UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY THE LAW OP VENDORS AND PURCHASERS OP estate*. A . PRACTICAL TREATISE OF OF VENDORS AND PURCHASERS OF ESTATES. By EDWARD BURTENSHA7V SUGDEN, of Lincoln's inn. BON7E FIDEI VENDITOREM, NEC COM MODORUM SPEM AUGERE, NEC XNCOMMODORUM COGNITIONEM OBSCURARE OPORTET. Valerius Maximus, l. viii. c. 11. THE SECOND EDITION. LONDON : printed for j. butterworth, fleet-street; and j. cooke, v ormond-quay, dublin. 1806, T R. Wilks, Printer, Chancery-lane. ADVERTISEMENT. A new edition of this work having been called for, the author has availed himself of the op- portunity to revise and correct the former. He has also considerably enlarged the work, by the introduction of a great number of addi- tional cases. It has been his anxious endeavour to render the volume worthy of that indulgence which has been so kindly bestowed upon it by the Profession. Stone 'Building, Lincoln's Inn, jst June, 1806. 783180 ™ E THE CONTENTS. INTRODUCTION. Page 1 CHAP. I. OF SALES BY AUCTION AND PRIVATE AGREEMENT . 11 CHAP. II. OF SALES UNDER THE AUTHORITY OF THE COURTS OF EQUITY ....... SO CHAP. III. OF THE FOURTH SECTION OF THE STATUTE OF FRAUDS (OF PAROL agreements) .... 42 CHAP. IV. OF THE CONSEQUENCES OF THE CONTRACT . • 120 CHAP. V. OF THE CONSIDERATION ..... 167 CHAP. VI. OF THE PARTIAL EXECUTION OF A CONTRACT, WHERE A VENDOR HAS NOT THE INTEREST HE PRETENDED TO SELL ; AND OF DEFECTS IN THE QUALITY AND QUANTITY OF THE ESTATE . . • I 83 CHAT. X THE CONTENTS. CHAP. VII. OF THE TITLE A PURCHASER MAY REQUIRE . . 205 CHAP. VIII. OF THE TIME ALLOWED TO COMPLETE THE CON- TRACT . . . . . ► . 244 CHAP. IX. OF THE ABSTRACT AND CONVEYANCE ; THE ASSIGN- MENTS OF TERMS, ATTESTED COPIES AND COVENANTS FOR TITLE, TO WHICH A PURCHASER IS ENTITLED ; OF SEARCHING FOR INCUMBRANCES ; AND OF RELIEF IN RESPECT OF INCUMBRANCES . . . 260 CHAP. X. * OF INTEREST 319 CHAP. XL OF THE OBLIGATION OF A PURCHASER TO SEE TO THE APPLICATION OF THE PURCHASE-MONEY . 329 CHAP. XII. EN ON THE ES PURCHASE-MONEY, IF NOT PAID . . . 352 OF THE VENDOR'S LIEN ON THE ESTATE SOLD FOR THE CHAP. XIII. OF THE CONSTRUCTION OF COVENANTS FOR TITLE 867 CHAP. THE CONTENTS. x * CHAP. XIV. OF THE PERSONS INCAPABLE OF PURCHASING . . 388 CHAP. XV. OF JOINT PURCHASES; PURCHASES IN THE NAMES OF THIRD PERSONS; AND PURCHASES WITH TRUST MONEY. .....»• 406 CHAP. XVI. * OF THE PROTECTION AND RELIEF AFFORDED TO PUR- CHASERS BY STATUTES, AND BY THE RULES OF EQUITY ....... 429 CHAP. XVII. ©F NOTICE i ; 490 CHAP. XVIII. OF PLEADING A PURCHASE ...» 507 APPENDIX OF NOTICES, &C. . . « .515 APPENDIX OF CASES , . 524 ADDENDA ( xii ) ADDENDA el ERRATA. THE reader is requested to add references from pages 38, 302, and 430, to page 5*3 ; and from page 536 to page 5"o. Page So last line, for including read excluding. 132, last line but one, for could read would. i3fi,lincl, for par read pur. 232, line 2o, after remainders dele the period, and insert &comma. 3;o, line 31, note, for ine read in. 470, line 4, for preference read reference. 582, line 1" , dele Bankruptcy commissioners of. A. case has been just determined at nisi prizes, which evinces the necessity of stating eveiy charge or incumbrance on the estate, in the particulars of sale. A house was sold by auction, and no notice was taken of a fee farm rent of 5s. 4:d. charged upon that and upon other property, to a very great amount. The purchaser wishing to get rid of the contract, objected to the title on another ground, which the vendor's counsel thought could not be maintained. The purchaser brought an action for recovery of his deposit, with interest, and the expences of investigating the title. At the trial the objection was taken as to the fee farm rent, and sir Vicary Gibbs for the vendor, the defendant, de- clined arguing the point. A verdict was given against the defendant, for the deposit with interest, and the expences of investigating the title. See p. 158, 159 of this work. Turner v. Beaurain, Sitt. Guildh. cor. lord Ellenborough, C.J. 2d. June, 1806. See p. 183 of this work. INDEX INDEX T O CASES CITED OR INTRODUCED. Note, "v." follows the name of the plaintiff: "and," the name of the defendant. The cases printed in italics, about 7° i n number, are of four descrip* tions : — 1st. Cases not in print, the most important of which are stated in the text, or reported in the Appendix. 2dly. Cases reported elsewhere, but which are cited from manuscript notes : a few of these, which appeared to throw additional light upon the cases, are stated in the Appendix. Where they are not stated, they agree in substance with the printed reports, and are merely cited from the MSS. in confirmation of the accuracy of those reports. 3dly. Cases that appeared to be inaccurately or defectively reported, for which the author has. searched the Registrar's books, and of which cases the inaccuracies and defects are corrected and supplied. 4thly. Cases for which the Registrar's books have been consulted with- out success. The search for these cases is stated in order to save others the trouble of searching for them, although the author does not intend to say, that others may not be more successful than he has been. The "Rep. Cha." is referred to by the paging of the folio edition. The edit, of Tothill referred to, is that of 167 1, the errors in the folios of which were corrected with a pen. A. Page . Page xVbeot v. Gibbs Abbot and Jebb Abdy v. Loveday Abingdon Lord and Child 323 331 332 478 ,324., Abney and Merry Acherley v. Acherley Acfcerman and Brand Acton and Cage L - 493 - 415 503 263 326 Acton v. Peirce 153 t > Adams XIV Index to cases. Page Adams and Daniel 56, 143, 145, 149 Adams and Dickenson - 78 Adams and Hill 2S2 Adams v.Weare - 16/ Adcock v. Mertens - 25 Addison v. Dawson - 300 Addy Vc Grix - - 236 Adkinson and Hall - 477 Alam v. Jourdon - 504 Alcock and Knollys - 132 Aldrich v. Cooper 36 1 Aldridge and Floyd - 122 Aldridgeand Mesnard - 22 Allan v. Bower - #3 Allen and Garbrand - 3f)0 Alley n v. Alleyn - 121, 12? Allington and Boteler - 14] Allington (Lord) and Napper 3b/ Allpass v. Watkins - 161 Alsop v. Patten - - 7<3 Alston and Taylor - 418 Alt and Bramley - 18 Altham (Lord) v. the Earl of An- glesea - - 41 S Altham's case - 102 Ambrose v. Ambrose - 415 Amcourt v. Elever - 162 Amy's case - - g Anderton and Robinson - 313 n. Andover (Lady) and sir James Lowther - - 256, 310 Andrew v. \Vrigley, 317,343, 350, 4S8 Andrews and Back * 425 Andrew's case 203, 204 Andrews and Charles 10'/, 221, 352 Andrews v. Emersoa - 37 Andrews and Lever - 415 Page Andrews and Maddison - 419 Anglesea (Earl of) and Lord Al- tham - 418 Annesley v. Ashurst - 40 Anonymous (2 Cha. Ca. 1Q) 315 Anonymous (2 Cha. Ca. 53) 144 Anonymous (2 Cha. Ca. 136) 497 Anonymous (2 Cha. Ca. l6l) 508 n. 511 Anonymous (2 Cha. Ca. 208) 476 Anonymous (1 Freem. 486) 7^ Anonymous (1 Freem. -450) 374 Anonymous (2 Freem. 106) 201, 312, 313, 315 Anonymous (2 Freem. 128) 74, 86, 420 Anonymous (2 Freem. 137) 49» Anonymous (2 Freem. 155) 138 Anonymous (I Vera: 318) 494 Anonymous (1 Ventr. 361) 42 Anonymous (2 Ventr. 361, No. 2) 303, 510 Anonymous (2 Ventr. 361, No. 3) 415 Anonymous (Carth. 15) - 406 Anonymous (Mose. 96) 331, 335 Anonymous (Gilb. Eq. Rep. 15) 129 n. Anonymous fSel. Cha. Ca. 57)427 Anonymous (Skin. 159) a 117 Anonymous (Skin. 404) - 503 Anonvmous (5 Vin. Abr. 521, pL 32) - - 413 Anonymous (5 Vin. Abr. 522, pi. 3b) - - 83,97 Anonymous (5 Vin. Abr. 523 pi. 40) - 83 Anonymous ( 1 Show. 90) 238 Anonymous (l Salk. 153) 332 n. 1 Anonymous(lLordRaym.l82) 42 Anonymous INDEX TO CASES. XV Page Anonymotis (t)ougl. 3S4 cited) 107 r». Anonymous (3 Atk. 2/0) 505 Anonymous (2 Dick. 4Q~ n.) 165 Anonymous (1 Ves. Jun. 453) 27, 39 Anonymous (2 Ves. Jun. 280) 39 Anonymous (2 Ves. Jun. 335) 33 Anonymous (2 Ves. Jim. 487) 37 Anonymous (5 Ves. Jun. 148) 37 Anonymous (6 Ves. Jun. 24 cited) oo Anonymous (6 Ves. Jun. 470 cited) <■ - 83 Anonymous (6 Ves. Jun. 513) 39 Anonymous (l Trea. Eq. 211 n.) (r) - 1S4 Anonymous (3 East 337 cited) 14 Anonymous (MS.) - 214 Ansell and Meres - 88 Appleton v. Binks - 2Q Applin and Doe App. n_ Ardesoife v. Bennet - 122 Ardglasse (Ear! of) v. Muschamp 172 Arkwright and Crosley -•; 179"- Arnald v. Arnald - 130 Arnold and Bechuiall - 477 Arnot V. Biscoe - 505 Arundel and Day 503 n. 5 10 Ashdown and Stileman 424, 435 Ashurst and Annesley - 40 Ashley v. Baillie * 492, 493 Ashton and Nash - 375 Aston v. Aston - 508 Aston and Culpepper 331, 343, 494 Aston and Curzon - 51 1 Atchcrley v.Vernon 120, 121, 122 Page Atchison v. Dickson - 17(3 n. Atkins v. Rowe - 413 Atkinson and Bowles - 199 Attorney-General v. Bagg - 422 Attorney-General v. Cast-plate- glass Company - 103 Attorney-General v. Day 41, 65, 135 Attorney-General v. Gower 194, 492, 510 Attorney-General v. Parker 107 Attorney-General v. Sands 2/0, 279, 2S6, 290, 292 Attorney-General v. Soott 2S2n. Attorney-General v. Sutton App. n. Attorney-General and Thruxton 290, 291, 292 Attorney-General v. Vigor 130 Atvvood and Moth - 173 Auriol and Mills - 387 Austen and Davies - 481, 482 Austen v. Halsey - 302 Awbiy v. Keen - 313 Aylesford's (Earl of) case - 73 B. Baqk v. Andrews - 425 Backhouse and Bedford 466, 463 Baddall and Gibbons - 354, 364 Baden v. Earl of Pembroke 121, 292 Bagenal and Whaley - 51,72 Bagg and Attorney- General 422 Baily v. Ekins - 335 Baily and Lamas - 412 Eaily and Stent - 175 Baily and Stephens - 133 Baillie and Ashley - 492, 493 Baillie v. Chaigneau b.2 37 Baker XVI INDEX TO CASES. Page ' Baker v. Child - - H3 Baker and Cuthlert - 186, 337 Baker v. Paine - - US Baker and Smith - 415 Baker and Squire - 168 Baldwin v. Boulter - 182 Baldwin and Lloyd - 331,333 Balgney v. Hamilton - 427 Ball v. Bumford - -4^5 Ball and Symonds - 5/ n. Ballard and Crowe - 400 Ballard and Hercy - 241 Bally v. -Wells - 3t>7 Banbury ( Earl of) and Bisco 499 Banes and Cvoyston - 65 Banks v. Sutton - 282 Barber and Davy - 319 Barber and Lea - - 64 Barchard and Low - 17 1 Barker and Brampton - 510 Barker v. Hill - 120 Barker v. Hulford - 34 Barkley and Jones - 163 Barksdale v. Morgan - 203 Barnard ar;d Sitwell - 325 Barnard (Lord) and Vane 312, 493 BarnardLton (Sir J.) v. Lingood 172 Barnes v. Crowe - 123 Barnes and Freeman - 265 Barns v. Canning - - 494 Barnston and Stackhouse - 242 Barif it v. Gomeserra - J3, l6S Barrington v. Horn - 144 Barrow arid Hilton - 156 Barry v. Lord Barry more - 5 6 Banymore (Lord) and Barry 56 Barstow and KiKington - 113 Bartlettv. Pickersgill 69/415, 418 Page Barton and Richards 158, 260, 262, 302 Bartsh and Kitchen - 107 Basset v. Nosworthy 476,510 Basset and Upton - 431 Bateman and Cox - 427 Bateman and Stephens - 17 1 Bath (Earl of) v. Sherwin 154 Battaly and Edlin - 482 Baugh v. Price 172, 173, 4S2 Bawden and Right - 421 Baxter and Earl - • 209 Baxter v. Lewis - l63 Baylis v. Manning - 205 n. Baylis v. Newton - 423 Bayne and Trimmer - 362 Baynham v. Guy's Hospital 106 Beake and Wiseman - 173 Beane and Ithell - 34S Beard and Chandler - 212 Beardsham and Davie 120, 121, 126 Beatniff v. Smith - 4/1 Beauclerk (Lord) and Cant 505 Beaura'n and Turner Addend. Bechinail v. Arnold - 477 Beckett v. Cordley - 501 Beckford v. Eeckford - 420 Bedford v. Backhouse 466, 468 Bedford (Earl of) and Clare 480 Bedford (Duke of) and Charlwood 56, 64 Beech and Taylor - 72 Beezely and Welford 50, 54, 501 BeLk v. Ha, vey - 242 Bell v. Cundall - 4/7 Bell v. Howard - QQ, 249 Bell and Scot - 435 Bellamy v.Uversidge - 224 Eellasis (Lady) v. Compton 418 Bellringer INDEX TO CASES, XVH Page Bellringer and Rex - 10 ? Bennet and Jrdesoife, or fVihen 122 Bennet College v. Carey S, 150 Bennet v. Mayhew - 42 7 Bennet v. Musgraye - 439 Bennett, ex parte 391, 392, 393, 403 Bennett and Hughes Bennett and Kelsall Bennett and Moore Eenyon v. Gollins -Berkeley and Weston Bemey v. Pitt Berry v. Young 385 510 - 499 332 - 511 173 23, 27, 246, 293, 294 . 286 v. Dean and Bestv. Stamford Betesworth (Dr.) Chapter of St. Paul's 152 Bethill and Floyd - 203, 204 Bettell and Webb - 163 Bevant v. Pope - 219 Beversham and Tylev - 202 Bevill's Case - 240 Bevis and Whitchurch 52, 67, 7*> 72 Bexwcll v. Christie - 16, 19 Bickerstaff and Hayes - 3/5 Bicknell and Evans 275, 284, 480 504 Bill and Humble 332,317,350 Bingham v. Bingham - 166 Binion(SirG-) v. Stone - 422 Binks and Appleton - 29 Binsted v. Coleman - 73, S8 Birch v. Blagrave - 423 Birch and Watson - 38 Birch and Mood - 410 Birkhead and Wortley - 4^6 Page 511 505 499 App. n. 507 227 355,357, 364 38, 188 471 423 Biake v. Sir Edward Hungerford 477 Blake and Earl of Macclesfield 40 Blakeston v. Martyn - 307 Blakston and Lavender 435, 440 Biandford v. Thackerell App. n. Blandist and Miller Blankley v. Winstanley Blemerhasset v. Peirson Bloodworth and Radford Birt and Meder Biscoe and AmOt Bisco v. Earl of Banbury B'ackall and Long Blacket v. Langlands Blacket and Savile Blackburn v. Gre to son Blackwell and Boyer - Blades v. Blades Blagrave and Birch 320, 74, 86 107 - 97 - 443 324 512 5O4 84 497 Blount v. Blount - Blylhmore and Parker Boakes and Kingdome Boardman v. Mostyn Bodington and Wilker Bodmin v. Vendebendy, or Rothe- ram - 232, 510 Bogan and Sir C. Shovel - 201 Bolingbroke's (Lord) case 195 Bond and Chapman 291,292 Bond v. Kent - 353 Bonney v, Ridgard 348, 349, 350 Booreand Marquis of Hertford 955 Booth and Cooke Booth and Whale Boston and the King Boteler v. Allington Botelers and Hearn b 3 106 349 70, 419 141 - 354, 364 Bottomley XVIII INDEX TO CASES. Page Eottomley v. Lord Fairfax 283 Boulter and Baldwin - 182 Bourne and Hunt - 23 S Bovle's (Sir Ralph) case - 434 Bower and Allan - 83 Bowers v. Cator - J$ Bowes and Lady Strathmore(Term Rep.) - 128 Bowes and Lady Strathmore (Ves. Jun.) - - 284 Bowks v. Atkinson - 199 Bowles v. Rogers 25, 120, 257, 364 Bowles v. Stewart - 243 Boyer v. Blackwell - 3S, 1S8 Boys and Diggs - 4p4 Brace v. Duchess of Marlborough 306, 511 Bracebridge v. Cook - 2fi9 Bradstreet and Shannon 86, 147 Bramley v. Alt - 18 Brampton v. Barker = 510 Brand v. Ackerman - 503 Brandlyng v. Ord - 488 Brandt and Dews - 170,173 Bratt v. Ellis - 158 Braybroke (Lord) v. Inskip 214, 346, 479, 4SO Bree v. Holbech - 313,310 Breton Le and Hargrave 4p2 Bret v. Sawlr'ulge - 291 Brett v. Marsh - 318 Brewer and King - 436 Brice v. Smith - 236 Bridges and Kingdome - 425 Brig's case - 150, 157,313 Bringloe and Mallom - 3.0 1 Brockett and Oxwick - 201 Brockhurst and Whitbread 69, /2 Page Brodie v. St. Paul * 4? Brook (Earl) v. Bulkeley 484 B.coke and Parker - 502 Brooks v. Day - 311 Broome and Monck 122, 12/,137 Brolherton v. Hatt - 402 Broughton v. Conway - 3?3 Brown v. Brown - 380 Brown v. Carter - 437 Brown and Chapman - 107 n. Brown and Elliot - 408 Brown and Faine - 148 Brown v. Gibbs - 2S2 Brown and Goodrick - 235 Brown v. Higgs - A pp. n. Brown v. Jones - 434, 435 Brown and Langley - 118 Brown v. Raindle - 142 Brown and Rohon - 121 Browne and Kenny - '483, 50O Browne v. Odea . - 482 Browne v. Southhouse - 327 Browning v. Wright 111, 373, 382 Brushfield and Howes - 378 Bruyn's (Sir John) case - 203 Brydges v. Duchess of Chandos 124 n. Brydges and Philips - 234 Backhouse v. Crossby 43, 45, Buckhurst's (Lord) case - 297 Buckingham (Duke of) and Phi- lips - 152 Buckingham and Smallcomb 450 Buckingham (Earl of) v. Drury 221 Buckland and Floyd - 7 3 Buckle and Cannel - 153 Buckmasterv. Harrop 29, 61, 81, 82, 135 Bucknell INDEX TO CASES. XJX Page Bucknell and Weakley - 430 Budgin and Christ's Hospital 425 Bulkeley and Earl Brook 484 Bullerv. Buller - - 135 Buller and Mortlock 41, 56, 147, 14g, 130, l68, 1.04 Buller v. Waterhouse 433, 441 Bullock and Feme - 74, 86 Bullock v. Sadlier - 510 Bullock v. Thorne - 442 Bumford and Ball - 435 Burchett v. Durdant - App. n. Burdon v. Kennedy - 302, 450' Burg's case - 43/ Burgh v. Francis - 481 Burgh v. Wolf - 4/8 Burke v. Dawson - 439 Burlace (Sir John) v. Cook 4/7, 512 Burland and Bushel Burnahy v. Griiiin Burnam and Snfith Burrel's case Burrough v. Skinner Burroughs anJ Sounders Burrows and Walker Burrowes v. Lock 5 Burtingv. Stonard Bury v. Bury Bushel v. Burland Bushell v. Euahell Butcher v. Butcher (Ves. Jun.) 79 Butcher v. Butcher (NewRep.)l05 Butcher v. Stapely - 73, 49I Bute (Earl of) and Sir John Eden 100' Butler and Lawienson - 150 n. 194 Butler v. Swinnerton Buxton v. Cooper Byrn and Price C. Page ► 375 142, I67 395, 404 Cage v. Acton Calcrait v. Roebuck - 412 n. - 141 247, 253 431 - 27 y - 3.94 - 425 G, 9, 168, 480 - 347 493, 499 - 4 2n. 106 n. 469 203 9, I90, 192, 319, 320, 324 Calland and Rose IgO, 210 Callaway v. Ward - 120 Calverley v. Williams - 202 Camel ford (Lord) and Smith 415 Camfield v. Gilbert - 157,158 Carr-meyer and Rucker - 60 Campbell v. Campbell - 293 Campbell v. Walker 391, 395, 401 Cannel v Buckle - 153 Canning and Barns - 4Cjh Cantv, Lord Beauclerck - 505 Capel v. Girdler - 123, 2^-6 Capp v. Tepham - 14,15 Capper and Mortimer 169, 178 Careless and Stewart - 69 Caryll and Hayes - 249 Carey and Bennet College 8, 150 Carill and Lowtlier - 55 Carleton and Lowtlier 477 > 488, 493 Carpenter and Sorrell 494, 495, 495 Carr and Hill - 140 Carr and Wedderburne - 56 Carter and Brown - 437 Carter v. Home - 409 Cartwrightand Denn - 484. Caruthers v. Caruthers 221, 222 Carwarden and Parry - 439 Cason v. Round - 511 Cason and Stadd b4 505 Cass XX INDEX TO CASES. Page Cass v. Rudele - 175 Cass v. Waterhouse 49, 51, 201 Castle and Howard - 16 Catesby and Mount ford - 374 Cator and Bowers - 73 Cator v. Earl of Pembroke - 317 Cave and Payne - 25, 57 Cavendish and Worsley - 140 Chaigneau and Baillie - 37 Chamberlain and Cox \ - 325 Chamberlain and Fell 6Q, SQ, 419 Chamberlaine v. Chamberlaine 103 Chamberlaine and Philips 107 n - Chambers v. Griffiths - 187 Champion v. Plummer 44 n. 47, 57 n. Chapman v. Bond - 2Q1, 2Q2 Chapman v. Brown - 107 n - Chapman v. Emery - 434, 438 Chapman v. Gibson - 478 Chapman v. Tanner - 352 Chandelor v. Lopus - 3 Chandler v. Beard - 212 Chandos (Duchess of) and Brydges 124 n. Chaplain v. Southgate - 375 Chaplin and Tatem - 367 Charles v. Andrews 167, 221, 352 Charlton v. Low 282, 292, 477 Charlewood v. the Duke of Bedford 56, 64 Charlwcod v. Morgan - 205 n. Charnells and Siddon - 478 Chater v. Beckett - . 64 Cherry and Fenars 438, 488, 499 Chesterfield v. Janssen - 173 Chetham v. Grugeon - 38 Cheney's case - 102, 270 Page Child v. Lord Abingdon 323, 324, 326 Child and Baker - 143 Child v. Godolphin - 67 Child and Lord Irnham 109, 116, 151 Chirton's (Walter de) case 416 Chitty and Williams 221, 222 n. Chi vail v. Nicholls - 47 1 Cholmondley and Pitt - 286 Cholmondley (Earl of) and Lord Walpole - 102 Christie's case - 15 Christie and Bexwell 16, 19 Christ's Hospital v. Budgin 425 Christ College v. Widdrington 505 Churchill ex parte - 392 Churchill v. Grove - 303, 4p6 Clare v. Earl of Bedford 480 Clare v. Clare - App. n. Clark v. Hackwell - 74, 86 Clark and Kirk, or Heisier 437 Clark and Young - 168 Clarke and Goodwin - 165 Clarke v. Terrel - 45 Clavel and East India Comp. 437 Clay v. Clay - 241, 242 Clerk v. Clerk - 390 Clerk v. Nettleship - 435 Clerk v. Wright - 47, 72 Clerke (Sir J.) v. Smith 7 Clifford v. Laughton - 202 Clifton v. Walmesley - 107 Clissel and Leakins - 3 Clinanv. Cooke 47, 49, 56, 81, 8*, 201 Coare v. Creed - 12, 26 Cockell and Rich - 128 n. Cockes v. Sherman - 488 Coke INDEX TO- CASES. XXI Page Coke v. Wilcocks - 511 Coldcotv. Hide, or Hill 111, 386 Cole v. Gibbons - 172, 1/3 Cole and Pordage - W< SO Cole v. White - 72, 73 Coleman and Binsted 73, 88 Coleman v. Upcot 43, 45, 46 Coles and For shall 311, 4i8, 449 Coles and Hunt - 301 Coles v. Trecothick 42, 45, 54, 56, 61, 79, 163, 392, 397 Collet v. De Gols - 277, *97 Collet and Lloyd 245,217, 254 n. 258, 32 1 Collet v. Thomson - 159 Collet v. Wollaston - 168 Coltman and Dolin - 436 Colton v. Wilson - 223 Colvile v. Parker - 434,435 Comer v* Walkley 133 n. 320, 324, 326, 341, 356 Comnjlssioners of Appeals in Prize Causes and Willis 327 Compton and Lady Bellasis 418 Compton and Ford - 45 Conolly v. Parssons - 1 7, 18 Constable and Walker 29, 61, 101, 327 Conway and Broughton - 383 Cook and Bracebridge - " 269 Cook and Sir John Burlace 477, 512 Cook and Fountain - 271 Cook and Wallace - 262 Cooke v. Booth - 106 Cooke and Cliaan 47, 49, 56, 81, S4, 201 Cooke v. Cooke - 123, 286 jCooke v. Fowndes - 380 Page Cooke and Hockin - 203 Cooke and Mussell - 6t Cooke v. Tombs '9, 51, 61, 72 Cookson and Whelpdale 399> 403 Cooper and Aldricl\ - 36l Cooper arid Euxton 3, 118, 167 Cooper v. Dcnne - 210 Coote v. Mammon - 493 Coolh v. Jackson - 50, 6g, 72 Cope and Glover - 373 Coppin v. Coppin 127, 354 n. 35S Coppin v. Feuryhough 210, 499 Corbet and Zwer 301, 34-7,349, 350 Cordley and Beckett - 501 Cordwell v. Mackrill - 502 Cornelius and Simmons 74, 86 Cornwall v. Williams - 150 Cornwallis's case - 490 Corp and D re we - 129, 191 Coryton and Hellier - 108 Cotter v. Layer - 130 Cotterell v. Hampson - 331 Coltingtonv. Fletcher 67, 415 Cotton v. Everall - 331 n. Cotton v. King - 434 Cotton v. Lee - 43 Coventry (Earl of) and Hay App. n. Couch v. Stratton - 221 Coussmaherv. Sew ill - 215 Coward v. Odingsale - 2I9 Cox v. Bateman - 427 Cox v. Chamberlain - 325 Cox and Sheldon 471, 493 Craddock and Lake - 408 Craig v. Hopkins - 314 n. Crane v Drake - 349 Crawford and Gordon - 171 Crayford v. Cray ford - 385 Creasy XXll INDEX TO CASES. Page Creasy and Kaycraft 5, 480 n. Creed and Coare - 12, 26 Crespigny v. Wittenoom 1/9 n. Creswell and Watts - 480 Crethorn and Harding 501 Crewe v. Dicken - 210, 345 Cripps v. Reade r 3J3 Crisp and Cruso - 14 Crisp Vi Heath - 303 Crisp v. Pratt - 425 Crockford and Knight, 40, 54, 165 Croft v. Pawlett - 236 Crompton and Sale - 448 Crooke v. de Vandes -App. n. Crop v. Norton 150, 151,413, 416, 419 Crosby v. Middleton - 118 Crosby v. Wadsworth •> 42 Crosley v. Arkwright 179 n. Cross v. Faustenditch 440 Crossby and Buckhouse 43, 45, 98 Crosse v.Young 3/4,375 Crowe v. Ballard - 400 Crowe and Barnes - 128 Crowther and Tawney - 49 Croyston v. Banes - 05 Cruso v. Crisp - 14 Culpepper v. Aston 331, 343, 494 Cundall and Bell - 477 Cunningham v. Williams 34 Currer or Comer v. Walkley 341 Gurteis and Pincke 190, 247, 253 Curtis and Williamson - 332 Curwyn v. Miller - 172 Curzon and Aston - 511 Cuthbsrt v. Baker 186, 337 D. Dalby and Rex - 419 Dakou v. Hammond - 26 1 Page Damon and White - 103 Dancer and Ebrand - 425 Daniel v. Adams 56, 143, 145,149 Dare v. Tucker - 23, 293 Dam's case - 121 Dark'm v. Marye - 35 DashwoodandMusgrave, 142, 143 Dauhuz and Pye - 387 Davenport and Vale - 31 Davie v. Beardsliam 120, 121, 126 Daviesv. Austen - 481,482 Davies and Owen 45, 146, 323, 324 Davies and Shirley - }f}6 Davis v. Jones «. 145 Davis ik Thomas 104, 113, 119 Davison v. Gardner - 393 Davy v. Barber - 34 9- Dawson and Addison - 390 Dawson arid Bur he - 439 Day v. Arundel - 508 n. 5ia Day and Attorney-General 41, 65, 135 Day and Brooks - 311 Day and Newman - 168 Dean (Lord) and Kinaird 3, 4 n„ Dean and Leeoh - 439 Deane v. Rastron - l6g. Debar and Taylor - 3S6 De Gols and Collett 277, ^97 Dehew r.nd Saunders 477 Delanev. Delane - 415 Deligne and Sanders - 478 Denn v. Cartwright - 484 Denne and Cooper - 210 Denton v. Stewart - 73 , 156 Derivall and Dowse % 286 Deverall and Remington - 165 Devonshire INDEX TO CASES. xxm Page Devonshire (Duh of) and Marquis ofNormanby 53,36,152,154 De Vandes and Crook, App. n. Devreux and Winter - 144 Dews v. Brandt - 170, 173 Dias and City of London "1 Dicken and Crewe - 210, 345 Dickens and Morecock - 467 Dickenson v. Adams - 78 Dickenson v. Dickenson - 333 Dickenson v. Heron 321, 325 Dickenson v. Lockyer - 347 Dickenson v. Shaw - 420 Dickson and Atchison I76 n. Diggs v. Boys - 494 Dightoo and Lane - 427 Dighton and Tomlinson 227 Dike v. Ricks - 343 Dillon v. Leman - 238 Dltchjidd and Ulrich - 103 Dodd and Hine 469,. 47 1 , 493 Doe v. Appiin -App. n. Doe v. Hogg - 481 Doe v. Jesson - 239 Doe v. Jones - 238 Doev. Luff kin - 485,498 Doe v. Martin - 7, 440 Doev. Martyr 433,437 Doe v. Micklem - 107 n. Doe v. Pegge - 275 Doe v. Perkins - 8 n. Doe v. Pott - 125 n. Doe v. Routledge - 431, 437 Doev. Smith - App. n. Doe v. Staple - 276 Doe v. Sybourn - 276 Doe v. Wroot - 275 D'Qliff and S. S. Company 109 Dolin v. Coltman » 436 Polland and Lyster 302, 408 Page Dolman (SirTho.) and Smith 453 Donald and East India Company, 153, 504, 505 Dormer v. Parkhurst - 243 Dormer v. Thurland - 230 Dorril and Routledge App. n. Douglas v. Waad - 434 Douglas v. Yallop - 311 Dowman's ease - 412 n. Downton and Hills - 478 Dowse v. DerlvaU - 286 DoyLy v. Lady Powis 2S Drake and Crane - 349 Drapers Company v. Yardey 409 Drewe v. Corp - 129, 191 Dre we v. Hanson - 18S, 189 Drewe and Payne - 450 Drury and Drury, or earl of Bucks 221, 222 n. Drury v. Man - 26l Duckenfield v. Whichcott - 3 Dudley v. Dudley - 2S2 Dudley v. Folliott - 374 Dunch v. Kent - 331 Dunsany (Lord) and Latouche, A66, a. 469 Dunsford and Eyre - 5 Durandand Hart - 103 Durdant andurche tt App. n. Durell and Noble - 203 Durham (Bishop of) ancTMorrice 5 r 3 Dursley (Lord) v.Filzhardinge 4S4 Dutch v. Warren - 159 Dyer v. Dyer 415, 418, 420, 423 Dyer v. Hargrave 185, 19S E. Earl v. Baxter Earl and Rogers 209 113 Earle XXIV INDEX TO CASES. Page Earle and Hungerford - 441 E3rle and Senhouse 438, 501 Earle and Wing - 204 East India Company v. Clavell 437 East India Company v. Donald 153, 504, 505. East India Company v.,Henslty 27 Eaton v. Lyon - lOo Eaton and York - 406 Ebrand v..Dancer - - 425 Edelph and Pitts • - 488 Eden (Sir J.) v. the earl of Bnte 6l Edge and Scattergood App. n. Edlin v.,Battaly - 4S2 Edwards ex pat tc - ^1% Edwards and Elliot l6l, 357, 364 Edwards v. Heather ' - 168 Edwards and Hollis 42, 1\. 154 Edwards and Moore - 60 Edwards and Perry - - 375 Edwards v. Slater - 225,226 Efiingam (Lord) and lord Ports- mouth - 241 Egerton and Head - 508 Egerton v. Mathews - 43 n. Egginton v. Flavel - 34 EkinsandBaily - 335 Ekins v. Tresham - 3,4 Elderton and Spurrier 2;, 327 Elever and Amcourt - J 62 Eliason and Parr - 4-37 Elliot v. Brown - 408 Elliot v. Edwards 161, 357, 361' Elliot v. Elliot 420, 421, 422 Elliot v. Merryman 331, 335, 336 3 17, 350 Ellis and Bratt - 158 Ellis and Knight - App. n. Ellis v. Smith - 236 Emerson and Andrews 3/ Page Emerson and Riddle 412 Emery and Chapman 43i, 138 Emery v. Wase 143, 144, 115, 1/0, 174 Erhart and Gumis 21, S§ Errington and Randall 401, 403 Evans v. Bicknell 275, 2S4, 480, 504- Evans v. Lkf'eHyn - I71 Evelyn v. Evelyn - 135 Evelyn v. Templar 432, 43 i, 435 Everatt and Cotton 331 n. Everard and Rex - 202 n. Ewer v. Corbet 301, 3 17, 319, 350 Ewer and White Eyles and Hanger, Eyles and Hooper Eyre v. Durnsfor*d Eyre and Iveson 242- I67, 183 416 5 66 Eyre and Popham, 48, 66, 81, 24 9 Fagg's ease, or Fagg and Sherley 47& Faine v. Brown - 148 Fairehild v. Newland - 4.J4? Fairfax (Lord) and Bottomley 283 Fairheld v. Morgan. App. n « Falkener and Morse - 481 Falkland (Lady) and Strode 105 Fallon ex parte - 180 n. Farmer v. Rogers 114 n» Farmer and Shelling 105 Farrel and Whitmel 154 Farrer v. Farrer 111 Farrer v. Nightingal - 159,183 Fauconberge and Fitzgerald 493 Fausset and Whitfield 482 Faustenditch and Cross 440 Fawcett and Longchamps 102 Fawell INDEX TO GASES. XXV Fawell v. Heelis Feilder v. Studley Fell v. Chamberlain Fenhoullet and Scott Fennor's case Fermor and Ferrers Feme v. Bullock Ferny hough and Coppin 210, 499 Ferrars v. Cherry 438, 488, 499 Ferrers v. Fermor - 2/1 Ferrers and Hanning 480 Ferrers (Lord) and Upton 37, 39 Field and Yea - 294 Fielding and Lewes - 512 Fielding and Philips 160, 163 Finch v. Newnhara - 4 6Q> 8J, 419 J Foley v. Percival - 121, 133 n. - 287 4S7 . 271 79, 86 Fclliott and Dudley 374 Foot v. "Sal way 89 Forbes (Lord) v. Nelson 471 Fordv Compton 45 Ford and Fordyce - 192, 248 Fordyce v. Ford 192, 248 Foreman and Wilson - 427 Forester and IValdron 325 Forrester v. Lord Leigh 409 Forshdllv. Coles 311,448, 449 Forster v. Hale - 49, 84 ,411 Fletcher and Hurd Fletqher and Long Fletcher and Olebar Fletcher and Sibson Fletcher v. Sidley Flexny and Keliick Flood and Fryer Florence and Tanner Floyd v. Aldridge Flo)d v. Bethill Floyd v. Buckland Floyer v. Sherrard Fiureau v. Thornhill 373, 376 1S4 120, 223 - 478 426 - 391 425. - 500 122 203, 204 73 171 151, 157, 158,327 Forth and Harrison - 488 Foster v. Mapes - 375 Foster and Savage - 480 Fpulkesand Owen (6Ves. Jun.) 392 Foulkes and Owen (9 Ves. Jun.) 40 Fountain v. Cook - 27 1 Fournier and Bishop of Winches- ter - 502 Fotvle v. Freeman 43, 45, 52 Fowndes and Cooke - 380 Foxy. Mackreth 391,403 Foxcraft v. Lister - fS Francis and Burgh - 481 Frank and Marshall - 507 Frederick end Morshead 115 Freeland and Sayle 140, 141 Freeman v. Barnes - 265 Freeman and Fowle 43, 45, 52 Freeman and Parsons (Revocation ) 123 Freeman and Pasley - 5 Freeman v. Taylor - 303 n. Frewen v. Relfe - 143 Fry v. Porter - 4Q1 Fryer JCXVf Index to cas£s. Fryer v. Flood Fullarton and Watts Furgason v. Mainland G. Gainsford v. Griffith Galton v. Hancock. Gape v. Handley Garbrand v. Allen Gardiner and Goldson Gardner and Davisdn Garraway and Meynett Garth and Hughes Garth v. Ward Gartside v. Tsherwood Gartside and Tipping Gascoigne v. Stut Gascoigne v. Thwirig George v. Milbanke G*;ll v. Vermedum Gervoyes's case Gibbin and Prideux Gibbons v. Baddall Gibbons and Cole Gibbs and Abbot ~ 331 Gibbs and Brown - 232 Gibson and Chapman - 4/8 Gibson and Lake - 40/ Gibson v Lord Mont fort 121 Gibson v. Paterson - 245 Gifford and Nugent 348, 34$ Gilbert and Camfield. 157, 158 Girdler and Capel 123, 2S6 Glaister v. Hewer 425, 4-26 Glaizier and Goodright 133 Glazebrook v. Woodrow 10"2 Glover v. Cope - 373 Godolphin and Child 67 Godolphin (Lord) and Duke of 383 123 107 3(J0 - 494 - 393 487 - 509 4Q4, 495 - 1/1 36 457 415, 416 437, 482 133 219 123 354, 364 172 , '* 7Ci Page ( 42*5 , Gold v. Morgan 124 Goldson v. Gardiner 1/1 j Gollins and Bcnyon i Gomon v. Salisbury Gomeserra and Barret Gooch's case - Goodale and Middlemore Goodinge v. Goodinge Goodison v. Nunn Goodman v. Goodright Goodrick v. Brown Goodright v. Glazier Goodright and Goodman Goodright v. Hodges Goodright v. Moses Goodright v. Sale3 Goodtitle v. Jones Gjodtitle v. Morgan Goodwin v. Clarke Goodwin v. L'ster Gordon v. Crawford Gore v. Wiglesworth / ■*. Pag* 491 332 97 ids 431 ■367 105 202 App. n. - 235 133 App. n. - 418 - 434 286 242, 276 - 315 16S 138 - 171 - 484 Gorge's (Lady) case 420, 425, 426 Gosnold and Sheppard Goudge and Lane Gough v. Stedman Gould and Nicois Cower and Aiforney-Gen Marlborough 373 Gower and Ryder Gowland and Mayer Graham v. Graham Graham v. Sime Grant v. Pendleton Grayme v. Grayme Green v. Jackson Green v. Lowes Green \. Smith Green v. Wood Green v. Lambert - 107 107 n. 507 173 1 194, 402, 510 38 132 - 477 26l 103 141 311 330 m 120, 136 249 286 Greenh /// INDEX TO CASES. XXV11 Page Greenhillv.Greenhill 121, 122 Greensted's (East) case 444, 491 Gregson and Blackburn 355, 36/, 364 Gregson v. Riddle - 257 Greswold v. Marsham 303, 496 Grey (Lord) v. Lady Grey 420, 422 Grey and Hatton - 43 Griffin and Burnaby - 141 Griffin v. Stanhope 434, 440 Griffith and Gainsford 383 Griffith and Lloyd - 36, 2p9 Griffiths and Chambers 187 Griffiths and Spratley - 1/1 Griffith and Twisleton 172 Grix and Addy ' - 23(3 Grugeon and Chetham - 38 Grove and Churchill 303, 4()6 Grove and Michaux - 3<)1 Growsock v. Smith 323, 324 Guest v. Homfray 183, 246, 255 Gunnisv. Erhart - 21, 8g Gunter v. Halsey - 52, 72 Guyon and Smith 331, 341 Guy's Hospital and Baynham 106 Gwynne v. Heaton 171, 172, 173 Gyles and Moyse - 406 HalL v. Warren Page 146, 151, 174 H. Hack well and Clark - 74, 86 Haddon's case - 14t Kalcott v. Markant - 427 Hale and Former - 4Q, 34, 411 Hale's case - 142 Hall v. Adkinson - 477 Hall v. Hardy - 144, 153 Hall and Keech 206, 207, 430 Hall v. Noyes - 39 1, 404 Halsey and Austen - 362 Halsey and Gunter - 54, 72 Hamilton and Balgney - 427 Hamilton and Hobhouse - 460 Hamilton v. Worley - 135 Hammond and Dalton - 261 Hammond v. Hill - 378 Hammond v. Toulmin - 387 Hampson and Cotterell - 331 Hancock and Galton - 12S Hancock and Spurrier 177> 223, 249 Handley and Gape - I07 Hands v. James - 236 Hanger v. Eyles - 167, 183 Hankin and Hicks - 27 Hanning v. Ferrers - 480 Harming and Trent - 211 Hanson and Drew e - 188, I89 Hanson v. Robcrdeau - 27, 28 Harbert's (Sir William) case 307 Harcourt v Knowell - 47S Hardcastle and Sparrow 125 n. Harding v. Crethorn - 501 Harding v. Nelthrope 316, 317 Harding v. Suffolk - 102 Hardingham v. Nicholls - 509 Hardman and Omerod 92, 252, 332 n. 337 Hardwicke v. Mynd 332, 346 Hard wicke (Lord) v. Vernon 400 401 Hardwood v. Wallis Hardy and Hall Hardy v. Reeves Hare and Haynes Harev. Sherwood - Hargrave v. Le Breton 110 144, 153 502, 512 109, 116 100, 1]6 - 492 Harjrave. xxvm INDEX TO GASES. Hargrave and Dyer Page 1S5, 196 Hargrave and Sedgwick - 144 Harraood V? Oglander - 241,242 Harrington and Robinson 44/ Harrington v. Wheeler - 248 Harris v. Tngledew - 511 Harris and ope - 148 Harison v. Forth - 4S8 Harrison v. Southcote 352, 354, 4/4 Harrop and Buckmaster 29, 61, 81, 82, 135 Hartv. Durand - 103 Hartley v. Pehall - 211 Harvey and Belch - 212 Harvey v. Harvey - 114 Harvey (Sir Thomas) v. Montague 495 Harvey v. Parker - 141 Harvey v. Philips - 2Q5 Harvey v. Young - 3 Harvy v. Woodhouse - 4/7 Hatchet and Watkins - 5o8 n. Hatt and Brotherton - 492 Hatton v. Grey - 43 Hawkins v. Holmes - 55, 81 Hawkins v. Kemp - 164, 346 Hawkins v. Obeen - 13S Hawkins and Taylor - 351 Haivley and Stoughlon- - 144 n. Haycraft v. Creasy - 5, 480 n. Hayes v. BickerstafF - 375 Hayes v. Car) 11! - 24f) Hayes v. Kingdome - 407 Haynes v. Hare - I09, 116 Hay ward v. Lomax - 318 Hay ward and Page - 230 Hay ward and Stephenson w 432 Page Head v. Egerton - 5o8 Heard v. Wadham - 162 Hearn v. Botelers - 354, 364 Hearn v. To.nlin - 9, 122, 183 Hearn and Wool lam - 90, 91 Hearne v. James - 45 Heath and Crisp - 303 Heath v. Heath - 21 a Heather and Edwards - 168 Heathcote v. Paignon - 171 Heaton and Gwynne 1/1, 172, 173 Hedges and O'Heiiihy '48, 81, 152 Heelis and Fawell - 354, 365 Heisier and Clark - 437 Hellier and Coryton - 108 Hendon (Lord of the manor of) and Rex - 261 Hendon and Waller - 56 Henkle v. the R. E. A. Office 10S, 117 Hensley and East India Company 27 Hercey v. Ballard - 241 Heme v. Meeres - 171 Heme and Sloman - 503 Heron and Dickenson 321, 325 Heron v. Heron - 427 Hertford (Marquis of) v. Boore 255 Hesse v. Stevenson 112, 3S1* Hewer and Glaister 425, 426 Heylyn v. Heylyn - 130 hibbard and S?nith 121, 138, 224, 324, 352 Hickford v. "Machin - 306 Hickman and Peterson 482, 483 Hickman and Earl of Plymouth 427 Hicks 2N-DEX TO GASES. XXIX Page Hicks v. Hankin - 2/ Hicks (Sir Karry) v. Philips 167, igi n. Hide and Cotdcot - 111, 3S6 Higginsv.'.he York Buijdings Cora- pan/ - 30* fcjiggs and Brown - App. 11. Hiles and Jenkins - lot), 250 Hill v. Adams - 282 Hill and Birker - 120 Hill v. Carr - 140 Hill and Co!dco!t - 111,336 ,Hill and Hammond - 3/8 Hill and Nott - d/2, 174 Hill \ r . Simpson - 348 Hill v. Worseky - 494 Hillary v.,lValhr 209, 213, 276 Hills v. Downton - 478 Hilton v. Barrow - 156 Hine v. Dodd 4(38, 471, 493 Bintoii y. Hinton - 142 'Hithcox V. Sedgwick 277, 470,497 Hilheox' and Underwood ,163 Hobs J. Norton ~ 4SQ Hobbs arul Walton - 505 Hobhouse y. Hamilton - 460 Hockin v. ■Cooke ~ 203 Hodges and Goodright, OTiLang- fielde - 419 Hodges v. Jones - 37 Hodges v. Templer - 449 Hogg and Doe - 461 Holbech and Bree - 313,316 Hddsworthv. Ht.ldi worth - 36l Holford and Barjcer - 34 Hertford and Lade - 27,6 Holies v. Whiteing * 70 Hollings and Matthews - 313 Hohk v. Edwards 42, 71, 154 Page Holmes and Hawking - 55 Holmes and Ponllney - 42 Homfray and Guest 183, 246, .255 Holt v. Holt - 286 Honeycomb v. Waldron - 463 Hooper v. Eyles - 416 Hopkins and Craig - 314 n. Hopkins and Howard 2 n. 148, 155 Hopson v. Trevor - 155 Horde and Taylor - 240 Home and Carter - 409 Horn and Barrington - 144 Horn and Jtiliff - 44Q Horn and Moyl - 75 Horwood and Underhill - 171 Hosier v. Read - gi Hoskins and Trenchajd - 384 Houghton v. Rushley - 450 How v. Stiles - 271 How v. "VVeldcn - 473 Howard and Bell - pg, 249 Howard v. Castle - \§ Howard y. Hgpkyn^2 n. 149, 155 Howe, v. Howe - 415 Howes v. Brnsbfield - 373 Hudson and AVrightson - 463 Hughes ex p#rte 40, 392, 402, 403, 482 Hughes v. jBcnnett r 385 Hughes v. Garth - 509 Hughes v. Kearney - 326, 356 Hughes and Rann - 92 •Hughes v. Robotham - 270 Humble v. Bill - 332, 347, 359 Humble and Savage P 347 Hungate v. Hungate. - 41$, Hyngerfeni XXX INDEX TO CASES. Page Hungerford (Sir Edward) and Blake - ' 477 Hungerford v. Earle - 441 Hunt v. Bourne - 238 Huntv. Coles - 304 Hunt and Mattock - 1S3 Hunter, ex parte - '15 Hunter v. Wilsons - 1/6 n. Huntingford and Woods - 135 Hnntley and Jaques ~ 4S1 Hurd v. Fletcher - 3/3, 3 7 6 Hutchinson v. Johnson - 450 Hutchinson and Rastel - 6g, 418 Hutton v. Lewis - 1/0 n. Hylliard, ex parte - 103 Kylton and Raaisden - 435 4 I. Ibbotson v. Rhodes (), 505 Jggulden v. May - 106 Inchiquin (Earl of) and Countess ofShelbnrn 106, 108, 117 Incledon v. Northcote - 325 Ingledew and Elarris - 511 Inskip and Lord Bravbroke - 214, 340, 479, 480 Jrnham (Lord) v. Child 109, 116, 151 Irons v. Kidwel - 472 Iseham v. Morric'e - 2L-.' Isherwood and Gartside - 171 Ithel v. Potter - 55 Ithell v. Beane - 348 Iveson and Eyre - o'o' J. Jackson's case Jackson and Cooth Jackson and Green 484 50, Gg, 72 ~ 311 Page Jackson v. Lever - 169, 17& Jackson and Rich - 94, 117 Jackson and Saunderson 45 n. 4q, 54 Jack-oil an J Tenant - 331 n. J Jackson and Trimmer - 236 Jakeman and Shaw 113, l6l • James, ex parte 305, 399, 402, 403, 404, 482 ! lamps and Hands ] James and Kearne James v Morgan James v. Richardson Janssen and Chesterfield .1 aques v . K u n 1 1 ey Jeanes v. Wilkins Jebb v. Abbot Jeffereys v. Small ! Jeffries and Montague Jtfllif v. Horn Jcndwine v. Slade Jenkins v. Hiles Jenkins v. Keymes Jenkinson v. Pepys Jenner v. Tracey Jennings v. Moore Jennings v. Selleck Jernrgan and Wiilis Jerrard v. Saunders 476, 477> 511, 513 Jervies and Peles Je.vson and Doe Jevon and Noel Johnes and Lloyd Johnes v. Statham Johnson and Hutchinson Johnson v. Johnson l6l, I89, 313 Johnson v. Mason - 262 Johnson v. Nott - 38/, Johnson 236 45 ^07 A pp. n. 173 481 456 '332 407 132 446 157 150', 250 140 22, 90 242 493 477 170 383 239 219 32 91 450 INDEX TO CASES* XXXI Page Johnson i\ud Prdcror - 38i Johnson, and Stansfield - 60 Jolland v. Stainbridge 309, 471, 4Q i, 505 JollifFe and Mevfins 488, 499, 500 Jones v. Barkley - 163 Jones and Brown - 434, 435 Jones and Doe - 238 Jones and Davis - 145 Jones and Goodtitle 242, 276 Jones and Hodges - 3/ Jones v. Marsh - 435 Jor.es and Matthews 330 n. 502 Jones v. Newman - 102 Jones v. Price - 24/ Jones v. Sheriffe - 118 Jones v. Stanley - 487 Jones v. Thomas - 510 Jordan v. Savage - 221 Jordan v. Sawkins - 96 Jordan and Shenton - 155 Jourdan and Alam - 504 K. Kancy and Watts, or Mutts 347 Kearney and Hughes 320', 350 Keech v. Hall 200, 20/, 430 Keech v. Sandford - 394 Keen and Awbry - 313 Keen v. Stukeley - 167 Kellick v. Flexny - 391 Kelly v. Powlet - 103 Kelsallv. Bennett - 510 Kemp and Hawkins 104, 340 Kemp and Robson - 503, 501- Kendar and Milward - 427 Kennedy and Burdon 302, 450 Kenny v. Browne 483, 500 Kent and Bond - 353 ton! and Dunch - 331 Page Kent and Wirdman . - 192 Kenyon (Lord) and Myddleton 436 126 39O 140 12f> 210 415, 418 472 - 113 A pp. n. 3, 4n- 434 436 226 3SO 185 50l< 425 - 407 Kenyon v.. Sutton Ketsey's case Keymes and Jenkins Kidby and Luther Kiddand Roake Kidder and Rider Kidwel and Irons Kilvington and Barstow Kime and Loddington Kinaird v. Lord Dean King and Cotton King v. Brewer King v. Melling King and Noble King v. Wightman Kingdome v. Boaks Kingdorne v. Bridges Kingdome and Hayes King (The). See Rex Kingston (Duchess of) and Mea- dows - 511 Kirk v.Clark - 437 Kirk v.Webb - 41 6, 42? Kirkham v. Smith - 141 Kirton and Wren 20, 35, 395 Kitchen v. Baitsh * 107 Knight v. Crocklbrd 46, 54, 105 Knight V. Ellis App. n. Knight and Morris - 102 n. Knollys v. Aleock - 132 Knowell and Harcourt - 478 L. Lacey, ex parte Lacon v. Mertins Lade v. Holford C2 391, 402 /2. 73> 135, 327, 352 2/6 London XXX11 NDEX TO CASES. Page Laindon (Inhabitan£sof)and Rex £7 Lake v. CradJoch - 408 Lake v. Gibson - 407 Lamas v. Baily - 412 I Lamplugli v. Limpltigh, 420,421, 422 Lane v. Dighton - 427 Lane v. Goudge - 107 "• Lane and Lowndes - 190 Laflgfield v. Hodges - 419 Langford v. Pitt 127, 250 Langfordand Prestage 303, 397 Langham and Prodgers - 437 Langlands and Blacket - 507 Langley v. Brown - 118 Langley v. L<,rd Oxford (1 Bro. C. C.) - 331 n. Langley v. Lord Oxford (Ambl.) 350 Langstaffe and Scott - 152 Langton and North - 2S6 Langton v. Tracey - 432 Lansdow n v. Lansdown 166 Latham, ex parte - 16Q Latouche v. Lord Dunsany 4(>0",n. 4(iy Laude and Lawson - S9 Laughton and Clifford - 202 Lavender v. Biacksten 435, 440 Lawrence and Whichcote 301, 305, 405 L*vrrenbon v. Butler = 150 n. 14 Lawson v. Laude - 89 Layer and Cotter - 130 Lea v. Barber 04 Lea and Osborn - 431 Page Leak v. Morrice - 70, J 5 Lcakins v. Cli-sel - 3 Le Breton and Hargrnve 402 Lechmere (Lord) and Lewis 155, 167, 240, 258 Lee and Cotton - 43 Lee v. Markham - 503 LeeandOxley - 431) L.e and Stanley A pp. n. Lee and Tapp - 5, 480 n. Lee and Walwyn 477, 507, 508 Leech v. Dean - 430 Leech v. Leech - 431 Lefebuiy and Winged 120, 153, 4S4 Legal v. Miller - 99 Legatt v. Sewell - 141 Lei^h ( Lord) and Forrester 409 Leigh and Lutkins - 3Q1 Leigh v. Winter - 441 Lenian and Dillon - 238 Lench v. Lench 415, 4l6, 417, 427 Le Neve v. Le Neve 471, 402, 403 Le Neve and Norris - 4<)3 Leslty'a case - 304 Lever v. Andrews - 415 Lever and Jackson 169, 178 Lever and Pa^e - 509 Lewes v. Fielding - 512 Lewis and Baxter - 163 Lewis and Hutton - 179 n. Lewis v. Lord Lechmere 155, 10.7 249, 253 Lichden v. Winsniore - 267 Lilly v. Osborn - 425 LincLsay v. Talbot - .503 Lingood INDEX TO CASES, XXX1U - 392 73 138 402 121, 138 224 331,333 36, 299 171 Lingood and Sir J. Barnardiston 17-2 Linwood, ex parte Lister and Foxcraft Lister and Goodwin Lister v. Lister Lister and Sike9 Jjversidge and Bellamy L'oyd v. Baldwin Lloyd v. Collet 245, 24/ 254 n. 258, 324 Lloyd v. Griffith Lloyd v. Johnes Lloyd v. Spillett Lloyd v. Tornkies Lluellyn and Evans Llewellyn v. Mackworth 241, 243 Lockv. Burrowes 5, 6, 10, 169, 480 Lockey v. Lockey - 7 3 Lockyer and Dickenson 34/ Loddington v. Kime App. n. Loniax and Hay ward - 318 J^ondon (City of) and Dias 21 London (City of) and Richmond I^ndon (City of) v. Smith, Trea- surer of the W . 1. J>. C. 414 London and Tendring 150 Longv. Blackall App.n. Long v. Fletcher Longchanips v. Fawcett Longdale and Vizard 1 .opus and Chandelor Loveday and Abdy Low v. Barchard Low and Charlton 282, 292, 477 Low and Smith - 498 Lowe and Rowe - 142 Page Lower and Weal - - 140 Lowes and Green - 33 n. Lowndes v. Lane - ' 1^0 Lowther (Sir James) v. Lady An- dover - 256, 319 Lowther v. Carrill - 55 Uwthrv. CarLton 477, 489, 493 Loyd v. Read LurVkin and Doe tufflin v. Nunn Lush v J Wilkinson Luther v. Kidby 32 1 Lutkins v. Leigh 415 Lutwycb v. Winford 37> r > i Luxton v. Robinson 422 485, 498 485 - 426 126 361 32 160 214 184 102 221 3 478 171 Lyddall v. Weston Lyford and Swannock 282, 283 Lyon and Eaton - 106 Lysney v. Selby 4, 207, 315 Lyster v. Dolland 302, 408 Lytton v, Lytton 242 M. MacclebfieU (Karl of) v. Elake 40 Machin and Hick ford - 306 Macferlan and Moses - 159 Mackenzie v. York Buildings Com- pany 391, 392, 395, 401, 402, 405 Mackrcth and Fox 391,403 Mackreth v. Marlar - 256 Mackrill and Cordwell 502 Mackworth and Llewellyn 24 U 243 Macnamara v. Williams 156 Macnamara and Rigby (6 VesJun, 117) - 3 9 c3 Macnamara .XXX17 INDIX TO GASES. Page Macnamara and Rigby (6 Ves. Jun. -146) - 40 Macnamara and Rigby (6 Ves.Jun. 515) - 37 Maddin and Pdly - 415 Maddison v. Andrews - 418 Maddox v. Maddox 402, 502 Main v. Melbourn 2/, 79, 157., 249 Maitland and Fnrguson 171 Maitland v. Wilson - 50? Maiden v. Menell - 473 Mallom v. Bringloe - 391 Mammon and Coote - 493 ManandDrury - 261 Mandevile's case - App. n. Manning, ex parte 320, 323, 324, 326 Manning and Baylis - 205 ri. Mansellv. Price - 102 Mapes and Foster .- 375 Marbury and T: rback - 410 Markantand Halcott - 427 Markham and Lee - 503 Marlar and Mackreth - 256 Marlborough (Duchess of) and Brace - 3 06, 511 Marlborough (Duke of) v. Lord Godolphin - 373 Marlborough (Duke of) and Lord Spencer App. n. Marlow v. Smith 210, 212 Marsh and Brett - 318 Marsh and Tones - 435 Marshall v. Frank - 507 Mai sham and Gresvvold 303, 496 Martin an d Doe - 7 f 440 Martin v. Smith - iQq } iq 3 Martin and Watts - 39 Page 307 433, 437 320 3 1> 153 262 Martyn and Blakeston Martyr and Doe Martyr and Powell Marye and Darkin Mascall and Norton Mason and Johnson Mathers and Pembcr 22, 21, 10Q, IIS, 165, 505 Matthews and Egerton 4-3 fcr. Matthews v. Rollings Matthews v. Jones Matthews and Moss Matthews v. Stubbs Matthews v. Wallwyn Mattoci v. Hunt MaundreM v. Maundrel Maunsfield's case May and Iggulden Mayer v. Gowland Mayer and Wright Mayhew and Bennet May how and Moie 487, 500. ~] Mayoss and Spun ier - 328 May nard's (Serj.) case 312, 3 13 Mead and Oneal - 361 Mead y. Lord Orrery 318, 350 Meadows v. Dupaes's of Kingston 511 Mealeand Seagood 4/, 50, 71 Mease v. Mease - S8 Medcr v. But - 511 Meeres and Heme - 171 Meers (S'r Thomas) and Lord Stourton - 252 Meers (Sir Thomas) v. Lord Srour- toq - 252 n. Melbourn and Main 27, 79, 187, 249 Meller and Paine 175, 181, 205, 21-7, 253 Melling - 313 330 n. 502 25 , 2S - 32 467 - 1S3 2 8 282 - 220 - 106 - 132 - 503 - 427 INDEX TO CASES. XXXV MelUngand King Mellish v. Mellish Mellish v. Motteux Page 220 j Mitton and Roe 107 n. I Moca'.iav. Murgatroyd 199 Molesworthv. Opie Page 436 501 40 tosington (Lord) and Rosamond ! Moleyn's (Sir John d.) case 306 116' Monck and Broome 122, 127, ¥19 8S S8 493 o 9 n OOi I j , 350 25 Mooie v. Bennett Moore v. Edwards Moore v. Foley "Moore and Jennings Moore and Pollexfen Menill and Maiden Merceau and Preston Meres v. Ansell Merry v. Abney Merrvman and Elliot 331, 336, ^-7 Mcrtcns v. Adcock Merlins v. Joiiite 4SS, 400, 500 Mertins and Laccn /2, 7-L 1 5, 327, 052 Mesnard v. Aldridge Mcynell v. Garraway Miehaux v. Grove Micklem and Doe todlemore v. Goodale - 367 | Morgan and Barksdale Middleton and Crosby - 118 Morgan and Charhvood MHdkton(Lord) v. H U on i8, 91 | Morgari and Fa,vfield kcdleton (Lord) and PuPe.n l-ii 1 Morgan and Gold Milbanke and George 437, !82 Morgan and Goodtitle Mfldmay v. Mildmay 5. 10-] Morgan and James 487 391 107 n 137 Montague and Sir Thomas Harvey 495 Montford (Lord) and Gibson 121 499 69 106 493 120, 324, 352, 359 Moore and Stokes - 54,55 Moore and Wildgoose - 4/4 More v. Mayhow 487, 50p, 510 Morecock v. Dickens - 467 - 203 205 n." App. n. - 315 - 107 Miles and Thomson lCO, 183, 250 ' : <->rgan and Pearson Millard's case - 477, 5QQ ! Morgan v. Tedcastle 74, SO 99 107 ■27 3^7 Miller v. Blandist Miller and Legal Miller and Rex Millington and Williams Mills v. Auiiol Mills and Milner 121, 122, 1 I) Milner and Curwyn - L^'- Milner v.Mills 121, 122, 12/ Milwarda.nd Kendar - 421 Milwardv. EailThanet 246 : 253 Mitchel v. Neale - 210, 2J2 Mitchell and Richardson 4 SO 204 250 Morgan and Wynn Worrell and Woodman 421, 423 Morrice v. Bishop of Durham 573 Moi rice and [sehara - 264 Morrice and Leak -' 70, 75 ., orris v. Knight - l62 n, Morris and Lord Portmore 1 16 Morris v. Preston - 195 Morris v. Stephenson - 144 Morris and Twining l6> 148, 170, I9h 192 50 7 1 Moise v. Falkener *>- i$ 5 g 4 M$ XXXVi INDEX TO CaSES. Page Hfotskead vt Frederick 1 15 Mdftifiterv. Capper 16$, i;s Mortimer v. Orchard 73, 82, 504- Mor/lock v. Bullet 41, 56, 147, Up, 150, l68y ICjl Nash v. Ashton Naish and Tourville Neale and Mitchel Needier v. Wright Nelson and Lord Torbes Moses and Goodright Moses v. Macferlane Moss v. Matthews Mosse and Trevanian Mcstyn and Bdardman Moth v. Attwocd 4-34 ' Nelson v. NtLon Page 3/5" 482, 487" 210, 20'2 483- 471 201 IK 159 28 :5og S4 173 Motivos and Simon 27, 45 n. 57 Motteux and Melfish lpp Montague v. Jeffries - 13'.' Mountford v. Catesby - 374 Muxon i-nd Trice - 39' Moyl v. Horn - 75 Moyse v. Gyles - 406 Mulgrave (Lord) 2nd Sheffield 210, 252 Mulgrave (Lord) and Fhipps A pp. n. Miimmav; Mumma 420, 422, 423 Munns and Nervin 373, 381 Murgatroyd ;:nd Mocatta $0\ Muschsiap and Earl of Ardglasse 1/2 Musgrave v. Dashwood 142, 143 Musgrovc and Bennet 439 Mnssell v. Cooke - 64 Mutts v. Kancie - 347 Myddleton v. Lord Kenyan 436 Mynd and Hardwicke % Nairn v, Prowse 353, 355, 305, 434 Napp.-r v. Lord Allington 38/ Nelthrope and Harding 31 6* ' 17 Nervin v. Munns 373, 38r Nettleship and Cleric - 435 Neve and Nonis - 404, 4p3- Nevil and William - 74, 86 Jewell v. Ward - 535 Newland and Fairchild -174? Newman and Day - JO'S Newman and Jones - 102 Newman v. Rogers - 24p Newnhani and Finch. - 405 Newport's (Andrew) ease 437 Newstead v. Seal les 424, 4p2 Newton and Baylis - 423 Newton v. Preston 415, 410> Newton and Waddy - 20& Newton and Wfeeeler 53, 144 Nicholls and Chi vail - 471 Nicholls and Hardiugham 509- Nicolsv. Gould - 1731 Nighrtngal and Farre# 15p, 183. Nisbitt and Scutt - 37, 38 Noble v. Durell - 203 Noble v. King - 380 Nod V. Jevon - 2.19 Norclifl* v. Worsley - 141 Sormin and 'Wood - 410. 332, 346 I Normanby (Marquis of) v. Duke of Devonshire 53, 86, 152, 154 Norris v. Le Neve 404, 492 North v, Langton - 286 Northcote and Incledon 325 Nonhwick (Lord) and Tait 39 Norton INDEX TO CASES, XX XV! I Norton and Crop 150, Norton and Hobbs - 48G Norton v. Mascall - - 153 Nosworth and Seymour - 509 Nos worthy and Basset 4/6, 510 Nott v. Hill - 172, 174 Nott and Johnson - 397 faotts v. Shirley - 1 26 Nour.se v Yarworth * - 290 NoyesandHa'l - 391,404 Nugent v. Gilford - 349, 34t> Nunn and Goodison - 162 Nunn an4 Luffkin - - 495 Nurton v. Nurton - - 347 Nutt and White 75 O Obeeu and Hawkins - 136 Odea and Browne - 492 Odingsale and Coward - 24Q Ogbourne and Pitcairne 100, 117 Oglander and Harmood 241, 242 O'Hara v. O'Neil - 415 O'Herlihy v. Hedges 48, 81, 152 Oldfield v. Round - 195, 199 Oldin v. Sanibourne - 396 Olive arid Stephens - 430' Omerod v. Hardman 93, 253, 332, n. 337 Oneal v. Mead - 36 1 Oneby v. Price - - 140 O'Neii and O'Hara - 415 Onions v. Tyrer - 131 Only v. Walker - 505, 506 Opie and Molesworth - 40 Orchard and Mortimer 73, 82, 504 Ord and Brandlyng - 489 OrJebar and Fletcher i20, 223 r Page Orrery (Lord) and Mead 348. 35a Osborn v. Lea - 481 Osborn and Lilly - 425 Osbourne and Rex - 107 OiJtread v. Round - 144, 145 Owen v. Davies 45, 146, 323, 324 Owen v. Foulkes (6 Vcs. Jun. n.6) - - 302 Owen v. Foulkes (9 Ves. Jun.) 40 Oxford [Lord) and Langlcy (1 Zro. C. C.) - 331 Oxford (Lord) andLangley (Ambl.) 350 OxJey v. Lee - - 439. Oxwick v. Brockett - 201 Oxwith v. Plummer - 499 Page v. Hayward - 230 Page v. Lever - 50p Paignon and Heathcote 171 Paine and Baker - 118 Paine v. Meljer 1"5, !£l, 205, 247, 253 Parker and Attorney General 107 Parker v. Blythmore '- 512 Parker v. Brooke - 502 Parker and Colvile - 434, 435 Parker and Harvey - 141 Parker and BLshop of Worcester 477 Parkhurst and Dormer - 243 Parkins v. Titus - 26l Parr v. Eliason - - 4^37 Parry v. Carwarden - 439 Parsons v. Freeman (Revocation) 123 Parsons v. Conolly - 1/>18 Parteriche and Powlet - 88 Fasley xxxviu INDEX TO CASES. Pasley v. Freeman Pate and Urrifston Paterson and Gibson Patten and Alsop Patterson v. Slaughter Paul v. Wilkins Pawlett and Croft Page 5 314 2-15 70 512 120 236 Payne v, Ca\e - 2.5, 57 Payne v. Drewe - 450 Peacock v. Thevver - 444 Pearson v. Morgan - 480 Pearson v. Pulley - 242 Pegge and Doe - - 275 Peball and Hartley - 211 Peirce and Acton r 153 peirson and Blemerhasset - 9/ Pelcs v. Jervies » 38-3 Pelly v. Maddii - 415 Pemberv. Mathers 22, IOC), US, 165, 505 Pembroke (Earl of) and Eaden 121,292 Pembroke (Earl of) andCator 31 7 Pembroke's (Earl of) case 292 Pendleton v. Grant - 103 Pengall (Lord) v. Ross - 77 Penhallow and Smarlle - 42 1 Penhules and Treswallen ' 203 Pepys.and Jenkinson - 22,90 Percival and Foley 121, 133 n. Perkins and Doe - 8 n. Perry v. Edwards - 3/5 Perry v. Philips - 428 Peterson v.Hickman 482, 483 Phelips and Perry - - 428 Philips v. Brydges - 234 Philips v. Duke of Buckingham 152 Philips v. Fielding - 160, 163 Page Philips and Harvey - 295 Philips and Sir Harry Hick, 167, 191 n. Philips v. Redhel - 500 Phillips v. Duke of Buckingham 152 Phipps v. Lord Mulgrave App. n. Pickersgill and Ba'rtlett 69, 415, 41S Pigott v.Waller - 120,128 Pinchard and Withers - 144 Pincke v. Cupteis K)0, 247, 253 Pindar v. Wandsworth - 2lS Pitcairne v. Ogbourne 100, 1 1 7 Pilt andBcrney - 172 Pitt v. ChoTmondhy - 236 Pitt and Langford - 127,250. Pitts v. Edelph - - 4SS Piatt (Lady) v. Sleap - 267 Pledwell and Thomas - 449 Pleydell and Powell - 439 Plummer and Oxwitn - 499 Plunihier and Champion 43 n. \7 , 57 n. Plymouth (Earl of) v. Hickman 427 Pole v. Pole - - 424 Pollexfen v . Moore 1 20, 321, 35 2 , 359 Pomfret (Earl of) v. Lord Wind-, sor - 244 Poole v. Rudd - 28 Poole v. Shergold 175, 186, 18? Pope and Bevant Pope v. PI arris Pope v. Hoot Pope v. Simpson Popham v. Eyre Popham and Roe Pordage v, Colp 2I9 148 169,181 - 223, 249 48,66,81,249 418 27, SO INDEX TO CASES. XXXIX Page Poder and Fry - 491 Portman v. Willis - 454 Portmore (Lord) v. Morris, ll6 Portsmouth (Lord) v. Lord Ef- fingham - 241 Pott and Doe 125 n Potter and Ithel - -55 Potter v. Potter - 12/, l3Gn. Potts v. Webb - - 247 Poultney v. Hoknes - 42 Powel v. Pleydeil - 43C) Powel v. Martyr - 320 Powell v. Powell - 140 Powell and Scaboune - 330' Powis (Lady) anu D< yley 2:s Powlet and Kelly - 103 Powlett and Parteriche - 88 Pratt and Crisp - 425 Prestage v. Langford 393, 39/ Preston and Merceau - 88 Preston and Morris - 195 Preston and Newton 415, 4 16 Preston v. Tubbin - 493,404 Preswick and Walker - :;04 Price and Baugh 172, 173, 4S2 Price v. Byrn - 305, 404 Price and Jones - 247 Price and Oneby - 1*10 Prire and Manse 11 - 102 Price v. Moxon - 39 Price v. Price - - 51 1 Prideaux v. Prideaux - 38, 112 Prldeux v. Gibbin 123 Pritchaid v. Quinchant - 113 Proctor v. Johnson - 381 Proctor v. Warren - 456 Prodgers v. Langham - 437 Pi'cwse and Nairn 353, 355, 305, 434 Page Prujean and Smart - 130 Pullen v. Lord Middleton 141 Pulley and Pearson - 242 Putbury v. Trevalian 125 n. Pye v. E'aubuz - - 387 Pyke v. Williams -. - 73 Q. Quincey and Scrafion - 463 Quinchant and Pritchard 113 R. Radd and Tnylor - 108, 117 Radford v. Bloodworth - 443 Radford and Wilson - 141,511 Radford and Yong - 27O Radnor v. Vendebendy or Roths- ram - 282, 283 Raindle and Brown - 142 Raleigh's (Sir Walter) case 423 Ramsden v. Hylton - 435 Randall v. Errington 401, 403 Rant) v. Hughes - 92 Rastall and Wilson - 593 Rastel v. Hutchinson 69, 41 S Rastron and Dean - 169 Raymond v. Webb - 41 Rea v. IVillmvis - 406, 407 Read and Houer 02 Read and Loyd - 422 Read and Smith - 474 Read aud Wagstaff - 509,510 Read v. Ward - 445 Reade and Cripps - 313 Reade and Roe - <2?5 Redding v.Wilkes - 72 Redington v. Rcdington 420, 421, 422, 423 Rediiel and Philips - 500 Reeves and Hardy 502,512 Rei4 xl IXD'LX TO CASf* Page FekJ v. Shergold - 479 Relfe an d Frewen - 143 Remingtou v. Deverall - 16\5 He* v. Bellringer - 107 Rex V.Boston - 70,419 Rex v. Dalby - 419 Kex v. Everard - 202 n. Rex y. Lord of the Manor of Men- don - 261 Rex v. inhabitants of Laindon 87 Kex v. Miller - 107 Rex v. Osbourne - 107 Rex v. inhabitants of Scammon- den - - 87 Sex v. Smith - - 277 Rex v. Varlo - 107 Reynolds exparte 39I, 3^2 n. 402, 403 Rhodes and Ibbotson 9, 505 Rich v. Cockell - - 128 n. Rich v. Jackson - 94, I17 Rich v. Rich (2 Ch. Ca.) 280* Rich v. Rich (Cro. Eliz.) 385 Richards v. Barton 158, 260, 262, 302 Richardson and James, App. n. Richardson v. Mitchell - 507 Richmond and City of London 1G7 Ricks and Dike - - 343 Riddle v. Emerson - 412 Riddle and Gregson - 257 Rider v. Kidder - 415,418 Ridgaid and Bonney 348, 349, 3J0 Ridler v. Ridler - _ 390 Rigby v. Macnamara (6. Ves. Jun. "7) 39 Rigby v. Macnamara (6 Ves. Jun. 466) . 4 Rigby v. Macnamara (6 Ves 515) Right v. Bawden Ripley v. Wat erworih Rivers v. Steele Roach v. Wadham Roake v. Kidd Roberdeau and Hanson Robinson v. Anderton Page Jur*. 31 421 134 495 368, 372 - * 210 27, 28 - 313 n. - 447 Robinson and Luxton - lO'O Robinson v. Robinson, App. iv. Robotham and Hughes - 270 121 Robinson v. Harrington Robsbn v. Brown Robson v. Kemp Roe v. Lowe Roe v. Mitton Roe v. Popham Roe v. Reade 503, 504 142 436 418 r 276 Roebuck and Calcraft 9, lfO, 192, 319, 320, 324 Rogers and Bowles 25, 120, 257, 364 Rogers v. Earl - ~ 113 Rogers and Farmer - H4n, Rogers and Fishe - 261 Rogers and Newman - 249 Rogers v. Seale - 512 Rogers v. Skillieorne - 332 Rondeau v. Wyatt - 69 Root aud Pope - 169,181 Rosamond v. Lord Melsiugton 110 Rose v. Calland - I90, 210 Rosewell and Smith - 478 Rest and Lord Pcng,dlor Fingal 77 Ross v. Ross - - 140 Roswel v. Vaughan , 207,315 Rotheram and Radnor or Bodmin. 282 Round INDEX TO CASES. xli Round and Cason Round and OldfieW Round and Oulread Routledge and Doe Routlege v. Dorril Howe and Atkins Ro)al K. A. Office Page ( 5U Sandford and Keech c &9 4 195, 199 I Sandford and Willet 126 n. Sands and Attorney General 2/0, 279, -&>> W 292 Racker v. Camaaeyef Rudd and Poole •Ilndele and Ca*s Riishley and Houghton Rushworth's case Russell and Stoke* .Russell and Webb 144, 145 431, 437 App. n. 413 and Henkle 108, 11~ 60 28 175 450 SOI 363 2GS, 363 Rutland's (Countess of) case 97 ■Rutland (Duchess of) and Wake- man Ryall v. Ryall Ryder v. Gower Ryder v. Wager 36, 224, 299 417, 427 38 430 s. Saber ton v. Saber ion SadTier and Bullock App. n. Sangon and Williams - HO Savage v. Fo»tcr - 480 Savage v. Humble - 347 Savage and Jordan - 221 Savage v. Taylor 132, 482 Savage v. Whilbread - 296 Savile v. Blackett - 22? Savile v. Savile - 32, 167 Saunders v. Burroughs 394 Saunders * Debew - 477 Saunde* Jerrard 476, 477, 511, 512 Sanndercon v. Jackson 45 n. 49, £4 Sawbridgc and Bret .- 2^1 Sawbridge and Wartiey - 65 Sawkins and Jordan - £6 Say and Seal's (Lord) case 503 Sayle v. Freeland 140, 141 Scammondai, inhabitants of, and Rex - «7 5l0 Scarborough (Earl of) and Wor«v- aipt Alban s (Duke of) v. Shore *J ' ^3, 494, 4 9 5, 4 9 6 155, 160, 162 Scattergood v. Edge App. n. Saint John v. ►Bishop of Winton Scot v. Bell - 435 123 Scott and Attorney General 282 n. Saint Paul and Bridie - 4/ Scott v. Fenhoulleit Saint Paul's (Derail and Chapter of) Scott y. Langs taffe v. Dr. Betesworth - 152 Scott v. Nisbitt Salev. Crompton _ - 448 Scott v. Tyler Sales and Goodright - 236 j Scraftcn v. Quincey Salisbury and Goman - 97 Salisbury (Lord) .and Wilkinson 327 Salway and Foot - 39 Samborneand Gldin 396 Sanders v. Delignc 47? Scroope v. Scroope Scrughan and TardirTe Seabaurne 7. Powell Seagood v. Meale Sealc andJlogers ■ Searles and Ne\ T - :ad 287 152 37,38 348 463 423 354, 355 336 4? . 50 ~ 7 51a 4? 4, 49-2. ick xlii INDEX TO CASES. Page Sedgwick v. Hargrnve 1-14 Sedgwick and Hithcox 277, 4y6, 497 Selbv and Lysney 4, 20/ , 315 Sclleck and Jennings - 477 Senhousc v. Earle 438, 501 Scton v. Slade 13, 121,217 250, 254, 25S Seward v. Willock - 161, 251 Seivell and Const maker 215 Sewell and Legatt - 144 Seymour v. Nosworth - 50g Shales v. Shales 420,421,422, 423 Shalmer and Spalding 331,332 Shannon v. Braristreet 147 Sh ipland v. Smith 210, 233 Shaw and Dickenson - 420 Shaw and Jakeaian 113,104 Shaw v. Wright - 212 Shearwood and Hare lOp, 1 1(5 Sheffield v. Lord Mulgrave 210, 252 Shelburn (Countess) and Earl of Inchiquin JOG, 108, 11/ Sheldon v. Cox - 471, 4Q3 Shelley's Case - 231 Shelling v. Farmer - 105 Shenton v. Jordan - 155 Shcppard v. Gosnold - 107 Sherard and Flayer - 171 Sheriffe and Jones lis Shergold and Poole i;5, 1 St), 1S7 Shergold and Reid - 479 Sherly v. Fagg - 47s Sherman andCockes - 4SS Sherwin and Earl of Bath 15 1 Shipman v. Thomson - 2()2 Shiilcy v. Davies - iqO Shirley and Notts - 120 Page Shirley v. Stratton 148, 167, 200 Shirley v. Watts - 43$ Shore and Duke of Saint Albans, 155, lOO, 102 Shorrall and Willis - 225 Shovel (Sir C.) v. Bogan 201 Shum and Taylor - 24 Sibson v. Fletcher - 47S Siddon v. Charnells - 478 Sidley and Fletcher - 420 Sikes v. Lister - l2l, 138 Silcock and Snell - 243 Si me and Graham - 201 Simon v. Motivos 27, 45 n. 57 Simmons v. Cornelius 74, 86 Simpson and Hill - 3At" Simpson and Pope "- 223, 2-Kj Simpson and Wliorwood 170, 249 Sitwell v. Barnard Skett v. Whitmore Skillicorne and Rogers Skinner and Bnrrough Slade and Jendwine Slade and Seton 43, 120, 247, 250, 254, 258 Slater and Edwards 225, 220 Slaughter and Patterson - 512 Sleap and Lady Piatt 267 Sloman v. Heme - 503 Smalwood and Walker 335, 4p4 Small and Jeffereys - 407 Smallcomb v. Buckingham 450 Smart v. Prujean - 130 Smartle v. Penhallow - 42! Smith v. Baker - 413 Smith and Beatniff - 47 1 Smith and Brice - 230 Smith v. Burnam - 247,253 Smith v. Lord Camelford - 415 Smith 32.0 415 332 27 157 INDEX TO CASES, xliii 2/7 141 4C)8 210,212 l60, 163 Page Smith and Sir J. Clerke - 7 Smith and Doe - A pp. n. Smith v. Sir Thomas Dolman 253 Smith and Ellis - 236 Smith and Green - 120, 130' Smith and Growsock 323, 324 Smith v. Guyon - 331, 341 Smith i>. Hibbard 121, 138, 224, 324, 352 Smith and the King Smith and Kirkham Smith v. Low Smith and Mario w Smith and Martin Smith (Treasurer of the U'.I.D. C.J v. the Chi/ of London 414 Smith v. Read - 474- Smith v. Rosewell - 4-78 Smith and Shapland 210, 233 Smith v. Smith - 222 Smith (Lady) and Symms 202 Smith and Thomlinson 351, 483 Smith v. Turner - 73 Smith and Vol) - 75, 80 Smith v. Watson - 50 Smith (Sir William) v. Wheeler 340 Smith v. Wilkinson Snag's case Snell v. Silcock Snelling v. Squint Some v. Taylor Sorrell v. Carpenter 4g4, 40! Sorrell and Williams Southcotaand Harrison 352, 354, 474 Soutbcote and Sweet - 48S Southgate and Chaplain 375 Southcuse and Browne - 327 415 509 243 490 204 , 40(5 466 Page' S. S. Company v. D'Oliff 10£) Sowden v. Sowden Spalding v. Shalmer 331,332 Sparrow v. Hardcastle 125 n. Spencer v. Duke of Marlborough, App. n. Spencer v. Venacre Spencer's case Sperling v. Trevor Spillet and Lloyd Spratley v. Griffiths Spurrier v. Elderton Spurrier v. Fitzgerald Spurrier v. Hancock 177? 249 Spurrier v. Mayoss Squint and Snelling Squire v. Baker Stackhouse v. Barnsto.n St add v. Cason Stainbridge and Jolland 309,471, 491, 50.3 Stamford and Eest - 285 Stangroom and Marquis of Town- send - 90,91,108,201 Stanhope's (Lord) case - 190 Stanhope and Griffin 434, 440 Stanhope v. Earl Verney 273, 365, 482 Stanley and Jones Stanley v. Lee Stansfield v. Johnson Stapelyand Butcher Staple and Doe Statham and Joynes Slaughton v. Han ley Stedman and Gough Steed v. Whitaker Steele and Jlivcrt 446 36/ 210 415 171 27, 327 69 233 , 32S 495 l6S 242 505 487 App. n. -" 60 73,491 2/6 91 144 n. 507 493 495 Stent xliv INDEX TO CASES. Page Stentv. Baily - i;5 Stephens v. Baily - 138 Stephens v. Bateman - 171 Stephens v. Olive - 436' Stephens v. Stephens App. n. Stephens and Vernon - 28 Stephenson v. Hayward 432 Stephenson and Morris 144 Stevenson and Hesse 11$, 384 Stewart and Bowles - 243 Stewart v. Careless - 69 Stezu art and Denton - /3, 156 Stibbt-rt and Taylor 484, 500 Stileman v. Ashdown 424, 435 Stile an - 54, 55 Stokes v. Russell - 3(JF Stonard and Burting - .347 Stone and Sir George Binion 422 Story v. Lord Windsor 4S7, 508, 509, 510 Stourton (Lord) v. Sir T. Meers 252 Stourton (Lord) and Sir T. Meers 252 n. Stowe's case - - 202 n. Stradling and Wills - 73 Strathmore (Lady) v. Bowes(Term Rep.) - 128 Strathmore (Lady) v. Bowes (Ves. Jun.) - - £84 Stratton and Couch .- .221 Stratton and Shirley 148, 167, 200 Stretton aHd - 35 Stringer and White 433, 47/ Sticdev. Lady Falkland - 105 StdoDs and Mathews .- 32 Page Studley and Feilder - 111, 380 Stukely and Keen - 107 Steel and Gascoigne - 457 Suffolk and Harding - 102 Sut ton and Jttornry-Genei at, App.n. Sutton and Panks - - 282 Sutton and Kenyon - 120" Swaiue and Z ouch - 387 Swam.ock v. Lyforil 2S2, 283 Swan's case - 377 Sweet v. Southcote - 488 Swinnerton and Butler - 375 Sybonrn and Doe - 2/Q Symjaos v. Lady Smith - 26'2 Symonds v. Ball - 5/ n. Syrnondson y. Tweed 65, 84 Tait v. Lord Northwick 30 Talbot and Lindsay - 503 Tanner and 0131111311 - 352 Tannery. Florence - 500 Tapp v. Lee r 5, 4S0 n. Tarback v. Marbury - 440 Tardifie v. Scuigham 354, 355 Tatem v. Chaplin - 36/ Taylor v. Alston - 418 Taylor v. Beech * J1 Taylor v. Debar .- 386 Taylor and Freeman - 303 n. Taylor v. Hawkins - w 351 Taylor v. Horde - 240 Taylor v. Radd - 108, 1 17 Taylor and Savage 132,482 Taylor v. Shum - 24 Taylor and Some - 204 Taylor v. Stihbert 484,500 Taylor v. Stile - 432 Taylor v. Taylor - 420, 421 Taylor INDEX TO CASES. XIV Taylor v. Wheeler Tawney v. Crowther Teasdale v. Teasdale Tedcastle and Morgan Tempest's case Templar and Evelyn Page 481 49 4SO 204 372 432, 434 435 n. 449 331 n. - 150 45 271 Templerand Hodges Tenant v.Jachson Tendring v. London Terrel and Clarke Terrie's case Thackeretl and Elandford App. n. Thanet (Earl of) and MuVard246, 2'5 Thellusson v. Woodford App. n. Thewer and Peacock 444 Thicknesse v. Vernon 406 Thomas and Davis 104, 113, 119 Pngc Tinny v.. Tinny S3, 221 Tipping v. Gartside 36 Titus and Parkins - 26 1 f clletf v. Tollett - 107 n. Tombs and Cooke 4p, 51, 64, 72 Tomkies and Lloyd - 375 Tomiinand Kearn 0, 122, 183 Tomlinson v. Dighton 227 Topham and Capp 14, 15, 16 Tourville v. Naish 482, 4S7 Toulrnin and Hammond 387 Towne and Thompson 121 Townsend (Marquis of) v. Stan- groom 90, 91, 10s, 201 Townsend v. Townsend 241 Tracey and Jcnner - 242 Tracey andLangton - 432 Trecothick and Coles 42, 45, 54, 56, 61, 79, 168,392,397 510 4-J9 102 262 351,483 121 Thomas and Jones Thomas v. Pledwell Thomas v. Thomas Thomas and Wynne Thomlinson v. Smith Thompson v. Towne Thomson and Collet Thomson v. Miles l60, 1S3, 250 Thomson and Shipman 262 Thome and Bullock - 442 Thornhill v. Flureau 151, 157, 15S, 327 Thruxton v. Attorney-General 290, 29], 292 Thurborne and Wall Thurland and Dormer Thwing and Gascoigne Thynn v. Thynn Tickner v. Tickner Tiffin v. Tiffin 286, 290, 29I Trenchard v. Hoskins Trent v. Planning Tresham and F.kins Treswallen v. Penhules Trevalion and Putbury Trevanian v. Mosse 159 j Trevor and Hopson Trevor and Sperling Trimmer v. Bayne Trimmer v. Jackson Trimuel's (Commissioner)case 121 Tubbin and Preston 403, 4g4 Tucker and Dare Turner v. Beauraln 225 j Turner, ex parte 236 Turner and Smith 384 211 °. 4 203 125 n. 500 155 216 362 236 23, 293 Addenda 332 73 415 416 - 413 126 Tweed and Symondson 65, 84 Twining v. Morris 10\ 148, 170 191, 192 Twisleton v. Griffith - 172 Twyford xlvi INDEX TO CASES. Page Twyford v. Warcup - 201 Tyler v. Beversham - 202 Tyler and Scott - 348 Tyrer and Onions • 131 U. Ulrich v. Dltchjield - 103 Underhill v. Horwood 17 I Underwood v. Hithcox - 168 Upcot and Coleman 43, 45, 46 Upton v. Basset - 431 Upton v. Lord Ferrers 37, 39 Urmston v. Pate - 314 V. Vale v. Davenport - 31 Vane v. Lord Barnard 312, 493 Vendebendy and Bodmin or Rad- nor - 282,283,510 Varlo and Rex - 107 Vaughan and Roswel 207,315 Venacre and Spencer 446 Vermedum and Gell - 138 Verney (Earl) and Stanhope 273, 365, 482 Vernon ex parte 138, 415 Vernon and Atcherley 120, 121, 122 Vernon and Lord Hardwicke 400, 401 Vernon v. Stephens - 28 Vernon and Thicknesse 406 Vernon v. Vernon - 122 Vigor and Attorney General 130 Villiers v. Villiers - 29O Vizard and Longdale - 221 Voll v. Smith - 78, 86 W. \V2-1d and Douglas - 434 Waddy v. Newton - 203 Page Wadham and Heard - 1 62 Wadham and Roach 368, 3/2 Wadsw'orth and Crosby 42 Wadsworth and Pindar 215 Wager and Ryder - 130 Wagstaffv. Read 509, 510 Wain v. Warlters - 43 n. Wakeman v. Duchess of Rutland 36, 224, 299 Waldron v. Forester - 325 Waldron and Honeycomb 463 Walker v. Burrows - 425 Walker aud Campbell 391, 395, 401 Walker v. Constable 29, 61, 101, 327 Walker and Only - 505, 506 Walker v. Preswick - 364 Walker v. Smalwood 335, 494 Walker v. Walker - 91 Walkley and Comer or Currer,l33 n. 320, 324,326, 341, 356 Wall v. Thurborne - 225 Wallace v. Cook - 262 Waller v. Hendon - 56 Waller and Hillary 209, 213, 276 Waller and Pigott - 126, 128 Wallis and Hardwood - 110 Wallwyn v. Lee 477, 507, 508 Wallwyn and Matthews - 467 Wally v. Whalley - 482 Walmesley and Clifton - 107 Walpole (Lord) v. Earl of Chol- mondeley - 102 Walsh v. Whitcomb - 262 Walton v. Hobbs - 505 Wanley v. Sawbridge - 65 Warcup and Twyford - 201 Ward and Callaway * 120 Ward Index to cases. xlvii Ward and Garth Ward and Newell Ward and Read Ward and Waring Waring v. Ward Page 494, 495 335 445 - 135 135 Warllers and Wain - 43 n. Warner's case - - 3S8 Warren and Dutch - 15Q Warren and Hall 146, 451, 174 Warren and Procter - 420 Warrick v. Warrick 493, 501 Wase and Emery 143, 144, 145, 1/0, 174 Watkins and Allpass - 10*1 Watkins v. Hatchet - 508 n. Waterhouse and Buller 433, 441 Waterhouse and Cass 49, 51, 201 Waterworth and Ripley 134 Watts v. Cresswell - 480 Watts v. Fullarton - 124 Watts v. Kancy - - 347 Watts v. Martin - 39 Watts and Shirley - 453 Watson v. Birch - 38 Watson and Smith - 50 Wayland and Wildgoose - 49O Weakley v. Bucknell - 430 Weal v. Lower - 140 Weare and Adams - 167 Webb v. Betfel - - ifJ3 Webb and Kirk - 416,427 Webb and Potts - 247 Webb and Raymond - 41 Webb v. Russell - 268, 363 Wedderburne v. Carr - 50' Weldon and How - 478 Welford v. Beezely 50, 51, 501 Wells and Bally - 367 Weston v. Berkeley - 511 Weston and Lyddal - 214 Page Whale v. Booth - 349 Whaley v. Bagenal - 51,72 Whalley v. Whaley - 482 Wheeler and Harrington 248 Wheeler v. Newton - 53, 144 Wheelerand SirWilliam Smith 34(5 Wheeler and Taylor - 4S1 Whelpdale v. Cookson 399, 403 Whiehcote v. Lawrence 391,395, 405 Whichcott and Duckenfield 3 Whitackre v. Whitackre - 391 Whi taker and Steed - 493 Whitaktr v. Whitaker - 127 Whitbread and Brockhurst 6q, 72 Whitbread and Savage - 296 Whitchurch v. Bevis 52, 67, 71, 72 Whitchurch v. Whitchurch 286, 287, 288, 29O Whitcomb and Walsh - 262 White v. Cole 72, 73 White v. Damon - l6S White v. Ewer - 242 White v. Nutt - - 175 White v. Stringer - 433, 477 White v. White - I27, I29 n. Whiteing and Hollis - 70 Whitfield v. Fausset - 482 Whitmel v. Farrel - 154 Whitmore's case - 134 Whitmore and Skett - 415 Whittaker v. Whittaker - 256 Whorewood v. Simpson 170, 249 Widdrington and Christ's College 505 Wigg v. Wigg - - 487 Wightman and King .- 185 Wi s -les worth and Gore - 484 Wilcocksand Coke - 511 \\Mdgoosev. Moore "- 474 d 2 Wildgoose xlviii INDEX TO CASES. Wildgoose v. Wayland Wilker v. Bodington Wilkes and Reding Wilkins and Jeanes Wilkins and Paul Wilkinson and Lush Wilkinson and Lord Salisbury 327 Willet v. Sandford - 126 n. William v. Nevil - 74, So Williams and Calvcrley - 202 Williams v. Chitty 221, 222 n. Page 49O 497 72 456 120 420 Williams and Cornwall - 150 Williams and Cunningha m 34 Williams v. Lamb - 512 Williams and Macnama ra - 156 Williams v.Millingtoh - 2/ Williams and Fyke - 7* ■ V/illhn.s and Rea 406, 107 Williams and S;.ngon - 140 Williams v. Sorrell - 466 Williams v. Williams - 512 Williams and Wray 2S2 Williams and Wyna 2S2 336 Williamson v. Curtis - 332 Vv'il is v. the Commissioners ol •A P - peals in Prize C auses 327 1/0 - 454 225 415,417 164, 251 M illls v. Jernegan Willis and Port-man Willis v. Shorrall Willis v. Willis Willock and Seward Wdloughby v. Willoughby, 272, 277,477,500 Willowes' case Wills v. Stradling Wilson v. Bennett Wilson and Colton Wilson v. Foreman Wilson and MaLtland Page Wllon and Lord Middleton 48, 91 Wilson and Radford 141,511 Wilson v. Rastall - 503 Wilson v. Wormol - 437, 453 Wilsons and Hunter - 176 n. Winchelsea (Earl ef) and Finch 302. See Appendix Winchester (Bishop of) v. Fournier 502 Windsor (Lord) and Earl of Pom- fret - 2L1 Windsor (Lord) and Story 487, 508,509, 510 Win ford aud Lutwych - 32 Wing v. Earl - - 204 Winged v. Lefebuiy 120, 153, 484 Winsmore and Lichden - 267 Winstanley and Blankley 107 Winter v, Dcvreux - 114 Winter and Leigh - 441 512 I Win ton (Bishop of) and St.Johnl23 Vv T irdman v. Kent - 192 Wiseman v. Beake - 173 Withers v. Pinchard - 144 Withers v. Withers - 415 Wittenoomand Crespigny 179 n. Wolf and Burgh - 478 IVood v. £ir:h or Norman 410 Wood and Green - 249 261 73 122 223 427 509 Woodford and The'lusson App. n. Woodhouse and Harvy 477 Woodie's case - - 434 Woodmanv.Morre.il - 421 Woodrow and Glazebrook 162 Woods v. Huntingford - 135 Woollam v. Hearn - 90, 9 1 Wollaston and Collet - 168 Worcester (Bishop of) v. Parker 477 Worley INDEX TO CASES. xlix Worley and Hamilton Wormol and Wilson Worseley and Hill Worsley and Cavendish Worsley and Norclift" Worsley v. Earl of Scarborough 493, 494, 495, 496 Wortley v. Birkhead - 496 Wray v. Williams - 282 Wren v. Kirton 20, 35, 395 Wright and Browning 1 1 1,373,382 Wright and Clerk Wright v. Mayer Wright and Needier Wright and Shaw Wrightson v. Hudson Wrigley and Andrew Wroot and Doe Wyatt and Rondeau Wynn v. Morgan Wynn v. Williams Wynne v. Thomas Yallop and Douglass - 311 Yardly and Drapers Company 499 Yarworih and Nourse - 290 Yea v. Field Yeavely v. Yeavely Yong v. Radford York v. Eaton Page 2 t 494 270 406 York B. Company v. Mackenzie 39I, 392, 395, 401, 402, 405 York B. Company and Higgins 304 Young and Berry 23, 27, 246, 293, 294 Young v. Clark Young and Crosse Young and Harvey Young v. Young 168 374, 375 3 11& YEAR BOOKS 30 E. 3. 24 a. 42 E. 3. 11 a. 47 E. 3. 18 a. 31 Ass. pi. 6 38 Ass. pi. 4 42 Ass. pi. 17 2 H. 4. S b. 39 H. 6. 35 7 E. 4. 14 b. 15 H. 7. 11 b. Z. Zouch v. Swaine 306 308 203, 204 453 ibid. - 306 306 455 n. 143 225 387 TABLE OF STATUTES CITED. EDWARD I. 13 c. 18. Elegit. Page 451, n. 13. c. 19. Administration 330, 455 33. Measures - - 202 EDWARD III.' 4. c. 7. Executors - 455, n. 31. c. 11. Administration 455 HENRY VIII. 21. c. 5. Administration 24. c. 4. Measures 27. c. 10. s. 3. Merger s. 7. Dower - - 455 202 270 219 32. c. 2. Limitation of Time 205 238 - 367, n. 32. c. 34. Covenants 13. c. 5. 13. c. 7. 27. c. 4. 30.C.18. s . 43. c. 4. 43. C 8. ELIZABETH. Fraudulent Convey- ances, Creditors 424 Bankruptcy - 444 ] Fraudulent Con- f 424 veyances. Pur- <* chasers. I Charity Administration - CHARLES II. Page 22. &: 24. c. 10. Distribution 456 29. c. 3. s. 17. Parol agree- ments 42 — s. 7- Declaration of 410 . — s. 8. Resulting trusts 415 s. 10. Execution - 303 - s. 14. 15. Judgments 446 . ... -s. 16. Execution - 450 — s. 18. Recognizances 457 . s. 25. Distribution 456 WILLIAM and MARY. i / 3. c. 14. Devizes 4. & 5. c 20. -I 7.&r8.c.36.s.3.j 329 Judgments J -^4 {? 11. and 12. c. 4 Purchasers „ WILLIAM III. Papist 391, 472 JAMES I. 1 j 21. c. 16. Limitation of Time 238 21. c. 19. Bankrupts - 425 . s. 14. Purchasers from Bankrupts - 445 ANNE. 443 455 TABLE OF STATUTES CITED. li ANNE. Page 2. & 3. c. 4. Registry - 457 4. c. 16. s. 15. Declaration of Uses 410 n. 5. c. 18.1 . r 6.C.35.} Re § istr y [ 7. c. 19. Infant Trustees 7. c. 20. Registry 310, 457 - 138 457 GEORGE I. 3. c. 18. Papist vendors Q. c. 7. s. 4. Churchwardens GEORGE II. 472 388 8. c. 6. Registry 14. c. 20. Recoveries - 310,457 474 GEORGE III. If. c - 26. Life Annuities \79 n. 17. c. 50- s. 8. 19. c. 56. s. 11. s. h2. s. 13. s. 14. s. 15' 27. c. 13. s. 36. 28. c. 37. s. 19. s. 20. > a 31. c. 32. Papists - 37. c. 14 > 42. c. 93 s. 1. -s. 2. c 0' 42. c. Il6. s. 113- 43. c. 30. Papists 43. c. 75. Lunatics 45. c. 30. Auctions Page 26. 20. 13. 11. 11. 12. 11. 20. 13. 391 13. 13. 14. S I 12. 391,473 146 n. 11 f a. <{ THE T HE L AW OF VENDORS JND PURCHASERS ESTATES. INTRODUCTION. .Moral writers insist (r/.) ? that a vendor is bound, in foro cons dentin, to acquaint a purchaser with the defects of the subject of the contract. Arguments of sortie force have, however, been advanced in favour of the contrary- doctrine ; and our law does not entirely coincide witU this strict precept of morality (£). If a person enter into a contract, with full knowledge of all defects in the estate, no question can arise : scientia ertim utrinqne par pares facit contrahentes (c). So if, at the time of the contract, the vendor himself was hot aware of any defect in the estate, it seems, that the pur- chaser must take the estate with all its faults j and cannot claim any compensation for them, (a) Cic* de Off. 3. 13. Grotius Deuteron. xxv. 14 de Jure Belli ac Pads, 1. 2. c. 12. (b) Vide infra, ch 6. s. g. Paffendorf de Jure Naturae (c ) Grotius de Jure Belli ac Pa- ct Gentium, 1. 5. c. 3 s. 2. PufFen- cis, 1.2. c. 12. s. 9, 3. Puffen- dorf de Off. 1. I.e. 15. s. 3. Va- dorf de Jure Naturae et Gentium., Jierius Maximus, 1.8. c.ll. et vide 1. 5. c. 3. s. 5. * B And 2 INTRODUCTION. And even if the purchaser was, at the time of the con- tract, ignorant of the defects, and the vendor was acquaint- ed with them, and did not disclose them to the purchaser; yet if they were patent, and could have been discovered by •a vigilant man, no relief will be granted against the ven- dor. The disclosure of ev. :• , ./ defects in the subject of a contract, may be allowed to be a moral duty ; but it is, what the civilians term, a duty of imperfect obligation.. / igilantibus, non dormrentibu& jura subveniunt 9 is an an- cient maxim qi our law, and forms an insurmountable barrier against the claims of an improvident purchaser. In this respect, equity follows the law. But it has been decided, that if a vendor, during the treaty, indus- triously conceal a patent defect, he is not entitled to the ex- traordinary aid of a court of equity: and k is conceived, that he could not even sustain an action against the pur- chaser for breach of contract. And if a vendor know of a latent defect in his estate, which the purchaser could not, by any attention whatever, possibly discover, he is bound to disclose it, although the estate be sold, expressly subject to al! its faults (1). By the civil law, vendors were bound to warrant both the title and estate against all delects, whether they were or were not conusant of them. To prevent, however, the inconveniences which would have inevitably resulted from (0 But note, a purchaser is not bound toaequaint the vendor with any latent advantage in the estate : for instance, if a purchaser know there rs a mine on the estate, he is not bound to disclose that chcorh- Btance to the vendor, although he know that the w r is ignorant of it. See 2 Bro. C. C. 420. Equity will not, however, Interfere in fa- vour of a purchaser who has misrepresented the estate to any person who lad a desire ot purchasing it. See He-Ward v. Hopkyns, 2 Aik. 371. this INTRODUCTION^ 3 tins general doctrine, it was qualified by holding, that if the defects of the subject of the contract were evident, or the buyer might have known them by proper precaution, he could not obtain any relief against the vendor. The rule of the civil law also was, "simplex commenda- tio noil obllgdt" If the seller merely made use of those expressions, which are usual to sellers, who praise at random the goods they are desirous to sell ; the buyer, who ough t not to have relied upon such vague expressions, could not procure the sale to be dissolved upon any such pretext (d). The same rule prevails in our law (V), and has received a verv lax construction in favour of vendors. It has been decided, that no relief lies against a vendor for having falsely affirmed, that a person bid a particular sum for the es- tate, although the vendee was thereby induced to pur- chase it, and was deceived in the value ( /). Neither can a purchaser obtain any relief against a vendor for false affirmation of value (g) ; it being deem- ed the purchaser's own folly to credit a nude assertion of ■ ];ctt nature. Besides, value consists in judgment and esti- mation, in which many men differ (//). / But if a vendor affirm, that the estate was valued by per- sons of judgment, at a greater price than it actually was ; alid the purchaser act Upon such misrepresentation, the ven- dor car:iot, at least in equity, compel execution of the ■■■ on tract (/), (.-/) 1 Dom. S3. See Duckenflcld v. Whichcott, 2 (e) Chandelor v. Lopus, Cro, Cha. Ca. 204. Jpc. 4. (/ ; ) See Ekins v. Tresham, J (/) 1 Fvol. Abr. 101. pi. 16. Lev. 1Q2. reported 1 Sid. 14(3, by See 1 Sid. l-ld ; Kinaird v. Lord the name of Leakins v. Clissel. Dean, stated infra, n. (,') Buxton v. Cooper, 3 Atk. m) Harvey v. Young. Yelv. 20. 383. S.C, MS. b 2 And 4 INTRODUCTION. And a remedy will lie against a vendor, for false af* formation of rent (k) (2) ; because that is a circumstance within his own knowledge. And the purchaser is not bound to inquire further : for the leases may be made bv parol, and the tenants may refuse to inform the purchaser what rent they pay ; or the tenants may combine with the landlord, under whose power they frequently are, and so misinform and cheat the purchaser. In Lysney v. Selby, (/) Lord C.J. Holt said, that where the vendee does not depend upon the affirmation of the vendor, but sends to inquire into the value of the houses, what they let for, &c. there it is not reasonable he should recover against the vendor. The court, however, took time to consider and look into the record of Ekins and Tresham's case (jti) ; and after long considering, and upon view of that record,, a judgment which had been given in favour of Lysney the purchaser, was affirmed, although, according to the state- ment of the chief justice, the purchaser did not depend on the vendor's assertion,, but did inquire what the estate (/•) Ekins v. Tresham^ ubi sup. (/) Ubi supra. Lysney v. Selby, 2 Lord Raym. (,-?..) [Jbi sup. 1118. 1 Salk. 21T. s. c. (2) In the 1st vol. of Coll. of Decis. p. 332, (he following easels reported : — An heritor having solemnly affirmed to his tacksman, nt set- ting the lands, that there was paid' by the preceding tenants, for each acre, a great deal more than really was paid, and thereby induced him to take it at a very exorbitant rate, whereby lie was lesed ultra dimi' d\um ; yet continued to possess two years before he- complained. The lords" found the alledgeance of circumvention and fraud, both in conslilc and in event u, not sufficient to reduce the tack, and that the tenant should have informed himself better ), are not liable to the duty : nor do the acts extend to auctions held on the account of the lord or lady of any manor, for granting copyhold or customary lands, for lives or years j or to any auction held for the letting any estate for lives or years to be created by the persons on v/hose account such auctions shall be held (c) (1) : neither does the duty attach upon the purchase-money of any estate, sold under a she- riff's authority, for the benefit of creditors, in execution of any judgment ; or to the purchase-money of any bank- er) 27 Geo. III. c. 13. s. 36. (b) JO Geo. III. C. 56. s. 13. 