. 
 
 If you and another are in treaty for the purchase of an estate, and 
 you ai;ree to desist, and permit him to go on with the intended purchase 
 u|)on his ))r()mising to let vou have a part of the estate, you should rc- 
 (piirt' a written agreement from him ; for it seems, that although he 
 should get Uie estati-, he would not be bound by a mere parole or verbal 
 agreement to convey j)art of it to you. 
 
 "LETTER VII. [ -Gl ] 
 
 My observations upon sales and purcliases now draw to a close, and I 
 dare say that you think it is high time they should. The present letter 
 concerns you both as a buyer and seller. 
 
 Generally speaking, a tvritten agreement is essential to a valid con- 
 tract for the sale or jjurchasc of an estate. This is required by the sta- 
 tute of 29 Car. II. cap. 3, usually called the statute of frauds; and it 
 must be signed by the jjarty whom you wish to be bound by it, or his 
 agent, to whom a verbal authority for that purpose will be snllicient ; 
 and the agreement must distinctly contain all the terms, such as the 
 names of the parties, the estate to be sold, and the consitlcration to be 
 given for it; nothing can be supplied by *parole evidence. ^ ^,, , 
 There are, indeed, some exceptions to this rule in equity — '- " ^ 
 
 If the party resisting the contract ailmit the agri'emcnt, and do not claim 
 the benefit of the statute, or if he have acted fraudulently, ecjuity will 
 comj)el the fullilment of tlie agreement, although merely veri)al, and not 
 reduced to writing, and signed by the parties. As an instance of what 
 is deemed a suflicient fraud to enable ecpiity to relieve, I may observe, 
 that if you were verbally to sell me an estate, and I in j)crl'ormance of 
 part of the agreement were to lay out money in repairs, you could not 
 afterwards resist my claim to a conveyance of the estate. 
 
 Letters which have j)asscd between parties have frequently been held 
 to amount to an agreement ; therefore, in writing about the sale or pur- 
 chase of an estate you sliould always cautiously declare your oiler or 
 proj)Osal not to be iinal, lest the other jiarty should entraj) you, against 
 your intention, into a bintling contract. If upon a treaty for s;de of 
 your estate, you should write a letter to the person wishing ^ , ,„ , 
 to *buy it, stating that if you part with it, it shall be upon ^ J 
 
 such and such terms (specifying them,) and such person uj)on receipt of 
 the letter accept the terms mentioned in it, vour letter will be deemed 
 
 2 1 2
 
 24 SrCDEX ON SALES, PURCHASES, &:C, 
 
 equivalent to an agreement. So if you are in company, and make offers 
 of a bargain, and then write them down and sign them, and another per- 
 son take them up and prefer liis bill against you, the proposal will be 
 binding on you. But if it apj:)cars, that on being submitted to any per- 
 son for acceptance, he had hastily snatched it up, had refused you a copy 
 of it, or if, from other circumstances, fraud in procuring it may be 
 inferred, it seems, that in case of an action it would be left to the jury to 
 say, whether you intended it at first to be a valid agreement on your 
 part, or as only containing proposals in writing, subject to future 
 revision ; and if the aid of equity be sought, these circumstances would 
 have equal weight with the court. In every case it must be considered 
 whether the note or correspondence import a concluded agreement : if 
 r *fid. 1 ^^ amount merely *to treat}', it will not sustain an action or 
 ■- -I suit, and a letter must, like a regular agreement, contain all 
 
 the terms. 
 
 A receipt for the purchase-money, if it contain the terms, will be a 
 sufficient agreement. And even a letter to your attorney, stating the 
 terms, and directing him to carry the agreement into execution, will 
 have the same operation. 
 
 It is not, however, sufficient, that a person present at the making of 
 the agreement reduced it into writing, unless it was signed by the par- 
 ties ; nor is the delivery of rent-rolls, particulars of the estate, abstracts 
 of title, &c. on the treaty for sale, equivalent to an agreement ; neither 
 is it sufficient that both parties verbally direct an attorney to prepare the 
 conveyance : with the exceptions before alluded to, there must be an 
 agreement signed by the j)arty to he charged ; that is, by the party 
 against whom relief is sought ; for if you sign an agreement to sell or 
 buy an estate, the other party acting bond fide may proceed against 
 P ^„_ -| you, although he •''himself never signed it. — You should 
 L -• always require the party with whom you deal to sign when 
 
 you do. At an auction the purchaser is always required to sign an 
 agreement, in exchange for which a receipt for the deposite is given to 
 him. The receipt, as I have before observed, if it contain the terms, 
 will amount to an agreement ; but a purchaser at an auction has a right 
 to require a counterpart of the agreement, signed by him, to be signed 
 by tlie auctioneer for the seller, and this is a right which I advise you 
 never to waive. 
 
 I may observe, that the price to be paid for the estate is not weighed 
 in very nice scales. As the rule now stands the consideration nuist, 
 indeed, be grossly inadequate or unreasonable to enable equity to refuse 
 its aid ; and at law, unless it is merely fraudulent and nominal, the 
 amount of the consideration would not prevent the party benefited from 
 recovering damages for a breach of the contract by the other party. 
 But fraud is an exception to ever}' rule. A case arose, where an agree- 
 r *6G 1 nit;"t was made for 'sale of land at a half-penny per square 
 L J yard. The price was in all about 500/. ; the real value 
 
 2,000/. The j)urchaser went out to an attorney, got him to calculate 
 the amount, and desired him not to tell the vendor how little it was ; 
 then carried the agreement to the vendor, and prevailed on him to sign 
 it immediately. The desire of concealment was considered such a fraud 
 as would avoid the transaction, because parties to a contract are sup- 
 posed, in equity, to treat for what they think a fair price.
 
 SUCDEN OX SALES, PtnCHASES, SlC. 2^ 
 
 But I must remark, that the case of an heir selling; his expectancy 
 stands on its own grounds, and very slii^ht circiiuistanccs will enable 
 cquilv to set aside the contract. It has hirii laid down, that the heir of 
 a ianiilv, dcaliiiu; for an expectancy in that family, Ahall he distini^ui.shed 
 from ordinary cases, and an unconscionaljje I)art;;ain made with him .shall 
 not onlv he looki'd upon as oppressive in the particular instance, and 
 therefore avoided, hut as pernicious in princi[»Ie,and therel'ore rej)ressed. 
 There are two powerful reast)ns why sales of reversions •hy ^ ,,, , 
 heirs should be iliscountcnanced ; the one, that it oj)ens a ^ -' 
 
 door to takinc; an undue advanlai^c of an heir being in distressed and 
 necessitous circumstances, which may, j)erhaps, he deemed a private 
 reason ; the other is foundeil on public policy, in oriler to prevent an 
 heir from siiakin^ off his father's authority, and feeding his extravagan- 
 cies bv disi)()sin^ of ihc family estate. 
 
 liul a bond fide j)urchasc at an auction, of a reversion, cannot now be 
 inij)eachcd. 
 
 Never leave the price to be fixed by surveyors or arbitrators ; for if 
 they refuse to value the estate, or disat^ree in the valuation, you cannot 
 enforce the performance of the contract. This, however, is not the case 
 where it is merely agreed that the estate shall be taken at a fair valua- 
 tion, without specifyiutr the mode in which it shall be made. But even 
 this mode is object ionai)le. 
 
 If upon the j)urchase of an estate you ]):iy a deposite, and afterwards 
 become entitled to a "return of it, because the seller cannot ^ ,-^ -, 
 make a title, you would not be compelled to take any stock L ^ 
 
 in which he may have thought proper to invest it without your consent 
 And your assent will not, it seems, be implied from notice having been 
 given to you of the investment, to which you did not rej)ly. It would 
 not however be prudent to be silent in such a case. Where the deposite 
 is consideraljjc, and it is probable that the ])urchase may not be com- 
 ])leted for a long time, it is for the benefit of both parties to enter into 
 an arrangement for an investment of the dej)0site, so as to make it pro- 
 ductive of interest. 
 
 Vou cannot, as a purchaser, because delays arise, deposite your money 
 at a private banker's, or in the liank of Englaiul, or convert it into stock 
 at tlic risk of the seller ; notwithstanding such a dejjosite, the j)rincipal 
 will remain entirely at your own risk ; nor is it material that you gave 
 the vendor notice of the deposite, unless he took the risk on himself, by 
 agreeing to accept it as a payment. And as he would not ^ ^^^ , 
 *be bound, without his express assent, by a deposite, he ■- J 
 
 could not, unless he had bound himself, claim any benefit by a rise in 
 the funds. So if you sell out stock to answer the purchase-money, and 
 the title prove bad, without any fraud in the seller, and then you re- 
 purchase at a loss, you arc not entitled to any allowance on that account, 
 for you had a chance of gaining as well as losing by a fluctuation in the 
 price of the stock. 
 
 Continual disputes arise as to interest. The j)urcbaser is cntitleif to 
 the profits of the estate from the time fixed ujjon fur completing the 
 contract, whether he does or docs not take possession of the estate ; and 
 as from that time the money belongs to the vendor, the purchaser will 
 be compelled to pay interest for it if it be not paid at the day. Upon 
 this rule, no dilllculty could ever arise if the ])urc!Kise-money were not
 
 26 SUGDEX OX SALES, PURCHASES, &C. 
 
 frequently lying dead : in which case it hecomes a question upon %vhom 
 i,»„ n the' loss of interest shall fall. The loss must be borne by 
 L '"J #the party by whom the delay has been occasioned. It 
 seems, however, that althoup;h the delay is w'lih the seller, and the 
 money is lying ready, and without interest being made by it, yet notice 
 should be given to him that the money is lying dead, because otherwise 
 there is no equality, the one knows the estate is producing interest, the 
 other docs not know that the money does not produce interest ; and in 
 all cases where a purchaser resists the payment of interest, he must show 
 that the money was lying dead, and bo)iu fide appropriated to answer 
 the purchase. But I would advise you never to let your money lie 
 dead ; you can at least lay it out in exchequer-bills ; and, somehow or 
 other, each party invariably insists that the other has occasioned the 
 delay. 
 
 In the case of timber on an estate to be taken at a valuation, interest 
 on the purchase-money will only commence from the valuation, although 
 the interest on the purchase-money for the estate itself may be carried a 
 great way back, because surveyors always value timber according to its 
 ^.-, -| '^present state ; and the augmented value of the timber by 
 L ' -' growth is an equivalent for the interest from the time of the 
 contract to the making of the valuation. 
 
 The usual rate of interest allowed in equity is four y^er cent. ; but in 
 some few cases the court has given five, because that was the current in- 
 terest of money ; and to give only four was holding out an inducement 
 to persons to delay the completion of contracts. However, the general 
 rule confines the rate to ionr per cent. 
 
 I may here observe, that as the estate belongs to the purchaser from 
 the time of the contract, he is entitled to any benefit which may accrue, 
 and must bear any loss which may happen to it before the conveyance. 
 If a house is even burned down, yet the purchaser must pay for it, al- 
 though the seller permit the insurance to expire without giving him no- 
 tice. You should, therefore, upon entering into an agreement to buy a 
 house, provide for the insurance of it till the completion of the contract : 
 i- .>,»g -, again, if *you agree to buy an estate held for lives, and all 
 L '~ J t])e lives drop the next day, still you must pay 3'our money. 
 On the other hand, if you purchase a reversion subject to an estate for 
 life, you will be entitled to a conveyance at the original price, although 
 the estate has fallen into possession by the death of the tenant for life. In 
 all these respects our law agrees with the civil law. 
 
 If you buy an estate in consideration of an annuity which you are to 
 pay to the seller for life, and he die before the estate is conveyed to you, 
 or even before a payment of the annuity become due, yet you Avill be 
 entitled to a conveyance of the estate, without in fact paying for it. But 
 in a case of this kind, if a payment of the annuity become due before the 
 conveyance is executed, you should cautiously pay it on the very day ; 
 for a neglect on your part would, it seems, bar your right to the estate if 
 the seller should afterwards die before it is conveyed to you. 
 P ,,_g -. *As a coufluding observation, I may remark, that if a man 
 ■- -' by mistake purchase from another an estate to which he 
 
 himself is entitled, he may recover back the money which he paid for it.
 