37 Geo. III. c. 14. and 45 Geo. (c) Id. s. 14. III. . Ca„ (,)42 Geo. III. c. 116. s. 113.' 699. (/) 4 Bro. C. C. at the end. ceiveel AND PRIVATE CONTRACT. 18 ceived that the purchaser must either rely on the bona Jldcs of the mortgagee, as to the sum really due, or must, insist upon an account of the mortgage money and interest he in* taken by the commissioners, according to Lora Ross- Ivn's order, in the same way as if the estate had been so.d in the manner prescribed by the order. The auctioneer, agent, or seller by commission is bound to pay the auction duty, which he may deduct out of the money he receives at the sale. If he receive none, he may recover it from the vendor by action. But if the owner of estates sold by auction, or any- other person on his behalf, buy in the same without fraud or collusion, no auction duty will become payaole {h)'; r provided notice be given in writing (z) to the auctioneer before such bidding, signed by the owner and the person . intended to be the bidder, of the latter being appointed by the former, and having agreed accordingly to bid at the sale for his use (/;) ; and provided the delivery of such no- tice be verified by the oath of the auctioneer, as also the fairness of the transaction to the best of his knowledge. Neither will the duty be payable if the estate is bought in by, or by the order of the steward (/) or known agent oi the owner, actually employed in the management of the sale of such estate; but notice in writing of his intention must be given by the steward or agent, if he himself bid, or by him and the bidder, if he appoint a person to bid (m); and the ~ delivery of such notice must be verified in the same man- ner as the delivery of a notice given by the owner. And to exempt a vendor from payment of the duty, every no- tice must at the time appointed by law for the auctioneer's (h) 19 Geo. III. c 56. s. li. (/) 42 Geo. III. c. 03* s.l. (i) 28 Geo. III. c. 37. s. 20. (m) See forms cf such notices, (k) See a form of such notice. Appendix, Nos. 2 and 3. Aopendix, No. 1. V^ passing 14 OF SALES BY AUCTION passing his account of the sale, be produced by the auc- tioneer to the officer authorized to pass the account o£ such sale; and also be left with the officer [n)i Any thing in the nature of a bidding is within the Acts ; and therefore where the owner put the price un- der a candlestick in the room, and it was agreed that no bidding should avail if not equal to that (which is called a dumb bidding), it was holden (6) to be a bid- ding within the Acts ; as being in effect an actual bidding of so much, for the purpose of superseding smaller bid- dings at the auction. But to bring a bidding within the Acts, the sum must be named by the party eo intuitu, with a view to the purchase of the estate. Therefore, in the case of CrusO v. Crisp (/>), it was decided, that putting up an estate in lots at certain prices, was not a bidding within the Acts ; and consequently where the owner intends only to put up the estate at a certain price, and not to bid for it in case of an advance, no previous notice of his intention need be given. If an estate be bought in by the owner, and proper no- tices were not given of his intention to bid, the sale will be held real, and the duty must be paid, however fair the transaction may be. A statement by an auctioneer to the vendor or his agent, that he has done what is necessary to avoid pay- ing the duty, will amount to a warranty, although the duty become payable not by the default, but by the ig- norance or mistake of the auctioneer, («) 42 Geo. III. c. 93. s. 2. Rep, 443. (o) See the case, cited 3 East (/>) 3 East 33;. •lo. Capp v. Topham, 2 Smith's Thus AND PRIVATE CONTRACT. 15 Thus in the late case of Capp v. Topham (q), an auc- tioneer put up an estate, and by the conditions of sale reserv- ed a dumb bidding (r) to the owner, which Was his mode of saving the payment of the auction duty. The own- er's solicitor, with the privity of the auctioneer, placed a ticket containing the price in figures, under a candlestick, on a table in the auction room. A person who attended on behalf of the owner, asked the auctioneer if he had taken the proper precaution to avoid the duty, if there was no sale. , The auctioneer said, it was his mode to fix a price under the candlestick, and if the bidding should not eome up to the price, there was no sale or duty. There were several biddings, but under the price fixed, and the auctioneer was compelled to pay the duty. He then brought an action against the owner for recovery of the money as paid to his use ; but the statements by the auc- tioneer were holden to amount to a warranty, and judg- ment was given for the defendant. In this case, Lord Ellenborough said, that even if there was no warranty on the part of the auctioneer, and it was only a mutual error between him and the vendor, he could not call upon his companion in error for a contri- bution (s). According to Cicero (t), a vendor ought not to ap- point a puffer to raise the price, nor Ought a purchaser to appoint a person to depreciate the value of an estate intended to be sold. And Huber lays it down (w), that if a vendor employ a puffer, he shall be compelled to sell the estate to the highest bona Jlae bidder ; because it is ( j) 6 East 3Q2, 2 Smith 443. Jun. 625. n. cited. ( ) Vide sup™. (t) De Off. 1. 3. ) See Christie'* case, 3 Ves. («) Praslectionea, ryiii. 2, 7. against Ttf OF SALES BY AUCTION against the faith , of the agreement, by which it is stipu- lated that the highest bidder shall be the buyer. In Bexwell v. Christie (#)j Lord Mansfield and the other Judges of B. R. followed the rule of the civil law; and treated a private bidding, by or on the behalf of thef vendor, as a fraud ; but the legislature, by the subsequent statutes, imposing a duty on sales of estates by auction, seems to have been of a different opinion, and even to have sanctioned it. As my Lord Rosslyn, who was present at the making of the Act, remarked in the case of Conolly v. Parsons f ?/), the Acts of Parliament go upon its being a usual thing and a fair thing for the owner to bid. The pressure, when the tax was imposed, was by embarrassing people who chose to dispose of their goods by auction, if they chose to be purchasers, by the tax falling upon, them. His Lordship added, that he thought it would have occurred either to Lord Thurlow or to him, when the exception in favour of the owner was proposed, that the case would not exist, as the owner could not be a bid- der ; or that, for his attempting to do what he could not by law, it would be just that he should pay the duty. It was very wrong to the publiG to let that clause stand, if at the time it was understood that the owner bidding was doing an illegal thing. The Acts do not require an open notice, but only a private notice to the auctioneer, and an oath to prevent the setting up a bidding for the owner* that the bidder might evade paying the duty. Lord Kenyon, however, in the case of Howard v. Castle, where the purchaser was the only real bidder : z), clearly- coincided with Lord Mansfield's opinion ; and held, that (*)H. 16 Geo. IIT. Cowp. 395. 642. See Twining v f Morris, % ( y ) See 3 Ves. Jun. 628. Bro. C, C. 326. {*) 36 Geo. III. 5 Tprm Rap. unless AND PRIVATE CONTRACT. 17 unless it was publicly known that the owner intended to bid, it was a fraud upon the purchaser, and consequently no action would lie against him for non-performance of hi$ agreement. The acts of parliament, he thought, did not intend to interfere with this point, but to leave the civil rights of mankind to be judged of as they were before. And Grose I. also expressed his opinion, that the doctrine was not in the least impeached by the acts of parlia- ment. But in the case of Conolly v. Parsons (a), lord Rosslyn. said, he fancied the foregoing case turned on the circum- stance that there was no real bidder ; and the person re- fused instantly. It was one of those trap auctions which are so frequent in this city. The reasoning went large certainly ; and did not at all convince him. He said 5 he should wish it to undergo a reconsideration ; for if it was law, it would reduce every thing to a dutch auction, by bidding downwards (1). Jie felt vast dijfficulty to corn- ea) .3 Ves. Jun. 625, n. ( 1) A sale of this nature is thus conducted : The estate is put up at a high price, and if nobody accept the offer,, a lower is named, and so tfre sum first required is gradually decreased, till some person close with the offer. Thus there is of necessity only one bidding for the estate: a mode of sale which, in this country, would attract few bidders. In. some counties in England a singular mode of sale of estates for re- demption of land-tax is adopted: the auctioneer states the sum of money wanted, and the number of acres to be disposed of, and the person who will accept the least quantity of land for the sum required, is declared the purchaser 3 so that the persons bid downwards, until «ome one name a quantity of land less than any other will take. The manner of conducting sales by auction of the post-horse duties Is at once dutch and eaglish. The duties are put up at a largui Thurlow, C 4 hausted. %4? Of SALES BY AUCTION" hausted. In one case, the lots were more than 200, ana the copies came to 2000/. If the estate intended to be sold, is vested in devisees in trust to sell, and there is no person to enter into the usual covenants for the title, that circumstance should be men- tioned in the particulars (s). If the estate is leasehold, and the vendor cannot procure an abstract of the lessor's title, this fact should be stated in the conditions (f). A purchaser of a leasehold estate must covenant with the vendor to indemnify him against the rent and covenants in the lease, although he is not expressly required to do so by the conditions of sale (u). And although a purchaser is not required by the condi- tions of sale, to give an indemnity against the rent and co- venants, and an assignment is actually executed with- out any indemnity being given ; yet, even a verbal agree- ment by the purchaser, before the sale, to secure such in- demnity, will be carried into a specific execution, if it be distinctly proved (a?). Where a vendor is only an assignee of a leasehold estate, and is not bound by covenant to pay the rent, and perform the covenants in -the lease, his liability to do so ceases upon his assigning the estate over (y), and consequently, in such a case, there is not any thing for a purchaser to indemnify against. (s) Seepost. ch. g. the mortgage money. (/) See post. ch. f. (*) Pember v. Mathers, 1 Bro. (ii) See Pember v. Mathers, 1 C. C. 52; and see post. ch. 3. Bro. C. C. 52. and see post, ch.4, (y) Sec. 1 Trea. Eq. 2d Ed. p. in note, as to the obligation of a 350, and Fonbl. n. (y) ibid, and sec purchaser ofap equity of redemption Taylor v. Shum, 1 Bos. and r-jlL to indemnify the vendor against 21. it AND PRIVATE CONTRACT. 2.5 It should always be stated in the conditions, that the con- veyance shall be prepared 6y, and at the expense of the purchaser (z)* The usual condition, " that if the purchaser shall fail to comply with the conditions, the deposit shall be forfeited, and the proprietors be at liberty to re-sell the estate ; and the deficiency, if any, by such sale, together with all charges attending the same, shall be made good by the de- faulter," should never be omitted. It forms a lien on the estate for the purchase-money, &c. and if the purchaser do not comply with the conditions, the vendor may, by virtue of this stipulation, re-sell the estate, and recover the defi- ciency and charges from the purchaser (a). And if the money produced by the second sale, exceed the original purchase-money ; the purchaser who has violated the agree- ment, will not be entitled to the surplus, but the vendor himself will be entitled to retain it. If the purchaser, after breaking the condition, become bankrupt, and the estate is resold at a loss, the expenses of the sale, &c. being in the nature of unliquidated da- mages, cannot be proved under the commission; but as the vendor has a lien on the estate, he may apply the money- produced by the last sale of the estate, first, in payment of those articles which it is just he should receive, but which he could not prove under the bankruptcy ; then, towards payment of the original purchase-money ; and the balance may be proved under the commission {b}. A bidding, at a sale by auction, may be countermanded at any time before the lot is actually knocked down(c) : because (z) See post. ch. 4. vide 7 Ves. Jan. 2/5. (a) Ex parte Hunter, 6 Ves. (£) Ex par. e Hunter, 6* Ves. Jim. Jun. 94 j and see Moss v. Mat- 94. Bowles v. Rogeis, ibid. 95. n. thews, 3 Ves. Jun. 279 ; Mertens (c) Payne v. Cave, 3 Term Eep. v. Adcock, 4 Esp. Ca. 251. scd 14S. the 26 OF SALES BY AUCTION the assent of both parties is necessary to make the contract binding ; that is signified on the part of the seller, by knock- ing down the hammer. An auction is not unaptly called locus peenitentice. 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 be- fore the hammer is down, he would be bound by his offer and the vendor would not, which can never be allowed. The countermand of a bidding would. in some cases, be of the most serious consequences, and it might therefore be advisable to stipulate in the conditions of sale, that no persons shall retract their biddings. Although the duty is by the acts imposed on the vendor, yet he is not restrained from making it a condition of sale, that the duty, or any certain portion thereof, shall be paid by the purchaser over and above the price bidden at the sale by auction ; and in such case the auctioneer is required to demand payment of the duty from the purchaser, or such portion thereof as is payable by him under the condition ; and upon neglect or refusal to pay the same, such bidding Is declared by the acts to be null and void to all intents and purposes (d) (1). It is usual to make some provision respecting the pay- ment of the auction duty, and indeed, where the purchase- money is liable to the duty, a stipulation of this nature (d) 17 Geo. Ill c.50. s. S. See 7 Ves. Jan. 345. (] ) This provision seems very objectionable. It might be contended, that if a purchaser disliked his bargain, his refusal to pay the auction duty would annul the sale, and throw the whole expense attending it on the vendor, whose estate would still remain unsold. If there be any foundation for this argument, the clause in question should not be permitted to stand in its present shape. should AND PRIVATE CONTRACT. J-i should never be omitted, unless the vendor intend to pay the whole duty himself. The other provisions which ought to be inserted in con- ditions of sale, are so well known as not to require notice. If an attorney or agent bid more for an estate than he was empowered to do, he himself woul 1 be liable ; but it seems his principal would not (e). But unless he were expressly limited as to price, and nqt enabled to go beyond the limits of his authority, his principal would be bound (/). If an auctioneer give credit to the vendee, or take a bill, or other security, for the purchase-money, it is entirely at his own risk •, as the vendor can compel him to pay the money (g). The auctioneer should not part with the deposit until the sale be carried into effect I h) ; because he is considered as a stake-holder, or depositary of it; and therefore an ac, tion will lie against him for recovery thereof, if the pur- chaser be entitled to recover it. And unless an auctioneer disclose the name of his princi- pal, an action will lie against him for damages on breach of contract (£)• It may here be remarked, that a deposit is considered as a payment in part of the purchase-money (h), and not as a mere pledge ; which was also the rule of the civil law, where money was given ; but if a ring, &c. was given by way of earnest, or pledge, it was to be returned (/> (c) See Ambl. 498. 10 Vcs. 640. n; Spurrier v. Elderten, 5 Esp. Tun. 400. Ca - l > and sce/>oj.'. ch. 10. (/) Hicks v. Hankin, 4 Esp. (i) Hanson v. Roberdcau,Peake's Ca. 1 14 j see East India Company Ca 120 j see Simon v. Motives, 3 y. Hcnslev, 1 Esp. Ca. 112. Burr. 1021. ( g ) Williams v. Millington, 1 (*) Pordage v. Cole, 1 Saund. Hen. Blackst. 81. 31 9 i see Main v.Melbourn, 4 Ves, (k) Burrough v. Skinner, 5Eurr. Jun. 720. 12,639; Berry v. Young, 2 Esp. Ca, (/) Vinnius, 1. 3. 24, ^3 OF SALES BY AUCTION If, pending a suit for specific performance, a deposit be laid out in the public funds under the authority of the court, it will be binding on both vendor and vendee ; and if laid out without opposition by the seller, it must be presumed to be with his assent ; and in either case he must take the stock as he finds it (m). But if a purchaser is intitled to a return of his deposit, he is not compellable to take the stock in which it may have been invested, unless such investment were made under the authority of the court, or with his assent. Therefore where the deposit is considerable, and it is probable that the pur- chase may not be completed for a long time, it seems ad- visable for the parties to enter into some arrangement, for the investment of the deposit. No objection can be made to the whole of the deposit re- quired by the conditions, not being paid by the purchaser \ if the vendor, after the sale, agree to accept a less sum (u). Although the deposit be forfeited at law, yet equity will, in general, relieve the purchaser, upon his putting the ven- dor in the same situation as he would have been in, had the contract been performed at the time agreed upon (a). But if a bill by a purchaser for a specific performance is dismiss- ed, the court cannot order the deposit to be returned : as that would be decreeing relief (p). Immediately after sale of an estate by auction, an agree- ment (q) to complete the purchase should be signed by the parties or their agent, as sales by auction of estates are with- (m) Poole v. Rudd, 3 Bro. C.C. 66 ; Moss v. Mathews, 3 Ves. Jun. 49 j and sec Doyley v. the Coun- 279. tess of Powis, 2 Ero. C. C. 32. (/) Bennet College v. Carey, 3 (^Hansonv.ttubeideau^Peake's Bro. C.C. 3QO. Ca. 120. (q) See a form of an agreement? (e)Vernonv.Stepliens,2P.Wms. Appendix, No. 5. in AND PRIVATE CONTRACT. 29 in the statute of frauds (/•) ; and consequently, the contract could not be enforced against either of the parties who had not signed an agreement. The same observation of course applies to sales by pri- vate contract (s) ; as indeed do all such of the foregoing ob- servations, as do not in their nature apply exclusively to sales by auction. As agreements for sale of estates are generally entered into by the attornies of the parties, it may in this place be proper to observe that where an attorney enters into an agree- ment on behalf of his principal, the agreement should be made and signed, in the name of the principal, by him, as attorney: for if an attorney covenant in his own name for himself, his heirs, &c. he will himself be personally bound, though he be described in the instrument as covenanting for, and on the part of his principal (/). Where an estate is sold in lots, whether by public auc- tion or private contract, the vendor should take attested copies of the parcels included in the different conveyances ; as a cautious purchaser of any part of the estate, will proba- bly require some evidence, that no part of the estate bought by him, is included in any of the conveyances to the other purchasers. (r) Walker v. Constable.. 2 Esp. (s) Clerk v. Wright, 1 Atk. 12. ) : in the first no time is appointed for the sale. About three weeks or a month after the insertion of the first advertisement, a warrant must be taken out to fix a time for the sale, and it must be served on all the parties clerks in court. The warrant being attended, the master, with the (a) Fide sttfra, p. 15. (3) 2 Fowl. Prac. 305. approbation OF SALES UNDER THE AUTHORITY, &C. 3t approbation of all parties, will fix the time, and the second advertisement, which is usually called the peremptory ad- vertisement, stating the time, must then be prepared, and inserted in the Gazette (c). The estate may be sold either before the master ; or, if from the situation and nature of the estate the sale ought not to take place in town, it may be ' sold in the country before the master's clerk, or any other person authorized by the master (d). The plaintiff's solicitor should attend at the sale, which is conducted in the following manner : The master's clerk pre- pares a particular of the lots to be sold, with spaces between each lot. The lots are successively put up at a price offered by any person present, and every bidder must sign his name and the sum he offers, in the space on the particular, under the lot for which he bids, and must pay 2s. 6cL to the master's clerk for every bidding. The best bidder is, of course, declared the purchaser. If any lots are not sold, they must be again advertised for sale (, that is, unless cause be shewn against the same in eight days after service; The purchaser must, at his own ex- pense, procure an office copy of this order from the regis- ter. If no cause be shewn within the eight days, the pur- chaser must, at his own expense, apply to the court to con- firm the report absolutely, which will be done of course (/>), on an affidavit of the service of the order (7)* and a certifi- cate of no cause having been ghewfe This certificate is obtained from the register by application to the entering clerk, and leaving the order nisi the day before. Notice of this application need not be given (r> The bidder not being considered as purchaser until the report is confirmed, untfl then he is not compellable to complete his purchase u) ; but upon the report being con- („) See Parker's Analysis Ul. ty) For form's of the affidavit (») For a farm of the order, see see 2 Turn. Pnrcfc. 503, .522. Park- 2 Fowler's Pract, 303. *■ Anal. 98 ; 2 Fowl. Pract. 3lO, (f) For a form of this order see (r) See 1 Turn- Praet. 129. * Fowl. Pract 311, (') Anon. 2 Ves ' Jan ' 335 ' ,», finiied 34 OF SALES UNDER THE AUTHORITY firmed he will be compelled to carrv the contract into cx- ecution (t). If the purchaser neglect to complete his purchase, the practice is, to confirm the report, and then if the purchas- er is supposed to be responsible, to get an order to inquire whether the party can make out a good title (2*), and if he can to obtain an order upon the purchaser to complete hi? purchase (\r) 5 but if the purchaser is unable to complete his purchase, then> on the report being confirmed, it is moved to discharge him from the bidding (yj, and notice of this motion must be given to the purchaser (z). When the report is absolutely confirmed, the purchaser is entitled to a conveyance on payment of the purchase* money, and may, after giving notice of his intention (a), apply to the court for leave to pay his purchase-money into the Bank (bj, and to be let into possession of the estate; but this application should of course not be made until the title be approved of (c). When the money is paid accord- ing to the order, the purchaser must, at his own expense, obtain a certificate of the payment of it. If the estate be subject to an incumbrance, which appears upon the report, the purchaser should, after giving notice of his intention (d), apply to the court for leave to pay off the (/) Barker v. Hertford, and Eg- {a) Tor forms of the notice see ginton v. Flavel, 2 Anstr. 341, 2 Turn. Pract. 647 ; Park. Anal, cited. MO. (?/) Notice must be given of the (I) Por the mode of paying the motion for this order. For a form money into the Bank see 1 Turn, of the notice see 3 Turner, 650. Pract. 210 ; and for a form of the 00 See 2 Fowl. Pract. 31 S, 325. order see 2 Fowl. Pract. 313. (jO Cunningham v. Williams, (r) See 2 Fowl. Pract. 31?. 2 Anstr. 344. (,/) For a form of such notice seg (a) For a form of the notice see 2 Turn. Pract. (548. 2 Turn. Pract. 65 L charge 5 OF THE COURTS OF EQUITY. 35 charge, and to pay the residue of the purchase-money into the Bank. . But where an incumbrance on the estate does hot appear on the report, and any of the parties refuse, or are incompetent to consent, a purchaser cannot apply any part of his purchase^money in discharge of the incumbrance, though perhaps, if the parties be all competent to consent, and do consent, it may be done (e). Where two Or more persons purchase one lot, the money must be paid altogether, the court will not allow them to pav their proportions separately, on account of the confu- sion which might ensue ( f). A purchaser under a decree is entitled to be let into pos- session of the estate from the o^iarter-day preceding his purchase, paying his money before the following one. But this rule does not apply to a colliery, which is considered as a trade. The profits are settled monthly, and therefore the purchaser is entitled to the profits only from the commence- ment of the month in which he purchased, paying his pur- chase-monev in the course of that month (»•). When the report is absolutely confirmed, and every thing arranged, the draft of the conveyance must be drawn by the purchasei 's solicitor, and either settled by the master, if the parties insist upon it, or, which is more cu6tomary, by a conveyancing counsel of whom the master approves. Suf- ficient time must be allowed for copies to be made for such par-ties in the cause as require them, and then warrants must be taken out to proceed on the draft. The master's i Lark will, at the purchaser's expense, ingross the deed, pro- cure the report or certificate of its being allowed, and then deliver the deeds to the purchaser, and it is usual to ob- {e) v.Suetton, iVes. Jun. ( g) Wren 'V, ©€$00* S Ves. 236. Jun. i02. (/) Darkinv.Marye, 1 Anst, 22, d Q tain 36 OF SALES UNDER THE AUTHORITY fain the master's signature to every skin. The report must be filed, and an office copy of it taken CK), It is usual, however, to so word decrees, that the draft shall not go before the master unless the parties differ. Where this mode is adopted, the business is transacted in the same way as it would have been upon a sale by private contract, unless the parties cannot agree, in which case, re- sort is had to the master. When the deeds have been properly executed by all ne- cessary parties, an affidavit of the due execution of them must be made, and filed in the affidavit office, and an office copy of the affidavit must be taken: this being done, the money directed to be paid in consequence thereof, may be procured in the usual manner (z). If the parties disagree as to the necessary parties, &c. to the conveyance, the master will report his approbation of the- draft, as settled by him. To this report exceptions may be taken (k ;, and then the question will come before the court in the regular way. So if the parties differ as to the validity of the title to the estate, the master must make his report upon the title, to which exceptions may in like manner be taken (/). Thus far we have traced a sale before a master where no- opposition is made to the" master's report of the best bidder being absolutely confirmed, and the sale is regularly con- cluded. But where estates are sold before a master under the decree of a court of equity, the court considers itself to have a greater power over the contract than it would have were the contract made between party and party (m) ; and (h) 1 Turn. Pract. 145. of Rutland, 3 Ves. Jun. 5Q1-. (I) 1 Turn. Pract. 145. (/) For forms of exceptions see (/•) Lloyd v. Griffith, 1 Dick. 2 Turn. Pract. 589. 103 j Tipping v. Gartside, 2 Fowl. (m) See 1 P. Wins. 74/. Tract. 328 ; Wakeman y. duchess OF THE COURTS OF EQUITY. 37 as the chief aim of the court is to obtain as great a price for the estate as can possibly be got, it is in the habit of open- ing the biddings after the estate is sold. Where a person is desirous of opening a bidding he must, at his own expense, apply to the court by motion for that purpose, stating the advance offered. Notice of the motion must be given to the person reported the purchaser of the lot, and to the parties in the cause (»). If the court ap- prove of the sum offered, the application will be granted, and, on the order being drawn up, entered ^nd served, a new sale must be had before the master. The order is made at the expense of the person opening the biddings, and he must bear the expense of paying in his deposit, and pay the costs of the first purchaser (o). Mere advance of price, if the report of the purchaser being the best bidder is not absolutely confirmed, is suffi- cient to open the biddings, and they will be opened more than once if a sufficient advance be offered (p) \ but the court will stipulate for the price, and not permit the biddings to be opened upon a small advance (V) ; and although an advance of 10 per cent, used generally to be considered sufficient on a large sum, yet no such rule now prevails (r). The determinations on this subject assume a very differ- ent aspect when the report is absolutely confirmed, and the following general rules may, perhaps, be laid down : (n) For a form of the notice see neau, 6 Bro. P. C. by Toml. 3 IX 2Turn. Pract (54Q, 6CO. {y) Anon. 1 Ves. Jun. 153; (o) 2 Fowl. Pract. 31S ; l Tur- Anon. 2 Ves. Jun. 4S7 ; Upton v. ner's Praet. 131. lord Ferrers, 4 Ves. Jun. 700 ; (j>) Scott v. Nisbitt, 3 Bro. C. C. and Anon. 5 Ves. Jun. 148. 475j Hodges v. Jones, 2 Fowl. (r) Andrews v. Emerson, 7 Ves. ^ract. 3 IS ; see Baulie v. Chaig- Jun. 420. p 3 1. That 38 OF SALES UNDER THE AUTHORITY 1. That biddings are in general not to be opened after confirmation of the report (,?): increase of price alone is not sufficient, however large, although it is a strong auxiliary argument where there are other grounds, In a case (*), however, before lord Rosslyn, this rule, al- though so frequently acknowledged and acted upon, was not attended to, but biddings were opened after the report was absolutely confirmed, merely on an advance of price. 2. That very particular circumstances may induce the court to open the biddings after confirmation of tjie report, if the advance be considerable. Thus, in a case (u) where the owner of the estate (who joined in a motion for the purpose of opening biddings after the report was absolutely confirmed) was in prison at the time of the confirmation, and it appeared that he would have opened the biddings before confirmation of the report, had he been able, and had even directed persons to bid more . than what the estate sold for, who deceived him, and an advance of 4,000/. (being more (ban one- fourth of the or i-, ginal purchase-money) was offered, the biddings were, opened on the deposit of the 4,000/. being made. 3. That fraud will be a sufficient ground for opening the biddings. Therefore, if the parties agree not to bid against each other (V), or a survey be made of an estate with some degree of collusion with the tenants (ij)^ and it mis- represents the value and quality of the estate, and some of (j) 2 Ves. Jun. 53; Scott v. cision in Prideaax v. Prideaux, uli Migbilt, 3 Bro. C. C. ±15 ; Boyer sup. when lord commissioner. v. Blackwell, 3 Anstr. 656; Pri- («) Watson v. Birch/2 Ves. Jun,. deaux v. Prideaux, 1 Bro. C. C. 51, 4 Bro. C. C. 172. 287, 2 Ves. Jun. 53. (*) See 2 Ves. Jun. 52. (t) Chetham v. Grugeon, 5 Ves. (j) Ryder v. Cower, 6 Bro. V- Jun. 86 ; and. sec his Jprdship's de- C. 148, and see 2 Vee, Jun. 53. the OF THE COURTS OF EQUITY. 39 the purchasers are aware of this fraud in making the survey, and the owner is ignorant of it; or the purchaser of the es- tate be partner with the solicitor of the cause, and is in pos" session of some particular knowledge to the benefit of which the other parties were entitled (:.) ; in all these cases the court would open the biddings, although the report had been absolutely confirmed. Where the biddings are opened, the advance is ordered to be deposited immediately (a), and the costs of the pur- chaser to be paid by the person opening the biddings (b)r, but the court will not direct the master to allow a specific expense (c). If the biddings are opened, the estate may be allotted for sale in a different manner to what it at first was (d) A As the biddings are opened for the benefit of the suitor, po other person will be favoured in that respect. Thus, upon a motion to open a bidding of 5020/. (e) upon the ground of mistake as to the time of sale, and an over-bidding of 150/. ; the lord chancellor refused it, say- ing, he would not open it for a lc^s sum than 500/. and that the circumstance that the bidder was too late, was no ground at all. The person who is desirous of opening the biddings hav- ing been present at the sale is no objection to their being opened, although a greater advance may, on that account, i>e required (f). (z) Price v. Moxon, July 14, (.-) Anon. 2 Ves. Jun. 286. 1/54, before lord Hardwicke ; (d) Watts v. Martin, 4 Bro. C, see Q Bro. P. C. 155 ; 2 Ves. Jun. C. 113, 54. (.«) Anon. 1 Ves. Jun. 453. _ («) Anon. Q Ves. Jim. 513. (/) Rigby v. M'Namara, 6 Ves. (b) See Watts v. Martin, 4 Bro. Jun. 117 ^ see Tait v. lord North- C. C. 113, and see ibid. l?S; Up- wick, 5 Ves. Jun. 655. < ton v. lord Ferrer?,, 4 Ves. Jun. too. 3 % A man 40 OF SALES UNDER THE AUTHORITY A man opening the biddings on behalf of a person not in existence, will himself be decreed to be the purchaser (gj. Where a person is permitted to open the biddings upon the usual terms, paying the costs, and making a deposit, and the estate is bought by another person, the person open- ing the biddings is entitled to take back his deposit ; but he is not entitled to an allowance for his costs, as they are in the nature of a premium paid by him for the opportunity of bidding (h). Under special circumstances, however, they might be allowed. If a relation came forward for the benefit of the family, and the lot was knocked down by mistake, that might be a ground for relief (i). It seems that if a person purchase several lots of an estate, and the biddings are opened as to one, he shall have an op- tion to open them all fkj. If an estate, directed to be sold before a master, is sold by private contract, or in any other manner contrary to the order of the court, and not actually conveyed to the pur- chaser, the court will take no notice of the sale, but will direct the estate to be sold before the master according to the decree (I). And a person who has notice of the decree cannot be advised to purchase the estate unless it be sold be- fore the master (m). If an estate be sold contrary to the order of the court, and the purchaser had notice of the decree, he will have no re- (g) Molesworth v. Opie, 1 Dick. (i) See 2 Anstr. 65?. 2Sp. (1) Annesley v. Ashurst, 3 P.' (') Rigbv v. M'Namara.. 6 Ves. Wms. 282 j see and consider ex- Jun '66 ; Earl of Macclesfield v. parie Hughes, 6 Ve9. Jun. 617. Slake, 8 Ves. Jan. 214. (m) See 2 Vol. Ca. and Opin* (i) Earl ot Macclesfield v. Blake, 224, 225. uli tup. ; Chren v. Foulks, 9 Ves. Jun. 34S. u OF THE COURTS OF EQUITY. 41 medy; but if he bought without notice, he may recover at Jaw for breach of the agreement (n). A sale befo™ a master is not within the statute of frauds, and after confirmation of the master's report of the best pur- chaser the sale will be carried into effect even against the re* presentative of the purchaser, although he did not subscribe ; the judgment of the court taking it out of the statute (o). And even if the authority of an agent not being admitted cannot be proved, yet if the master's report could be con- firmed, the sale would be carried into execution unless some fraud were proved (p), (») Raymond v.Webb, Lofft 66; (o) Attorney-general v. Day, tee Mortlock v. Buller, 10 Vej. 1 Ves. 218. Jun. 314. U>) S. C. CHA* [ 4* 3 CHAPTER HI. Of THE FOURTH SECTION OF THE STATUTE Ojf FRAUDS. JBy the fourth section of the statute of frauds (a) (to which we had occasion to refer at the close of the two last chap- ters), it is enacted, That no action shall be brought to, charge any person on any agreement made upon any con- tract or sale of lands, &c. cr any interest in or concerning them(l); unless such agreement, or some memorandum or note thereof, be in writing, and signed by the person to be charged, or some other by him authorised. The act extends as well to interests created de novo, out of an estate, as to subsisting interests. Therefore, an agree- ment for an assignment of a lease must, to be binding, be made in writing (&)« In the late case of Crosby v, Wadsworth (c)» the court of King's-bench held a sale by parol of a standing crop of grass to be within the statute; but this decision seems opposed by a case in lord Raymond (dj 9 where Treby chief justice re, (a) 29 Car. II. c. 3. (c) 6 East, 602 ; 2 Smith's Sep, (£) Anon. 1 Ventr. 361 ; see 550, see and consider the case. Poultney v. Holmes, 1 Str. 405. ( It seems that a receipt for purchase-money is an agree- ment in writing within the statute (g) ; and it has frequently been decided, that a note or letter will be a sufficient agree- ment to take a case out of the statute (h) : but every agreement must be stamped before it can be read (,) ; and, as this ought to be done, the court will permit the cause to stand over to get the agreement stamped, and will asstst either party in obtaining it for that purpose. Thus, in Fowle v. Freeman (k), the agreement was sent bY the vendor to his attorney, with a letter written at the bottom, directing him to prepare a technical agreement. The vendor afterwards refused to perform the contract, and the attorney would not deliver the agreement to the pur- chaser for the purpose of getting it stamped, contending, that it was a private letter to him ; but the court on mo- tion, ordered it to be delivered to the purchaser for that pur- pose. ( f) Owen v. Davie*, 1 Ves. 82. v. James, 2 Bro. C. C. 32, 309 ; Coles v. IVeeothiek, 9 Ve, lord Hardwicke held, the letter could not be sufficient evi- dence of the agreement, the terms of it not being mentioned in the agreement itself. And here we may notice a case where an agreement was executed which referred to certain covenants which had been read, contained in a described paper, which, in fact, contained the terms of the agreement. It appeared that all the covenants contained in that paper had not been read; and which of them had been read, and which had not, was the difficulty, which could only be solved by parol testimony; and Mr. justice Buller held clearly that such evidence was- inadmissible () Clerk v. W.igbt, l Aik. 12. prevent : 48 OF PAROL AGREEMENTS* prevent ; and lord Redesdale has since unqualifiedly ap* proved of this decision (r). Neither will a performance be compelled on a note or letter, if any error or omission, however triflings appear in the essential terms of the agreement. Thus in a case (s) (3) before lord Hardwicke, the bill was brought to have a specific performance of an agreement, from letters which had passed between the parties. It ap- peared that a certain number of years purchase was to be given for the land, but it could not be ascertained whether the rents upon a few cow-gates were 5s. or is. ; and al- though there was no other doubt, lord Hardwicke held, that such an agreement could not be carried into execution* He said, that in these cases it ought to be considered, whe- ther at law the party could recover damages ; for if he could not, the court ought not to carry such agreements into ex- ecution. But although a letter do not contain the whole agree- ment, yet if it actually refer to a writing that does, that will be sufficient, although such writing is not signed. (r) 1 Schemes and Lefroy's Rep. e t e contra, Chan. 1741, MS. S. C 35 ; and see O'Herlihy v. Hedges, Lofft SOI, cited ; See g Ves. Jun. ibid. 123. 252; and Popham v. Eyre, Lofft (s) Lord Middleton v. Wilson, 786. (3) The case is in Reg. Lib. 1741, fo. 26o, by the name of Lord Mid. dleton v. Eyre. The estate was sold by an agent, to Dr. Wilson, by ps - - rol, and the parties appear to have bound themselves by letters, the par- ticulars of which, however, do not appear in the register's book-. The parties beneficially interested afterwards sold the estate, tor a greater price, to lord Middleton, who filed a bill for a specific performance of the agreement, and Dr. Wilson fileda cross bill. The cross bill was dismissed, with costs, and in the original cause a- specific performance was decreed. The point in the text is not stated in the register's book.- Thus OF PAROL AGREEMENTS. 49 Thus in a case where an estate was advertised to be let for 3 lives, or 31 years; and an agreement was entered into for a lease, in which "the term for which it was to be granted was omitted ; lord Redesdale held that if the agree- ment had referred to the advertisement , parol evidence might have been admitted to shew what was the thing (namely the advertisement) so referred to, for then it would be an agreement to grant for so much time as was expressed in the advertisement, and then the identity of the advertise- ment might be proved by parol evidence (t). In a case (u) where an agreement for sale was reduced into writing, but not signed, owing to the vendor having failed in an appointment for that purpose ; the vendee's agent wrote to urge the signing of the agreement ; and the ven- dor wrote in answer a letter, in which, after stating his hav- ing been from home, he said, " his word should always be as good as any security he could give." And this was held by lord Thurlow to take the case out of the Statute, as clearly referring to the written instrument. The ground oi this decision was, that the vender had agreed, by writings to sign the agreement. If he had said he never would sign. it, he could not have been bound ; but if he said he never would sign it, but would make it as good as if he did, it would be a promise to perform it ; if he said he would ne- ver sign it, because he would not hamper himself by an agreement, it wo tl 1 b : too^perverse to be admitted (#). k appears, however, that lord Thurlow was ..of his (t) See CHnan v. Cocke, l v. Hale, 3 Ves. Jun. Qq6; Cooke Schoales and Lefroy's Rep. 22 ;♦ v. Tombs, 2 Ansfcr. 420 ; Saunder- and see Cass v. Watethouse, Prec. son v. Jackson, 2 Bos. and Pull. Cha. 29. 238 ; and 9 Ves. Jun. 250. (a) Tawney v. Crowther, 3 Bro. (x) Per lord Thtiribw, 3 Ero. C. C, 161, 318 5 and see Forster C. C. 320. .e opinion •$0 O? PAROL AGREEMENT*. opinion in this case ; and lord Redesdale has declared, (fiat he had often diccussed the case, and he could never bring his mind to agree with lord Tliurlow's decision, because he (lord R.) thought the true meaning of the agreement was y " I will not bind myself, but you shall rely on my word (3/)." A note, or letter written by the vendor to any third per- ron, containing directions to cany the agreement into ex- ecution, will, subject to the before mentioned rules, be a sufficient agreement to take a case but of the statute (zj. This was laid down by lord Hardwicke, who said, that it had been deemed to be a signing within the statute, and agreeable to the provision of it. And the point was ex- pressly determined, m the year 1719, by the court of Ex- chequers ). Upon an agreement for an assignment of a lease,- the owner sent a letter specifying the agreement, to a scrivener, with directions to draw an assignment pursuant to the agreement; and chief baron Bury, baron Price, and baron Page, were of opinion that the letter was a writing: within the statute of frauds. In Cooth v. Jackson (A), lord Rosslyn put the case df a bond of reference to a surveyor,- the price to depend upon his valuation, only to ascertain, how much an acre the pur- chaser was to pay for the land. And his lordship said, ho' should conceive- that not to be within the statute. But rent-rolls, particulars of estates, abstracts, &c. de- livered by the vendor on the treaty for sale, will not be con- sidered as an agreement, although signed by him, and con- (y) See Schoales and Lefroy's Cha. 560; Cooke v. Tombs, % Rep. 34. Anstr. 420. (as) Welford v. Beazely, 3 Atk. (a) Smith v. Watson, Bunb. 5£. SO.'-; see Seagood v. Meale, Ficc. (b) Ves, Jun. 1/. taming OF PAROL AGREEMENTS. 5l taiiifeg the particulars of the agreement ; nor will letters Written, or representations made by him to creditors, con- cerning the sale, receive that construction* Thus in a case (c) where A. agreed by paroi with B, for the purchase of lands ; shortly afterwards, a rent-roll was delivered to A. which B. dated and altered in his own hand- writing ; and it was intitled, iC Lands agreed to be sold by B. to A. from, &c.at twenty -one years purchase, for the clear yearly rent." An abstract of the title, also stating the con* tract, was delivered by A.'s agent, and also further particu- lars and papers at different times. B. also wrote to several of his creditors, informing them that he had agreed with A. for the sale of his estate, at 2 1 years purchase ; referred tenants to A. as owner of the estate ; and set up the con- tract as a bar to an elegit* B. afterwards refused to per- form the agreement ; and to a bill filed for a specific per- formance, pleaded the statute of frauds, and the plea was allowed. , So-, in a later case (c?), upon a bill filed by a vendee, for a specific performance of a parol agreement, for sale of lands, it appeared that the vendor gave the purchaser a particular of the property to be sold, with the terms and conditions, all in his own hand-writing, and signed by him ; and it was afterwards delivered, by agreement of both parties, to an. attorney to prepare the conveyance from ; who prepared a draft, and brought it to the parties, and they read over and. approved of it, and agreed to execute the same, whenever a fair copy could be written out. The defendant > however, refused to fulfil his part of the agreement, and pleaded the statute of frauds to the bill j and, as the particular was de- (c) Wbaley y. Bagenal, 6 Bro. 420 ; and see Cass v. Waterhous*, P. C.45. Prec. Cha. 29. {d} Cooke v, Tombs. 3 Anstr. s 2 delivered 52' OF PAROL AGREEMENTS. livered at the outset of the treaty, no agreement being then made, the court held it could only be delivered as a list or catalogue of the matters for sale, to enable the purchaser to form a proper estimate of their value; that the signing the particular could have no other effect than to give it authenticity, as a true list of the items then offered for sale ; and that the subsequent acts could not affect the original nature of the particular, and turn it into an agreement. ' Although an agreement be reduced into writing, by a person present at the making of it, yet if the parties do not sign it, they will not be bound by it (e). If an agreement contain all the terms, the sending of it, as instructions to a person to prepare a proper agreement, will not be deemed an intention to extend the agreement, but merely to reduce it into technical language. Thus, in Fowle v. Freeman ( /'), after some treaty for the purchase of an estate, certain terms were agreed upon and written down by Freeman the vendor, and afterwards written out by him as an agreement, viz. — "March 12th, 1 803. I agree to sell to Mr. Fowle, my estate, &c. for the sum of 27,000/. upon the following conditions, &c." (star- ing them). Freeman signed this agreement, and read it to Fowle, who approved of it. Freeman then underwrote a letter to his solicitor in town, to the following effect : — (, '° Sir, Please to prepare a proper agreement for Mr. Fowle and me to sign, and send it to me at this place. You will also deliver to Mr. Everett," the gentleman who carried the letter to town, " an abstract of my title-deeds for his exami- nation. As soon as the title-deeds are approved of, he en- gages to lend me 5,000/. 'till Michaelmas next." This (<■) Gtmterv.Halsey, Ambl.586; (/) Rolls, 8th March, 1804. Whitchurch"?. Bevjs, 2 Ero. C. C. MS. 9 Ves. Jim. 351. S. C. 55Q. letter OF PAROL AGREEMENTS. 5Z letter was signed and dated by him, and was delivered by Mr. Everett to the solicitor in town. Freeman after wards re- fused to perform the agreement ; and, to a bill filed by Fowle for a specific performance, pleaded the statute of frauds. The master of the Rolls held, that if the attorney had prepared an agreement, according to the letter, Free- man would have been compelled to execute it, and the at- torney could not alter the agreement itself in any one re- spect. A letter or proposal will do, although the party re- pents, and many decrees have been founded merely on let- ters. If this objection were to hold, he said, it might be contended, that if an agreement contained a reference to title-deeds to be formally executed, it would not do ; and his honour decreed a specific performance. II. We are next to consider what is a sufficienr signa- ture. Before the statute of frauds, an agreement, although, reduced into writing and signed, was not considered as a written agreement, unless sealed ; but it was regarded as a parol agreement, and the writing as evidence of it (g). It has been said, the same rule prevails since the statute of frauds (Ji) ; and, in the case of Wheeler v. Newton ,z), the agreement not having been sealed, seems to have been insisted uoon, as leaving the case within the statute. In this case lord commissioner Rawlinson said, that agree- ments in writing, though not sealed, had mine better coun- tenance, since the statute of frauds and perjuries, than they had before. It seems strange, that any doubt could arise on this point, as the statute makes signing only requisite to the va- lidity of a written agreement, and it is now very clear, that Sealing is not necessary. (g) See 1 Cha. Ca. 85. duke of Devonshire, 2Freem. 21(5. (h) Sea marquis of Normanby v. (i) Prec. Cha. 1(5. je 3 The 34? OF PAROL AGREEMENTS. The signature required by the statute, is to have the effect of giving authenticity to the whole instrument ; and where the name is inserted, in such a manner as to have that effect, it does not much signify in what part of the instrument it is to be found (A). Therefore, the signing the name at the beginning of the agreement, will take it out of the statute ; as if a person write the agreement himself, and begin, " A. B. agrees to sell, &c." and this is only in analogy to the case of a testa- tor writing his name at the beginning of his will, which is equivalent to his signing it, and yet the statute expressly requires signing (/). And such a signature will be sufficient, although a place be left for a signature at the bottom of the instrument (m); and yet, as lord Eldon observed, it is impossible hot to see that the insertion of the name at the beginning was not intended to be a signature, and that the paper was meant to be incomplete 'till it was further signed. And if the party know the contents of the agreement, a subscription, as a witness, is a sufficient signing (7?). So, where a clerk of an agent, duly authorised to treat for the principal, signed an agreement thus, " Witness, A.B. for C. D. agent to the seller," it was holden to be out of the statute (0). And it hath been determined that the signature of the purchaser by himself or his agent on the back of particulars (i) Vide Stakes v. Moore, stated (m) Saundevson v. Jackson, uli Infra. sup. (/) Knight v. Crockfbvd, 1 Esp. («) Welford v. Beazely, 3 Atk. Ca. 189; and see 1 Bro. C. C- 410; 503. See Ves. Jun. 251. 3 Esp. Ca. 182 i 9 Ves. Jun. 248; (o) Coles v. Trecothick, Q Ves, an J .aunderson y. Jackson, 2 Bos. Jun, ; 234. 1 Smith's Rep. 233. ft Pull. 238. of OF PAROL AGREEMENTS. £5 of sale with the sum opposite to it, is a sufficient compliance with the directions of the act (/>). And as we have seen, an agreement not signed may be supported by a signature to a writing referring to the agreement. But the mere altering the draft of the conveyance will not take a case out of the statute (q) ; neither will the writing over of the whole draft by the defendant with his own hand be sufficient, as there must be a signature (r). To this rule we may perhaps refer the case of Stokes r. Moore 0) ; where the defendant wrote instructions for a lease to the plaintiff, in these words, viz. " The lease renewed ; Mr. Stokes to pay the King's tax ; also to pay Moore 24/. a year, half-yearly ; Mr. Stokes to keep the house in good tenantable repair, &c." Stokes the lessee filed a bill for a specific performance, and the court of Exchequer held it not to be a sufficient signing, to take the agreement out of the statute. Lord Eldon is reported to have said that he had some doubt of the doctrine in this case. It may perhaps be thought too refined a distinction, but it is conceived that if Stokes himself had written the agreement, the court might well have held him to be bound by the signature of his name in the beginning of the draft; although certainly, after the decisions on this subject, it would have been difficult to say, that Moore's name standing where it did should be deemed a sufficient signing within the act. (/>) rilcirjra. 771, cited. (q) Hawkins v, Holmes, 1 P. (j) Stokea v. Moore, Cox's n. Wins. 7/6, which overruled Low- (1) to 1 P. Wms. 77^ 3 seel ther v. Carill, 1 Vera. 221. Smith's Rep. 2.44. (rj Ithel v. Totter, 1 P. \V.ms. «i In «56 OF PAROL AGREEMENTS. In considering what signature satisfies the requisition of the statute we have necessarily adverted to signatures by agents, and it will now be proper to consider who will be deemed an agent lawfully authorised within the statute of frauds, to sign an agreement for the sale or purchase oi an estate. In the 1st and 3d sections of the statute of frauds, which relate to leases, &c. the writing is required to be signed by the parties making it, or their agent, authorised by writing. This latter requisite is omitted in the 4th and 1 7th sections of the statute. The legislature seems to have taken this distinction, that where an in-» terest is intended to be actually passed, the agent must be authorised by writing, but that where a mere agree- ment is entered into, the agent need not be constituted by writii:i. ; and therefore an agent may be authorised by parol to treat for or buy an estate, although the contract itself must be in writing (t). It is, however, in all cases, highly desirable that the agent should have a written autho- rity. Where he has merely a parol authority, it must fre- quently be difficult to prove the existence and extent of it (w). But although an agent is authorised to sell at a particular price, it seems that his clerk cannot contract, without a spe- cial authority or agreement for that purpose (x) ; which, however, need not be in writing. (.') Waller v. Hendon, 5 Via. ibid. 22. Abr. 524, pi. 45 ; Wedderburne v. („) Mortlock v. Buller, 10 Ves. Carr, in the Exchequer, T.T. 1^5, Jun. 292 ; see Daniel v. Adams, 3 Wcoddes. 427, cited ; Coles v. Ambl. 4(j5 ; Charlewood v. the Trecothick, 9 Ves. -Jun. 234; duke of Bedford, 1 Atk. 4Q7 ; and 1 Smith's Rep. 233 ; Barry v. lord see 5 Vin. Abr. 522, pi. 35. Barrymore, 1 Schoales andLefroy's (*') Coles v. Trecothick, 9 Ves. Kep. 28, cited; Clinan v. Cooke, Jun. 234. Sales OF PAROL AGREEMENTS. <57 Sate by auction of gtafe are not, it is said, within the statute of frauds and perjuries .y). This was decided m the rase of Simon v. Motives (z) (4), where, according to Sir Tames Burrow's report, the court were all clearly of opinio-., that the auctioneer must be considered as agent for the buver (after knocking down the hammer) as well as for thp seller and that his setting down in writing the name of the buyer, the price, &c. was sufficient to take it out of the statute. And they inclined to think « that buying and selling at auctions was not within the statute of frauds." In Mr. iustice Blackstone's report of this case (a), the argu- ments of the judges are particularly stated : Lord Mansfield said, the question was singly upon the statute of frauds, whether the contract was void by the provisions of that posi- tive law. There were two lights in which the case might be considered ; 1st, Whether sales by auction are within the statute. They certainly existed in England and in all other countries at the date of this statute. The auctioneer is a third person, who is to many intents the agent of both parties. The solemnity of that kind of sale precludes all (v) Simon v. Motives, 3 Burr. (a) 1 Blackst. 500, and see 192 \ Payne v. Cave, 3 Term Rep. 148. (a) 3 Burr. l§2l. (4) In considering this question «he teader should be ff^ ft cases of Spends v. Bafl, . Te^Rep; "'^"i^H. e Plummer 1 New Rep 252, do not seem to affect >t. The first case a^eaTo have turned on the particular provisions in the act of parha- m t„e P a S ree„rcn«no« havi„ g containe the terras a . * «** * statute of frauds. But sec Rob. en Stat, o. *rauo* p. triii, ii. perjury $S OF PAE.OL AGREEMENTS. perjury as to the fact itself of sale. The contract is exe- cuted when the hammer is knocked down. And according to the inclination of his present opinion, he said, auctions m general were not within the statute. But he added, that this was not necessary to be then determined, for if they xxere within it, 2dly, The requisites of the statute were well complied with. Every bidding is an accession to the conditions of sale. The name is put down by the buyer's authority. No latitude is left to fraud and perjury from the loose memory of witnesses. Mr. justice Wilmot said, It might be a great question whether sales by auction were within the statute. They were certainly not meant by the act, which was to extend only to the mischiefs created ly private and clandestine sales. Had the statute of frauds been always carried Into execution according to the letter, it would have done ten times more mischief than it had done good, by protecting rather than by preventing frauds ; he therefore inclined to think sales by auction openly transacted before 500 people were not within the statute. Mr. justice Yates said, he much doubted whether the contract was within the statute of frauds. If it was, he was clear that the requisites of the statute were duly observed ; and Mr, justice Aston also thought that the terms of the sale and the requisites of the statute were fully complied with by giving in his name as a purchaser. These were the grounds upon which the decision was made, although some stress was laid on the purchaser having sent a person after the sale to see the goods, weighed. The doctrine as to the constructive agency of the auc- tioneer was warmly espoused in a joint opinion given by Mr. Booth and Mr, Wilbraham, about a year before the case OF PAROL AGREEMENTS. SO case of Simon ?;. Motivos occurred (b). Their arguments are very forcible, and well deserve attention. They said that in commercial transactions nothing is so common as for a factor to accept of a commission, and to act for both parties, the buyer and seller. Then why should net an auctioneer be considered as a sort of ncgotiorum gsstor, or as the moderator or prases, at a general meeting or assem- bly ? Every one of these, pro tempore, has a certain degree of authority Irom each of the individuals that compose the asseniDly. Why not so of an auctioneer? Each indivi- dual as he Lids it an auction, authorises the auctioneer, as the chairman or moderator of the meeting or assembly, to mark him or proclaim him as the bidder of so much money for tic thing then at sale. The auctioneer always does so, and in a puolic manner declares and proclaims that person as a t •idder for that thing of so much money. When ano- th erscn overbids that last declared bidder, the whole as: v acquiesces in considering such other person as the nev .te for the purchase of the thing at sale, at the advanced price by that person proposed, and by the auc- tioneer declared. If a third person overbids him, he is overreached in his turn as the former one was, and he sub- mits in like manner* Is not the auctioneer pro tempore, the agent of each of these bidders, and lawfully authorised thereunto ? Then, when the ultimate bidder names a price beyond which nobody will go, the auctioneer proclaims Jiim the bidder at the price offered, and also declares by Striking down the hammer that nobody has appeared to offer more. Why is not the auctioneer to be considered as an agent for that best bidder, at the advanced price, and thereunto lawfully authorised ? (b) See 1 Ca. and Opin. 14?, 143. And CO OF PAROL AGREEMENTS. And this opinion is in conformity with lord Kenyan's deci- sion in Rucker ^.Cammeyer(c) at nluprius. Goods were sold through the medium of a broker, who was called as a witn^s at the trial ; and after proving the bargain, said he made out two sale notes of the goods io the defendant, at the pnce agreed upon, by the order of the owner. These sale notes, he Baid, contained the price and quantity of the goods soid, and that one of them was usually given to the buyer, and the other to the seller. The plaintiff had iiis note from hi u, and the defendant ha J sent for his, which was delivered to him. On the part of the defendant it was objected that this contract was within the statute of frauds. Lord Ken- yon said, that it was of great importance not to break in on any decision which had taken place on the statute of frauds, and cited the case of Simon v. Motivos, as ruling the pre- sent case. He said that the broker must be considered as the agent of both parties, and need not be constituted by writing ; but that in this case he had in fact given the de- fendant a note in writing, when he gave him the sale note which he had accepted. And lord Rosslyn, when lord chief justice of the Common Pleas, appears to have approved of the doctrine in Simon v. Motivos, that the auctioneer was the agent as well for the purchaser as the vendor (d). However, therefore, the question as to sales by auction being within the statute of frauds might be still open, the foregoing cases appear to have clearly settled that the auc- tioneer or broker appointed by the vendor, must be deemed the age- 1 ot both parties. In a case, however, which came before lord chief justice Eyre at nisi prius, he held that sales by auction of estates were within the statute (e). The counsel for the plaintiff (r) 1 Esp. Ca. 107. () Stansfield v. Johnson, lEsp. (d) See 2 H. Blackst. 6/. Ca. 101. cited OF PAROL AGREEMENT?, 61 cited the case of Simon v. Motivos, and insisted, that the auctioneer was under the authority of that case to be deemed the agent of both parties, and his signing the name of the defendant against the lot was a note in writing within the statute. But the learned judge was of opinion, that the case of Simon v. Motivos applied to sales of goods only, which was a distinct clause of the statute of frauds, and that the case before him was expressly within it, and the plain- tiff therefore could not recover. Another case of the like nature came before the same judge at nisi prhis, and he adhered to his former opinion (/). This last case after- wards came before the court of Common Pleas, who, in answer to the argument that sales by auction were not with- in the statute, merely said, that the cases on that subject only applied to sales of chattels (g). The same point arose in the late case of Buckmaster v. Harrop (Ji), and it was insisted, that either a sale by auction was not within the statute of frauds, or the auctioneer putting down the name of the vendee; was an agreement in writing, and the case of Simon v. Motivos was cited. But the master of the Rolls said, whatever was the authority of that case, it had been held not to extend to land, and his honour made his decree accordingly. Thus far the authorities seem to have settled that sales by auction of estates are within the statute, but in none of them was the case before lord Kenyon cited. And in the late case of Coles v. Trecothick (/), lord Eldon observed, that much perplexity had arisen by the case of auctions ; for (/) Walker v. Constable, 2 Esp. ('■■) 7 Ves.'Jun. 341. Ca. 659. (0.9 Ves, Jan. 234. (i) i Bos. and Pull. 3QG. in $2 OF PAROL AGREEMENTS; m Simon v. Motivos, it was held as to goods, that the atic- tioneer taking down the name was a signing within the sta- tute ; and it was very singular that after, and without dis- turbing that, it was h^ld at nisi prlus by lord chief justice Eyre, that it would not do as to land. Why not ? The form of the two clauses are not the same* but the terms, as to the memorandum in writing, are exactly the same. That case was followed certainly without much argument or dis* cussion upon the bench, according to the report in Walker y. Constable. Unless, his lordship added, some^distinc- tion could be pointed out, the law was'y.ej^«inconve- ment as to sales by auction. And in another report of* this case his lordship is stated to have said that u he confessed he could trace no weighty distinction between the cases(^)." The statute of frauds requires that every agreement as to lands, or seme memorandum or note thereof, shall be in writing, and signed by the party to he charged, or some other person thereunto by him authorised. And that as to goods, some note or memorandum in writing of the bargain be made and signed by the parties to be charged by such contracts, or their agents thereunto authorised. The reasons given by the court of King's-bench in Simon v. Motivos, why sales by auction are not within the statute of frauds, certainly carry conviction with them; but what- ever opinion may be entertained on this point, there ap- pears to be no solid reason why the auctioneer should not be deemed the agent of both parties, and that his setting down in writing the name of the buyer* price, &c. should not satisfy the words of the statute. For this construction there is certainly great authority — the unanimous opinion of the court of KingVbench. in Simon v. Motivos, and the opinion of lord Kenyan in Rucker v. Cammeyerj to which (I) J Smith's Rep* 251. 1¥C OF PAROL AGREEMENTS. OS we may add the opinion of Mr. Booth and Mr. Wilbraham, It is no answer to these cases to say that they only related to goods. If there is any difference between the two clauses of the statute in this respect, it is, that as to lands the signature of either party, by himself or an agent, is sufficient to bind him, although the other party has not signed, and conse- quently is not bound ; but that as to goods, both par-ties must sign by themselves or agents, or neither of them will be bound. The general rule of auctioneers is to set down on the par- ticulars the name of every bidder, and the sum he bids op- posite to his name. Now there clearly could be no objec- tion to this, as an agreement, on the ground that it did not Contain all the terms, as the particular itself coupled with these memoranda, would certainly be deemed a sufficient agreement. It might, indeed, be contended that this mode of signature Would not satisfy the statute ; in answer to which if might be insisted, that the particular being tantamount to an agreement, it is immaterial on what part of it the name' of the purchaser is set down, as the signature was clear! v intended as a testimony of his assent. These, however, are the objections which would probably be made, should the court feel a disposition to hold that the auctioneer is an agent for the purchaser within the statute of frauds. After the express decisions on this point, it is not likely that the ob- jections woul.i meet wkh much attention. It seems quite clear that an auctioneer appointed by a ven- dor, is a good agent lor him within the statute of frauds* Upon the sale of estates, a deposit is almost universally paid* for which the auctioneer gives a receipt referring to the par- ticulars, or indorsed on them, and amounting, in most cases, to a valid agreement on the part of the vendor with- in the statute.- Where this is not the case, it might, per- €4 OF PAE.OL AGREEMENTS. haps, become a ouestion. whether the entry by the aucti- oneer of the account of the sale in his books, in whia is generally stated the name of the owner, the person I whom the estate is sold, and the price it fetched, and to which the auctioneer mostly signs his name, would not, either by its own force, or coupled with the particulars, where they are referred to, be deemed a sufficient memorandum of the agreement to take the case out of the statute (A). Where, however, these circumstances do not occur, and the auctioneer merely sets down the name of the purchaser, and the price; there seems no pretence to say, that the vendor is bound, unless it be determined that sales by auc- tion are not within the statute of frauds (5) ; but this forms no objection to the contract being binding on the purchaser, as the memorandum of the agreement would be signed by the agent of the party to be charged therewith. But if the auctioneer should be deemed an agent for the purchaser, then a memorandum, signed by the auctioneer with his own na??ie, would, it is conceived, bind both the parties. If an entire agreement be made for the sale of real and personal estate, and the agreement as to the land be within the statute, and void, it cannot be supported as to the per- sonal property which was sold with it (/;. (k) But see Mussell v. Cooke, (/) Cooke v. Tombs, 2 Anstr. Prec. Cha. 533 ; and see Cbarle- 420 ; Lea v. Barber, ibid. 425, wood v. the duke of Bedford, 1 cited; see Chater v. Beckett, 8 Alk. 497. Term Rep. 201. (5) In the appendix to the first edition the author stated that it was not necessary for the vendor, or any person on his behalf, to sign an agree- ment to complete the purchase upon a sale by auction, as the auctioneer was the agent of the vendor, and his setting down in writing the name of the purchaser, &c. would take the case out of the statute. The error is evident. IlLWe OF PAUOL AGREEMENTS. &5 HI* We have seen what is considered an agreement and (signature, sufficient to take a case out of the statute ; but there are ca e ,es, in which the performance of an agreement will be compelled, although the terms of it are not reduced into writing : for though the statute provided that no agree- ment shall be good, unless signed by the party to be bound thereby, or some person authorized by him, yet on all the questions on that statute inequity, the purport of making it has been considered, viz. to prevent frauds and perjuries ; so that any agreement, in which there is no danger of either, the court has considered out of the statute ; upon which there have been many determinations (?n). Upon this ground it is, that a sale before a master under the decree of a court of Equity, will be carried into execu- tion, although the purchaser did not subscribe any agree- ment. The judgment of the court, in confirming the pur- chase, takes it out of the statute (72). So if, under a reference to a master, an agreement be made to lay out trust-money in the purchase of particular •lands, and the master make his report accordingly, and the report be confirmed without any opposition by the owner 'of die estate, the purchase will be carried into a specific execu- tion, although no agreement was signed by the vendor. The sale is a judicial sale, which takes it entirely out of the statute (0). So it has been repeatedly held (p), that if a bill be brought for the execution of an agreement, not in writing, (/«) Per lord Hardwicke, see Cha. 203 ; and see 1 Ves. 221, ■I Ves. 221. 441; Ambl. 580; and Symond- (n) Attorney-general v. Day, son v.Tweed,Prec. Cha. 374, Gilb, 3 Ves. 218. Eq. Ptep. 35 ; Wanby v. Saw- (0) s. C. bridge, I Bro. C. C. 414, cited. (/) Croyston v. Banes, Prec. p nor 6Q of parol agreements. nor so stated in the bill, yet if the defendant put in his am swer, and confess the agreement, that takes the case entirely out of the mischief intended to be prevented by the statute, and there being no danger of perjury, the court would de- cree it ; and if the defendant should die, upon a bill of re- vivor against his heir, the same decree would be made as if the ancestor were living, the principle going throughout,- and equally binding the representatives (//). Lord Chancellor Bathurst, however, held that an agree- ment, not in part performed, could not be carried into ex- ecution, although confessed by the answer. In Eyre v. Popham (r), addressing himself to Mr. Ambler, he asked, if there was any case in which there had been a decree founded upon confession generally without a part perform- ed ? and Mr. Ambler replied, that in some of the cases, the chancellor had been mentioned to have said it, but he never found a decree. In giving judgment, his lordship is re- ported to have said, " This is not an agreement in writing, upon the statute of frauds ; but the question is, whether it is an agreement which so appears as that the court will de- cree a performance. It has been said, that it is a known rule in this court, that where an agreement appears confess? ed, the court will decree a performance, though no part has been performed ; some dictums there have been^ but Mr. Ambler confesses that he has found no decree — that \Vhere the substance clearly appears, though in parol, with- out any part performed, the court will decree an agreement to be executed. I think it cannot be possible ; this court cannot repeal the statute of frauds, or any statute. The king has no such power, by the constitution, entrusted in him; and therefore there can be no such power in his de- fa) Per lord Harchvicke, see (r) Loffi SOS, 8O9 yandsee E yn l Ves, 221. v.Iveson, 2 Bro, C. C. 563, cited. legatee C»F PAROL AGREEMENTS. 67 legates. The only ease I know that takes a contract out of the statute, is of fraud, and the jurisdiction of this court is principally intended to prevent fraud and deceit. Where a party has given ground to another to think he had a title secured, the court will secure it to him. The ground therefore, in making or refusing decrees, has been fraud. It can never be laid down by the court that where the sub- stance appears it shall be executed* It would not has r e been so at common law." In the discussion of the foregoirig case, neither the bar nor the court appear to have been aware of a case before lord chancellor Macclesfield (.?), in which the defendant having pleaded the statute of frauds to a bill seeking a spe- cific performance of a parol agreement, his lordship said, the plea was proper, but then the defendant ought, by an- swer, to deny the agreement ; for if she confessed the agreement, the court would decree a performance, notwith- standing the statute j for that such confession would not be looked upon as perjury, or intended to be prevented by the statute. And he, therefore, confirmed an order, that the plea should stand for an answer, with liberty for the plain- tiff to except thereto, and that the benefit thereof should be Saved to the defendant until the hearing of the cause. And lord Ilardwicke appears to hate entertained the same opini- on (/> In Whitchurch v. Bevis (u% lord Thurlow at first ex- pressed his opinion, that the only effect of the statute was, that an agreement should not be proved aliunde. No exr deuce thai could be given would sustain the suit if the de- fendant answered and denied the agreement. In this case (j) Child v. Godolphin, 1 Dick. 2 Atk.155 ; and see 3 Atk. 3 3 bat 39, 2 Bro. C. C 566, cited. see 4 Ves. Jan. 24. (0 See Gottington v. Fletcher, (») 2 Bro. C, C. 5&9 F 2 the 68 Ot PAROL AGREEMENTS. the agreement was confessed, but the statute was pleaded* and it was ultimately decided on its own particular circum- stances. Lord Thurlow said, he meant to determine upon the ground of this particular case ; because it might become to be more seriously considered what sort of a verbal agree- ment, notwithstanding the plea of the statute of frauds, might be sustained, as being confessed by the answer, so as the court would carry it into execution. His lordship added, that he was prepared to say, if there were general instruc- tions for an agreement, consisting of material circumstances to be hereafter extended more at large, and to be put into the form of an instrument, with a view to be signed by the parties, and no fraud, but the party takes advantage of the tocuspemteiitid?, he should not; be compelled to perform such an agreement as that, when he insists upon the staiule of frauds. It is curious to observe the different opinions which' have prevailed on this point. Lord Macclesfield held, that if the agreement was confessed, even a plea ol the statute would not protect the defendant, in which opinion he seems to have been followed by lord Hardwicke. On the other hand, lord Bathurst thought that, unless there were fraud, an ad- mission of the agreement by the defendant, would not enable the court to decree it, although the defendant did not insist on the statute. Lord Thurlow appears to have been of opinion, that if the agreement was admitted, the statute could only be used as a defence where tnere was a clear locus penitentiiP, but that evidence could not be ad- mitted to falsify the defendant's answer. None of the foregoing opinions have, however, been attended to. Lord C. B. Eyre seems to have led the way in holding, that if the defendant by his answer insisted upon the statute of frauds, a specific performance' could not be .. . decreed, OF PAROL AGREEMENT?. 69 decreed, although he confessed the agreement (.r). And, notwithstanding lord Thurlow's opinion in Whitchurch v. BeviSj his lordship, in the prior case of Whitbreadv. Brock- hurst, said, it should rather seem that if the defendant con- fesses the agreement in his answer, but insists upon the sta- tute, it: would be more simple and conformable to reason to say, that the statute should be a bar to the plaintiff's claim (//) ; and these opinions have been adopted by lord Rosslyn and lord Eldon (z) : so that, according to the pre- vailing opinions, (for the point has not been expresslv de- cided,) the statute may be used as a bar to the relief, although the agreement be admitted. Where, how ever, a defendant has, by answer, admitted the agreement, and submitted to perform it, he cannot, by an answer to an amended bill, plead the statute of frauds (a). If the defendant deny the agreement, he may be tried for perjury; but a conviction will not enable equity to decree a performance of the agreement (b) (6) ; and therefore, as the plaintiff cannot avail himself, in any civil proceeding, (r) Stewart v. Careless, 2 B:o. (a) Spurrier v. Fitzgerald, 6 Ves, C. C. 564, 565, cited. Juo. 548. ( y ) See 1 Bro. C. C 416. (I) Bartlett v. Picfcersgffl,4 Burr. {%) Moore v. Edwards, 4 Ves. 2255, 4 East 577. n. b.; see Ras- Jun, 23 ; Copth v. Jackson, 6 Ves. tel v. Hutchinson, 1 Dick. 44, Jan. 12 ; and see Rondeau v. vVy- and Felly. Chamberlain, 2 Dick. att, 2 H. Blackst. 03. 434. (6) It appears that the plaintiff in Fell v. Chamberlain did prefer a bill of indictment for perjury against the defendant : and the master of the Rolls granted an order to the six clerks to deliver the bill and an- swer, interrogatories, and depositions of witnesses to a solicitor, in order to be produced at the trial. Reg. Lib. A. 1/72, fo. 496. £ 3 of 70 OF PAROL AGREEMENTS, of the conviction of the defendant, he is a competent witness to prove the perjury (c). There are other cases taken out of the statute, not so much on the principle of no danger of perjury, as that the statute was not intended to create or protect fraud. Thus, admitting sales by auction to be within the statute of frauds, yet if a person, being declared the highest bidder, should refuse to sign an agreement to complete the purchase, there seems reason to contend that equity would compel him to specifically perform the contract, on the ground of fraud. The statutes imposing a duty on sales by auction make such a rule more necessary, for the duty would become payable on the sale j and although it were made a condition ot sale that the purchaser should pay the whole, or any part of the duty, yet it should seem that the vendor could not recover it. Besides, this doctrine may be supported on very good authority. Shortly after the statute of frauds a case of a parol agreement occurred in which lord keeper North was of opinion, that if the plaintiff had laid in his bill that it \\ as part of the agreement, that the agreement should be put into writing, it would possibly require an answer (d). A similar case came on in the same year (p), ana 1 probably in consequence of the hint thrown cut by lord North, in the foregoing case, it was charged by the bill that part of the bargain was, that it should be executed by writings, by a certain time ; and, on this ground expressly, the lord keeper over-ruled the defendant's plea of the statute of frauds. In the next year, the plaintiff in the first mentioned case ap- pears to have amended his bill, and charged the agreement (c) The King v. Boston, 4 East (c) Leak v. Mcrrice, 2 Cha. Ca. Z72. i; ; 5. (d) HoJlis v. Whitcing, 1 Vein, 151. to OF PAROL AC REE MIDI'S. 71 to be, that it was agreed the agreement should be reduced into writing ( f) ; the lord keeper did not, however, ad- vert to this charge in the bill, but upon a groundless mo- tion, that although the act makes void the estate, yet it does not say the agreement itself shall be void, he sent the par- tics to law to try that point, and the case does not appear to have come on again. Lord North's opinion on this point is, however, too clear to be doubted. In a case before lord Thurlow («),this doctrine was stated at the bar; and, jn answer to it, his lordship said, he took that to be a sin- gle case, and to have been over-ruled. " If you interpose the medium of fraud, by which the agreement is prevent' edfrom being put into writing, I agree to it, otherwise I take lord North's doctrine, ' that if it had been laid in the bill, that it was part of the agreement that it should be put into writing, it would have done,' to be a single decision, and contradicted, though not expressly, yet by the current of opinions,'* Nov/, we cannot but observe that lord North's doctrine, qualified as it is by lord Thurlow, is a direct authority in support of the proposition before stated. All conditions of s^le state, or ought to state, that the purchaser shall imme- dfotely after the sale sign an agreement to complete his con- tract, if then a purchaser should refuse to sign an agree- ment -accordingly, it might be charged by a bill seeking a specific performance, that the agreement was that it should be reduced into writing ; and it is impossible to doubt that the immediate refusal of the purchaser to sign the contract would be deemed a sufficient fraud, to enable the court to relieve the vendor. The same doctrine of course applies to a sale by private (/) Ilollia v. Edwards, 1 Vein. (g) Whitchurch v. Bevis, 2Bro. \5Q. C, C. 565. f 4 contract, 72 OF PAROL AGREEMENT.