 SUCDEN OX SALES, 1TK( IIA>ES, &C. 27 
 
 •LErri:K \ iii. [ -ti ] 
 
 As you are anxious to ol)tain church preferment for one of your sons, 
 I shall state to you how far you may Icjially huy it. The prcat ohjert is 
 to steer clear of sivioin/, which is a corrupt contract for an ecclesiastical 
 benefice. It derives its name from Sinion Mau;us. 
 
 It is clear and ilircct simony to purchase a presentation whilst the liv- 
 ing; is vacant ; hut the irrcat jirohahility of a speedy vacancy is immate- 
 rial if the purchase he not corru|)t. It has been ludd, that allhou^;li the in- 
 cumbent is on his death-bed, and it is uncertain whulher he will live over 
 the ni<j;ht,a man with full notice of this circumstance, may safely purchase ; 
 and that the death of the incumbent the next moment will not inipcach 
 the validity of the transaction. A man may purchase, whilst the living 
 is full, the next or any other presentation ; and he may purchase the 
 ^/</rt;?r.yo/{, either whilst 'the livinu; is full, or even during r- .__ , 
 its vacancy : but in the latter case the prescnUition could not '- ' -' 
 be obtained by the purchase of the advowsoii, for the avoidance cannot 
 be granleil, because it is against public utility, and opens a door to simo- 
 ny. But although the avoidance does not ])ass in such a case, yet if the 
 purchaser of the advowson usurp the right of presentation, the oifencc of 
 situony will be committed. 
 
 liuL a man cannot purchase a presentation, even wliilst the livincj is 
 full with an intent to present a |)articular person, and afterwards legally 
 ])resenl him ; it is even doubtful whether such a j)urchase and subse(pient 
 presentation can be legally made by a father for his child. And where 
 the living is vacant, if the advoirson is jjurchased with a corruj)t view 
 for presenting, that may avoid the purchase. And therefore if you pur- 
 chase a presentation, or an advowson, whatever your intentions may be, 
 you should not disclose them. 
 
 A clergyman is prohibited from buying a presentation for his own pre- 
 ferment, but he may •purchase the advowson itself, and upon ^ ,_„ , 
 a vacancy cause himself to be presented. L ' J 
 
 ^^'here a man has an advowson, and is desirous to present a particular 
 person, for example, one of his sons, and a vacancy ha|)pened before he 
 is capable of filling the living, it has been usual to present some person, 
 who gives a bond to the patron to resign when the person for whom the 
 living is ultimately intended shall be of age to receive it. This is a case 
 which is very likely to happen in your family. General bonds of resig- 
 nation were formerly very common by which the incumbent became 
 bound to resign the living at any time upon the request of the patron. 
 Such bonds had repeatedly been held to be leiial, but e(|uity always in- 
 terjjosed, and prevented them from bi'ing made an instrument of oppres- 
 sion, or from being used for the commission of simony. In the time of 
 Lord Chancellor Thurlow, however, it was decided in the House of 
 Lords, upon a division 19 against IS, that such bonds are illegal. The 
 
 courts, however, did not give up their ancient rule, where ^ -, 
 
 'the case is not j)reciselv like that di;termined in the Lords. ^ -^ 
 
 Tiiey held that you might take a bond from the incumbent to reside on 
 the living, or to resign to the ordinary, if he do not return to it within a 
 time to be fixed, after notice, and also not to commit waste j for such a
 
 28 SUGDEN ON SALES, PURCHASES, &C. 
 
 condition only enforces the performance of moral, legal, and religious 
 duties. So that you might make it a condition that he should keep the 
 buildings in repair, and tliat he should resign upon notice, in order that 
 one of your infant sons might he presented to the henefice. But the 
 rigid rule was again estahlished recently in the House of Lords ; in con- 
 sequence of which an Act of Parliament was passed (9 Geo. 4, c. 94,) 
 which validates engagements thereafter to be made for resignation, to the 
 intent that any one person, or one of two persons to be specially named, 
 shall be presented, but which engagement is to be entered into before 
 the presentation or appointment of the party entering into it. And it is 
 P ^-. n proviiled, that where two persons are named, they shall be, 
 L '^ J *eilher by blood or marriage, an uncle, son, grandson, brother, 
 nephew or grand-nepliew of the patron, or of any married woman whose 
 husband in her right shall be the pati'on. And certain regulations are 
 enjoined as to the execution and deposite of the deed, in order to prevent 
 fraud. 
 
 I do not think it necessary to point out to you the forfeitures and pun- 
 ishments which are incurred by simony. They are very heavy, and yet 
 are not sufficient to deter men from every day committing the crime 
 which they are intended to punish. 
 
 I have now discharged my promise to you, so far as relates to your 
 sales and purchases. 
 
 [ *79 ] *LETTER IX. 
 
 JMoRTGAGES are the next subject to which I shall direct your atten- 
 tion. 
 
 A mortgage is a security for money lent. The borrower is styled 
 the mortgagor, the lender the mortgagee. 
 
 You cannot, by any device, elude the statutes against usury, which 
 prohibit you from reserving or taking more interest than 51. per cent, 
 per annum ; so that although you only reserve 5 per cent., yet you will 
 conmiit usury if you take more. An exception has, however, been in- 
 troduced by the Legislature in favour of estates in L'eland and the West 
 Indies, upon mortgages, of which 6 per cent, is allowed to be taken. 
 The wit of man cannot devise a mean of avoiding these statutes ; and 
 even a collateral benefit to the lender, as a lease granted to him at the 
 time of the loan, has been relieved against in equity, on account of its 
 J. ^„^ -, usurious tendency, but *it is not usurious to receive the in- 
 L ^ terest quarterly or half yearly. 
 
 It is also settled that you cannot prospectively make interest princi- 
 pal, so as to carry interest ; therefore a stipulation in a mortgage-deed 
 that every quaitcr's interest in arrcar shall become principal, and carry 
 interest, would be void. You must wait till the interest is actually due, 
 and then a regular instrument should be executed, making the interest 
 princij)al. 
 
 A day is always named for payment of the principal. If it is not 
 paid at the day the mortgagee (the lender) may at any time recover it, 
 but the mortgagor (the borrower) cannot compel the mortgagee to re-
 
 SUGDEN ON SALES, PURCHASES, &C. 2'J 
 
 ccivc it without first piviny; liiin six r.ilciular months' notiro of liis iiilcii- 
 tion to pay it olf. If lie make a ii';;;iilar t«.iuU'r u( the money on the day 
 on wliich the notice cxpirt-s, although the K-nikr refuse to accept it, yet 
 interest will no longer run : hut to stop l)»e interest, a regular tender 
 must be made on the precise day. 
 
 *ln advancing money on mortgage, the estate is regularly ^ , . , 
 transferred i)V conveyance to tlie leniler, hut is made re- *■ J 
 
 dcemahle on repayment of tiie money and interest. 'I'he mortgagee 
 takes tiie al)solute interest in the estate at law ; ijut in C(piity the mort- 
 gagor is still t)wner of the estate to all intent:* and purposes. He may 
 settle or devise the estate in the same manner as if he had not niortgaged 
 it ; and if he devise it before the mortgage, his prior dis|)Osition will, 
 subject to the mortgage, still remain good, nor will a re-conveyancc to 
 him upon i)aying oil" tlic money alfect the validity of the will. Hut if 
 he make a disj)osition of the estate beyond the mortgage it may oj>cratc 
 as a total revocation of a prior will. 
 
 In mortgages of copyholds it is not usual for tiie mortgagee to be ail- 
 milted. The owner may devise the estate whether the mortgagee is or 
 is not admitted. Formerly a copyholder could not devise his estate 
 without a surrender to his will ; Init this is rendered unnecessary by a 
 late act of parliament. 
 
 •So the mortgagor may sell the estate, and pay oflT the ^ ,^^ ^ 
 mortgage out of the j)urchasc-money ; or he may sell it sub- ^ "'" ' 
 jcct to the mortgage ; but a purchaser in the latter case should either re- 
 quire the mortgagee's concurrence, or should be satified that the account 
 stated by the mortgagor alone is correct, and should give notice to the 
 mortgagee of the sale immediately after it is completed. — A man buy- 
 ing an estate subject to a mortgage is without any exi)res3 slij)ulation 
 bound to indemnily the seller against the debt. 
 
 A mortgagor cannot after a mortgage make a lease binding on the 
 mortgagee. The mortgagee may at any time evict a tenant holding 
 under such a lease. 
 
 It is always stipulateil in mortgages, that until default sliall he made 
 in payment of tlic money the mortgagor sliall (piielly enjoy the estate. 
 After default has been made the mortgagee may obtiin j)ossession of the 
 estate, but akhough he becomes al)solule owner of the estate at law, yet 
 he cannot without an absolute 'necessity make a lease of the ^ ,„„ , 
 lands which will bind the mortgagor ; and as in these cases L "- J 
 the property is considered a mere security for the debt which belongs 
 to the personal estate, although the estate descend to the heir of the 
 mortgagee, yet he will be a mere trustee for the executor. It is usual, 
 in order to prevent the diiliculty of oi)taininn a conveyance from an heir 
 at law, who may be an infant, or a married woman, or may be out of 
 the kingdom, for mortgagees to expressly devise the estates vested in 
 them by way of mortgage to trustees, with a declaration that the mort- 
 gage-money shall be considered as personal estate. If a mortgagee in 
 possession wish the estate to vest in his devisee, as real estate for his 
 own benelit, he should ex])ressly devise it to him for his own use, and 
 not trust to its jjassing under a general devise of all his real estate. 
 
 A mortgagor, even after default in payment of the money, is not lia- 
 ble to account to the mortgagee for the rents during the time which he 
 has been sufl'ered to remain in possession.
 
 30 SUGDEX ON SALES, PURCHASES, &C. 
 
 *A mortgagor may vote at an election notwithstanding 
 L *"■ J tlie mortgage, unless the mortgagee be in the actual posses- 
 sion or receipt of the rents of the estate, in which case the hitter is en- 
 titled to vote ; nor can a mortgagee qualify himself as a member of the 
 House of Commons under a mortgage whereof the equity of redemp- 
 tion is in any other person, unless he shall have been in possession of 
 the estate for seven years before the time of his election. 
 
 A mortgagee in possession should keep regular accounts, for he is lia- 
 ble to account to the mortgagor for the profits which he has, or might 
 have, received, without fraud or wilful neglect ; he is answerable for 
 wilful neglect, although not guilty of actual fraud ; for instance, if the 
 mortgagee turns out a suflicient tenant, and having notice that the estate 
 was under-let, takes a new tenant, another substantial peison ofi'ering 
 more. But in general, if the mortgagor knows that the estate is under- 
 let, he ought to give notice of that circumstance to the mortgagee, and 
 *cc 1 to afford his advice and *aid for the purpose of making the 
 L ^5 J ggtate as productive as possible. A mortgagee in possession 
 may appoint a bailiff and receiver, and charge the estate with their sala- 
 ries ; but if he choose to take the trouble on himself he cannot charge 
 for it, not even if the mortgagor agree to make him an allowance, for 
 that would be to give him something beyond his principal and interest. 
 
 The mortgagee cannot justify committing waste on the estate unless 
 the security is defective, and in that case the waste must be productive 
 of monev, which must be applied in relief of the estate ; nor can he 
 enter upon any speculation at the risk of the mortgagor ; therefore, if 
 he open a mine or quarry he must do it at his own risk, and yet the 
 profit from it would be brought into the account against him. He need 
 only keep the estate in necessary repair ; and if he increase the interest 
 in the estate, as by renewing the lives, where the estate is held upon 
 lives, he will be entitled to be repaid the sum advanced, with interest, 
 which will *be considered as an additional charge on the 
 L -I estate. 
 
 Generally speaking, a mortgagee of an advowson cannot present to it, 
 because it would be illegal to sell the presentation. The mortgagee, 
 therefore, as he cannot bring the presentation into the account, must 
 present the nominee of the mortgagor. But where the mortgage is 
 absolute, equity will not restrain the mortgagee from jircsenting, uidess 
 the mortgagor will pay ofl' the mortgage-money at a short day ; for it 
 may be that the mortgagor will not redeem, and in that case the presen- 
 tation belongs to the mortgagee. 
 