-. contract, where the agreement is express to reduce the con- tract into writing, and it is prevented by fraud. So where agreements have been carried partly into ex- ecution, although a controversy might be afterwards be- tween the parties as to the terms, yet if made out satisfac- torily to the court, it would be decreed, though variety of evidence might be in the case ; in order that oae side might not take advantage of the statute to be guilty of fraud, the court would hold his conscience bound thereby (h) (7). An agreement will not be considered as partly executed,- unless the acts done are such as could be done with no other view or design than to perform the agreement, or perhaps, to speak more correctly, with the view of the agreement being performed ; and if it do not appear but that the acts done might be done with other views, the agreement will not be taken out of the statute (/'). Neither will acts merely introductory, or ancillary to an agreement, be considered as a part performance, although attended with expense. Therefore, delivering an abstract, giving directions for conveyances, going to view the estate, fixing upon an ap- praiser to value stock, making valuations, Sec. (Ji) will not take a parol agreement out of the statute. (h) Per lord Hardwicke, see 1 C. C. 4C(). cited; Whitchurch v. Ves. 221 ; and seeTaylc*" v.Eeech, Kevis, 2 Ero. C. C. 55Q ; Whaley l Ves. 297- v.Bagenal, 6 Bro.P. C. 645 ; Cooke (i) Gnnter v. Halsey, Ambl. v. Tombs, 2 Anst. 420 ; and see 5S6 ; Lacon v. Mertins, 3 Atk. 1. Cooth v. Jackson, 6 Ves. Jun. 12; (/J) Clerk v. Wright, 1 Atk. 12; and Redding v. Wilkes, 3 Bro, Whitbread v. Brockhurst, 1 Bro. C. C. 400. C. C. 412; Cole v. White, 1 Bro. (7) The ground of relief in these cases is fraud, and that species of fraud which is conusable inequity only, although it seems that the court of King's-bench once held, that where an agreement was partly execute cd it was totally out of the statute. See ; Bro. C. C. 417. But OF PAROL AGREEMENTS. 73 But if possession be d iivered to the purchaser, the agree- ment will he considered as in part executed (/) ; especially if he expend money in building or improving (m), for the statute should never be so turned, construed, or used as to protect or be a mean of fraud (n). Possession, however, must be delivered in part perform- ance, for if the purchaser obtain it wrongfully, it will not avail him (o). And a possession which can be referred to a title distinct from the agreement will not take a case out of the statute. Therefore, possession by a tenant cannot be deemed a part performance. The delivery of posses- sion by a person having possession to the person claiming under the agreement, is a strong and marked circumstance ; but a tenant of course continues in possession, unless he has notice to quit ; and the mere fact of his continuance in possession (which is all that can be admitted, for quo animo he continued in possession is not a subject of admission) cannot weigh with the court {p). (J) Butcher v. Stapely, 1 Vera. ( m ) Foxcvaft v. Lister, 2 Vera. 363 ; Pyke v. Williams, 2 Vera. 450, Gilb. Eq. Rep. 4, cited : Col- 455; Lockey v. Lockey, Prec. les, P. C. 10S, reported ; Floyd v. Cha. 518 ; earl of Aylesford's case, Buckland,2Freem. 26S ; Mortimer 2Str. 783; Binsted v. Coleman, v. Orchard, 2 Ves. Jun. 243. Bunb. 6.5 ; Barrett v. Gomeserra, (w) See 3 Burr. 1019- Bunb.04; Lacon v. Mertins, 3 Atk. (0) Cole v. White, 1 Bro. C. C. 1 ; Wills v. Stradling, 3 Ves. Jun. 40Q. cited. 373 ; Bowers v. Cator, 4 Ves. Jim. (j>) Wills v. Stradling, 3 Ves. 01 ; Denton v. Stewart, 4th July, Jun. 378 ; Smith v. Turner, Prec. ]y86, cited in Mr. Fonbl. note to Cha. 501, cited. lTrea. Eq. 1/5 (8). (8) In this case the plain tiff nut only purchased the house, but also the furniture, for which she had actually paid; and it appears by the decree, that there was a receipt given by the defendant, the contents of which, however, are not stated in the register's book. The defendant positively denied the agreement, and insisted that the plaintiff was only tenant at will. Reg. Lib. A. 1/35, fo. 552, by the name of Denton v. Seward ; ibid. 717, by the name of Denton v, Stewart. It 74 OF PAROL AGREEMENTS, It is generally understood that payment of a substantial part of the purchase-money will take a parol agreement out of the statute. How far this opinion is founded appears to be deserving of particular consideration. There are four cases in Tothill, which arose previously to the statute of frauds, and appear to be applicable to the point under consideration, In the first case (q), which was heard in the 38 of Eliz. relief was denied, "because it was but a preparation for an action upon the case," In the twq next cases (r) which came on in the 9th of Jac. I. parol agreements were enforced, apparently on account of the payment of very trifling parts of the purchase-money, but the particular circumstances of these cases do not appear. The last case reported in Tothill (.*} was decided in the 30th of Jac. I. and the facts are distinctly stated. The bill was to be relieved concerning a promise to assure land of inhe-» ritance, of which there had not been any execution, but only 55s. paid in hand, and the bill was dismissed. This, point received a similar determination, in the next case on the subject before the statute, which is reported in Cha, Rep. (/), and was determined in the 15 Cha. II. So the- same doctrine was adhered to in a case which occurred three years afterwards, and is reported in Freeman (?/) ; for al- though a parol agreement for a house, with 20s. paid, was decreed without further execution proved, yet it appears by the judgment that the relief would not have been granted if the defendant, the vendor, had demurred to the bill, which he had neglected to do, but had proceeded to proof. The I j st case I have met with, previously to the statute, was de- (g) William v. Nevili Toth. (j) Miller v. Blahdist, Toth. 85, 135. (/) Simmons v. Cornelius, lClia. (r) Feme v. Bullock, Toth. Rep. 128. 206'. 22S ; Clark v. Hackwell ; ibid. (») Anon. 2 Ficem. 128. cided OF PAROL AGREEMENT?, f| cided in the 21 Car, II. 0) ? and there a parol agreement upon which only 20.?. were paid, was carried into a specific execution. This case probably turned, like the one imme, diately preceding it, on the neglect of the defendants to dm mur to tl>e bill. It must be admitted, that the foregoing decisions are not easily reconcileable, yet the result of them clearly is, that payment of a trifling part of the purchase^ money was not a part performance of a parol agreement. Whether payment of a considerable sum would have avaiM a purchaser, does not appear. In Toth. 67, a case is thus stated : " Moyl v. Home, by reason 200/. was deposited towards payment, decreed." This case may, perhaps, be deemed an authority that, prior to the statute, the payment pf a substantial part of the purchase-money would have ena- bled equity to specifically perform a parol agreement, but it certainly is too vague to be relied on. Our attention is now called to the statute itself. The clause relating to lands declares generally, that no contract, not in writing, shall be binding ; ihere is also a clause in the act, which relates to sales of goods, which are declared to be binding if something is given in earnest to bind the pargain. The first case in the books, subsequently to the statute, is in Freem. Q/), where it is stated that a contract for land and a great part of the money paid is void since the sta- tute of frauds and perjuries; but the party that paid the money may, in equity, recover back the money. And for this, Freeman states, he saw Sir William Jones's opinion under his hand. This was about four years after the act. The next case is Leak v. Morrice (z), which occur- (r) Voll v. Smith, 3 Cha. Rep. (z) 2 Cha. Ca. 13$, 1 Dick. 10. 14. (j) l Freem, 4 86. pi 664. b, sed 76 OF PAROL AGREEMENTS. red in the same year; the bill was to have an agreement performed by the defendants ; which was, in effect, that the defendant should assign a term of years in his house and certain goods, for 2C0 guineas, whereof he paid one in hand as earnest of the bargain, and three days after 1 9 gui- neas more, and part of the bargain was, that it should be executed by writings, by a certain time. The defendant pleaded the statute of frauds, and alleged the money was only paid for the lease, but confessed the receipt of the 20 guineas, aiid offered to repay them. Lord keeper North said, it was clear that the defendant ought to repay the mo- ney, but over-ruled the plea on the charge in the bill that the agreement was to he put in writing (9), which was not denied. In this case it does not appear to have occurred to either the bar or the court, that payment of money would take a parol contract for lands out of the statute. The case of Alsop v. Patten (a), arose about 15 years afterwards. There a joint lessee of a building lease agreed to sell his moiety to the other lessee for four guineas, and accepted a pair of compasses in hand to bind the bargain. The ven- dor pleaded the statute to a bill filed by the purchaser for a performance in specie. Lord chancellor Jefferys ordered him to answer, and saved the benefit of the plea to the hearing, as the agreement was, in some part, executed. In this case, unless there was a part performance of the agree- ment, independently of the mere delivery of the compasses, it is clear that the court confounded the section of the sta- tute by which personal contracts are binding, if earnest is (a) 1 Vcrn. 4/2. (9) This doctrine is over-ruled, unless there be fraud, as lord Thurlow observes, though not expressly yet by the current of authorities. 2 Ere. C. C. 505. paid. OF PAROL AGREEMENTS. paid, with the clause relating to land. The next case » Seafood v. Meale (/>) which arose 34 years after the case oi Als'op v. Patten. The case was, that upon a parol agree- ment for sale of an estate for 150/. a guinea was pud, and the payment of the guinea was agreed to be clearly of no consequence in case of an agreement touching lands or houses, the payment of money being only bindtng in cases of contracts for goods. In this case we find the doctnne laid down generally, that the payment of money is not a part performance^ a parol agreement for lands, and the distinction between contracts for lands and houses accurately taken (1). Then comes the case of lord Fmgall, or lord ' Pen-gal v. Ross, which was decided by lord Cowper, in the Sth of Anne (c) (2). A. agreed with B. to make him a lease for 21 years of lands rendering rent, B. paying A. 150/. fine. B. paid 100/. in part, then A. refused to exe- cute the agreement ; and upon a bill filed for a specific per- (J) Free. Cha. 560. (r) 2 Eq. Ca. Abr. 4<3. pi. 1 2. CO Alate writer says affifmetion was ...ken in Seagood v Meale, between the pa, men. of a material sum, ,,i of more ,«■„«/, wh.ch « .here Held to be of no importance in the ease of an agreement touching lands and houses, and only of effect in contracts for goods, under the 17 h scion of ,he statute, and was not tobe considered as standing upon " m ! , , fo „,h-t-nt'nl nart of the cons.dera- the same principle as the payment of a substantial par - * -» — r , P R *- t %: ESS a « «"- ZXSZZSt:* * — (and the same ride was vour ui , opinion ot the court in -dooted in the first edition of this work,) but me opunuu ooopreuau navmentof monev was not Seafood v. Meale appears to have been, that payment 01 in any case a part performance of a contract for lands. (2 It has been said, that this case is not to be found u. the eg.ster s took. See4Ves.Jun.721. The author himself has «££££ iter's calendars for 1709 and i;iO, without success^ The search w* Lde under the letters L. (the plaintiff being a lord) P. and *• ^ 7# OF TAROL AGREEMENTS. formance, the agreement was held to be within the statute* but the 100/. was decreed to be refunded. The lord chan- cellor said, the payment of this 1 00/, was not such a perform- ance of the agreement on one part, as to decree ah execu- tion on the other ; for the statute of frauds makes one sort of contracts, viz. personal contracts, good if any money is paid in earnest. Now that statute says, that no agreement concerning lands shall be good, except it is reduced into writing; and therefore, a parol agreement, as it was in that case, would not be good by giving money by way of earnest. Thus far no room is left for doubt ; but in Lacon v. Mer- lins (d), lord Hardwicke laid it down, that paying of mo- ney had always been considered as a part performance; This, however, was a mere dictum, it was not necessary to decide the question, the cases on the subject were not cited, and another rule is laid down too generally in the same report. A case, indeed, is said to have been decided in 1 750 (e), at which time lord Hardwicke was chancellor* where the bill was to compel the acceptance of a lease tinder a parol agreement Upon a fine of 150/. and I 0/. paid in part of the same ; and the plea was over-ruled, without hear- ing the counsel for the plaintiff, and the decision, it is said, appears by the register's book (3). But it does not appear from this statement, whether there was or was not any other act of part performance ; and it is a sufficient objection to this ( d) 3 Atk. 1. (c) Dickinson v. Adams, 4 VesJun. f22, cited. (3) The author hag searched the register's calendars for 1750, with great attention, without meeting with the case. He met with only our Case where the plaintiff's name was Dickinson, and there the defendant'.: name was Baskerville ; and the case is on a different point. Reg. Lib. A. ]"50, fo. 545. Neither does a case in the same book, fo. 514, by the name of Davids v. Adorns, embrace the point in question. The search was made under the letter A. as well as the letter D. decision OF £>AROL AGREEMENTS. 79 decision that the plaintiff's counsel were not heard, as no one can deny that the point was open to argument. The neSrt case is a recent one (/) in which lord Rosslyn held, that the payment of a small sum, as five guineas, Where the pur- chase-money is 100/., would not take the case out of the sta- tute ; but he seemed clearly of opinion, that payment of a considerable part of the purchase-money would be sufficient ; and he treated the case of lord Fingal v. Ross as ill deter- mined. However, it was not necessary to decide the question. The opinion was clearly extrajudicial. In the late Case of Coles Vi Trecothick (g), where th e purchase- money was 20,000/. and 2,000/. were paid in part, the point was treated at the bar as doubtful, and the court evidently declined giving an opinion on the subject. Upon the whole, it appears clearly that since the statute of frauds, the payment of a small sum cannot be deemed a part performance. The dicta are in favour of a considera- ble sum being a part performance, but it is clear that this construction is not authorized by the statute, and it is op- posed by a case in which the contrary was decided upon the most convincing grounds. . On this subject Sir William Grant's admirable judgment in Butcher v. Butcher (A), must occur to every discerning mind ) it turns on a subject very applicable to the present, and his arguments are easily con- vertible. To say that a conddcrallc share of the purchase money must be given, is rather to raise a question than to establish a rule. What is a considerable share, and what is a trifling sum ? Is it to be judged of upon a mere state- ment of the sum paid, without reference to the amount of the purchase-money ? If so, what is the sum that must be (/) Main y. Melbourn, 4 Ves. (g) 9 Ves. Jun. 234. ;furt.?20. «)• In some cases it has been decided, that acts done by the defendant to his own prejudice, could be made a ground for compelling him to perform the agreement ; but in a late case (ri)i the master of the Rolls held the contrary where there is no prejudice to the plaintiff, because the ground on which the court acts is fraud in refusing to perform, after performance by the other party (o) ; "but where the defend- ant has, for instance^ paid the auction duty or purchase- money, it is no fraud on the vendor, but a loss to himself, which ought not to be made a ground for a specific perform- ance against his consent. Where a person purchases several lots of an estate, included in distinct articles of sale, a part performance as to one ior> (/) Clinan v. Cooke, l'Schoales P.Wms.770 ; and see post. ch. 4. n; and Lefroy's Rep. 22 5 and 8ee observations on Potter v. Potter. 6'Herlihyv. Hedges, ibid. 123. h) See Pophato v. Eyre, Lofft (m) Bufck master v. Harfop, 7 /86 ; Clinan v. Cooke. 1 Schoales Ves. Jan. 34l. and Lefroy's Rep. 22 j and O'Hsr- (n) fiuckmaster v. Harrop, ubt lihyv. Hedges, tbidi 123. ■sup. See Hawkins v. Holmes, 1 Q wiU 82 OF PAROL AGREEMENTS. will not be deemed a part performance as to the other lots, and will therefore only take the agreement out of the statute as to the lot in respect of which there was a part perform* ance (p). It may happen, that although an agreement be in part perform: i, yet the court may not be able to ascertain the terms, and then it seems the case will not be taken out of the statute. If, however, the terms be made out satisfac- torily to the court, contrariety of evidence is not material (?/),' and the court will use its utmost endeavours to get at the terms of the agreement. In the case of Mortimer v. Orchard (r), where a parol agreement with two persons had been in part performed, the plaintiff's witness proved an agreement different from that set up by the bill, and the defendants stated an agree- ment different from both. The chancellor thought in strictness the bill ought to be dismissed, but as there had been an execution of some agreement between the parties, and there were two defendants who proved the agreement set up by their answers, he decreed a specific performance of the agreement confessed by the answers?. In one case where upon the faith of a parol agreement a man entered and built, it was proved that the defendant told the plaintiff that Ins word was as good as his bond, and promised the plaintiff a lease when he should have renewed his own from his landlorci. Lord chancellor Jeffries said, than the defendant was guilty of a fraud, and ought to be punished for it, and so decreed a lease to the plaintiff, though the terms were uncertain. It was, he said, in the plaintiff's election for what time he would hold it, and he ( >) Buckma;ter v.Harrop, 7Ves. (q) See 1 Ves. 221. {?) 2 Ves. Jun. 243, elected OF PAROL AGREEMENTS. £>3 elected to hold during the defendant's term at the old rent, but the plahitiffxrzz to pay costs (s\ And in a case from Yorkshire, possession having been delivered in pursuance of a parol agreement, and a dispute arising upon, the terms of the agreement, lord Thurlow sent it to the master, upon the ground of the possession being delivered, to inquire what the agreement was. The difficulty there was in "ascertaining that. The master decided as well as he could, and then the cause came on before lord ftossiy'n, upon farther directions, who certainly seemed to think lord Thurlow had gone a great way, and either drove them to a compromise, or refused to go on with the decree upon &e principle upon which it was made (/). Lord Thurlow, however, appears to have formed a set- tled opinion upon this point, For in Allan v. Bower {u), where his lordship considered the written memorandum as evidence of a parol agreement, which was in part performed (whether rightly or not (x) is immaterial to the present question), he directed the master who had refused to admit parol evidence, to inquire and state what the promise was, that was mentioned in the memorandum, and at what time the promise was made, arid vokat interest the tenant was to acquire in the -premises under such promise; and the master was to be at liberty to state specially any particular circum- stances that might arise on such enquiries, and the parties were to be examined on interrogatories. In consequence of this order,evidc-nce was received which proved, that the tenant was to hold during his life, and lord Thurlow decreed a lease to be executed accordingly. So in a case before the late able chancellor of Ireland, (j) Anon. 5 Vin. Abr. 523, pi. (a) 3 Bro. €.C. 140. 40; and see Anon. ib. 522, pi. 38. (x) See 1 SehoalfeS and Lefroy' s "(/) Anon. 6 Ves. Jun. 470, Rep. 3/. cited by lord Eldon. g 2 where 84 OF PAROL AGREEMENTS. where an agreement in writing was held to be within thft statute, because the term for which it was to be granted was not expressed, his lordship said, he should have had great difficulty if there were evidence of part performance, lie must have directed a further inquiry, for the party had not suggested oy his bill, that the agreement was for any specific term, and the case stood both on the pleadings and evidence imperfect on that head (//). And in a late case before lord chancellor Eldon, he thought the court must at least endea- vour to collect if they can what are the terms the parties have referred to (z). But in the case of Symondson v. Tweed (a), it was laid' down, that in all cases wherever the court had decreed a specific execution of a parol agreement, yet the same had been supported and made out by letters in writing, arid the particular terms stipulated therein, as a foundation for the decree, otherwise the court would never cany such an agreement into execution. And in a case before the late lord Alvanley, when master of the Rolls (/•), he is reported to have said, " I admit my opinion is that the court has gone rather too far in permitting part performance, and other cir- cumstances, to take cases out of the statute, and then, una- voidably perhaps, after establishing the agreement, to admit parol evidence of the contents of that agreement. As to part performance, it might be evidence of some agreement, but of what must be left to parol evidence. I always thought the court went a great way. They ought not to have held it evidence of an unknown agreement, but to have had the money laid out repaid. It ought to have been a compensa- (y) Clinan v. Cooke, 1 Schoales (a) Prtc. Cha. 37-1 ; Gilb. Eq. and Leiroy's Rep. 22. Hep. 35. (%) Boardmau v. Mostyn, 6 Ves. {1) Forstet v. Hale, 3 Ves. Jun. Jun.4G;. 712, 7 13. . tion. OF PAROL AGREEMENTS. 85 rion. Those cases are very dissatisfactory. It was very right to say, the statute should not be an engine of fraud, therefore compensation would have been very proper. They have, however, gone farther, saying, it was clear that there was some agreement, and letting them prove it ; but how does the circumstance of having laid out a great deal of money prove that he is to have a lease for ninety-nine years ? The common-sense of the thing would have been to have let them bring an action for the money. I should pause upon such a case." And the late chancellor has said, that perhaps if it was res Integra, the soundest rule would be, that if the party leaves it uncertain, the agreement is not taken out of the statute sufficiently to admit of its being enforced. Upon the whole, although we cannot but observe tha considerable reluctance is manifested to carry parol agree- ments into execution, on the ground of part performance, where the terms do not distinctly appear ; yet there is abun- dant authority to prove, that the mere circumstance of the tennis not appearing, or being controverted by the parties, will not, of itself, deter the court from taking the best mea- sures to ascertain the real terms. And we ' may remark, that it can rarely happen, that an agreement cannot be dis- tinctly proved, where the estate is absolutely sold. Most of the cases on this head have arisen on leases, where the covenants, &c. are generally left open to future consi- deration, Where a parol agreement is so far executed as to entitle either of the parties to require a specific execution of it, it will be binding on the representatives of the other party in case of his death, to the same extent as he himself was bound by it (r). (c) Fide infr a, \ch. 4. o 3 In S6 OF PAK.OL AGREEMENTS. In a case before lord Redesdale ((/) he held that a con-? tract by a tenant for life with a power of leasing to grant a lease under his power, was binding on the remainder man. In the course of the argument, a question was put from the bar, whether if this had been a case of a parol agrees nient in part performed, it could be enforced. In answer to which lord Redesdale expressed himself thus : " Thai, I think, would raise a very distinct question, a question upon the statute of frauds ; and perhaps a remainder-man might be protected by the statute, though the tenant for lifewould nor. For the party himself is bound by a part performance of a parol execution of a parol agreement, principally on the pround of fraud, which is personal. Such a ground could scarcely be made to apply to the case of a remainder-man unless money had been expended, and there had been an acquiescence after the remainder vested, which were held by lord Hardwicke in Stiles v. Cowper, 3 Atk. 692, in the case of an actual lease under a power, but with covenants not according to the power, to bind the remainder to grant a lease for the same term, with covenants according to the power." These remarks may be closed by observing, that equity seems to have been guided by nearly the same rules in com- pelling a specific performance of parol agreements before tbe statute (e), as have been adhered to since; but still, the student cannot be too cautious in distinguishing the (J) Shannon v. Bradstreet, 1 moss v. Cornelia*, 1 Cha. Rep. Schoale s and fJeTroy's Rep. 52. 123 ; Anon. 2 Freem. 128 ; Voll (e) See Miiler v. Elandist, Toth. v. Smith, 3 Cha. Rep. 16 ; and see 85 ; William v. Nevil, ibid. 135 ; marquis of Normanby v. duke of Feme v. Bullock, ibid. 23S, 260 ; Devonshire, 2 Freem. 21/. Clark v.Hackwell, ibid. 260; Sim- cases OF PAROL EVIDENCE. 87 cases which were decided before the statute, from those decided subsequently. Much confusion has arisen from inattention to this point. It now comes in order to consider, in what cases parol or extrinsic evidence is admissible to vary or annul written instruments. And we may treat of this learning under three heads. 1st, where there is not any ambiguity m the Written instrument ; 2dly, where there is an ambiguity ; and Sdly, where a term of an agreement is omitted or varied in the written instrument by mistake or fraud. — And, I. Previously to the statute of frauds parol evidence might have been given of collateral and independent facts, which tended to support a deed. Thus, although a valuable conside- ration was always essential to the validity of a bargain and sale, yet Rolle laid it down, that (/) upon averment that the deed was in consideration of money, or other valuable con- sideration given, the land should pass, because the aver- ment was consistent with the deed. The same rule has prevailed since the statute of frauds. — Where in a convey- ance 2.8/. only was stated to have been received, parol evi- dence was admitted to prove, that 2/. more were actually paid (o-). And in a later case parol evidence was received that a sum of money was paid as a premium in order to constitute the relation of master and apprentice, although no mention of it was made in the writ'ten agreement entered into between the parties (h). In all these cases we observe, that the evidence is not offered to contradict or vary the agreement, but to ascertain an independent fact, which it is necessary to ascertain with a view to effectuate the real intention of the parties. (/)2 Ro. Abr. 78(5, (N.) pi. I j (i) Rex v. the inhabitants of and see 1 Rep. j;6, a. La'uidon, 8 Terra Rep. 379, ^ nci (g) Rex. v. the inhabitants of see 2 Cha. Ca. 143. £cammonden, 3 Term Rep. 474. s4 It 83" OF PAROL EVIDENCE. It is, however, clearly settled that parol evidence is not admissible to disannul and substantially vary a written agreement \ for, as lord Hardwicke observes, to add any thing to an agreement in writing, by admitting parol evi- dence, is not only contrary to the statute of frauds and per- juries, but to the rule of common law before that statute was in being (z). Thus, in a leading case on this subject {/;'), it appeared that by an agreement in writing, the grass and vesture of hay from off a close of land, called Borcham's Meadow, was to be taken by one Ansell. The subscribing witness to the agreement proved the written agreement, and he and ano- ther person deposed, that it was at the same time (when the written agreement was made) agreed by the parties by parol that Ansell should not only have the hay from off Boreham Meadow, but also the possession of the soil and produce of that and another close of land. The cause was tried ; t nisi prius before lord Mansfield, who admitted the evi aence, and afterwards reported he was not dissatisfied with the ver- dict in consequence of it. But lord chief justice De Grey, and the other judges of the court of Common Fler.s, held decidedly, that the evidence was totally inadmissible, as it annulled and substantially altered and impugned the written agreement. So in Preston v. Merceau (/), by an agreement in writing a house was let at 26/. a-year, and the landlord attempted ro shew, by parol evidence, that the tenant had agreed to pay the ground rent for the house to the original landlord, over and above the 261. a-year ; but the court of Common Pleas rejected the evidence. (i) Parteriche v. Powlet, 2 Atk. (/■) Meres v. Ansell, 3 Wils, 3S3 ; and seeTinney v. Tinney, 3 2705 and see Mease v. Mease, Atk. 8 ; Biiiatcad v. Coleman, Cowp. 4", Lofft 157. Bimb. 65. 0) 2 BlaeHst. 1240. And OF PAROL EVIDENCE. 89 And upon the general rule of law, as it seems, independ- ently of the statute of frauds, it hath been determined that verbal declarations by an auctioneer in the auction-room, contrary to the printed conditions of sale, are inadmissible as evidence, unless perhaps the purchaser has particular perr sonal information given him of the mistake in the parti- culars (?n) t The rules of evidence are universally the same in courts of law and equity. Therefore parol evidence, which goes. to substantially alter a written agreement, cannot be received in a court of equity any more than in a court of law (?i). Thus in the case of Lawson v. Laude («), a bill was brought to carry into execution an agreement between the plaintiif and defendant, for granting to the defendant a lease of a farm. The defendant objected to execute the lease, because some land, called Oxlane, agreed to be demised, was left out of the lease. The plaintilF offered evidence to prove, that it was left out by the particular and joint direction of the plaintiff and defendant. Sir Thomas Clarke held the evidence to b,e in direct contradiction to the statute of frauds; and therefore dismissed the bill. So in a case before lord Bathurst (/;), where a bill was filed for an injunction to stay proceedings at law for a breach of covenant, in not assigning all the premises, which the defendant insisted by an agreement in writing, and a lease in pursuance of it, were to be assigned. The plain tiff stated by his bill, that though the agreement was for all the premises, yet the defendant, at the time of the execution of the lease, agreed, that three pieces of land should be excepted, and (*«) Gunnis v. Erhart, 1 H. (/>) Fell v. Chamberlain, 2 Dick. Blacks!. 2SQ. 484 j I could not meet with the (n) See 3 Wils.276 ; iind see Foot facts in the Register's book; see Y. Salway, 2 Cha. Ca. 142. Re£. Lib. A. 1/72, rbl. 1, 49(5. (0) 1 Dick. 346. the $0 OF PAROL EVIDENCE. the plaintiff examined several witnesses to prove the fa which they did ; but the defendant by his answer denied the fact, and insisted upon the extent of the written agreement, and the parol evidence being objected to at the hearing, it was not permitted to be read. And in an important case before lord Eldon (a), his lord- ship refused to execute an agreement with a variation attempted to be introduced by parol on the ground of r- , - take, or at least of surprise, which was denied by the :r. m . And in the late case of Woollam v. Hearn (/-), where a spe- cific performance was sought of an agreement for a leai i. a less rent than that mentioned in the agreement, 1 variation was introduced by parol, on the ground of i i and misrepresentation in the landlord ; the evidence 9 read without prejudice, and the master of the Rolls the I it made out the plaintiff's case ; but his honour held hin f bound by the authorities, and accordingly rejected the dence, and dismissed tbe bill. And this doctrine has b. i distinctly recognized by lord Redesdale (.?). So verbal declarations in opposition to printed condil of sale, are inadmissible as evidence, in equity as well as at law {t). But when equity is called upon to exercise its peculiar jurisdiction, by decreeing a specific performance, the party to be charged is to be let in to shew, that, under the circum- stances, the plaintiff is not entitled to have the agreement specifically performed (a). Therefore a defendant resisting a specific performance of an agreement may prove by parol evidence, that by iraud (q) Marquis of Townshend v. (.') Jenkinson v. Pepys, 6 Ves, Stangroom, 6 Ves. Jun. 323. Jun. 330, cited. (r) 7 Ves. Jun. 211. («) See 7 Ves. Jun. 21Q. {s) 1 Schoales and Lefro/s Rep. 3S> 30. the OF PAROL EVIDENCE. 91 the written agreement does not contain the real terms (#). JSuch evidence was admitted by lord Hardwicke in Joynes v. Statham (y); and in the late case of Woollam v. Hearn (z), before cited, Sir William Grant said, if it had been a bill brought by the defendant for a specific' performance, he should have been bound by the decisions to admit the parol evidence, and to refuse a specific performance. So lord Hardwicke admitted that an omission by mistake or surprise, would let in the evidence as well as fraud ; and lord Eldon in a recent case actually admitted parol evidence of surprise, as a defence to a bill seeking a performance in specie ; but his lordship said, that those producing evidence of mistake or surprise, in opposition to a specific performance, undertake a case of great difficulty ^a). The case before lord Eldon shows the rule of equity in a strong light. The landlord filed a bill for a specific per- formance of the written agreement, varied by the parol evi- dence. The tenant filed a cross-bill for a specific perform- ance of the written agreement. The result was that both bills were dismissed ; the first because parol evidence was not admissible as a foundation for a decree enforcing a spe- cific performance ; the second on the ground that such evi- dence was admissible to rebut the equity cf the plaintiffs in the second bill. A similar case appears to have been decided by lord chan- cellor Macclesfield. The case is, I believe, never cited, and it requires some attention to get at the facts. They appear, however, to be, that the plaintilf in the first bill sought a specific performance of an agreement by him, to grant a lease to the defendant. The defendant set up a parol agree* (*) See the cases cited infra, as (y) 3 Atk. 388. to discharging a written agreement (z) / Ves. Jan. 21 1. by parol ; and see Walker v. Wal- (a) Marquis of Townshend \\ Her, 2 Atk. 98 ; and, see Ves. Stangroom, (> Ves. Jun. 328. fun. 337, n, joent, 92 OF PAROL EVIDENCE. merit, by which he was to have liberty to grub bashes, and exhibited a cross bill for a performance in .specie of the written agreement, with the addition of a clause, to grub bushes according to the parol agreement ; and both the bills were dismissed, but without costs (b). Upon the admissibility of parol evidence, as a defence to a bill seeking a specific performance, lord Redesdale has for- cibly observed, that it sjiould be recollected what are the words of the statute : " No person shall be charged upon any contract or sale of lands, unless the agreement, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized." No person shall be charged with the execution of an agreement who has not, either by himself or his agent, signed a written agreement | but the statute does not say, that if a written agreement is signed, the same exception shall not hold to it that did before the statute. Now, before the statute, if a bill had been brought for specific performance, and it had appeared that the agreement had been prepared contrary to the intent of the defendant, he might have said, " That is not the agreement meant to have been signed." Such a case is left as it was by the statute : it does not say, that a written agreement shall bind, but that an unwritten agreement shall not bind (r). And nearly the same observations upon the negative words of the statute, were made by lord chief baron Skynner in the case of Rami v. Hughes (//). But if parties enter into an agreement which is correctly reduced into writing, and, at the same time, add a term by parol, equity cannot look out of the agreement, although ty) Hosier v. Read, 9 Mod. S6 ; (r) t Schoalcs and Lefroy's I have searched the Register's Rep. 3Q. books for this case without success. ( See 2 Blackst. 1250 ; / Ves. (i) 4*Bro. C.C. 514, 6 Ves, Jun. Jun. 221. 334 > n ' '." " Mr Justice Blackstone. lord OV PAROL EVIDENCE. 95 lord chief justice of the Common Pleas. The defendant was suffered to give parol evidence of the real agreement, and his lordship gave credit to the veracity of the witnesses, notwithstandingwhich he rejected the evidence, and directed a verdict to be given for Jackson, with costs; and upon an application to the court of Common Pleas, the court ap- proved of the verdict, and refused a rule to shew cause why the same should not be set aside. In this branch of the case, therefore, the point was so- lemnly decided in a court of law, and the same determina- tion was made upon the same case in a court of equity.— Rich being defeated at law, filed his bill for a specific per- formance of the agreement, varied by the parol evidence ; • and the cause came on to be heard beford lord Rcsstyn, then lord chancellor, who said, the prior conversations and the manner of drawing it up by one party and signing it by another would have no influence. The real question was, whether in equity any more than at law, the evidence ought to be admitted ; whether there is any distinction in a court of equity, where a party comes to enforce a written agreement by obtaining a more formal instrument, and to add in doing that a term not expressed in the written agree- ment, and of such a nature as to bear against the written agreement. He had looked into all the cases, and could not find that the court had ever taken upon itself, in exe- cuting a written agreement by a specific performance, to add to it by any circumstance that parol evidence could in- troduce. And his lordship dismissed the bill, but without costs. Indeed lord Rosslyn appears to have made a similar de- cision in a case prior to that of Rich v. Jackson. The case to <)6 OF PAROL EVIDENCE. to which I allude is Jordan v. Sawkins (/), where a bili was filed for a specific performance of a lease, and it was stated that there was a memorandum annexed to the crimi- nal agreement that the tenant (4) was to pay the land-tax (which it must be presumed was not signed, and was there- fore only tantamount to a parol agreement). The cause was heard before the lords commissioners Eyre, Ashurst,- and Wilson, who decreed a performance of the contract with the variation, that it was to be at a clear rent of 40/. without deducting land-tax. The cause was re-heard be- fore lord Rosslyn, who said, if the agreement had been carried into execution as it originally stood, tne landlord must have paid the land-tax. The court could not specifi- cally perforin an agreement with a variation, and therefore his lordship reversed the decree and dismissed the bilL As a term agreed upon by parol cannot be added to a written agreement, by parity of reason a written agreement cannot be varied by parol. This was decided by lord Thurlow in a branch of the last mentioned case. It appeared that a lease was agreed by writing to be granted of a house for 21 years, to commence from the 21st of April, 1791, and that it was afterwards agreed by parol that the lease should commence on the 24th of June instead of the 21st of April. To a bill filed by the tenant for a specific performance of the written agreement, varied by the parol agreement, the statute of frauds was pleaded, and lord chancellor Thurlow held that the different period of commencing the lease made a mate (k) Jordan v. Sawkins, 3 Bro. C. C. 3SS, 1 Ves. Jtin. 402. m ■ ■ . — — - — ■ — ' " " (4) In the report the name of the landlord is, by mistake, printed for that of the tenant, rial OF PAROL EVIDENCE; 97 . rial variation, as it gave the estate from the owner for so many months longer, and therefore he allowed the plea. The rule of jaw is, nihil tarn conveniens estnaiurali cequi- ia'tij ynumquqdque dissolvi eo ligamwe quo ligation est : and therefore, in general, as we have seen, an agreement in writing cannot be controlled by averment of the parties, as it would be dangerous to admit such nude averments against matter in writing (/). This was an imperative rule, previously to the statute of frauds ; and the statute requires that " all contracts and agreements concerning land, should be in writing." Now, as lord Hardwicke observed, an agreement to wave a purchase contract, is as much an agreement concerning lands as the original contract (;??) ; notwithstanding which it is universally considered, that an agreement in writing concerning land may be discharged* although it cannot be varied by parol (n). The first case on this head, is a short note in Vernon (o), where the precise point occurred, and the lord keeper held, the agreement might be discharged by parol, and therefore dismissed the bill, which was brought to have the agree- ment executed in specie. The next case is reported by Vi- ner(/>); The case was that A. leased a house to B. for eleven years, and was to allow 20/. to be laid out in re- pairs ; the agreement was reduced into writing, and signed and sealed by both parties. B. repaired the house, and finding it to take a much greater sum than the 20/. told A. {/) Countess of Rutland's case, Rob. on stat. of frauds, 89. 5 Co. 2fi b. ; Blemerhasset v. Pier- (>) Goman v. Salisbury, 1 Verri. son 3 Lev. 234. 240. I could not discover any (77;) 2 Eq. Ca. Abr. 33. trace of this cause in the register? (a) 1 Ves. Jun. 404; 4 Bro. C.C. book. - 510; 6 Ves. Jun. 337. n. ; Ves. (j&) Anon, £ Vh* 522, pi. 33. .lun. 2,50; 3 Wooddes, 42S s. iv.j 4 Geo. H Of 9 8 OF PAROL EVIDENCE. of it, and that he would nevertheless go on and lay out more money if he would enlarge the term to 21 years, or add 14 or as many as B. should think fit. A. replied, that they would not fall out about that, and afterwards declared that he would enlarge the term, without mentioning the term in certain. The question was, whether this new agreement, made by parol, which varied from the written agreement, should be carried into execution notwithstanding the statute of frauds. The master of the Roils said, that before the statute, a written agreement could not be controuled by a parol agreement, contrary to it, or altering it ; hut this was a new agreement, and the laying out the money was a part performance on one part, and ought to be earned into exe- cution, and built his decree on these cases: 1st Where a parol agreement was for a building lease, and before it was reduced into writing, the lessee began to build, and after differing on the terms of the lease;, the lessee brought a bill and the lessor insisted on the statute of frauds. The lord keeper dismissed the bill, but the plaintiff was relieved in Dom. Vroc. ; and the second was a case m lord Jeffries's time. Then came the case of Buc kilo use and Crossby before lord Hardwicke fjj), where to a bill fried by a purchaser for a specific performance, the vendor insisted the contract had been discharged by parol, and the case of Goman v. Salis- bury was cited bv his counsel as an authority in his favour. The lord chancellor, under the circumstances, decreed for the plaintiff, with costs ; and declared that though he would not say that a contract in writing would not be waved by parol, yet he should expect in such a case very clear proof; and the proof in the present case he thought very insuffi- cient to discharge a contract in writing ; and observed, that (?) 2 Eq. Ca. Abr. 32. pi. 44. 10 Geo. 2. the OF PAROL EVIDENCE. 99 the tt; tub d farads end perjuries requires that " all con- tracts and agreements concerning land should be in wil- ting." Now an agreement to wave a purchase contract is as much an agreement concerning lands as the original con- tract. However, he said, there was no occasion now to de- termine this point. Aiid, in another case, lord Hardwicke is reported to have said, that it was certain that an interest in land could not be parted with or wared by naked parol, without writing-, vet articles might, by paroi, be so far waved, that if the party came into equity tor a specific execution, such parol waver would rebut the equity which the party before had, and prevent the court from executing them specifically (r). The case of Legal v. Miller 0), comes next in point of time. The agreement was for taking a house at 32/. per annum, and part of the agreement was, that the owner should put the house in repair. It was afterwards discover- ed not to be worth while barely to repair the hottse, but bet- ter to pull it down ; and therefore, without any alteration of the written agreement, the house was pulled down by consent of the tenant, apprised of the great expense it would be to the landlord ; and therefore, an agreement was made by parol only on the part of the tenant, to add 8/. per annum to the C2A The tenant brought a bill for specific perform- ance, on the foot of the written agreement, by which he was to pay only the S%L rent. The defendant, by his an- swer, set uf the parol agreement. Sir John Strange said, such evidence is frequently suifered to be read, especially to rebut such an equity as now insisted on by the bill, as where the agreement is in part carried into execution, parol evi- dence is allowed to prove that ; or where it is d hard agree- ment : and the court may, therefore, decree against the (>) Bell v. Howard, Mod. 302. (r) 2 Ves, 2QQ. ii 2 written 100 OF PAROL EVIDENCE. written agreement, as in 1 Fern. 240. (Goman v. Satis* bury) ; and the single question being here, whether the court should decree a specific performance of the agree- ment, the plaintiff insists upon^ and being satisfied, from the parol evidence, that it should not, the court must dis- miss the bill. And in the subsequent case of Pitcairne v« Ogbourne (/), Sir John Strange referred to this decision, and approved of it. I have thought it of great importance to bring all the cases I have met with, on this point, fully before the reader, who will not fail to perceive, that in every case, except that m Viner, the party insisting upon the parol agreement, was not requiring the aid of the court, but merely set up the agreement as a bar to a specific performance ; and therefore, in strictness, these cases belong to the class before discussed* where the court will admit the evidence to rebut the plain- tiff's equity, when it would be inadmissible, as a ground for relief. In the case in Viner indeed, the person relying on the parol agreement was plaintiff; but then the agree- ment was in part performed by him, and the master of the Rolls expressly founded his decree on that ground. No case seems to go beyond that. The result of the authorities appears to be : 1st. That of a parol discharge of an agreement in wri- ting, the most unequivocal proof will be expected. 2dly, If it be proved to the satisfaction of the court, it can only be used as a defence to a bill demanding a specific performance, and is totally inadmissible at law: or even in equity, as a ground to compel a performance in specie ; unless, 3dly, There has been such a part performance of the parol agreement, as would enable the court to grant its aid (/) 2 Yes. 375. ill GF PAROL EVIDENCE. 101 in the case of an original independent agreement, and then, in the view of equity, it is tantamount to a written agree- ment. t ■ In considering the point under discussion, the reader will- be careful not to confound the foregoing cases with the case of Walker v. Constable fu). There the original agreement was a parol agreement ; and the question was, whet 7 being abandoned, parol evidence could be given of it. L< C. J- Eyre held, that the exigence and the terms of tl agreement must be proved before it could be proved to be •abandoned, and upon that it was sufficient to say, that be in writing (6) the instrument itself must be produced, and parol evidence of it was inadmissible, The next branch of our subject, although the most trite, is not perhaps, therefore, less difficult. Lord Chancellor Ba- con says (x) there are two sorts of ambiguities of words, the one is amkiguitas patens, and the other latens. Patens, he adds, is that which appears to be ambiguous upon th j deed or instrument ; latemh that which seems certain, and without ambiguity, for any thing that appears upon the in- strument, but there is some collateral matter out of the deed that breeds the ambiguity. A latent ambiguity may be assisted by parol evidence, be- cause the ambiguity being raised by parol, may fairly be dissolved by the same means, according to the general rule of law. Therefore, if, previously to the statute, a man ha . ing two manors, both called Dale* had conveyed the ma- nor of Dale to another, evidence might have been given t< . («) 2 Esp. 659] l Bos. aiul Pull. 305. (a) Max. p. S2. Reg. 23. (6) That is, in contemplation of law, for it is not "deemed an ay nient unless reduced into writing. H 3 V 1 102 OF PAROL EVIDENCE. prove which manor was intended to pass ;/, and such evi- dence is still admissible, as has been repeat dly decided (z). In some cases a latent ambiguity may be fatal. Parol evidence may be adduced to prove the ambiguity, when none sufficiently satisfactory may offer to explain it (a). And to render parol evidence admissible in these cases, a clear latent ambiguity must be first shewn. Evidence which merely raises a conjecture is insufficient (b). But although a latent ambiguity may be aided by parol evidence, yet a patent ambiguity cannot be aided by intrinsic evidence, because that would in effect be to pass without deed, what, by the law, can be passed by deed only. Of this lord chancellor Bacon observes, infinite cases might be put ; for it holdeth generally, that all ambiguity of words, by mat* ter within the deed, and not out of the deed, shall be helped by construction, or in some cases by election, but never by averment, but rather shall make the deed void for uncer- tainty. In Mansell v. Price, personal estate was settled in trust for Price the defendant, and Catharine his wife, for their lives, and the life of the survivor of them, and then for their issue, with a power to the wife to dispose of ] .500/. part of the monies, to any persons she pleased. She exerci- sed this power by giving the money to Sir Edward Mansel, intrust to pay 1,000/. to A. when she should attain 21, or marry; but if she died before 21, or marriage, then it (_y) 2 Ro. Abr. 6~6, pi. 11; and Longchamps y. Favcitt, Peake's see lord Cheney's cas..-, 5 Rep 68; Ca. yl. AlthaaVs case, 8 Rep. 155 a. ; and (a) Thomas v. Thojmas,6 Terra Harding v. Suffolk, 1 Cha. Rep. Rep. 67 1. 74. (I) See lord Walpole v. The earl (s) Jones v. Newman, 1 1-lackst. of Cholrcundeley, 7 Term Rep. ro ; 3 Wils. 276; 2 Atk. 239, 138. 240, 373 j 1 Bro. C. C. 341 ; should Id' O-F PAROL EVIDENCE should be to such uses as B. should appomt. And the other Zol. she directed to be paid to C. in exactly the same terms as before. The bill was filed by the guardian of A. Zc. infants, to have the money paid, and to bepu on for them to have the Interest thereot ,mmed>ately For he defendant Price, it was insisted that he was enuued to the •test of the ISOOl. until it should become payable. The first question was, whether parol evidence could be Sated to explain the intention -f Cathanne Pnce ^ should become of the interest till the tunes of payment, for f that could be admitted there wassumaent to prove^e husband should not have it. And the master of th Robs ,vas of opinion such evidence could not be read (e) 7). So in Kelly v. Powlet (rf;, the quest.on was, whether blate passed under a bequest of household furmture. The ^,er of the will said, it was « intended , but has evtdence was refused, and the plate was held to pass. Again, in a case in the exchequer (e), >t appeared tha hy an ac, of parliament cast plate glass . <^<* » * Zuari into plates of certain dtmensums The quest.on .as, whether certain plates were in the shape directed by ~, -, j „ r „ n \ mhl Ci05 , reported, which I / \ atc T T»rm 8 and t*eo. a\mui. *>««»> r berlaine, 2 Freem. 52, Ulneii \. ~> hitchfield, MS. 2 Atk. 372. where C C 350, 351. •^ • i M Attorney-General v. I ne <-ast the evidence was not received. [?) ™ ^ ^ 1 Bro. C.C 4 7 6, Cited; plate-glass company 1 Anstr. .J. •n Kn*- the same doctrine applies to all C 7 \ This case wai upon a will, hut tne same uu n \ n The reader will easily perceive what ca.es upoi. r itten instruments, lnereauci .vm j t . nuen on devises are collected m wills apply to other instruments. lbe ca.es on Jtow- Dev. 4/7—531. H 4 w 104 OF PAROL EVIDENCE. the act. The attorney-general at the trial produced books explaining the process and terms of art in the manufacture? and the defendants offered evidence to prove the technical meaning in the trade of the word squaring glass : the evi- dence was however refused, and a verdict found against the defendants, and upon a motion for a new trial, lord chief baron Eyre said: In explaining an act of parliament, it s impossible to contend that evidence should be admitted, for that would be to make it a question of fact, in place of a question of law. The judge is to direct the jury as to the point of law, and in doing so must form his judgment of the meaning of the legislature, in the same manner as if it had come before him on demurrer when no evidence would be admitted. Yet on demurrer a judge may well inform himself from dictionaries or books on the particular subject concerning the meaning of any word. If ne does so at nisi prius, and shews them to the jury, thev are not to be con- sidered as evidence, but only as the grounds on which the judge has formed his opinion, as if he were to cite any authorities for the point of law he lays down. So parol evidence is inadmissible to restrain the legal operation of general words in an instrument. Therefore it cannot be admitted to prove, that a particular estate was not intended to pass under general words sufficient to com- prise it. Thus in Davis v. Thomas (/), a husband and wife being seised of settled estates in the county of Pembroke, bough!; an estate in the same county, called Rigman Hill, which was conveyed to them, and the survivor in fee. The husband having prevailed on the wife to join with him in suffering a recovery of the settled estates, in order to enable him to, (/) Keg. Lib. 175/, fol. 33, 34 ; cl infra, p. 1 13. sec Themis y. Davis, l Dick. 301, mortgage OF PAROL EVIDENCE, 105 mortgage them, gave the attorney employed to suffer the recovery, a particular description of the settled estates which did not comprise Rigman Hill ; and it dearly appeared from several circumstances, that he had not any intention to com- prise that estate, the title-deeds of which were in his wife's custody. The attorney, fearful of not comprising the whole estate, and not knowing that Rigman Hill had been pur- chased, added general words sufficient to comprise that estate. The recovery was suffered to the use of the husband in fee, who afterwards mortgaged the estate by the same description.. The husband by his will gave all his estates to his wife for life. She survived him, and after her death the heir at law of the husband brought an ejectment against the persons claiming Rigman Hill, under the wife, which came on to be tried at the April Great Sessions for Pem- brokeshire, in 1 75G. Parol evidence was offered by the defendant, to shew, that it was not intended to comprise Rigman Hill in the recovery and mortgage ; but it was re- fused, and the plaintiff had a verdict. So in Shelling v. Farmer (g), where to a release in pur- suance of an award, the plaintiff would have called the ar- bitrators to prove, that they refused to take into considera- tion a particular fact, although the award and release con- tained general words sufficient to take in all, chief justice Eyre would not suffer any evidence to be given to contradict the deed. And in the very recent case of Butcher v. Butcher (A) general uords in a release, were held not to extend to a certain bond of indemnity; and lord chief justice Mansfield^ at Guildhall, refused to admit parol evidence to shew the (g) 1 Sir. 646 ; see Strode v. 1 Ves. 231. lady Falkland, 2Vern. 621, 3 Cha. (fi) 1 New Rep. 113. Jiep.90 3 andGoodin^e v. Gooding", intention 106 OF PAROL EVIDENCE. intention of the releasor to release the bond. And upcm a motion for a new trial the court of Common Pleas intimated a strong opinion, that no evidence could be admissible to explain the release, since the doubt, if any, was ambiguitas patens ; and, in consequence of this intimation, the counsel for the plaintiff declined arguing the case. But, as we shall presently see, the effect of general words may be restrained in a court of equity, on the ground of mistake, where it js satisfactorily proved, It still remains to obse;ye, that courts both of law and equity constantly advert to the situation of the parties, cvc, in order to enable them to construe ambiguous or ill-penned instruments, although parol evidence of the intention of the parties could not be received ; and this has been sanctioned by a leading case in the house of lords (/'). In one case (k) where it was doubtful whether a covenant for renewal extended to a perpetual renewal, and the parties had renewed four times successively under the covenant, lord Mansfield and the other judges of the King's bench held, that the parties themselves had put a construction upon the covenant, and were therefore bound by it. Lord Alvanley, who was in the cause, said, when master of the Rolls, that he was never more amazed than at this decision, and that Mr, j istice Wilson, who argued with him, was astonished at it (/); and his lordship more than once expressed his marked disap- probation of this doctrine (m). T^e late chancellor (;/), and the present master of the Rolls (o), have both also dissented (1) Sir John Eden v. the Earl of 3 Ves. 295, and see 2 Ves. Jun. Bute, 7 Bro.P.C. 7 i'T; see countess 443. or' Shelbuin v. earl of Inchiquin, 1 («/) See Eaton v. Lyon, 3 Ves, Bro. C.C. 338. Jun. 6gO. (i) Cooke v. Booth, Cuwp. 810, (») See Iggnldenv. May, 9 Ves. and see 1 Blackst.1249; 1 Nev/Bep. Jun. 325. 42. See Peake on Evid. ch. 3. (o) See Moore V. Foley, 6 Ves. (/) Baynham v. Guy's hospital, Jun= 23.2. from OF PAROJ. EVIDENCE. 10Y from it. And it appears to be now clearly settled, that in the construction of an agreement or deed, the acts of the parties cannot be taken into consideration (/>). Where, however, the words of an ancient statute or instru- ment are dQ\\bt£\i\,contemporaneoi{$ usage, although it cannot overturn the clear words of the instrument, will be admitted to explain it; for jits et nornia loquendi, is governed by usage, and the meaning of things spoken or written must be as it hath constantly been received to be by common accepta- tion (r/\ This has been determined in many cases, and such evidence accordingly received (r). And in the hist case oti, this subject lord Ellenborough said, it was in constant prac- tice at nisi prius to receive evidence of usage to explain doubtful words in old instruments ; and it would be difficult to shew any just ground of distinction between the informa- tion which a judge might receive to aid his judgment in bank and at nisi prius (s), III. The last division of our subject relat2s to the juris- diction of equity, in correcting mistakes and fraudulent pmissions in agreements and deeds (8). In (p) See Clifton v. Wajmesley, 5, Term. Rep. 27g; Rex v. Bellringer, •Term Rep. 564. 4 Term. Rep. 810; Rex v. Miller, (q) Sheppardv. Gosnold, Vaugh. 6 Term. Rep. 2GS ; and see Attor- j 6§. ney General v. Parker, 3 Atk. 576 ; (/-) Rex v. Vailo, Covvp. 218, Kitchen v. Bartsch, 7 East 53. Gape v. Handley, 3 Term Rep. (s) Rex. v. Qsboume, 4 East 2SS, n. Elankley v. Winstanley, 3 327. (8) Even at law the palpable mistake of a word will not defeat the indention of the parties. In a case in the Common Pleas, where the condition of a bond was, that it should be void if the obligor did not pay; and performance being pleaded on the ground of the literal expression, ihe cpurl held the plea bad. A^non, Dougl. 384^ cited, 2d edition. It $eems 30§ Of PAR0E EVIDENCE. In Henkle v. the Royal Exchange Assurance Office (t\ lord Hardwicke said no doubt but equity had jurisdiction to relieve in respect of a plain mistake in contracts in writing, «s well as against frauds in contracts ; so that if reduced into writing, contrary to the intention of the parties, on proper proof that would be rectified : he thought, however, that in these cases there should be the strongest proof possible. In a case which was much agitated before lord Thurlow, he laid down the rule with great latitude, that if a mistake appears, it is as much to be rectified as fraud («.). So in another case before the same chancellor, he said he thought it impossible to refuse, as incompetent, evidence which went to prove that the words taken down were contrary to the concurrent intention of all parties. To be sure, his lordship added, it must be strong, irrefragable evidence ; but he did not think he could reject ii as incompetent (ir). Lord Eldon, observing upon these dicta, said lord Thur- low seemed to say that the proof must satisfy the court what was the concurrent intention of all parties ; and his lordship, added, it must never be forgot to what extent the defendant,, one of the parties, admits or denies the agreement^ In the case before lord Eldon (r), a specific performance of an (.') 1 Ves. 317- earl of Inchiqu'm, 1 Bro. C. C.33S. («) Taylor v. Radd, 5 Ves. Jun. (.v) Marquis of Townshend v. 5Q5, cited. Stangroom, 6 Ves. Jun. 32S. (w) Countess of Shelburne v. the seems clearly settled, that words evidently omitted in a will by mistake, may be supplied, both at law and in equity, Tollett v. Tollett. Ambl. 194; Corytun v. Hellier, 2 Burr. 023, cited; and Doe v. Micklem, 6 East 486 ; see Lane v. Goudge, Ves. Jun. T15; and Mellish v. Mellish, and Philipps v. ChambcrlaiiK, 4 Ves. Jun. 45, 51 ; but however evident the mistake may be, the words will not be supplied, if the testator's manifest intention would be defeated by the insertion of (hem. Chapman v.Brown^ 3 Burr. 3 020' ; see 2 Ves, Jun. 365. agreement OF fAROL EVIDENCE. 109 agreement was sought, with a variation attempted to be introduced by parol, on the ground of mistake and surprise, which was positively denied by the defendant. And his lordship said, that he would not say, that upon the evidence without the answer, he should not have had so much doubt whether he ought not to rectify the agreement as to take more time to consider whether the bill should be dismissed ; but as the agreement was to be considered with reference to the answer by which he had positively denied it, his lord- ship dismissed the bill, but without costs. Lord Eldon's decision precisely accords with lord Thur- low's opinion, which he rightly construed. For in lord Irnham v. Child (//), it was observed by lord Thurlow that if a mistake be admitted, the court would not overturn the rule of equity by varying the deed ; but it would be an equity dehors the deed. Then it should be proved as much to the satisfaction of the court, as if it were admitted : " The difficulty of this is so great, that there is no instance of its prevailing against a party insisting there was 5 Ves. Jim. keg. Lib. B. 1757, fol. 33,. 34. 506. n. (a) ejid Barstow v. Kil- (o) I Dick. 204. Note, the vington, 5 Ves. Jun. 503 ; and see tacts are not .stated in the report j Nelson v. Nelson, Nels. Cha. Rep. they are extracted from the regis- / ; Shaw v. Jakeman, 4 East, ter's book ; see Beg. Lib. B. 1756, 201 . fol. 205 ; se_» Fritchard v. Quin- (0) The judgment is very inaccurately stated in the report. After addressing himself to the general words, the master of the Rolls is sta- ted to have said, Do these words comprise Redmond [Rigman] Hill ? ? do not think they do include Redmond Mill : bnt other words do. it Redmond Hill was not intended, why was the wife to join ; and why did she join ? This is absolute nonsense. The wife joined because she was interested in the. settled estates ; and the opinion of the court was, that the general words did include Rigman Hill. The editor's marginal ab- stract of this case shews how difficult it is to understand the report of it. I remainder 114- OF PAROL EVIDENCE. remainder to such uses as the wife should appoint ; and a draft of a settlement was drawn accordingly. When the wife saw the draft, thinking she was past child-bearing, she objected to the limitations to the issue, and they were di- rected to be struck out. The attorney, by mistake, not only struck out those limitations, but also the limitation to the wife for life, and the deed was executed without the mistake being discovered. The wife exercised her power in favour of her husband during his life, and then died in his life-time. Her heir at law insisted that the use re- sulted to him during the husband's life, and brought an eject- ment against the husband, and obtained a verdict (l). The husband then filed a bill for an injunction, and to rectify the mistake in the settlement. The defendant, by his an- swer, urged that the draft of the settlement might have been altered with a view to support the husband's claim ; and in- sisted that parol evidence could not be received ; but Sir Thomas Clarke decreed that the power appeared to have been designed to extend to dispose of all the interest after the husband's interest, during the joint lives of himself and his wife,, and ordered the settlement to be rectified accord- ingly. If a settlement is made contrary to the intention of the parties, merely to prevent a forfeiture, parol evidence is admissible of the real intent of the parties (A), and the set- tlement will be rectified in conformity to it. (b) Harvey v. Harvey, 2 Cha. then by lord Nottingham, and af- Ca. 180, decided the same way, terwards by lord chancellor Jtf- first by Sir Harbottle Giimston, fries; and see Fitzgib. 213, 214>. { 1 ) This point was clear at law, but the defendant setup an old term as a bar to ihe plaintiffs right to recover. The defence, however, did not succeed. See Farmer, dem. Earl v. Rogers, 2 "Wils. ^0. It OF PAROL EVIDENCE. 115 It may here be proper to notice a late decision (a), in order to shew that it does not subvert any of the rules on the subject under consideration. In the case alluded to, it appeared that Smiths', the bankers, were tenants in posses- sion of the house in question, for which they paid two rents, one a ground rent of 561, to the defendant, and the other an improved rent of 210/. to a third person. The house was directed to be sold, under a decree -, and the plaintiffs, by a broker, treated for the purchase of it, and em- ployed him to value it. The broker had an interview with the attorney concerned in the sale, who stated, that the rent payable for the house was the 56L and the broker va- lued the estate accordingly. A written agreement was not entered into, but the contract was approved of by the mas- ter, and the money paid into the Bank. The purchasers then moved the court to rescind the contract, on the ground of mistake, and the broker proved that the purchasers had not informed him of the rent of 210/. and that he was ig- norant of the existence of it at the time he made his valu- ation. And the court ordered the purchase-money to be repaid, and rescinded the contract. Now it must be observed, that no rule of law was broken in upon by this decision. The parties did not sign any written agreement, and as the sale was under the order of the court, the court, as we have before seen (/>)> considers itself to have a greater power over the contract than it would have were the contract made between party and party. And indeed as the court assumes a power of rescinding the contract in favour of the owner, on equitable grounds, it is but reasonable that the same power should be exercised in favour of the purchaser. This, however, is a strong case, (a) Sir John Movshead v. Fre- Appendix, No; ?. derick, Ch. 20th Feb. 1805, MS. .(£) Supra p. 36. j 2 a s 116 Ot PAROL EVIDENCE* as it might be argued that the purchasers' only equity ua? their own negligence. It is quite clear, that the contract could not have been rescinded if it had been a sale by pri- vate contract, and the agreement had been correctly re- duced into writing. Where parties omit any provision in a deed, on the im- pression of its being illegal, and trust to each other's ho- nour, they must rely upon that, and cannot require the de- fect to be supplied by parol evidence, Thus in lord Irnham v. Child (;?) it appeared that lord Irnham treated with Child for sale of an annuity. Upon settling the terms, it was agreed that the annuity should be redeemable ; but both parties supposing that this appearing upon the face of the transaction, would make it usurious, it was agreed that the grant should not have in it a clause of redemption y and it was accordingly drawn and executed without such a clause. Lord Thurlow refused to supply the omission. A similar decision was made by Mr. justice JBuller, when sitting in Chancery, for the lord chancellor fo) j and two similar determinations were made by lord Kenyon, when master of the Rolls (/>). Upon these cases lord Eldon observes, that they went upon an indisputably clear principle, that the parties did not mean to insert in the agreement a provision for redemption^ («) 1 Bro. C. C. 92. ( p) Lord Portmore v. Morris, (0) Hare v. Shearwoud, 1 Ws. 2 Bro. C. C. 210, 1 Hen. Blackst. Jun. 2-11, 3 Bro. C. C. lGS ; see 663,664; Rosamond v. lord Mel- and consider Haynes v.Hare,lHen. sington, 3 Ves. Jun. ), or the contract is entered into by a trustee for (j) Sikes v. Lister, 5 Vin. Abr. v. Alleyn, Mosc. 262 • Atcherley 541, pi. 23 ; Baden v. earl of Pern- v. Vernon, 10 Mod. 518 ; Gibson broke, 2 Vern. 213 ; Bubo's case, v. lord Montfort, 1 Ves. 485. 2 Freem. 38 ; Smith v. Hibbard, (o) Davie v. Beardsham, 1 Cha. 2 Dick. 712 , Foley v. Percival, 4 Ca. 39, Nels. Cha. Rep. 76, 3 Cha. Bro. C. C. 41Q j and see Gilb. Lex Rep. 2 ; Greenhill v, Greenhill, 2 Praetor. 243. Vein. 679, PreC. Cha. 320 5 At- (i) Thompson y.Towne, -2 Vern. cherley v. Vernon, 10 Mod. 518 ; 319, 466. Robson v. Brown, Oct. 1740, S.P. j (/) See post, ch. 5. and see 9 Ves. Jun. 510. (m) Seton v. 'Slade, 7 Ves. Juru (p) Commissioner Trimuel's 26.5 ; and see 1 Ves. 220 j and 6 case, Mose, 265, cited 5 and see Ves. Jan. 352. Atcherley v. Vernon, 10 Mod.518 -, (») Daris's case, 3 Salk. 85; Gibson v. lord Montfort, lVes.485. Milntr v. Mills, Mosc (/ l23 ; Alleya him 122 OF THE CONSEQUENCES OF him (q), and the devisee will be entitled to have the estate paid for out of the personal estate of the purchaser (r). The rule, that an estate contracted for may be devised before it is conveyed, or surrendered to the purchaser, has now become a land-mark, and could not be shaken without endangering the titles to half the estates in the kingdom. The applicability of the rule to freehold estates has, I be- lieve, never been questioned, but in Ardesoife v T Bennet(V), where this point arose as to a copyhold estate, Sir Thomas Sewell decided the case on another ground, and appears to have avoided sanctioning the rule in question ; and in a manuscript note of this case by the name of Wilson v. Ben- nett, it is said the master of the Rolls was of opinion the copyhold estate did not pass by the will. This opinion was clearly extra-judicial, and cannot be deemed subversive of the numerous cases which have established the contrary doctrine; and, indeed, in a case before Sir Thomas Sewell, a few years after that of Ardesoife v. Bennet, he seems to allude to a devise 'of a copyhold estate contracted for, as sanctioned by practice (t). An estate contracted for, will pass by a general devise of all the lands purchased by the testator, although he may have purchased some estates which have been actually con- veyed to him, and would therefore of themselves satisfy the words of the will (u). On the other hand, it seems that estates recently purchased and actually conveyed, will pass with estates contracted for, (g)Greenhillv.GreenhiIUVern. (/) Floyd v. Aldridge, 1777, 5 ®79' East 137, cited; and see Vernon v. "(r) Milner v. Mills, Mose.123 ; Vernon, 7 East 8. Broome v. Monck, 10 Ves. Jun. (u) Atcherley v. Vernon, 10 597. Mod. 518, (.r) 2 Dick. 463. THE CONTRACT. } 23 by a general devise of all the manors, &c. for the purchase whereof the testator has already Contracted and agreed (x). But a devise of estates " for the purchase whereof the testa- tor has on I// contracted and agreed," would not pass estates actually conveyed to him before the will, unless perhaps they were recently purchased, and the testator had not con- tracted for any other estate. If a man, possessed of a term for years, contract for the purchase of the inheritance, the term, by construction of equity instantly attends the inheritance ; and therefore, by a devise of the estate subsequently to the contract, the fee- simple would pass, although not actually conveyed, and the term as attendant on it (?/). And if the purchaser had, previously to the purchase, made his will, by a general' bequest in which, the term would have passed, yet the legatee will not be entitled to it, although the bequest be not expressly revoked; because the term, by the construction of equity, attended the inheritance immediately on the purchase of the fee, and it must there- fore follow it in its devolution on the heir or devisee (z). It seems the same rule must prevail where the term is even spec'ijicalhj bequeathed ; for if the fee had been actually conveyed, the conveyance would have operated as a revoca- tion (a) ; and as the vendee is seised of the fee in contempla- tion of equity, although the conveyance be not executed, the same rules ought to be adhered to in each case. Although the estate may, subsequently to the will, be conveyed, or surrendered, either to the purchaser (/•), or to (*■) St. John v. bishop of Winton, {a) Galton v. Hancock, 2 Atk. 1 Cowp. 94. Lofft. 113, 349. S.C. 424, 427, 430. (y) Per Sir- Wm. Grant, in casu {b) Parsons v. Freeman, 3 Atk. Capel v. Girdler, Rolls, 16 May* 7^1, Amb. 11 6; and see 1 Ves. Jun. 1S04. MS.; 9 Ves. Jun. 509 3 255 ; 2 Ves. Jun. 429, 602; 6 Ves. Cooke v. Cooke, 2 Atk. 67. Jun. 220; 8 Ves. Jun. 127 > and (z) Capel v. Girdler, ubi sup. Prideux v. Gibbin, 2 Gha. Ca. 144. a trustee 124 OF THE CONSEQUENCES OF a trustee for himfc), yet that will not operate as a revoca- tion of his will (2). The legal estate will of course descend to (c) Watts v. lullarton, Dougl. ;i8, cited. (2) In Brydges v. Duchess of Chandos, 2 Ves. Jan. 429, lord Ross- lyn, in treating of this point, said, " Another case is supposed to arise a in which this court determines upon a principle of equity, it is not said directly against the rule of law, but without attending to what the law •would be : that is the case where an equitable estate is devised, and after the will the legal estate is taken, the court has said that does not revoke the will. It is difficult to state that, at this time of day, in a court of law, which could not look at the equitable interest, but looks only at the legal ; but as the legal interest is only a shadow, the justice of the case is very evident ; but it is a decision in conformity to the like case at law. The very case occurred at law in Rol. Abr. 6\6, pi. 3. Cestui que use, before the statute of uses, devises ; afterwards the feoffees made a feoffment of the land to the use of the devisor ; and after the sta- tute the devisor dies ; the land shall pass by the devise ; because, after the feoffment, the devisor had the same use which he had before. That is exactly the case of an equitable estate devised, and a conveyance taken, afterwards of the legal estate ; and this court was so far from determi- ning without considering what the rule of law would be, that here is the very point decided by a court of law." The doctrine in question so evidently depends on the rules of equity for its support, that it is difficult to conceive the principle upon which a court of law could make the decision referred to by lord Rosslyn. The case is thus stated in Roll : — " Si home aiant fejfees a son use devant lestatut de 2? //• 8. tut devise le terre al outer, & puis les feffles foul fejf-. ment del terre al use del devisor, & puis les'atut le devisor morust, le terre passera per le devise, ear apres le fejj'ment le devisor avoit mesmt i'use que il avoint devant." The case then appears to be this. The cestui que use made his will, and the feoffees afterwards made a feoffment of the lands to his use j that is, enfeoffed other persons to the use of him. This appears by the rea- son given for the decision, namely, " because after the feoffment the devisor had the same use which he had before." Now if the case had been as. lord Rosslyn supposed, the devisor would, before the feoffment, have been THE CONTRACT* 125 So the heir at law, who will in equity be deemed a mere trustee for the devisee; unless the devisee, thinking the estate been a mere cestui que use, entitled at law to neither jw in re, h'brjf& ad m ; when arter the feoffment he wonld have been actually clothed with the legal seisin of the estate. The case therefore seems only a decision, that, where a man devises an equitable estate, a transfer of the legal es- tate to other persons, in trust for him, is not a revocation of his will. And such is still the rule of law (Doe v. Pott, Dougl. 2d. edit. 710.) as well as of equity. Watts v. Fullarton, cited, Dougl. 7 1 8. It may however be objected, that the devisor did not die till after the statute of uses ; so that, admitting the force of the foregoing remarks, it still appears that the legal estate was, by the. operation of the Act, vested in'the devisor. To this it may be answered, that the statute was expressly passed to prevent alienation of estates by devise, although it declared that wills made before the statute, by persons who were or should be; dead before the 1st of May 1536, should not be invalidated by the Act. We must therefore presume that the devisor died before' s that time; other- wise the will would have been void by virtue of the Act itself, as was expressly decided in a case where cestui que use before the statute devi- sed the use; and then came the statute which transferred the use into possession ; and although the testator survived the statute of wills, yet the operation of the statute of uses was holden to be a revocation, bicauh the use was thereby gone. 1 Rol. Abr. 016. (R.) pi- 2. Tutbury v. Tr<5- valian, Dyer, 142, b. Indeed the statute of uses being mentioned in the case referred to by lord Rosslyn, shews that his lordship misconceived it ; as that statute could not have come in question, if the feoffment had been made to the devisor hiihself. Lord Hardwicke seems to' have construed the rase in Roll in the same manner as lord Rosslyn did (see Sparrow v. Hardcastie, 3 Atk. 798. Ambl. 221,), although he appears to have been struck with the reason givenfor the decision ; in explanation of which he is in Atkins stated to have said, « The use at law was the beneficial and profitable interest, the same as a trust in equity, and which remained in the same manner after the feoffment as before, and the feoffees there granted the dry legal estate to the devisor." In Ambler, his lordship is reported to have sau., " Thus 5 26 OF THE CONSEQUENCES OF estate did not pass by the will, permit the heir to take the estate, and acquiesce in this for a long while j in which case equity will not relieve him (d). But in analogy to the decisions uponlegal estates (e) it seems clear that a devise of a freehold estate contracted for, would be revoked by a subsequent conveyance to the usual uses to bar dower. If, however, it were stipulated in the contract that the estate should be conveyed to the purchaser in fee, (d) Davie v. Beardsham, 1 Cha. Nott v. Shirley, ibid. 604. n. ; and Ca. 39 ; and see Pigott v. Waller, see 2 Ves. Jun. 429, 600 5 6 Ves. jVes. Jun. 98. Jan. 219; 8 Ves. Jun. 115, 281 ; (e) See Tickner v. Tickner, 3 10 Ves. Jun. 249, 250*; see also' Atk. /42, cited ; Kenyon v. Sut- Luther v. Kidby, 3 P. Wras. 170, ton 2 Ves. Jun. GOO, cited ; and n. and observe the distinction. " Thus the law considers two interests in the land : the legal estate, and the use : now the use remain* the same at the making the devise, and at the death of the devisor ; and therefore accepting the grant of the- feoffees makes no alteration in it." Lord Hardwicke's attempt to reconcile what he conceived to be the decision in this case, with the reason given for it, evinces the impossibi- lity of making them consistent. According to his argument, the equi- table interest was not merged by its union with the legal estate, but still subsisted in the contemplation of law. In the case of Willet v. Sandford, 1 Ves. 1S6, lord Hardwicke class- ed the different interests in land into three kinds : First, the estate in the land itself ; the ancient common law fee. Secondly, the use; which was originally a creature of equity : but since the statute of uses, it draws the estate in land to it ; so that they are joined, and make one legal estate. Thirdly, the trust 3 which the common law takes no notice of, but which carries the beneficial interest and profits in this court, and is still a creature of equity, as the use was before the statute. This very judicious classification proves (what indeed could not be doubted,) that the true principles of this subject were very familiar to this great master of equily, and that he was led into a false argument by endeavouring to account for a principle winch did not exist. or THE CONTRACT. ' 12? or to such uses as he should appoint, there seems great reason to contend that a conveyance to uses, to bar dower, would not operate as a revocation of the will. Estates contracted for after the will, will not pass by it (j) -, but the heir ai law will be entitled to have them purchased for his own benefit, out of the personal estate of his ancestor (g), and that, although he unite in himself the three characters of vendor, heir, and executor (h). The estate will, however, be assets in the hands of the heir. So if the -urchaser die intestate, the heir will in like manner be entitled to have the estate purchased for him : and if his ancestor die before the conveyance is executed, the heir may devise, charge, or sell the estate, in the same mariner as the ancestor himself might have done (i). If the executor complete the purchase, and take the con- vevance in his own name, he will be a trustee for the heir or devisee (k). And if the assets cannot be got in, and the real representative pay for the estates out of his own pocket, he may afterwards call upon the personal estate to reimburse him (/). Any codicil executed according to the statute of frauds, will amount to a republication of a prior will of lands; and therefore, if a purchaser, previously to a contract, make a general devise of all his lands, and after the contract exe- (/)Langfordv. Pitt, 2 P. Wras. (/>) Coppin v. Coppin, Sel. Ciia. 629 j Alleyn v. Alleyn, Mose. -Ca. 2S, 2 P. Wms. 201. 62 j Potter v. Potter, 1 Ves. 43;]; (i) Landlord v. Pitt, 2 P Wms. and see 1 Atk. 573 ; White v. 62Q. White, 2 Dick. 522; Reg. Lib. B. (/) Alleyn v. Alleyn, Mose. 17/5,, fol. 650. 262. ( s ) Milne* v. Mills, Mose. 123; (/) See 10 Ves. Jan. 644, 6l5. and see 2 P. Wms. 632 ; 3 P. Wms. 224 ; Brooms y'. Monck, 10 Ves. Jun. 597. 128 OF THE CONSEQUENCES 01* cute a codicil, according to the statute of frauds ; unless ail intention appear not to affect it (;/?), the after-purchased es- tate will pass under the devise in the will, although legacies only are given by the codicil, and no notice is taken of the estate (n). And if a purchaser, previously to a contract, devise all the lands of which he may die seised, and make a provision for his heir at law (3), and afterwards die without repub- lishing (m) Lady Strathmore v. Bowes, 48(3 ; Pigott v. Wilier, 7 Ves.Jun. 7 Term Rep. 482. 98. («) Barnes v. Crowe, 1 Ves. Jun. (3) Suppose a provision to be what the heir at law would take as heir at law, and that consequently he need not claim under the will, would he in that case be bound to elect ? In the late case of Rich v. Cockell, 9 Ves. Jun. 369, the defendant's counsel insisted the heir could not be put to his election ; but Mr. Romilly, for the plaintiff, said, that it had often been said by high authority, though he could not state a decisions on the point, that where a man devises to his heir an estate, which the heir would have bv descent, if no will was made, and then devises to another person arf estate of which the heir is seised in his own right, he cannot take under the will, without giving effect to that devise out of the es.tate which is his own ; though he would take by descent, if there was no will. 1 f he chose to keep to his own estate, the court would give the disappointed devisee a compensation out of the other. The reason is that upon which all cases of election proceed ; the tacit con- dition inferred. Lord Eldon, in delivering judgment, said, as to the point of election, he did not recollect any case of an heir that formed an answer to the objection made for the defendant. But on the other hand there was principle in the answer that had been given; lor all election goes upon compensation. If by a will which gives A.'s estate to B., an estate is given to A., he may say he will keep his own estate ; the com- pensation, upon which the court goes, is the implied condition, of -which the other is to have the benefit j that whoever takes that estate ia consequence of the election, shall take it cum onere. An estate being o-iven to a person, who will not accept it upon the terms of giving up his TtiE CONTRACT 129 Hshihg his will, and the after-purchased lands devolve on the heir at law ; it might perhaps be contended, that equity- would put the heir to his election, and not permit him to take both the descended estate, and the provision made for him by the will. In purchasing, therefore, of an heir at law who claims an estate conveyed to his ancestor after the date of his will, the his own estate, the question is, whether he shall take it as heir, because it is against conscience, that he shall by his legal title disappoint that dis- position. Upon that point, his lordship added, he should reserve his opi- nion ; and it ultimately became unnecessary to dacide thequestion. This important point frequently occurs in practice. From the case of Rich v. Cockell we may fairly conclude that the inclination of the court is strongly in favour of the disappointed devisee j and with the additional authority of the following case, in which the point appears to have been expressly decided, it may be laid down as clear, that in a case of this nature the heir at law will be put to his election. The case alluded to was this :— A. was seised of two acres, one in fee, the other in tail ; aad having two sons, he by his will devised the fee simple acre to his eldest son, who was issue in tail ; and he devised the tail acre to his youngest son, and died. The eldest son entered upon the tail acre ; whereupon the youngest brother brought his bill against his brother, that he might enjoy the tail acre devised to him, or else have an equivalent out of the fee acre 5 because his father plainly designed him something. Lord chancellor Cowper. This devise being designed as a provision for the younger son, the devise of the fee acre to the eldest son must be under- stood to be with a tack condition, that he shall suffer the younger son to enjoy quietly, or else, that the youngest son shall have an equivalent out of the fee acre • arid decreed the same accordingly. Anon. Gilb. Eq. Rep. 15. The case of White v. White, 2 Dick. 922, may perhaps be cited as an authority in opposition to the foregoing case ; but it seems impossible lo reconcile that case with the settled rules respecting electi. n, as the devisee and heir at law took a pecuniary legacy as well as a r al estate under the will. Indeed it does not seem clear to me that the de- fendant was not put to his election. See Reg. Lib. B. 1775; fol. 050— 65 3, , K purchaser 130 OF THE CONSEQUENCES OF purchaser should be satisfied of three points : viz. 1st, That the contract was not entered into by the testator previously to making his will. 2dly, That no codicil was afterwards executed by him, according to the statute of frauds, by which the lands, although not in contemplation, passed. And 3dly, If the will affects to pass all the estates of which the vendor might die seised, that the heir at law does not take any interest under the will. And here we may observe, that if a man make a disposi- tion by will of all his copyhold estates generally, and after- wards purchase other copyhold estates, and surrender them to the uses declared by his will (o), or even to the uses de- clared by his will of and concerning the same (/;), the after- purchased estates will pass under the general devise, although the will was not republished. Therefore where a copyhold estate has been surrendered to the use of a will, and the purchaser is buying of the heir at law, who claims in the absence of any devise, subsequently to the purchase by his ancestor, he must be satisfied that the estate did not pass under any general devise in a will prior to the purchase. From the time of the contract, the purchaser, and not the vendor, being owner of the estate in equity, it follows, that if a man devise his estate, and afterwards contract for the sale of it, the devise will thereby be revoked in equity {q). And even where an estate was by a will directed to be sold, and the money to be paid to certain persons, and the testator himself afterwards sold the estate, it was held, that the legatees were not entitled to the money produced by the sale (r). (o) Heylyn v. Heylyn, Cowp. (q) Ryder v. Wager, and Cotter 130. v. Layer, 2 P.Wms. 332, 623 j and ( p) Attorney General v. Vigor, 8 see 2 Ves. Jun. 436. Ves. Jun. 256 ; see Smart v. Pru- (r) Arnald v. Arnald, 1 Bro.C-C. jean, 6 Ves. Jun. 555. 401, 2 Dick. 645. if* THE CONTRACT. 131 If, however, an agreement be such as a court of equity will not carry into execution against the representatives, there seems ground to contend that it will not revoke the will, because the agreement can operate as a revocation in equity only ; and therefore if equity will not sustain the agreement in respect of which the will is held to be revoked, there appears to be no solid reason why the devise of the estate should not take effect. In Onions v. Tyrer (s) the lord chancellor held, that a second will devising lands to the same person as the former, and revoking all former wills, but not duly executed, should never revoke the former will, so as to let in the heir ; nay, if by the latter ivill the premises in question had been given to a third person, it should never have let in the heir, in regard the meaning of the second ivill was to give the second devisee what it had taken from the first, without any consideration had to the heir ; and if the second devisee took nothing, the first would have lost nothing. These principles ought perhaps to be referred to the words of the statute of frauds {t) ; but still as an agreement is only an equitable revocation, the same reasoning applies to the case before us. Where a man contracts for the sale of his estate he intends to increase his personal estate, and not to benefit his heir j and if the court will not carry the agreement into a specific execution for the benefit of the personal estate, " the personal estate takes nothing, and the devisee can have lost nothing." In the two cases (u) in which it has been holden, that an agreement will revoke a will in equity, it makes a term of the proposition, that the agreement amount in equity to a conveyance. And it should seem that lord Eldon is of this (s) I P. Wm». 345 ; see ? Vei. («) Ryder v. Wager, and Cotter Jun. 379. ?• La} r er, ttbi sup. (0 See Pow. Dey. 6V«. k 3 opinion, M** 2 OF THE CONSEQUENCES OF opinion, for in Knollys v. Alcock^ ), where it was contended that an agreement in equity is a revocation only where it can be performed, his lordship did not deny the rule as stated, but shewed, that the agreement m that case was such as equity would perform ( />) (4). Whether an abandonment of an agreement will nrevent the contract operating as a revocation of a prior will, seems to be a more doubtful point. In the case of Knollys v. Al- cock, before referred to, it was ai'jo contended, that an a^rree- 7 o ment which was abandoned, was not a revocation in equity ; but lord Eldon said, he did not admit that if there is an agreement in equity which at the moment is a completely operative revocation, a subsequent abandonment will of necessity set up the will. His lordship added, that he did not say whether it would be so or not, fqr he was of opinion he could not raise the question in the case before him, as the agreement was never abandoned. In the first case in the books (2), iii which the question arose, whether a covenant to convey an estate devised, should operate at law ae a revo- cation of the will, it was holden, that such a covenant with- out more, was not any revocation of the will ; because per- haps the devisor's intention could alter before performance of the covenant. At law, therefore, a contract dees not (.v) 7 Ves. Jun. 55S ; and see (y) See Savage v. Taylor, Far Mayer v. Gowland, 2 Did;. 503 • 23*. see also 2 Ves. Jun. 436. (z) Monntaguc v. Jeffries, 1 Re-; Abr. 0'l5, (P) pi. 3. (4) Note. It appears by an abstract of the title to the estate, in re- spect of which the litigation in Savage v. Taylor was commenced, that the heir at law of the testator in his answer to the bill of the devisee insisted, that if the will was originally valid, yet it was revoked by the articles, for sale, although the court ought not to carry them into execution. revoke TH£ CONTRACT. 133 revoke the will ; but a conveyance in pursuance of the con- tract would of course operate as a revocation, or to speak more technically, as an ademption. Now it may be contended, that the same rule should prevail in equity, and that a con- tract for sale ought not to affect the validity of a prior will, until it is carried into execution, or which inequity is tanta- mount to a conveyance, until the court decree a specific performance of it. While an agreement rests injt£ri,a.iid the validity of it has not been acknowledged by a decree, it seems equitable that the owner should be at liberty, with the concurrence of the other party, to alter his mind. Indeed in the absence of intention, there seems no weighty distinc- tion between an agreement which has been abandoned, and an agreement which equity will not perform. If a man make a second will without expressly revoking the first, and afterwards cancel the second will, the Inst will is revived, the second will being considered only intentional (a) ; and al- though it is true that a will is ambulatory till the death of the testator, yet the same ground may be taken in support of a will impliedly revoked by an agreement afterwards aban- doned. Why should not a mere agreement be deemed am- bulatory till it is completed, when it is clear that the parties may rescind the agreement, and the estate of the devisor is not altered so as to effect a revocation at law ? When an estate is contracted to be sold, it is in equity considered as converted into personalty from the time of the contract (o) ; and this notional conversion . takes place, although (). Thus in a case before lord Kenyon, at the Rolls (c), Whitmore demised to Douglas for seven years, with a cove- nant, that if the tenant, after the 29th of September, 1761, and before the 29th of September, 1765, should choose to purchase the inheritance for 3000/. Whitmore would con- vey to him. In 1761, before any election, Whitmore died, and left all his real estate to Bennet in fee, and all his per- sonal estate to Bennett and his sister equally. In 1765, before the time mentioned, Waller, who purchased the lease and benefit of the agreement from Douglas, called on Ben- nett to convey for 3000/. ; which conveyance was made in consideration of that sum. Afterwards the sister and her husband filed a bill against the representative of Bennett, claiming a moiety of the 3000/. and interest, and it was decreed accordingly. The rule established by these decisions must frequently subvert the vendor's intention ; to prevent which, where a vendor intends the estate, as between his real and personal representatives, to be deemed real estate, a declaration to that effect should be inserted in the agreement for sale. Another case in which disputes often arise between the real and personal representatives, is, where a person pur- chases an equity of redemption j the real representative mostly claiming to have the mortgage money paid off out of (3) Whitmore's case, 7 Ves. Jun. worth, 7 Ves. Jun. 425. 436, cjted ; and Ripley y. Water- (c) Whitmore's case, ubi sup. tator's intention as to the payment of legacies charged upon the estate by his will, appears not to be warranted by either principle or authority. The case of Comer v. Walkley, 2 Dick. 649, » 8 misreported. See post, ch. Q. the THE CONTRACT. 1^5 the personal estate, and the personal representative resisting the demand. If the mortgage money do not form part of the consideration money for the estate, and the purchase* do not, by communication with the mortgagee, clearly tafe the mortgage debt on himself, as between his heir ana e cutor, it will be considered a charge on the land ; the mer covenanting with the mortgagor to pay the debt, will not make it his personal debt; and consequently his personal estate, as between the heir and executor, will only be the auxiliary fund for payment of it (d). In cases of this nature equity always adverts to the inten- tion of the purchaser, and disputes on this subject may therefore be prevented, by the insertion of a short declara- tioninthe purchase deed, whether the personal estate of the purchaser shall or shall not, as between his heir and executor, be the primary fund for payment of the mortgage money, . But (to return to the point under consideration) it upon the death of a vendor a title cannot be made, or the court should think the contract ought not to be executed, in such case there is no conversion of real estate into personal m consideration of the court, upon which the right of the executor on the one hand, and of the heir or devisee on the other, depends ; and therefore the estate will go to the heir at law of the vendor in the same manner as if no contract had been entered into K e), and the heir or devisee of the purchaser will not be entitled to the money agreed to be (jQ On this point see Evelyn v. Ward, 5 Ves. Jun. Q 7 0, and 7 Ves. Evelyn, 2 P.Wms. 65Q; and the Jun. 332, cases b. Mr. Cox's note ; to which (0 Ucon v. Martin* 3 Atk. , add, Hamilton v. Worlfey, 2 Ves. Attorney- General v. Day, 1 Ves. Jun. 62 ; Woods v. Huntingford, 3 213; Buckmaster v. Harrop, 7 Ves. Ves. Jun. 123 ; Buller v. Buller, 5 Jun. 341 j and see 8 Ves. Jun, 2 7 4. Ves. Jun. 517 5 and Waring v. .^ K. TP * 136 OF THE CONSEQUENCES OF paid for the lands (/), or to have any other estate bought for him. The court cannot speculate upon what the de- ceased party would or would not 'have done ; but, in these cases, the inquiry must be, whether at his death a contract existed, by which he was bound, and which he would be compelled to perform. That alone can give the heir of the purchaser a right to call for the personal estate to be applied, or to the personal representative of the vendor, a right to call upon his heir. The question must be the same, whether a purchase}" or a '~ale is insisted on. Was the ancestor himself bound ? Was there such an agree- ment as converts the real estate into personal, or the per- sonal estate into real? (g) {$) But if an estate directed to be (/) Green v. Smith, 1 Atk. («) Per Sir Win. Grant, 7 Yes, 573. Jan. 344?, 345. (5) Fide supra, p. 85, Note in Potter v. Totter-, 1 Ves 43 S, a bill was. filed to compel execution of the parol agreement in the testator's lite- time ; his agent gave a note for payment of part of the purchase-money, and let the estate as he pleased. And the master of the Rolls expressly said, that the agreement was so far carried into execution, even before the will, as to supply the want of writing. It seems material to observe this, as the case has bten thought not quite reconcileable to the opinions, of lord Kardwicke and the present master of the Rolls on this subject. It is said, that the only acts amounting to a part-performance were done by the testator, and that the cases, particularly that of Buckmaster v. Har- i.op, turn evidently upon the doctrine, that the testator ought to have, been bound by acts of part-performance on tire side of the other con- tracting party, for the estate to be converted so as to transmit a title to the party claiming by representation under the contract, to call for a spe- cific performance. Robertson stat. of frauds, p 145. Now, even accord- ing 'o this construction of the case of Buckmaster v. Harrop, it seems clear that in Potter v. Potter, the contract ought to have been executed, for as the purchaser's agent let the estate as he pleased, the vendor must have delivered possession to him. BesjdesJ all the parties were probably bound THE CONTRACT. 137 be bought, but not actually contracted or, is not, or cannot be bought, yet the money must be lail out in other lands for the ^benefit of the devisee (hj. Aid where a testator intends that the devisee of the contracted estate shall have another estate of equal value, iff case a ^ood title cannot be made to the one contracted for, an express declaration to that effect should be inserted in the will. By this time we must have observed, that the foregoing rules, as to the conversion of the estate, apply to those cases only where a court of equity will decree a specific perform- ance 5 for if equity will not interfere, and the vendee be left to his remedy at law, the rules of law, and not those of equity, must then prevail, and consequently neither the vendor nor his heir would be considered as a trustee for the purchaser, but would only be subject to an action for breach, of contract. The preceding observations lead us to inquire, in what cases a court of equity will decree a specific performance ; which, for the purposes of this treatise, may be done under two heads. First, with respect to the vendor. Secondly, with respect to the agreement itself. (/.) Wfaittaker v. Whittaker, 4 369 5 Broome v. Monck, 10 Ves. Era. C C. 31 ; and see 2 Atk. Jan. 507- bound by the bill filed in the testator's life-time. It may be further observed, that if a testator has done any act in part- performance of a f*rol agreement prejudicial to the vendor, it seems clear, that the agree- ment must be executed in favour of the vender, and consequently of the representative,, although the vendor himself did not do any act in part- performance, First 138 OF "HE CONSEQUENCES OF First then, if a nan seised in fee simple, or par autcr vie (a), contract for :he .ale of his estate, and die before the conveyance is executed, his heir at law will be decreed to perforin the agreement in specie, although he covenanted for himself only, and not for his heirs (k). But, :f the heir a: law be an infant, it appears by some authorities (/) that he wili not be deemed a trustee for the purchaser within the 7 Ann, c. 19 ; because, it is said, the Act does not extend to trusts raised by the construction of equity, and consequently no conveyance can be obtained until the infant attain twenty-one. On examination of the authorities, it will, however, ap- pear, that the provisions of the Act have been extended to a much more objectionable case, and that this construction of the Act owes its origin rather to inadvertence than principle. In the last case in which this point arose (ot), a man devised his estate, and afterwards contracted for the sale of it, but died -before the contract was carried into execution, leaving an infant heir at law ; and, accord ing to the report, lord Thurlow, upon consideration, declared the infant was a trustee within the Act of Ann, and directed him to convey to the purchaser, the will of the vendor not having been proved and established against the heir at law ; which, it appears from the original papers in this cause, was owing to the inattention of the solicitor who attended the execudon of the commission. (i) Stephens v. Baily, 2 Freem. Abr. £41, pi. 28 ; Goodwin v. Lis- 199, cited : Nels. Cha. Rep. 106, ter, 3 P. Wms. 387; S. C. MS. ; reported ; see Anon. 2 Freem. 155. Hawkins v. Obeen, 2 Ves. 559 b {k) Gell v. Vermedum, 2 Freem. Fearne's Posthuma, 236. ipp, (m) Smith v. Hibbard, 2 Dick. (/) See ex parte Vernon, 2 P. 730. Wms. 549 ; Sikes v. Lister, 5 Vin, This THE CONTRACT. 139 This case, as reported, is a direct authority that an infant heir at law, who by construction of equity is a trustee for a purchaser, is also a trustee within the statute of Ann. The decision being of great importance, and the accuracy of the book in which it is reported being very questionable, I traced the cause in the register's book, and have been favoured with a perusal of the original papers in the cause. In the copy of the decree in this case, and in the decree as entered in the register's book, it is observable, that no notice is taken of the infant ; but it merely contains the usual direction, w that all proper parties, as the master shall direct, do join in conveying, &c." It appears, however, by the register's book, that upon motion the decree was after- wards varied, by omitting the direction, " that Smith as heir at law should convey, and that all other necessary parties should also convey," and by inserting the usual di- rection, " that all necessary and proper parties, as the master shall direct, do convey :" which proves that the decree is correctly stated in Dickens. I have not been able to learn whether lord Thurlow altered his opinion, or upon what ground the decree was varied ; but it seems to have been occasioned by the impossi- bility of obtaining a conveyance from the heir at law, who went to the East Indies very young, and had not been since heardof. The conveyance was not executed till many years after the decree, when the heir at law, if he was alive, must have been between 30 and 40 years of age ; but he was supposed to be dead, and another person joined in the conveyance, as the heir at law of the vendor. The presumption therefore, is, that lord Thurlow conti- nued of the same opinion, but varied the decree, for the convenience of the parties ; and it is to be hoped that his lordship's 140 OF THE CONSEQUENCES OF lordship's decision will be followed in future cases. For, notwithstanding lord Talbot's doubt (>/), it has been decided that an infant may convey under the statute of Ann, in pursuance of a decree of the court (o). And if the court were, in cases of this nature, to require a bill to be filed, the interest of the infant would be before the court, and could be taken care of. If, on the contrary, lord Thurlow's deci- sion be not attended to, the most serious inconvenience must frequently ensue, as the purchaser would be at liberty to rescind the contract. An agreement by a man seised in tail is, of course, bind- ing on himself, but cannot be enforced against the issue in tail, if no fine qr recovery was levied or suffered ; although the ancestor covenanted for that purpose (p% and received part,or even the whole of the purchase-money, and a de- cree was made against him to levy a fine, or suffer a recovery j and he died in contempt, and in prison, for not obeying the decree (q) : the ground of which determinations is, that the issue in tail claim per formam 'iioni, from the creator or author of the estate tail ; and therefore, though in the power of tenant in tail by a particular conveyance, that not being done, the court cannot take away the right they derive, not from the tenant in tail, but from the author of the estate tail(r\ (n) Goodwin v. Lister, 3 P.Wms. which have overruled the dlcinm m 387 i S.C. MS. Hill v. Can-, 1 Cha. Ca. 2Q-t. (a) Oneby v.Price, Fearne'sPost (?) Powell v. Powell Prec. Cha. 239; a^ Hawkins v. Obeen, 2 2/8 ; Weal v. Lower, 2 Vern. 30(2, Ves. 559. cited ; Sangan v. Williams, Gilb. (/;) Cavendish v. Worsley, Hob. Eq. Rep. 104, eked j and see lVes, 203; Rossv. Ross, 1 Cha.Ca.17l ; 224. Saylev. Freeland, 2 VShtr. 350, ' (r) See 2 Ves. 634. Jenkins v. Keymes, 1 Lev. 237 ; A dis^ THE CONTRACT. . 14 * A distinction has, however, been taken, where the ancee. tor is only equitable tenant in tail ; and the court will in that case, it i/said, relieve against the issue (*).! because equi- table estates tail are mere creatures of the court, and no within the statute de donis ; and it certainly seems dear tha the court would compel a specific performance agamst equitable issue in tall, where a decree has been ma.e u he ancestor's lifetime. But as late authorities (0 have settled that an equitable estate tail in freeholds cannot be barredby a mere deed, but only by a fine or recovery ; it seems tha,. equity could not consider such issue to be bound by a mere agreement entered into by their ancestor. . The same observations seem to apply to legal and equi- table estates tail in copyholds, for a legal intail can certainly only be barred according to the custom of the manor ot which the copyhold estate is holden ; and perhaps the better opinion is, that the same steps must be taken to bar an equi- table estate tail in copyholds, as must be pursued in the case of a le-al intail. Lord Hardwicke, however, appears to have thought («) that a mere surrender was in every case sui- ficietf to bar an equitable estate in copyholds ; but the con- trary opinion is entertained by the profession, and appeanto be authorized by a casecited in several books from the papers (,) Norfffe v. Worsley, . Cha. C. C. 11 ; Bj.rm.b5r ,. Gr.ffin 3 Ca2s4;Saylev.Freehnd,2Ven t , Ves. jo, 288, and see f V«, om ■ and see 1 Pow. Contr. 126. Jun. 12. « CTv Sewe,',, 1 V. Wms. (,) >MM v. WrUoa, 3 A^ D1 Harvey v. Parker, 10 Vin. 815 , and see the judgment of lo.d Ata-268 pi. 6, affirmed in Dom. chancellor Apslcy, in C-rayrr.e v P,oc Khkhan v. Smith, Ambl. Grayme, , Walk. Cop. 180, and I 8 Radtord v. Wilson, 8 A,k. see P„w. Co,,., OB, see PuUe, 813 ', BotX ,. Alston, . Bro. v. lord Middleton. 9 Mod. 488. of *4« OF THE CONSEQUENCES OF Of the late Mr. Powell (#), in which it was held that a cove- nant by a tenant in tail in equity of a copyhold, in his mar- riage settlement, to surrender his copyholds to uses in strict settlement, was not of itself sufficient to dock the equitable intail; for if such an intail be created, a recovery in the court baron is necessary to dock it ; it being a rule, that the same steps must be taken to bar an equitable estate tail, as would be requisite to bar it, were it a legal estate tail (y). Indeed the power of tenants in tail, to bind their issue, ought to be the same, whether the estate be freehold or copyhold, and whether the intail be legal or equitable ; and the mode prescribed for barring equitable estates tail should not be taken into consideration. The analogy preserved between legal and equitable estates tail, and between limita- tions in freehold and copyhold estates ought to be adhered to in this instance. Where by the custom of a manor (and it is the custom of most manors) a tenant is complete master of his estate, independently of his wife, and can by his own act alone bar her free bench ; an agreement by him for sale of his estate will be enforced against the wife, if he die before it is carried into execution (z). But no agreement for sale of a freehold estate Would be carried into execution against a widow entitled to dower. This distinction is founded upon this ground ; that a hus- band has it in his power, during his life, to sell his copy- (x) Hale's case, Ch. llth. Dec. Raindle, 3 Ves. Jun. 256, which 1/64 ; and see Roe v. Lotfe, 1 over-ruled Musgrave v. Dashwood, Hen. Blackst. 446. 2 Vern. 45, 63 5 but qu. whether (y) And see 1 Watk. Copyh. that case is not distinguishable, as 181. the vendor was entitled for lift (s) Hinton v. Hinton, 2 Ves. only? €31, 639 j Ambl. 2/7 j Brown v. hold THE CONTRACT. 14S hold estates, and thereby bar his wife's expectancy ; but if a wife's right to dower once attaches on a freehold estate, no act of the husband's alone can divest it. Equity will enforce an agreement by a joint tenant for sale of his share against the survivor, if the articles amount to an equitable severance of the jointure (a) : and a cove- nant to sell, though it does not sever the joint tenancy at law, will in equity (7>). An agreement by a feme covert for sale of her estate, cannot be enforced either at law or in equity (c), unless the estate be settled to her separate use, so as to enable her to dispose of it as if she were sole ; nor will an agreement by her husband bind her (d). Of the incapacity of a married woman or her husband to bind her real estate, unless by fine or recovery, there is a striking instance in the year books in the reign of Edward the Fourth (e). A woman cestui que use and her husband joined in a sale of her estate ; the wife received the money, and she and her husband beg- ged her feoffee to convey the estate to the purchaser, which he accordingly did. The husband died, and then the wife filed a bill against the feoffee for a breach of trust. The cause was heard in the Exchequer Chamber, before the chancellor and the judges of both benches, who held, that the sale was in fact the sale of the husband ; the receipt of the money by the wife was immaterial, and the sale was void j that the trustee was answerable for the breach of trust ; and, as the purchaser knew he was buying a married woman's estate, that the wife might recover the estate from him. (a) Musgrave v. Dashwood, 2 (J) See Daniel v. Adams, Amb:. Vern. 45, 63. See 2 Ves. 634. 495 ; 1 Eq. Ca. Abr. 62, pi. 2, side (b) See 3 Ves.Jun.257 ; Frewen note, which correct the dictum in V. Relfe, 2 Bro. C.C. 220. Baker v. Child, 2 Vern. <5l. (c) Emery v. Wase, 5 Ves. Jun. («) /. E. IV, 14 b. 840. ft 144 OF THE CONSEQUENCES Of If, however, an husband agree to convey his wife's estate, he will, according to some cases, be compelled to perform the agreement in specie (f) ; because it has been said;) it is to be presumed, that the husband, where he cove- nants that his vim shall levy a fine, has first gained her consent for that purpose (g) ; but this does not seem to be the true ground, for although the wife swear by her answer that she never assented to the agreement, yet the husband will not be let off (h). The principle upon which the court proceeds, seems to be this, that if a person undertakes that another shall do a certain act, he is bound to procure him to perform it ; and, therefore, where a father covenanted that his son, who was then under age, should convey lands to a purchaser, he was decreed to procure the son to convey on his coming of age (2) ( I ). There have been instances of committing the husband to the Fleet, until the wife should convey the estate ; but if he should make it appear, that he could not prevail on his wife to join, it seems that he must of necessity be dischar- ged, upon placing the vendee in the same situation as if the agreement had never been executed (i), (/) Hall v. Hardy, 3 P. Wrris. (/>) Withers v. Pinchard, 7 Ves"! 197 5 Barringtonv. Horn, 2 Eq, Ca. Jan. 475, cited. Abr. 17, pi. 7 ; Morris v. Stephen- (/) Anon. 2 Cha, Ca. 53. son, 7 Ves. Jim. 47-1 ; see Wheeler (£) See note to Hall v. Hardy v. Newton, Prec. Cha, 16; Had- Outreadv. Round, 4 Vin. Abr.263, don's case, Toth. 205. pi. 4 ; 8 Ves.JVin.510 ; and fernery (g) Winter v. Devreux, 3 P. v. Wase, 5 Ves. Jan. 846: an&se* Wms. 190, n. B. Sedgwick v. Hafgravej 2 Ves. 5/. (6) And it is no plea to an action at law for breach of the agreement to say, that the third person has nothing to do with it, or no estate in it, for the defendant hath undertaken to procure it, and must at his peril. Staughton v. Havvley, M. 1 W. and M. Rot. 662, B. R. judgment in H. after. MS, la THE CONTRACT* 1 *^ In a late case (/) lord Eldon seemed of opinion, that if this alarming doctrine were perfectly res Integra, he should hesitate before he would hold the husband bound to pro- cure the wife to join. His lordship said, if a man choose* to contract for the estate of a married woman, of an estate subject to dower, he knows the property is hers altogether, or to a givfcn extent. The purchaser is bound to regard the policy of the [aW.j and what right has he to complain, if she who, according to law, cannot part with her pro- berty but by her own free will, takes advantage of the locus lunutentnr : and why is he not to take his chance of dama- ges against the husband ? And after shewing the absurdity Which must arise by adhering to the contrary doctrine, his lordship added, that there was difficulty enough to make him pause, before he should follow the two last author* ties • and he was not sure, whether it was not proper to have the judgment of the house of lords, to determine, which of the decisions on this point ought to bind us. And it now seems perfectly clear, that this jurisdiction is to be very sparingly exercised (7), and that equity will eagerly seize on any reasonable ground as a bar to the aid of the court {m). Indeed, in a late case (n) in the court of • Common Pleas, where an action was brought on a cove- nant, by a husband, and that he and his wife would levy a fine, and he could not procure her concurrence, the learned (/) Emery v. WaSe, 8 Vcs. Juri. Wa«e, uU sup, ; Daniel v. Adams, 505 Ambl. 4()5. (m) See Outread v. Round, 4 (a) Davis v. Jones, 1 New Rep. Yin. Abr. 202, ph 1 ; Emery v. 26/ i (7). Upon this expression lord Eldon observes, that certainly it is very satisfactory to be informed, that it is, and it is net to be done. 8 Ves, Jun, 5lQ. 146 OF THE CONSEQUENCE3 G>F chief justice said, that the covenant upon which the action wa> brought was such as the court of Chancery would not now enforce ; and he added, that nothing could be more absurd than to allow a married woman to be compelled to levy a fine through the fear of her husband being sued and thrown into jail, when the general principle of law is, that a mar- ried Woman shall uot be compelled to levy a fine. This observation of lord chief justice Mansfield must have con- siderable influence on this subject, although, as we have seen, it Is not settled, that equity will, in every case, refuse to compel the husband to procure his wife's concurrence. An agreement by a lunatic cannot of course be carried into a specilic execution; but the change of the condition of a person entering into an agreement by becoming luna- tic, will not alter the right of the parties j which will he the same as before, provided they can come at the remedy- As it the legal estate is vested in trustees, a court of equity will decree a specific performance ; and the act of God will not change the right of the parties : but if the legal estate be vested in the lunatic himself, that must prevent the re- medy in equity, and leave it at law (o) (8) ; unless the purchaser is satisfied with the enjoyment of the estate which a decree will give him, and chooses to encounter the incon- venience of leaving the Legal estate outstanding in the luna- tic, m which case a specific performance will be decreed in his favour (/;). If trustees, under a power of sale, make a legal contract lor sale of the estate, the contract binds the estate; and • (o) Owen v. Davics, l Y«fc. (p) Hall v. Warren, 9 Ves. Jun. 82. 605. (S) It is much to be regretted, that the late act of 43 Geo. III. c. /5, did not prowde for this case, by enabling the committee to convey, under the direction of the court, on payment of the purchase- money. though, THE CONTRACT. 147 though, by the deaths of parties, the power is extinguished, yet the contract must be executed by those who have got an interest by the extinguishment of the power ( small damages, and then it would be very hard to carry such ifai agreement imo execution in equity, when it would be greatly to the prejudice of the party against whom it should be decreed to be executed In a case where a man was entitled to a small estate under his father's will, given on condition that if he should sell it in 25 years half the pui-chas.e-money should go to his bro- ther; he agreed, in writing, to sell it, and afterwards re- fused to carry the sale Into execution, pretending to have been intoxicated at the time. A bill was brought against him to compel a specific performance. And lord liard- wicke held, that without the other circumstance, that hard- ship alone of losing half the purchase-money, if carried into execution, was sufficient to determine the discretion of the court not to interfere, but leave them to law (it). Suppres.su> vcrl , as well as suggestio falsi , is a ground to rescind an agreement, or at least not to carry it into ex- ecution (:r), and even an industrious concealment, during a treaty, of the necessary repair of a wall to protect the estate from a river, which was a considerable outgoing, has been deemed a sufficient. ground to withhold the aid of equity (//).: so has mere surprise on third persons at a sale by auction , as where the known agent of the seller bid for the estate on behalf of the purchaser, and other persons present thinking he was bidding as a puller on the part of the \ endor, wen deterred from bidding (•:.). (/) Per lord Hardwu fee, MS. : Kins., 2 Atk. a;i ; l Trea. Eq. cm see Pone v. Harris, Loftt 701 h. s. 8. cited, (v) Sh'nlev v. Straiten, 1 Ero. (u) Faine v. Brown, 2 Ves. C. C. 4!0. 30/ cited. («) Twining v. Morris, 2 Bro. (*•) See Baxter) v. Cooper, 3 Atk. C. C. 32'3 ; see 6 Ves. Jun. 338 ; 383 ; S. C. MS ; Howard v. Hop- 10 Ves. Jan. 305, 313, 308. If THE CONTRACT. **3 If an agent, employed to sell an estate, sells it La a man- ner not authorized by the authority given to him, a specific performance will not be decreed against the principal, al- though the estate be sold for a greater price than he re- quired fork K- At least it is clearly settled, that if an agent is empowered to sell an estate by public auction, a sale by private contract is not within his authority. For al- though the owner may have fixed the price, yet the estate anight have sold for more, at a public auction. But it an ao-ent is directed to sell an estate by private contract, and he dispose of it by public auction for a larger sum than the principal required, it still Seems open to contend that .the purchaser may enforce a specific performance of the .con- tract, unless some particular reason should occur to induce the court to refuse its aid, In Mortlock v. Bailer (/<), lord Eldon said, he should hesitate long, before he should state as a clear proposition that, where the title to a specific performance is founded m a gross breach of trust by an agent to his principal, a court pf equity would assist the plaintiff in tke purpose of availing himself of that, breach of trust; and whether the principle would not authorize the court to leave him to law, and not to let him come for a remedy beyond that, There were, Jlis lordship added, dicta enough well to authorize that, And where trustees for sale of an estate enter into a con- tract which would be deemed a breach of trust, equity will not only refuse to interfere in favour of the purchaser, bat will even, at the suit of the cesiuis que trust, restrain the trustees from executing the contract, and the purchaser will be left to his remedy at lav: (Y). (a) Daniel v. Adams, ArybV ('') l'">Vcs. Jun. 202 ; and see AQ5 ; et vide a dictum by lord tfie close ofithe judgment, Eldon in Coles v. Trecothick, 1 (0 Mortfqck v. Buller, 10 Ws. Smith's Jlcp. 24/. Jan. 2^2. J. 3 . « 150 OF THE CONSEQUENCES OF If a person entitled in default of execution of a power of sale contract to sell the estate, not as owner, but merely ~s the agent of the trustees, and the contract could not, under the circumstances, have been carried into execution against the trustees, it will not be enforced against the agent, al- though he himself become entitled to the estate before the decree ( Secondly, J54? OF THE CONSEQUENCES OF Secondly, Equity cannot contradict or overturn the grunds or principles of law (r) ; and therefore, in many cases it must be considered whether damages could be re- covered at law, and the court will be guided by the re- sult (.?). Thus agreements for sale of an estate have (as we have already seen) been decreed on mere letters which have passed between the parties, but not unless the whole terms of the agreement were therein speciiied ; and even this was going a great way. In the first case, therefore, in which even a trifling omission appeared in the letters, it was na- tural to pause before the performance of the agreement was decreed, and to ascertain whether damages could be re- covered at law: for the statute of frauds and perjuries must receive the same construction in a court of equity as in a court of law, unless in the case of fraud, £cc.when equity interposes and relieves against the abuse, or allays the rigour of the law. The case of the marquis of Normanby v. the duke of Devonshire, was, I believe, the first case in which this point occurred; and according to a manuscript note, it ap~ pears that lord Somers called in the two chief justices on the point, whether the party on the letters which had pass- ed could have recovered damages at law ? And as they were of opinion he could not, lord Somers dismissed the bill. So there are very few cases in which a court of equity can decree a performance of an agreement upon which there can be no action at law, according to tlie words of the ar- ticles, and the events that have happened (z). The inserting a proviso, in a contract for sale, that if (r) See 2 P.lVms. 753 ; Earl of Vera. 150. Bath v. Sherwin, 10 Mod. 1. (t Whitmel v. Parrel, 1 Ves. (s) See Hollis v. Edwards, 1 2J6\ either THE CONTRACT. 155 either party break the agreement, he shall pay a sum of money to the other, will only be considered in the nature ofa penalty 00; and consequently a specific performance will be decreed, in the same manner as it would have been in case no such proviso had been inserted. And although the defendant may wish to forfeit the penalty, yet a specific performance will be decreed (#). If an action is brought for the recovery of the penalty, to entitle the party bringing it to recover, he ought punc- tually, exactly, and literally, to have completed his part (>/> And it seems that if, for breach of an agreement, to which a penalty was annexed, either party recover damages at law beyond the penalty, equity will relieve against the verdict, on payment of the penalty only (z). If either the vendor or vendee refuse to perform the con- tract, the other may bring an action for breach of contract, or file a bill for a specific performance (r/). In all cases where a bill in equity is filed by a vendor for a specific performance, the defendant, the purchaser, may if he please, have a reference as to the title. The rule is founded upon this principle, that if, instead of bringing an action for damages for breach of contract, the plaintiff seek a specific performance, the defendant has a right, in con- sideration of the equitable relief which is sought, to have the title assured in a manner he otherwise could not. There- (u) Howard v. Hopkins, 2 Atk. (*) Shcnton v. Jordan. Fmnb. 371 132; but the reporter adds a quaere, (v) Hopson v. Trevor, 1 Str. for this seems an extraordinary 533, 2 P. Wins. 19 1. opinion. 0) Duke of St. Alban's v. Shore, (-0 Lewis v. Lord Lechmerc, 10 J 11. Blackst. 2/0. ^ d - - 503 ' fore, 156 OF TIJE CONSEQUENCES Of fore, the court never acts upon the fact, that a satisfactory abstract was delivered ; unless the party has clearly bound himself to accept the title upon the abstract ; but though the abstract is in the hands of the party who says he cannot object to it, yet he may insist upon a reference ; because, by the production of papers, which can be enforced, and by the examinations and enquiries which can be made, by virtue of the decree, the title may be examined in a man- ner it never could upon a mere abstract (/'). If the purchaser's defence to a bill for a specific perform? ance rests merely on the want of title in the vendor, he ought to depend on his answer, and not to file a cross bill tcj Jiave the agreement delivered up ; because the vendor can make no use of the contract if he has no title (V). And a purchaser should not make the stewards or receivers of the vendor parties to his bill for a specific performance ; for although, as we have already seen, the vendor is deemed a trustee for the purchaser, yet this rule does not extend to the agents of the vendor (//). If a purchaser has recourse to equity, and it appears that the vendor has, since the fling of the bill, sold the estate to another person, the court, it seems, will refer it to a master, to enquire what damage the purchaser has sustained ; and the sum which shall be found due, toge- ther with costs, will be directed to be paid to him (r). The usual decree, however, is either a specific performance, or an issue quantum fcmnificatus (/'). (b) Sfce lord Eickfn's judgment (e) Denton v. Stewart, 1 Ves, in Jenkins v. Hiles, 6 Ves. Jun. Jun. 3-Q, cited ; Keg. Lib. A. 653. ITS.*, fo\. 552, 71/ ; supra p. 73, (c) Hilton v. Barrow, 1 Ves. n Jun, 234. (/) See Fonbl. n. (b) to iTrea. (W) Macnamnra v. Williams] G Eq. Hi.3 ; and see Clhian v. Cooke, Ves. Jan. 143. J Schoale't and Lefroy's Rep; 25. It 157 THE CONTRACT. **■»' It may her, be observed, tlmt if an exception taken to a report, that a good title cannot be mad,, be over-ruled, the vendor should obtain an order for the eScepnon to stand over; as, if disallowed, it would appear upon record, that a fcbod title could not be made (g). _ "if the abstract be not delivered in time, or objections arise to the title, the vendee may bring an action ar law .or his deposit; in which case the vendor's remedy n he can iurist on th< contract being specifically performed; » to file a bill for a specific perfor.nance, and ah injunction to re- strain the proceedings at law ; and the vendor may file Ins bid for a performance » specie, although the vendee may have recovered his deposit at law. If a purchaser, upon a bill being filed for a specific per- formance, pay the purchase-money without putting in an answer and afterwards discover that a fraud was commit- ted in the sale, he is not precluded from bringing an action for damages, if he come recently after discovery or tne de- ception (A), r t, • Where a purchaser brings an action for recovery of his deposit, on account of a defect in the tide, and for dama- ge for the loss of his bargain, it is not sufficient to shew that the title has been deemed insufficient by conveyancers, but he must prove the title bad (/). If he succeed in proving the title bad, he must necessa- rily obtain a verdict for his deposit ; but he would only ob- tain nominal damages for the loss of hi* bargain (/>) ; be, vause, as was before observed, a purchaser is not entitled (o) See 1 Ve.. Jun. 56 7 . Cf> *!«*» *■ Th ff "' \ ) J.ndwine v. Slade, 2 Esp. Blackst. 10 7 6, and see 3 Bo, and Pull. lCv" i *ee ling s case Falm. Ca.572. (I) CamfieM v. Gilbert, 4 Esp. 364. £a*221. 1J8 OF THE CONSEQUENCES OF to any compensation for the fancied goodness of his bar- gain, which he may suppose he has lost. And even in a late case (/), where an auctioneer, who had advanced some money on an estate, sold it by auction after the authority from his principal had expired, and the principal refused to carry the sale into execution ; the court of Common Picas would not allow the purchaser any da- mages for the loss of his bargain, although it was proved that the estate was worth nearly twice the sum he gave for it. And in a case of this nature a purchaser is not entitled to any compensation, although he may be a loser by having sold out of the funds, which may have risen in the mean time, because he had a chance of gaining as well as losing by a fluctuation of the price (m). But a purchaser is entitled to interest on his deposit ; and if the residue of the purchase-money has been lying ready without interest being made by it, he is entitled to interest on that (m). And, according to the universal practice of the profession, which is warranted by some decided cases (o) he is entitled to the expenses incurred in investigating the title, &c. In the late case of Camheld v. Gilbert (/>), lord Ellenborough held, that the expenses of investigating the title could not be recovered under the general count for monev paid for the defendant's use ; but that at all events, if ami iking could be so recovered^ it should be on a special count, and framed according to the fact. Whether this could be so framed he would not say. This fell from his (/) Bratt v. Ellis, MS. Appen- (o) Flureau v. Thornhill, «&>«£. dix No. 8. Richards v. Barton, 1 Esp. Ca. (m) Flureau v. ThornhiH, 2 268 ; Bratt v. Ellis, Appendix, Blackst. 1078. No. 8. In) Flureau v. Thornhili, ubi suf. (/>) 4 Esp. Ca. 221. lordship THE CONTRACT. 159 lordship at nisi pr his, and he did not advert to the deci- sions or practice on the point, which it can scarcely be sup- posed he intended to over-rule. It only seems an authority that the expenses cannot be recovered without a special count, and it is now become usual to introduce a special count for recovery of the expenses ; although I am not aware that the point has come before the court since the case of Camfield v. Gilbert. Where the vendee has paid any part of the purchase-mo- ney, he may, as we have seen, affirm the agreement by bringing an action for non-performance of it ; or he may elect to disaffirm the agreement ah initio, by reason of the fraud, and bring an action for money had and received to his use (A). In this latter action, however, the plaintiff cannot reco- ver more than the money paid, although the estate has risen in value ; while, on the other hand, if it has experi- enced a diminution in value, he can only recover the da- mages he sustained by the estate riot being conveyed, that being the only money retained by the defendant against conscience; and therefore the plaintiff; eje equo et bono-, bu^ht not to recover any more (/}. Where a vendee brings' an action to recover his deposit and damages for breach of contract, he will be compelled to give the vendor a particular of every matter of fact which he means to rely upon at the trial, as having been a cause of his not being able to complete the purchase ; but he is not bound to state in his particular, any of the objections ia point of law arising upon the abstract (g). (A) See Farrer v. Nightingal, 1 1010, cited ; and Str. 406. 8. C. Esp. Ca. 639- fe* Collet v - Thomson ' 3 EoS * (i) Moses v. M'Favlan, 3 Eurr. and PulU34S. 1005 j Dutch v. Warren, iblL Tc 160 OF THE CONSEQUENCES OF To entitle a vendor to sustain an action for breach of Coft* tract, it has been said, he must shew what title he has ; it not being sufficient to plead that he has been always ready and willing, andfrequcntly offered to make a title to the estate i\- In a late case (h), however, where a vendor averred, that he was seised in fee, and made a good and satisfactory title to the purchaser of the estate, by the time specified in the conditions of sale, it was held sufficient, and that it vvas: not necessary for him to shew ho\x he deduced his title to the fee. And the court seemed of opinion, in opposition to the prior cases, that a vendor, unless under particular cir- cumstances', need not set out his title. Even if the title is set out, yet the execution of the title-deeds need not be proved^ as that is never required of a vendor (/). Where a contract is not completed merely on account of objections to the title, and the vendor thinks his title good, he seldom has recourse to equity, but brings an action at law, for the purchase-money. It becomes therefore material to consider, whether courts of law can take cognizance of equitable objections? to a title I because, if they cannot, a purchaser should in such cases file a bill in equity, as he? might otherwise be compelled to ac- cept a title, which, although good at law, might be invalid in equity. The action which a vendor must bring, bring founded upon the equitable circumstances of the case between the parties, it seems that a court of law may in such action take cognizance of equitable objections to a title ; and if there were any, ought not to permit the plaintiff to recover* Duke of St. Albans v. Shorer, (/•) Martin v. Smith, 2 Smith'? 1 H. Blackst. 2;o ; Philips r. Field- Rep- 543, G East 5.55. ing,2H. Black, 12;]; and socLux- (/) Thomson v. Miles, 1 Esp, |on v. Robinson, Dougl. 020. Ca. 1§4. H THE CONTRACT. 161 .'In a recent case (w), the court of B. R. would net permit the assignees of a bankrupt to recover money from his trus- tees, because the deed by which the trusts were created, although perhaps void at law, would probably be restored, and set up again by a court of equity. The court, I am in- formed, said they would not permit the assignees to recover, as it would be to no purpose. It would be merely driving the trustees to the other side of the hall, where they would most likely regain the property. This case seems in point ; the same observation would apply to a vendor endeavouring to obtain the purchase-money where there Were equitable objections .to his title : the court would naturally say, cat bono, when the purchaser can compel you to repay it in equity ? It seems doubtful whether a court of law will enter into equitable objections to a title, where the purchaser is plain- tiff'. I am aware of only two decisions on this point, and they are at variance : the one decided by lord Kenyon (w), holding that sitting in a court of law, the judges could not take notice of an equitable title ; and the other, which was before lord Alvanley (o), deciding that if a purchaser would be liable in equity, he is entitled to recover his deposit at law. The last case is certainly a very a strong authority, because no judge sitting in a court of law could be more averse than lord Alvanley was, to assume any equitable jurisdiction (p). It is, however, much to be regretted, that his lordship was not aware of the contrary decision by lord Kenyon. Before quitting this subject, it must be remarked, that in agreements for purchase, the covenants are construed ac- (m) Shaw v. Jakeman, 4 East, (o) Elliott v. Edwards, 3*^Bos. 201. and Pull. 181. (n) Allpass v. Watkins, 8 Term ( p) See Johnson v. Johnson, 3 Rep. 516. Bos. and Pull. 162. M cording 162 OF THE CONSEQUEKCES OF cording to the intent of the parties ; and they are therefore always considered dependent, where a contrary intention does not appear (^) (l). The old law was certainly in favour of the contrary doc- trine (r) ; but if, as lord Kenyon observed, the courts were to hold otherwise than they now do, the greatest injustice might be done ; for supposing, in the instance of a trader, who had entered into a contract for the sale of an estate, that between the making of the contract and the final execution of it, he were to become a bankrupt, the vendee might be in the situation of having had payment enforced from him, and yet be disabled from procuring the property for which he had paid (s). If, therefore, either a vendor or vendee wish to compel the other to observe a contract, he immediately makes his part of the agreement precedent ; for he cannot proceed against the other without an actual performance of the agree- ments on his part, or a tender and refusal. Thus a vendor cannot bring an action for the purchase- money,, without having executed the conveyance, or offered (q) As to where covenants are I H. Black. 2/0; Goodisson v. precedent, and where dependent, Nunn, 4 Term Rep. 76l ; Glnze- see Mr. Serjeant Williams's note brook v. Woodrow, 8 Term Rep. (4) to 1 Saund. 320. 366 ; and Heard v. Wadham, 1 (r) S Term Rep. 370, 371. East, 6lQ ; and see Amcourt v. (j) Duke of St.Alban's v. Shore, Elever, 2 Kel. B. R. 150. (1) In Morris v. Knight, T. 2 Jac. 2. B.R.. (here were mutual cove- nants : one agreed to pay a sum of money for a lease for years; the other covenanted that he should enter in twenty days, and that he would make a demise thereof, from, &e. and the plaintiff brought an action for non- payment of the money before the demise made, held not good, for the lease is the consideration : so judgment for the defendant. MS. THE CONTRACT; lGS to do so, Unless the purchaser has discharged him from so doing (0- . . And on the other hand, a purchaser cannot maintain an action for breach of contract, without having tendered a conveyance, and the purchase-money («.)• This last position has, however, been rendered doubtful by some recent dicta of the judges (.r), that it is incumbent on the iimdo? to prepare and tender a conveyance ; which, as a general rule, certainly seems to have prevailed when the simplicity of the common law reigned, and possession was the best evidence of title; but upon modifications of estates being introduced, which were unknown to the com- mon law, and which brought with them all the difficulties that surround modern titles, it became necessary to make an abstract of the numerous instruments relating to the title* for the purpose of submitting it to the purchaser's counsel ; and it then became UsUai for him to prepare the conveyance. This practice has continued, and is now the settled rule of the profession i the rule is, indeed* sometimes departed from, but this seldom happens except in the country, and then it alwavs arises from cdnsent, or express stipulation. In a late case (7/),- this point came distinctly before the court of Exchequer, and it was, in conformity to the present prac- tice of the profession, decided, that the purchaser, and not the vendor, is bound to prepare arid tender the conveyance. ' had in Webb v- Bettet (*} s the same rule was expressly (,) Jones v. Barkley, Doug. 084. Heard v. Wadham, 1 East, 02y J Philips v. Fielding, 2 H. Black.123- and Lord Eidon. in Seton v. Slate, («•) See I Esp. Ca. igi 5 & 7 Ves. Jun. 278. „„;; ITylliard. 1 Atk. 147- tj) Baster * L ™ S > * **"*. S (X ) Lord Rosslyn, in Pineke v.' Rep. Excheq. 01 ; and **M*rUa Curteis, 4 Bro. C.C, 332 5 Macdo- v. Smith, ft Smith's Rep. 543. nald, C B. in Growsock v. Smith, (?) 1 Lev. 44. 3 An-str. 877 ; Lord Kenyon, in u 8 ' recognised 164t OF THE CONSEQUENCES OF recognised by Windham J. and denied by no one. He S21C4 " that where a person is to execute a conveyance generally, there the counsel of the purchaser is intended to draw k, and then the purchaser ought to tender it." It is settled, that if a conveyance is to be prepared at the expense of a purchaser, he is bound to tender it (a). Now it is admitted on all hands, that the expense of the convey- ance must be borne by the purchaser, if there be no express stipulation to the contrary. Therefore, where there is no such stipulation, the purchaser is bound to tender the con- vevance. Upon the whole, notwithstanding the recent dicta to the contrary, as the precise point came before the court of Exche- quer, in Baxter v. Lewis, and their decision accords with the uniform practice of conveyancers, which has always met with the greatest attention in courts of justice (&), we may per- haps be warranted in saying, that the purchaser, and not the vendor, ought to prepare and tender the conveyance, If the purchaser is required by the agreement to prepare the conveyance, it is clear that the vendor may maintain an action, or file a bill, without tendering a conveyance (c) ; and therefore, to prevent all doubt on this point, it seems advisable to stipulate in the agreement or conditions of sale,, that the conveyance shall be prepared by, and at the expense of the purchaser. A purchaser must, however, prepare the conveyance, although it is merely declared that the Convey- ance shall be at his expense (d). But although a purchaser is expressly required to prepare a conveyance, yet if a bad title be produced, he may main- tain an action for recovery of his deposit, without tendering (a) Seward y. Willock, 5 East, {c) Hawkins v. Kemp, 3 East, 198. 410. (b) See 3 Atk. 208 ; 1 Term (). It is not sufficient to set aside an agreement in equity, to suggest weakness and indiscretion in one of the parties who has engaged in it ; for supposing it to be in fact a very hard and unconscionable bargain, if a person will enter into it with his eyes open, equity will not relieve him upon this footing only, unless he can shew fraud in the party contracting with him, or some undue means, made use of to draw him into such an agreement (<^). To set aside a conveyance, there mast be an inequality so strong, gross, and manifest, that it must be impossible to elate it tQ («) Anon. 1 Bro. C. C. 158, 6 and see the cases cited in n. (a), Ves. Jan. 24, cited ; but see 2 Atk. supra ; and see Murtlock v. Buller, 134. 10Ves.JuB.292. (0) Whorwood v. Simpson, 2 (^) See Dews v. Brancft, Sel. Vern. 180" j Emery v.Wase, 5 Ves. Cha. Ca. 7. Jan. S40\ 8 Ves. Jun. 505 ; Twi- (q) Per lord Hardwkke, Willis ning'f. Morris, 2 Bro. C. C. '326 ; v. Jernegan, 2 Atk, 251. a mau OF THE CONSIDERATION. 171 a man of common sense, without producing an exclamation at the inequality of it , Gold HeaVncote v. Paignon, 2 Bro. C. C. v. Morgan, and Furgason v. Matt- 167 and the cases there cited ; land, both before the house of Sp.atley v. Griffiths, 2 Bvo. C. C. lords, Gro. and Rud. of Law and 170 n- Low v. Barchard, 8 Ves. £q. p. 89, pi. h . Jun. 133 ; Underhill v. Horwood, («) Gordon v. Crawford, before 10 Ves. Jun. 209. the house of lords, Gro. and Rud. (,) Per lord Thurlow, in Gart- of Law and Eq. p. 92, fh l6 ' side v. Isherwood, 1 Bro. C.C. 558. (y) 9 Ves. Jan. 234 ; sed qu. and U) See Evans v. Lluellyn, 2 Bro. see the cases cited in tins chapter. Eldon 1*12 OF THE CONSIDERATION, Eldon appears to have been of opinion, that no such distino tion exists. His lordship said, that unless the inadequacy of price is such as shocks the conscience, and amounts in itself to conclusive and decisive evidence of fraud in the transac- tion, it is not itself a sufficient ground ./b?- refusing a specific performance. In treating of inadequacy of price we must be careful to distinguish the cases of reversionary interests, the rules respecting which, especially where an heir is the vendor, de- pend upon principles applicable oiily to themselves, and not easily definable (z). The heir of a family dealing for an expectancy in that family, shall be distinguished from ordi- nary cases, and an unconscionable bargain made with him, shall uot only be looked upon as oppressive in the particular instance, and therefore avoided, but as pernicious in prin- ciple, and therefore repressed (a). There are two powerful reasons why sales of reversions by heirs should should be discountenanced ; the one, that it opens a door to taking an undue advantage of an heir being in distressed and necessi- tous circumstances (/?), which may perhaps be deemed a private reason : the other is founded on public policy, in order to prevent an heir from shaking off his father's autho- rity, and feeding his extravagancies by disposing of the family estate (c). Every case of this nature must, however,, (k) SeeQVes.Jun. 246 ; 2 Pow. ton v. Griffith, 1 P. Wms. 310 \ Contr. 181 ; 3 Wooddes, 460, s. 7 ; Curwyn v. Milner, 3 P.Wms.2Q3, Gilb. Lex Pretor. 291 ; 1 Trea. Eq. n. (C) j Sir John Barnardiston r, c. 11. s. 12, and Mr. Fonblanque's Lingood, 2 Atk. 133 ; Baugh v. notes, ibid. Price, 1 Wils. 320 ; Gwynne v. (a) Per Lord Tim rlow, 1 Bro. Heaton, 1 Bro. C. C. 1. C. C. 10 ; see Nott v. Hill. 1 Vern. (b) SirJohn Barnardiston v. Lin- 167, 2 Vern. 17; Berney v. Pitt, good, 2 Atk. 133. l 2 Vern. 14j Earl of Ardgla*se v. (c) Cole v. Gibbons, 3 P. Wms. Muschamp, 1 Vern. 23/ ; Twisle- 290 j see Barnard, Cha. Rep. G. depend. OF THE CONSIDERATION. 173 depend on its own circumstances ; the courts profess not to lay down any particular rules, lest devices should be framed to evade them. The circumstance of the heir being unprovided for, will not prevail much in the purchaser's favour: the remoteness or uncertainty of the interest is not material, if the terms be unreasonable ; nor can much stress be laid upon the pur- chaser incurring the risk of the loss of his money, in case the heir die before he come into possession. A very anxious protection is also extended by equity to persons seiling reversionary interests, who are not heirs, although certainly the same reasons do not occur in support of it (d). But a bonaf.de sale of a reversionary estate for an ade* quate consideration, whether the vendor be an heir or not, cannot be set aside (e), unless fraud or impositionbe expressly- proved, or be implied from the inadequacy of the considera* tion, or other circumstances attending the sale (/). And if the bill be delayed for a great length of time (g), or the ven~ dor, with full notice of all the circumstances, confirm the pur-* chase (k), equity will not relieve against the sale, although the aid of the court could not originally have been withheld* Where a sale is set aside on account of the inadequacy of the consideration, it is upon the principle of redemption, and the conveyance will stand as a security for the principal and interest, and even costs {/"). (d) Wiseman v. Beake, 2 Vern. 301, 2 Vcs. 549 > sec Bau^h. y, 121 ; Cole v. Gibbons, 3 P. Wins. Price, lWils. 320. 290. Twisleton v. Griffith, 1 P. (f) Dews v. Brandt, see Ssl. Ca. Wms. 310; Gwynne v. Heaton, 1 Cha. 8 ; and see 1 Bro. C. C. 6. Bro. C. C. 1 ; but in Nicols v. (/) Nicols v. Gould. 2 Ves.422; Gould, 2Ves. 423, lord Hardwicke Gwynne v. Heaton, 1 Bro. C.C. 1. thought he could not set aside the (g) Moth. v. Atwood, 5. Ves. purchase without making the pur- Jun. 845. chaser pay costs ; and see Eaugh v. (h) Cole v. Gibbons, 3 P. Wms. Price, 1 Wils. 320. 2QQ ; Chesterfield v.Janssen,! Atk. It I'M OP THE CONSIDERATION. It must be remarked, that we have no certain rule by which the inadequacy of a consideration can be ascertained! Our law, indeed, hath in one instance (h) adopted the rule of the civil law ; by which no con-idcnu'on for an estate was deemed inadequate, which exceeded half the real value of the estate; and lord Nottingham wished the rule univer- sally prevailed in England (/). If it be agreed, that the price of an estate shall be fixed by a third person, and such person accordingly name the sum tc be paid for the estate, equity will compel a perform- ance in speck ; but if the referee do not act fairly, or the valuation be not carefully made, execution of the contract will not be compelled ; especially if there be any other tfround upon which the court can fasten, as a bar to its aid (m). By the civil law, also, a price was considered sufficiently certain, if it was to be fixed by a person named, and such' person accordingly fixed the sum : but it appears by the In- stitutes (»), " inter reteres satis abundeque hoc ditbitulvr., cunslaretnc vendition an non," A vendee, being equitable owner of the estate from the time of the contraet for sale, must pay the consideration for it, although the estate itself be destroyed between the agree* ment and the conveyance ; and, on the other hand, he will (k) l f Lie Duke, 177; « wf**t ("4 Emery v. Wase, 5 Ves. Qh, ig.. .Tun. 940, 8 \>s. Jim. 505 j Halt '(/) See Nott v. Hill, 2 Cha. Ca. v. Warren, Q Vcs. Jim. 605. 120; 4Tiea. Eq. 119 '* Grotius cie («) IN. xxiv. l. For the cases Jure Belli ac Pacis, 1. 2. e. 12. s. arising out of this rule,, v':de Vir> 12. ' niu?, 674. be' of the consideration lis be entitled to any benefit which may accrue to the estate in the interim (o). Nevertheless this doctrine, however it may seem to flow from the rules mentioned in the preceding chapter, has never been decided till lately. For in Stent v. Baily (p), the master of the Rolls said, " If I should buy a house, and before such time as by the articles I am to pay for the same, the house be burnt down by casualty of fire, I shall not in equity be bound for the house." So upon a sale of a leasehold for lives () 2 Bro. C. C. US ; ste 6 ted OF CONTRACTS. 187 ted with the rest, the purchaser will not be compelled to accept the lots to which a title can be made. Thus in Poole v. Shergold, before cited, lord Kenyon. said, if a purchase was made of a mansion-house in one lot and farms, &c. in others, and no title could be made to the lot containing the mansion-house, it would be a ground to rescind the whole contract. His lordship seems afterwards to have gone a step further, and to have been of opinion, that such a contract ought not in any case to be enforced against a purchaser. For sitting in a court of law (* he held, that the per- formance of a contract for the sale of some houses ought not to be compelled, as a title could not be made to all the houses bought ; and this, notwithstanding they were sold in separate lots. He said, when a party purchases several lots of this description at an auction, it must be taken as an entire contract ; that is> that the several lots are purchased with a view of making them a joint concern. The seller therefore shall not, in case of any defect in his title to one part, be allowed to abandon that part at his pleasure ; and to hold the purchaser to his bargain for the residue. From such a doctrine much injustice might result, as the part to which a seller could not make a title, might be so circum- stanced, that without it the other parts would be of little, perhaps of no value j or it might leave it in the power of the seller, or any other person who might come to the pos- session of such part, to deprive the purchaser of every de- cree of enjoyment or beneficial use of that part which he had purchased. He added, that a case under circumstan- ces precisely similar to the present, had been decided before him, when master of the Rolls. That, on that case co- ming before him, he had found that his predecessor there, sir Thomas Sewell, had ruled contrary to the doctrine he (i) Chambers v. Griffiths, I Esp. Ca. 140. was 18$ OF THE PARTIAL EXECUTION was now delivering ; but that he at the Rolls had over-ruled sir Thomas Sewell's determination, with the general ap- probation of the bar. And the court of Exchequer appear to have been of the same opinion as lord Kenyon. For in a case (k) where a person purchased several lots of an estate sold under a de- cree of the court, and the biddings were afterwards opened as to one lot ; the court were of opinion, that he had an option to open the biddings as to the rest of the lots. In a late case (/), in which most of the authorities on this head were cited, the cases of Chambers v. Griffiths, aad Boyer v. Blackwell, were not noticed ; but I learn that lord Eldon since mentioned from the bench, that he had met with the case of Chambers v, Griffiths ; and he desired it to be understood, that he was not of the same opinion as lord Kenyon, The rules laid down in Poole v. Shergold must there- fore still be considered the law of the court. It is indeed remarkable, that in Chambers v, Griffiths, lord Kenyon should have overlooked his decision in Poole v. Shergold ; more especially as it obviated the objections which he made to a partial execution of a contract for purchase of several lots of an estate. It is very clear from the report of Chambers v. Griffiths, that lord Kenyon intended the doctrine there laid down to apply as well to an action in a court of law, as to a suit in a court of equity. Lord Eldon, in dissenting from this case, must however, it is conceived, be understood only to mean, that equity may partially execute such a contract ; because, unless under very particular circumstances, a pur- chase of several lots of an estate must at law be deemed an entire contract ; and at law neither a vendor can, on an en- (k) Boycr v. Blackwell, 3 Anstr. (/) Drewc v. Hanson, 6 Vcs. 6*7. Jun. 676. tire OF CONTRACTS. 1*9 tire contract, recover part of the purchase-money, where he cannot make a title to the whole .estate sold; nor would a purchaser be suffered in a court of law to say, that he would retain all of which the title was good, and vacate the contract as to the rest : such questions being subjects only for a court of equity <». Where an estate is sold in one lot, eit her by private con- tract, or public sale, and the vendor has not a title to the whole estate ; yet if the part to which he has a title was the ^d^T^HrTcipal object, or equally his object with the part to which a title cannot be made, and is it self an inde- £ pendent subject, and not likely to be injured b y the other S part, equity will compel the purchaser to take it at a pro - portion ate price. Thus in a case (n) before sir Thomas Sewell, a man who had contracted for the purchase of a house and wharf, was compelled to take the house, although he could not obtain the wharf; as it appeared that his object was to carry on his business at the wharfs And in the late case of Drewe v, Hanson (o), which arose upon the sale of an estate, together with the valuable corn and hay tythes of the whole parish, it appeared, that the principal object of the purchaser was the corn tythe, and that half the hay tythe belonged to the vicar, and the other half was commuted for by a payment of 2/. per an- num, the nature of which did not appear. Upon the facts, as they then appeared, lord Eldon would not give judg- ment, but he seemed clearly of opinion, that the hay tythe, if not of great extent, or of such a nature as to prejudice the corn tythe, was a subject for compensation : but other- («) Johnson v. Johnson, 3 Bos. Jun. 270, cited, and Pull. 162. (0) 6 Yes, Jun. 675. («) See 6 Ves. Jun. 673 ; 7 Ves. wise 390 Of THE PARTIAL BXECUTlON wise not, as the purchaser would not get the thing which was the principal object of his contract. So in a case (/>) where a man had articled for the pur- chase of an estate tythe-free, but which afterwards appeared to be subject to tythes, lord Thurlow decreed a specific performance, although the purchaser proved, that his ob- ject was to buy an estate tythe-free* This however, to use lord Eldon's words (//), is a prodi- gious strong measure in a court of equity to say as a discreet exercise of its jurisdiction, that the contract shall be per- formed, the defendant swearing, and positively proving, that he would have had nothing to do with the estate if not tythe-free. And it seems clear that equity would not assist a vendor in cases of this nature, if he was aware of the de- fect in his title, at the time he entered into the contract for sale. If a purchaser, with notice of a defect in the title to a part of the estate which is complicated with the rest, or which is the principal object of his contract, take possession of the estate, and prevent the vendor making a title, he will be compelled to perform the contract, notwithstanding that he insisted upon the objection at the time he enter- ed (r). A deduction from the price will, however, be allowed him, although the situation of the land will not per- haps be taken into consideration. A purchaser will not be compelled to take an undivided part of the estate contracted for. Therefore if a man contract with tenants in common, for (p) Lord Stanhope's case, 6 Ves. (q) See 6 Ves. Jun. 679. Jun. 67S, cited ; Lowndes v.Lane, (r) See Calcraft v. Roebuck, I 6 Ves. Jun. 6J6, cited; bi\t see Ves. Jun, 221, Pinckev.Curties, cited, Hid. ; and see Roscv.Calland, 5 Ves. Jun. 186, the OF CONTRACTS. 1^1 the purchase of their estate, and one of them die, the sur- vivors cannot compel the purchaser to take their shares, unless he can obtain the share of the deceased. Nor will a purchaser be compelled to take a leasehold estate, for however long a term it may be holden, where he has contracted for a freehold (1 ). The late lord Alvanley expressed a clear opinion on this point (*) ; and it has since been expressly determined by the present master of the Rolls (0- Neither is a purchaser compellable to accept a copyhold estate in lieu of a freehold {u) (2). ( 5 ) See 4 Bro. C. C. 4Q7 ) 1 Vcs. (u) See Twining v. Mortice, 2 ^ n 226 • Bro- C. C. 326 ) and Sir Harry (t) Drewe v. Corp, 9 Ves. Jun. Hick v. Philips, Prec. Cl.a. 5?5. 309. (I) Although a purchaser cannot, and certainly ought not, to be com- pelled to take an estate held for a term of years, however long it may be, where he has contracted for a fee, yet a willing purchaser may safely ac- cept it; and by the following means may gain the fee. In the first place, the term should be assigned to a trustee, then a feoffment of the land. should be executed; and after the feoffment, the trustee to whom the term is assigned, should declare that he will stand possessed of the land* durino- the term, in trust to attend the inheritance according to the uses created by the feoffment. This mode will give the purchaser a good title acrain^t all persons except the lessor, or reversioner ; and as he can data no title till the expiration of the term, the title will be substantially good against all the world, if the term be a long one. At the same time it isevident, that there are certain privileges attached to a freehold estate, which could not be claimed by the purchaser in derogation cf the rights of the reversioner. Indeed this mode of making a title should onTy be resorted to, where itis not known who is the lessor, or reversioner. (2) In the case of Sir Harry Hick v. Philips, on account of the un- reasonable price at which the estate was sold, a specific performance wa* refused, although the vendor offered to procure an infranchisement of But 292 OF THE PARTIAL EXECUTION But if an estate is sold as copyhold, arid represented as equal in value to freehold, it seems the vendor will be com- pelled to perform the contract, although the estate prove to be actually freehold (w~). If a vendee proceed in the treaty for purchase, after he is acquainted with the nature of the tenure, and do not ob- ject to it, he will be bound to complete his contract, and cannot claim any compensation on account of the difference in value. Thus where an estate was sold as a freehold, with a lease- hold adjoining (x), and it turned out on examination that 62 acres were leasehold, and only 8 freehold ; yet as the purchaser proceeded in the treaty after he was in possession of this fact, and did not object to the nature of the pro- perty, he was held to have waved the objection. And if a purchaser do object to the tenure, yet if he pro- ceed in the treaty, it seems he will be compelled to take the estate, on being allowed a compensation {y). In the case of Wirdman v. Kent (z), upon a bill filed by- vendors for a specific performance, it appeared that part of the lands sold to the purchaser had been previously sold to one Pavey ; a specific performance was however decreed, and, as to the lands terriered to the defendant, but which had been sold to Pavey, that the plaintiffs should procure (w) Twining r. Morrice, 2 Bro. 10 Ves. Jun. 508. C. C. 326. (y) See Calcraft v. Roebuck, I (sc) Fordyce v. Ford, 4 Bro. C.C. Ves. Jun. 221. 