 Neither the mortgagor nor mortgagee can by any adverse act bar the 
 right of the other. But it was decided in the late case of Lord Chol- 
 mondelcy v. Lord Clinton, that twenty years adverse possession by a 
 person claiming the equity of redem])tion will bar the rightful owner. 
 If a man with a bad title make a mortgage, and afterwards, by any means 
 acquire a good title, he must confirm the mortgage. So if he obtain 
 P ^o_ -, *an increased interest in the estate, as a renewal of a lease, 
 •- -"it will be considered as a graft upon the original stock, and 
 
 be liable to the mortgage. And, by a parity of reason, if the mortgagee 
 acquire a renewed interest in the morlgagecl estate, it will, subject to the 
 mortgage, be in trust for the mortgagor. 
 
 If a mortgagee is allowed to remain twenty years in possession, with-
 
 SUCDEX oy SALES, PmCFTASES, &.C. 31 
 
 out account, tlic niorlp;ai;or is harrcil of all liis right in the estate, for 
 after that ptTiod ccjuily will not assist him in rt'deeming the estate. 
 But if the inortp;;igor was under any (lis;d)ility to proscciitr his claini, 
 viz, infancy, coviTturc, insanity, imprisonment, or hcvond llu* seas, ten 
 years would he allowcil aftor tho removal of the disahilitv. Those 
 periods are not arhitrarily chosen, hut are fixeil hy analoj^y to the statutes 
 of limitation, which riMniire persons who have a ri^^lit of ontrv on an 
 estate to prosecute tlu-ir rijjhts within tliose times ; and in these cases, if 
 the lime once he^in to run, no suhsequent disahilitv will stop it. 
 
 *An accoiuit settled hetwcen the parties, or a deliheratc r- ^^^ - 
 acknowlcdjrmcnt hy the niort^;aii;ee, that he is still only a L J 
 
 niortnaj^ee, as hy devising or transferring the morti2;a|re, as such, will 
 open the redemption ; and in these cases a mortgagee who is not desir- 
 ous to open the redi-mption, should he cautious, not even in conversation, 
 to admit that the estate is redeemahle. 
 
 On the other hand, if the inortu;au;or is sulTeretl to remain twenty years 
 in possession without any demand, or payment of interest, it will in 
 general he presumed that the j)rincipal and interest have been j)aid, and 
 the estate re-conveyed. 
 
 If a mortgagee will not re-convey upon payment of the principal and 
 interest, and costs, and the right to redeem is still open, tlie mor(u;agor 
 may hy a hill in e(|uily compel a redemption. On the other hand, if 
 the mortgag<'e is desirous either to ohtain back his monev, or to have the 
 estate discharged of any right of reilcmption, he may lile a bill against 
 the mortgagor *for what is termed a. foreclosure, and i\\c ^ ,__ , 
 mortgagor will be decreed to pay the money and interest at L J 
 
 a day named, or to stand foreclosed of all right to redeem the estate. 
 Aftor such a decree is ])erlectcd, if default is made in payment of the 
 money, the mortgagee becomes absolute owner of the estate. Hut 
 equity will be anxious not to hastily foreclose the mortgagor ; and, there- 
 fore, under proper circumstances, the time limited for payment of the 
 money will be enlarged more than once, if there is a fair prospect of the 
 mortgagor being able to repay the money. This is frequently a great 
 har^lship on the mortgagee, but the rule is not extended to a bill by the 
 mortgagor for rodemjjtion ; the time there will not be enlarged. 
 
 If a man make a second mortgage without giving the second mort- 
 gagee notice of the Hrsl mortgage, or if he make a mortgage after having 
 otherwise incumbered the estate, and do not within six months after 
 notice given to him by the mortgagee, pay off the incnm- _ , , 
 
 branccs, "he will, by a legislative provision, be barred of all ^ ' ' 
 equity of redemption, or right to redeem the estate. 
 
 A mortgage is assignable, and the concurrence of the mortgagor in 
 the transfer is not necessary. But the assignee will take subject to the 
 real state of the account between the mortgagor and mortgagee, and 
 therefore he should be well satisfied that the account is correct, if he 
 dispense with the mortgagor's concurrence. An assignee of a mortgage 
 is entitled to the whole sum due, although he buy it at a less price. 
 
 Ix the outset of this long letter, I told vou that you cannot legally 
 take more tiian 5 per cent, per annum, as interest lor the loan of monev. 
 Vol. III.— 2 K
 
 32 SUGDEN ON SALES, PURCHASES, &C. 
 
 The policy of this provision has frequently been questioned. Bentham's 
 *Qi "1 i^n^nious defence of usury is in the hands of every one. 
 L 91 J »Experience has shown that if the wants of mankind rise 
 above the law, it must, however strictly penned, give way to them. 
 History proves, that in every country where laws have been made 
 against usury, they have been evaded whenever the supply of money was 
 not equal to the demand. Most countries have been anxious to establish 
 a low rate of interest, because that is deemed an almost infallible proof 
 of the flourishing condition of a state. In England, as in other coun- 
 tries, the laws against usury have been completely evaded. This was 
 effected by the introduction of life-annuities. The borrower agrees to 
 give 10 per cent. , for example, for the loan. The lender then names 
 three lives, and the borrower grants him an annuity for those lives, and 
 the survivor of them, equal to the 10 per cent. ; and, in some cases, the 
 expense of insuring the last life. The annuity is made re-purchasable 
 by the borrower. It was a considerable time before this sort of trans- 
 action in all its bearings was deemed legal. After its validity was 
 *Qo 1 established, life-annuities, from the ^pressure and extrava- 
 •- '^ J gancc of the times, became so common, and such gross frauds 
 
 were practised on borrowers, that the Legislature deemed it proper to 
 interpose its strong arm, and place these transactions under certain 
 restraints. The chief object was to disclose the name of the real lender, 
 and to give publicity to the transaction. This measure, however, was 
 not attended with all the salutary consequences which were expected ; 
 it was therefore lately repealed, and more simple provisions substituted 
 for attaining the same end. Three lives in these cases are nam.ed in 
 order to save the expense of insurance ; for in all these cases the lender 
 •will not advance his money unless his principal can be assured to him ; 
 and it is taken for granted that the annuity will be re-purchased. The 
 borrower cannot secure the re-payment of the principal : that would 
 r-ender the transaction usurious. For the ground upon which life- 
 annuities are not deemed within the statutes of usury is, that the princi- 
 r »m 1 P^^ ^^ sunk ; and it is not considered an objection to *this 
 L -" doctrine that the grantor or borrower 7na}/ re-purchase the 
 
 annuity. But in point of fact the borrower always does secure the re- 
 payment of the principal ; for he either grants the annuity for so long a 
 period as to render it certain that the annuity will be re-purchased before 
 it expires, or, if the annuity is granted only upon one life, which is 
 done where the borrower has only a life-interest to secure the annuity 
 upon, the amount of the insurance is invariably added to the rate of 
 interest agreed to be given ; so that the lender either stands his own 
 insurer, which, however, he rarely does, or insures the life in one of 
 the public offices. By these means he receives the stipulated rate of 
 interest, and when the annuity ceases he receives back his principal. 
 The essential difference, therefore, between this case and a common loan 
 is, that the lender's capital is tied up during the period agreed upon, and 
 he cannot compel the re-payment of it. For this inconvenience he 
 r **Q4 1 ^^^"^"'^ certainly be allowed to receive more than common 
 •- ^ interest, "but whether some better plan than the present 
 
 might not be adopted for effecting this end, I must leave it to wiser heads 
 than mine to determine.
 
 SUGDEN ON SALES, PURCUASES, &C. 33 
 
 -I.ET'l'FJt X. [ -05 1 
 
 It now comes in onlrr to j^ivr you a few instrurtions .ns to leases. 
 What I have to say on this head will lie in a narrow compass. 
 
 Leases not exceeding three years from the time of making them, 
 whereupon the reserved rent amounts to two-thirds of the improved 
 value, may he granted hy parole, or word of mouth ; hut all other leases 
 must be in writing, according to the provisions of the statute of frauds, 
 which I have heforc mentioned, and so must an (li^recnient for a lease, 
 liowevcr short the term ; although here, as in the case of purchases, 
 ecpiity will, in some instances, f(jr which I refer you to my 7th letter, 
 enforce even a parole agreement to grant a lease. To this, however, a 
 j)arty should not trust. 
 
 An agreement for a lease, like an agreement for purchase, must con- 
 tain the names of the "parties, the consideration, viz. the ^ ,^ , 
 rent, and also the property to be demised, and for what term. L -I 
 
 The parties must sign the agreement by themselves or their agents, in 
 like manner as an agreement for a j)urchasc. And the caution which I 
 before gave you, in regard to writing letters about the sale or jiiirchasc 
 of an estate, applies equally to leases. I must ()l)scrve, that nothing can 
 be added to an agreement of this kind by parole evidence : you cannot, 
 for instance, if the agreement is silent on that heail, show that the tenant 
 agreed verbally to pay the land-tax. The parties must stand or fall by 
 the written agreement. Therefore, whatever the terms are upon wjiich 
 you agree, you must reduce them to writing. 
 
 If you should ever be under the necessity of entering into an agree- 
 ment to grant a lease, without the assistance of your solicitor, insert an 
 express declaration that it is meant to be an agreement, and not an actual 
 lease. It has frequently happened, that what was intended by the par- 
 ties as an agreement only, has been "construed to be a lease, ^ ,„_ -. 
 by which means the tenant has evaded the conditions which ^ J 
 
 would have been imj)osed on him if a regular lease had been granted. 
 
 It is highly desirable that agreements for leases should contain a mi- 
 nute of the covenants to be entered into by the tenant. Disputes fre- 
 quently arise as to the covenants to which the landlord is entitleil. If 
 you wish your tenant not to part with the lease without your consent, 
 you should stipulate by the agreement that a proper clause for that pur- 
 pose shall be contained in the lease, because you cannot insist upon such 
 a restraint unless it is bargained for. 
 
 If you agree to grant a building lease, the tenant must engage by the 
 lease to insure the property, although the agreement was silent on that 
 head ; but the rule is olh(;rwise as to tenants at a full rent, or, as we term 
 it, a rack-rent. If, therefore, you mean that a tenant at rack-rent shall 
 insure at his own costs, you must make him agree to do so by the con- 
 tract. 'Ifyo 1 omit this, the lease must be so frametl as to ^ ^^^ , 
 exempt him fr.m making good accidents by fire. Hut even ^ ' -^ 
 in this case you are not bountl to insure ; and although tlje house should 
 be burned down, yet the tenant must continue to |)ay the rent : so that 
 each bears his burden ; you lose your house, and tlic tenant loses his
 
 34 SUGDEN ON SALES, PURCHASES, &C. 
 
 rent during the term. If, however, you have insured, although not 
 bound to do so, and received the money, you cannot compel payment of 
 the rent if you decline to lay out the money in re-building. It is mate- 
 rial, however, to observe, that whatever may have been the agreement, 
 unless the tenant is exempted by the lease from making good accidents 
 bv fire, he must, under the common covenants to repair, rebuild the 
 house if it is burned down. 
 
 If you agree to grant a man a lease, and he afterwards says that he is 
 merely a trustee for an insolvent who claims the lease, you are not bound 
 to grant it. 
 
 it may be useful to state, that if you grant, or even agree to grant, a 
 ^ -. lease, to hold for seven *or fourteen, or any other number 
 
 t -'of years, in the alternative, the option to determine the lease 
 
 at the end of the first term mentioned is in the tenant, and not in you ; 
 therefore, if this is not your intention, you should expressly provide by 
 the agreement, or lease, that the option shall be in you as well as the 
 tenant. 
 
 You should always, before granting a lease, consider what interest you 
 have in the estate. If you are merely tenant for life, without a power 
 of leasing, you must not grant a lease beyond your own life. If you 
 have only a power to grant a lease, which is the case with every man 
 whose property is settled on his family, you should communicate that 
 circumstance to your solicitor, and furnish him with a copy of the power, 
 because a very slight deviation from it, for instance, executing the lease 
 in the presence of one witness instead of two, may render the lease void, 
 by which you maj- not only ruin your innocent tenant, but may, by the 
 *inn 1 covenant which you must enter into *with him, for quiet 
 L -I enjoyment of the land, subject your estate to make good his 
 
 loss in case he is evicted by the person entitled to the estate after your 
 death. This has too frequently happened. A very painful instance oc- 
 curred in the year 177S. Sir John Astley, and his wife, settled her 
 estate to certain uses, with a power of leasing to Sir John. They then, 
 under a power in the settlement, gave the estate, after their deaths, to 
 Lord Tankerville. Sir John granted a lease under his power, and died. 
 Lord Tankerville, when he came into possession, took advantage of a 
 defect in the lease, and turned out the tenant, who recovered his loss out 
 ot Sir John's estate, under a covenant entered into by him for quiet en- 
 joyment ; so that his property suffered severely by the act of the person 
 to whom he had joined, with his wife, in giving the estate. 
 