494 ; and see 6 Ves. Jun. 6J0 ; (») 1 Bro. C. C. 14a- the copyholds j see 10 Mod. 504 j but this case cannot be considered at. an authority, except on the ground of the price bsing unreasonable, as equity will in ordinary cases grant the vendor time to procure the fee, See infra. Ca. 8» • Pavey OF CONTRACTS. 193 Pavey to release them to the defendant, or convey a like quantity of land, of equal value, to the defendant. The particular circumstances of this case do not appear in the report ; but it must be presumed, that the land sold to Pavey was not the object of the purchaser ; and that other land in the neighbourhood, of equal value, would suit him as well. Indeed in one report of this case (z), it is said the grievances complained of were disregarded as frivolous. To guard against the rules established by the foregoing decisions, an express declaration should be inserted in all agreements for purchase of estates, that if a title cannot be made to the whole estate, the purchaser shall not bejDound to perform the contract pro ianio y and a similar provision should be made where an estate is bought free from tythes, or with any other collateral benefit, which the purchaser may wish to securei Having considered in what cases a vendor may compel a performance pro tanto of an agreement, which he is unable wholly to perform ; we may now inquire in what instances a purchaser may insist upon a part performance of an agree- ment, which the vendor cannot execute in toto. And first, it seems that if an agreement would be in part executed in favour of a vendor, there is much greater rea- son for affording the aid of the court, at the suit of the purchaser, where he is desirous of taking the paitto^ whjch a title can be made. And a purchaser may,- in some cases,' insist upon having the part of an estate to which a title is produced, although the vendor could not compel him to purchase it. Thus we have seen that, if tenants in common contract for the sale of their estate, and one of them die, the survi- (z) 2 Dick. 594. > .0 vors 19* OF THE PARTIAL EXECUTION OF CONTRACTS. vors cannot compel the purchaser to take their shares, un- less he can obtain the shares of the deceased. But the con- verse of this proposition does not hold ; for it seems that the purchaser may compel the survivors to convey their shares, although the contract cannot be executed against the heir of the deceased (a). If a man, having partial interests in an estate, chuses to enter into a contract, representing it, and agreeing to sell it, as his own, it is not competent to him afterwards to say, though he has valuable interests, he has not the entirety ; and therefore the purchaser shall not have the benefit of the contract. For the person contracting under these circum- stances is bound by the assertion in his contract ; and if the vendee chuses to take as much as he can have, he has a right to that, and an abatement (Z>). But it has been determined by lord Redesdale, that where, at the time of the contract, the purchaser is fully aware that the vendor cannot execute the agreement, and consequently cannot enforce the performance of it ; there the agreement must be presumed to have been exe- cuted under a mistake, and the purchaser cannot insist upon a performance as to the interest to which the vendor may be actually entitled (c). If, however, in a case of this nature, the purchaser, on the faith of the agreement, put himself in a situation from which he cannot extricate himself, and is therefore willing to forego a part of his agreement, that is a circumstance to induce a court of equity to give relief. Thus, in a case be- fore lord Thurlow, the incumbent of a living had, with (a) Attorney- General' v. Cower, (c) Lavrerson V. Butler, l 1 Ves. 218. Schoale's and Lefroy's Rep. 13; (t>) Per lord Eldon, 10 Ves. Jun. see Mortlock v. Buller, 10 Ves. 315,310. Jun. 292. full bf DEFECTS IN THE QUALITY, &C. 19* full knowledge of the title, contracted with the tenant in tail, in remainder after a life estate for the purchase of the advowson, and on the faith of that agreement had built a much better house than he would otherwise have done ; the tenant for life would not join in suffering a recovery, and consequently a good title could not be made. Lord Thur- low held, that as the purchaser had, upon the faith of the contract, built a good house on the glebe, he ought to have the utmost the vendor could give him ; and therefore di- rected the vendor to convey a base fee, by levying a fine with a covenant to suffer a recovery whenever he should be enabled to do so by the death of the tenant for life (J). If a lease has been granted by the vendor of the estate Sold, which is void by force of a statute, the court will not, on the request of the purchaser, consider the lease as valid,' and allow him a compensation in respect of it (e). With respect to defects in the quality of the estate(f) : —-•In most cases the rule a caveat emptor' applies, and therefore, although there be defects in the estate, yet, if they are patent, the purchaser can have no relief. Thus, where a meadow was sold without any notice of a footway round it, and also one across it, which of course lessened its value ; lord Rosslyn decreed a specific perform- ance with costs, as he could not^he said, help the purchaser who did not choose to inquire (g). It tvas not a latent de- fect. (d) Lord Bolingbroke's case, (/) See the Introductory Chap- cited 1 Schoale's and Lefroy's Rep, ter. 19, n- (a). (g) Oldfield v. Round, 5 Vcs„- (e) Morris v. Preston, 7 Ves. Jun. 508. jun. 547. o 2 And: 196 OF DEFECTS IN THE QUALITY And here a case QC) may be introduced where the sub- ject of the contract was a house on the north side of the River Thames, supposed to be in the county of Essex, but which turned out to be in Kent ; a small part of which county happens to be on the other side of the river. The purchaser was told he would be made a churchwarden of Greenwich, when his object was to be a freeholder of Essex -, yet he was compelled to take the house. This decision, however, seems to be opposed by a case before lord Talbot. An agreement was entered into for the purchase of a house for a coffee-house. It was found that a chimney could not be made convenient for a coffee- house ; but nevertheless, the vendor filed a bill against the purchaser, to compel him to perform the agreement. Lord Talbot dismissed the bill, merely because the tenant would be obliged to take it for a purpose he did not want (i). In a case before the present master of the Rolls (/■), where an estate was described as being within a ring fence ; it appeared, that the estate was intersected by other lands, and did not answer the description, but that the purchaser knew the situation of the estate : his honor (after express- ing a doubt whether such an objection was a subject of compensation, as it was not certain that a precise pecuniary value could be set upon the difference between a farm com- pact in a ring fence, and one scattered and dispersed with other lands,) said, that the purchaser was clearly excluded from insisting upon that as an objection to complete the contract. He saw the farm before he purchased : he had lived in the neighbourhood all his life. This variance, was the object of sense ; he must have known, whether the (h) Shirley v. Davies, in the Ex- (/) Dyer v. Hargrave, 10 Ves. dbequer, 6 Ves. Jun. 078, cited. Jun. 505. (i) See 1 Ves. 30/. , farm OF. THE ESTATE, 197 farm did lie in "a ring fence or not ; and upon the same ground that the purchaser could not get rid of the contract on account of the difference in the description of the farm, his honor determined he could not be entitled to compen- sation. If a compensation was given to him, he would get a double allowance ; for if he had knowledge, that what he proposed to purchase did not answer the description, it must be taken that he bid so much the less. This case, we observe, went a step further than either the case before the court of Exchequer, or that before lord Rosslyn, in neither of which was there any -warranty or false description. But in this case it was expressly stated, that the whole estate was within a ring fence ; but the mas* terof the Rolls thought that circumstance immaterial, as the purchaser knew the description was false ; and his honor appears to have grounded his decision on the doctrine, that even at law a warranty is not binding, where the defect is obvious, and put the cases of a horse with a visible defect, and a house without a roof or windows warranted as in per* feet repair, But where a particular description is given of the estate which turns out to be false, and the purchaser cannot be proved to have had a distinct knowledge of the actual state of the subject of the contract, he will be entitled to a com- pensation, although he is compelled to perform the con-. tract. Thus, in the case before sir William Grant, the particu- lar, described the house as being in good repair, and the farm as consisting of arable and marsh land, in a high state of cultivation. It appeared, however, that the house was not in good repair, and that the land was not in a high state of cultivation. The judgment of the master of the Rolls contains the facts of the case, and is highly satisfac- tory, His honor said, " These objections are such as a q 3 mai* 198 0F DEFECTS IN THE QUALITY man may have an indistinct knowledge of, and he may have some apprehension that, in those respects, the pre- mises do not completely correspond with the description, and yet the description may not be so completely destroyed as to produce any great difference in his offer. As to the marsh land it is very uncertain, whether by any view it was possible for him to judge of that. It is stated by many wit- nesses, that the season of the year was just at the breaking of a frost, and represented that no man could, at that time, say whether the land was well or ill cultivated. So he may have seen some trifling defects in the house, and might not intend to make the objection if they turned out to be no- thing more than they appeared upon the surface. He might consider them too trivial, and not mean to claim compensation for an object so insignificant. But afterwards, when he came to examine, according to this evidence, he discovered that the house was materially defective, very much out of repair. Admitting that he might, by minute examination, make that discovery,- he was not driven to that examination ; the other party having taken upon him to make a representation: otherwise he would be exonerated from the consequence of that in every case where, by minute examination, the discovery could be made. The purchaser is induced to make a less accurate examination by the re- presentation which he had a right to believe. This pur- chaser, therefore, is entitled to compensation for the de- fects of the house, and the cultivation of the marsh land." But notwithstanding that the foregoing case has esta- blished, that the repairs necessary to a house is a subject of compensation, although the house is described to be in good repair, yet his honor seemed to admit that if the pur- chaser wanted possession of the house to live in at a given period, by which time the repairs could not be completed, , ought not to be bound to complete the contract* Whe^ OF THE EST ATS* *^9 "Where the defect is a latent one, and the purchaser can- not by the greatest attention discover it, if the vendor be aware of it, and do'not acquaint the purchaser with the fact, he may set aside the contract at law, although he bought the same with all faults (/) ; and equity will not enforce a specific performance (ni). But the ground and basis of an action in a case of this nature, for recovery of a deposit, where the contract is in JLeri ; or of damages, where the contract is actually exe- cuted, is the scienter; and therefore, if the vendor was not aware of the defect, he will not be answerable for it. Nor will trifling defects be sufficient foundation for such an ac- tion. Thus in a case (a) where a purchaser brought an action against a vendor, to recover damages for having sold him a house, knowing it had the dry rot ; it appeared, that the house was situate in a clayey soil, and that the floor lay near the ground, by which some of the timbers had rotted ; but the vendor was not aware of the defects, and the pur- chaser was non-suited. Lord Kenyon said, the circum- stances that had been proved in this case might be described by a word that was used by one of the witnesses ; they were mere bagatelles. If these small circumstances, his lordship added, were to be the foundation of an action, every house that was sold would produce an action. If a broken pane of glass that might be found in a garret window, perhaps, had not been described by the seller, it would be the ground of an action. If he was to consider himself as a witness in the cause, he could say he had met with something, of this kind, and he never thought himself imposed upon, because (/) Mellish v. Motteux, Peake's Jun. 50S. £ a> 1]5 (n) Bowles v. Atkinson, B. . (m) Oldfield v. Round, 5 Ves. N. P. MS. Q 4f now 200 OF DEFECTS IN THE QUANTITY now and then some rotten boards and rotten joists might be found about a house. Besides, there was no imposition, no mala Jtd.es, in this case. Although a defect be patent, and the purchaser might have discovered it ; yet if, during the treaty, the vendor industriously conceal the fact, equity will not assist him. Thus upon a suit for specific performance, the defence was, that the estate was represented to the defendant as clearing a neat value of 90/. per ann. an4 no notice was taken to him of the necessary repair of a wall to protect the estate from the River Thames, which would be an out- going of 50/. per ann. And it appearing, upon evidence, that there had been an industrious concealment of the cir- cumstance of the wall, during the treaty, the lord chan- cellor dismissed the bill, but without costs (o), Jl r ith respect to defects in the quantity of the estate s — * If a purchaser of an estate thinks he has purchased bona fide a part which the vendor thinks he has not sold, that is a ground to set aside the contract, that neither party may be damaged ; because it is impossible to say, one shall be forced to give that price for part only, which he intended to give for the whole; or that the other shall be obliged to sell the whole for what he intended to be the price of part only. Upon the pther hand, if both understood the whole was to be con- veyed, it must be conveyed. But again, if neither under- stood so, if the buyer did not imagine he was buying, any more than the seller imagined he was selling, the part in question, then a pretence to have the whole conveyed, is as (o) Shirley v, Stratton, 1 Bro. C. C. 440, contrary OF THE ESTATE. 201 contrary to good faith on his side, as a refusal to sell would £e in the other case (p). If an estate be sold at so much per acre, and there is a deficiency in the number conveyed, the purchaser will be entitled to a compensation, although the estate was estimated at that number in an old survey (6. (/) Oxwick v. Brockett, 1 Eq. Ca. Abr. 355, pi. 5. (it) Prec.Cha. 307, arguendo ; and see Nelson v. Nelson, Nels. Cha. Rep. 7. (.v) Cass. v. Waterhouse, Prec. Cha, 29 ; see Clinan v. Cooke, 1 Schoale's andLefroy'sRep. 22 ; and sec ch, 3. On 202 OF DEFECTS IN THE QUANTITY On the other hand, the court will equally relieve a ven- dor, where more land lias passed than was contracted for. In an early case Q/) this relief was denied ; because the defendant was a purchaser upon valuable consideration. But it is now clear, that if land be expressly conveyed, or pass by general words, which was not mentioned in the particular by which the purchase was made, or was not in- tended to be conveyed, the purchaser will be decreed to re-convey it (z). And where a purchaser took a conveyance of an estate from his own instructions, he was held rot to be entitled to lands answering the general description in the advertisements of sale, but which were not included in his conveyance, nor in a more particular description from which he prepared his instructions (a). To come to a right conclusion on tHs branch of our subject, we must be informed that an ace does not always contain the same superficial quantity of land. The word acre at first denoted, not a determined qiantity of land, but any open ground or field. It afterwards signified a mea- sured portion of land, but the quantity varied, and was not fixed until the statute (l), de terris menstrandis (&), accord- ing to which an acre contains 160 square perches j so that every acre is a superficies of 40 penhes long, and four (y) Clifford v. Laughton, Toth. (b) 33 Idw. I. ; and see 24 H. 83. 8, c. 4. 2!hst. 737 j Co. Litt. 6Q, {%) Tyler v. Beversham, Finch a. ; Spelm Gloss, v. acra, particala 80, 2 Cha. Ca. 1Q5. terrce, petica, pes for est ee, roda (0) Calverley y. Williams, l Ves. terrce. Cov. Interp. v. Acre. Jun. 210. (I) It was formerly holden not to be a statufc, but only an ordinance. Stowe's case, Cro. Jac. 603 ; but this has since been overruled, Rex. v. E . . ard, 1 lord Raym. 638. t>road \ OF THE ESTATE. W3 broad ; or in that proportion, be the length or breadth mors or less. The length of the perch was previous.y to the statute of Edward fixed at five yards and a half, or sixteen feet and a half, by the statute called compositio uhutrum e* «i-,( ( ), and the act of Edward must of course be construed with reference to this standard. Lord Kenyou seems to have thought it impossible to contend, that a cus- ^ torn should prevail that a less space of ground than an acre should be called an acrej^] ; but in several places the perch is measured with rods of different lengths, and, notwith- standing lord Kenyon's dictum, coruuttudo ha est obser- vanda (e), so that a greater or less space of ground than a statute acre may, in compliance with the custom of the place where the land lies, be called an acre. In some places the perch is measured by a red of twenty-four feet, in some by one of twenty feet (/), and in others by one of sixteen feet ( A And we are now to inquire in what cases the cus- tom of the country in this respect shall or shall not prevail. In adversary writs the number of acres are accounted according to the statute measure (A), but in fines and com- mon recoveries, which are had by agreement and consent of parties, the acres of land are according to the customary and usual measure of the country, and not according to the statute (»)• (0 See 4 Inst. 2 7 4. (,) Co. Litt. 5 b. j see Dalt. c. (d) Noble v. Durell, 3 T. Rep. 112, s. 25. m ; and see Hockiny. Cooke, 4 (A) Andrew's case, Cro. Eh*. T. Rep. 3 14. 4?6, cited. U) 6 Rep 6 7 , a. (*> Sir John Bruyn . case, 6 ) Crompt. onCourts, 222,who Co. 6 7 , a. cited ; Waddy v. New- citesa case in the Exchequer, re- ton, 8 Mod. 2 7 6; see Floyd v. 1*4 to him by one of the barons , Bethul, 1 Roll's Rep. 420 pi. 8 s end also 47 E. 3, fo. 18 [fo. 18 a, and see Treswallen v. Penhules, 2 pi. 35.] ; and see Barksdale V. Mor- Roll's Rep. Q6. gan, 4 Mpd. 185, „ 204- OF DEFECTS IN THE QUANTITY, &C. So, which is more to our present purpose, where a man agrees to convey (k), or actually conveys (/) any given number of acres of land, which are known by estimations or limits, there the acres shall be taken according to the estimation of the country where the land lies, be they more or less than the measure limited by the statute; for they pass as they are there known, and not according to the measure by statute. But if a man possessed of a close containing twenty acres of land by estimation, which is not eighteen, grant ten acres of the same land to another, there the grantee shall have ten acres according to the measure fixed by the statute, because the acres of such a close are not known by parcels or metes, and bounds, and so this case differs from the one immediately preceding it (»/). And it is said, that if one sells land, and is obliged that it contain twenty acres, the acres shall be taken according to the law, and not ac- cording to the custom of the country (»). (I) Some v. Taylor, Cro. Eliz. Eliz. 4/6, cited. 665. (?«) Morgan v. Tedeastle, Pcph. (/) 47 E. 3, 18, a. pi. 35 j 6 Co. 55. 67, a.; Morgan v. Tedcastle, Poph. («) Wing y. Earle, Cro. Elb, 55 ; Floyd v. Bethill, 1 Roll's Rep. 267. 420, pi. 8 j Andrew's case, Cro. CHAP- C 205 ] CHAPTER VII. OF THE TITLE A PURCHASER MAY REQUIRE. A purchaser has a right to require a title commencing at least 60 years previously to the time of his purchase ; be- cause no estate in fee simple, created or taking effect within that period, would be barred by the statute of limita- tions (a) ( 1 ). In Paine v. Meller (fr), lord Eldon seemed of opinion, that an abstract not going further back than 43 years, was a serious objection to the title. Even 60 years are not sometimes sufficient, For in- stance ; if it may reasonably be presumed from the contents of the abstract, that estates tail were subsisting, the pur- chaser may demand the production of the prior title. The statute of limitations cannot in such case be relied on ; remainder men having distinct and successive rights, upon which the statute can only begin to operate as they fall into possession. So, if an abstract begin with a conveyance by a person who is stated to be heir at law of any person, the purchaser may require proof of the ancestor's intestacy. To pursue this point is impracticable, so numerous are (a) 32 Hen. VIII. c. 2. Vidt (b) Q Ves. Jun. 24$. post. (1 ) Note. The courts are so anxious to protect a long possession, that no plaintiff is entitled to so little favour as a plaintiff, in a writ of right ; see Charlwood v. Morgan. Baylis v. Manning, 1 New, Rep 64, J 33. the 206 OF THE TITLE the cases in which counsel are compelled to require the pro- duction of the prior title. Under this head we must consider the much agitated point, whether a purchaser of a leasehold estate can insist upon the production of the lessor's title. The general practice of the profession is to call for an abstract of the title, but a lessee is not often able to comply with the demand. At the time the lease is granted, the title is rarely investigated, or even thought of ; and a lessor cannot be advised voluntarily to submit his title to the exa- mination of strangers. As my lord Eldon remarked (c), the Newcastle case is a good lesson upon this subject of production. The corporation produced their charters to satisfy curiosity ; some persons got hold of them ; and the consequence was, the corporation lost 7,000/. a-year. The numerous cases in the books where lessees and per- sons claiming under them, have been evicted on account of defects in the titles of their lessors, strongly evince the dan- ger of taking a lease without investigating the landlord's title. No title can be depended upon, however long the estate may have been in the same family. There may be a defect in a settlement, or the person in possession may have a partial estate only, with a power of leasing. All the leases of the Pulteney estate were set aside, on account of general Pulteney's power of leasing not having been duly pursued ; nor is this the only estate of which the leases have been vacated. Besides, without an abstract of the title, a pur- chaser cannot even ascertain that the lessor had not mort- gaged the estate previously to granting the lease, hi which case (as against the mortgagee) the lessee, and consequently any purchaser from him, would be a mere tenant at m\\(d) \ and his only remedy would be either to redeem the mort- (f ) 8 Yes, Jun. HI . (//) Kcech v. Hall, Dougl. 2 1 . A PURCHASER MAY REQUIRE. 20? rage, or to bring an action on the lessor's covenant for quiet enjoyment. A lessee is a purchaser pro tanto, and it should therefore seem that he is not only entitled to call upon the lessor for an inspection of his title, but would not meet with any favor if he neglected to do so ; for no one's misfortune is so much slighted by the courts as his, who buys a thing in the realty, and does not look into the title (e). In Keech v. Hall (/), lord Mansfield appears to have taken for granted, that a lessee has a right to examine the title-deeds ; and not even a dictum to the contrary has ever been judicially advanced. The argument generally urged against the purchaser's right to call for the lessor's title is, that a lessee is seldom able to produce the title ; and therefore, on the ground of convenience, a purchaser must be presumed to know this circumstance, and to buy, subject to an implied condition, not to call for the freehold title. But the answer to this is, that the lessor's title is now generally required ; and where the vendor cannot produce the title, it is usual to state the fact in the particulars or agreement. Therefore where that statement is omitted, it is fair to presume that the vendor is in possession of the title. There can be no inconvenience in establishing the purchaser's right to call for the freehold title, when the vendor has it in his power to prevent the claim by an express stipulation. Upon the whole the better opinion appears to be, that a person who has contracted for a lease, may, previously to accepting the lease, require the lessor to produce his title ; from which it seems to follow, that a purchaser from the lessee would not be compelled to complete hjs purchase, (f) Sec Roswcl v. Vaughan, Cro. lord Raym. 1118. Jac, 196; and lysncy v. Selby, 2 (/) Doug. 21, unless 208 OF "THE TITLE unless the title of the lessor was produced ; for as lord Mansfield said (g) 9 if one must suffer, it is he who has not used due diligence in looking into the title. Indeed, it can scarcely be supposed that equity would, on any other terms^ compel a purchaser of a leasehold estate to complete his contract. It would be too inconsistent to hold that a pur- chaser of an acre of freehold ground, must be furnished with a title for 60 years ; but that a purchaser of a lease- hold estate, however valuable, cannot call for any title to it. Of course, if a vendor of a leasehold estate be unable to procure the lessor's title, equity cannot assist the purchaser (//), unless he will dispense with the production of the title to the freehold. The question under consideration arose in a recent case in the court of Chancery, but it became unnecessary to decide it; and, 1 understand, lord Eldon said, that if the point should ever come before him ripe for decision, he would call in the judges to his assistance. If the vendor be responsible, purchasers frequently dis= pense with the production of the lessor's title, on receiving general and unqualified covenants from the vendor, for the validity of the lease, and his right to assign, &c. (/). If a purchaser of a leasehold estate had notice, at the time he entered into the contract for purchase, of the vendor's inability to produce the lessor's title, he would not afterwards be allowed to insist on its production. Wherever, therefore,' a vendor of a leasehold estate has not an abstract of the lessor's title, this circumstance should be mentioned in the particulars of sale, if sold by auction ; or in the agree- ment, if sold by private contract. It seems formerly to have been thought, that a plaintiff in an ejectment for a leasehold estate, could not recover unless - ( s ) Doug. 23. (J) See 2 Bos. and PuU. 23, (h) ri.!e supra, p. 150. the A PURCHASER MAY REQUIRE. S09 the original lease and all the mesne assignments were proved; but this rule has been relaxed, and where the possession has been uniform the jury will be recommended to presume any- old assignments which have been lost (/). It cannot, how- ever, be laid down, that a purchaser of a leasehold estate can safely accept the title wher^ any. of the mesne assign- men, s have been lost, although he might be able to recover in ejectment, if he actually did purchase. Every case of this nature must depend upon its own particular circum- stances (m). With respect to the title to renewable leaseholds, great difficulty constantly occurs. All public bodies who grant renewable leases, require the old lease to be given up before they will grant a new one ; and when they once obtain pos- session of a surrendered lease, they will not part with it, or permit a copy of it to be taken. When the lessee sells, he produces an abstract of the subsisting lease, and the subse- quent instruments. Now this is a title which it is impossible ro accept, however willing the purchaser may be, and although he mav have waved calling for the lessor's title. Every lease is stated to be granted in consideration of the surrender cf the former lease, and by means of this refe- rence the chain of title is kept up. The reference in the last lease to the one immediately preceding, is notice of it to the purchaser, and that again is notice of the one before that, and so on to the first lease. And if in any of these leases the lessee is described as devisee under a will, or there is any thinr* to lead the mind to a conclusion that the lessee is not o absolutely entitled, the purchaser will be liable to the same equity as the lessee was subject to, although he (the pur- chaser) had no other knowledge of the fact than the men- (/) Earl v, Baxter, 2 Blackst. (to) Vide post Hillary y. Waller, 1228, p tion %L0 OF THE TITLE tion in the lease, of the surrender of the former lease; equity deeming that sufficient to lead him to enquire into the title (n). Harsh as this rule may seem, it is quite con- sistent with the general principles of equity, and is impe- riously called for in this case, as public bodies generally renew with the person having the legal estate, and seldom suffer any trusts to appear on the lease, lest they should be implicated in the execution of them. To enable equity to enforce a specific performance against a purchaser, the title to the estate ought, like Csesar's wife, to be free even from suspicion (o) ; for it would be an extraordinary proceeding for a court of equity to compel a purchaser to take an estate, which it cannot warrant to him (/>). It hath, therefore, become a settled and invariable rule, that a' purchaser shall not be compelled to accept a doubtful title (r/) : neither will he be forced to take an equitable title (/) : nor will a case be directed to the judges as to the title, unless the purchaser be willing that it should (s) : and even if a case is directed, and the judges certify in favour of the title, yet a specific performance will not be decreed unless ihe court itself is satisfied of the equi- table as well as the legal title of the vendor (t). And («) Coppin v. Fernyhough, 2 Crewe v. Dicken, 4 Ves. Jun. §7; Bro. C. C. 201. Rose v. Caliand, 5 Ves. Jun. 186 ; (o) See 2 Ves. 50. Roake v. Kidd, ibid. 64?. {p) Heath v. Heath, 1 Bro. C.C. (r) Cooper v. Denne, ubi sup. ; 147. and see 2 Ves. Jun. 100 ; and (q) Marlow v. Smith, 2 P.Wms. V'fra. i.98; Mitchel v. Neale, 2 Ves. (s) Roake v. Kidd, ubi sup. 679 ; Shapland v. Smith, 1 Bro. (/) Sheffield v. lord Mulgrave, 2 C.C. 74 ; Cooper v. Denne, 4 Bro. Ves. Jun. 5%§. C. C. 80 i 1 Ves. Jun. 565, S. C. j although A PURCHASER MAY REQUIRE. 211 although the judges certify in favour of the title, and there is no equitable objection to it, yet if the point of law is very doubtful, the purchaser may require another case to be di- rected, which it seems will not be sent back to the same court (w). So there are many cases in which a jury will collect the fact of legitimacy from circumstances, in which it might be attended with so much reasonable doubt, that equity would riot compel a purchaser to take it, merely because there was such a verdict. The court ought to weigh, whether the doubt is so reasonable and fair, that the property is left in his hands not marketable („r). And where an action is brought against a purchaser for non-performance of an agreement, a court of law will look as anxiously to see that the title is clear of doubt as a court of equity would. Therefore in a case before lord Kenyori at nisi prias (?/)* where an objection was made to the title, his lordship said he would not then determine the point, nor was it necessary to do so. He thought it a question of some nicety ; but whether it was or not, he thought it equally a defence to the action. When a man buys a commodity, he expects to have a clear indisputable title, and not such a one as may be questionable, at least, in a court of law (2). No man is obliged to buy a law-suit ; and a verdict was given for the purchaser. It hath been before observed, that a purchaser will not be (u) Trent v. Harming, 10 Ves. {y) Hartley v. Pehall, Peake's Jim. 500. Ca. 131. (j) Per lord Eldon. See 8 Ves. Jun. 428. (2) This expression seems to refer to the question, whether equitable abjections to a title are a defence at law ; vide supra, p. 160. p 2 compelled 212 OF THE TIT LI. compelled to take art equitable title ; but this rule does fit* extend to estates sold before a master, under the decree a court of equity. For in this case, although the legal estate is outstanding, and cannot be immediately get in, yet if the person seised of a legal estate is a party to the suit, the court will compel the purchaser to accept the title, and will decree generally that the legal tenant shall convey, and that the purchaser shall in the mean time hold and enjoy. And even where the legal estate is vested in an infant, the court will compel the purchaser to complete his contract, on the usual decree, that the infant shall convey when he comes of age, unless he then shews cause to the contrary ; and that the purchaser shall in the mean time hold and enjoy. Thus in a case (z) where, upon sale of an estate before a master, in pursuance of a decree under lord Waltham's will, the purchaser objected to the title, on the ground of the legal estate being in an infant, lord Rosslyn without the least hesitation compelled the purchaser to take the title ; making his decree for the infant to convey in the usual form: because, as the purchaser bought -under the decree, he was bound to accept such a title as the court could make him (a). And I learn that in a case of this nature, lord Rosslyn would not sanction an application by the purchaser at his own expense, for an act of parliament to divest the infant of the legal estate. But although a purchaser under a decree will be com- pelled to accept a title of thus nature ; yet if he sell the estate, the court will not enforce a specific performance against the second purchaser. (%) Ch. MS. ; see Chandler v. to take a dmltfnl title. See Mar- Beard. 1 Dick. 302. low v. Smith, 2 P.Wms. IQS ; and (a) But note, a purchaser under Shaw v. Wright, 3 Ves Jun. 22. a decree will not be compelled to This A PURCHASER MAY REQUIRE. 213 This was also decided by lord Rosslyn. The purchaser of lord Waltham's estate sold the estate to a person, who objected .to the title upon the same ground as he had objected to it, and refused to compleat the contract. The first purchaser very confidently filed a bill for a specific per- formance, but lord Rosslyn dismissed it ; because such second purchaser did not buy under the decree, and there- fore was not compellable to accept an equitable title. The reason why a purchaser under a decree is compelled to take an equitable title, seems to be this, that the court has bound the right of the party in whom the legal estate is vested, and will not permit him to take advantage of it. This, however, is not the case where the legal estate is in an infant ; as it makes part of the decree, that he shall con- vey when he comes of age, unless he then sheivs cause to the contrary. In favour of the rule, bv which a purchaser under a decree is compellable to take an equitable tide, it may be said, that it facilitates sales under the decrees of the court ; but the injustice of it is too glaring. The decree of a court of equity acts in personam, and not like a judgment at law in rem ; and it is possible, that the court may never be able to compel the person seised of the legal estate, to convey it to the purchaser. Alt hough an estate is net sold under a decree, and the legal estate is outstanding and cannot be got in, yet if the circumstances of the case are such as would induce a court of law, under those grounds upon which presumptions are in general raised, to presume a re-conveyance, equity will com- pel the purchaser to take the title (£). We have seen that a purchaser cannot be compelled to (3) Hillary v. Waller, Rolls, 23 Dec. 1S05, MS. Appendix, No. 0. p 3. take 214 Of THE TITLE take a doubtful title ; but nevertheless he will not be permit- ted to object to a- title on account of a mere probability ; because a court of equity, in carrying agreements into exe- cution, governs itself by a moral certainty : it being impos- sible, in the nature of things, there should be a mathema- tical certainty of a good title. Therefore suggestions of old intails, or doubts what issue persons have left, whether more or fewer, are never allowed to be objections of such force as to overturn a title tQ an estate (c). So where (d), upon a purchase, it appeared that the estate had been originally granted by the crown, in which grant there was a reservation of tin, lead, and all royal mines ; yet as there had been no search made for royal mines, for 111 years, and, upon examination, the probability was great there were no such mines, lord Hardwicke decreed a specific performance. Again in a recent case (e), where a man articled for the purchase of an estate, with some valuable mines, and would not complete his contract because the mines were under a common, wherein others had a right of common, and con- sequently he would be subject to actions for sinking shafts to. work the mines j lord Eicon, after shewing the improba- bility of any obstruction from the commoners, said, that in case such an action were brought, he should think a far- thing quite damages enough. ', and therefore decreed a per- formance in specie, This case, like the last, must be considered to have turned on the improbability of the purchaser being disturbed j otherwise it seems to have gone to the utmost verge of the (c) See 2 Atk. 20, per lord Hard- (d) Lyddal v. Weston, 2 Atk.lQ. •wicke ; and see lord Braybroke y. (e) Anon. Chan. 7th Sept. 1803, Jnskip, S Ves. Jun. 41/. MS. law A PURCHASER MAY REQUIRE. 215 law ; for although such trifling damages could only be reco- vered, yet that would not be ground for a non-suit, as was decided in the late case of Pindar v. Wadsworth (/ !. The estate, therefore, would subject the purchaser to litigation, whenever malice or caprice might induce any of the com- moners to commence actions against him. Where an abstract begins with a recovery to bar an intail, it is usual in practice to call for the deed creating the intail, in order to see that the estate tail and remainders over, if any, were effectually barred (3). But if the deed is lost, and possession has gone with the estates created by the recovery, for a considerable length of time, and the pre- sumption is in favour of the recovery having been duly suf- fered, the purchaser will be compelled to take the title, although the contents of the deed creating the intail do not actually appear (g)< Where a vendor is tenant in tail, with reversion to him- self in fee, and the reversion has vested in different persons, a common recovery is generally required by a purchaser ; because that bars the remainder, while a fine lets it into possession, and thereby subjects the whole fee to any incumbrance which before affected the reversion only. But unless some incumbrance appear, or the title to the reversion is not clearly deduced, the court will refuse to compel a vendor to suffer a recovery, on account of the mere proba- bility of the reversion having been incumbered, (f)2 East. 154. 4th May, \19\, MS. Appendix, [g) Coussmaker v. Sewell, Ch. No. 10. (3) This makes it advisable in deeds, to make a tenant to the precipe, or to lead the uses of fines, to recite so much of the instrument under which the tenant in tail claims, as will manifest his power of barring the estate tail, and, remainders over. f 4 Thus 215 OF THE TITLE Thus in a late case (/*.), upon an exception to the mas- ter's report in favour of the title, the objection to the tine was, that one Elizabeth Baker ought to join in a recovery ; the title being derived from John Paine, who, in 1693, limited the estate to the use of himself for life ; remainder, subject to a term> to uses which never arose ; remainder, to his daughters in tail ; remainder, to himseif in fee. Under these limitations l r liz-ibeth,-an only daughter, became seised in tail, with the immediate reversion to her father, who made a will, not executed so as to pass real estate, whereby he devised all his estate to his second wife. Upon his death Elizabeth his daughter entered, and levied a fine. She had issue a daughter, Elizabeth, who married William Baker. They had issue one daughter, Elizabeth Baker. From her the estate was purchased under a decree, and by mesne purchases became vested in the plaintiff. The defendant, the purchaser, suggested, that the ultimate remainder in fee might have been by deed or will disposed of by John Paine, or by any other person, to whom it might have descended ; and if the same should have been so disposed of, it could then be baired only by Elizabeth Baker. The lord chan- cellor held a recovery not necessary. It will occur to the learned reader, that, notwithstanding the defendant's suggestion, it was highly improbable the reversion was disposed of by John Paine in his life-time, such an interest not being marketable ; and as he devised all his estate by his will, there was no ground to presume he had made another will. Upon his death, therefore, the reversion descender to his daughter, who by her fine reduced it into possession, and consequently no incumbrance could afterwards be. created upon it, as a reversion distinct from the particular sstatec so that, in fact, the purchaser {&) Sperling v. Trevor, 7 Vcs. Jun. 40?. •■' ' wished A PURCHASER MAY REQUIRE. 217 wished to put the vendor to the expense of a recovery, upon a bar-, and indeed very improbable possibility. It clear that a woman is barred of her dower both at law an I in equity, by a legal term created previously to her right of dower attaching on the estate, of which an assign- ment has been obtained by a purchaser to attend the inhe- ritance (i), For akhough she can recover her dower at law, it will be with a cessel- exeat lb during the term, and equity vyill not remove the bar. But notwithstanding that a purchaser ,can- obtain an assignment of an outstanding term, which will bar' the vendor's wife of her dower, a fine is always required from the vendor and his wife at his expense. . Upon the authority of the anonymous case before lord Eldon, before cited {h), it might perhaps be doubted, whe- ther a court of equity would not enforce a purchaser to accept the title without a fine. It must at the same time be observed, that in the case before his lordship, the vendor could not make the title perfect, when in the case under consideration a vendor can remove every difficulty at a tri- fling expense; which circumstance would certainly have great weight with a court of equity. In a late case, how- ever, lord Eldon put the very point. He said, that if a husband entered into a contract to sell an estate, not con- tracting for more than to make a good title ; no specialty about dower ; but the master's report was in favour of the title, on the ground that a term was outstanding which . might be assigned. The court would make the purchaser take the title ; as the trustees might convey (I). This was only an obiter dictum, and with all the respect due to the (i) Fide infra, ch. Q. (/) See 10 Ves. Jun. 261, 262. (*) S.'pra, p. 2 14-. judge 213 OF THE TITLE judge from whom it fell, is open to much observation. In the first place it assumes what has never been decided, that equity would compel trustees of a term with notice of the wife's right, to assign the term to a purchaser, so as to exclude the title of dower. The court would probably feel great reluctance in making such a decision. It is one thing to say, that when a purchaser has obtained an assignment of a term, he may avail himself of it as a protection against the wife's dower, " because such was the general practice and opinion of conveyancers"^); and another, for equity to say that, as a discreet exercise of its jurisdiction, it will com- pel trustees to assign the term to a purchaser, in order to exclude the widow. In Maundrell v. Maundrell, the master of the Rolls forcibly observed, that a purchaser, merely as such, has no equity whatsoever against the widow, claiming by title prior to, and both legally and equitably as good as his. The term, if it continued outstanding, is as much at- tendant in equity upon dower, as the remaining interest in the inheritance ; and therefore ought net to be set up by the latter against the former (n). From this quotation we may form a tolerably accurate idea of what the master of the Rolls' opinion would be on this point. But admitting that equity would compel trustees to assign the term, yet two weighty reasons present themselves why a purchaser should not be compelled to rely on the term. The one, that he would be at the expense of keeping the term on foot ; the other, that if a writ of dower was brought against him, and the term should even protect him against the widow's claim, vet he must pay the costs of the action, &c. And these are the reasons why a fine is in practice insisted upon. The wife of a trustee in fee, or of a mortgagee in fee» of a forfeited mortgage, is at law entitled to dower \ but a [m) Vuk infra, ch. 9. (*) See 7 Ves. Jun. 579- fine A PURCHASER MAY REQUIRE. 219 fine is on that account never required by a purchaser; be- cause, if the wife of a trustee or mortgagee were to be so ill advised as to prosecute her legal claim, equity would, at this day, undoubtedly saddle her with all the costs (o). But where the wife of a vendor has only an equitable jointure, some gentlemen require a fine : this practice is, however, discountenanced by the greater part of the pro. fession ; and if a woman equitably barred of her dower, should bring a writ of dower, it seems clear that equity would protect the purchaser, and condemn the widow in costs. But it is objected by the advocates for a fine, that if the fund upon which the equitable jointure is charged, should be evicted from the jointress, she could then claim her dower out of any real estate of which she would other- wise have been dowable. And this objection seems equally to apply to a legal jointure. For it is by the statute of uses (/>), by which jointures are made bars to dower, de- clared, that if any woman be lawfully evicted from her jointure, or any part thereof, without any fraud or covin, then she shall be endowed of as much cf the residue of her husband's tenements or hereditaments whereof she was be- fore dowable, as the same lands and tenements so evicted shall amount to. When the first edition of this work was published, the author was not aware of any case in which this doctrine was expressly established, but he stated that no reason appeared, why a jointress evicted of her jointure should not recover her dower out of lands sold by her hus- band, of which she would have been dowable at common law ; and if so, although the wife of a vendor had a legal (o) See Noel v. Jevon, Bevant See Gervoyes's case, Mo. 7 17, pi, y. Pope, 2 Freem. 43, 73. 1002; and see 4 Co. 3 b. 4 Bro. (p) 27 Hen. VIII. c 10. s. 7. C.C. 506, a. jointure, 220 OF THE TITLE jointure, a purchaser ought to insist on a fine, unless h- was satisfied the 1 the title to the jointure lands was good. He remarked, however, that this was never attended to in practice, and he never heard that the objection was taken ; which made him apprehensive he had fallen into an error. The point could not, he thought, so long have escaped no- tice. But he concluded that, whether a jointress, evicted from a legal jointure, could claim her dowe* out of lands, sold by her husband, of which she was dowable at common law, or whether she was entitled to no relief against a pur- chaser, it seemed clear, that, unless in the case of a legal jointure a purchaser could call for the title to the jointure lands, or require a fine, he could not do so in the case of an equitable jointure, where the wife was adult at the time of the marriage ; as there could be no doubt but equity would act in strict analogy to legal jointures. Since the publication of the first edition, the author has met with Maunsneld's case, which was adjudged in the 28th ofEiiz. (r/). There a jointure was conveyed to the wife before the coverture, and during the coverture the husband purchased other lands, and aliened them again, and died ; the land which the wife had in jointure was evicted, and the wife had dower of the lands which was purchased, and aliened by the husband at the time when she was barred of her action of dower. This case then expressly decided the point befort discussed, as to a legal jointure ; and it is con- ceived, that equity must, in this respect, follow the law. The author's present impression therefore s, that where an estate would be subject to the dower of the vendor's wife, if she were not barred by a jointure, whether legal or (q) Harg. n. S to Co. Litt. 33, written before the publication of a, stated from a MS. commentary sir Edward Coke's commentary, on Litt supposed to have been equitable, A PURCHASER MAJf REQUIRE, '221 equitable, the vendor must either procure his wife to levy a fine of the estate at his own expense, or must produce a satisfactory title to the jointure lands. And this is no more than is constantly required, where an estate has been taken in exchange. The vendor is compelled to produce the title not only to the estate sold, but also to the estate given by hi in in exchange* The same principle applies to the case under consideration. Equity appears to consider, any- provision, howerer in- adequate or precarious it may be, which an adult, pre- viously to marriage, accepts in lieu of dower, a good equitable jointure (r) : and will in some cases e ~ imply an inten- tion to bar the wife of her dower ; as, where a provision was made for the livelihood and maintenance of the wife after her husband's death, although it was not expressed to be in bar of dower, yet it was holden to be a bar in equity* on the implied intention of the parties (s). So, as infants are within the statute of Henry VJII.(/), and may be barred of dower at law, they may in like manner be barred by an equitable jointure (u). But an equitable provision in bar of dower will not bind an infant, unless it be as certain a provision as her dcwer. Therefore a settlement of an estate upon an infant for life, after the death of her husband, and any third person, will not be a good bar, as the stranger may survive the wife [x). (r) Jordan v. Savage, Eac. Abr. Couch v. Stratton, 4 Ves. Jan. Jointuress) 5. Charles v. Andrews, 3Q1. Q Mod. 152 ; Williams v. Chitty, (*) Drury v. Drury, or, earl of .3 Ves. Jun. 545, 4- Bro. C. C. Bucks v. Drury, 5 Bio. P. C. 570., 513. This was admitted by the 4 Bro. C. C. £06, n., Wilmot's counsel for the appellants in Drury notes, 177- v. Drury; see 5 :.ro. P. C. 581. (u) See the cases ante, n. (r). (y) Vizard v. Longdate, 3 Atk. (*) Caruthers v. Caruthers, 4 8 cited ; sec 2 Com. Dig- 148 j tee Bro. C.C. 500. Tinny v. Tinny, 3 Atk. 8 > and So 222 o> THE TITLE So" a provision that the personal estate shall go according ftj the custom of London, in bar of dower, or any provision of that nature, will not be deemed an equitable bar of dower to an infant, on account of the uncertainty and prccarious- ness of the provision (7/). Supposing an equitable jointure to be merely charged on stock vested in trustees, and the wife to have been married underage, there seems reason to contend, that if the fund should be wasted by the trustees, equity would not restrain the wife from proceeding for her dower ; and in that case a purchaser would certainly be entitled to a fine (l). In Caruthers v. Caruthers, (z), the master of the Rolls, addressing himself to what was and what was not art equi- table bar of dower to an infant, put the case of a charge in bar of dower made upon an estate with a bad title,- and held that it would be no bar. Therefore whatever opinion 1 may be entertained on the general question, a purchaser must be satisfied of the title to the lands upon which the equitable jointure of a feme covert married under age is charged. And where the settlement rests in covenant, the purchaser should not complete his contract until the covenant be ac- tually performed ; for an alienation by the husband of the fund out of which the jointure is to arise, will be deemed an eviction of the fund, and consequently the wife will be let in for her dower (a). It appears from some manuscript opinions, that Mr.- (y) Smith v. Smith, 5 Ves. Jun. (a) Drury v. Drury, 4 Bro.C.C. 1S9. 50§. n. (z) 4 Ero. C.C. 500; see 5 Yes. Jun. ig2. (1) This point docs not appear to be decided, either by Drury v. Drury. or Williams v e Chitty. Fearne A PURCHASER MAY REQUIRE. 22S Fearne frequently advised a purchaser to take a fine from a vendor and his wife, although she was legally barred of her dower by settlement. To use his own words in an opinion : " It may not be improper to have a fine from Mr. H. and his wife, notwithstanding she is barred of dower by settlement. I frequently advise such a step, to prevent the purchaser at any time from the difficulty of proving, or co- ming at such settlement ; but as the fine is not necessary, it must of course be at the purchaser's own expense, if he chuses to have it." In the case of Pope v. Simpson (£), lord Rosslyn appears to have held, that persons purchasing from the assignees of a bankrupt, have no right to expect more than that the as- signees should deliver over such title as the bankrupt had. This decision, however, was opposed by prior cases (c), and the general rules of equity ; and I learn that in a late case lord Eldon expressly denied the doctrine advanced by lord Rosslyn : so that assignees of bankrupts are equally bound to clear up objections to their title, as vendors mi juris. Formerly where a vendor claimed under a modern will, by which the heir at law was disinherited, it was usual to require the will to be proved in equity against the heir at law (d) ; but this practice is now almost wholly disconti- nued. In Colton v. Wilson ( and see Orlebar v. (<;) 3 P. Wras. l^Q. case^ 224 or TKE TITLE case, and the point was by no means settled. In Bel- lamy v. Liversidge (r), the title received the master's ap- probation, although the will was not proved against the heir at law ; and upon exceptions to his report on that ac- count coming on, lord Kenyon, then master of the Rolls, over-ruled them. It is not unusual to require the heir at law to join in the conveyance, if his concurrence can be easily obtained ; and where he is a party to a conveyance in any other character, he is invariably made a conveying party, in his character cf heir at law ; although, in strictness, this could not be in- sisted upon. Many gentlemen to whose opinions the greatest deference is due, consider a power to a tenant for life to charge por- tions for his children, or to appoint the estate amongst his children, as a right to nominate one ©r more of a certain number of objects to take the portions, or the estate ; and that consequently, it is merely a power of selection, and can- not be barred by fine. Numerous titles have been objected to on this ground ; and although an enquiry into the force of the objection may perhaps be deemed irrelevant, it is hoped that it will not be altogether unacceptable. In a recent case, A. tenant for life (without any limitation to trustees to preserve) ; remainder to his children as he should appoint ; remainder to himself in tail ; remainder to himself in fee, levied a fine before making any appointment, and the title was objected to, by a gentleman for whose (/) Chan. 1 June 1766, MS.j P.C. 145 ; scd v\dt Smith v. Hib- and see Wakeman v Duchess of bard, 2 Dick. 730. Rutland, 3 Ves. Jun. 233, 8 Bro. opinio^. A PURCHASER MAY REQUIRE. 225 Opinion I cannot but have great respect, on the ground that the power was merely a power of selection, and therefore could not be released, or extinguished by fine. It must be admitted that the power in this case was merely a. power of selection, or, as it is generally termed, a power of specification ; but it does not appear to follow from that admission, that the power could not be released, or extin- guished. The only ground upon which it can be contended, that the power could not be extinguished or released, is, that it was a power simply collateral ; but it will appear, that every case put of a power simply collateral, is where the donee has no interest whatever in the estate (\g) : and such a power certainly cannot be released or extin- guished, either by fine, feoffment, or common recovery. A power appendant, at least as to the life estate, it cer- tainly was not ; but it seems to have been a power in gross, which although it did not arise out of the estate of the tenant for life, must be considered as exercisable by him for his own benefit, and not as a mere collateral power. A power to a tenant for life to jointure after his death, is a power in gross (A) (2). Now what is a power to jointure but a power of (-) 15 H. VII. fol. n. b. (1), lis v. SborraU, 1 Atk. 4.74. i Rep. Ill, 174, Mo. 605 j Wall (A)' Edwards v. Slater, Hard. v. Thurborne, 1 Vern. 355 j Wil- 410. (1) This is a case always referred to on this point, it is very long, and, as every one has not the year-books at hand, a literal translation of the case, made by the author for his private use, may perhaps not be unacceptable to the reader. See Appendix, No. 1 1. (2) Mr. Powell, (Powers, 13,2/.) does not appear to have clearly understood this case. The case was, that A. tenant for life, with re- mainders over to strangers ; remainder lo himself in fee, with a power to create a term of years, to commence after his death, conveyed the lands h\ fee by bargain and sale., and then executed his power. The decision q was '226 OF THE TITLE, of selection or specification ? The tenant for life selects the woman whom he chooses to marry, and then appoints, that after his death, when his estate has ceased, she shall take the estate for life. — Here, as in the case before us, the estate appointed cannot take effect out of the interest of the donee of the power, and yet a power of jointuring, like every other power in gross, may be extinguished by fine (/.'. Indeed it is not ea c y to discover any real distinction between a power of jointuring, and a power of appointing to child- ren. In neither case is the donee compellable to exercise his power, and in each case the power is annexed in privity to his estate for life, and he has an interest arising from the exercise of his power, by the benefits it enables him to be- stow. In Edwards v. Slater (h) a power to a tenant for life to create a lease for 3i years, to commence after his death, was held by Hale, C. 13. and baron Turner, to be a power in gross, and to be barrable by a fine or feoffment. LordC.B. Hale said, that where the power does not fall within the compass of the estate, as where the tenant for life has a power to make an estate which is not to begin till after his own estate is determined, such power is not appendant, or annexed to the land ; but it is a power in gre'ss, because the estate for life has no concern in it : and yet such a power (i) King v. Helling, 1 Ventr. (.) Goodrich v. Brown, 2 lYecm. 180. 1 Cha„ Ca. 49- ^^ 238 ofc the title These words are very forcible ; for as the attestation and subscription are required to be made by the witnesses in the presence of the devisor, it was clearly intended that the will should be signed by him in their presence ; and the witnes- ses are expressly required to subscribe in the presence of the testator. It hath, however, been decided, first, that the devisor need not sign in the presence of the witnesses(z). Secondly, that the subscription of the witnesses to an attes- tation which only contains the words, " sealed and de- livered by, &c." is sufficient (a). And thirdly, it has, in three different cases (Z>), been holden that, although the fact of the subscription by the witnesses in the presence of tfie tecf .lor? is omitted in the attestation, yet, if the wit- nesses be dead, and their hands proved in common form, it is evidence to be left to a jury, of a compliance with all the Circumstances. And yet it was contended, that the hands of the witnesses could only stand to the facts they had sub- scribed to. — Verdicts were given in favour of the wills ; and Indeed it seems clear, that in every case of this nature, free from any particular suspicion, a jury would find the solem- nities duly adhered to, From these decisions it may, perhapq, be inferred, first, that persons who exercise a power, to the execution of which signature is required, need not sign in the presence^ of the witnesses ; and that the subscription by the witness ses of an attestation in which the word signed is omitted, is a sufficient compliance with the power. And secondly, that even should it be determined that the donee of the power (z) Ellis v. Smith, i Ves. Jun. Eccles. Law, 130. 11; Addy v. Grix, 8 Ves. Jun. (b) Hands v. James, Com. 531 j 50-1 ; and see Dormer v. Thnrland, Croft v. Pawlett, 2 Stra. llOQj 2 P.Wms. 506. Brice v. Smith, Willes 1. £a) Trimmer v. Jackson, 43urn's ought A PURCHASER MAY REQUIRE. 23? ought to have signed in the presence of the. witnesses, yet evidence may be received of the signature having been made in their presence ; and if the witnesses are dead, and the transaction fair, a jury would find in favour of the in* strument having been duly executed. A very strong ad- ditional circumstance in support of such a verdict, would be the fact that nearly all deeds have no other attestation than « sealed and delivered," and that the omission of the word " signed," is in every case clearly owing to inadvertence, and the frequent use of an attestation, containing the words *« sealed and delivered, &c." only. Where the witnesses are living, it is certainly desirable, in order to obviate ail doubt, that they should sign a memo- randum on the deed, stating, that the deed was signed in their presence, although that fact was omitted to be no- ticed in the attestation indorsed. It remains to remark, that lord Eldon in a case in which this point incidentally arose, expressed an opinion in favour of the instrument, on the ground that the fact of signature in the presence of the witnesses would be presumed. It so often becomes necessary to consider in what cases ,an uninterrupted possession creates a title, that the introduc- tion of a few general observations on the operation of the statutes of limitations, may not be deemed impertinent. 1. Then, the statutes of limitations operate by way of bar to the remedy, and not, like the statute of fines, as a bar to the right. Therefore, although a person is barred of one remedy, yet he may pursue any other remedy which may afterwards accrue to him. Thus, where a tenant in tail dis- continue^ for three lives, and the issue in tail was barred of his 23& OF THE T1ILK his formedon by the 21 Jac. I. (&); afterwards by the death? of the three tenants for life, a right of entry accrued to the issue, who entered, and his entry was held lawful (c). 2. It has frequently been thought that the rights of in- fants, femes coverts, persons in prison, and beyond sea, are saved by the act of 32 Hen. VIII. (d) \ but on examination it will appear, that the savings extended only to persons who laboured under any of those disabilities at the time the sta- tute 2vas made (e) (6). 3. The saving clause in the act of James (7) only extends to the persons on whom the right Jirst descends ; and there- fore when the time once begins to run, nothing can stop it (/). So that on the death of a person in whose life the time first began to run, his heir must enter within the resi- due of the ten years, although he laboured under a disabi- lity at the death of his ancestor. In the case of a fine, it was formerly thought, that if a person died under a disability, his heir was excepted out of the statute of fines, by the proviso ( g) j although the con- trary has been determined by a modern case (//). In the statute of James, the legislature being aware of this point, (b) Ch. 16. (/) Doe v. Jones, 4 Term Rep. (c) Hunt v. Bourne, Lutw. 781, 300. 2 Salk. 422, Com. 124, 1 Bro. (g) See Cruise on Fines, 258, P. C. 53. and the cases there cited. (<0 Ch. 2. ( h) Dillon v. Leman, 2 H. Black. (e) See Bro. Reading, p. 60. 584. (C) In even the last edition of Bacon's Abridgment, it is stated gene- rally, that the act of 32 Hen.VIII. hath the usual saving for infants, femes coverts, persons in prison, and beyond sea. (7) Note, Dublin or any other place in Ireland is a place within the meaning of the saving of the rights of persons beyond the seas, Anon. 1 Show. go. expressly A PURCHASER MAY REQUIRE. 239 expressly provided for the death of the person to whom the Jirsl right should descend ; and therefore where a person, to whom the right first descended, dies under a disability, his heir must enter within 10 years after his death (i). And it seems that where no account can be given of a person within the exceptions in the act, he will be presumed to be dead at the expiration of seven years from the last account of him (k). 4. It is generally conceived, that a possession for 60 .years creates a good title against all the world. Thus judge Jenkins (/), lays it down without qualification, " that a peaceable possession for 60 years makes a right ; for 2 1 Jac. I. ch. 16, takes away the entry and assise ; 32 Hen. VI II. takes away the writ of right and the formedon." So Mr. justice Blackstone says (m), that the possession of lands in fee simple uninterruptedly for CO years, is at present a suf- ficient title against all the world, and cannot be impeached by any dormant claim whatsoever." This however, Mr. Christian remarks, in a note to the above passage, is far from being universally true ; for an uninterrupted posses- sion for 60 years will not create a title, where the claimant or demandant had no right to enter within that time ; as where an estate in tail, for life, or for years, continues above 60 years, still the reversioner may enter and recover the estate. Perhaps this remark is not sufficiently pointed. Black- stone certainly did not mean, that the lawful possession, during 60 years of a tenant in tail, for life, or for years, would operate as a bar to the reversioner's title, but he alluded to a clear adverse possession for 60 years. (i) See Jenkins, 4 Cent. pi. 9? j (/) 1 Cent. pi. 40. Doc v. Jesson, Q East, 80. (m) 3 Comm. I96, (k) Doev, Jesson, ulisup. However 240 OF THE TITL^ However, even in this light, his position admits of excep- tions : for, as the statutes of limitations bar the remedy only, and not the right, it is possible that an estate may be enjoyed adversely for hundreds of years, and may at last be reco^ vered by a remainder man. For instance, suppose an estate" to be limited to one in tail, with remainder Over to another in fee, and the tenant in tail to be barred of his remedy by the statutes of limitations, it is evident, as his estate subsists^ the remainder man's right of entry cannot take place until the failure of issue of the tenant in tail ; which may not happen for an immense number of years. This doctrine is illustrated by the great case of Taylor v. Horde (n)j where an estate was settled on several persons successively in tail ; remainder to A. in fee ; and one of the remainder men in tail, being out of possession, brought an ejectment, which was held to be barred by the statute of limitations. Afterwards all the tenants in tail died without issue, and the then heir at law of A. brought an ejectment within twenty years from the time his remainder fell into possession, and he recovered the estate.; 5. After passing the act of 32 Hen. VIII. and before that of the 21 Jac. I. although a man had been out of posses- sion of land for 60 years, yet if his entry was not tolled, he might enter and bring any action of his own possession (o). Some writers have thought this still to be law (/)), but the rule in this respect was altered by the statute of James ; by which no person can now enter, except within 20 years after his title accrues. 6. The rule in equity, that the statute of limitations does not bar a trust estate, holds only as between cestui que trust (n) 1 Burr. 60, 5 Bro.P.C. 247, (/>) See Wood's Inst. 557 ; and Cowper, 689. Christian's n. to 3 Black. Com. 1 9&. (o) See Bevill's case, 4 Co. 11 b. and A PURCHASER MAY REQUIRE. S41. and trustee, not between cestui que trust and trustee on one side, and strangers on the other; for that would be to make the statute of no Force at all, because there is hardly an estate of consequence without such a trust, and so the act would never t?uve place. Therefore, where a cestui que trust, and his trustee, are both out of possession for the time limited, the party in pos- session has a good bar against both (7). 7. Although the statute cannot, as between the trustee and cestui que trust, operate as a bar to the latter, yet the trustee may, in some cases, be barred by the possession of the cestui que trust, or those claiming under him (r). A cestui que trust, is as a tenant at will to the trustee, and his possession vs the possession of the trustee (.>■), and therefore, unless under very particular circumstances, time could not operate as a bar(0- Where a cestui que trust sells or devises the estate, and the vendee or devisee obtains posses- sion of the title-deeds, and enters, and does no act recoghi- sincr the trustee's title, there is great reason to contend that this is a dissesin of the trustee, and consequently that the statute will operate from the time of such entry. This is a. point which daily occurs in practice ; but it rarely happens, that a purchaser can be advised to dispense with the con- veyance of a legal estate, where the- defect will appear on the abstract when he sells. And where there has been any dealing on the legal estate, and it has been recently noticed (q) Per lord Hardwicke, in cosh Ves. Jun. 199, 8 Ves. Jun. 100. Llewellyn v. Mackworth, Barnard. (r) See lord Portsmouth v. lord Rep. Cha. 445; 15 Vin. 125, n. Effingham, 1 Ves. 430 5 Harmood to pi. 1; and see Townsend v. v. Oglander, 6 Ves. Jun. lyc^SVes. Townsencl, 1 Bro. C. C. 550 ; Clay Jun. 100. v.Clay, 3Br0.CC. 63Q,n., Arabl. (s) See I Ventr. 320. 645 } Hercy v. Ballard, 4 Bro.C.C. (/) See 3 Mod. 140 ; earl of Ppm- 469 ; and Harmood v. Oglander, 0' fret v. lord Windsor, 2 Ves. 472. r in 2f2 Of THE TITLE in the title deeds as a subsisting interest, it is clear that a purchaser must consider it as such (a). 8. The statutes of limitations certainly cannot operate as between cestuis qiic trust ; but it seems that equity, in ana- fogy to the statute, will hold time a bar („r) ; and indeed thai equitable rights in general will, by the Hke analogy, be affected by time in the same manner as legal estates {y). This is exemplified, in some degree, by the rules respect- ing an equity of redemption, which is a mere creature of the court (z). In Clay v. Clay (4), lord Camden laid down this doctrine very clearly. He sjnd, " as often as parliament has limited the time of actions and remedies, to a certain period, in legal proceedings, the court of Chancer)- adopted that rule, and applied it to similar cases in equity* For when the legis- lature has fixed the time at law, it would have been prepos- terous for equity (which by its own proper authority always maintained a limitation) to countenance lachess beyond the period that law had been confined to by parliament. And, therefore, in all cases where the legal right has been barred by parliament, the equitable right to the same thing has been concluded by the same bar/' The legal provisions afe so strictly adhered to, that per- sons labouring under any of the disabilities specified in the statute of limitations, will be allowed the same time as they would be emitted to in the case of a legal claim (£). (■k-Y'Slv Goodticle v. Jones, 7 Pearson v. Pulley, I Cha. Ca. 102;; Term Ren. 4/. Jenner v. Tracey, and Belch v. Ha?- (.i-) See Harrnwood v. Oglanuer, vey, 3 P.Wms, 287, n- ; see a full atis&S. n ^te of this case, Appendix, no. 12. ( >/) See l Atk. <*7<5; and Stack- (a)\3 Bio. C. C. 63Q, n., Ambk house v. Barnston, 10 Ves. Jun. 645. 466: (h Lytton v. Ly tton, 4 B'ro.CC- (*) White v. EweT y 2Ventr.340j 441: 9, Thesfr A PURCHASER MAY REQUIRE. 24$ 9. These observations may be closed by observing, that few cases occur in which a title depending On the statute of limitations can be recommended. The bare receipt of rent is no ouster, for it i^a contradiction in terms, that a man by wrong should have my right (t) ; and therefore the opera- tion of the statute must frequently be prevented by the exist- ence of a lease granted by the person whose interest is wished to be barred. So (d) there may be a case where the circumstance of concealing a deed shall prevent the statute barring ; but then it must be a voluntary and fraudulent detaining ; for to say that merely having an old deed in one's possession shall deprive a man of the benefit of the act, is going too far, and would be a harsh construction of a statute made for the quieting of possessions. (c) Gilb. Ten. of. and see Dormer v. Parkhurst, 3 (d) Per lord Hardwicke> in easii Atk. 124 j see also Snell v. Silcock, Llewellyn v. Mackworth, Barnard. 5\ T es.Jun. 469 ; Bowles r. Stewart, Hep. Cha. 445 ; 15 Vin. Abr. 126, 1 Schoale's and Lefrov's R??. 20o, pi. 8 ; 2 Eq. Ca Abr. 579: P L 9) *■* *« A ** C 2 *4 3 CHAPTER VIII. OF THE TIME ALLOWED TO COMPLETE THE CONTRACT. In sales by private agreement, It is usual to fix a time for completing the contract, which is, at law, deemed of the essence of the contract ; but in certain cases, equity will carry the agreement into execution, notwithstanding the time appointed be elapsed : for, as lord Eldon remarks, the title to an estate requires so much clearing and enquiry, that unless substantial objections appear, not merely as to the time, but an alteration of circumstances affecting the value of the thing ; or objections arising out of circumstances, not merely as to the time, but the conduct of the parties during the time ', unless the objection can be so sustained, many of the cases go the length of establishing, that the objec- tions cannot be maintained (a). Objections on account of delay seem divisible into two kinds. The one where the delay is attributable to the neg- lect of either party ; the other where the delay is unavoida- bly occasioned by defects in the title ; and of each of these* Vv e shall treat in its order. 1 . First then, with respect to delays occasioned by the neglect of either party. The time fixed on for the completion of a contract, was formerly paid less attention to in equity, than it now is> which seems to have arisen f rom the case of Gibson v. Pa- (a) Per &rd Eldon, *cc 7 Vc&. Jun. 274. tcrson OF THE TIME ALLOWED, &C. 245 terson (Z>), where, according to the report, a specific per* formance was decreed in favour of the plaintiff, the vendor, without any regard had to his negligence in not producing his title-deeds, the ~4S OF THE TIME ALLOWED the court to relieve ; but it was a different thing to say, that the appointment of a day was to have no effect at all, and that it was not in the power of the parties to contract, that if the agreement was not executed at a particular time, the parties should be at liberty to rescind it. And his lordship, therefore, considered the contract as at end. But where a vendor has proceeded to make cut his title, and has not been guilty of gross negligence, equity will assist him, although the title was not deduced at the time appointed. Thus in Fordyce v. Ford (/), the purchase was to be com- pleted on the SOth of July 1 793. The abstract was not delivered until the 8th, and the treaty continued until the 25th of September, on which day the deeds were deli- vered, and every difficulty cleared up; when the purcha c :r refused to proceed, alleging that he wanted the estate for a residence for the last summer, and insisting he was not bound to go on, on account of the delay. The master of the Rolls said, the rule certainly was, that where in a con- tract either party had been guilty of gross negligence, the court would not lend its assistance to the completion of the contract ; but in this case he thought there had been no such negligence, and decreed accordingly ; adding, that he hoped it would not be gathered from thence, tha( a man was to enter into a contract, and think that he was ^o have his own time to make out his title. The rules on this subject apply, as they ought to do, to each party. And therefore where a purchaser permits a long time to elapse, without evincing a fixed marke^ inten- tion to carry his contract into execution, he will be {eft to his remedy at law, although he may have paid part of the purchase-money (m). Nor will he be assisted by equity, (/) 4 Bro. C. C. 4$4. 4 Ves. Jun, 686. Lm) Harrington v. "Wheeler, where TO COMPLETE THE CONTRACT. 249 where he has made frivolous objections to the title, and trifled, or shown a backwardness to perform his part of the agreement, especially if circumstances are altered (n). And where the price is unreasonable or inadequate, or the contract is in other respects inequitable, equity will not assist either party, if he has permitted the day appointed for completing the contract to elapse without performing his part of the agreement (o). The time however is more particularly attended to in sales of reversions ; for it is of the essence of justice that such contracts should be executed immediately and without delay. No man sells a reversion who is not distressed for money ; and it is ridiculous to talk of making him a com- pensation by giving him interest on the purchase-money, during the delay (p). So time is very material where the estate is sold in order to pay off any incumbrance bearing a higher rate of interest than the vendor is entitled to receive, in respect of the pur- chase-money during the delay (q). II. Secondly, we are to consider the effect of delay, where it is unavoidably occasioned by defects in the title. It may be laid down as a general proposition, that a de- (n) Hayes v. Caryll, 1 Bro'P.C. (©) Vide ante, cb. 5 ; andWhor- 27, 5 Vin. Abr. 538, pi. 19; Spur- wood v. Simpson, 2 Vern. 186} ricr v. Hancock, 4 Ves. Jun. 667 3 Lewis v. lord Lechmere, 10 Mod. Pope v. Simpson, 5 Ves. Jun. 145 ; 503. and Coward v. Cdingsale, 2 Eq.Ca. (p) Newman v. Rogers, 4 Bro. .Abr. G88, pi. 5; and see Green v. C. C. 3^1 ; and see Spurrier *. Wood, 2 Vern. 632 j Bell v. Ho- Hancock, 4 Ves. Jun. 667. ward, 9 Mod. 302 5 and Main v. (?) Popham v. Eyre, Lofft, 786. Melbourn, 4 Ves. Jun, 720. lav 250 Of THE TIME ALLOWED lay accounted for on this ground will not prevent a specific performance being decreed, where the time fixed for conu pleting the contract is not material. Indeed, where time is not material, and the title is bad, but the defect can be cured, if the vendee is unwilling to stay, the vendor should file a bill in equity to enforce the performance of the con* tract (r) ; for it is sufficient if the party entering into articles to seii, has a good title at the time of the decree ; the direc tion of the court being, in all these cases, to enquire whether the seller can, not whether he tould, make a title at the /"L**c«L_ pf execu ting the agreement. This principle was followed in a ease of frequent refe- rence (j). And in a late case (t), the vendor, at the time he filed the bill for a specific performance, had only a term of years in the estate of which he had articled to sell the fee simple, and after the bill was filed, procured the fee by means of an act of parliament ; and as the day on which the contract was to be carried into execution was not mate- rial, a specific performance was decreed. The same rule prevails at law, where no time is fixed for completing the contract, and an application for the title has not been made by the purchaser, previously to an action by the vendor for breach of contract. For in Thomson v, Miles (m), a man agreed to sell a term, of which he stated 40 years to be unexpired. It appeared there were only 39, but by an agreement endorsed on the lease, the lessor agreed to add one year to the unexpired term. This agreement was dated after an action brought by the vendor for (r) See 6 Ves. Jun. 655 j lOVes. 7 Ves. Jun. 263. Jun. 315. (0 Wynn v. Morgan, 7 Ves, (s) Langford v. Pitt, 2 P. Wms. Jun. 202. 629 » and see Jenkins v. Biles, 6 (u) I Esp. Ca, 184. Ves. Juh.G'IO" 5 and Setonv. Slade^ images TO COMPLETE THE CONTRACT. 251 damages on breach of agreement ; and lord Kenyon ruled, that the vendor having at that time a good title, was suffi- cient. His lordship said, that it had been solemnly ad-r judged, (hat if a party sells an estate without ha\ing title, but before he is called upon to make a conveyance, by z private act of parliament, gets such an estate as will enable him to make a title, that is sufficient : that here the plaintiff being enabled to make a title, and the defendant never having applied for it, he should not be allowed to set up against the plaintiff, though the power of making that title, was obtained after the action brought. But if the vendor produce a defective title, and the pur- chaser bring an action for recovery of the deposit, the vendor having a title at the time of the trial will not avail him. Thus in a late case (a) the facts were, that upon a sale it was agreed that the purchase-money should be paid on or before Lady-day, 1803, on having a good title. The ven^ tjors were assignees of a bankrupt who claimed under a will. They thought that he had an estate tail under the will, and that therefore they could make a title ; but under the devise he only took for life, with contingent remainders over. The bankrupt, however, being heir at law of the testator, could make a title by levying a fine, and was wi- ling to join ; but these facts were not stated in the abstract delivered, or communicated to the purchaser until a fort- night before the assizes. The court, after shewing that the bankrupt took only an estate for life under the devise to him, said, as it was stated, that previous to the time fixed for payment of the money and completion of the purchase, or indeed till near the time (x) Se\rard v. Willock, 5 East, 193 ; 1 Smith's Rep. 3Q0, S. C. of 252 OF THE TIME ALLOWED of trial, no information was given to the purchaser that the bankrupt was heir at law of the testator, but the title of the assignees appeared to have been delivered in on the supposi- tion of the bankrupt being tenant in tail, they thought that the defendant had failed in making good the agreement on his part ; and that thereupon a right of action at law had accrued to the plaintiff. How far the title since communi- cated might in another course of proceeding in another place, render the present proceeding abortive ; and whe- ther the plaintiff might not be ultimately compelled to fulfil his agreement, was not for them in that action to decide. In an early case (?/) the court of Chancery carried this doctrine very far ; for at the time of the articles for sale, or even when the decree was pronounced, lord Stourton, the vendor, could not make a title, the reversion in fee being in the crown ; and yet the court indulged him with time more than once for the getting in the title from the crown, which could not be effected without an act of parliament, to be obtained m the following session ; however it was at length procured, and sir Thomas Meers decreed to be the purchaser (1). But it may be doubted whether a court of equity would now allow so much time (z) ; unless the purchaser, with notice of the defects in the title, had proceeded in the (y) Lord Stourton v. sir Thomas 2 Ves. Jun. 526. Meers, stated in 2 P. Wms. 631 ; (z) See Omerod v. Hardman, 5 and see Sheffield v. lord Mulgrave, Ves. Jun. 722. (1) Note, it appears that sir Thomas Meers was mortgagee of the estate j see sir Thomas Meers v. lord Stourton, 1 P. Wms. 146 ; and it is therefore probable that at the time he entered into the contract, he was aware of the defects in the title. treaty* TO COMPLETE THE CONTRACT. -53 treaty. For if a purchaser enter into, or proceed in a treaty, after he is acquainted with defects in the title, and knows that the vendor's ability to make a good title depends on the defects being cured, he will be held to his bargain, although the time appointed for completing the contract is expired, and considerable further time may be required to mak eagood title. Thus in a case (a) where it was agreed upon a purchase, that it should be completed on the 5th April 1792, it ap- peared that the purchaser had applied for an abstract at the latter end of January, or the beginning of February, which not being sent to him, he, after the expiration of the time for the completion of the purchase, applied for- his deposit, saying, that he should not proceed in his purchase. About the 21st of April, an abstract was sent him, and it appeared that a suit in Chancery must be determined before a title could be made, upon which he again declared he would not proceed in the purchase, and again required his deposit. In Trinity term he brought an action for his deposit, and on the 6th of November the bill was filed. The purchaser, by his answer, stated that the suit Was still depending, and that questions of law had arisen, which then stood for argu- ment in the court of King's Bench. The lords commissioners Ashurst and Wilson granted an injunction, which was continued by lord Rosslyn, who said, in these contracts (sales by auction) in general, the time of completing the contract is specified, and deposit is paid ; and if the title is not made out by the time, the vendee is entitled to take back his deposit. But in this case the vendee (a) Piacke v. Curteis, 4 Bro. Meller, 6 Ves. Jan. 349; see Smith C. C. 329 5 and 6ee Smith v. Bur- v. sir Thomns Dolman, 6 Bro. P.C. nam, 2 Anstr. 527 ; and Paine v. 29l,b)-Tomlins, was 254> CF THE TIME ALLOWED was apprised of the title depending on the ability of th* vendors to make a gcrod title, which itself depended on the event of a Chancery suit, and was, notwithstanding, willing to go on with his purchase ; there had bce?i a communication of the delay of the suit, and the present bill was filed after great delay (2). If the vendee had called for his deposit at the end of the time limited for completing the purchase, and insisted he would not go on with his purchase, the court would not have compelled him. The cause was afterwards heard before the Master of trig Rolls, who was also of opinion, that there had been a suffi- cient communication of the real state of the delay, and that the purchaser had acquiesced in it, or at least not sufficiently- declared his dissent to go on with the purchase ; and there- fore it was referred fo the master to enquire as to the' title. So in Seton v. Slade (b), it appeared that the purchaser was aware of the objections to the title at the time he pur- chased the estate, and afterwards accepted the abstract within a few days of the time appointed for compearing the con- tract. He had, however, previously declared, that if the' title was not made out by the time, he would relinquish the contract •, and the day after the time appointed, he actually applied for his deposit, alleging that the abstract, so far from shewing a right in the vendor to convey, stated merely a contract for purchase by him, without noticing a suit in Chancery. But the purchaser having been aware of the (1)7 Ves. Jun.265, (2) His lordship's judgment shews the true ground of the decree j but according to the state of facts in the report, the case was similar to that of Lloyd v. Collet, stated supra, p. 24/. objections TO COMPLETE THS CONTRACT. 255 objections to the title, and having afterwards received the abstract, a specific performance was decreed. Although a treaty may have lain dormant for some time, yet if the contract is not abandoned, a performance will be decreed in specie. Thus in a case (c) where, upon objections to a title, the treaty had proceeded for about two years, when the vendor's solicitor wrote, calling for a distinct answer, saying that otherwise he must be under the necessity of filing a bill. No answer was returned to the letter, nor was any notice given that the purchaser considered the contract as abandoned ; neither had he brought any action for the deposit. The bill was filed after a delay of about 14 months, and the defendant resisted a specific performance, on the ground of delay, by which, he stated, he had suffered material incon- venience, having purchased the place as his residence, and that he was induced to consider the contract as abandoned ► A specific performance was however decreed. But if a purchaser object to the title, and declare he will not complete the contract, and the vendor acquiesce in this declaration, he cannot afterwards clear up the objections to> his title, and compel the purchaser to perform the agree- ment. This was decided in the case of Guest v. Homfray (rf)* The purchaser took objections to the title, and was informed that no better title could be made ; whereupon he said,. he would not proceed in the purchase, and afterwards returned the abstract, at the desire of the vendor, at the same time acquainting him (the vendor) that he (the pur- chaser) still considered the contract was at an end. In (c) Marquis of Hertford v.Boore, f Thanet, 5 Ves. Jun. 720, n, (b.) 5 Ycs.Jun7l9; see Milward v. earl (j) 5 Ves. Jun. 818. abcut %l/6 OF THE TIME ALLOWEI7 about eight months after this, the abstract was returned, witl? the objections answered, and the bill was filed uoon the defendant refusing to complete the contract. But the bill was dismissed, although it was clear that the purchaser had almost all the time wished to be off the bargain. Lord Alvanley, then master of the Rolls, said, they should have cautioned the purchaser, and told him they were going; on to make out a title. If they had done all that, and shewn a probable ground to the purchaser that they might make a good title, lord Alvanley said, he should perhaps not have thought a year too long. Where circumstances are such that the purchase-money cannot be paid for a length of time, as if the purchaser die, or become bankrupt before the contract be carried into effect, and his exacutors, or assignees, are not able to get in the assets, or effects, the vendor is entitled to require the contract to be rescinded, and he will be allowed his costs(e) ; or he may demand a specific performance ; and if the defendants are unable or unwilling to perform the con- . tract, that the estates may be resold ; and if the purchase- money arising by the resale, together with the deposit, shall not amount to the purchase-money, that the defendant may pay the deficiency. — A bill for the latter purposes was filed by a vendor against the assignees of a bankrupt, and a decree was made for resale. The deficiency upon that resale was 501 G/. ; and the cause coming on for further directions, lord Rosslyn directed that sum to be proved under the com- mission ; saying, the whole purchase-money was the debt, and the vendor had a lien on the estate (_/) ; which proving (e) Mackreth v. Marlar, Cox's a. James Lowther v. lady Andover, 1 to 2 P. Wms. 6/ ; Whittaker v. 1 Bro. C. C. 300*. Whittaker, 4 Cro.C.C. 31 ; see Sir (/) Vide supra, ch. 1. iusufficient T0 COMPLETE THE CONTRACT. 257 by the resale, deficient, the residue was to be proved under the commission (g-). It remains to consider, whether equity will permit the parties to make the time the essence of the contract. In Gregson v. Riddle (A), the agreement was for a parti- cular day ; with a proviso, that in case the title should not be approved in two months, the agreement was to be void, and of no effect. There was an outstanding legal estate, which could not be got in by that time, A bill was filed for that purpose, to have the legal estate conveyed. The defendant resisting, a reference was directed, to see whether a good title could be made ; lord Loughborough, then lord com- missioner, expressing an opinion, that the terms of the agreement were complied with. The report was in favour of the title. The cause coming on before lord Thurlow, the performance was still resisted. Lord Thurlow said, it had been often attempted to get rid of agreements upon this ground, but never with success. The utmost extent was to hold it evidence of a waiver of the agreement : but it never was held to make it void. Mr. Mansfield, for the defend- ant, said, the intention was clearly to make it void ; and that it would be necessary to insert a clause, that notwith- standing the decision of the court of Chancery, it should be void. Lord Thurlow said, such a clause might be inserted ; and the parties ivould he just as foriuard as they were then. On this dictum it must be remarked, that the case did not call for it, as the agreement appears to have been sub- stantially performed within the time. And lord Thuriov/S opinion has not been followed in subsequent cases. (g) Bowles v. Rogers, 6 Ves. (b) 7 Ves. Jun, 268, cited. Inn. Q5, a, $ For "258 OF THE TIME ALLOWED For In Lloyd v. Collet (i), in which the case of Gregson v. Riddle was cited, lord chancellor Loughborough said, the conduct of the parties, inevitable accident, kc. might induce the court to relieve ; but it was a different thing to say, the appointment of a day was to have no effect at all, and that it was not in the power of the parties to contract, that if the agreement was not executed at a particular time, the parties should be at liberty to re- scind it. And in the late case of Seton v. Slade (k) lord Eldon said, he inclined much to think, notwithstanding what was said in Gregson v. Riddle, that time may be made the es- sence of the contract. The case under consideration has been assimilated to a mortgage, where, although the parties may have expressly stipulated, that if the money be not paid at a particular time, the mortgagor shall be foreclosed, yet equity will per- mit him to redeem, in the same manner as if no such stipu- lation had been entered into. There does not appear to be any analogy between the cases. In a mortgage such a declaration is inserted by the mortgagee for his own advan- tage ; but as the land is merely a security for the debt, equity rightly considers that a mortgagee ought only to require his principal and interest, and not to obtain the estate itself, by taking advantage of the necessities of the mortgagor. Once a mortgage and always a mortgage, has therefore become a maxim ; and under this axiom equity is indeed administered ; the parties being put in possession of their respective rights, without detriment to each other. The same reasoning seems to apply to relief against a (») 4 Bro. C.C. 469, 4 Ves. Jim. Lewis v. lord Lechmere, 10 Mod. €89 ; n. stated supra. <503 j see also 3 Ves, Jun. G93. [}{) 7 Ves. Jun. 205 ; and see penalty. TO COMPLETE THE CONTRACT. 259 penalty. But in an agreement for sale of an estate, where it is expressly declared that the contract shall be void if a title cannot be made by a stated time, the parties them- selves have mutually fixed upon the time ; the bona fides o^ such a transaction seems to be a bar to the interference of a court of equity ; and if the- contract be vacated by virtue of the agreement, the parties will still be in the possession of their respective rights. We may, therefore, perhaps,, ven- ture to assert, that if it clearly appear to be the intention of the parties to an agreement, that time shall be deemed of the essence of the contract, it must be so considered in equity (/). il) See Appendix, No, 6. H 2 CKAP- 260 CHAPTER IX. op the abstract and conveyance : the a3si Where the estate lies in a register county, the convey ance should be registered as soon as it is executed. Mr. Hilliard remarks (o) that, by the statutes for registry there is no time limited for registering deeds ; and that it is there- fore obvious from an inspection of the acts, how necessary it is, that deed, should be registered immediately on their bAng executed: to enforce this the more strongly, he adds, it may not be useless to consider, if a subsequent convey- ance or mortgage should be executed for a valuable cons.- deration, and from an almost momentary inattention or de- lay of the first vendee, or mortgagee, in not immediately registering, the second vendee or mortgagee should register first; whether, in sueh case, the first vendee, or mortga- ge, doth not thereby become in a worse situation than he would have been by law, in case the registering acts had not been made. It is very clear, that in this case, the subsequent purchaser or mortgagee, unless he had notice, would prevail over the first vendee, or mortgagee. And it must be remarked, that by delaying to register his conveyance, a purchaser gives a prior incumbrancer, who may have neglected to re- nter his incumbrance,. an opportunity of retrieving his error, and thereby establishing his demand on the estate ; for the acts only say that deeds shall be void, unless such memorial thereof is registered as by the acts is directe4 be- fore the registering the memorial under which the subse- quent purchaser claims (£/. It appears, therefore, that there are two cogent reasons why a memorial of the conveyance should be duly registered immediately after the execution of the conveyance; the one, that a prior incumbrancer might, during the delay, re. (o) tf.C* 4 ) to Sbep. Touch. 116. and chapter 16. (/>) Vide infra in this chapter, ^ ^ ^ 264 OF ASSIGNMENTS OF TERMS. gister his incumbrance ; the other, that the delay might give an unprincipled vendor an opportunity of selling the estate to a bonajide vendee without notice; who, if he registered his deeds before the registry of the first convey- ance, would certainly prevail against the first purchaser. A purchaser may require an assignment of all outstand- ing terms, of which he could avail himself in ejectment, to attend the inheritance ; at least it is the practice of the pro- fession to insist on an assignment of such terms ; and if the purchaser leave them outstanding, he may not, perhaps, have the full enjoyment of his estate, without, at some fu- ture period, being himself at the expense of getting them in : for even a mortgagee would be very unwilling to ad- vance money on the estate, unless rhe terms were assigned, lest a subsequent mortgagee or purchaser, without notice, should obtain an assignment of them, and sc over-reach the prior mortgage. The position that a purchaser may require an assignment of all outstanding terms of which lie can avail himself in, ejectment to attend the inheritance, naturally calls our at- tention to .he cases in which a term may be used upon an. ejectment. We have already seen that, in some cases, the. possession of the cestui que trust may operate as a bar to his trustee (q). So where a purchaser is not, at the time of his contract, aware of the term, and its existence would en- danger or affect his title, a fine levied, with five years non- claim, will operate as a bar to the trustee of the term (r) j (q) Supra, p. 241. Car. 100, 5th resol. 2 Ventr. 320 O (r) Isehara v. Morrice, Cro. although. OF ASSIGNMENTS OF TERMS. 265 although, where the term is assigned in trust for the pur- chaser, a fine levied will not affect it, as such a construc- tion would be manifestly contrary to the intention oi the parties (s). But as the law on these points is not well settled, it may be laid down as a general rule, that nearly all terms for years, however ancient, and notwithstanding any adverse possession or fines may be required by a purchaser to be assigned to attend the inheritance. And where a terra has once been assigned to attend the inheritance, although at a period very remote, and it has been since treated as a subsisting term by declarations in the subsequent deeds, that the person in whom it is vested shall stand possessed of it in trust to attend the inheritance, a purchaser can never be advised to permit the term to continue outstanding, as it is clear that it may be used against him upon an ejectment. Where terms for years are raised by settlements, it is, usual to introduce a proviso, that they shall cease when the trusts are at an end. In well-drawn deeds this proviso, always expresses three events : 1st, the trusts never aris- ing ; 2dly, their becoming unnecessary or incapable of taking effect ; or, Sdly, the performance of them. But it frequently happens, in ill-penned instruments, that these events are not accurately expressed, or not all provided for ; and in those cases it must be seen whether, in the events which have happened, the term has ceased, for if it has not the purchaser must require an assignment of the term. To illustrate this doctrine, let us suppose a term for years to be created for raising a sum cf money for the first son of A. who shall attain '21, and that it is declared by the deed, that when the trusts are performed the term shall cease. Now, in this case, if A. should not have a son who attains 21, the trusts would not have arisen, and consequently could (*) Freeman v. Barnes, 1 Ventr. 80, 1 Lev. 2; , J not 26G OF ASSIGNMENTS OF TERMS. not be performed ;'and it seems that the term will not cease,, the event which happened not being provided for in the de- claration for cesser of the term. Where a portion is secured by a term of years, and the term is directed to cease upon payment of the money, and the estate is sold before the portion is paid, it sometimes hap- pens that the purchaser is desirous to keep the term on foot, and the following plan has been adopted for that purpose : A fictitious mortgage is first made of the term for raising the portion, to a friend of the purchaser, in which the purchase is not noticed ; then the estate is conveyed to the pur- chaser in the usual way, subject to the mortgage ; and then, by a subsequent deed, the supposed mortgagee de- clares that he has been paid off, and that he will stand pos- sessed of the term in trust for the purchaser, and to attend the inheritance. Now, this plan, although certainly inge- nious, is, I fear, ineffectual. It is impossible to read the deeds bearing date, as they necessarily must do, within a day or two of each other, without seeing that the whole proceeding is fictitious ; and if the term should be set up in ejectment, it would be quite open to the adverse party to insist that the deeds were nugatory. And when the fact is once established that the portion was paid off without a bona Jfide mortgage, it should seem that the term must cease, by force of the proviso in the deed creating it, and that no ar- tifice of the parties can keep it alive. We may now consider shortly the leading rules on the doctrine of merger of terms of years, without a know- ledge of which, the practical conveyancer must incessantly be at a loss to know of what terms to require an assign- ment. Where a term of years and the inheritance meet in one person in the same right, the term is extinct. So OF AFSJGNMENTS OF TERMS. 26? So a man cannot, sir Edward Coke says, have a terra for years in his own right, and a freehold in aider droit, to consist together (t) ; and he illustrates this rule by stating, that where a man, lessee for years, take a feme lessor to wife, the term is extinct. But this position appears to be contradicted by the case of Lichden v. Winsmore (w), in which it was held, that if there be lessee for years, reversion for life to A. a married woman, and the lessee grant his estate to the husband, and then the wife dies, the term is not extinct, because the husband has the estates in several rights, for the freehold was in the wife, and the husband was merely seised in her right. And it is clear, that if in a case like this, the coalition be not occasioned by the act of the termor, the term will not merge. Thus, the descent of the fee upon the wife of a termor for years after the intermarriage will not drown the term, because the estates do not coalesce by the act of the termor for years (a ), and the term he holds in his own right, and the freehold in right of his wife. This was de« cided in the reign of James I. by Fleming C. J. and Fen- ner and Croke, justices, against the opinion of Williams, justice, who, even after judgment was given, said to the counsel at the bar that, as clear as it was that they were at the bar, so clear it was that the term was extinct; and in other respects expressed himself very violently, so that sir Edward Coke's doctrine was not over-ruled without oppo- sition. Where, however, a husband termor for years, seised of the freehold in right^of his wife, has issue by the wife, so that he is entitled, in his own right, as tenant by the cur- (0 1 Inst. 333. b. (*) Lady Piatt v. Sleap, do. (a) 2 Roll's Rep. 472, 1 Ro. Jac. 275, 1 Bulstr. 118. Jenk. 2d. Abr. 934. pi. 10. Een. 141. Cent. pi. 38. tesy, 268 OF ASSIGNMENTS OF TERMS. tesy, there seems reason, to contend that the term will merge (7/). A term, vested in a person as executor, may belong to him beneficially ; and it therefore seems, that if he purchase the reversion the term will be extinct; although it is usual in practice to require an assignment of such a term on a fu- ture purchase of the inheritance ; and this practice is sanc- tioned by an obiter dictum of lord CJ- Holt's, in Cage v. Acton (z\ where he admitted (as a point perfectly clear) that if a man hath a term as executor, and purchases the re- version, this is no extinguishment. But in Brooke's abridg- ment it is in three several places (a) stated to have been held by the judges Hales and Whorwood, in 4 Ed. VI. that if a man has a lease for years as executor, and after- wards purchases the land in fee, the lease is extinct ; and this position is cited and not denied in several cases (6), and is adopted by Rolle in his abridgement (c). So in a case in Leonard (d), Dyer explicitly laid down the same doc- trine ; and it has been treated as clear law, in two cases, one of which is reported by Hetley (e), and the other by Free- man (/). And in one case one of the judges thought that even the descent of the fee on the executor would merge the term (°*), although lord chief baron Gilbert justly questions this position (A). The rule, that a purchase of the fee by the executor shall merge the term, appears to be founded, in reason as well as upon authority j for as far as his owu, (y) See 1 Bulstr. 118. (c) 1 Ro. Abr. 034, pi. Q. (a) 1 Salk. 326, Com. 69 ; and. (r/)4 Leo. 3/, pi. 102. see Webb v. Russell, 3 Term Rep. '(e) Het. 36. 393.' (/) 1 Freem. 280, pi. 33 S, (c) Bro. Abr. Extinguishment (g) See 3 Leo. 112. 54 3 Leases 63, Surrender 52. (A) See Eac. Abr. Leases. (R.). (b) 3 Leo. ill. 2 Roll's Rep. 472. interest OF ASSIGNMENTS OF TERMS. 269 interest is concerned there cannot be any reason why the term should not merge. It is admitted, however, on all hands, that the term shall not be extinct as to creditors, and this I am induced to believe, from lord Raymond's report of Cage v. Acton, is all that lord chief justice Holt meant (i), although his dictum is so generally stated in Comyn's and Salkeld's reports of this case. At any rate, it was an obiter dictum, and cannot affect a doctrine apparently so well es- tablished ; and it is therefore submitted to the reader, that in a case of this nature the term must merge in the inheri- tance. But a man may have a freehold in his own right, and a term in aider droit (A). Therefore, if a man seised of the freehold intermarry with a woman termor for years, the term is not extinct, but the husband is possessed of the term in right of his wife, during the coverture, because he has not done any act to destroy the term, and the term is cast upon him by the act of law (/). So if the lessee grant the term to the wife of the lessor, it- will not merge (;/i). But if a man, possessed of a term in right of his wife, purchase the freehold, there seems ground to contend, that the term is merged, inasmuch as the estates coalesce by his own act, and not by the act of law ; as in the case of mar- riage. And in one case (rc) Dyer held the wife's term to bz extinct by the husband purchasing the fee ; and Man- wood, C.B. agreed with him ; and the same doctrine appearc to have been held in a case reported by Moore (o). Sir (i) I Lord Raym. 520. (*) Bracebridge v. Cook, Plo. (*) 1 Inst. 338. b. Comra. 417. (/) Bracebridge v. Cook, Plo u (a) Godb. 2, 4 Leo. 36. Comm. 417 ; and see 4 Lso. 3B, {A Mo. 54, pi. 157- Godb. 2 i Het. 36. Jisnry SVO OF ASSIGNMENTS OF TERMS. Henry Hobart, however, seems to have been of opinion* that a purchase by the husband of the fee should not extin- guish the term (p), and in this opinion sir John Holt appears to have coincided (')• It was formerly hclden, that a term for years could not merge in a term for years ; but in Hughes v. Robotham(-s), it was determined, that if there be two termors, he who has the less estate may surrender to the other, and the term will merge in the greater : 2dly, that although the reversion be for a less- number of years than the term in possession, yet the term in possession shall drown in that in rever- sion. It remains to observe, that before the statute of uses (t), if a termor for years was enfeoffed to uses, equity would not compel him to execute the estate so as to extinguish his term. By the statute of Henry, the use being transferred to the possession, the estates of termors who were enfeoffed to uses, would have been destroyed ; but to prevent this injustice an express saving was introduced into the act of the rights of all persons seised to uses. Therefore, if a fine cr feoffment be levied or made to a lessee for years to the use of ethers, the term is not extinct, although if the sta- tute had not been made the term would have been extin- guished at common law(^). So, where a termor for years was made a tenant to the precipe, it was held that, although the freehold vested in him drowned the term until the reco- (/>) Yong v. Radford, Hob. 3. Eliz. 302 ; see Bac.Abr. Leases (S) (q) See l Salk. 32(3. s. 2. (r) I Inst. 338, b. j 1 Freem. (0 27 H. VIII. c. 10, s. 3. 2SQ, pi. 338 j see Attorney-Gene- («) Cheney's case, Mo. 1Q6, pi. ral v. Saiids, 3 Cha. Hep. 1Q. 345. / Rep. 19. b., 20 a., cited. [s) Hughes v. Robotham, Cro. very OF ASSIGNMENTS OF TERMS. 2^1 very was suffered, yet, when the- recovery was perfected the term should revive (x). And it seems that the same rule must prevail where the conveyance is by lease and re- lease, although it has been strenuously argued, that as the lease for a year is a surrender in law of the prior term, the subsequent release to uses shall not bring the case within the saving of the statute of uses. There appears, how- ever, to be no weight in this argument ; a lease and re- lease being a common conveyance, and deemed one assu- rance ; and from one report of the case, in which the ques- tion arose, it seems that the judges (y) thought that the term was not extinguished by the lease for a year (z). The expense of the assignment of any terms of years which a purchaser can require to be assigned to attend the inheritance must be borne by the purchaser himself, but the title to them must of course be deduced at the expense of the vendor ; and if a term has never been assigned to at- tend the inheritance, the vendor must bear the expense, not. only of deducing the title, but also of the assignment of the term to a trustee of the purchaser's nomination to attend the inheritance. The rule that terms of years which have never been as- signed to attend the inheritance, must be assigned to a trus- tee of the purchaser's nomination at the vendor's expense, is not acknowledged by some gentlemen of eminence, wlio, on the contrary, insist that the purchaser must consider the term either as a protection, or as an incumbrance. If he -deem it a protection, then they contend that he must assign (x) Ferrers v. Fermor, 2 Roll's 127 ; best reported 3 Bac. Abr. Rep. 245, Cro. Jac. 643 ; Terrie's Leases, (R). S. C by thename of case, 1 Ventr. 280, cited. Row v. Stiles, 3 Keb. 283, 309, (y) See 3 Keb. 310. 2 Lev. 126. {») Fountain v. Cook, 1 Mod. it 272 OF ASSIGNMENTS OF TERMS. it at his own expense. If, on the contrary, the purchaser treat the term as an incumbrance, they admit that the ven- dor must discharge the estate from it, and accordingly offer* to merge the term at his expense. The general practice of the profession, however, is certainly in favour of the purchaser's right to require an assignment of the term to attend the inheritance at the vendor's expense ; and when it is admitted that the vendor may be compelled to merge the term at his own expense, it seems very difficult to con* tend that the purchaser may not insist upon its being assign- ed. A refusal to assign may, under these circumstances, be thought to be a mere subterfuge to avoid the expense of the assignment, and throw it upon the purchaser. If the purchaser insist upon an assignment of the term, it seems clear that the vendor cannot safely merge it, although the purchaser refuse to bear the expense of the assignment. The title appearing on the abstract, is that on which the purchaser is to act, and consequently the vendor, after de- livery of the abstract, ought not merely of his own autho- rity, to do any act to alte; or affect the title ; and a trus- tee of a term can scarcely be advised, after notice of a con- tract for sale of the estate, (when he is by construction of equity become a trustee for the purchaser) to merge the term against the consent of his cestui que trust, the pur- chaser. It would be difficult, therefore, to establish any other rule than that which, it is apprehended, is adopted by the generality of the profession. In some cases, perhaps, assignments of terms may be dispensed with. In Willoughby v. Willoughby (#), lord Hardwicke laid it down, that where an old term had been assigned upon an express trust to attend upon and protect the inheritance. (a) l Term Rep. 763. as OF ASSIGNMENTS OF TERMS. 273 m settled by such a deed, or the uses of such a settlement described or referred to particularly, as it sometimes hap- pens, and the conveyancer is satisfied that those uses bf the inheritance have never been barred till his new set- tlement or purchase is made, he may very safely rely upon it, because the very assignment carries notice of the old uses (1). Nay, where the assignment has been generally in trust to attend the inheritance, and the parties approve of the old trustees, they may safely rely upon it, especially in the cases of a purchase or mortgage, where the title- deeds always are, or ought to be, taken in : for if he has the creation and the assignment of the term in his own hands, no use can be made of it against him. But a declaration of trust of a term should never be re- lied udoii, unless all the title-deeds are delivered to the pur- chaser. A mere declaration of trust will not protect the possession against a subsequent purchaser bonaJLdei and with out notice, who procures an assignment of the term ; and it has even been held, that the custody of the deeds, accom- panied by a declaration of trust of the term, is, as against a bare declaration of trust, tantamount to an actual assign- ment (/;). But, as we shall presently see, a case may per- haps occur, in which an assignment of a term would be a protection against a declaration of trust of it, accompanied by the deeds ; so that a prudent purchaser will scarcely ever dispense with the actual assignment of an outstanding term. (b) Stanhope v. Earl Verney, Butlei's h. (I) s. 13, to Co. Litt. >; 0, b. (1) Qu. this. If the person claiming under the settlement should sell the estate to two distinct purchasers, who were equally innocent, it seems that the second purchase/, by procuring an assignment of the term., might exclude the first purchaser during the term- T Mr. -74 Or ASSIGNMENTS OP TERM* Mr. Butler, in his learned and practical notes to Co. Litt. lays down the following rules, respecting the cases in which a purchaser should or should not dispense with an assignment of outstanding terms (c). 1st. It may be laid down as a general rule, that wherever a term has been raised for securing the payment of money, as the assignment of it by the trustee for the person entitled to receive, to a trustee for the person obliged to pay the money, is the best possible evidence of the pay- ment of the money, it may be reasonably required as such. 2dly. In case a term for years has been assigned to at- tend the inheritance, if, upon a purchase, all the deeds (as well originals as counterparts) by which the term was created or assigned, are delivered to the purchaser, and he- is satisfied, that the trustee in whom it is there said to be vested, has made no prior assignment of it, and that the vendor has not charged the estate with any intermediate in- cumbrance ; it is difficult to say what possible use can be made of the term against him, or what good can be an- swered by requiring an assignment of it to a trustee of his own, unless it ts. be to satisfy the requisitions of those to whom he may afterwards have occasion to mortgage or sell the estate. 3dly. But if any of the deeds respecting the term are not delivered to the purchaser, or if he is not satisfied of the trustee not having previously assigned it, or of the vendor having made no intermediate incumbrance ; it seems pru- dent to require an actual assignment of it to a trustee for him. Few general rules, besides these, (Mr. Butler adds) can be laid down upon this subject : — and these must from their nature be subject to an endless variety of modifications. (*) See the 13th section of*. (1) to 1st Inst. 200, b. With OF ASSIGNMENTS OF TERMS. 275 With respect to the second of the above rules, the atten- tion of the purchaser should be particularly called to the requisite, that the vendor has not charged the estate with any intermediate incumbrance. A vendor may by fraudu- lent representations induce a purchaser to believe, that the title deeds are destroyed or mislaid; and if a purchaser acting under this impression, should procure an actual assignment of a term from the person in whom it was vested, it seems impossible to contend, that the person in possession of the deeds, although he claims a prior title to the inheritance «j, has any equity against the subsequent purchaser, who must not be prevented from making the best use he can of the term. It-may here be remarked, that where a term of years does not necessarily appear on the face of the conveyance, it should be assigned to attend the inheritance by a separate deed, and no notice should be taken of it in the conveyance of the fee ; for the legal estate must prevail at law(e), and it is a consequence of this rule, that where a term of years is assigned by the conveyance of the inheritance, or even mentioned in it as a subsisting term, the owner cannot safely bring an ejectment in his own name only, lest his action should be defeated by the production of the conveyance to him, in which it would appear, that the legal estate was vested in his trustee. And here we may correct the com- mon error of excepting the term in the conveyance cf the inheritance, as an incumbrance, although it is assigned to attend by a separate deed. This practice is very incorrect, (d) See 1 Fow. Mdrtg. 4th edit. Is T r. justice Gundry's, lord Mans- fiiO; Evans v. Bicknell, (iVes Jan. field's and Mr. justice Build's j -- 4 equitable doctrine as to terms of (e) See Doe v. Wroot, 5 East, years ; see Doe v. Pegge, iT.Rep. 132; and the cases cited in the note 75S, n. (a), and several cases in to p. 13S } which have over-ruled Burr. Cowp. & Dougl. T 2 a ^ 276 OF ASSIGNMENTS OF TERMS. as the term is a protection, nnd not an incumbrance. And the exception in the conveyance effectually defeats the ad- vantages which might otherwise be derived from the term being assigned by a separate deed. Where trustees ought to convey to the beneficial owner, it will, upon a trial, be left to the jury to presume, where such a presumption may reasonably be made, that they have conveyed accordingly, in order to prevent a just title from being defeated by a matter of form (/). But where the trustee of a term is not joined in an eject- ment brought by his cestui que trust, and the jury state in a special verdict, or a special case, that the term still continues, the plaintiff cannot prevail at law, but will be defeated by the legal estate in his trustee (g). This must inevitably happen where a term of years has been assigned to attend the inheritance upon a purchase of the fee* and the purcha- ser brings an ejectment in his own name only. It were clearly too much to presume a surrender of a term which the owner has so anxiously kept distinct from the in- heritance. * The importance of obtaining an assignment of all out- standing terms cannot be too strongly impressed on pur. chasers. If a purchaser has no notice, and happens to take a defective conveyance of the inheritance, defective either by- reason of 'some prior conveyance, or ol seine prior charge or incumbrance, and if he also takes an assignment of the term (/) Lade v. Holford, Bull. Ni. Dec 23, MS. Appendix, No. 13. Pri. 110, as explained in Doe v. (g) Goodtitle v. Jones, 7 Term Sybourn, 7 Term. Rep. 2 ; and Rep. 4/ ; Roe v. Reade, 3 Term Roe v. Reads, 8 Term Rep. 1I8 ; Rep. 118 j and see Doe v. Staple, and seeDoe v. Staple, 2 Term Ren. 2 Term Rep. 6S4. &4> ajjd Hillary v. Waller, Roll?-, 10 OF ASSIGNMENTS OF TERMS. 277 to a trustee for him, or to himself, where he takes the con- veyance of the inheritance to his trustee, in both these cases he shall have the benefit of the term to protect him ; that is, he may make use of the legal estate of the term to defend his possession, or, if he lias lost the possession, to recover it at common law, notwithstanding that his adversary may at law have the strict title to the inheritance (//.). Lord Hardwicke was of opinion, rhat the protection arising from a term of years assigned to a trustee for a purchaser, should extend generally to all estates, charges and incum- brances, created intermediate between the raising of the term, and the purchase (■/). And this doctrine, unqualified as it is, seems correct. For as the term will prevail over a strict title to the inheritance, it will of course be a protection against judgments, mortgages, and all other incumbrances and estates less than a fee ; and it may, in like manner, be used as a shield against an act (k) or commission (/) oi bankruptcy. In the late case of the King v. Smith («w), however, the court of Exchequer held, that a term of years would not pro- tect a purchaser against crown debts, although he purchased bona fide, and without notice, This point had previously .been considered, by most of the leading characters in the profession, some of whom have since filled the highest ju- dicial situations ; and the general opinion of the profession appears to have been, that a purchaser might protect him- self against crown debts, by a legal term of years created previously to the right of the crown attaching on the estate, where he had not notice, express or implied, of the debt (h) Willoughby v. Willougbhy, (/) Hithcox v.Sedgwick, 2Veirn. I Term Rep. 7().'J, per lord Hard- 150', reversed in Dom. Proc. See wicke ; and see Forrester, 0''). post, chapter 17. (/') See 1 Term Rep. 70S. (m) Excheq. 2d March, lSO-i, {k) Collet v.De Gols, For. 65. MS. Agpendix, No. 13. T 3 due 278 OF ASSIGNMENTS OF TERMS. due to the crown, or of the vendor being an accountant to the crown. They relied on the analogy between this case, and the general rule respecting judgments and recognizances, against which a purchaser may protect himself by an out- standing legal estate, unless he had notice of them pre- viously to completing his purchase. The late lord Kcnyon, in an opinion on this point, treated the right of the crown as not superior to that of a subject. Indeed the point may fairly be said to have received what was tantamount to a judicial decision, previously to the determination of the court of Exchequer. When the present learned cjiief justice of the Common Pleas was solicitor-general, he gave an opinion in favour of the right of the crown to extend lands in the hands of a mortgagee, although the legal estate had never vested in the mortgagor, but had been conveyed to the mort* gagee by the trustees in whom it had been vested in trust for the mortgagor. The question underwent great conside- ration, and it was discovered that there was an old term of years, to the benefit of which the mortgagee was clearly entitled in preference to any other person, although it was not actually assigned to a trustee for him. The case was again laid before the solicitor-general, who then wrote an opinion that the title of the mortgagee would be preferred to that of the crown. He stated, that upon a short enquiry before he wrote his former opinion, it had been representee! to him, that estates held in trust for a debtor of the crown s were usually seised under extents, and were considered as bound by his debts in the same manner as those of which he was legally seised. He had since desired a further search to be made, and was then informed that no instances were to be found in which a trust estate of such debtor fairly parted with to a purchaser without notice, nad been deemed to be liable to the debts of the crown, and in consequence of this information, OF ASSIGNMENTS OF TERMS, 279 information his opinion then inclined in favour of the mort- gagee. And he gave a similar opinion on this point in the year 1801, so that he had not seen any reason to alter his opinion after a lapse of nearly twenty years. The principal grounds of the determination in the King v. Smith were three : — 1 st, that the lands of a debtor to the crown might be extended into whatever hands they might have been aliened, subsequently to their becoming liable to the crown ; 2dly, that the estates cf which the debtor was cestui que trust, might be extended ; and, thirdly, the deci- sion in the case of the Attorney-General v. Sands (/). The two first positions of the court may be admitted to be law, without, as it should seem, at the same time admitting, that a purchaser cannot protect himself against the crown, by an outstanding legal estate. Indeed it was the third ground upon which the court principally relied, and built their decree. The determination in the case of the Attorney- General v. Sands was, that the trust of a term attendant on the inheri- tance was not forfeited by the fe'lony of the cestui que trust, because it was no more than an accessary to the inheritance, which was not forfeited. In the King v. Smith the court of Exchequer thought that the converse of this case must be taken to be true v The term was not forfeited, because the inheritance was not forfeited; but if the inheritance had been forfeited, the term must have been forfeited. The vase of the Attorney-General y. Sands was decided in a court of equity, and appears wholly to depend upon the rules of equity as to attendant terms ; and consequently, on the like principle, the same judges must have determined not to have given any relief against a purchaser in a case similar to that pf the Kingv. Smith; and certainly no such relief could at (») Hard. 2 Frecm. 3 Cha. Rep, T 4} this 280 OF ASSIGNMENTS OF TERMS. this"day be granted. If any remedy, therefore, lies against the purchaser, it must be at lav/. Now at law the term in the trustee is a term in gross. A legal title, prior to the right of the crown, must prevail at law ; and the court ought not to advert to the trust, only for the purpose of defeating the bonajide object of it, of the protection of the term, when even, the arts of the law in introducing collateral warranties discontinuances and nonclaims to protect the pos- session, and strengthen the rights of purchasers, have been the subject of commendation from the great lord Not- tingham. Lord Hardwicke's decision in Willoughby v. Willoughby is an elaborate performance, and was certainly pronounced after great consideration. Every point was ad ; verted to, and yet his lordship lays the rule down generally, that a purchaser may protect himself against all mesne in- cumbrances by a prior legal term, and does not except the case of the crown. And in pronouncing judgment in the Attorney-General v. Sands, the chief baron observed, that the term was only kept on fool to avoid incumbrances which might affect the inheritance • and yet, although he was discussing the rights of the crown, he did not seem to consider that the term would not prevail oyer crown, debts. It remains only to observe, that in this commercial country, any decision that tends to clog the free alienation of property ? and to render the titles of fair purchasers insecure, cannot but be productive of the most serious consequences, and well demands the interference of the legislature, if the law is too well settled to be over-ruled. Mr. Butler justly observes, that " a term should never be relied on, unless proof can be obtained easily, and at a small expence, of the instruments and acts in law, which must be proved to establish the creation and deduction of the term. It should also be ascertained, that its situation is such as enables OF ASSIGNMENTS OF TERMS* 28)1 enables the party entitled to it, to avail himself of it in eject- ment (o)". And to enable the purchaser to avail himself of the term, it is indispensably necessary that he should not have notice, either expressed or implied, of the incum- brance or title against which he is desirous of using the term as a protection. Mr. Powell indeed, although he admits that terms, the purposes of whose creation are an- swered, and which haye been expressly assigned to attend the inheritance, will not be any protection to a purchaser of the inheritance who had notice of any judgments, &c. yet he contends that where a purchaser of the inheritance obtains a term in gross, the purposes of whose creation were not answered at the time of the purchase (3), or a term the pur- poses of whose creation were answered, but which had not been expressly assigned to attend the inheritance, but merely waited upon the freehold by construction of equity, such purchaser can defend his possession by the- term, although he had notice of any intervening judgment. This is an attempt to establish a new distinction between a term assigned upon an express trust to attend the inherit- ance, and a term attendant, by the construction of equity, an attempt which lord Hardwicke appears to haye over- ruled in the case of Willoughby v. Willoughby ; and it cer- tainly would be very imprudent for a purchaser of an estate in any case to rely on a term of years, as a protection against any incumbrance, of which he has express or im- plied -notice. (o) N. 1, s. 13, to Co. Lkt. 290, b. (3) In this case the purchaser could of course defend himself against any subsequent incumbrancer to the extent of the subsisting charge on the I erm at the time of the purchase. ft 282 UP ASSIGNMENTS OF TERTOg. It is however settled by a series of authorities (/>),- that a purchaser may protect himself against the dower of the vendor's wife, by a term created previously to her right of dower attaching on the estate, although he had actual notice of the marriage, and of her title to dower : — a pro- tection, as we shall hereafter see () North v. Langton, 2 Cha, (/) Greene v. Lambert, lVern. Ca. 156 ; Dowse v. Deri vail, I 2 cited j Dowse v. Derivall. ibid. Vera. 104 ; Attorney- General v.. 104; 2 Vern. 57 : Reg. Lib. A. Sands, 3 Cha. Rep. 19. I 1 - 33, fo. 283. It is said in the (f) Best v. Stamford, Prec. Cha, decree, that the lease and convey- 252 ; Tiffin v. Tiffin, 1 Vern. 1 ;. anee were in law one conveyance ; Holt v. Holt, 1 P.Wms. 3/4, citedj. Rich v. Rich, SCha.Ca. 160. Pitt v. Cholmondley, Chancery, 9 (g) Tiffin v. Tiffin, 1 Vern. 1, 2 Nov. i;51. MS. Cha. 49, 55 ; Whitchurch v.Whit- (k) Capel v. Girdler, Rolls, \6\it church, 2 P. Wins. 236, 9 Mod. March 1804, MS.; 9 Ves. Jun. J24, Gilb. Eq. Rep. 168 ; Good- 509 5 Cooke v. Cooke, 2 Atk. 67, right v. Sales, 2 Wils. 329. vide supra, ch. 4. such QF ASSIGNMENTS OF TERMS. 28? such outstanding term, even the term vested in the pur- chaser, and which cannot merge, shall attend the inheri- tance, without any express declaration for that purpose (/). And even if the purchaser cannot obtain an assignment of the whole term, yet if a nominal reversion only, as a re- version of a few days, be left outstanding, so much of the term as is assigned to a trustee for the purchaser will be deemed attendant on the inheritance, without any express declaration for that purpose. But where the term is sub* ject to rents or charges in favour of other persons, whereby the purchaser has not substantially the whole beneficial in- terest in the estate, there an express declaration is neces- sary to make the terni attendant. The mere intent of the purchaser to purchase the whole interest, and that the term should attend the inheritance, will not vary the case. The two last propositions appear to be established by the case of Scot v. Fenhoullet (?n). From the imperfect state- ment of the facts in this case, it is difficult to understand the ground of lord Thurlow's decision, and it has been gene- rally thought that the decree turned on the reversion, which the purchaser could not get in (?z). The facts, as stated in lord Thurlow's judgment, on the rehearing, reported in Brown, are shortly these : Mrs. Rudger was seised in fee of the estate, subject to two terms of years, upon which it should seem small rents were reserved, which terms were vested in trustees in trust for Mrs. Rudder for life, and for raising certain annual and gross sums of money. Sir Andrew Chad- wick purchased of Mrs. Rudger the fee simple estate^ and so (/) Whitchurch v. Whitchurch, («) See Capel v. Girdler. MS, 2 P.Wms. 236, Mod. 1 24, Glib, and g Ves.Jim.fC9 ; 1 Cruise's Dig. Eq. Rep. lSSj and see 1 Ero. 513, s. 17., and the marginal ab- C. C. ?Q. stract of the case in Brown. (m) 1 Bro. C. C. 69. much s£s OF ASSIGNMENTS OF TERMS* much of the terms as related to It; and the trustees executed their power by granting a derivative lease to trustees for sir Andrew, with a nominal reversion (11 days) to themselves; -Lord Thurlow admitted that sir Andrew meant to purchase the whole interest, and that his intent was, that the term's should attend the inheritance, If they did attend the inhe- ritance in this case, it must, his lordship said, be by im- plication of law, as there was no express declaration ; and, after shewing that the case of Whitchurch v. Whit- church (o) did not apply to the case before him, because there was no interest outstanding, except in form, he ad- ded : " Sir Andrew Chadwick might have given these terms to a stranger* and if the inheritance descended, the heir at law might demand the rents reserved by the leases. It is said to be extremely plain, that sir Andrew Chadwick meant to consolidate the interests : this is begging the question. It is true he meant to take the largest interest he could, but by no means apparent that he meant to con- solidate the interests. / lay no stress on the days of the reversion, for it was meant only as a nominal fevetsiottj they did not mean to reserve a substantial interest. \i would be' necessary there should be an express trust to make this attendant on the inheritance ; the transaction docs not supply a necessary construction of law. It is a ven nice point, and a very new one, whether the intent to pur- chase the whole interest is sufficient to make the term at- tendant on the inheritance. The impossibility he ivas un- der of purchasing the whole, rendered an express decla- ration necessary to make it attend the inheritance. Now at first sight, it certainly does seem impossible to reconcile those parts of the judgment which are printed in italics; (o) Supra, But OF ASSIGNMENTS OF TERMS. 289 But it appears by an opinion of Mr. Fearne's (p), in conse- quence of which the caiise was reheard, that rents were re* served by the leases granted by the trustees to sir Andrew Chadwick, and the usual covenants were entered into by him, and the trustees were restrained to that mode of ma- king a title by their trust, which required a reservation of rent, and the usual covenant. • This fact at once reconciles every part of the judgment, Lord Thurlow was of opinion, that the reversion of itself was immaterial, but that the rents reserved by the leases rendered an express declaration necessary td make the terms attend the inheritance. And Mr. Fearne was also ofopU nion that the terms would not be attendant, if there was any intervening beneficial interest in any third person, to divide the ownership of the term from the inheritance: But as he was told tliat the rents reserved to the trustees upon the terms were afterwards purchased by sir Andrew, he thought the terms did attend the inheritance, although there was not any express declaration for that purpose ; and he ex- pressly delivered his opinion, subject to this fact, which he had learned from verbal information only. By lord Thur- low's decree on the rehearing, it appears clearly that the rents were not purchased, and consequently Mr. Fearne Was misinformed irt this respect. - Mr. Fearne's opinion on this point is very strongly mark- ed ; for he thought that if there was any intervening out- standing interest between the ownership of the term and the inheritance, even an express declaration of trust could hot make the terms attendant. This, however, was going too far ; and lord Thurlow, who had probably seen this opinion, addressing himself to the cases in which a term would attend the inheritance, said, that might be by two (f>) 2 Collect Jurid, 2Q?, u wavs : 290 OF ASSIGNMENTS OF TERMS. ways : first, by express declaration ; and then, whether* the trust would or would not merge, and whether the re- version be real or only nominal, it must be attendant on the inheritance. We have seen that where a term attends the inheritance without any express declaration, it is by implication of law ; and this implication, like all implications of law, or equi- table presumptions, may be rebutted by even a parol decla- ration of the person in whose favour the implication or pre- sumption is made (7). A term for years attendant on the inheritance, whether by express declaration or by implication, is governed by the same rules as the inheritance itself is subject to. Therefore it will not be forfeited by the felony of the owner of the in- heritance (r) ; but if the inheritance escheat, the term will go with it (s). So it seems that such a term cannot pass by a will not executed according to the statute of frauds (/). But it ap- pears to have been thought, and the distinction it is con- ceived may be supported on very solid grounds, that where a term attends the inheritance merely by operation of law, the owner may expressly bequeath it by a will not executed with the solemnities required by the statute (u). It is clear that where the devisor intended the inheritance to pass, but by reason of the informality of the will it de- scends to the heir, the term shall not go to the devisee, but shall follow the inheritance in its devolution on the heir (#); (q) See post eh. 15. Whitchurch, Gilb. Eq. Rep. 168 j (r) Attorney-General v. Sands, Viliiers v.Villiers, 2 Atk. ?\. Note, 3 Cha. Itep. 19, Hard. 4SS. Nourse v. Yarworth, Finch, 155, (s) Thiuxton v. Attorney-Gene- was before the statute of frauds. ral, 1 Vern. 340,. 357. (») See 9 ^ Iod - l2 ~ » and 6ee % (/) Tiffin v. Tiffin, 2 Cha. Ca. 2 Collect. Jurid. 2?6. 4n, 55,2 Freem.66 5 Whitchurch v, (x) Cases cited ante, n. (t). So OF ASSIGNMENTS OF TERMS. 291 So where a termor for years having contracted for the fee, made his will, whereby, after reciting that he had pur- chased the term and contracted for the fee, a conveyance of Which could not then be obtained, he declared, that when si conveyance could be had, the estate should be settled to the uses mentioned in his will, and directed that the re- mainder of the term should remain and be attendant on the inheritance. The person who contracted to sell the fee was not owner of it, and the owner sold it to another person. Sir Joseph Jekyll held, that 'he testator intended to pass the inheritance ; and although he had it not, yet the term could not pass by the will, as such a construction would be con- trary to the testator's intention (?/). As the inheritance of an estate is not liable to simple con- tract debts, it follows, on the principle before noticed, that a term attendant on the inheritance is not personal as- sets for the payment of debts (z), but it is generally stated that such a term is real assets t — This is, however, a Very incorrect expression : the term itself is not real assets, but is merely attendant on the inheritance, which is. In Chap- man v. Bond («), it appears to have been thought, that al- though the term was in a trustee, yet if it attended the in- heritance by construction of equity only, it should be assets in equity for payment of the owner's debts, in like manner as a term taken in his own name would be assets at law. (j/)Bretv.Sawbridge,4 Bro.P.C. print, and comprises some inter- 1736 ; and see Fearne's ex. dev. by esting remarks on executory be- Powell, 145. n. (a). S.C. Appendix, quests of terms. No. 15. This note of the case will, I (z) Thruxton v.Attorney-Gene- hope, be acceptable to the reader. It ral, 1 Vern. 340: Tiffin y. Tiffin, contains a concise statement of the 1 Vern. 1. facts, and sir Joseph .Tekyli'sjudg- {a) 1 Vera. 188. raent, which is, I believe, not in v 2 But 292 OF ATTESTED COms. But this opinion is clearly over-ruled ; and where the term Is- in a trustee, the same rules prevail on this point, whether the term be attendant by express declaration or not (£)• But where the inheritance is in trustees, and the owner has a term in his own name, and dies indebted, the term* although limited to attend the inheritance, will be liable to- debts, for it is assets at law (c) ; and equity in this respect follows the law (d), and therefore a purchaser should never take the term in his own name, if he do not wish his estate to be personal assets. If after the death of a person who has taken an assign- ment of a term in his own name, and a conveyance of the inheritance in the name of a trust ee,his personal representative assign the term to attend the inheritance, it will cease to be assets at law ; and the creditors or legatees will be entitled to satisfaction against the personal representative, as for a devastavit ; and may, it should seem, even follow the term in- equity, unless as against a lonajide purchaser without no- tice, against whom the term will not be severed or disan- nexed from the inheritance in favour of the creditors or le- gatees, although the purchaser did not take an assignment- cf the term, or was even not aware of its existence (e). Thus have we taken a cursory view of the doctrine re- specting terms of years, a learning which demands the prac- tical conveyancer's peculiar attention ; and we are now to' consider in what cases a purchaser is entitled to attested Co-* pies oi the title-deeds. {I) Baden v. Earl of Pembroke, (d) See 2 Cha. Ca. 49, Earl of 2 Vern. 52, 213 •> 2 Trea. Eq. c. Pembroke's case, g Mod. 125, 4* s. 6. cited. (c) Thruxton t. Attorney-Gene- (e) Charlton v. Low, 3 P.Wms. rz\, ubi sup. j Chapman v. Bond, 328. 1 Vern. 168 ; Attorney-General v. .^ands, Hvd, 438. If OF ATTESTED COPIES, £9$ If a purchaser cannot obtain the title-deeds, he is, as we -have already seen, entitled to attested copies of them at the expense of the vendor, unless there be an express stipula- tion to the contrary (/) : and although he may not be en- titled to the possession of the deeds, yet he has : a right to in. spect them, and the vendor must produce them for that purpose (g). But a purchaser is not entitled to attested copies of in- struments on record. This was decided in the case of Campbell v. CampbellJA), where the master, in taxing costs incurred by the sale of considerable estates, disallowed the charges for attested co- pies of deeds and documents upon record ; and upon ex- ceptions to his report on that account coming on, the master of the Rolls over-ruled them, and held that a purchaser was not entitled to such copies at the expense of the vendor. In some cases, however, a purchaser can obtain attested copies even of instruments on record. For a purchaser is entitled to examine the abstract with the original title-deeds, or with attested copies of them: and, therefore, if a vendor has not the instrument itself, and cannot obtain it, he is bound to procure an attested copy of it, to enable the pur- chaser to ascertain that the abstract is correct ; and when it is obtained, the purchaser is of course entitled to it on the completion of the purchase ; unless indeed the vendor re- tains other estates hidden under the same title, in a case before lord Rosslyn, where there was an agree* ment that the vendor should produce the original title-deeds, his lordship construed it, not only as an engagement to pro-: (/) Dare v. Tucker, 6 Ves. (g) Berry v. Young, uhi sup. Jun. 460 ; Berry v. Young, 2 Esp. (*) Rolls sitting* after m. Ca. 640, n. terra I793, MS, u $ duce 204* OF ATTESTED COPIES^ duce the title-deeds, but as a negative stipulation, that ha should not give attested copies. This was certainly presuming a great deal. Lord Eldon has since thought that the pressure of the stamp duties led to that decision (i) ; and it is probable that a similar case would now receive a different determination^ Where a purchaser cannot claim the title-deeds, it is of great importance io him to obtain attested copies of them* But attested copies are not of themselves sufficient security to a purchaser, as they are indeed mere waste-paper against strangers, and cannot be used upon an ejectment, unless, perhaps, as between the parties themselves. Therefore, in order to enable a purchaser to effectually manifest and de- fend his title and possession, he is alsp entitled, at the ex? pense of the vendor, to a covenant to produce the deeds themselves, at the expense of the purchaser (k) ; which should in most cases be carried into effect by a separate deed. And where a vendor retains the deed by which the estate he is selling was conveyed to him (which is mostly the case when it relates to other estates), it seems advisable for the purchaser to require a memorandum of his purchase to be indorsed on such deed. It may here be remarked, that although a purchaser of part of an estate has taken a covenant for the production of the deeds, yet if they afterwards come into his possession by accident, no person can recover them from him who has not a better right to them than he has (/), Supposing a purchaser to be entitled to the custody of the deeds themselves, yet if any of them be lost, and the ven- dor can deliver over copies which would be admitted as . (*) See 6 Ves. Jun. 460. (I) Yea v. Field, 2 Term Rep. (k) Berry v. Young, 2 Esp. Ca. 708, (540, n. evidence OF COVENANTS. 295 evidence at law, the purchaser will be compelled to take the title (;/*). It frequently happens that a person having a covenant for production of the title-deeds to his estate sells only part of the estate, and retains his purchase deed, and the covenant to produce the deeds ;' and in such cases I should conceive the practice to be for the vendor to enter into the usual covenant for production of the title-deeds in his possession, which of course would include the original covenant to produce the deeds. But it seems that Mr. Fearne thought (») that a purchaser was, in cases of this nature, entitled to re- quire the vendor to covenant for the production of the deeds to such an extent as the covenant in the vendor's pos- session entitled him to the production thereof, unless he could procure a new covenant for that purpose, from his grantors to the new purchaser ; but that such covenant from the vendor should not be enforced, in case he pro- duced the original covenant to produce the deeds, when it should be required to defend the purchaser's title. It is not unusual to insert a proviso in a deed of covenant to produce title-deeds, for determining the covenant, in case the vendor sell the part of the estate retained by him, and procure the person to whom the estate is sold,and the title- deeds are delivered, to enter into a similar covenant with the first purchaser, for production of the title-deeds. Let us now proceed to consider what covenants for tide a purchaser is entitled to. The covenants usually entered into by a vendor seised in fee, are, 1st, that he is seised in fee; 2dly, that he has power to convey j 3dly, for quiet enjoyment by the pur- (m) Harvey v. Philips, 2 Atk. 2 Vol. Ca. and Op. 223. 541. Sec an opinion of Mr.Booth's, (n) Posth. 113. u 4 chaser. &9S OF COVENANTS, chaser, his heirs and assigns j 4thly, that the estate is free from incumbrances ; and lastly, for further assurance (o). Where a vendor has only a power of appointment, the first covenant ought to be that the power was well created, and is subsisting j and the other covenants should be simi- lar to those entered into by a grantor seised in fee. In small purchases the first geiyeiuuit is sometimes omitted ? which may be safely done, as it is synonymous to the se? cond. It sometimes happens that a purchaser consents to take a defective title, relyin^ for his security on the vendor's co- venants. Mr. Butler remarks, thdi where this is the case, the agreement of tjie parties skouljji be particularly men- tioned, as it has been argued, that as the defect in question is known, it must be understood to have been the agree^ ment of the purchaser to take the title subject to it. and that the covenants for the title should not extend to warrant it against this pavticuiai defect (/>). And it may be fur- ther observed, that in cases of this nature, unless the ob- jection to the title appear on the face of the conveyance, the agreement to indemnify against the defect, and the cove t nants to guard against it ? should be entered into by a sepa- rate instrument. With respect to the persons against whose acts a vendor js bound to covenant, it seems that, 1st. A vendor who actually purchasedthe estate himself for money, or other yaluable consideration, and obtained pro r per covenants for the title, is not bound to enter into cove- nants extending beyond his own acts (9). This, Mr, J-earne remarks (r), is a practice founded in reason, where (0) See post ch. 13. (q) See 2 Bos. and Pull. 22 ; (p) See Butler's n. (l) fo Co. and see two opin. 3 Pow. Convey Litt. 384, a. ; see also Savage v. by Barton, 206, 210. Whitbread, 3 Cha. Rep, 14, (r) Posth. 1|Q. the OF COVINANTS, 2#f the vendee obtains the full benefit of all the covenants in jhe conveyance to the vendor, to the same extent as his vendor has them, by obtaining the possession of the deeds, containing those covenants. When the vendor has parted with his. means of claim or remedy against his grantor for breach of his covenants, and transferred them to the pur- chaser, by .delivery of the deeds, and such vendee comes into the vendor's place, in that respect, by the acquisition pf such deeds, it would be unreasonable that the vendor should make himself liable for any such breach. He, by departing with the means of remedy or compensation, must be understood to have discharged himself from, and the vendee, by accepting those means, to have taken upon himself the peril or risk of such breach, and the duty of en- forcing its remedy or compensation. 2dly, Mr. Fearne, however, thought that where a ven- dor retains the title-deeds, he is bound to enter into cove- nants extending to the acts of the persons against whose acts he is indemnified by the deeds in his possession (.s) j but he also thought these covenants should be qualified by the in- sertion of a covenant on the part of the purchaser, that in case any claim should be made under the vendor's cove- nants against the acts of the former owner, and he (the vendor) should produce the deeds, in order to enable the purchaser to avail himself of the covenants contained in them, then no advantage should be taken of the vendor's covenants. This, however, is a distinction never attended to in prac- tice : if a vendor is entitled to retain the deeds he enters into the usual covenant for the production of them, but never enters into more extensive covenants for the title, on ac- count of the retention of the deeds. {$) See the lord Buckhurst's case, 1 Rep. 1. Sdlf, 20S OF COVENANTS. 3dly, Where a vendor does not claim by purchase in the vulgar and confined acceptation of that word (t) ; that is, by way of bargain and sile for money, or some other valu- able consideration, a parchaser is entitled to require cove* nants from such vendor, extending to the acts of the lasc purchaser. For instance, if I sell an estate which was de- vised to me, and the devisor's father purchased the estate, the covenants for title are extended to the acts of the fa- ther (u). And a person claiming under a voluntary convey- ance, is considered in the same light as a devisee. So a person whose estate is sold under an order of a court of equity, or by a trustee to whom he has conveyed it upon trust to sell, is bound to covenant for the title in the same manner as he must have done if he himself had sold the es- tate. But although the universal and settled practice of con- veyancers is, to extend covenants for the title to the acts of the last purchaser, yet the court of Chancery appears to hold that a person not claiming by purchase is only bound to covenant against his own acts, and those of the person immediately preceding him (x). The rule established by practice is undoubtedly the 'most reasonable, as every pur-, chaser is certainly entitled to a regular chain of covenants for the title. No solid reason can be given why any line should be drawn, and the covenants should extend to the person only who immediately preceded the vendor ; and, however the court cf Chancery may act upon this rule, the practice of the profession has taken too deep a root to be easily extirpated. (0 See 2 Black. Conm. 211. (.*) See 3 Atk. 267 5 3 Ves. («) See ace. 2 opin. 3 Pow.Conv. Jun. 230. by Barton, 206, 210. 4tWy, pF COVENANTS. 299 4thly, Where an estate is sold by trustees under a will, and the money is to be applied in payment of debts, &c. and the residue is given over, a purchaser is not entitled to any covenants for the title, because no line can well be drawn as to the quantum which would make a person liable to covenant; and therefore, if this rule were not settled, a person who only took 5l. might as well be required to cove- nant, as one who took a large sum (y). The same rule applies ex necessitate where an estate is sold for similar purposes under an order of a court of equity. If a different rule prevailed, the consequence would be, that the estate could never be sold by decree, till the account was taken of all the debts ; because before that account was taken, it could not appear who were to join in the conveyance, what was the number, and in what propor- tions they were beneficially entitled : but it is the constant practise to sell the estate in the first instance ; of course the title can be made only by the trustees for sale, without call- in°- in the parties who are presumptively beneficially inte- rested (z). In both these cases, therefore, the purchaser is only enti- tled to a covenant from the parties conveying, that they have done no act to incumber. But it is to be lamented, that in these instances also the rule of the court of Chancery differs from the practice of the profession ; for it always has been, and still is, the practice of the profession to make all the ceituis que trust, whose shares of the purchase-money are in anywise considerable, join in covenants for the title, according to their respective interests. The rule of equity on this subject may of course be (y) Wakemanv. duchess of Rut- 145; and see Lloyd v. Griffith, 3 Jand, 3 Ves. Jun. 233, 504, af- Atk. 264. #rmed in Dom. Proc, 8 Bro. P.C. (s) See 3 Ves. Jun. 505, 506. altered SOG OF COVENANTS. altered by the agreement of the parties (a) ; and therefore Jn all agreements for purchase of estates from devisees, &c. in trust to sell, the purchaser should stipulate, that such of the persons entitled to the purchase-money as he may re- quire, shall join in the usual covenants for the title,. Where, however, the trust is to pay debts, or trifling legacies, which will exhaust the whole of the purchase-money, it is obvious that such a stipulation could not be carried into effect, and it had therefore better be omitted. It might, perhaps, be doubted whether equity would, in a case of this nature, enforce a specific performance against a purchaser who was ignorant, at the time he entered into the contract, of there not being any person to covenant for the title. — To prevent any difficulty on this ground, it seems advisable to state in the particulars of sale or agreement, that the vendors are devisees in trust to sell, and that the money is to be applied in payment of debts and legacies, which would be notice that the purchaser could not require cove* nants for the title. It must, however, be remarked, that the case of Wake* man v. Duchess of Rutland is by no means an authority that cestuis que trust of money to be produced by the sale of estates devised to trustees to sell, cannot in any instance be required to covenant for the title. Where the money to arise by sale of the estate is absolutely given to two or more persons, they are substantially owners of the estate, and must accordingly covenant for the title. So, even where the money is in the first place to be ap- plied in payment of debts, yet if they are all paid previously to the sale, the cestuis que trust must, it is conceived, cove- nant for the title. These cases are put by way of example, and as a caution (e)See3 Ves.Jtm. 23& to OF COVENANTS. SOt to the student. Perhaps no decision has been so misapplied m practice as that of lord Rosslyn, m Wakeman v. duchess of Rutland. Upon this case another observation occurs. Lord Ross- lyn seemed to think it dangerous to make the cestuis que iriut parties to the conveyance ; he said, the prudence of the common clause, that the receipts of the trustees shall be a discharge to the purchaser, would be defeated, and the purchaser would tal^e upon himself the knowledge of all the trusts of the will(/>)« If this be so, conveyancers are indeed reprehensible ; but as the purchaser buys under the will, whether the cestuis que trust are or are not parties to the conveyance, he is equally affected with the knowledge of the trusts ; and yet, as cujus est dare ejus est disponere, it cannot' be supposed that equity would compel a purchaser to see to the application of the purchase-money, when the testator himself has declared he shall not. In Ewer v. Corbet (c), it was holden that notice to a purchaser of a bequest of a term did not signify, as every person buying of an executor* where he is named executor , necessarily must have suck notice. This resolution applies to the point in question, and seems to place it beyond controversy* Lastly. In conveyances by the crown, a purchaser is not entitled to any covenants for the title; and where an estate is sold by assignees of a bankrupt, the purchaser is oniy entitled to a covenant from the assignees, that they have not done any act to incumber the estate. But a bankrupt is always made a party to the conveyance of his estate, to prevent the difficulty which the purchaser might otherwise be put to, in maintaining and proving the title ; and the bankrupt is generally made to enter into covenants for the title in the same manner as he would have done, had he sold the estate while solvent* {l) See 3 Ves. Jun. 235. (c) 2 P. Wins. 143. It 302 OF SEARCHING FOR INCUMBRANCES: It now comes m order to consider in what cases incum- brances should be searched for. There are few cases in which judgements should not be searched for oh the part of a purchaser ; and if there is any reason to suspect the vendor, it is absolutely necessary to search immediately before the conveyance is executed, lest any judgments may have been entered Up during the treaty. It seems advisable to ask the vendor, or his attorney, whether there are any incumbrances which do not appear or* the abstract ; for if he answer in the negative, the search for judgments may be postponed until immediately before the execution of the conveyance ; and if there are any judgments, and the purchase cannot be completed on that account, the purchaser can recover all his expenses front the vendor (d). But it does not seem perfectly clear, that the purchaser would be entitled to recover the expense of the conveyance, unless he had enquired after, or searched for incumbrances before it was prepared.- A purchaser, who at the time of his contract is seised of the legal estate, as a mortgagee, need not search for judg- ments subsequently to the mortgage ; for an equity of re- demption is not within the clause of the statute of frauds* which will shortly come under our consideration ; and is, therefore, not extendable (e) (l). And as the purchaser will, (d) Richards v. Barton, I Esp. 431, 3 Ero. C. C. 478 ; and see Ca. 268 ; vide supra, ch. 4. Bur Jon v. Kennedy, 3 Atk. 739. (e) Lyster v.Dolland, 1 Ves.Jun. (1) Note : an equity of redemption has been held to be assets under the statute of frauds, 2 Freem. tlh. pi. 130 5 although the determina~ tion OF SEARCHING FOR INCUMBRANCES. S03 will, by the contract, acquire equal equity with the judg- ment creditor, and has already got the legal estate, his title cannot be impeached. Seme gentlemen of eminence even hold that notice of judgments entered up subsequently to the mortgage will not affect the purchaser j but it is con- ceived that if he purchase with notice, either express or im- plied of any judgment, the legal estate will not protect him in equity against the judgment creditor. The judgment is a lien upon the estate in equity (f% and confers a right on the creditor to redeem a prior mortgage or other incum- brance (g). And by the first principles of equity, a pur- chaser with notice of any incumbrance is bound by it in the same manner as the person was of whom he pur- chased (A). And, indeed, it has been expressly decided, that a mortgagee, purchasing the equity of redemption, is bound by judgments, of which he has notice, although they were entered up subsequently to the mortgage (z). This doctrine prevailed before the statute of frauds, and has been the observed rule of equity ever since ; and it seems clear, that, previously to the statute of frauds, a judg- ment creditor was in like manner, and upon the same prin- ciples, relievable in equity against a conveyance to trustees. And by the 10th section of that statute it is enacted that execution may be delivered upon any judgment, statute, or (/) Churchill v. Grove, Nels. (i) Greswold v. Marsbam, 2. Cha. Rep. 87, 1 Cha. Ca. 35. Cha. Ca. 17O; Crisp v. Heath, f (g) See 2 Cha. Rep. ISO. Vin. Abr. 52, (E) pi 2. (A) See Anon. 2 Ventr. 