 If you are restrained by your power from taking a fine on granting a 
 ,, . -| lease, you must not accept any sum whatever from the tenant. 
 L -* *But, although you are required to reserve the best rent 
 
 which can be obtained, yet you are not compellable to take the highest 
 actual ofl'er for a lease provided you act hnndjide, and reserve a proper 
 rent, because in the choice of a tenant there are many things to be re- 
 garded besides the mere amount of the rent oflered. There should, 
 however, be some strong prudential reason to induce you to grant a lease 
 to one at a lower rent than is offered by anotiicr. 
 
 You may exercise a power of leasing for your own benefit. For this 
 purpose you must procure some person as your trustee, to become bound 
 for the; rent, &:c. For if a proper person is legally bound to pay the rent 
 and perform the covenants, it is unimportant to the person succeeding to
 
 8UGDEN ON SALES, rt'IirHASES, &C. 35 
 
 the estate that the hcnoficial interest IjiIomks to another. 'I'hc person to 
 whom the lease is granted shouM exeoiitt- a deed, dtt-larinK hitn to be a 
 trustee lor you. 1 have only one other caution (o ^ive you as to leases. 
 Carefully avoid comprisini^ in the 'same lea-^e, at an entire , , ., 
 
 rent, property, some your own, and some over which you *• " -^ 
 
 have merely a power; such a lease would he void as to the property 
 comprised in the power. 
 
 -LETTER XI. r M03 ] 
 
 The subject for the present letter is the s cttiement ot your estates. 
 
 I mav premise, tJiat the statute of frauds, to wliich I have so often re- 
 ferred yon, requires a<ireements made upon consideration of marriatro to 
 be in writint;, and siirned by the party to be chari^ed therewith, or his 
 a2;(>»ii. A better, however, is considered a suflicient agreement, if it con- 
 taui the terms, and amount to an offer. In one case a man wrote a let- 
 ter, signifying his assent to the marriage of his daughter, and that he 
 would give her 1,500/. ; and afterwards, by another letter, upon a fur- 
 ther treaty concerning the marriage, he receded from the proposals of 
 jiis letter. And at some time afterward, he declared that he would agree 
 to what was propounded in his first letter. It was held, that this letter 
 was a suflicient ])romise in writing ; and that the last declaration had 
 *set up again the terms in the first letter. Reliance however ^ vi/- , 
 should never be placed on a mere letter. L J 
 
 Equity will, in some cases, relieve a party on the ground of fraud, al- 
 though there is not a valid agreement. A man of the name of Half- 
 penny, upon a treaty for the marriage of his daughter, signed a writing, 
 comprising the terms of the agreement ; and afterwanls desinniiig to 
 elude the force of it, and got loose from his agreement, ordered his 
 daughter to put on a good humour, and get the intended husband to de- 
 liver up the writing, and then to marry him, which she accordinglv did ; 
 and IlaHpenny stood at the corner of a street to see them go by to be 
 married, and al'terward refused to perform tlie agreement. lie was, 
 however, compelled by equity to do so ; although while the case was 
 liefore the court, he walked backwards and forwards, calling out to the 
 judge torcnicjnbcr the stalute, which he humorously said, / do, I do ; 
 and he held the case to be out of the statute on the ground of fraud. 
 
 *In settling an incumbered estate you should always make j. ,,^- -, 
 some provision for payment of llio incuml)rances, otherwise ^ -I 
 
 the incumbrancer might, as sometimes has happened, enter, and receive 
 all the prolits, to the exclusion of your wile and chililren. Where a 
 considerable jointure is provided for a wife, and large portions for 
 younger children of the marriage, it is desirable to approj)riate a part of 
 tile estate for each, and not to charge the whole estate with l)oth. If you 
 make a settlement on a son's marriage in your life-time, you should 
 make some provision for the event of his dying before* you, leaving 
 children. A fund ought to be provided for their maintenance in that 
 event. 
 
 2 K 2
 
 36 SUGDEN ON SALES, PURCHASES, &:C. 
 
 The common settlement on a marriage, of the intended husband's real 
 estate, is to the hushand for life, thento secure the wife's jointure and 
 the younger children's portions, and subject thereto, to the first and 
 other sons successively in tail ; and then to the daughters, as tenants in 
 common in tail, with cross-remainders in tail, and ultimately to the hus- 
 *inr 1 'jaii^ i'^ fee. The operation of such a settlement *is to give 
 [ "106 J ^j^^ estate after the husband's death, subject to the jointure 
 and younger children's portions, to the eldest son, and after him to his 
 issue ad infinitriin ; and if they fall, to the other sons and their issue, 
 successively in like manner. If they all fail, then the daughters take 
 equally, and the share of each daughter goes to her issue in like man- 
 ner ; but if there is a failure of issue of any daughter, her share goes 
 over to the other daughters and their issue. If all the children die 
 ■without issue, the estate reverts to the husband, and he may dispose of 
 it by deed or will, subject to the interests of his widow and children. 
 The estates which children thus take are termed estates-tail. When the 
 eldest son attains twenty-one, he and his father together can unfetter the 
 estate, and re-settle it as they please, subject only to the joinlnre and 
 portions. And after the father's death the son may do it by hhiiself ; 
 nor can the father defeat his power of alienation. Where a son attains 
 twenty-one in his father's life-time the father frequently grants his son 
 r- ^ ' -, a provision during *thelr joint-lives, in consideration of 
 [ 107 ] y.\^\f^\y the son joins with his father in re-settling the estate, 
 in such a manner that if he dies without issue the estate may go over to 
 the youno-er branches of the family. Sometimes, instead of a rent- 
 charge, the estate itself is given to the wife for life, after her husband's 
 death ; in which case the son cannot, after his father's death, and during 
 her life-time, unfetter the estate without her concurrence. 
 
 The desire of continuing an estate in the male branch frequently in- 
 duces the parent to give the estate, in the first instance, to the issue male 
 of his sons, with remainder to his daughters, not altogether, but succes- 
 sively, and to their issue male only; and in that case no provision is 
 made for the female issue of his sons and daughters, unless there is a 
 failure of issue male. This mode of settlement a lawyer would shortly 
 describe thus : to the first and other sons successively in tail male ; re- 
 mainder to the first and other daughters successively in tail male ; 
 remainder to the first and other *sons successively in tail 
 [ 108 J general ; remainder to the first and other daughters succes- 
 sively in tail general. The mischief of this plan is, that the estate may 
 go backwards and forwards from one branch of the family to the other. 
 Thus, if you have an only son, and he dies and leaves a daughter, but no 
 son, the estate will go over to your eldest daugher ; but if she dies and 
 leaves no son, although she leaves daughters, the estate will belong to 
 the daughter of the eldest son. 
 
 It is very usual to give the estate merely to the issue male of the 
 marriage, and then to direct it to revert to the parent, subject to the 
 widow's jointure, and the daughters' portions ; but where this plan is 
 adopted, additional portions are mostly provided for the daughters in 
 case there is a failure of issue male. On the other hand, an estate is 
 sometimes given amongst all the children, as well sons as daughters, and 
 their issues equally ; in which case of course no money is directed to be 
 raised for the portions of younger children.
 
 scr.DEN ox s.\i.i>, nm II \sK>, &:c. 37 
 
 •In nialvint; a marri;ip;f scttloinciit a man should always ^ •ino 1 
 look to a tiituic nKirii;i^;e. His wh'v may «lit' yoiiiin, having *■ ' 
 
 an infant faniilv, and lie may liavc no powiT to jointure any other wifr, 
 or to provide portions lor the children of any other niarriane. The same 
 ohservalions apply to a woman who is ahoul to settle property on her 
 marriaije. 
 
 Sometimes a separate provision is made for a wife during her hus- 
 band's life-time. This is calleil pin-money. It is always the first charj^c 
 on the estate, so that tin- hushantl takes suhject to it. If, however, a 
 wife permit her hushand to receive her pin-mt)ney, or what is the same 
 thing, do not claim it, and he maintains her, she cannot after his death 
 compel payment of the arrears out of his estate. 
 
 It is usual to reserve such powers in a settlement as will conduce to 
 the henciit of the parties, or the estate. Thus powers arc almost always 
 given to ijrant building-leases, and leases at rack or full rents, and even 
 to sell the estates and buy others, or to exchange them "for , •iin l 
 others. Sometimes a party objects to the introduction in *- -* 
 
 liis settlement of j)owers to lease, or to sell and exchange ; but it is 
 almost useless to make such an objection, for tiie settler himself may 
 wish to have such powers tluring his own life ; and after his death the 
 persons succeeding to the estate may with ease get the omission sup- 
 plied by a private act of parliament. Where an undivided part of an 
 estate is settled, a power should be given to the trustees to join in a par- 
 tition of the entiretv, and take back a divided |)art of the estate. 
 
 A desire has in some quarters been shown, not merely to improve the 
 law of real property, but unnecessarily to alter it, and admit oidy simple 
 settlements after tiic fashion of the Code Napoleon, lint the present 
 plan of a strict settlement in this country is free from all ohji-ction. It 
 docs not place land extra cuimiicrciiun, but within reasonable limits 
 enables the owner to transmit it to all his posterity ; and from its very 
 nature leads to successive settlements, which alone have ^ <, . . . , 
 kept *many estates in the same families. If our Legislators L -J 
 
 would substitute for fines and recoveries some other deliberate form ; 
 protect contingent remainders without the elaborate machinery now re- 
 sorted to ; curb the rising disposition to evade the wholesome rule of 
 law as to perpetuities ; and at oi.cc enlarge the testamentary power, and 
 alter the law of revocation by subsequent disposition, they will strike at 
 the root of the leading evils in the law of ])roperty. The common law 
 was evaded because mankind, in spite of legal restrictions, will settle 
 their property on their posterity and relations in succession. The rule 
 as now established is oi)cn to no inconvenience. If we look at the 
 frame of a common marriage settlement we shall fmd it strictly j)rovide 
 for all the issue of the marriage, and yet not susjiend, beyond a reason- 
 able period, the power of alienation. The estate, as I have before statetl, 
 is limited to the husband for life ; then the wife if she survive bin) is to 
 have a rent-charge for life ; and subject to that, the estate is to go, 
 »(1) to the lirst and other sons successively in tail male : re- p ,. .^ -. 
 mainder (2) to the first and other sons successively in tail ^ * -' 
 
 general ; remainder (;i) to the first and other daughters in tail general, 
 or if you will, to all the daughters as tenants in common in tail general, 
 with cross-remainders in tail general, with remainder to the settler in 
 fee, and ])ortions are provided for the younger children. Now under
 
 3S SUGDEX ON SALES, PURCHASES, &C. 
 