36*1, No. 2. tion appears not to have been acted upon. It were much easier to maintain that an equity of redemption is extendable under the statute. Note, the cas© of Freeman v. Taylor, 3 Keb. 307, was before the statute. recognizance, SfO* OP SEARCHING FOR INCUMBRANCE*. recognizance, of all such lands, &c. as any other person or persons shall be seised or possessed of in trust for him against whom execution is so sued, in the same manner as if he had been seised of such lands, &c. of such estate as they be seised of in trust for him at the time of the execution sited, and shall be held discharged of the incumbrances of the trustee. Upon the construction of this statute it hath been holden, that if a trustee has conveyed the lands before exe- cution sued, though he was seised in trust for the defend- ant at the time of the judgment, the lands cannot be taken in execution (k). Now it is clear, that where the fee is in trustees the purchaser would not be bound by any judg- ment, upon which no writ of execution had been sued, and of which he had not notice. But here, as in the preceding case, the purchaser, it is conceived, Cannot be advised to rely on the legal estate in the trustees where he has notice of any Subsequent judgments. Mr. Powell (/), however, enter- tained a contrary opinion. After shewing that trust estates Ann, execution, OF SEARCHING FOR INCUMBRANCES. 311 execution, seems casus omissus out of the statutes for regis- try ; and therefore, upon the purchase of a leasehold estate situate within a register county, not only the register, but also the proper courts, should be searched. The register ought to bo searched immediately before the execution of the conveyance, for the same reason that the search for judgments should be delayed till the last mo- ment. And lastly, since grants of annuities have become so prevalent, and can be searched for, it is become the duty of the purchaser's solicitor to search for annuities. In a regis- ter county they need only be searched for at the register's office. It may be useful to observe, . that if a purchaser is dam- nified by his solicitor neglecting to search for incumbrances, it is clear that he may recover at law, against the- solicitor, for any loss occasioned by his negligence (1.1). So if the chief clerk, whose duty it is to enter up and docket judgments, neglect to do so, by which a purchaser who has made the proper searches, sustains any loss, he, the purchaser, has a remedy against the clerk by an action on the case (a ). And any person who is damnified by the neglect of the register of either of the registering counties may bring an action against him, in which he will recover treble damages and costs of suit, by virtue of the register- ing acts (l). (/) See infra, ch. 16. Green v. Jackson, Peake's Ca s (u) Brooks v. Day, 2 Dick.572 ; 236. Forshall v. Coles, 7 Vin. Abr. 54. («) Douglass v. Yallop, 2 Burr, pi. 6. MS. ; and Appendix, No.lG. 722. (1) By the registering acts for Scotland the remedy is extended against the heirs of the clerk, although no action shall have been commenced in the clerk's life-time. 1 Ersk. Inst. B. II. T. III. s. 42. x 4 Having S12 OF RELIEF IN RESPECT OF Having considered in what instances incumbrances should be searched for, let us now inquire, 1st, In what cases a purchaser may detain the purchase-money, if incumbrances are discovered previously to the payment of it : and 2dly, To what relief he is entitled, if evicted after the money is actually paid ; and these inquiries will involve the considera- tion of the cases in which a purchaser will be relieved in re- spect of defects in the title to the estate. First then, 1 . Where an incumbrance is discovered pre? viously to the execution of the conveyance, and payment of the purchase-money, the vendor must discharge it, whether be has or has not agreed to covenant against incumbrances, before he can compel payment of the purchase-money (?/). Q. But if a purchaser, before executing the articles, has notice of an incumbrance which is contingent, and it is by the articles agreed that the vendor shall covenant against Incumbrances, the purchaser has entered into them with his eyes open, has chosen his own remedy, and equity will not assist him (z) ; and he cannot, therefore, detain any part of the purchase-money- II. 1. Although the the purchaser has paid the money, vet if he is evicted before any conveyance is prepared and executed, or before the conveyance is executed by all the necessary parties, he may recover the purchase-money in an action for money had and received, although the intended covenants do not extend to the title under which the estate (y) Anon. 2 Freem. 106 ; Vane 2 Ves. Jun. 441 -, and 4 Bro. C. C. v, lord Barnard, Gilb. Eq. Rep. 6 ; 3g4. Serjeant Maynard's case, 2 Freem. (z) Vane v. lord Barnard^, uhi I . and see 1 Ves, S£ j 2 Ves. 394 ; tup. was INCUMBRANCES. SIS was recovered, and he may have taken possession of the estate (a) (7). 2. But if the conveyance is actually executed by all the necessary parties, and the purchaser is evicted by a title to which the covenants do not extend, he cannot recover the purchase- money either at law (#)or in equity (c). Thus where (d) A. bought an estate, to one moiety of which there was a clear defect of title, which the counsel of the purchaser had overlooked, and he was afterwards evicted of it, upon which he filed a bill asserting his claim to be repaid a moiety of the purchase-money, although the cove- nants for title did not extend to the eviction, the bill was .dismissed (8). The (a) Cripps v. Reade, 6 Term (I) See Cripps v. Readc; John- Rep. 606 ; Matthews v. Hollings, son v. Johnson ; and Breev. Hol- Woodfa'd's Law Land. 35, cited; bech, Doug. 654-. Johnson v. Johnson, 3 Bos. and (r) Serjeant Maynard's case, % Pull. 1(52 3 and see Awbry v.Keen, Freem. 1 ; Anon 2 Freem. 106. 1 Vern. 472; and see Brig's case, (d) See 3 Ves. Jun. 235; and Palm. 364. see 2 Bos. and Pull. 23. (7) In Robinson v. Anderton, Peake's Ca. Q4, lord Kenyon permitted a purchaser of fixtures in a house which were scheduled in the orig'n.al lease, and belonged to the landlord, to recover the purchase-money, although the person who sold them was an under-tenant, and had himself ignorantly paid for the fixtures. (8) In the second vol. of Coll. of Decis. p. 5 17, 518, a case to the same effect is reported. — Lands which were sold with warrandice from fact and deed allen'arly, being evicted, but not through default of the disposer, the purchaser brought an action, not upon the warrandice, which was not incurred, but upon this ground of equity, that if he has lost the land, he ought at least to have repetition of the price, It was answered, that when Q.ne sells with warrandice from fact and deed, the intention is not to sell &c subject absolutely, which would be the same as selling it with abso- lute warrandice, but only to sell it so as the seller himself has it, that is, tp seljl what title and interest he has in the subject : the purchaser takes upon 314- OF RELIEF IN RESPECT OF The facts of this case were as follow: Wm. Davy devised the estate in question to sir Robert Ladbroke and Lyde Erown, as tenants in common, in fee; and gave all the residue of his real estate to his brother Wm. Pate in fee. Sir Robert Ladbroke died in the testator's life-time. Robert Pate, as devisee of Wm. Pate the residuary devisee, con- ceived himself to be entitled to the moiety devised to sir Robert Ladbroke, which became lapsed by his death, in the testator's life -time (9) ; and accordingly Robert Pate Joined with the persons entitled to the moiety devised to Lyde Brown, in selling the estate to one Urmston. The conveyance recited, the will of Wm. Dacy, and all the sub- sequent instruments, and a covenant was inserted for the title, notwithstanding any act done by Robert Pate, or his ancestors, or any person claiming under him or them. The purchaser, finding Robert Pate had no title to the moiety over which he assumed a power of disposition, but that it had descended to the heir at law of Wm. Davy, filed his bill, praying that the purchase-money might be restored to him, Robert Pate, the vendor, demurred to the bill for want of equity, and the demurrer was allowed (e). So, if a purchaser neglect to look into the title, it will be considered as his own folly, and he can have no relief, (c) Urmston v. Pate, Chan. 1st 364, n. and stated in 4 Cruise's Nov. 1/94, cited in 1 Trea. Eq. Digest, 90. s. 64. upon himself all other hazards ; and therefore if eviction happen other* wise than through the fact and deed of the disponer, he bears the loss. The lords assoilzed. Craig v. Hopkins. (9) The mistake arose from the case of lapse being considered the same in regard to real and personal estate : in the case of personal estate lapsed legacies fall into the residue ; but where a real estate lapses, it descends to the heir at law, and does not pass to the residuary devisee. And INCUMBRANCES. 315 And it has even been laid down, that if one sells another's estate without covenant or warrantry for the enjoyment, it is .at the peril of him who buys, because the thing being in the realty, he might have looked into the title, and there is no reason he should have an action by the law where he did not provide for himself^). " Where a purchaser has taken a defective title, and can- riot recover against his immediate vendor, his only remedy is to have recourse to the covenants of the earlier vendors, many of which are inherent to the lands, and to some of which, as the covenant for quiet enjoyment, there is no ob- jection, on account of their antiquity, where the breach is recent (g)." 3. It seems, that if the conveyance be actually executed^ the purchaser can obtain no relief, although the money be only secured, In an early case, however (A), where A. had sold to B. with covenants only against A. and all claiming by, from, or under him, B. secured the purchase-money ; but before payment, the land was evicted by a title paramount to A.'s, and lord chancellor Finch relieved from the payment of the purchase-money. The case, it seems, was not taken by the reporter him- self, and he adds the following notes, or queries to it: 1st. If declaration at the time of the purchase treated on, that there was an agreement to extend against all incum- brances, not only special, it could not have been ad- mitted. 2dly. The affirmative covenant is negative to what is not (/) Roswell v. Vaughan, 2 Cro. (g) Butler's n. 1 to Co. Litt. 196 ; Lysney v. Selby, 2 lord 381, a. Raym. 1118 ; Goodtitle v. Morgan, (A) Anon. 2 Cha. Ca. ip; and 1 Term. Rep. J 55 ; and see Anon, see Fonbl. n. (g) to 1 Trea. Eg. ? Freern. IOQ. 36l, 2d edition. affirmed, 516 OF RELIEF IN RESPECT OF affirmed, and all one as if expressly declared that the vendor was not to warrant but against himself, and the vendee to pay, because absolute without condition. Sdly. Quaere, If this may not be made use of to a gene- ral inconvenience, if trie vendee, having all the writings and purchase, is weary of the bargain, or in other respects sets up a title to a stranger by collusion ? Nota. In many cases it may be easily done, &c. These remarks are unanswerable ; and if the doctrine in this case were law, the consequences would be of a very serious nature ; for what vendor would permit part of the purchase-money to remain on mortgage of the estate, if he were liable to lose it, supposing the estate to be recovered by a person against whose acts he had not covenanted ? Indeed this point is so very differently considered in practice, that where part of the purchase-money is permitted to remain on mortgage, although the covenants from the vendor be limited, the vendee invariably enters into general unlimited covenants, in the same manner as he would have done in the case of an independent mortgage. 4thly. Although the purchase-money is paid, and the conveyance is executed by all the parties, yet if the defect do not appear on the face of the title-deeds, and the vendor was aware of the defect, and concealed it from the purchaser, or suppressed the instrument by which the incumbrance was created, or on the face of which it appeared, he is in every such case guilty of a fraud (/), and the purchaser may either bring an action on the case, or file his bill in equity for relief, . But, as Mr. Butler remarks, a judgment obtained after the death of the seller, in an action of this nature, can only (i) See Harding v. Nelthrope, Holbech, Dougl. 654, 2d edit.; Nels. Cha. Rep. 118 ; and Bree v. and sec 2 Freem. 2. charge Incumbrances. 317 charge his property as a simple contract debt, and will not, therefore, except under very particular circumstances, charge his real assets. A bill in Chancery, in most cases, will be found a better remedy : it will lead to a better discovery of the concealment, and the circumstances attending it, and may in some cases enable the court to create a trust in favour of the injured purchaser (k). If a bill is filed against the vendor, and the court cannot satisfy itself of the fact, an issu« will be directed to try whe^ ther the vendor did know of the incumbrance (/). Although the vendor has fraudulently concealed an iri^ cumbrance, yet the purchaser has no lien on the purchase* money, after it is appropriated by the vendor. Thus in the case of Cator v. earl of Pembroke (t?i), lord Bolingbroke was tenant for life of a settled estate, with a power to sell and lay out the money arising by sale in other lands ; and in the mean time to invest the same in the funds. Lord Bolingbroke granted life-annuities out of the estate, and then he and the trustees of the settlement, sold the estate 'to Cator, who was ignorant of the annuities, and lord B. covenanted, that Cator should enjoy free from incum- brances. The purchase-money was invested in the funds in the names of the trustees, and lord Bolingbroke granted an- nuities to Boldero the banker, to the extent of the dividends ; and the trustees, at the request of lord Bolingbroke, gave Boldero an irrevocable power of attorney, to receive the divi- dends. Cator being evicted by the grantee of the annuities charged on the estate, filed his bill, insisting that he had a lien on the purchase-moiley invested in the funds, and was entitled to the dividends in exclusion of Boldero. The (*) See Butler's n. 1. to Co. Lite, (m) Cator v. earl of Pembroke, 3 S4,a. lBro.CC. 301. (/) Harding v.Nelthrcpe, uhi sup. cause S18 OF RELIEF IN RESPECT, &C. cause was first heard before the lords commissioners Lough-* borough, Ashurst, and Hotham, who thought that Cator had a lien on the dividends, but that Boldero had a prefer- able equity, and therefore dismissed the bill. The cause was reheard before lord Thurlow(n), who affirmed the decree, and was moreover of opinion, that Cator could not follow the money when deposited with the trustees, but that having taken a covenant for quiet enjoyment and a good title, his remedy was that way. Where a purchaser pays part of the purchase-money generally to a creditor of the vendor, by judgment, or other security affecting the land, and also by bond, or other secu- rity, which does not affect the land, it will be considered as a payment in satisfaction of the judgment, or other incum* brance which charges the estate (o). (n) 2 Bro. C. C. 282.* see Hayward v. Lomax, 1 Verrt* (o) Brett v. Marsh, 1 Vern. 468 ; 24. CHAP* t 319 3 CHAPTER X. Of INTEREST. Equity considers that which is agreed to be done, as ac- tually' performed 5 and a purchaser is therefore entitled to the profits of the estate from the time fixed upon for com- pleting the contract, whether he does or does not take pos- session of the estate (a) : 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 (6). This is so plain a rule, that no disputes could ever arise on it, if the purchase-money were not frequently lying dead ; in which case it becomes a question, whether the loss of interest shall fall on the vendor or purchaser. If the delay in completing the contract be attributable to the purchaser, he will be obliged to pay interest on the pur- chase-money from the time the contract ought to have been carried into effect, although the purchase-money has been lying ready, and without interest being made of it (c). But if the delay be occasioned by the default of the vendor, and the purchase-money has lain dead, the pur- chaser will not be obliged to pay interest. The purchaser must, however, give notice to the vendor that the money i3 (a) See 6 Ves. Jun. M3, 352. 396; and see 6 Ves. Jun. 352. {i) Davy v. Barber, 2 Atk.489 ; (c) Calciaft v. Roebuck, 1 Ves. see sir James Lowther v. the coun- Jun. 221. tessdowager of Andover, 1 Bro.C.C. lying S20 OF INTEREST. lying dead (d) ; as otherwise there is no equality : the one knows the estate is producing interest, the other does not know that the money does not produce interest (e). Wherever therefore a purchaser is delayed as to the title, and means to insist upon this, he ought to apprise the other party that he is making no interest. But even if a pur- chaser gave such notice, yet if it appears that the money- was not actually and konajide appropriated for the purchase, or that the purchaser derived the least advantage from it, or in any manner made use of it, the court would compel him to pay interest. If no time be limited for performance of the agreement, and the purchaser be let into possession of the estate, he must pay interest on the purchase-money from that time (/]. It cannot^ however, be laid down as a general rule, that a purchaser of estates under a private agreement shall, from the time of taking possession, pay interest. At any rate, al- though the conveyance be executed, yet he shall not pay- interest but from the time of taking possession, if prevented from so doing by the vendor (g). But it must be a strong case, and clearly made out, in which he shall not pay inter- est where he has received the rents and pronts(/i). Thus in Comer v. Walkley (z), the purchaser had been in possession of the estate about 22 years, without any con- veyance having been executed ; and he had not paid the purchase-money. The delay was not attributable to him, and he stated that his money had been lying ready from the (i) Calcraft v. Roebuck, ubi sup. (g) Per lord Hardwicke, m (e) Powell v. Martyr, 8 Ves. Jan. Blount v. Blount, 3 Atk. 636. 146 ; see Comer v. Walkley, post. {h) See S Ves. Jun. 148, 14£. (/) See ex parte Manning, 2 (i) Reg. Lib. A. 1784. fo.625, IWYms. 410. time OF INTEREST. 321 time of the contract, without interest being made by it, as he was in daily expectation of being called upon for pay. ment of it ; and therefore he insisted that he ought not to be compelled to pay interest. Lord Thurlow, however, decreed that he should pay interest at 4 per cent., from the time he entered into possession to the time he paid the pur- chase-money into the Bank by the order of the court. If it be agreed, that the purchaser shall take possession of the estate, and pay interest on the purchase-money from that time, and it afterwards appear that a long time must elapse before a title can be made, the purchaser will be en- titled to rescind the agreement. But if the purchaser acquiesce in the delay until the con- tract is nearly carried into execution, he cannot then ap- propriate the purchase-money ; and by giving notice of that circumstance to the vendor, discharge himself from the payment of interest. Thus in Dickenson v. Heron ( k), after the execution of a contract for purchase of an estate, it appeared that an act of parliament was necessary to perfect the title, and that some time must elapse before a title could be made ; and it was therefore agreed, that the purchaser should take pos- session of the estate, and pay interest on the purchase-mo- ney, Great delays having arisen, and the purchaser think- ing exchequer-bills, in which the purchase-money was in- vested, not safe, he sold them, and gave notice to the ven- dor that the money was lying ready, and without interest being made of it. After the purchase was completed, and the money paid, the vendor filed a bill, asserting his right to interest until the execution of the conveyance. The cause was heard before the present master of the Roils, who pronounced the following judgment : — u An (I) Rolls, 16th March 1S04. MS. y agreement 322 OF INTEREST* agreement of this nature is totally independent of the in-* terest made by the money. When a purchaser is let into possession, the vendor need not mind what is done with the purchase-money, because the purchaser agrees to pay in- terest for the money. And such an agreement can only be affected by great delay, because the purchaser is not to be kept for ever bound by a disadvantageous bargain ; for the interest might be better than the rents ; in which case, if the purchaser was to be bound, notwithstanding an unrea- sonable delay, the vendor would not mind how long he de- layed making a title. If the objection had been taken at a different time, it would have been better. He should have made the objection when he knew that an act of parliament was necessary, as he was not before in possession of that fact. But he waved this delay, and he consents to continue to pay interest, and writes a letter which clearly implies that; or he might otherwise have waved the agreement. Afterwards he thinks he is entitled to say, that he will not pay interest. The ground was totally distinct. He had laid out his money in. exchequer-biUs, and then, upon a supposition that they were not safe, he sold out, and then gave notice that he would not pay interest. He ought cer- tainly to have given notice before he sold out ; and to have given the vendor his option, whether he would choose them to remain at his risk, or would wave his interest. This ground was, however, nothing to the vendor, as he had nothing to do with the interest. The only ground upon which he could have waved the agreement, was the delay in the first instance. The defendant mistook his case ; he might have come at an earlier period, and insisted not to pay interest ; for a court would not have held him to an in- definite period. Besides, the notice was not given until a long delay could not take place." And the master of the Rolls, <6f interest. 325 Rolls, for these reasons, decreed the purchaser to pay in- terest ; but, as he bound himself by his long acquiescence,, his honor would not give costs. From the time, however, the conveyance is ingrossed and delivered to the vendor's attorney for execution, a pur- chaser is not compellable to pay interest, although he may have neglected to apprise the vendor that the purchase-mo- ney is lying dead ; because if the conveyance were executed the next moment, he mUst pay the money, and therefore he ought to have it ready. For this reason, in Dickenson v. Heron, the purchaser was decreed to pay interest until the date of the conveyance only, although it was not exe- cuted until three months afterwards. The purchaser of a reversion must pay interest on the purchase-money from the time the conveyance is executed j because the wearing of the lives is equivalent to taking the profits (/). And if he create difficulties to avoid the conveyance be* ing executed, he must pay interest from the time it ought to have been executed (?»)* But as the conveyance ought not to be executed until the title is made out, the purchaser will not* previously to that being don£, be chargeable with interest ; and a trifling de- lay of a few months will not be taken into consideration (?*). Where a reversion is sold under the order of a court of equity, it seems that interest must be paid from the time the report of the purchaser being the best bidder, is abso- lutely confirmed ; because, from that time the purchaser is sure of his title s and of his purchase : the estate is bound? (1) Ex parte Manning,2 P.Wms. S2 ;'and see 3 Atk. 637. 410; Child v. lord Abingdon, 1 (») Growsock v. Smith, 3 Anstr. Ves. Jun. 94. 877. (to) Owen v, Davies, l Ves. y 2 . and S24 OJ ' INTEREST. and the party who is to convey becomes but a trustee for the purchaser, who ought to have his money ready (o). If, subsequently to a written contract, an agreement be made, that the purchaser shall pay interest on the purchase- money from a particular time, and the agreement is reduced into writing, but signed by the vendor only ; yet, if the contract has been in part performed, the purchaser will be bound by the subsequent agreement (/A Where a leasehold estate is sold, and possession is not delivered to the purchaser, if any delay occurs, as it would not be just to make the purchaser pay the whole purchase- money, after part of the term is elapsed, without his hav- ing derived any benefit from the estate, the court will com- pel the vendor to pay a rent in respect of his occupation of the estate ; and the purchaser to pay interest on the pur- chase-money during the delay (/?). The rated interest a purchaser is usually compelled to pay, is 4 per cent. (r). In Blount v. Blount (s), lord Hardwicke said, the court would give such interest as was agreeable to the nature of the land purchased ; but this seems never to be taken into consideration, nor indeed ought it to be ; interest being given not so much on account of the profits of the estate, as the unjust detention of the purchase-money. (c) Ex parte Manning, 2 P. Jun. 221 ; Child v. lord Abingdon, Wms. 410; Child v. lord Abing- 1 Ves. Jun. Q4 ; Corner v. Walk- don, 1 Ves. Jun. 94 ; and sec ley, Reg. Lib. A. 1784, fo. 625 j Owen v. Davies, 1 Ves. 82; but Pollexfen v. Moore, Reg. Lib. B. see Growsock v. Smith, 3 Anstr. 1/45, fo. 283, at the bottom j 677; Blount v. Blount, 3 Atk. Smith v. Hibbard, Chan. 11 July, 636 # 1789 ; and see lord Rosslyn's (p) Owen v. Davies, 1 Ves. 82. judgment in Lloyd v. Collett,4Ves» (q) Supra, p. 185. Jun. 690, n. (r) Calcrait v. Roebuck, 1 Ves. (1) 3 Atk. 636. The OF INTEREST. S25 The true principle by which the rate of interest should be fixed, seems to be the market rate of interest of money se- cured on landed property (z) ; and therefore, in a late case 0), a purchaser was decreed to pay interest at 4/. 10*. per cent. In Dickenson v. Keron (a:), at the time the purchaser took possession of the estate, it was agreed he should pay interest on the purchase-money, but no rate was fixed. The purchase-money, however, then produced 5 per cent, and it was understood between the parties that interest was to be paid at that rate ; and although this understanding did not appear by any note or writing, the purchaser was decreed to pay interest at 5 per cent. And in a late case in the court of Exchequer it appeared that one tenant in common had sold his share of the estate, and of the timber, to the other who was let into possession, but no stipulation was made as to interest. The purchase- money was not paid. A bill was filed by the vendor for a specific performance, and a motion was made that the purchase-money might be paid into court, or a receiver ap- pointed of the estate sold. And it was accordingly referred to the master to appoint a receiver, who was directed to pay to the vendor, out of the rents, " interest after the rate of 5l. per centum, per annum, upon the amount of the pur-, chase-money, and the value of the timber on the es- tate." (7/). The same rate of interest seems payable, whether the (0 Incledonv. Nqrthcote, 3Atk. (x) Supra, p. 321. 438,430 j and see 2 Ves. Jim. 511, (^)Waldron v. Forester, Excheq, 512 ; sedvlde Sitwell v. Barnard, 4th May 1804. MS. 6 Ves. Jun. 520. (u) Cox v. Chamberlain, 4 Ves. Jun. 031, Y 3 estate 326 O? INTEREST. estate be sold by private agreement, or by a master under a decree of a court of equity. s With respect, however, to the sale of reversions, it must be remarked, that in Blount v. Blount (x), lord Hardwicke said, that where estates for life have dropped in between a person being reported the best purchaser before a master, and his taking possession, the court have either directed the purchaser to make some compensation in consideration of the estate being bettered, or otherwise to go before a master again, and the estate to be put up for a new bid- ding. But the present practice of the courts is not conformable to lord Hardwicke's doctrine ; the rule being to make the purchasei pay interest from the time the report is confirmed^ from which time he is entitled to the profits of the estate, which are, the wearing out 01 the lives (a). It frequently happens, that part of the purchase-money is left in the hands of the purchaser, for the purpose of pay- ing off incumbrances ; and in that case, the purchaser must pay interest for it to the vendor (Z>). In Comer v. Walkley (c), it appeared, that a sum was left in the vendor's hands, at interest, as an indemnity against an incumbrance. The purchaser afterwards paid part of the sum to the vendor ; notwithstanding which, the purchaser and his devisees continued to pay interest on the whole for many years. A bill was at length filed to compel payment of the residue of the sum deposited ; and the misr take being admitted, the master was directed to take annual rerests of the overpayments, and to compute interest thereon (z) 3 Atk. 636. (b) Hughesv.Kearney,lSchoale's {a) Child v. lord Abingdon, 1 and Lefroy's Rep. 132. Ves. Jun. 94 ; and see ex parte (c) Reg. Lib. A. 1/84, fo. 625. J&awung, 2 P. Wms. 41Q. at OF INTEREST. 327 - at S per cent, and the amount of the overpayment and inter- est to be deducted from the sum, which should be found due from the purchaser. Where a purchaser is entitled to recover a deposit paid by him to the vendor, he can also recover interest on it from the time it was paid. And if the agreement be executed by a court of equity, interest is always allowed on the de- posit (d). And I learn, that even where a purchaser can recover a deposit paid to an auctioneer, he can also recover interest on it. Upon principle, perhaps, this rule cannot be sup- ported : for an auctioneer is bound to keep a deposit till the execution of the contract, as a banker or depositary of it: for which reason it seems doubtful whether, if he actually made interest of it, he ought to be compelled to pay inter- est (e). Upon convenience, however, this practice may be tolerated; as the purchaser ought to receive interest, and the auctioneer can recover it from the vendor (/). But if a purchaser can only recover the money by an ac- tion for money had and received, he cannot sustain a de- mand of interest ( g). If a vendor cannot make a good title, and the purchaser's money has been lying ready, without interest being made by it, the vendor must pay interest to the purchaser (A). And where biddings before a master are opened, the pur- chaser will be allowed interest at the rate of 4/. per cent, per (J) Lacon v. Mertins, 3 Atk. 1. (/) See Spurrier v. Elderton, 5 (<) Sec lord Salisbury v. Wilkin- Esp. Ca. 1. son, 8 Ves. Jun. 48, and 3 Bro. (g) Walker v. Constable, 1 Bos. C C. 44, cited j see also Browne v. and Pull. 300*. Southouse, 3 Bro. C.C. 107 } sed (A) Flureau v.Thornhill,2Black. vide Willis v. the commissioners ef 1078. Appeals in Prize Causes, 5 East, OO y 4 annum) 328 OF INTEREST. annum, on such part of the purchase-monies as the master shall find to have lain dead (/). Where a purchase by a trustee is set aside, and the estate restored to the cestui que trust, the purchaser is allowed interest on the money paid by him, and is compelled to pay a rent for the estate, during his enjoyment of it (k). An agreement, that if the purchase-money be not paid at the time stipulated, the purchaser shall pay a rent for the estate exceeding the legal interest of the money, is not usurious (/). (?) This was directed en opening (k) Infra, ch. 14. the biddings for general Birch's (I) Spurrier v. Mayoss, \ V«s% estate. MS, Jun, 527, 4 Bro. C.C, 26, CHA?» I S29 J CHAPTER XL OF THE OBLIGATION OF A PURCHASER TO SEE TO THE APPLICATION OF THE PURCHASE-MONEY, Where a trust is raised by deed or will for sale of an es- tate, a clause that the receipts of the trustees shall be suffi- cient discharges for the purchase-money, is mostly inserted, and rarely ought to be omitted ; because, notwithstanding that a purchaser would, at law, be safe in paying the mo- ney to the vendors, although they were trustees, yet equity will, in some cases, bind purchasers to see the money ap- plied according to the trust, if they be not expressly relieved from that obligation by the author of the trust : and where the purchaser is bound to see to the application of the mo- ney, great inconvenience frequently ensues, and, in some instances, it would be difficult to compel the purchaser to complete the contract. The rules on this subject may be considered under two heads. First, With respect to real estate. Secondly, With respect to leaseholds, or chattels real. For the rules appli- cable to the different species of estates are dissimilar ; owing to the much greater power which a testator has over his real, to what he has over his personal estate. Previously to the statute of fraudulent devises (a), free- hold lands were not bound by even specialty debts in the hands of an hares f actus j although an hares natus was (a) 3 W. and M. c. 14. liable 330 OF SEEING TO THE APPLICATION" liable to specialty debts in respect of lands descended (l) f But personal property, which was formerly of very tiifling value, was always holden to be subject to the payment of debts generally, however the same might be bequeathed. And by the statute of Westminster 2 (&), it was enacted, that even the ordinary should be bound to pay the debts of the intestate, so far as his goods would extend, in the same manner as excutors were bound in case the deceased had left a will. In fact no man can exempt his personalty from the payment of his debts ■> but the same must go to his execu- tors as assets for his creditors, and be applied in a due course of administration ; that is, however it may be bequeatJicd, it must go to the executors, upon trust, in the first place, for payment of debts generally. Now although the author of the trust may have neglected to free the purchasers of his property from the obligation of seeing that the money is duly applied, yet equity hath thought it reasonable that 2 purchaser should see to the application of the purchase- money, where the trust is of a defined and limited nature only ; and not where the trust is general and unlimited, as a trust for payment of debts generally. From these rules it necessarily follows, that a bona Jide, (b) 13 Ed. I. c. 19. (1) Although an heir at law is bound by specialty debts in respect of lands descended, yet a purchaser of those lands, without notice of any debts, was never holden to be subject to them. The statute of fradulent devises was always considered as placing a devisee on exactly the same footing as an heir at law ; but it was lately contended (see Mathews v. Jones, 2 Anstr. 50(?,) that the debts of the testator would bind a purcha- ser from the devisee, although he bought lona Jide and without notice. But this was over-ruled. Equity will however, in behalf of creditors, grant an injunction against a purchaser to restrain payment to the heir. Green v. Lowes, 3 Bro, C.C 217- purchase! OF PURCHASE-MONEY, 331 purchaser of a leasehold estate from an executor ought not to be bound to see to the application of the purchase-money, although denned and limited trusts be declared of the pur- chase-money. — But, as a testator can declare an original limited trust of his real estate, wherever such a trust is Created, the purchaser is, of course, bound to see the money stuly applied? These appear to be the principles upon which the distinc? tlons on this subject are grounded, and we may now pass to an examination of the rules themselves. And, first, with respect to real estate, 1. If the trust be of such a nature, that the purchaser may reasonably be expected to see to the application of the pur- chase-money, as if it be for the payment of legacies, or of debts which are scheduled or specified, he is bound to see that the money is applied accordingly (c) ; and that although the estate be sold under a decree of a court of equity (d), or by virtue of an act of parliament (e). (c) Culpepper v. Aston, 2 Cha. Guyon, 1 Bro. C C. 186, and the Ca. 221 j see Show, 313 ; Spalding cases cited in the note (2). And v. Shalmer, 1 Vem. 301 j Dunch see 1 Ves. 215. v. Kent, 1 Vera. 260; Anon. Mose. (d) Lloyd v. Baldwin, 1 Ves. . Atk, 41 ; Ambl. 189, rmrg. Jun. 323. the 336 OF SEEING TO THE APPLICATION the party ; and when the trust is in esse, it seems wholly immaterial by what means it has arisen. It seems hardly necessary to remark, that where lands are charged with the payment of annuities, those lands will be liable in the hand* of a purchaser, because it was the very purpose of making the lands a fund for that payment, that it should be a constant and subsisting fund (r). So where an estate is devised, subject to existing charge?, the purchaser must of course see the charges duly paid. 12. These are the distinctions which according to the books appear to exist in regard to the liability of a purchaser to see to the application of money arising by sale of estates conveyed or devised to trustees upon trust to sell ; but the reader must be apprized, that some gentlemen are of opinion, that a purchaser is in no case bound to see to the applica- tion of purchase-money, where there is a hand appointed to receive the money. And it appears that lord Kenyon, when master of the Rolls, inclined strongly to the opinion, although he made no decision, that trustees having the power to sell, they must have the power incident to the character, viz. the power to give a discharge (s). Of those who hold that a purchaser is only liable to see to the application of the money where there is not a hand ap- pointed to receive the money, and the trusts of the money are defined, Mr. Powell is the only one whose reasons are before the profession (t). The whole of Mr. Powell's argu- ment (5) appears to have been suggested to him, and indeed (r) Elliot v. Merryman, Bar- (t) See 1 Mortg. 312—330, 4th nard, Rep. Cha. 82 j see Wynn v. edit. There appear to be several Williams, 5 Ves. Jun. 130. errors in Mr. Powell's chapter on (s) See 4 Ves. Jan. gg. this subject. (5) See the 3d edition of Powell on Mortgages, where the point is not noticed. depends OF PURCHASE-MONEY. 3$1 depends on the case of Cuthbert v. Baker. For throughout the many cases which have been referred to in this chapter, the decisions have invariably been pronounced on the distinc- tion between a limited and a general trust ; and in no case has the appointment of a hand to receive the money been considered as affecting the question, any further than it at one time seems to have been thought, that in every case of a mere charge, the purchaser was bound to see to the appli- cation of the 'money. That this was always deemed the true distinction, is evinced by manuscript and printed opi- nions to that effect, of all the most leading characters in the profession of the last and present century. So lord Eldon, in condemning the doctrine advanced in Omerod v. Hard- man («), did not say it was wrong because there was a hand appointed to receive the money (which was the fact), but because the first trust was for payment of debts generally. Mr. Powell, however, was not singular in his construction of the decree in the case of Cuthbert v. Baker. It is well known by the profession, that lord Redesdale, who was counsel for Baker the purchaser, considered the decision in the same light. The case is thus stated by Mr. Powell :— A. made his ivill(>), and thereby directed that all his persons! estate (except as therein excepted) should be applied as far as the same would extend in payment of debts, legacies, and funeral expences, and of all annuities by him granted ; and if such personal estate should not be sufficient for those purposes, then it was his further will and desire, and he did direct) that the deficiency, whatever it might be, should be paid and made good out of his real estate (except a part therein mentioned, which he did not intend to make subject thereto), and which real estates he charged with the (a) See 6 Ves. Jun. 654, D. et 1790, Reg. Lib. 4, 441; but the fupra, n. 10 s.4. correct reference is Lib. Reg. A. \z) Mr. P. refers to 4th July, l?go, fo. 442. z payment 838 OF SEEINO TO TH£ APPLICATION payment of such deficiency, to whose hands soever the same came. And so subject and exempt, he gave, devised, &c. all his real and personal estate in the following manner : certain parts of his estate to his wife in fee ; and as to the manors, messuages, &c. not given to his wife in fee, he devised them to his wife for life ; and after her decease he gave the same to trustees in trust, to sell and to divide, and distribute the money which should arise by such sale between and amongst such child or children of A. B. on the body of his then wife begotten, and such children of C. D. (6) as should be living when the devise to the trustees should take effect, equally share and share alike, to take per capita, and not per stirpes : if but one such child, the estate to be transferred to him, and not to be sold. The wife died. One trustee died in her life-time. The surviving trustee sold the estate by auction. The personal estate was sufficient to discharge the debts : the claimants under the devise to children were seven chil- dren of A. B., and six children of C. D. (7) who were enti- tled to the purchase-money in equal shares. One of the children of C. D. was in the East-Indies, and two were infants. The purchaser refused to complete his purchase, objecting thereto on the ground that there being no proviso in the will to exonerate the purchaser from seeing to the application of the money, the purchaser was bound to know or find out what children of the persons in that behalf named were living at the testator's wife's death, for that such children ought individually to execute the conveyance and give releases for their respective claims ; and that one being in the East Indies, and two being infants, could not join in such conveyance. (6) This is mistated, fur the money was given to such cf the children ©f three persons as should be living at the time when the devise to the trustees should take effect. (7) Th/'s is inaccurate. There were 17 children in all. X But b'F fURCHASE-MONEVi 359 But the decree was, that the contract should be carried into execution, that the infants shares of the purchase- money should be paid to the Accountant-General, and that the remainder of the purchase-money should be paid to the trustee. The decree proceeded to direct that all proper parties should join in the proper conveyances. Mr. Powell observes, that this decision, though not final, as it still left room for an application to the court to deter- mine who might be proper parties to the conveyance, ap- peared to him to be conclusive on the question, whether the persons beneficially entitled are necessary parties j because there could be no ground to consider those persons as neces- sary parties, unless it were to discharge the purchaser : but there seemed to him to be no power in the court to compel a person beneficially interested in money, to arise by sale of land, to discharge that land, unless it were upon paying or securing the money to him. Bat the court, by directing the payment to the trustee, had done that which rendered a d» rection to pay to the cestui que trust impossible. It will be' seen that Mr. Powell's argument is entirely founded on the order to pay the remainder of the purchase- money to the trustee, and this ground ^wholly fails him - f for all the cestuisque trust were plaintiffs, and the prayer of the bill was, that the htfants shares might be invested, and that the remainder of the purchase-money might be paid to the trustee. It is not noticed in the foregoing statement of the case y that no costs were given ; but the fact is, that the purchaser was refused his costs, and that circumstance may perhaps induce a conclusion, that the construction put upon the ease by Mr. Powell is correct. But it is conceived, that there is a ground upon which the decision may be supported without impeaching the set- z 2 tied 340 OF SEEING. TO .THE APPLICATION tied doctrine on this subject. The trust was for such of the children of three persons, as should be living when the estate should fall into possession, and it was strongly insisted by the bill ; and it is apprehended, with great reason, that the cestuis que trust were in regard to the purchaser undefined ; and he was not bound to ascer- tain or inquire how many there were, and who they were, The facts of the case were such as to tempt a judge to put that construction on the trust; there were seventeen children, two of whom were infants, and another was in the East Indies. It should seem, there- fore, that there is a solid principle to which lord Thur- low's decision can be referred, and consequently a pur- chaser can scarcely be advised to incur the risk of paying money to a trustee, on the authority of this case, in opposi- tion to the former decisions. Perhaps another ground re- mains upon which the decision might have been made. All the 'cestuis que trust of age, and in the kingdom, offered pre- viously to the commencement of the suit to give receipts for their shares: the receipt of the trustee would certainly have been a sufficient discharge for the shares of the infants, and also, as it is conceived, for the share of the cestui que trust who was abroad. And in this view of the case the purchaser was clearly liable to the costs. It were difficult to maintain, that the absence of a cestui que trust in a foreign country shall, in a case of this nature, impede the sale of the estate. Lord Thurlow's judgment in this case would be a very desirable^ present to the profession. In a case which came before the same judge a few years before that of Cuth- bert v. Baker, and which I learn from a gentleman who has seen the papers relating to the estate, is correctly reported, the estate was subjected to the payment of debts generally ; and his lordship said, that the purchaser was a mere stran- ge, OF PURCHASE-MONEY. 341 ger, and was not bound to look to the application : where the estate is to be sold, and a specific sum, as 5\. to be paid to A. the purchaser must see to the application ; but where it is to be sold generally, he is not (?/). In the case of Currer v. Walkley reported in Mr.Dickens's second volume (z), which was also before lord Thurlow, it is stated, that the testator had devised estates, subject to par- ticular charges : he afterwards entered into a contract for a part of the estate ; and the purchaser paid the sum of 600/. as a deposit. The bill was for an account of what was due to the plaintiff in respect of his charge, and that the purchaser might pay out of the remainder of his purchase-money what remained due to the plaintiff. Lord chancellor Thurlow is reported to have said, that if an estate is devised to trustees to sell, and the testator afterwards contracts for the sale of the estate, it is enough for the purchaser to pay the pur- chase-money into the hands of the trustees, to apply it, as it doth not lie with him to see it applied ; but if the estate be devised, subject to particular charges, it is incumbent on him to see it applied in payment of those particular charges. This case seemed to apply to the point under discussion j but no reliance could be placed upon it, as it was to be inferred from the report, that lord Thurlow held, that a devise of an estate was not revoked in equity by a subse- quent contract for sale of it, a doctrine which it was diffi- cult to suppose could have fallen from so great a judge of equity. The case is stated in the Register's book (a), by the name of Comer v. Walkley, and Mr. Dickens's report of it is a complete mistatement. The estate was originally de- vised to trustees upon trust to sell and pay debts generally. (y) Smith v. Guyon, 1/83, i (%) 2 Dick. 64Q. J3ro. C. C. 1 16. (a) RegXib. A. 1784, fol. 626. z 3 The 843 OF SEEING TO THE APPLICATION The estate was subject to an annuity at the death of the tes- tator. The trustee sold a part of the estate for 720/. 600/. was left in the purchaser's hand as an indemnity against the annuity. The purchaser afterwards paid 250/. part of the 600/. to the trustee. By several conveyance?, &c. the estate purchased became again vested in trustees upon trust, to sell for payment of debts generally. These trustees sold the estate to Charles Whittard, who objected to complete the contract without the concurrence of the person entitled to the residue, then unpaid, of the 60C/. After a great lapse of time the person entitled io the residue of the 600/. filed a bill against Whittard and others for pa] nt cf it ; and Whittard filed another bill for a specific performance, which was accordingly decreed ; and the proper accounts were directed to be taken in the first cause. Whittard's costs in both causes were allowed to him. The decision, therefore, appears to have been that the 600/. was a lien on the land. The latter part of lord Thurlow's judgment, re- ported by Dickens, clearly referred to the annuity which was a subsisting charge on the estate at the testator's death. And adverting to the circumstances of the case, the first part of the judgment may, perhaps, be read thus : If an estate is devised to trustees to sell, and the trustees afterwards con- tract for the sale of the estate, it is enough for the purchaser to pay the purchase-money into the hands of the trustees to apply it, as it doth not lie with him to see it applied. Now this, as corrected, seems in favour of the opinion, that where a hand is appointed to receive the money, a purchaser is not bound to see to the application of the purchase-money, but it should not be forgotten, that this observation was made in a case where the trust was for payment of debts generally. IS, Where the trust is to raise so much money as the. persona! OF PURCHASE-MONEY. 34S personal estate shall prove deficient in paying the debts, or debts and legacies, it seems formerly to have been doubted whether the purchaser was not bound to ascertain the defi- ciency. Mr. Fearne thought a purchaser was bound to do so (b). But the opinion and constant practice of the pro- fession is certainly otherwise (c). Indeed, a direction that the personal estate shall be first applied, only expresses the rule of equity, where, as in a case of this nature, no inten- tion appears to exonerate the personalty from the payment of the debts ; and, therefore, such a direction cannot be deemed material. 14. Where a mere power is given to trustees to sell, for the purpose of raising as much money as the personal estate shall prove deficient in paying the debts, or debts and lega- cies, it seems that unless the personal estate be actually defi- cient, the power does not arise, and consequently cannot be duly executed. This was expressly decided in the case of Dike v. Ricks (7/), where, in a case of this nature, it was determined by Jones, Croke, and Barkeley, justices, unani- mously, that the condition was a precedent condition, and that the performance of it ought to be sufficiently averred, otherwise the power would not authorize a sale ; and that the amount of the debts, and the value of the personal estate, ought to be shewn, so that the court might judge whether the condition was performed or not ; and also that so much only of the estate could be sold as was sufficient for payment of the debts. And the case of Culpepper v. Aston (e) also appears to be an authority, that in a case of this nature a purchaser is bound to ascertain the deficiency - y for in that case the will seems to have given a mere {b) Fearne's Posthuma, p. 121. 327, 1 Ro. A.br. 329, pi. 9i 3Vin. (c) See the 12th section of Mr. Abr. 41 Q, pi. 0. Butler's n. (1) to Co. Litt. 200 b. (e) See 2 Cha. Ca.. 221. (d) Cro. Car. 335; Wm. Jones, z 4 power 544 OF SEEING TO THE APPLICATION power (f) to the executors to raise as much money as the personal estate should fall short in paying the debts. The v/ill was revoked pro tanto by a subsequent conveyance creating a direct trust to sell and pay debts, under which it seems the purchaser bought ; and therefore the point did not call for a decision. But it was resolved, that by the trust (that is power) in the will to sell, the purchaser did purchase at his own peril, if the personal estate received were sufficient ; but that, if the trust were as in the deed, the purchaser was safe. The reader must be aware, that as the power is not well executed, unless there be a deficiency, a purchaser must, at his peril, ascertain the fact, notwithstanding that the trust be for payment of debts generally ; for being or payment -of particular debts or legacies, the common clause, that the trustees' receipts shall be sufficient discharges, be inserted in the instrument creating the trust. Wherever, therefore, a power of this nature is given, and even where a trust for such purposes is raised, it seems advi- sable, as Mr. Butler remarks, to extend, this clause a degree further, by expressly discharging the purchaser or mort- gagee from the obligation of enquiring, whether the per- sonal estate has been got in and applied ; and by expressly authorising the trustees to raise any money they may think proper by sale or mortgage, though the personal estate be not actually got in or applied. For it frequently happens, that the getting of the personal estate is attended with great delay and difficulty ; during which the real estate cannot perhaps be resorted to. This will be obviated effectually by inserting a clause to the above effect. It should, however, be accompanied with a further direction, that so much of the personal estate, and the money raised under the trust, as (/) 2Cha.Ca. 115. shall OF PURCHASE-MONEY. 345 shall remain after answering the purposes of the trust, shall be laid out in land, to be settled on the devisees of the real estates (g). 1.5. Where a purchaser is bound to see the money applied according to the trust, and the trust is for payment of debts, or legacies, he must see the money actually paid to the cre- ditors, or legatees. In cases of this nature, therefore, each creditor or legatee, upon receiving his money, should give as many receipts as there are purchasers, so that each purchaser may have one. Or, if the creditors or legatees are but few, they may be made parties to the conveyances. Another mode by which the purchasers may be secured, is, an assignment by all the creditors and legatees of their debts and legacies to a trustee, with a declaration that his receipts shall be sufficient discharges ; and then the trustee can be made a party to the several conveyances. Sometimes a bill is filed for carrying the agreement into execution, when the purchase-money is of course directed to be paid into court ; and this is the surest and perhaps the only safe mode, as the money will not be paid out of court without the knowledge of the purchaser. 16. If the names of the trustees be inserted in the usual clause that the receipts of the trustees shall be discharges, • every trustee who has accepted the trust must join in the receipt for the purchase-money, although he may have released the estate to the other trustees (h); because, not- withstanding that he^-elease the legal estate to his co-trustees, he cannot delegate the personal trust and confidence reposed in him : as the rule is, delegatus non botest delegare. To obviate this difficulty, which must frequently occur, it might, perhaps, be advisable (instead of naming the trus- (g) Butler's n. (l) to Co. Litt. (h) Crewe v. Dicken, 4Ves. ?£Q \i, Jun. 97, tees 345 OF SEEIN« TO THB APPLICATION tees in the clause) to say, that the receipts " of the trustees or trustee, for the time being, acting in the execution of the trusts hereby created," shall be sufficient discharges. This would probably render it unnecessary for a trustee who had released the estate to join in any receipt ; as there could not be the slightest ground to contend, that any personal trust or confidence was given to the trustees named in the instru- ment creating the trust ; and therefore the receipt of the trustees acting in the trusts, for the time being, would satisfy as well the words as the spirit of the clause (i). 17. But as one man cannot impose a trust on another against his consent, a trustee who has refused to accept the trust, and actually renounced, need not join in any receipts ; sn such cases the receipts of the other trustees will be suf- ficient discharges (/?). Upon this point, however, a dif- ference of opinion appears to prevail in the profession. 18. Where an estate is devised or conveyed to trustees to sell for payment of debts generally, without a clause that their receipts shall be discharges, and they convey to a third person, for the purposes of the trusty sales made by him are as effectual as sales made by the trustees themselves, and his receipt is equally a discharge to a purchaser (/); because, in such cases, the receipt is effectual by reason of the trust itself, and not owing to any personal confidence given by the author of the trust, or to any express declaration by him for that purpose. (i) See Co. Litt. 113, a. (/) Hardwickc v. Mynd. lAnstr. (k) See sir William Smith v. 10Q. See lord Braybroke v. Inskip, Wheeler, I Ventr. 128; Hawkins 8 Ves. Jun. 417. v. Kemp, 3 East, 410. Secondly, OF FURCHASE-MONSY, 34*? Secondly, We are to consider the rules on this subject with reference to leaseholds, or chattels real, 1, We have already seen, that however leasehold estates may be bequeathed, they must go to the executors, to be applied, in the first place, in a due course of administration; which is tantamount to a bequest for payment of debts gene- rally : And, therefore, in analogy to the decisions upon devises of real estates for a similar purpose, it is incontro- vertibly settled, that a purchaser of personalty shall in no case be bound to see to the application of the purchase- money, where he purchases bona Jide, and without notice that there are no debts (m). This principle v/as adhered to in the case of Humble v. Bill (n), before sir Nathan Wright, where a man bequeathed a specific part of his personalty upon trust to raise a sum of money for his daughter, and the executors mortgaged it, pretending want of assets. The decision was, however, reversed in the house of Lords (o) ; but the reversal is generally supposed to have proceeded from proof of fraud, and has not been attended to in subsequent cases. Thus in Ewer v. Corbet (/>), it was expressly holden, that a term being bequeathed to A. did not prevent the exe- cutors selling it ; and that notice of the devise was nothing, (w) Elliot v.Merryman,Barnard (o) See Savage v. Humble,lBro. Rep. Cha. 7S, 2 Atk. 41 ; see P. C. 71. Watts v. Kancy, Toth. 141, S. C. {p) 2 P.Wms. 148 ; and see Eur- ibid. 227, by tne name °f Mutts v. ting v. Stonard, 2 P. Wms. 150; Kancie, and Nurton v.Narton, ibid, and Andrew v.Wrigley, 4Ero.C.C. (n) 2 Vern. 444, 1 Eq. Ca.Abr. 137 ; and Dickenson v. Lockyer,4 358, pi. 4. Yes. Jun. 36. 348 OF SEEING TO THE APPLICATION as every person buying of an executor necessarily must have such notice. And the master of the Rolls said, he remem- bered it to have been once ruled, that an executor could not make a good title to a term to a purchaser, and that was in the case of Bill v. Humble ; but since that, he took it to have been resolved, and with great reason, that an execu- tor, where there were debts, might sell a term ; and the devisee of the term had no other remedy but against the executor to recover the value thereof, if there were suffi- cient assets for the payment of debts. 2. This doctrine has been carried so far, that a sale in satisfaction of a private debt of the executor, has been hol- den good (q). But in the first authority on this head (r), it appears that the testator had been dead two years before the assignment, although that circumstance is not mentioned in the report (s) ; and it might therefore be supposed, that the executor might in that case have entitled himself to the term, on ac- count of advances made by him in his trust (t). Yet even on that ground it perhaps cannot be supported ; for lord Thurlow decided differently in a case nearly similar, al- though between three and four years had elapsed from the death of the testator to the transaction («}. With respect to the second authority on this head (^), lord Kenyan expressly dissented from it in the case of Bon- ney v. Ridgard (//) ; and in a late case (z), where an exe- (q) Nugent v, Gifford, 1 Atk. (*) Mead v. lord Orrery. 463 ; and Mead v. lord Orrery, 3 (y) 2 Bro. C C. 468, 4 Bro.C.C. Atk. 235 ; and sec Ithell v. Bcane, 130, / Ves. Jttn. l6y, cited j and lVes. 215. see Andrew v. Wrigley, 4 Bro, (r) Nugent v. Gilford. C. C. 125. (5) See 4 Bro. C. C. 136. (2) Hill v. Simpson, 7 Ves.Jun. (0 See; Ves. Jan. 16*7. 152. (h) Scott v. Tyler, 2 Dick. 724, 2Bro.CC. 431, cytor, OF PURCHASE- MONEY. 34D cutor, shortly after the decease of his testatrix, transferred stock, part of her estate, to his bankers, to secure a debt due from him, and future advances ; the bankers swore that they did not know or suspect, that the funds were not the property of the executor, either as executor or devisee ; and it appeared in evidence, that he represented himself as absolutely entitled to them, under the will, subject to a tri- fling annuity, and a few small legacies : yet although no fraud was proved, as gross negligence appeared in the bankers not inspecting the will, the funds were holden to be liable to the legacies given by the will. It seems clear, therefore, that an executor cannot now dispose of his testator's property, as a security for, or in payment or satisfaction of, his own debts. 3. If the executor sell at an undervalue, or to one who has notice that there are no debts, or that all the debts are paid («), or if there be any express or implied fraud or col- lusion between the executor and purchaser, the sale cannot be supported (/;). Fraud and covin will vitiate any transaction, and turn it to a mere colour. If one concerts with an executor, or lega- tees, by obtaining the testator's effects at a nominal price, or at a fraudulent undervalue, or by applying the real value to the purchase of other 'subjects for his own behoof, or in extinguishing the private debt of the executor, or in any- other manner, contrary to the duty of the office of executor ; such concert will involve the seeming purchaser, and make him liable for the full value (c). (a) See Ewer v. Corbet, 2 P. GuTord, 1 Atk. 463 $ and sec Wms. 148. Gilb. Eq. Rep, 113 ; Prec. Cha. (£) Crane v. Drake, 2 Vern.6l6, 434 ; and Whale v. Booth, 4Term 7 Vin. 43, pi. 13, 13 Vin. 121, pi. Rep. 625, n. 11, side notes ; Bonney v. Ridgard, (c) Per lord Thurlow, 2 Dick. 3 Bro. C.C.438, cited; Nugent v. 725 ; and see 1 Burr. 475. 4. But 350 OF SEEING TO THE APPLICATION 4. But if the legatee permit a long time to elapse without asserting his claim, and there are several mesne pur- chasers, equity will not set aside the sale, although there are suspicious circumstances of fraud (//). 5. And although the legatee has only a contingent inte- rest, yet that will be no excuse for delay (e) ; because he has such an interest as will entitle him to know what debts the testator owed, and what part of his estate has been ap- plied to the payment of thtm. 6. It remains to observe, that lord Hardwicke thought (f) the reversal of the case of Humble v. Bill (g) might be pro- per, because the charge was upon a particular part of the estate : his lordship not however meaning to impugn the general doctrine, which he frequently admitted, and indeed carried further than any other judge. This distinction lord Hardwicke appears to have followed, in a case (A) where a specific legatee of a mortgage brought a bill to foreclose against the representative of the mortga-» gor, who pleaded an account settled between him and the executor of the mortgage, and a release. For his lordship thought the devisee had a specific lien on the estate, and as the mortgagor had notice of the bequest, he was bound by it. And he was inclined to over-rule the plea of the release? but the case of Ewer v. Corbet (/'), being cited, it was or- dered to stand for an answer, with liberty to except. And it does not appear what decision the case ultimately re- ceived. (d) Bonney v. Ridgard, 2 Bro. (/->) Langley v. carl of Oxford, C.C. 438, cited. Ambl. 17 ; and see Elliot v. Mer- (e) Andrew v. Wriglcy, 4 Bro. ryman, Barnard. Ch. Rep. 78 ; and C. C. 125. Andrew v. Wrigley, 4 Bro. C. C. (/) See Mead v. lord Orrery, 3 125. Atk. 241. (i) Supra. {£) Supra, p. 34?. And OF PURCHASE-MONEY. 3,51 And the same distinction appears to have been observed in an early case (£), where a testator bequeathed a term to his son for 10 years after the decease of his wife, or change of her widowhood ; remainder to his three daughters ; and made his wife executrix, who assented to the legacy, and entered and enjoyed, and afterwards sold the term under a pretence of want of assets. But the court being satisfied that the testator had sufficient assets to pay his debts, and that the wife had assented to the bequest, the assignment was set aside. Allowing this distinction to be founded, a purchaser can- not be advised to complete a purchase from an executor of a particular chattel specifically bequeathed, without the con- currence of the legatee ; unless he chooses to rely on the bonajides of the executor. 7. But of course this question cannot arise, where the spe- cific legatee of the chattel is also executor (/). (k) Thoralinson v. Smith, Finch, (/) Taylor v. Hawkins, € Ves. 37S, Jus. 20©. CHAP- ( 352 ) CHAPTER XII. OF THE VENDOR S LIEN ON THE ESTATE SOLD POS THE PURCHASE-MONEY, IF NOT PAID. Where a vendor delivers possession of ah estate to a pur- chaser, without receiving the purchase-money, equity, whe- ther the estate be (a) (l) or be not (b) conveyed, and al- though there was not any special agreement for that pur- pose, gives the vendor a lien on the land for the money ; so, on the other hand, if the vendor cannot make a title, and the purchaser has paid any part of the purchase-money, it seems he has a lien for it on the estate, although he may have taken a distinct security for the money advanced (cX But equity will not raise this equitable lien in favour of a papist incapable of purchasing (rf); as it would be giving him an interest in land. (a) Chapman v. Tanner, 1 Vern. /30 ; Charles v. Andrews, 9 Mod. 267 ; Pollexfen v. Moore, 3 Atk. 152. 2/2; and see 1 Bro. C. C. 302, (c) Lacon v. Mertins. 3 Atk. I. 424 ; and 6 Ves. Jun. 483. (d) Harrison v. Southcote, 2 Ves. ([■') Smith v. Hibbard, 2 Dick. 389. (1) But note, that in Chapman v. Tanner, (see Ambk 726, 6 Ves. Jun. 757 ) and Pollexfen v. Moore, there were special agreements that the vendor should keep the writings. Indeed, in the tatter case, posses- sion had not been delivered. See Mr. Saunders' note to the case in his *dition of Aikins. If OF THE VENDOR'S LIEN, &C. 353 If a vendor take a distinct and independent security for the purchase-money, his lien on the estate is gone ; as it clearly appears, that he did not trust to the estate as a se- curity for his money (;. 1 P.Wms. 693, and the cases in the Jn my copy of Forrester, Holds- note. ;vorth v.HoldswQrtbjIiill 23, Geo, resorting 362 OF THE VENDOR'S LIEN FOR resorting to the personal estate. His lordship, however, gave no opinion upon the point, although it is clear that the inclination of his opinion was in favour of the legatee under the general rule (z). In a still later case the very point came before the master of the Roils, and called for a decision (a). The only case cited was Pollexfen v. Moore, as reported in Atkins. His honor said, that it was a very obscure report; and it had perplexed him very much formerly. The deci- sion was against that dictum of lord Hardwicke. This could not be distinguished from the common case of mar- shalling ; that a person having resort to two funds shall not by his choice disappoint another, having one only ; and a decree was pronounced accordingly. The reader will observe, that the case of Coppin v. Cop- pin was not cited in either of the foregoing cases ; and should the observations which have been made on Pollex- fen v. Moore be thought correct, it seems clear that lord Hardwicke's decision was not in opposition to his dictum in the same case, expressive of the rule established by lord chancellor King. Perhaps the common case of marshalling may be thought not to apply to the point In question, when it is considered that the equitable lien was originally raised by the construction of equity in favour of the vendor only, and not in favour of third persons. It seems to have been thought in Coppin v. Coppin, and apparently with some reason, that extending the vendor's lien to third persons would be breaking in upon the statute of frauds. The general rule as to marshalling applies to cases where the person resorting to the personal estate has an actual charge or lien on the real estate; but in this case,if equity first deems the purchaser (z) See Austen v. Halsey, 6 Ves. (a) Trimmer v. Bayne, Q Ves, Jun. 4/5 ; and see Co.'s n. (1), to Jor.,209. 2 P.Wms, 295. a trustee PURCHASE-MONEY UNPAID. 363 a trustee for the vendor as to so much of the estate as will satisfy the purchase-money unpaid, and then permits a dis- appointed legatee to stand in the place of the vendor, it is creating a charge on the land in direct opposition to the statute of frauds. On the sale of the estate, the pur- chase-money becomes a debt payable out of the purchaser's personal estate. And the equitable lien ought, it is con- ceiv , to be extended to only so much of the purchased estate as the personal estate is insufficient to answer. The vendor has not an original charge on the estate, but only an equity to resort to it, in case the personal estate prove deficient. In this view of the case an independent substan- tive charge on the land is, in fact, created by equity in fa- vour of a legatee, when, if the legacy was actually imposed on the estate by a will not duly executed according to the statute of frauds, the court is bound to say, that the will cannot be read as to the charge. It is with great deference that these observations are sub- mitted to the reader, after the high opinions which have been given upon this point ; but as the case of Coppin v. Coppin was not cited in the recent cases, and the effect of a decision over-ruling that of lord chancellor King, does not appear to have presented itself to the mind of the court, it still seems .open to contend, that the equity under discussion cannot be extended to a third person, unless by reason of a fraud, or on the ground of the vendor having an equitable mort- gage on the estate. The observation of lord Hardwicke before noticed, that this equity would not extend to a third person, but was confined to the vendor and vendee only, is frequently ad- duced 364 OF THE VENDOR'S LIEN FOR duced to prove, that the lien does not exist, when the estate passes into the hands of a third person ; but by the latter part of the same passage (/>), »* clearly appears, that this was not lord Hardwicke's meaning ; and in Walker v. Pres- wick (c), lord Hardwicke said, that this lien prevailed against the purchaser, his heir, or any claiming under him, with notice of this equitable title ; which evinces his lordship's meaning to be, that the purchased estate, and the personal estate of the purchaser, could not be marshalled in favour of a third person, although, as we have seen, lord Hard- wicke allowed it in Pollexfen v. Moore, on the ground of fraud. It appears then that this equitable lien prevails against the purchaser and his heir, and all persons claiming under him with notice, although for valuable consideration (d). But it of course would not prevail against a bona Jide purchaser without notice: and the mere deduction of the title to the estate from the first vendor by recital, will not be sufficient to affect him, for that does not shew it wag not paid for (e). Persons coming in under the purchaser by act of law, as assignees cf a bankrupt (/), are bound by an equitable lien, although they had no notice of its existence ; because, as sir William Grant observes on another point, the assign- ment from the commissioners , like any other assignment by operation of law, passes the rights of a bankrupt precisely in the same plight and condition as he possessed them. Even where (as in this instance) a complete legal title vests (I) Fide supra, p. 35Q. (D) ; Elliot v. Edwards, 3 Bos. and (c) 2Ves. 622. Pull. 151. (rf) Hearav. Botelers, Gary's (*■) See lBro.C.C.302. Cha. Rep. 25 ; Walker v. Pres- (/ ) Blackburn v.Gregson, lBro. wick, 2Ves. 622 ; Gibbons v. Bad- C. C. ^20 ; Bowles v. Rogers, 6 dall, 2 Eq. Ca. Abr. 682, n. (b) to Ves. Jun 95, n. a. in KIRCH ASE-MONEY UNPAID. S63 5n them, and there is notice of any equity affecting it they take, subject to whatever equity the bankrupt was table tO (V). r i And creditors claiming under a conveyance from the purchaser, arebound in like manner as assignees(/») ; because they stand in the same situation as creditors under a com- mission. , , - In Nairn v.Prowse(0 the question arose, whether the lien of which we are now treating, should prevail against an equitable mortgage, by deposit of title deeds? but the case went off on another ground, and the pemtwas not decided, In Stanhope v. earl Verney «, lord Northington held, that a declaration of trust of a term in favour of a person, was tantamount to an actual assignment ; unless a subse- sequent incumbrancer, bmajlde, and without notice pro- cured an assignment; and that the custody of the deeds respecting the term, with a declaration of the trust of .t m favour of a second incumbrancer, was equivalent to an actual assignment of it ; and therefore gave him an advantage oyer the first incumbrancer,which equity would not take from him. Now it must at one view be seen how strong the analogy is between the point in question, and this case. The only difference between them appears to be, that m the case be- fore lord Northington, both the trusts were declared by the parties • while in the case under consideration, the trust, or lien, is 'raised by equity, and not by express declaration, and the 'trust or equitable mortgage is generally created by the declaration of the parties ; which circumstance, if it turn the scale either way, is certainly in favour of the mortgagee: (g )S« 9 Ves,J« n .100. W 6 V«. Jan. 7*2 A Favvell v Hcelis, Ambl. 724 ; W Butler's note 1 to Co. Lt.t. J4lBro.CC. 302. 2i) 0.b.Ch ;1 . July *7, 1761. S3 $66 OF THE VENDOR'S LIEN, &C, so that, upon the authority of this case, we may perhaps venture to say, that an equitable mortgage, by deposit of deeds tp a person, bonajide, and without notice, will give him a preferable equity ; and will over-reach the ven- dor's equitable lien on the estate for any part of the purchase-money. €HA3»- ( 367 ) CHAPTER XIII. OF THE CONSTRUCTION OF COVENANTS FOR TITLE. In a preceding chapter we have seen to what covenants a purchaser is entitled (a) J and we are now to consider the construction of covenants entered into by a vendor. Covenants for title are termed real covenants, and pass to the assignees of the land by the common law, who may maintain actions upon them against the vendor and his real and personal representatives (6) ( 1 ). And as the covenants relate to the land, it seems that an assignee may maintain an action on the covenants, although the covenants were entered into with the original grantee and his heirs only (c). And as covenants entered into by a vendor with a pur- - chaser run with the land in the possession of his represen- ( a )Ch.O. (f)Co. Iitt 3S-1-, b. 3S5, a.; (/;) Middlemore v. Goodale, 1 Spencer's case, 5 Rep. 16; Bally Ro. Abr. 521. (K) pi. 6. Cro. Car. v. Wells, 3 Wils. 15 ; Tatem v, 503, 505, sir Wm. Jones, 406. Chaplin, 2 H. Blackst. 133. (1) A respectable writer has observed, that cestiris que use are gran- tees within the statute 32 Hen. VIII. c. 34 ; and are therefore entitled to the benefit of all covenants entered into by persons selling lands, for securing the title of such lands, 4 Cruise's Dig. p. 80. s. 44. But cestuis que use appear to hi entitled to the benefit of covenants running with the land, independently of the statute of Henry, which indeed appears only to relate to covenants which a.re a charge upon or incident to reversions. sentatives 368 OF THE CONSTRUCTION OF sentatives or assignees, so on the other hand covenants en- tered into by a purchaser with the vendor, respecting the land, will also run with the land, and charge the repre- sentatives or assignees of the purchaser in respect of it. It is not, however, sufficient that a covenant is. concern- ing the land ; but in order to make it run with the land 5 there must be a privity of estate between the covenanting parties (d). Therefore, it seems that if the estate was, at the time of the conveyance, mortgaged in fee, and the pur- chaser should enter into a covenant respecting the land, with the vendor, the covenant would not bind the assignees of the land, as there was no privity of estate between the ven- dor and the purchaser (the vendor in contemplation of law being a mere stranger), but would be a merecovenant in gross. And even where there is a privity of estate at the time of the covenant, yet if a subsequent purchaser do riot take the estate of the original purchaser, he will not be bound by the Covenant. It seems difficult to conceive that this case* can exist. It occurred, however, in the late case of Roach v. Wadham (e) : an estate was conveyed to such uses as the purchaser should appoint ; and in default of appoint- ment, to himself in fee, yielding and paying to the vendors, their heirs and assigns, a perpetual fee-farm rent, which rent the purchaser, for himself, his heirs, and assigns, co- venanted to pay ; the estate was afterwards conveyed to a purchaser $ and as it was holden, that the purchaser was in under the power, and not by virtue of the first purchaser's estate (2), it was admitted on all hands, that an action brought (d) Per lord Kcnyon, "Webb v. the Exchequer chamber, 1 H. Russell, 3 Term Rep. 393 ; Stokes Biackst. 562. v. Russell, ibid. 67 S j affirmed in (e) 6 East, 289. (2) The principal point determined in this case is of great importance. The short case is this : an estate was conveyed to one Coates, his heirs, snd COVENANTS FOR TITLE. 