 such a settlement the father enjoys the whole estate for his life without 
 control ; upon his death the sons, and their issue male after them, take 
 in succession, and then the issue female of the sons are let into the en- 
 joyment ; and if they fail, the daughters and their issue take ; and this 
 course of devolution, if not interrupted, will take place until all the 
 issue is exhausted. But when a son attains twenty-one, although his 
 father is living, he may alone acquire the disposition of the estate during 
 the continuance of any issue which he may have, although it rarely 
 happens that this power is exercised, unless where a son is not upon 
 r *i 1 T 1 S^"^*^^ *terms with his father, and desires to render his estate 
 L J available as far as he can as a security for debts in his 
 
 father's life-time ; and in such cases, after his Other's death he may 
 acquire the whole dominion over the estate ; but fortunately for families, 
 the interest which he can in his father's life-time acquire without his 
 consent, in the property, is not such as money-lenders will advance mo- 
 ney upon, for if he should die in his fiither's life-time without issue, all 
 his interest in the estate would cease. With his father's concurrence the 
 son may bar all the remainders over, and acquire the fee subject to the 
 father's life estate. If a son marry in his father's life-time with his ap- 
 probation, the power to bar the remainders is constantly exercised, and 
 a new settlement is made. Where there are younger children of the 
 first marriage, the father is always anxious to have the estate re-settled 
 on them and their issue, in case of failure of issue of the first son. This 
 he cannot accomplish without the concurrence of the son ; and as the son 
 P *i 14 -1 upon *his establishment in life, in his father's life-time, re- 
 L J quires an immediate provision, the father generally secures 
 
 to him a provision during their joint lives as a consideration for the re- 
 settlement of the estate in remainder upon the younger sons. Tlius are 
 estates quickly re-settled, and the State does not, that I am aware of, 
 suffer any inconvenience from such repeated settlements. No man in 
 this country can justly complain that there is not sufficient land in the 
 market on sale. If the estate is not re-settled in the father's life-time, 
 the son can after the father's death acquire the absolute ownership in the 
 property, and dispose of it as he pleases ; and so, if the estate is left in a 
 course of descent, may every successive remainder-man. But although 
 upon a settlement a father may be willing to abridge his estate in favour 
 of his issue, and confine himself to a life interest, yet he is always anx- 
 ious to retain every power of disposition over the property which is com- 
 patible with the interest of his children. The extent of the father's 
 r "11 5 1 Po^vers must in each case ^depend upon the agreement and 
 *- -* wishes of the parties ; but in a common settlement of an es- 
 
 tate of any magnitude there are inserted powers to the father with pro- 
 per checks, to lease the estate according to the nature of it ; to sell it, 
 and buy another estate with the money, to be re-settled ; to exchange it 
 for another eligible to be brought into settlement; and if an undivided 
 share is settled to make partition with the owners of the other shares : 
 thus, on the one hand the estate is secured to the children of the mar- 
 riage of the latest generation, without preventing their power of alien- 
 ing ; and on the otiier, the father although necessarily confined to a 
 tenancy for life, is invested with such ample powers over the estate, 
 that for all purposes of reasonable enjoyment he would be ignorant, were 
 he not otherwise aware of the fact, that his rights of ownership are cur-
 
 SUCDEN ON SALKS, PrRCHASES, &C. 39 
 
 tailed : he is enabled to make every disposition of the estate whirh tends 
 to tncliurate it : he has every caj)acily of an owner in fee to henelit the 
 estate and himself, as the temporary •owner of it, in common ^ •! ip -i 
 willi the remainder-men, but none to injure it. 'I'hc natural ^ J 
 
 dependence of the son's estate on the father's, counteracted in a sufTicicnt 
 dej!;rec by the inability of the father to make any re-settlement without 
 his son's consent, is also an important result of such a settlement. It 
 would not be endured that a son should be allowed, livinp; bis father, to 
 dispose of the family estate without his father's consent, altbounb limited 
 to him subject to his father's life interest, 'i'be present system leaves 
 the son the full property during his lather's life-time, for the purposes of 
 transmission by descent, and assures to him, as far as is practicable, the 
 enjoyment of the estate when in the rep;ular course it devolves upon him 
 in possession. It restrains his wanton alienation of it from the family 
 before he knows its value ; but as he can, with his father's concurrx-ncc, 
 acquire the fee and make a new settlement, few, indeed, are the instances 
 in which the mutual interests of the father and son do not j- • , , -. -i 
 *lead to an equitable adjustment of their rights, wiien the ^ ^ 
 
 pro|)cr time for a new disposition arrives. 
 
 It is objected that these purposes are eflectcd by a complicated and an 
 expensive machinery ; but whoever complained of the com|)lex move- 
 ments in a well tinished watch ? ^Vc admire the connexion of its parts 
 dependinn; on each other, and all necessary to form the combination 
 which produces the desired results. ^Vhy then shoidd we complain of 
 a well-digested settlement ? Its length is occasioned by the multiplicity 
 of its provisions, most of wbicli Aviil and every one may be brought into 
 action : the absence of a single one may tend to great expense and incon- 
 venience. Settlements as they are now framed are the result of the im- 
 provements of centuries ; they meet the wishes and wants of mankind, 
 and are open to no sensible inconvenience ; and yet we are required at 
 once to discard them for ever. The attempt to shorten conveyances by 
 legislative enactments is hopeless; it must be left *to the ^ *-|iq -i 
 good sense and honour of the conveyancers ; for if you were *- -^ 
 
 to render it unlawful to adopt any other than a prescribed form of grant, 
 yet a long deed might always be made by unnecessary recitals of the 
 previous title. 
 
 There are forms necessary for unfettering a freehold estate which 
 should be abolished ; but uj)on a close inspection we shall find how great 
 a debt we owe to our ancestors at the bar, and on the bench, for the very 
 forms of which we now complain ; they were all invented to obviate the 
 injustice of j)rior statutes and laws, and have led to the system under 
 wliich we have flourished. They are now no longer necessary. The 
 benefits may be retained without the ceremony, which is at once useless 
 and expensive ; we are more enlightened, and fear not to do that directly, 
 which our ancestors could only accomjdish indirectly ; and therefore we 
 are all agreed that the substance should be retained, and that we should 
 arrive at it by a cheap and direct road instead of an expensive and crook- 
 ed way. But do not let us confound ^substances with forms : j- •iin -i 
 and because wc do not approve of the trajijiings, sacrifice the ^ -' 
 
 noble animal whom they encumber but do not adorn.
 
 40 SUGBEN ON SALES, PURCHASES, &C. 
 
 In executing the powers vested in you by your settlement you must 
 always be sj;uidecl by good f;\itb : if under a power to lease at rack or full 
 rent, without taking a fine or premium, you accept a bonus, you commit 
 a fraud on the power, and your lease will accordingly be void ; if you 
 exercise a power to jointure your wife with a stij)ulation that she shall 
 join with you in securing your debts on her jointure, tlie appointment will 
 be void. Nor must you abuse your authority. If you have a power to 
 sell settled estates, and to lay out the money in the purchase of other 
 estates, although there is a direction in the settlement that until a pur- 
 chase is found the money shall be laid out in the funds, yet the intent of 
 the power is, that one estate shall be sold only for the purpose of laying 
 
 ^^ -i out the money in the purchase of another. ^Therefore you 
 
 '-''-' cannot sell the estate in order to keep the purchase-money 
 out at interest, for that would increase your income at the expense of the 
 capital. It would, it is true, give you a larger per-centage ; but the same 
 money probably would not at a distance of time purchase an estate of the 
 same value as that which you sold. 
 
 In some instances equity will restrain rights given by a settlement 
 with which you may conceive they ought not to interfere. Under your 
 marriage settlement you are tenant for life, loithout impeachment of 
 waste, or, in other words, you are not punishable for committing waste, 
 and consequently you may legally cut down as much timber on the 
 estate as you please. But still equity will not suffer you to cut down 
 any trees which are an ornament, or afford shelter to the mansion-house, 
 or to any of the buildings on the estate, or which grow for ornament in 
 any of the vistas, avenues, walks, pleasure-grounds, or plantations on 
 J. *^-- -. the estate. Nor can you justify the act, by having yourself 
 •- -' ^planted even millions of trees on the estate subsequently to 
 
 the settlement ; therefore, if a man making a settlement really mean to 
 reserve power to cut wdiatever timber he please, whether it afford orna- 
 ment, or shelter, or not, the intention should be expressly declared in 
 the settlement. The power which the courts of equity have assumed to 
 restrain the exercise of the right which the words "without impeach- 
 ment of waste" confer at law, is a power which one cannot but lament 
 they should possess. The court can, in general, only judge of the orna- 
 ment or shelter afforded by the trees from the affidavits in the cause. 
 IVIen are but too ready to support the cause of their principal, without 
 always considering sufficiently the justice of it. Affidavits flatly contra- 
 dicting each other are in these cases almost invariably made by the agents 
 of the different parties. This facility of restraining a tenant for life 
 from exercising his legal right foments and irritates domestic strife, 
 P *jor) 1 makes the son the shameless antagonist of his parent in an 
 L """J oj)en *court of justice, and fixes into eternal enniit}' that dis- 
 agreement wliich conciliation might happily have effaced. If such a pro- 
 ceeding wound the peace of a parent in the evening of his days, how 
 severe a punishment does the child inflict on himself I To save a few 
 perishable trees, he preserves, while they last, a monument of his want 
 of filial duty ; he keeps a signal to remind his own children of the duty 
 which they owe to him. 
 
 Equity will also restrain a tenant for life, although without impeach- 
 ment of luaste, from defacing or pulling down the mansion-house. 
 This was done in the year 17 IG, in Lord Bernard's case. lie had
 
 SUGDEN ON SALES, Pt'RCHASES, &C. 41 
 
 almost totally defaced the inansion-lioiisc, hy pullitii; down preat part of 
 it, and was ^t)iii<j; on entirely to ruin it, wlirit'iipon the court not otdv 
 enjoined him not to proceed farther, i)ut compelled hitn to re-build, and 
 put it in the same plight and condition it was at the time of hi.s entry 
 thereiin. 
 
 Where money to any considerable amount is settled, a power should 
 be reserved of layinj; it "out in land to be re-sold when con- r- .iq^ -t 
 vcnicnt, and in the mean time to be treated as money. '- -' 
 
 In money settlements, generally, and sometimes even in settlements 
 of real estate, a power is reserved to the |)arent to appoint the proprrty 
 to all or such of the children as he shall think lit. If the pcjwer is only 
 to appoint tiie proportions amongst the children he cannot exclude any ; 
 every one must have a share ; and although the gift of a share merely 
 nominal would be a bad execution of the power, yet he may make a vast 
 disproportion in the shares. Of course, where the power is to appoint 
 to any exclusively he may give all to one. But still in this, as in all 
 other cases, the j)()wer must not be abused. An appointment cannot be 
 made to a chiUl under any stipulation for the parent's benefit ; for 
 example, that he shall join in a sale of tlic estate, allhounh the chiM may, 
 after the appointment, if he think fit, join with his father in selling the 
 estate, and tiic transaction cannot be impeached if the money is fairly 
 paid to the father and son. So if you "have a j)ower to ap- ^ •104 -i 
 point any sum to any of your children, at what age you L * J 
 please, you cannot appoint it to a sickly child under age, in order that 
 upon his death you may get it as his administrator. 
 
 Almost any instrument, however informal, upon which the intention 
 clearly aj)])cars, will be deemed in erpiity a gootl execution of a power 
 of jointuring, or of appointing pro])eitv to your children ; but such dif- 
 ficuliies arise in these cases that 1 cannot too much impress upon you 
 the necessity of never doing any act in relation to estates over which 
 you have only a power, without first applying to your .solicitor. 
 
 Where a power is given to ai)point a fund amongst children, and the 
 property is <i;iven to them in default of appointment, it is mostly declared, 
 that no child shall take a siiare of any part unappointed, without bring- 
 ing his appointed share into hotchpot — which word hotch|)ot, our 
 famous judge J^ittleton, with great gravity, tells us is, in English, a 
 pudding. The "object of this provision is to compel a child, ^ •101; n 
 to whom part is appointed, to bring his appointed share into L " J 
 the general fund, ij" he is (/esirous to take a share of the part unap- 
 pointed. Thus, suppose there to be two children, and the fund to be 
 £200, if you give L20 to one, he must give np that, in order to obtain 
 an equal share of the £200 with the other child. This you should 
 always keep in view, and more particularly where there is not such a 
 clause in the settlement ; for in tliat case a chilil would not only take the 
 part actually appointed to him, but would be entitled etpially with the 
 other children to the residue, although this can seldom be the intention 
 of the party executing the power. 
 
 If you should ever covenant to purchase and settle estates, you will, 
 if you are wise, perform the covenant in your life-time. However, if 
 you do purchase estates, which are proper to go in perlbrmancc of your 
 agreement, they must go accordingly, although you have permitted
 
 42 SUGDEN ON SALES, PURCHASES, &C. 
 
 r *i R 1 *tl^^"^ to descend to your heir ; consequently he will not be 
 L ^*^- J entitled to retain them for his own benefit. 
 
 It is not unusual for a parent, upon a daughter's marriage, to agree to 
 leave her at his death a fortune equal to his other children. Such an 
 ao-reement does not confine or restrict the father's power ; he may alter 
 the nature of his property from personal to real, or he may give scope 
 to projects, or indulge in a free and unlimited expense — but he will not 
 be allowed to entertain mere partial inclinations and dispositions towards 
 one child at the expense of another. If his partiality do rise so high, 
 and he will make a difference, he must do it directly, absolutel}^, and by 
 a gift surrendering all his own right and interest ; he must give out and 
 out ; he must not exercise his power by an act which is to take effect, 
 not against his own interest, but onl}^ at a time when his own interest 
 will cease. He cannot, for instance, give property in his life-time to 
 
 i^.g- -, one child, reserving *the interest to himself, for such a gift 
 L ~ -' is, in fact, testamentary, and in fraud of his agreement. 
 
 If after you have disposed of an estate by will you make a settlement 
 of it, under which the estate is still vested in you, subject to the interest 
 given to others, I advise you to re-publish your will. Partial interests 
 may in some cases be created, so as not to affect the operation of a prior 
 will as to the interest left in the settler ; but the form of settlements is 
 generally such as to revoke a prior will : and, therefore, if 3'ou only 
 settle the estate on your wife for life, you should cautiously inquire 
 whether the conveyance renders a re-publication of your will essential, 
 or, perhaps, it would be better to re-publish your will without inquiry. 
 
 Sometimes a man is advised, under the circumstances of his title, to 
 levy a fine, or suffer a recovery. Now these acts operate as a revoca- 
 r *ioQ 1 tion of a prior will ; and therefore if you *should do either, 
 '-''-' immediately afterward re-publish your will, 
 
 I have no more cautions to give you as to settlements, and therefore 
 adieu. 
 
 [ *129 ] ^LETTER XII. 
 
 I NOW write to you upon the last subject on which I have promised 
 you any information. It has been in some measure anticipated in my 
 third letter ; and the 11th contains a few hints as to re-publishing your 
 will. 
 
 Before making your will, there are many questions which you should 
 ask yourself — Is it probable that I shall be much in debt at my decease ? 
 What is tbe nature of my property ? Is any part of it already settled 
 on my family ? Have I charged portions on any part of it for my child- 
 ren ? Is my wife dowalde of any part of it ? These are questions 
 which you sliould resolve before you give instructions for your will. If 
 any part of your family estate is lease-hold, you should direct it to go 
 r *I30 1 ^'""S ^^'^'^ the estate with which it is held. This lawyers 
 '■"'-' *can easily effect to the utmost limits which the law allows.
 
 SUCDEN ON s.M.F.s, pi'nc n Asr.s, ii,;c. 43 
 
 If your rliililron aro entitled to porlinns, yon sliouhl derlarc whetlicr you 
 inteiul what yon H'vc tln-m by your will to he in addition to tlicir por- 
 tions, or in satisfaction ol* them. The same observation applii-s to your 
 wile's dower ; lor if you even jjjive lur an annuity out of the very estate 
 of which she is dowable, yet she will he eulilled to her dower also, 
 unless you declare it to he in lieu of dower. 
 
 If you have ^iven your children legacies by your will, and afterwards 
 advance portions with them on their marriage, you shoulil declare by a 
 codicil whether thev are still to be entitled to tlie lenacics. 
 
 Should you wish family pictiurs or plate, or other valuable articles, to 
 go with your estate, you should u;ive them as heir-looms. 
 
 If you have a copyhold estate, and do not surrender it to the use of 
 your will, I advise you to expressly devise it as copyhold estate. I have 
 before observed, that it is not now *nccessary to surrender ^ ».,^. , 
 a co|)yh<)ld to the \\:>c of your will ; but I advise you, im- '- -' 
 
 mediately after you arc admitted to a copyhokl estate, to surrender it to 
 the use of your will. 
 
 In ij;ivinn instructions, where you wish your estate to remain in your 
 familv, stale to your solicitor, whether you mean your sons' dauu;hters to 
 be preferred to your own or not ; and whether your sons' dauu;hters arc 
 to be preferred to your daughters' sons, and so on ; and also state what 
 powers you wish them to have — as to lease, jointure, grant portions for 
 younger children, sell and exchange, &.c. Never in your will say 
 generally that your del)ts shall be paid. Such a declaration always 
 creates a question out of what fund they are jxiyable ; for as you are not 
 in traile, your real estate is by law exempt from your simple contract 
 debts, that is, debts not secured by bond, judgment, or the like. liut 
 if you were a trader, liable to the bankru|)t laws, your real estate would 
 be liable to all your debts. The limd out of which your debts are to be 
 paid 'should be jiarticularly specified. I need not remind ^ *io.) i 
 you, that he who neglects to provide a sulVicient fund for '- " -• 
 
 payment of his debts, is justly said to sin in his grave ; and yet it is, as 
 it seems to me, very far from desirable that the Legislature should put 
 real estate on the same footing in this respect with personal j)roperty. 
 
 I am somewhat unwilling to give you any instructions for making 
 your will, without the assistance of your professional adviser. It is 
 quite shocking to reflect upon the litigation which has been occasioned 
 by men making their own wills. To put off making your will, until 
 the hand of death is upon you, evinces cither cowardice, or a shameful 
 neglect of your temporal concerns. Lest, however, such a moment 
 should arrive, I must arm you in some measure against it. 
 
 If your estate consists merely of what is called personalty, as money, 
 goods, leasehold estates, and the like, you may make your will your- 
 self, without any witness ; and any two persons *who know ^ •ir.o -i 
 your hand-writing may, after your death, prove it. liut it '- ■* I 
 is better to have witnesses, in order that the execution of the will may 
 be proved without difficulty. Hut if you make your will by yourself, 
 do not put upon it any attestation, as it is termed, for a witness to sign. 
 If you do, and afterwards neglect to get a witness to sign it, your will 
 may be deemed incomplete, on tlu- ground that you did not intend it to 
 operate until it was attestetl. The attestation to a will of personalty 
 generally runs, <* Signed and jjublished by the above-named testator, in 
 Vol. 111.-2 L
 
 44 SUGDEN ON SALES, PURCHASES, &C. 
 
 the presence of us ;" and under this the witnesses sign their names. In 
 makino; your will, always appoint an executor, which may be done in 
 these words, " I appoint my friend, William Stewart, executor of this my 
 
 will." 
 
 It is not uncommon for a man to make his own will at intervals. If 
 
 a man will act so unadvisedly, he should regularly sign his name where 
 
 he leaves off, declaring that he means what precedes to stand for his 
 
 ^ ^ will. If he *neglect this, however numerous his disposi- 
 
 L 134 J ijpj^g j^j^y ijg^ ^i^gy ^yjji all |-,g }-,gij yQJj Qj^ ^j^g ground that 
 
 the will is incomplete. And if the will comprise real estate, it must be 
 attested in the same manner as if it were a complete will, of which I 
 shall presently speak. 
 
 In giving a leasehold estate, do not bequeath it generally, or during 
 your present term, but give it " for all the term which you shall be 
 entitled to therein, at the time of your decease." For unless you adopt 
 this mode, a renewed lease will not pass by your will Avithout a republica- 
 tion. And if the estate is held for lives, and not for years, you must 
 re-publish your will in case you renew the lease. 
 
 Never give a legacy of stock or money as part of any fund in your 
 possession, but give it generally. For if you give a man 500/. part of 
 the 3 per cents, standing in your name, that will make the legacy 
 specific ; and if you afterwards sell the stock, the legatee will lose his 
 legacy, although you should die worth millions ; but if you give him 
 if-, OS 1 500/. 3 per cents, generally, *your executor must buy that 
 L J sum for the legatee out of your personal property, if you 
 
 leave no stock to answer it. 
 
 To pass real estate, the statute of frauds (29 Charles II. c. S. s. 15,) to 
 which I have so frequently had occasion to refer you, requires the will 
 to be in writing, and signed by yourself, or some other person in your 
 presence, and by your express directions, and to be attested and sub- 
 scribed in your presence by three or four credible witnesses. I will 
 not disclose what is deemed a sufficient compliance with this provision, 
 but I will tell you, that a prudent man \\\\\ sign and seal his will in the 
 presence of three witnesses, tell them that it is his will, and that he 
 publishes it as such, and requests them to witness it ; and he should see 
 that they do, in his presence, sign the following attestation to be written 
 at the end of the will, " Signed, sealed, published, and declared by the 
 above-named testator, as and for his last will and testament, in the pre- 
 r *!'?« "1 ^^^^^ of us, who in his presence, and at his *request, and in 
 L J the presence of each other, have hereunto signed our names 
 
 as witnesses thereto." The witnesses should never under any circum- 
 stances leave the testator's room until they have signed the attestation ; 
 and if he is confined to his bed, they should sign the attestation in apart 
 of the room where he may see them if he think proper to look. 
 
 It often happens that the witnesses are servants who cannot write, and 
 in that case tiieir marks will be sufficient. Witnesses who only make a 
 mark are usually called marksmen. Do not let any person witness your 
 will to whom you have given a legacy, for by becoming a witness he 
 will lose the benefit of it. This the Legislature found it necessary to 
 enact, in order that such witnesses might be competent to prove the 
 will ; the jud2;es having previously held that a legacy to a witness af- 
 fected his competency.
 
 SUDDEN ON SALES, PlTKrHASES, &C. 45 
 
 There is one tliini; of which 1 must particuhirly warn you. If you 
 were lo j>;ive all your j^oods to mv, 1 ^l^ullhl take llie entire .i..- ^ 
 interest *in them without further worils ; hut if you were to ^ U' J 
 give me all your freehoKI, or copyhoM lands, without sayinp more, I 
 should only take a life-estate in them, and after my death they would go 
 to your heir. This is a distinction which is not ii;enerally un<ltrj.tood, 
 except hy lawyers. The books swarm with cases on (juestit)ns like this. 
 They arise daily. A man thinks when he ^ives his house to another, 
 tliat he j:;ives him tlic entire interest in it in the same way as if it were a 
 horse. It', however, you intend to ^;ive the estate out and out, you 
 nuist either adil what we call words of inheritance to the gift, or words 
 tantamount to them. It is hetter not to tell you what is equivalent lo 
 words of inheritance ; you should use the very words themselves. 
 Thus, if you wish to give your estate in Kent to your wife, not for her 
 life merely, but out and out, you shouKl give it to <» her, her heirs, and 
 assigns for ever :" "I give to my wife, her heirs and assigns for ever, 
 my mansion-house, and all and singular my lands and other heredita- 
 ments in the county 'of Kent, with their appurtenances." • i -.q i 
 These words heirs tind assii^ns, I must oi)serve, enlarge the ^ "^ J 
 gift so as to invest the devisee with the uncontrollable right in the estate, 
 and make it descendible to his heir, if he do not otherwise dispose of it. 
 Where you intend to give a life estate only, say, <' I give to my wife 
 and her assigns, during her life, my mansion-house," &.c. as before ; and 
 if you wish the devisee for life to have a power to cut limber, add, 
 <'' without impeachment of waste." 
 
 If you give a country-liouse, carefully specify what closes or lands you 
 mean to go with it. 
 
 If you wish to tic up your property in your family, you really must 
 not make your own will. It were better to die without a will, than to 
 make one which will only waste your estate in litigation to discover its 
 meaning. The words "children," ''issue," "heirs of the body," or 
 " heirs," sometimes operate to give the parent the entire disj)osition of 
 the estate, althougli the testator did not mean any such thing. They are 
 seldom used l)y a man who makes his own "wi'll without . -ir,,, -i 
 leading to a law-suit. It were useless for me to atlemj)t to "^ " ' 
 show you how to make a strict settlement of your proj)erty, and there- 
 fore I will not try. I coulil, without difliculty, run over the names of 
 many judges and lawyers of note, whose wills made by themselves have 
 been set aside, or construed so as to defeat every intention which they 
 ever had. It is not even a profound knowledge of law which will capa- 
 citate a man to make his own will, unless he has l)een in the hal)it of 
 making the wills of others. Besides, notwithstanding that fees are purely 
 honorary, yet it is almost proverbial, that a lawyer never does anything 
 well for which he is not feed. Lord IManslield told a story of himself, 
 that feeling this inlluence, he once, when about to attend to some ])ro- 
 fessional business of his own, took several guineas out of Jjis j)ur.se, and 
 put them into his waistcoat jiocket, as a fee for his labour. 
 
 Always avoid, and particularly when you make your own will, con- 
 ditional gifts and devises over in particular events. It is the folly 
 "of most testators to contemplate a great many events for ,. »i .« -i 
 which they too often badly j)rovidc, Vou give me a lior.M-, L J 
 
 ''and if I die," you give it to my son. Here a question at once arixs.
 
 46 SUGDEN ON SALES, PURCHASES, &C. 
 
 when the death is to happen — Generally ? In your life-time, or in my 
 son's ? Pray avoid this ; and if you must give a thing over, after you 
 have o-iven the entire interest to one, state precisely in what event, and 
 if depending upon the death of the first legatee, whether you mean a 
 death in your life-time, or in the life-time of the legatee over : And I 
 must tell "you, that where you have given the absolute interest, you ought 
 not to make any gift over which will not take effect in a life, or lives, 
 who shall be in existence at your death. The rule goes somewhat farther, 
 but I would not advise you, without advice, to go beyond the line which 
 I have marked out ; and, indeed, without advice, you will be more bold 
 than wise to go even so far. 
 
 Where a man has a large family to provide for, it is often advisable to 
 f- ^.. -| direct all his property *to be turned into money, out of 
 L 141 J ^^.]-,j(,j^ ]-jg j^-,ay order his debts and legacies to be first paid, 
 and the residue to be laid out at interest in the names of trustees, for the 
 benefit of his family. 
 
 If you have given to any person a legacy by your will, and you after- 
 ward give to the same person another by a codicil, you must declare 
 whether you mean it to be in addition to the legacy in the will, or in 
 lieu of it. 
 
 So if you have given your children legacies by will, and afterward ad- 
 vance them sums in your life-time, you should declare by a codicil 
 whether you mean the sums so advanced to go in satisfaction of the 
 legacies. 
 
 If you have, by your will, given all your estates generally to the same 
 person, and you afterward purchase any other estates which you mean to 
 go the same way, you need only re-execute, or, as it is called, re-publish 
 your will. Take your w^ill, and sign and seal it once more, in the pre- 
 sence of the former, or any other three witnesses, and let them sign the 
 ^ 1 following *attestation at your request, and in your presence : 
 
 L ^ J « Re-signed, re-sealed, re-published, and re-declared by the 
 
 above-named testator, this 24th day of May, 1809, as and for his last 
 will and testament, in the presence of us, who, in his presence, at his 
 request, and in the presence of each other, have hereunto set our names 
 as witnesses thereto." 
 
 A subsequent will, duly executed, will revoke a prior one, if incon- 
 sistent with it ; but in making a second will, it is better expressly to re- 
 voke the first. You may also destroy your will by cancellation, as tearing 
 off the seal, and drawing lines across it, or by tearing, burning, or oblite- 
 rating it, although verbal evidence is in these cases admissible as to your 
 intention, for the act must be done animo revocandi. Therefore, if by 
 mistake you should throw ink all over your will, instead of sand, the 
 will would be good if it could be made out. And if you make a will, 
 which you do not destroy, and then make another inconsistent with the 
 r ^^A'X 1 first, but without actually revoking it, and *afterward burn 
 L -^ or otherwise destroy the second, your first will thereupon 
 
 revives, and is of the same force as if you had not made another. You 
 must not lose sight of this. 
 
 In some instances the courts have assumed a power of making a man's 
 will void, on the presumption that he himself must have intended to re- 
 voke it. We seem to have borrowed this from the civil law. The civi- 
 lians, indeed, carried the doctrine so far as to hold every will void in
 
 SUGDEN OX SALES, IMHCHASES, &C. 17 
 
 which the licir was nut noticed, on tlu' |)rcstMii|)tii)n that Ins i.hik r must 
 liavi- forj^otten liinu From this, as IMackstonc icasonahl\ conjc'ctini-H, 
 has arisen that p;roun<lK'SS vnlu;ar error of the necessity uf ^ivinj; the heir 
 a shilling;, or some other nominal sum, to show that he was in ijje testa- 
 tor's remembrance. 'I'hc jiractice is to he tiepricatetl, as it wounds un- 
 necessarily the feelings of a disinherited child : This you may say docs 
 not always happen. — '< I give my son Tom," says a testator in his will, 
 '• a shilling to huy him a rope to hang himself with." ''God grant," 
 says Tom, upon hearing •the will read after his father's ^ ,i .4 -1 
 <leath, "that he had lived to enjoy it himself I" But not to «- J 
 
 keep yoxi in suspense, the case in which our courts hoKl a man's will 
 void, although duly executed, and not revoked, is where he makes his 
 will, and afterwards marries, and has a child, and no provision is made 
 by his will for his wife or child. It is considered that he must have in- 
 tended to revoke his will. Uut 1 must observe, that as the will is mere- 
 ly held to be revoked on the presumption of the man's intention, this 
 j)resumj)tion may, I conceive, be rebutted by even parole or verbal evi- 
 dence ; therefore, if it can be proved that subsequently to his marriage, 
 ami the birth of his child, he declared distinctly and solemnly that his 
 will should stand, the |)resumption ceases, and the will cannot be im- 
 j)eached. This, I ajii)rehend, will turn out to be the law, although the 
 question seems to be at present afloat. In analogy to other cases, it will 
 be found difllcult to refuse the evidence. It is however a question which 
 ought never to arise. When a man marries *he should im- ^ '\.\'\ l 
 mediately make a new will to meet the obligations which he ^ 
 has imposed on himself. If he really means iiis old will to stand, he 
 should expressly declare so by a codicil. 
 
 1 HAVE now only to express my hojic that you may derive some bene- 
 fit from my correspondence. If it merely teach yon to distrust your 
 own knowledge on the subject, it will not have been written in vain. 
 I claim no merit for what I have written : it has cost me little more 
 than the labour of writing currentc cahnno. The learning which my 
 letters contain is of common occurrence ; but you will not therelore find 
 it of less use. It has been justly observed, that refined sense and enlight- 
 ened sense arc not half so good as common sense. The same may be 
 said of legal learning. It would have been idle in me to have furnished 
 you with nice disquisitions on abstruse ]>oints of law. I have felt no 
 anxiety in any *case to point out to you how you may evade ^ *\ac 1 
 or break, in upon any rule. I have avoided the lanes and ^ 
 by-ways, and endeavoured to keep you in tiie public high road. If you 
 wander from it, the blame will rest with yourself. 
 
 2 1.2 '
 
 I ?^ D E X. 
 
 The pages referred to are those between brackets, [ ]- 
 
 ACCIDENTS, 
 
 to the estate before the conveyance, fall on the purchaser, 71. 
 ADVOW'SON, 
 
 may be purchased whilst the living is vacant, 74. 
 
 may be purchased by a clergyman, 76. 
 See Mortgagee. 
 AGENT, 
 
 cannot bind his principal by bidding be3'ond his authority, 52. 
 
 of the agent's remedy, where the principal denies the authority, ib. 
 
 in what cases an agent may fraudulently retain the benefit of his purchase, 53. 
 
 a seller cannot object that the estate was bought in the name of an agent, in what 
 cases, 54. 
 
 AGREEMENT, 
 
 the difference between the remedy at law, and in equity, upon an agreement, 3. 
 
 a partial execution of an agreement will be compelled, in what cases, 9. 
 
 the eflect of an agreement to buy or sell an estate, on the property of the buyer 
 and seller, 13. 
 
 if two are in treaty for an estate, and one agree to let the other go on, and get the 
 estate for their mutual benefit, there must be a written agreement, 60. 
 
 for the sale or purchase of an estate must be in writing, 61. 
 
 letters, or receipts for purchase-money, are tantamount to an agreement, in what 
 cases, 62. 
 
 what acts are not tantamount to an agreement, 6.3. 
 
 in what cases equity will relieve, although there is not a written agreement, ib. 
 
 agreement to purchase and settle estates, what is a performance of it, 125. 
 
 agreement to leave a child a portion equal to the other children, what is a breach 
 of it, 126. 
 ANNUITY, 
 
 estate bought for an annuity, belongs to the purchaser, although the annuitant dies 
 before the conveyance, in what cases, 72. 
 ARBITRATION. See Price of an Estate. 
 ATTESTATION. See Will. 
 ATTORNEY, 
 
 in what cases liable for his want of skill, 35. 
 
 a purcliaser should not employ the seller's attorney, 45. 
 
 a purchaser is liable for any fraud committed by his attorney, 46. 
 AUCTION, 
 
 seller may buy in the estate, 30. 
 
 seller may privately appoint a person to bid, in what cases, 31. 
 
 bidding at an auction may be countermanded before the hammer is down, 51. 
 See Agent. Conditions. 
 AUCTION DUTY, 30. 32. 
 AUCTIONEERS, 
 
 ought not to prepare the conditions of sale, 27. 
 
 are ciilitlod to retain the dopositc till the contract is completed, 30. 
 
 not authorized to give credit, ib.
 
 INDEX. 49 
 
 AUCTIOXERRS— ro«^;iMrf/. 
 
 boIIlt is liable in case ofllio auctioneer's intiolvcncy, :J0. 
 where litiblo for a iiiis-stuteinont to a Ht-llcr, Ml. 
 
 IJANKKIIS. S.!o I)KiH)siri:. 
 UAUUISTKItS, 
 
 cannot maintain an action for tlioir fees, Il-'i. 
 
 are not liable for want of nkill, ib. 
 BF/iUIOST. See Leaseiioldh. W11.1,. 
 
 inUDlNG, 
 
 at an auction may be countermanded before the hammer is down, .")!. 
 See Aktion. 
 BUYER. SoeriiMii.vs^KH. 
 
 CHILI), 
 
 the ed'oct of takinj; a conveyance in the name of the purchaser's child, 5^. 
 power to ap|)uinl to children, must not be fraudulently exercised, ]'Si. 
 agreement to leave a child a portion equal to the other children, how performed, 
 120. 
 
 See Revocation ok a Wii.i,. 
 
 CODICIL. 
 
 elTect of a codicil on after-purchased estates, 20. 
 See Will. 
 CONDITIONS OF SALE, 
 
 what provisions should be contained in them, 29. 
 
 cannot be contradicted by a verbal statement at the sale, ."jI. 
 CONSIDERATION. SeeANMnv. Pkk k. 
 
 CONVEYANCE, 
 
 in the name of a strang'er, the effect of it, .'kS. 
 
 in the name of a child, grandchild, or wife, the effect of it, ib. 
 
 COPYHOLD, 
 
 purchaser not bound to take a copyhold estate if he contracted for a froeiiuld, 10. 
 
 should be devised as copyhold, 1I}((. 
 
 should be surrendered to tiie use ot a will, 131. 
 
 DE.\TH. SccAnmity. 
 
 DEBTS, 
 
 how they should be charged by will, 1.31. 
 
 DEI'OSITE, 
 
 if a purchaser is entitled to a return of his deposite, he is not bound to take slock in 
 
 wliich it has been invested without his consent, ()7. 
 purchaser cannot deposite the purchase-money at a banker's, &c., at the risk of the 
 seller, without ins assent, 0^. 
 See AvcTio.NEEK. 
 
 DEVISE, 
 
 purchaser may devise an estate contracted for, before it is conveyed to iiim, !•')• 
 copyholds should be devised as such, I'M. 
 See llEvotATio.N. Will. 
 
 DOWER, 
 
 provision by will, in lieu of it, should be expressly declared to be so, 130. 
 
 ELECTION, 
 
 where the heir will be put to his, 20. 
 EQUITY, 
 
 what it is, .3. 
 
 EXCHANtJE. SocTknant foii Life. 
 FALSE RE1'REj>ENTATI< )NS, 
 
 stranger making a false representation to a purchaser is liable, 37. 
 
 incumlirancer denying his charge to a purchaser, cannot recover it, 3S. 
 See Re.nt. Rei'aihs. Sellek.
 
 50 INDEX. 
 
 FATHER AND CHILD. See Conveyance. Simoxy. 
 
 FIRE, 
 
 accidents by fire before the conveyance, fall on the purcliaser, 71. 
 in what cases a tenant is bound to insure against fire, 97. 
 
 FREEHOLD. See Copyhold. Leasehold. 
 
 FRAUD. See Agent. Agreement. False Representations. Powers. Set- 
 tlements. Title. 
 
 GRANDCHILD, 
 
 the effect of taking a conveyance in the name of a grandchild, 58. 
 HEIR, 
 
 selling his expectancy, in most cases relievable, 66. 
 
 estates purchased after a will go to the heir, in what cases, 16. 
 
 may in some cases be put to iiis election, 20. 
 
 of the gift of a shilling to him, 143. 
 See Copyhold. 
 HOTCHPOT, 
 
 what it is, 124. 
 HOUSE. See Repairs. 
 HUSBAND AND WIFE. See Jointure. Pin-money. Wife. 
 
 INADEQUATE PRICE, 6.5. 
 
 INCUMBRANCER. See False Representations. 
 
 INCUMBRANCES, 
 
 in what cases a purchaser will be relieved against them, 34. 
 See Settlements. 
 INTEREST, 
 
 from what time payable by a purchaser, 69. 
 
 in what cases payable by a purchaser, 70. 
 
 on purchase-money for timber, ib. 
 
 at what rate payable by a purchaser, 71. 
 See Mortgage. 
 JOINTURE, 
 
 power to, cannot be exercised for the husband's own benefit, 119. 
 JOINT-PURCHASE, 
 
 the effect of it, 59. 
 
 LANDLORD AND TENANT. See Lease. 
 LEASE, 
 
 purchaser having notice of lease, is bound by all its contents, 39. 
 
 what leases may be made by parole, 95. 
 
 agreements for leases must be in writing, ib. 
 
 agreements for leases should contain a minute of the covenants, 97. 
 
 agreement to grant a lease for 7 or 14 years, the option is in the tenant, 98. 
 
 taking a fine for a lease, under a power to lease at rack-rent, makes the lease void, 
 100. 
 
 what amounts to a reservation of the best rent, 101. 
 
 under a power, may be granted to a trustee for the person exercising it, ib. 
 
 lease of land under a power with other land, at an entire rent, is bad, 102. 
 
 renewed lease will pass by a prior will, in what cases, 134. 
 See Mortgagee. Mortgagor. 
 LEASEHOLDS, 
 
 sold for a longer term than the seller is entitled to, what is the consequence, 9. 
 
 purcha.scr not bound to take a leasehold estate when he contracted for a freehold, 10. 
 
 how a leasehold estate should be bequeathed, 134. 
 See Will. 
 
 LEGACIES, 134. 
 LETTERS, 
 
 in what cases they are tantamount to an agreement, 62. 
 
 See Agreement. Leases. Purchaser. Settlement.
 
 INDEX. 51 
 
 LOTS, 
 
 the consc«iiiencc of a Bcller not having a title to all the lota sold, 11. 
 MANSlON-iiOL'SE. Sec Tenant roii i.in:. 
 MARKl,\(iK. See Skitlkmenth. 
 MISDKSCKII'TION 
 
 of uii cbtute, tlic consequences of it, 'Jl. 
 MISTAKE. 
 
 purchase, by miatake, of a iiiau's own estate, will be relieved in equily, 7M. 
 MORAL DUTIKS 
 
 of a seller, "Jvi. 
 MORTGAGE, 
 
 what It is, 7!). 
 
 interest cannot be made principal, SO. 
 
 money cannot be repaid atler day appointed without six months* notice, ib. 
 MORTG.UJKK, 
 
 his rif,'lit.>i, ■'I. 
 
 how he iiuiy obtain possession of the estate, 82. 
 
 cannot make a lease, ib. 
 
 may (pialify as a member of II. C, S-1. 
 
 is liable to account, ib. 
 
 must not commit waste, 85. 
 
 cannot present to an advowson, 86. 
 
 is barred by non-claim of interest for 20 years, 88. 
 
 may compel a tbreclosure, ib. 
 MORTGAGOR, 
 
 his rights, 82. 
 
 cannot make a lease binding on the mortgagee, ib. 
 
 may vote at an election, 84. 
 
 is barred by twenty years' possession of the mortgagee, 87, 
 
 unless he was under a disability, ib. 
 
 may compel a redemption, »8. 
 
 is barred of his right to redeem by fraud, in what cases, 89. 
 NOTICE, 
 
 if property purchased is vested in a trustee, notice of the sale should be given to 
 him, 41. 
 
 purchaser buying with notice of the claim of another, is bound by it, 42. 
 
 is sometimes implied, 44. 
 
 notice to the purchaser's agent is notice to him, ib. 
 PAROLE AGREEMENT. See Auree.ment. 
 PART OF AN ESTATE, 
 
 in what cases a purchaser must take a part of the estate, when he contracted for 
 the whole, M, i(). 
 See Tithes. 
 PARTNERSHIP. See Joi.vr Purchase. 
 PIN-MONEY, 
 
 if a wife permit her husband to receive her pin-money, she cannot recover the 
 arrears atler his death, lU'J. 
 POSSESSION, 
 
 must be delivered of an estate purcliased, at the day appointed, in what cases, !>. 
 
 purchaser should not take possession, if the title is not clear, 4(1. 
 POWERS, 
 
 of sale and exchange may be exercised by tenant for life, for his own benefit, r)?. 
 
 estates cannot be sold under a power of sale and exchange, in order to keep the 
 money out at interest, 120. 
 
 how powers to appoint property to children may be cxercisetl, 12.?. 
 
 lease under powers, 99. 
 
 how powers to jointure may be exercised, 119. 
 
 what should be reserved in scttlemontii, WJ. 
 See Lease. Te.wnt for Life.
 
 52 INDEX. 
 
 PRESENTATION, 
 
 caiinot be purchased by a clergyman, 75, 
 See SiMoxY. Resignation Bonds. 
 
 PRICE OF AN ESTATE, 
 
 of inadequate and unreasonable prices, 65. 
 to be fixed by arbitrators, G7. 
 
 PRINCIPAL AND AGENT. See Agent. 
 PROFIT AND LOSS, 
 
 to an estate before the conveyance goes to the buyer's account, 7L 
 See Stock. 
 PUFFER, 
 
 may be appointed by a seller to bid at an auction, in what cases, 3L 
 
 PURCHASE-MONEY, 
 
 must be paid out of the purchaser's personal estate, 15. 
 
 cannot be invested or deposited by the purchaser, at the risk of the seller, witli- 
 out his express assent, 08. 
 PURCHASER, 
 
 is entitled to the estate from the time of the contract, and may devise it before 
 
 the conveyance, 15. 
 buying an estate misdescribed, with notice of the actual state of it, is bound, 25. 
 is entitled to what relief in respect of defects and incumbrances, 34. 
 should examine the estate before he buys, 36. 
 
 is not bound to disclose latent advantages to the seller, as a mine, ib. 
 the effect of a purchaser taking a conveyance in the name of a stranger, &c., 58. 
 should not write letters pendiifg a contract without what precaution, 62. 
 is entitled to any benefit, and must bear any loss to the estate before the convey- 
 ance, 72. 
 
 See Agent. Attorney. Joint Purchase. Notice. Seller. Will. 
 RECEIPTS, 
 
 for purchase-money amount to an agreement, in what cases, 64. 
 
 REGISTER COUNTIES, 45. 
 RENT, 
 
 a seller is answerable for a false statement to a purchaser of the quantum of rent 
 
 payable, 27. 
 in what cases it must be paid by a tenant, although the house is burned down, 98. 
 See Lease. 
 REPAIRS, 
 
 the consequence of falsely stating a house upon sale to be in good repair, 8. 
 
 REPUBLICATION OF A WILL, 
 
 in what cases a will should be republished, 127. 
 
 the effect of republishing a will, 141. 
 
 how a will should be republished, ib. 
 RESIGNATION, 
 
 bond of, where valid, 70. 
 REVOCATION OF A WILL, 
 
 purchase of the fee by a tenant for years revokes a bequest of the term by him, 18. 
 
 subsequent will revokes a prior one, in what cases, 142. 
 
 how a will may be revoked, ib. 
 
 marriage and birth of a child, a revocation of a prior will, in what cases, 144. 
 
 SALE AND EXCHANGE. See Powers. Tenant for Life. 
 SELLER, 
 
 must disclose what defects in the estate, 22. 
 
 is bound by a misdescription of the estate, 24. 
 
 must disclose incumbrances and defects in the title, 25. 
 
 may puff his property, 20. 
 
 may make what mis-statements as to value or rent, 27. 
 See Agent. Auctioneer. Pirchaser. Title.
 
 INDEX. 53 
 
 SETTr^KMKXTS, 
 
 airrofintMit for a setllemcnt must be in writiiiir, lOM. 
 
 a letter is a sufficient njfrcenient, in wliut canes', il). 
 
 C(|uity will, in some ch^'h, enforce a verbal apreoment by rcown of fraud, 10-1. 
 
 how an incumbered estate should be HCltled, lOo. 
 
 tlie common ujodes of settlement, ib. 
 
 a future marriaj^o should be provided for in making a aettlemcnt, 1(K). 
 
 what jwwerH should be reserved in settlements, ib. 
 See I'ownis. \Vii.i,s. 
 SIMONY, 
 
 it is simony to purchase a vacant livinp, 71. 
 
 but not upon a prospect of a speedy vacancy, ib. 
 
 it is simony to jjurchasc a living, though full, for a particular person, and then 
 present him, 7-"). 
 
 Sue AUVOWSO.V RESICiNATION Bo.NDS. 
 
 STOCK, 
 
 deposite laid out in stock, not binding on the purchaser without his assent, 07. 
 purchaser cannot invest hid purchase-money in stock at the risk of tlie seller, 
 
 without his e.vpress assent, (!*<. 
 purchaser is not entitled to any allowance for a loss in the sale of stock, if the 
 title prove bad, without any fraud in the seller, (ii). 
 TENANT FOR J.IFE, 
 
 may himself, under powers of sale and exchange, buy or take the settled estates 
 
 in exchange, 57. 
 cannot sell the estate under a power of sale and exchange, in order to keep tlie 
 
 money out at interest, \20. 
 cannot cut ornamental timber, allhoufjh not punishable for waste, ib. 
 must not deface the mansion-house, rj*J. 
 TIMBER, 
 
 interest on the purchase-money for timber payable only from the valuation, 70. 
 equity will not suller a tenant for life to cut ornamental timber, I'-iO. 
 TITHES, 
 
 estate purchased free from titJies, purchaser not compellable to take the estate if 
 
 subject to tithes, 10. 
 although the seller is willing to allow compensation, 11. 
 TITLE, 
 
 seller only liable nominally where he is, without fraud, incapable of making a 
 
 title,'l2. 
 in what cases it should be examined before a sale, 28. 
 TRUSTEE, 
 
 cannot buy the trust estate of himself, 5(5. 
 See Notice. 
 UNREASONABLE PRICE, 65. 
 
 USURY, 
 
 what it is, 71). 
 
 a grant of a life annuity is not, 91. 
 
 VALUE, 
 
 seller answerable for mis-statements of value, in what cases, 27. 
 
 VENDOR. See Seller. 
 WASTE, 120. 
 
 See Tenant for Life. 
 WIFE, 
 
 the effect of taking a conveyance in the name of the purchaser's wife, 5^. 
 
 See Joi.NTlRE. PiN-MONEV. REVOCATION OF A WiLL. 
 
 WILL, 
 
 a contract to sell an estate revokes a prior devise of it by the seller, l-T. 
 
 so, although only an optiop is given to a man to buy, if he accept it, 11. 
 
 purchaser may devise an estate before it is conveye<l to him, 15. 
 
 but if a title cannot be made by the seller, the devisee will not be entitled to it, 17. 
 
 purchase of the fee by tenant for years revokes a bequest of a term by him, 1*?.
 
 54 INDEX. 
 
 WILL — continued. 
 
 estates purchased after a will do not pass by it, 20. 
 
 effect of a codicil on after-purchased estates, ib. 
 
 where it should be republished, 127. 
 
 what instructions should be given for a will, 131. 
 
 how debts should be charged, ib. 
 
 of personalty, may be without witnesses, 132. 
 
 should not have an attestation for witnesses to sign at a future time, 133. 
 
 of personalty, how it should be attested, ib. 
 
 of copyholds mortgaged, 81. 
 
 of real estate, how it must be e.xecuted and attested, 135. 
 
 who may be witnesses, 136. 
 
 how an estate should be devised, where it is intended to be given out and out, ib. 
 
 additional legacies to the same person, what declaration should be added to them, 
 141. 
 
 the effect of republishing a will, ib; 
 
 how to be republished, ib. 
 
 revoked by a subsequent one, in what cases, 142. 
 
 how it may be revoked, ib. 
 
 marriage and birth of a child a revocation of a prior will, in what cases, 144. 
 See Copyholds. Dower. Heir. 
 WITNESSES. See Will. 
 WRITTEN AGREEMENT. See Agreement. 
 
 THE END. 
 
 T AW LIBRARY
 
 LITHOMCi. 
 PAMPHLET L 
 
 &AVLORD BROS. U. 
 iy<»<<t»m, N Y