36$ bfought against him by the original vendor, for the fee farm rent, was not maintainable, for he had not the estate of the first and assigns, for ever. To hold unto the said Coates, his heirs and as- signs, to" the use of such person or persons, for such estates, &c. as Watts, the purchaser, should by any deed or deeds, writing or writings, under his hand and seal, to be by him duly made and executed in the pre- senceof, and attested by two, or more credible witnesses, or by his will, &c. limit, direct or appoint, give or devise die same. In default of such, direction, &c. to the use of Watts, his heirs and assigns for ever. By this deed a perpetual rent was reserved to the vendors, and Watts core- nanted with the vendors for payment of it. Afterwards, by indentures of lease and release, Coates, by direction of Watts, did, according to his estate and interest, bargain, sell and release; and W at ts . did_gran t i J^ z gain, sell, alien, release, rat ify and confirm, and_a]soJimj^rect_and appoint the estate in questionTa*^^^-^ r k ht > ® c ' therein, unto Wadham and Stevens (purchasers of the estate), and Powell, a trustee, to bar dower j to hold unto Wadham, Stevens and Powell, their heirs and assigns ; to the use of Wadham, Stevens, and Powell, and the heirs and assigns of Wadham and Stevens for ever, as tenants in common : in trust as to the 'estate of Powell, for Wadham and Stevens, their heirs and assigns as tenants in common, subject to the perpetual rent. And cove- nants were inserted from Wadham and Stevens to Watts, to pay the rent, and indemnify him from it 3 but Wadham did not execute the deeds. . The question was, whether the estate conveyed to Wadham and Ste- vens, and their trustee, was derived out of the interest of Watts, so as to make them liable in an action of covenant for the rant, as his assignee?, or whether the estate took effect under his power ; in which case it was admitted, they were not bound by the covenants entered into by Watts. It was contended by the counsel, that the power was merged in the fee 5 butthat position was abandoned, upon its being stated, that the judgment of the matter of the Rolls in the recent case of Maundrell v. Maundrell wis reversed. Th« single point then was, whether the instruments ope- ned as an execution of the power, or a conveyance of the interest. And it was holden, that they operated as an exercise of the power, and conse- quently that the purchasers from Watts were not liable to an action of soveuantfornon-pavment of the perpetual rent. The court said, " it 2 * ought 370 OF THE CONSTRUCTION Ot first purchaser, but took as if the original conveyance had been made to himself. This decision leads to the observa- tion, ought to appear very clearly from the deeds, that the. conveyance or the covenants therein could not take effect, unless it operated as a conveyance out of the interest, and not by way of appointment, in order to induce the court to determine, that where the trustee to uses in a conveyance, releases to a purchaser, it shall not operate as an appointmeut. Had it been the intention of the parties, that the estate which Wadham was to take should be derived out of the interest which Watts had, it would have been wholly unnecessary thatCoates should have been a party to the deed: his being made a party to it, shews that something was to be taken by way of appointment ; and if any thing, there is nothing from whence there can be collected an intention, that less than the whole should pass by those means : the reason for which is obvious, as it might prevent such objections to the title, as might be made if it were derived immediately from Watts." It had been already settled by lord Alvanley in Cox v. Chamberlain, that where a person has both a power and an interest, and the instrument is adapted to convey the interest and the" intention of the parties will be best effected by that construction, such a construction shall prevail, al- though words of appointment are used. This decree of lord Alvanley's has ever since been deemed an authority, and been acted upon in prac- tice. It is at all times dangerous to remove land- marks ; and a decision of lord Alvanley's on a question of this nature, is not to be hastily re- jected. The cases of Cox v. Chamberlain, and Reach v. Wadham, are scarcely distinguishable in their circumstances, yet the court of King's- Bench have made a decision in direct opposition to that of lord Alvan- ley's in Cox v. Chamberlain, without even noticing that case in their judgment. The case of Roach v. Wadham having been decided upon its own particular circumstances, we may proceed to the consideration of the grounds of the judgment. The principal argument was, thatCoates, the trustee as he was termed, joined in the conveyance. Now it should seem that Coates had no interest whatever ine the estate in question. He was a mere conduit-pipe, a releasee to uses, in whom not even lord chief justice Dyer's scintilla remained an instant. The concurrence of Coates therefore, upon which the court placed so much reliance, was perfectly nugatory, and only evinced the unskilfulness of the person who prepared the deed. If indeed Coates kad actually had any estate, his concurrence under COVENANTS FOR TITLE. 371 don, that wherever a purchaser is to enter into a covenant, which it is intended shall run with the land, the vendor ought to insist upon the purchaser taking a conveyance in fee, and should not permit the estate to be limited to the usual Uses to bar dower. under the circumstances of this case, must have afforded decisive evidence that Watts did not intend toexercise his power. If the case be divested of this circumstance, the question depends solely on the intention of the parties. It might be urged, that the intention of the parties required the instruments to operate as a conveyance of Watts's interest, were it only to make the purchasers liable to an action of covenant, as assignees of Watts, for the recovery of the rent.— Such a construction would have enabled,and certainly have induced the persons entidedto the rent, to bricg their action against the actual terre-tenant, and not against the original covenantor ; which would have prerented the circuitous remedy that the decision will compel the parties to resort to. This construction, it might be said, was imperiously called for in this cast-, inasmuch as Wad* ham had not executed the deeds, and consequently was not bound by covenant to indemnify Watts against the rent. It might also be insisted, that the conveyance being by lease and release was strong evidence of the intention of the parties, as the lease for a year was unnecessary if Watts intended to exercise his power. When a man has both a power and an interest, and it is intended to exercise the power, and also convey the interest, the appointment is almost invariably made by a distinct witnessing part which precedes the release. The deviation from the usual form in the present case is prima fa.se evidence, that it was not (if I may be allowed the expression) the primary intention of the parties to exercise the power. To the foregoing reasons another may be added, which seems more •onclusive : —By the conveyance it is evident that the parties wished to prevent a right of dower attaching in their wives, and at the same time • to keep the inheritance in themselves. This intention would have beeri effected by construing theinstruments as a conveyance of Watts's interest, and was, I conceive, dei'eated by the construction adopted. Fur as the 'ceds were holden t? operate as an execution of the power, the habendum to the lunch,, isers and their trustees vested the fee in them as tenants in common; and the subsequent limitation to the purchasers, and the trustee, and the heirs and assigns of the purchasers, icas void at law, as an use upon an usi, and was go-jd only as a trust in equity. 2i3^ The 372 OF THE CONSTRUCTION OF The proposition before stated, that it is not sufficient that a covenant is concerning the land, but, in order to make it run with the land, there must be a privity of estate between the covenanting parties, seems to apply as well to covenants entered into bv a vendor, as to covenants entered into by a purchaser. But the consequences of this doctrine are truly alarming. In a great proportion of cases, the vendor has either mortgaged the estate in fee, or is a mere cestui que trust ; and if his covenants were to be deemed covenants in gross, the assignees of the land could only compel performance of the covenants by the circuitous mode of using the name of the first purchaser or his representa- tives, whom at the distance of some years it might be very difficult to trace. It seems impossible to get over the objection, by the form of the covenant ; for although the vendor covenant with the purchaser, his heirs and assigns, yet the assignee of the lands will not be entitled to the benefit of the cove- nant, unless it run with the land under the general rule of law (/). The only mode by which the difficulty can be avoided is, to require the vendor to take a conveyance to himself in fee, or to the usual uses to bar dower, previously to executing a conveyance to the purchaser. If, indeed, the objection should be thought to exist, it might also be thought that where the vendor conveys the estate to the purchaser under the usual power of appointment, the covenants will not run with the land : but this, it is conceived, would be carrying the rule much too far ; and there seems to be some ground to contend, that even in Roach v. Wadham,as the power was a power coupled with an interest, the second purchaser might have been held to have come in under, and (J ) See Tempest's case, Clayt. 00 ; and see Palm. 553, and Roach v. AYadliam, ubi sup. to COVENANTS FOR TITLE. 372 ro stand in the place of the first purchaser, so as to satisfy the rule of law, although he did not actually, as it was de- termined, take .the estate of the first purchaser (g). The point, however, was considered as clear, and was not dis- cussed either at the bar or upon the bench. It hath already been observed (A), that the covenants usually entered into by a vendor, seised of the inheritance, are, 1 st, that he is seised in fee: 2dly, that he has power to convey : Sdly, for quiet enjoyment by the purchaser, his heirs and assigns : 4thly, that the lands shall be holden free from incumbrances : and lastly, for further assurance. The five covenants are several and distinct, but the first and second of them are synonimous ; for if a man be seised in fee, he has power to sell (/)• But the converse of this proposition is not universally true (A). A man having merely a power to appoint an estate cannot be said to be seised in fee of the estate, although he has a right to con- vey ; and accordingly, in cases of this nature, it is usual to omit the first covenant, and to insert a covenant, that the power was well created, and is not suspended or extin- guished. Covenants for title are either general and unlimited, ex- tending to the acts of all the world, or limited and restrict- ed to the acts of certain persons named in the deed ; and (^)Secand consider Co. I/itt.215, (h) Supra, S4 OF fHE CONSTRUCTION Of of the preceding covenant was not restrained by the latter covenants. So in the late case of Hesse v. Stevenson (ra), where on an assignment of certain shares of a patent right, the assignor covenanted, that he had good right, &c. to convey the shares, and that he had not by any means directly or indi- rectly forfeited any right or authority he ever had or might have had over the same, it was decided that the generality of the first covenant was not restrained by the latter cove- nant. Lord Alvanley said, that the covenant, instead of being framed in the usual and almost daily words, where parties intend to be bound by their own acts only, viz. " for and notwithstanding any act by him done to the con- trary," omitted them altogether. The omission of these words was almost of itself decisive. The attention of the purchaser was not called by any words to the intent of the vendor to confine his covenant to his own acts. The court ought not to indulge parties in leaving out words which are ordinarily introduced, and by which the real meaning of the parties might be plainly understood. 6. And in cases of this nature, as, on the one hand, a sub- sequent limited covenant does not restrain a preceding gene- ral covenant, so, on the other hand, a preceding general covenant will not enlarge a subsequent limited covenant. Thus in Trenchard v. Hoskins (rt), a person being seised of an estate granted under letters patent, conveyed it to a purchaser, and in the conveyance the grant from the crown was recited, and the title was deduced from the grantee to the vendor, who entered into covenants, first, that he was seised in fee ; secondly, that he had good power to convey j and thirdly, that there was no reversion in the crown, not- uithstending any act done by him. In grants of lands by tm) 3 Be*, and Pull. 565. (») Winch. 91,1 Sid. 328 ; sec 2 Eos. and Full. 1Q« the COVENANTS FOR TITLE. 335 the crown, it Is usual to reserve a reversion which the gran- tee cannot bar. After great difference of opinion on the subject, it seems to have been decided that the restrictive words to the last covenant did not extend to the two pre- ceding ones ; the court presuming the intention to be, that the vendor should enter into an absolute covenant for his seisin in fee, in all cases but one ; namely, that he should not be liable on the objection of a reversion existing in the crown, unless that reversion appeared to have been vested in the crown by his own act (o). 7. Where the covenants are of divers natures, and con- cern different things, restrictive words added to one shall not control the generality of the others,, although they all relate to. the same land (/; ). Thus where A. covenanted that he was seised in fee, not- withstanding any act done v by him, and that the lands were of a certain annual value ; the latter was holden an absolute covenant, that the lands were of the stated value (q). So in another case (r) where a man covenanted that he was seised in fee, notwithstanding any act done by him or any of his ancestors ; and that no reversion was in the king or any other* ; and that the estate was of a certain annual value ; and that the plaintiff and his heirs should enjoy the estate discharged from all incumbrances made by him or any of his ancestors, it was decided, that the covenant as to value was an absolute and distinct covenant, and had no dependence upon the first part of the covenant. 8. In the case of Rich v. Rich 0) a covenant " that lands were of the value of 1000/. per annum, aiM so should con- tinue, notwithstanding any act done or to be done by the (o) See 2 Bos. and Pull. 15, per 495 ; sir Wm. Jones, 403, S.C. lord Eldon. (>•) Cray ford v. Crayford, Cro. (/») See 3 Lev. 47 \. Car. \06. (%) Hughes v.Bennett, Cro. Car. (s) Cro. Eliz. 43. 2 c covenantor" 3S6 OF THE CONSTRUCTION OF covenantor" was holden to be only a covenant, that the co- venantor had not lessened the value. 9. This subject must not be closed without observing, that it general covenants are entered into contrary to the intention of the parties, equity will on sufficient proof correct the mistake, in the same manner as errors are corrected in marriage articles, and will relieve against any proceeding at law upon the covenants, as they originally stood (t). III. It still remains to say a few words concerning a pur- chaser's remedy under covenants for the title j and first, if he be evicted, and the eviction is within the covenant, he may bring an action at law for damages. 2. But, as we have already seen, unless the eviction be within the covenant, or there was a fraudulent concealment of the defect, a purchaser cannot recover the purchase- money, in case of eviction, either at law or in equity (u). 3. If the title prove bad a purchaser may have recourse to law for damages, or, if the defect can be supplied by the vendor, he may file a bill in equity for a specific peformance of the covenant for further assurance. And a vendor who has sold a bad title will, under a covenant for further assu- rance, be compellable to convey any title he may have ac- quired since the conveyance, although he actually purchased such title for a valuable consideration (x). 4.' It seems that under a covenant for further assurance a purchaser may require a duplicate of the conveyance to be (0 Coldcott v. Hill, 1 Cha. Ca. (u) Supra, p. 313. 15 3 1 Sid. 32S, cited; Feilder v. (.*) Taylor v. Debar, 1 Cha. Ca. Studly, Finch, (JO ; see 2 Eos. and 274, 2 Cha. Ca. 212 ; see Sea* Pud, l 26; 6 Bos. and Pull. 575 : and bourne v. Powell, 2 Vern. 1 1 . supra, p. ill. executed COVENANTS FOR TITLE. 387 executed to him, in case he is compelled to part with the original to a purchaser from him of part of the estate (t/). 5. So if the vendor become bankrupt, the purchaser may call upon his assignees to execute further assurances, al- though the vendor was only tenant in tail, and did not suf- fer a recovery (z). 6. But if the original contract was not fit to be executed by equity, the court will not interfere in behalf of the pur- chaser, but leave him to his remedy at law («). And if the title prove bad, and the purchase was made at a great under- value, equity will relieve the vendor against an action on. the covenants for title, allowing the purchaser his purchase- money, with interest only, he discounting the mesne profits (£). Lastly, it may be remarked, that an action for breach of a covenant for title, will not be barred by the bankruptcy and certificate of the covenantor, although the cause of ac- tion accrued before the bankruptcy (c). (y) Napper v. lord Allington, (b) Zouch v. Svvaine, 1 Vera, 1 Eq. Ca. Abr. 166. pi. 4. 320. (z) Pye v. Daubuz, 3 Bro.C.C. (c) Hammond v. Toulmin, J 595. , Term Rep. 612 j Mills v. Auriol, (a) Johnson v. Nott, 1 Vern. 1 Hen. Blackst. 433. 2f 1. 2 C 2 CHAP* C 388 ] CHAPTER XIV. OF THE PERSONS INCAPABLE OF PURCHASING. Under this head we may consider, 1st, Who are incapa- ble of purchachsing : 2dly, Who are capable of purchas- ing, but incapable of holding : Sdly, Who are capable of purchasing sub modo : and 4thly, Who are incapable of purchasing particular property, except under particular re- straints, on account of the rules of equity. First then, With respect to persons who are incapable of purchasing. The parishioners, or inhabitants of any place, or the churchwardens, are incapable of purchasing lands («). But churchwardens and overseers are enabled to purchase a workhouse for the poor (£) : and it seems, that in Lon- don, the parson and churchwardens are a corporation to purchase lands (c). Secondly, With respect to persons who are capable of purchasing, but incapable of holding. They are, 1st, Aliens j for although they may purchase, yet it can (a) Co. Litt. 3. a. 532 j Hargrave's n. 4. to Co. Litt* (b) 9 Geo. I. c. 7. s. 4. 3. a, (<.•) Warner's case, Cro. Jac. only OF THE PERSONS INCAPABLE, &C 389 only be for the benefit of the king; and upon an office found, the king shall have it by his prerogative ((/). But if an alien be made a denizen by the king's letters patent, he is then capable of holding lands (e) purchased after his denization. And it seems, that if an alien purchase lands, and before office found the king make him a denizen by letters pa- tent, and confirm his estate, the confirmation will be good j as the land is not in the king till office found (/). 2dly, Persons who have committed felony, or treason, or have been guilty of the offence ofpremmire, and afterwards purchase lands, and then are attainted ; for they have ability to purchase, although not to hold ; and for that rea- son, the lord of the fee shall have the lands : but if they purchase after they are attainted, they are then in the same situation as aliens, and the lands must go to the king (g). Lastly, Corporations sole, or aggregate, either ecclesias- tical or temporal, cannot hold lands without due license for that purpose (/*) : and the lord of the fee, or in default thereof within tie time limited by the statutes, the king may enter [i). Thirdly, With respect to persons capable of purchasing sub mo do. They are, 1st. Infants under the age of 21 years, who may pur- chase, and at their full age may bind themselves by agree- ing to the purchase ; or may wave the purchase without alleging any cause for so doing : and if they do not agree (d) Co. Litt. 2 b. (g) Co. Litt. 2 b. (e) Ibid. (h) Co. Litt. 99 a. (/) Go.ulds. 2Q. pi. 4. (i) Co. Litt. 2 h. 2 C 3 t0 390 OF THE PERSONS INCAPABLE to the purchase after their full age, their heirs may wave the purchase in the same manner as the infants themselves could have done (a), 2dly. Femes covert, who are capable of purchasing, but their husbands may disagree thereunto and divest the whole estate ; and maintain trover for the purchase-money (I). If a husband neither agree nor disagree, the purchase by his wife will be effectual ; but after his death, she may wave the purchase, without giving any reason for so doing, aU though her husband may have agreed to it. And if, after her husband's death, she do not agree to it, her heirs may wave it (?w). A feme covert may, however, purchase lands pursuant to an authority given by her husband j and he cannot avoid it afterwards (??). 3dly, Lunatics, or ideots, who are capable of purchasing ; but although they recover their senses, cannot themselves, it should seem, wave the purchase (o) : and if they recover and agree thereunto, their heirs cannot set it aside. If they die during their lunacy, or ideocy, then their heirs may avoid the purchase (p)> And as the king has the custody of ideots, upon an office found he may annuj the purchase () Co. Litt. 2 b. I Ro. Abr. 731 (K) ; Co. Litt. 2 b. (y) Co. Litt. 247 a. (/) Garbrand v. Allen, 1 lord (r) Clerk by committee v. Clerk, Raym. 224. 2 Vera. 412; Addison by com- (, commissioners of bankrupts (■/.), as- signees of bankrupts (a) (1), solicitors to the commi^ sion (f ) See 11 and 12 W. III. c. 4. rence, 3 Ves. Jan. 7 40 ; CampbeU Micbaux v. Grove, 2 A*. 2tG. v. Walker, ^ J-. ^ , «d (0 See 43 Geo. 111. c. 30. WhUackre v. Wmtackre, Sel. Cha. (u)See Mallom v. Bringloc,Wil- Ca. IS. , \/ c n ,- n S C ('/) York-Buildings Company Iss 75. Com. 5/0. b.U u; (L)Fox v. Mftkm*. 2 Bro. v. Mackeime, 8 Bro. P. C. 42. C c! ,00, 4 Bro. P. C. by Tom- (.) * *** Bennett, 10 V«. l^MB ; Hall v. Noyes, 3 Bro. Jun 381 ■ C C. 483 ; and see 3 Ves. Jan. (a) ^ P-™ > 7 48 , Keilick v. Flexny, 4 Bro. Jun. 7 07 , £* parte Lacey, Ves. C.C. io; ; Whicbqote v. Law- Jun. 625 (l ) Lord Eldon has said, that the rule is to be move peculiarly applied ¥ 4 -relenting jealousy in the case of an assignee ol a can k runt ; 1 c 4 adding 392 OF THE PERSONS INCAPABLE on (b), auctioneers, creditors who have been consulted as to the mode of sale (V, or any persons, who by their con- nexion with any other person, or by being employed or concerned in his affairs, have acquired a knowledge of his property, are incapable of purchasing such property them - selves ; except under the restrictions after mentioned. For if persons having a confidential character were permitted to avail themselves of any knowledge acquired in that capa- city, they might be induced to conceal their information, and not to exercise it for the benefit of the persons relying on their integrity. The characters are inconsistent. Emp~ tor emit quam minimo potest, venditor vendit quam maii- mo potest. The able counsel for the appellants in York-Buildings Company v. Mackenzie (d\ strongly observed, that the ground on which the disability or disqualification rests is no other than that principle which dictates, that a person can- not be both judge and party. No man can serve two mas- ters. He that is intrusted with the interest of others cannot be allowed to make the business an object of interest to him- self; because, from the frailty of nature, one who has the (b) Owen v. Foulkes, 6 Ves. Jun. 61/; Coles v. Trecothick, Jun. 630, n. b. ; ex parte Lim- 9 Ves. Jun. 234 ; 1 Smith's Rep. wood; ex parte Churchill, S Ves. -33. Jun. 343, cited ; ex parte Bennett, (d) 8 Bro. P.C. 63, where the 10 Ves. Jun. 381 . authorities in the civil law are col- (c) See ex parte Hughes, 6 Ves. lected. adding, that it must be understood, that, whenever assignees purchase, they must expect an enquiry into the circumstances. See 6 Ves. Jun. 630, n. b. ; and 8 Ves. Jun. 346 ; 10 Ves. Jun. 3p5. And an assignee purchasing the estate himself, or permitting his co-assignee to purchase it, will be a suiacient cause of removal $ Ex parte Reynolds, 5 Ves, Jun. 707. power. OF PURCHASING. S93 power, will be too readily ?zed with the inclination to use the opportunity for serving his own interest at the expense ofthos for whom he is entrusted. And where a person cannot purchase the estate himself, he cannot buy it as agent for another (e), and perhaps cannot even employ a third person to contract or bid for the estate on the behalf of a stranger (/). This general rule stands much more upon general prin- ciple, than upon the particular circumstances of any indivi- dual case. It rests upon this, that the purchase is not per- mitted in any case, however honest the circumstances ; the general interests of justice requiring it to be destroyed in every instance ; as no court is equal to the examination and ascertainment of the truth in much the greater number of cases (g). The necessity of such a general rule is evinced by an in- stance mentioned by lord Eldon, of a solicitor under a com- mission, who finding he could make a bargain to sell the estate for 1400/. kept that in his own breast, and made a bargain with the assignees for the purchase of it at 350l.(h). In Davison v. Gardner (?'), lord Hardwicke laid down the following rules as to a trustee purchasing of his cestui que trust. 1st. That in all cases of a trustee purchasing of the cestui que trust, the court will look upon it with a jea- lous eye. 2dly. It has been laid down as a general rule,, that where a trustee for persons not mi juris, as infants md femes covert, becomes both buyer and seller, the court will under no circumstances whatever, be they never so (e) See Ves. Jun. 24S ; ex (A) See 8 Ves. Jun. 340. parte Bennett, 10 Ves. Jun. 381. (i) Chancery, 21st July, 1743, (f) See ex parte Bennett, uli MS. ; see Prestage v. Langford, sup. scd qu. . infra. (g) See 8 Ves. Jun, 345, per U)id Eldon, fair 394 OF THE PERSONS INCAPABLE fair between the parlies (as consulting the friends of the in- fant, or their refusing to purchase, or the like), establish a purchase of that kind ; unless the transaction is legitima- ted by the act of the court, or some public act. And the reason is, because if such purchases were allowed, they would be liable to very great abuses ; and this is the reason why the court will not allow a trustee any thing for his trou- ble. So, where a trustee renewed a lease in his own name, though it was proved that all the friends of the infant were consulted, and they refused *o renew it, the court decreed it to be in trust for the infant, though not the least unfair- ness appeared; which was the case of Rumford Market, be- fore lord King (/-). But if a bill is brought, and a sale or- dered, and notice of the sale before the master, and the trustee purchases, the court has refused to set such sale aside, all the other circumstances being fair. So where there was a public sale of an estate by proclamation in the country ; which was the case of Saunders v. Burroughs, before the present master of the Rolls ; but if that had been a private sale, though the consent of all the relations was had, and no unfairness appeared, I think such a sale should be set aside, at least not carried into execution. But it might be inconvenient to extend the rule so far as to pre- vent a trustee from purchasing of one who was sui juris, where no unfairness appeared. And in the principal case, which was of a mixed kind, the defendant who had pur- chased, being a trustee for the plaintiff, who was a feme covert, and had the estate to her separate use, and there- fore in a court of equity considered as a. feme -sole, and sui juris, as to the disposal of her estate ; lord Hardwicke dis- missed the bill, which was brought to set aside the assign- (k" Keech v. Sandford. Sel. Cha. Ca. <51j see Lesley's case, 2 Freem. :- inent OF PURCHASING. SO; ment she had made of her interest in a brew-house to the defendant ; it appearing that she had received a full value, and no particular instances of fraud being proved. From this case it appears that in the time of lord Hard- wicke, a purchase by a trustee, even for infants, was deemed good, if the estate was sold *>y public auction, or before a master ; but a purchase by a trustee, whether for adults or infants cannot now be supported, although the estate be sold by public auction (/), or before a master, under a de- cree for sale (>). Nor indeed ought the publicness of the sale to sustain a purchase, which cannot otherwise be sup- ported. For the trustee may know not only the surface va- lue, but that there are minerals, in which case he would buy upon the rent, and gain all that advantage (n). So there may be a great many clandestine dealings, which may bring it to a price far short of that which would be pro- duced, if full information was given (o). But under particular circumstances, a purchase by a trustee, or agent, before the master, may be confirmed, although with great reluctance. Thus in Wren v. Kirton (p), the facts were these. Upon a former sale before the master, the sum of l 23,OOOl. was bid by a person bidding bonajide. That sale was defeated by setting up a fictitious bidder. Afterwards the lot was again put up three times. On the two first occasions no more was offered than 12,000/. and 6,000/. At the last sale one Wilson was declared the purchaser at the sum of (/) York-Buildings Company v. 10 Ves. Jan. 3Q3. Mackenzie, S Bro. P. C. 42 ; (m) Price v. Byrn, 5 Ves. Jun. Whichcote v. Lawrence, 3 Ves. 6S1, cited. Jun. 740 j Campbell v. Walker, (n) See 10 Ves. Jun. 394. £ Ves. Jun. 6/8; and ex parte (o) See 8 Ves. Jun. 349. James, 8 Ves. Jun, 337 j and see (p) S Ves. Jun. 502. 15,000/, S9G OF THE PERSONS INCAPABLE 15,000/. He purchased as trustee for Wade, the agent and manager of the colliery. The lord ch: ncellor said, if this had been an original sale, and the agent had purchased in the name of another person, very slight circumstances would have induced him even at some risk, to set that aside ; as it was the duty of Wade, if he meant to bid, to furnish all the knowledge he had, to those who were to sell. The difficulty that pressed him was, the consequence, the danger of farther loss by resale. He would (he added) not hesitate to open the sale, if the least advance upon 15,000/. was offered; but with- out such an offer there was nothing leading him to suppose it would ever again reach the sum that was originally bid. The master's report of the best bidder was, with consi- derable reluctance, confirmed ; unless, on or before the first seal, an application should be made to open the bid- dings, giving security to answer the difference between the produce of the resale and the sum of 15.000/. No security was however offered, and the agent completed the pur- chase. In Oldin v. Samborne (./), lord Hardwicke said, it was improper for a guardian to purchase his ward's estate im- mediately on his coming of age ; but though it has a suspi- cious look, yet if he paid the full consideration, it is not voluntary, nor can it be set aside. But it seems clear, that such a purchase would now be set aside, on general principle, without reference to the ade- quacy of the consideration. It appears, however, that unless fraud can be proved, the circumstance of the purchaser being related to the trus- tee, agent, or other person having a confidential character, (j) 2 Atk. 15. cannot OF PURCHASING. 397 cannot even be opposed as a bar to the aid of the court in of the purchase-. Thus in Prestage v. Langford (r), the auctioneer's son, who was in partnership with his father, and another person, bought an estate sold by order of a trustee for infant lega- tees 5 and contracted to sell it a few days afterwards for 750/. more than they gave for it. But the proof of fraud being; judged defective, the court would not set aside the sale merely because one of the auctioneers was buyer and seller too, but decreed a specific performance, nevertheless, without costs; in order (as was said) to discourage all such suspicious transactions. So, in the late case of Coles v. Trecothick (s), the trus- tee's father (for whom the trustee in this instance acted as agent), purchased an estate (which had been previously put up to sale by auction, and bought in) of the cestui que trust, for 20,000/. ; and as the cestui que trust had full knowledge of the value, &c. and he himself, and not the trustee, fixed the price, and consented to the sale, and no fraud was proved, a performance in specie was decreed ; although the cestui que trust had since the contract been offered 5,000/. more for the estate. It must, however, be observed, that the case of Prestage v. Langford, was decided before the broad rule which now prevails was laid down. Indeed that case is clearly over- ruled by later decisions, as the purchaser was in fact em- ployed in the sale. And the decision in the case of Coles v. Trecothick, does not seem to meet with the approbation of the profession. But if, under the particular circum- stances of this case, the court had lot compelled execution of the contract, it would certainly have been deciding, that (r) 3 Wood, 448. n. Chan. M. ( ) 9 Ves. Jan. 234, 1 Smith's 11 Geo. 1IL Rep. 233. neither 398 OF THE PERSONS INCAPABLE neither a trustee himself, nor any one connected with him, or related to him, can buy of the cestui que trust, however fair and open the circumstances may be. Indeed lord Eldon seems to have founded his decision on the ground that the trustee himself might have purchased the estate. It may here be remarked, that where a power is given by a settlement to trustees to sell the estate with the consent * of the tenant for life, or to the tenant for life to sell with the consent of the trustees, it is in practice considered, that the estate may be safely purchased by the tenant for life himself. Lord Eldon, although fully aware of the danger attending a purchase of the inheritance by a tenant for life, seems to think that it cannot be impeached on general prin- ciples (*). A few years ago considerable doubt was enter- tained by the profession, whether the power of sale and exchange, usually inserted in settlements of estates, autho- rized a sale or exchange to or with the tenant for life, or at least, whether equity would not relieve against the transac- tion ; and that doubt was stated as a ground for requiring the aid of parliament, in a petition for an act to enable an exchange of settled estates with the tenant for life ; which it was conceived could not be done under a power of sale and exchange in the settlement. The chief baron, and Mr. baron Hotham, to whom the bill was referred, reported, and submitted it as their opinion, that the doubt which was the cause of petitioning for the bill was not well-founded ; arid therefore, that the bill was unnecessary, and that the passing of such a bill might cause a great prejudice to nu- merous titles under executions of powers of sale and ex- change of a similar kind : and the house of lords accordingly rejected the bill : in consequence of which many estates of ,(*) See 9 Vcs. Jun. 52. great OF PURCHASING. 399 great value have since been purchased, and taken in ex- change by tenants for life, under the usual powers of sale and exchange. The purposes for which estates are vested In trustees for sale, are generally, either for the benefit of creditors ; of in- dividuals sui juris; or of persons not sin juris-, and we are now to consider in what manner trustees may become pur- chasers of estates vested in them for those several purposes, without being liable to be called to account for so doing. Of purchases by trustees or other prohibited persons in general, it must previously be remarked, that the court will not permit them to give up their office, and to bid ; as it would lead to infinite mischief. The cestuis que trust them- selves, as we shall see, can decide this ; and no court can say ah ante, they will permit it : for circumstances may exist at the time of the second sale, that the court cannot know (u). 1. With respect to a trustee for creditors purchasing the estate himself. In Whelpdale v. Cookson(a;), where a trustee for creditors purchased part of the estate himself; lord Hardwicke said, if the major iii) of the creditors agreed to allow it, he should not be afraia of making the precedent. But in a late case (//), lord Eldon said, he doubted the authority of that. case; for if the trustee is a trustee for all the creditors, he is a trustee for them all in the article of selling to others ; and if the jealousy of the court arose from the difficulty of the cestui que trust duly informing himself (u) Em parte James S Ves. Jun. (x) 1 Ves. 0, 5 Ves.Jun.6S2, n. 352 - (y) See 6 Ves. Jun. 023. whut 400 OF THE PERSONS INCAPABLE what is most or least for his advantage, he had considerable doubt whether the majority could in that article bind the minority. It seems doubtful, therefore, whether the purchase can be supported unless all the creditors consent, although con- venience, and the general rule of transactions by a body of persons, are strongly in favour of lord Hardwicke's opinion. 2. With respect to a trustee for a person sui juris, beco- ming the purchaser of the estate. In Crowe v. Ballard (z), where an agent for the sale of a legacy, purchased it himself in the name of a trustee ; lord Thurlow said, that was alone sufficient to set aside the trans- action. It was impossible, he said, at any rate, that the person employed to sell could be permitted to buy. Even if this was done with the knowledge of the party selling, it could not be supported. But the rule, as laid down by lord Thurlow, clearly can- not be supported. The case before his lordship did not call for it ; it being very clear, that if a trustee purchase in the name of another person, the sale will be set aside ; as that very circumstance carries fraud on the face of it («), In- deed it may be doubted, whether lord Thurlow did lay down such a rule ; as no mention is made of it, in the report of the same case, by that able and accurate reporter Mr. Vesey, Jun. (b). It must not be understood, that a trustee cannot buy from his cestui que trust ; the rule is, that he cannot buy from himself (c). If, therefore, the cestui que trust clearly dis- charges the trustee from the trust, and considers him as an \z) 3 Bro.C.C. 117. C. C. 410, n. {a) Lord Hard wick e v. .Vernon, (b) See 1 Ves. Jun. 215. 4 Ves. Jun. 41 1 5 and see 2 Bro. (c) 10 Ves. Jun. 426. indifferent OF PURCHASING. 401 indifferent person, there is no rule which says, that he may hat purchase of him, although the court will look with a very jealous eye on a transaction of that nature (d) : and to be supported, it must clearly appear, that the purchaser, at the time of the purchase, had shaken off his confidential character, by the consent of the cestui que trust freely given, after full information ; and bargained for the right to purchase (e). And the same circumstances that will authorise a trustee to contract for himself, v/ill enable him to purchase as the agent of another (/). 3. With respect to a trustee for a person not sui juris, buying the estate himself. The only mode by which this can be effected, so as to protect the purchase, is, if he sees that it is absolutely neces- sary the estate should be sold, and he is ready to give more than any one else, that a bill should be filed, and he should aoply to the court by motion, to let him be the purchaser. This is the only way he can protect himself; and lord Al- vanley said, there are cases in which the court would permit U ; as if only 500/, was offered, and the trustee will give 1000/. (g> It remains to consider what remedy the cestui que trust has, where his trustee has purchased the trust estate in a manner not authorised by the rules of the court, If the trustee has not sold the estate, the cestui que trust may insist oil the purchase being avoided, and may reclaim his estate (h) j for it need not be shewn that the trustee has made an advantage (/)* (d) See 6 Ves. Jan. 617. B.C. v. Mackenzie, S Bro.P.C.42 ; (e) See 8 Ves. Jun. 3/53. lord Hardwicke v. Vernon, 4 Ves. {/) See y Ves. Jun. 248. Jun. 41 1 ; Randall v.Errington, Id (g) Campbell v. Walker, 5 Ves. Ves. Jun. 423. Jur.. 0/8. (/) Set 8 Ves.Jun. 343 ; lOVes. ' {h) See 6 Ves. Jun. 627 ; York Jan. 3S5, 3t)3< 2d if 402 OF THE PERSONS INCAPABLE If the cestui que trust require a reconvcyar.ee of the estate, he must repay to the trustee the original price of the estate, and also all sums laid out fos permanent benefit and improvement of the estate, and interest thereon from the times they were actually disbursed ; and, on the other hand, the trustee must pay and allow ail the rents received by him, and the yearly value of such parts as have been in his own occupation, and all sums received by the sale of tim- ber, or other parts of the inheritance, and interest thereon, from the times of their being received. This was decided in the great case of the York Buildings Company v. Mac- kenzie, in the house of lords (k). And it appears that the house allowed him the value of improvements of all kinds, even in the instance of a mansion-house erected, and plantations of shrubs, &c. (/). And where the cestui que trust is not desirous to take back the estate, he may require it to be put up to sale again, at the price at which it was bought by the trustee; and that if any one bid more, the trustee shall not have the estate ; but if not, that he may be compelled to keep it (7/?). If, however, the cestui que trust be desirous to have the estate put up in lots, and it was bought by the trustee in one lot ; he must either repay the trustee the purchase- money, with such interest as he would have been liable to pay upon his bargain, he accounting for the rents received, or paving an occupation rent for the estate, if he personally occupied it, or the cestui que trust must consent to have the estate put up in one lot, on the terms before-mentioned (n), (I) S Bro. P. C. 42. .Tun. yoj. Ex parte Hughes, ex (/) See 6 Ves. Jun. 624. This parte Lace;-, and Lister v. Lister, Q must have been decided in some of Ves. Jun. (il /, Q'15, 63 1 . the subsequent appeals, see 8 Ero. («) Ex parte James, 8 Ves. Jua. P. C. 71 note. 337, {m) Ex parte Reynolds. 5 Ves, The OF PURCHASING. 403 The trustee will, in case of a resale, be allowed any money honafde laid out, not only in substantial repairs and improvements, but also in such as have a tendency to bring the estate to a better sale; which will be added to the amount of the purchase-money, and the estate will be put up at the aggregate sum ; deducting, however, an allow- ance for acts that deteriorate the value of the estate (o). But no allowance will be made him, for any loss he may sustain by a fall in the funds (//). Formerly, where a purchase by a trustee was set aside, the rule was, to put up the estate again to be sold to the best bidder ; the trustee accounting for the profits, and being allowed his principal money and interest at 4 per cent (q). If the trustee has actually sold the estate* the cestui que trust may compel the trustee to pay him what he may have received above the original purchase-money (r). Where a trustee buys the trust estate at a fair price, th* sale is seldom called in question, unless he afterwards sell it to advantage ; and then the cestui que trust is of course only desirous that the money gained by the trustee on the resale should be paid to him. Owing to this circumstance, a purchaser of a trust estate, from a trustee who had previously sold to himself, is seldom implicated in the suit ; but it seems clear, that a person purchasing with notice of the previous transaction, would be liable to the same equity as the trustee was sub- ject to. In the late case of Randall v. Errington (s) a pur- (o) Ex parte Hughes, 6Ves.Jun. 1 Ves. 9, A Ves. Jun. 632. n. 617; ex parte Bennett, 10 Ves. (r) Fox v.Mackreih,2 Bro.C.C. .Tun. 381. 400. Ex pa-te Reynolds, 5 V«3, (/>) Ex parte James, 8 Ves. Jun. Jun. 707- 337. (j)10 Ves.Jun. 423, (q) See Whelndale v. Cookson, 2 © 2 chaser 40i OF THE PERSONS INCAPABLE chaser from a trustee who had purchased in the name of a trustee was made a defendant, and the prayer of the bill was, that if he purchased without notice, the trustee might account for the money gained by the resale ; but as the equity against the purchaser was not noticed either by the counsel or the court, it must be presumed that no notice was proved. A different rule would, to use the expression of a great man, blow up like gunpowder this branch of equitable jurisdiction. It is indeed true, that in the case in the house of lords, the proceedings in the court of sessions were reversed without prejudice to the titles and interests of the lessees, and others who might have contracted with the defendant bona fide, and before the dependence of the pro- cess : but this may be satisfactorily accounted for on two grounds; the one, that no notice was charged on the lessees, nor were the leases attempted to be impeached ; the other, that the relief sought had been delayed for many years, and the point established by the house of lords was, to say the least, a new doctrine with reference to Scotland. But this equity is now well established. No person, therefore, can be advised to become the purchaser of an estate so cir- cumstanced, unless the cestui que trust will join ; nor would a court of equity, on any other terms, enforce a specific performance of such a contract. Before closing this chapter it must be remarked, that if a cestui que trust acquiesce for a long time in an improper purchase by his trustee, equity will not assist him tc set aside the sale (t). In Price v. Byrn (u), lord Alvanley refused she aid of the court, because the bill had beer, delayed twenty., years. (/) See Ex $ arte Jamc.s 5 S Ves. (;/) 5 Ves. .Inn. O'Sl. cited ; and Jun. 337 ; Hall v. Noyes, 3 Ves. sei X.vc, 3 Atk. Jun. 748, cited. ' " He OF PURCHASING. 405 But lachess does not apply to a body of creditors ; who may, therefore, claim the aid of equity, at a much more distant period after the sale, than an individual can(V). And although acquiescence may have the same effect as original agreement, and may bar such a remedy as this, yet the question as to acquiescence cannot arise until it is previously ascertained, that the cestui que trust knew his trustee had become the purchaser ; for, while the cestui que trust continued ignorant of that fact, there is no lachess in not quarrelling with the sale upon that special ground (y). (.v) Whichcqte v. Lawrence, 3 Company V.Mackenzie, SBro.P.C. Ves. Jun. 740 ; and a case before, by Tomlins, 42. the Court of Exchequer, 6 Ves. (?/) Per Sir Wm. Grant, 10 Ves. .fun. 032, cited ; York Buildings Jun. 42;. 2 D 3 CHAP. [ 403 ] CHAPTER XV. OF JOINT PURCHASES ' y PURCHASES IN THE NAMES OV THIRD PERSONS; AND PURCHASES WITH TRUST MONEY. W here two or more persons purchase lands, and advance the money in equal proportions, and take a conveyance to them and their heirs, this is a joint tenancy, "that is, a pur- chase by them jointly of the chance of survivorship, which may happen to the one of them as well as to the other ( l) (tf )• (a) SeeMoyse v. Gyles, 2Vern. Anon. Carth. 15; and see 3 Atk. 385 ; York v. Eaton, 2 Freem. 23 ; 735 j 2 Ves. 25S ; Rea v. Williams, Thicknesse v.Vernon, 2 Freem. 84; MS. Appendix, No. 17- (1) This distinction has not been thought satisfactory. A writer, to whom the profession is under great obligation, observes, that if the ad- vance of consideration, generally, will not prevent the legal right, the mere inequality of proportion, which may be naturally attributed to the relative value of the lives, cannot have that effect. See 9 Ves. Jun. 597, n. (b). The distinction, however, seems founded on rational grounds. Where the parties advance the money equally; it may fairly be presumed that they purchased with a view to the benefit of survivorship; but where the money is advanced in unequal proportions, and no express intention appears to benefit the one advancing the smallest proportion, it is fair to presume that no such intention existed ; the inequality of proportion can scarcely be attributed to the relative value of the lives, when neither of the parties can be supposed not to know, that the other may, immediately after the purchase, compel a legal partition of the estate, or may even sever the joint tenancy by a clandestine act. but OF JOINT PURCHASES. 407 but where the proportions of the money are not equal, and this appears in the deed itself, this makes them in the nature of partners (/;) ; and however the legal estate may survive, yet the survivor shall be considered but as a trustee for the others, in proportion to the sums advanced by each of them. So if two or more make a joint purchase, and afterwards one of them lays out a considerable sum of money in repairs or improvements, and dies, this shall be a lien on the land, and a trust for the representative of him who ad- vanced it (c). And where the money is advanced in equal proportions, so that the purchasers are joint tenants in equity as well as at law, a conveyance by the purchasers to a trustee without any consideration, and without any express intent to sever the joint tenancy, will not have that effect ; but the trust -estate will go to the survivor, in the same manner as the legal estate would have done (), which was a case of this nature, the plaintiff obtained a decree at the Rolls, it being insisted, that although it was an agreement parol, yet it was in part executed by the plaintiff's desisting from prosecuting his purchase, who otherwise might have purchased for him- self, or at least have enhanced the price the defendant was to pay, so that the defendant had a benefit by it j and, (p) 2 Vern. 62/ ; and see Riddle v. Emerson, 1 Vera. 106. and Cruise on Uses, 109,) appear to proceed from inattention to the word deed in the statute of Ann. Of course, the uses of a fine or recovery may, previously to the assu- rance being made, be declared by writing only without seal ; unless a deed is required by the rule of law. See DoXvman's case, 9 Co. It has been questioned (Treatise of Equity, 2d edition, vol. 2. p. 41, n.c.) whether the provision in the statute of Ann extends to J'emez covert. This was settled in the affirmative very soon after passing the act, (see Bushel v. Burland, Holt, 733, 11 Mod. 197) ; and it is in every day's practice to make afeme covert join with her husband in declaring thq uses of a fine or recovery previously levied or suffered. The case of Bushel v. Burland should not be dismissed without notiv cing how loosely it is reported. In Holt no notice is taken of the statute of Ann, although the decision evidently turned on the provision therein; and in Mod. Rep. it is said, " The statute of frauds and perjuries is out of the case, for it is thereby declared, that all subsequent deeds shall be as they were before." Now it is evident, that instead of the word " thereby," the words " by the statute 4 Ann, c. 1(5, s. 1-5," should be inserted. besides, OF JOINT PURCHASES. 413 besides, it was a fraud ( which he conceives to be another report of the case of La- mas v. Baily, where the lord chancellor dismissed the bill, because there was no absolute and positive agreement, but the words were ambiguous and uncertain, and the statute intended to oust as well all such ambiguous agreements, as to prevent perjuries, &c. and this agreement would not bind, unless it were in writing. And Mr. Powell, therefore, con- ceives, that the judgment turned on there being no absolute or positive agreement, the words being ambiguous and un- certain ; and not on the ground that the forbearing by agreement to do an act might not be a part performance, and raise as strong an equity to have the benefit stipulated in return, as an act done. And in the later case of Atkins v. Rowe(0, some per- sons desirous of obtaining a lease of three houses, agreed that one of them should bid for all the houses, but that the lease should be for their joint benefit. Accordingly he bid, and a lease was made to him ; and to a bill filed by the others to have the benefit of the lease, and that the pur- chaser might be decreed a trustee, he pleaded the statute oi / frauds. Bat the lord chancellor seemed of opinion, that the agreement, although by pasol, was not within the si tute ; and ordered the plea to stand for an answer, with (?) SccThynn v.Thy.innVern. Note, the ense of Lamas v. Baily, 2q(3. is stated in the same- page. (/•) 1 Powell on Contracts, 310. (t) Mose. 30. SeJ vjds Crop v. {a) 5 Vin. Abr. 5'ii, pi. 32, Norton^tated infra. liberty 414 Or PURCHASES IN THE liberty to except, and the benefit of the plea to be saved to the hearing. Upon the whole, therefore, the better opinion, perhaps, is, that an absolute agreement of this nature can be enforced, notwithstanding the statute of frauds. From the case of Smith, treasurer of the West-India Dock Company v. the Mayor and corporation of London (u), it should seem, that where two persons agree to purchase an estate, and one of them, by agreement between them, com- pletes the purchase, and pays the money, the other must agree to accept the title, and pay his share of the purchase- money, before he can call for an inspection of the title- deeds, in order to investigate the title ; unless the one who purchased can be charged with such gross negligence, or wilful default, as will strip an agent, as such, of the pro- tection which that character gives him in all transactions in which he duly acts according to his agency : and in case any such gross negligence or wilful default can be proved, the injured party will have a remedy in equity, although he may have paid his share of the purchase-money, If a man purchase an estate, and do not take the con- veyance in his own name only, the clear result of all the cases, without a single exception, is, that the trust of the legal estate, whether freehold, copyhold, or leasehold ; whether taken in the name of the purchaser and others jointly, or in the names of others without that of the pur- chaser ; whether in one name or several j whether jointly (u) Ch. Dl'c. 16, 1801, anJ many previous days, MS. or NAMES Ofr STRANGERS. 415 or successive, results to the man who advances the purchase- money (#). Although the persons in whose name the conveyance is taken, execute no declaration of trust, yet a trust will result for the person who paid the money by operation of law , this species of trust being expressly excepted out of the statute of frauds (y). But, unless the trust arise on the face of the deed itself, the proofs must be very clear (z) : and however clear they may be, it seems doubtful whether parol evidence is admis- sible against the answer of the trustee denying the trust (a). And in cases of this nature the claimant in opposition to the legal title, should not delay asserting his right, as a stale claim would meet with little attention (b). It has been said (c), that if the consideration money is expressed in the deed to be paid by the person in whose (x) Per lord C. B. Eyre, in Dyer v. Dyer, stated infra. (y) 29 Car. IE c. 3. s. 8; see Hungate v. Hungate, Toth. 184 ; Gascoigne v.Thwing, 1 Vera. 3 66 ; Howe v. Howe, 1 Vein. 415; Anon. 2 Yentr.36l, no. 3 ; O'Hara v. O'Neil, 21 Vin. Abr. 4Q~ n., 2 Bro. P.C. 39 ; Peily v. Maddin, 21 Vin. Abr. 4yS ; pi. 15; Sir Darcy, Lever v. Andrews, 7 Bro. P.C. by Tomlius, 289 ; Ambrose v. Am- brose, 1 P. Wms. 321; ex parte Vernon, 2 P. Wms. 54g ; Smith v. Baker, 1 Atk. 385 ; Lloyd v. Spil- let, 2 Atk. 148 ; Withers v. Wi- thers, Ambl. 151 ; Smith v. lord Camelford, 2 Ves. Jim. 713 ; Ki- der v. Kidder, 10 Ves. Jun. 300. (z) Gascoigne v.Thwing, 1 Vera. 366 ; Newton v. Preston, Prec. Cha. 103 ; Willis v. Willis* 2 Atk. 71 ; and seel Atk. 60 ; Ambl.4l4j Acherley v. Acherley, 4 Bro. P.C 673 and Smith vAVilkinson, 3Ves. Jun. 705, cited ; and 1 Dick. 323 ; and see Lench v. Lench, 10 Ves. Jun. 511. (a) Skett v.Whitmore, 2Freem. 280 5 Newton v. Preston, Prec. Cha.l03;seeCottington v. Fletcher, 2 Atk. 155 ; Bartlett v.Pickers^ill, 4 East, 577, n. (b). {1) Delane v. Delane, 7Bro.P.C. by Tomlins, 279. ( who says, that it should seem, that even the confession of the trust by the nominal purchaser, to countervail a declaration in writing, and create a trust for the party advancing the money, cannot be established by a third person, but must be made under a judicial examination upon oath, or by the party's own answer in equity. This, he adds, seems under^ stood both in the case of Ambrose v. Ambrose, and Ryall v* Ryall ; and appears to flow from the proposition before stated ; for, during the life of the nominal purchaser, no proof can be received of his parol confession, as not being the best existing evidence j and after his death, it is mere parol evidence contracting the deed, and not of strength to raise a resulting trust. In the first edition of this work the author submitted it as his opinion that the proposition that parol proof could not be admitted after the death of the nominal purchaser, was not warranted by the authorities referred to in support of it () lord Hardwicke appears to have been of opinion, that this doctrine of resulting trust only extended to cases where the whole consideration is paid by one person, and the conveyance taken in the name of the other. His lordship said, " this is where the whole consi- deration moves from such person ; but I never knew it where the consideration moved from several persons ; for this would introduce all the mischief which the statute of frauds was intended to prevent. Suppose several persons agree to purchase an estate in the name of one, and the purchase-money appears to be paid by him only, t do not know any case where such persons shall come into this court, and say, they paid the purchase-money ; but it is expected there should be a declaration 01 n Uot» Before the statute of uses, if a father made a feoffment to a stranger without any consideration, the law raised an use by implication to himself ; but if he made a feoffment to his son, no use did arise to the father by implication ; because the blood, which is a sufficient consideration, did fix and settle the estate in the son. And herein the law of trusts dcth (as it ought to do) agree with the law of uses before the statute of H. VIII. (d v. Read, 1 P.Wm 1 12 j Muraraa v.Mumma, 2 Vein. 60S ; and see Gilb* Lex Pretoria, 19; Redington v. Redington, 3 271. Ridg. P. C. 106. Note, the case (???) Finch, 340. of the Attorney-general v. Bagg, (?/.) Shales v. Shales, 2 Freeni. Hard. 125, turned on fraud. 252 j Mumma v.Mumma, 2 Vera. (k) Sir George Binioji v. Stone, ]£. A declaration NAMES OF CHILDREN. 423 A declaration of trust by the father, subsequently to the conveyance, will not divest the gift to the child (o) ; and therefore a devise by him of the estate will be inopera- tive (p). It is quite clear, that according to the general rule of equity, if the father devise the estate bought in the name of the child, and make other provision for him by the will, he would at this day be put to his election ; although in the early case of Shales v. Shales (.7), where these circum- stances occurred, the child was not put to his election. If a conveyance of a fee to a son is proved to be for a particular purpose, as to sever a joint-tenantcy, the child will be a trustee for the father (r). A purchase by a father, in the joint names of himself and son, will be considered as an advancement for the child, if he is unprovided for ; and consequently equity will not as- sist to defeat his legal claim (s). But a purchase in the names of father and son, as joint- tenants, has not been considered so strong a case for an ad- vancement as it formerly was ; it is said that it does not answer the purpose of an advancement, for it entities the father to the possession of the whole till a division, and to a moiety absolutely, even after a division, besides the father's taking a chance to himself of being a survivor of the other moiety : nay, if the son dies during his minority, the fa- ther would be entitled to the whole, bv virtue of the sur. vivorship, and the son could not have prevented it by seve- (0) "Woodman v. Mnrrel, 2 (7) 2 Freem. 2 J 2. Freem. 3£j Efliot v. Elliot, 2 Cba. (/•) Baylis v, Newton, 2 Vern. Ca. 231; see Redington v. Reding- 23; and see Birch v, Blagrave, ton, 3 Ridgw. P.C. 106. Ambl. 20'4; see sir Walter Ra- (p) Mumma v. Mumma, 2 leigh's case, Hard. 4g7 cited. Vern. \g ■ Dyer v. Dyer, Walk. (s) Scrooue v. Scroope, 1 Cha. Conyh, 216. S.C.MS. Ca. 27. 2 e 4 ranee, 424 OF PURCHASES IN THE ranee, he being an infant (/)., And accordingly, in a case(tt) where a father purchased an estate in the names of himself and son, and had no other estate to which a judg- ment creditor could resort, the creditor was relieved in equity, against the survivorship at law ; the settlement be- ing considered as voluntary and fraudulent against credi- tors (x). But there does not appear to be much weight in the reasons above-stated. It is evident that a moiety of some estates may be a much better provision, than the entirety of others. The chance of survivorship which the father takes, is an incident to the tenantcy, and ext< [ids - qu illy to the son, who after he attains his majority may sever the joint-tenantcy. If he die during his minority, it is as well that the estate should survive to the father, who paid the purchase-money, and perhaps took the conveyance to himself and son as joint-tenants, with the express view of advancing him only in the event of his attaining that age at which the law con- siders a man capable of managing his fortune. During the son's minority and the life of his father, upon whom should he be dependent, if not upon his own patent ? Ii" the fa- ther die during the sen's minority, then the estate will sur- vive to him, so that perhaps it is impossible to contend with success that a purchase by a parent in the name of himself and child as joint tenants, is not as strong a case, for an ad- vancement as a purchase in the name of the child soldy. Fraud is of course an exception to every rule. A purchase in the name of a child solely, or jointly with the parent's name, is not however within the 27 Kliz. (y), (0 Per lord Hardwicke, 2 Atk. Atk. 477. 480 ; and see Pole v. Pole, 1 Yes. (x) See 13 Eliz. c. 5, 7& (v) C. 4. (m) Stileman v, Ashdown, 2 And NAMES OF CHILDREN. 425 And therefore a subsequent purchaser, although bonajide, will not be relieved against it (z). But such a purchase is expressly within the letter of the 2 1 st of James I. («) if the father be a trader at the time; and his being solvent will not protect the purchase (b). But if the purchase be made before the father engages in trade, and without any fraudulent purpose of becoming a bankrupt, it will be good, although the father afterwards commence tradesman, and is made a bankrupt (c). If the father be dead, a purchase by the grandfather, in the name of his grandchild, is subject to the same rules as govern a purchase by a father in the name of his child ; for, on the death of the father, the grandchild is under the pro- tection of the grandfather (d) ; but in Loyd v. Read (e), this distinction does not seem to have been attended to. The case, however, depended upon its own peculiar cir- cumstances. So, a purchase by a husband in the name of his wife, is also deemed an advancement and provision for her (/). But if a purchase, in the name of a wife or child, be after marriage and voluntary, it may perhaps be fraudulent as against creditors (g-), in like manner as if the settlement was of property actually vested in the husband, in even which case it seems that the husband must be proved to have been indebted, at the time of the settlement, to the extent (.1) Lady Gorge's case, 3 Cro. 298 ; and see 8 Ves. Jun. 200, 550, cited. 204. (a) See Walker v. Burrows, 1 {d) Ebrand v. Dancer, 2 Cha. Atk. 93. Ca. 26. (£) Fryer v. Flood, 1 Bro. C. C. ( cited. 19£, If OF PURCHASES WITH TRUST-MONEY. 427 If a trustee, or executor, purchase estates with his trust money or assets, and take the conveyance in his own name, without the trust appearing on the face of the deeds, the es- tates will not be liable to the trusts, although he die insol- vent, unless the application of the purchase-money is clearly proved. And the same principle applies to a purchase by a husband with trust-money belonging to his wife, of which he may have obtained possession from the trustee, whether with or without the wife's consent ; or to a purchase by an agent or steward with monies remitted to him by his prin- cipal (■;/.). In the old cases (o) equity was much more strict in the proof they admitted of the application of the money, than they now are ; but it was always very clear, that upon suffi- cient proof of the trust money having been laid out in the purchase of the estate, a trust would result, and be decreed accordingly (p). Parol evidence is, in these cases, admis- sible either in the life-time, or after the decease of the trustee : but unless there are corroborating circumstances, as a writing under the trustee's hand, stating the application of the money, or the inability of the trustee to make the pur- chase with other funds (i/), mere parol evidence of decla- (n) Bennet v. Mayhew, 1 Bro. Balgney v. Hamilton, cited ibid. ; C. C.232, 2 Bro. C.C. 287 cited. Ryall v. Ryall, 1 Atk. 50, Ambl. (o) Kirk v. Webb, Prec. Cha. 413 ; and see earl of Plymouth v. 84 j Heron v. Heron, Prec. Cha. Hickman, 2 Vern. 167. 163} Halcott v. Markant, Prec. (q) See Lencli v. Lench,10Ves. Cha. 168; Kendar v. Milward, 2 Jim. 511 ; Wilson v. Foreman, Vern. 440, Prec. Cha.1715 see Cox 2 Dick. 503, as corrected by (he v. Bateman, 2 Ves. 19. masterofthe Rolls, 10 Ves. Jun. (p)Anon. Sel. Cha. Ca. 57; 519 3 and see Anon. Sel. Cha. Ca. kanp v. D/ghton, Ambl. 409; 5J. rations 428 OF PURCHASES WITH TRUST-MONEY. rations supposed to be made by the purchaser, will be re- ceived with great caution. Where a trustee or agent is bound by the trust to lay out the money in land, if he lay it out accordingly, it will be presumed to have been done in execution of the trust. But if a trustee has considered himself entitled to the trust-money for his own benefit, no presumption can be raised in opposition to this fact, that he intended any lands he may have bought with the trust-money to be subject to the trust (r). (r) Perry v. Phelips, 4 Ves. Jun. 10S, OHAF» ( 429 ) CHAPTER XVI. OF THE PROTECTION AND RELIEF AFFORDED TO PUR- CHASERS BY STATUTES, AND BY THE RULES OF EQUITY. In the former chapters an attempt has been made to trace the purchase from its inception by contract, to its comple- tion by conveyance ; the subjects which may be said to arise out of the conveyance, have been treated of; and it hath been considered, who are incapable of purchasing es- tates. Let us now suppose the purchase completed, and proceed to enquire to what protection and relief purchasers are entitled. The protection and relief afforded to pur- chasers, appear to arise either from positive statutes, or from the rules of equity. The common law hath, indeed, done all which, from its peculiar nature, it can do in sup- port of the claims of honajlde purchasers ; for we are told, that the maxims of the common law, which refer to de- scents, discontinuances, non-claims, and to collateral war- ranties, are only the wise arts and intentions of the law to protect the possession and strengthen the rights of purcha- sers (a). Lord Mansfield indeed held, that in every case between purchasers for valuable consideration, a court of equity must/allow, and not lead the law. And the rules of equity were, in his time, pretty generally adopted in (a) Finch, 3 04 ; see Bac. on Uses, 36. the 430 OF PROTECTION FROM the courts of law (b). It could not long escape observation, that from the peculiar constitution of this country, the rules of law and equity ought ever to continue distinct ; and ac- cordingly all the great judges who have succeeded lord Mansfield have determined that the legal estate must pre- vail at law (c). We need, therefore, only consider, first, the statutes which have been passed for the protection or relief of purchasers ; and secondly, the rules of equity in favour of purchasers. First then. By the 27 Eliz. c. 4. (d) it is enacted, that all conveyances, grants, &c. out of any lands, tene- ments, or other hereditaments* to be had or made for the intent and of purpose to defraud and deceive such persons as shall purchase the same lands, tenements, or other here- ditaments, so formerly conveyed, granted, &c. or any rent, profit, or commodity in or out of the same, shall be deemed and taken, only as against such persons and their re- presentatives as should so purchase for money or other good consideration, the same lands, tenements, or other here- ditaments, or any rent, profit, or commodity in or out of the same, to be utterly void. But it is provided, that the act shall not extend to make void any conveyance, &c. to be made -for good considera* tion, and bonafide, to any person. (b) Keech v. Hall, Dougl. 22 j (r) See 5 East, 138 j 6 Ves. Jan. Weakley v. Bucknell, Cowp. 473. 1/4; 3 Bos. and Pull. 162; and This practise did not escape the en- 1 Schoales and Lefroy's Rep. 66. quiring eye of Junius, see vol. 2, (d) Made perpetual by 30 Eli/. 41, 384. 18, s. 3. And VOLUNTARY SETTLEMENTS. 431 And it is also enacted, that if any person shall make any conveyance, &c. of any lands, tenements, or heredita- ments, with any clause of revocation or alteration at his pleasure, of such conveyance, &c. and shall afterwards sell the same to any person or persons for money or other good consideration paid or gi\ r en (the said first conveyance, &c. not being revoked according to the power reserved by the said secret conveyance, &c.) 3 then the said first convey- ance, &c. as touching the lands, tenements, and heredita- ments so after sold, against the vendees, &c. shall be deem- ed and be void, and of none effect. Provided that no bona Jlde mortgage should be affected by the act. To take advantage of this statute, a person must have purchased bona Jlde, and for a valuable and not inadequate consideration (e)± In the construction of this act it hath been holden, that although the fraudulent conveyance is not made by the ven- dor himself, yet it is void against a purchaser. Therefore, if a father make a fraudulent lease, and then die, and the person claiming under him sell the estate, the purchaser shall avoid the lease, whether the vendor did or did not know of its existence (f)- So it hath been determined (g) that notice to a purchaser of a fraudulent conveyance is of no consequence, as the statute makes it absolutely void. A conveyance for payment of debts generally, to which no creditor is a party, nor any particular debts expressed, is a fraudulent conveyance within this statute, against a subse- sequent purchaser for valuable consideration ( h). (e) Upton v. Bassett, Cro. Eliz. (g) Gooch's case, 5 Co. 60 a. 444 j Doe v. Routledge, Cowp. (h) Leech v. Leech, 1 Cha. Ca. 705. 349. ( f) Barrel's case, 6 Rep. 11. KJ ] But 4S2 OF PROTECTION FROM But if the conveyance were made with an honest intent, and the purchaser had notice of the trust, it seems that he will not be relieved against it (/). And upon the whole, as Mr. Roberts justly remarks (k), these are cases of such danger to purchasers, that a prudent adviser can hardly re- commend a title, which has been -at all the subject of ar- rangements for the payment of debts remaining unsatisfied. It has in numerous cases been holden, that voluntary settlements are within the meaning of the act, although the purchaser had direct notice of the settlement at the time of his purchase. This doctrine has, however, been frequently questioned, but appears to have been incontrovertibly set- tled by the case of Taylor v. Stile (/), which arose in York- shire. In that case, A. settled lands, after his marriage, on his wife, for life ; and then sold the lands to B. who had notice of the wife's estate for life, and took counsel's opinion on the point. A. died, and his wife brought her bill to be let into her life estate. Lord Northington held the law to be clear, that a subsequent purchaser for a valuable considera- tion, though with notice, should set aside a voluntary set- tlement ; but it being suggested, that there was no valua- ble consideration, an issue was directed to try that fact, which coming on before Mr. justice Bathurst, at York, he suffered the counsel to enter into the equity j and after (i) Langton v. Tracey, 2 Cha. (/) Chancery, i;63, MS.; and Rep. 16. See Stephenson v. Hay- see Evelyn v. Templar, 2 Bro« ward, Prec. Cha. 310. C.C. 148. (k) Vol. Conv.335. hearing VOLUNTARY SETTLEMENTS. 433 hearing the argument, sa:d he knew lord Hardwicke had determined, in twenty instances, in the same manner as lord Northing-ton. The consideration was proved, and the cause came on to be heard before the chancellor on the equity reserved, who thereupon dismissed the bill. And in a very recent case, lord chief justice Mansfield held, that the court could not, without overturning the set- tled and decided law, hold t hat a prior voluntary convey- ance could defeat a conveyance to a purchaser for a valua- ble consideration, although he regretted that it had ever been decided that even notice of the prior settlement would not defeat such a purchase (l) (?n). And indeed it is im- possible not to observe that these decisions militate against the spirit of the act, when the purchaser has direct notice of the voluntary settlement from the vendor. The material ingredi- ents, " the intent and purpose to defraud and deceive,'" are wanting, and the purchaser is not the innocent, injured man, whom the statute presumes him to be (//)• (m) Doe v. Mart) r,l New Rep. Jones, QA ; Fonbl. n. (g) to i Trea. 532 Eq. 26p. Sed vide Roberts on ( , ■ See White v. Stringer, 2 Lev. Vol. Conv. 3Q— 44. xOJ ; Buller v. Waterhmise, T. (l)So mariy titles depend upon the Jong- established rule above no- ticed, that it seems quite out of the power of the courts to over-rule it. [ri a late case, however, before Mr. justice Heath at niii prim, where a nioftgaoree of a man who had msde a prior voluntary settlement, brought •;in ejectment against the persons in possession under the settlement, I am told, that the learned judge attached seme importance to the cir- cumstance of nbtke ; and the jury found for the defendants, conceiv- ing the s< ttlement not to be fraudulent within the statute, though volun- tary But upon the request of the counsel for the plaintiff a case was d. The case will be argued this term, in the court of King's- bf neb, and I shall endeavour tortake a short note of the judgment, in Brder to present it to the reader in the Appendix, <2 f • H ere 434 OF PROTECTION FROM Here it will we proper to consider, what is a voluntary settlement, and wnat will be deemed a valuable considera- tion within the act, so as to protect a settlement against sub- sequent purchasers. Any conveyance executed by a husband in favour of hi s wife or children , after marriage, which rests wholly on the moral duty of a husband and parent, to provide for his wife and issue, is voluntary and void against pu rchasers by force of the act (o). But a purchase in the name of a wife or child, is not within the intention of the act, and consequently cannot be defeated by a subsequent purchaser (/)) : and on the ground of policy it seems, that a settlement by a widow, previously to her second marriage, of her estate on the children of the first marriage, will not be deemed fraudulent (9). And a settlement made en a wife or children, prior to marriage, is a conveyance for valuable consideration, by reason of the marriage itself (r). And the marriage con- sideration runs through the whole settlement, so far as it re- lates to the husband, and wife, and issue (s). But there are few cases, perhaps none, in which the marriage consi- deration will extend to remainders to collateral relations. So, if an agreement be entered into before the marriage, for a settlement of the estate (*), or the husband receive an (o)Woodie's case cited in Col vile (r) Colvile v. Paiker, Cro. Jac. v.Parker, Cro. Jac. 15S •, Good- 158 j Douglas v. Waad, 1 Cha. right v. Mo&s, 2 Elackst. 1010 ; Ca. gg j. Brown v.. Jones, l Atk. Chapman v. Emery, Cowp..2/8j 1SS. Evelyn v. Templar, 2 Bro. C. C. (s) Nairn v. Prowse, 6" Y'es. Jun. 148. 752. (/>) Supra, p. 424. (t) Griffin v. Stanhope, Cro. Jac- (q) Newstead v. Searles, I Atk. 454; sir Ralph Bovie's case, 1 Vera. H65\ see Cowp. 2S0; Cotton v. 103. King, 2P.Wms. 671. idditioiial VOLUNTARY SETTLEMENTS. 435 additional portion with his wife (u), the settlement, although made after marriage, will be deemed valuable. So, even an agreement to pay the husband a sum of money, as a por- tion, will support a settlement made after marriage, if the money is paid according to the agreement (a?). And where a woman has been married indiscreetly, and a trustee of a sum of money which the husband is entitled to in right of his wife, will not pay it unless he-make a settlement on his wife ; and a settlement is accordingly made : the settlement will equally be supported as if a bill had been brought against the husband to make a provision for his wife (?/). So the concurrence of the wife in destroying an existing settlement on her for the benefit of the husband, is a suffi- cient consideration for a new settlement, although much more valuable than the former (z). And the better opini- on, as well upon principle as in point of authority, seems to be, that the wife joining in barring her dower, for the be- ? nefit of her husband, will be a sufficient consideration for a settlement on her (a) (2) . It has been decided that the wife parting with her jointure, is a sufficient consideration. Now if that which comes in lieu of dower is a valuable con- sideration, surely the dower itself must be equally valuable. Besides, where a woman is entitled to dower the estate can- (u) Colvile v. Parker, Gro. Jac. (z) Scot v. Bell, 2 Lev. ;0; loS ; Jones v. Marsh, For. 64 ; Ball v. Bumford, Prec. Cha. 113, Stileraan v. Ashdown, 2 Atk. 477 3 1 Eq- Ca. Abr. 354, pi. 5 ; sec Bamsden v. Hyllon, 2 Ves. 304. Clerk v. Nettleship, 2 Lev. 148. (») Erown v. Jones, 1 Atk. (a) Lavender v. Blakstone, 2 3S8. . Lev. HO. (y) Brown v. Jones. (2) Note, In Evelyn v. Templar, 2 Bro. C.C. 143,' the fine was le- vied^e years after the settlement, and was to enure to such uses us he should iki-lare, otherwise to enure to the uses of the settlement. 2 f 2 not 4SG ui PROTECTION PROM not be sold to advantage without her concurrence ; she is 2. necessary party to any arrangement respecting the estate, and that alone Sjeems a sufficient ground to support a set- tlement on her. But if an unreasonable settlement be made upon a wife in consideration of her releasing her dower, it seems that equity in favour of subsequent purchasers will restrain her to her dower (/*). If, upon a separation, the husband settles an estate upon his wife, and a friend of hers covenants to indemnify the husband against any debts she may contract, this will be a sufficient consideration to uphold the settlement as valuable and not within the statute (c). Indeed the court will anxi- ously endeavour to support a fair settlement, and nearly any consideration will be sufficient for that purpose. There- fore, if a person, whose concurrence the parties think es- sential, join in a settlement, his concurrence will be deem- ed a valuable consideration, although he did not substanti- ally part with any thing (d). We have seen what will be deemed a fraudulent or vo- luntary conveyance ; but although a dc^d be iih rely vol ro- tary or fraudulent, in its creation, and voidable by a pur- chaser (i. e. would become void by a person purcluu the estate), yet it may become good by matter ex post facto: as if a man make a feoffment by covim or without any va- luable consideration, and the feoffee make a feoffment foi valuable consideration, and then the first feoffor enter and (l) Dolin v. Coltmmi, l Vera. (V) Roe v. Mitton, 2 veils. 35G; 294. see Myddleton v. loid Kenyon, 2 (c) Stephens v. Olive, 2 Bro Ves. Jun. 3Q1. C. C. 00 j King v. Brewer, iNd. 03 n. make VOLUNTARY SETTLEMENTS. 437 make a feoffment for valuable consideration ; the feoffee of the first feoffee shall hold the lands, and not the feoffee of the first feoffor : for although the estate of the first feoffee was in its creation covinous, or voluntary, and therefore voidable, yet when he enfeoffed a person for valuable con- sideration, such person shall be preferred before the last (e). Indeed cases of this nature are expressly saved out of the statute by the proviso. Lord Eldon has applied this rule to persons having only equitable rights. For where a person who had an absolute power of appointment over a sum of money to be raised un- der a trust term, directed part of it to be raised in favour of a volunteer, who afterwards mortgaged such part, al- though the money appointed was deemed assets as between the creditors of the appointor and the appointee, yet the claim of the purchaser was preferred to that of the creditors; he having a preferable equity f,/ v^- lf a voluntary grantee gain credit by the conveyance to him, arid a person is induced to marry him on account of such provision, the deed, though void in its creation as to purchasers, will, on the marriage being solemnized, no ain voluntary, as it was in its creation, but will be considered as made upon valuable consideration (g), And it is to be inferred from a late decision fhj, that ( e )Prodgersv.Langham, 1 Sid. 133; kirk v. Clark, Prec. Cta, 133j Andrew Newport's case,Skin. 275; S.C.by the name of Hemer 423: Wilson v. Wovmal, Godb. v. Clark, 2 Eq. Ca. Ab:.4o, pi. l6l,pl.226; Do; v. Ma-tyr, 1 13; Doe v. Routledge, Cowp. New Rep. 332 ; and see Parr v. Eli- 705 ; East India Company v. Cla. ason, l East, 92; see also, lady veil, Gilb. Eq. Rep. 37, Prec.Cha. Barg's case, Mo. 602. 377 5 and see 9 Ves. Jun. 193. (/) George v.Milbank, 9 Ves. {h) Brown v. Carter, 5 Ves, Ju '. 190. Jun - st52 - 1 a) Prodgers v. Lsnjiam, 1 Sid. * 2 f 3 though 453 OF PROTECTION FROM though it does not appear, that the friends of the wife did speculate upon the provision, and take it into consideration, it must be presumed they did act upon it ; and it cannot afterwards be disturbed. In the case alluded to, the ques' tion was, whether the husband, who was tenant for life with remainder to his sons in strict settlement, had any equity to be relieved against the settlement, as made under an un- due influence of parental authority ; and it was determined that the husband could not disturb it by reason of his sub- sequent marriage, although it did not appear that the friends of the wife took the settlement into consideration. The same principle applies to the case under consideration. Notwithstanding the decisions as to voluntary settlements, it is seldom that a purchaser can be advised to accept a title where there is a prior settlement ; for although appa- rently voluntary, yet if a valuable consideration were paid or given, parol evidence is admissible of the transaction, in order to support the deed, and rebut the supposed fraud. This seems admitted by all the cases (/). And in Ferrars v. Cherry (/?), it was even holden, that although a settle- ment was apparently voluntary, and made after marriage, yet if the purchaser had notice of the settlement, and it prove to have been made in pursuance of articles before marriage, he would be bound by it, and could not protect himself by a prior legal estate, as he ought to have en- quired of the wife's relations, who were parties to the deed, whether it was voluntary or made pursuant to an agreement before marriage. Lord Hard 1 , - iced has said, that he inclined to think it was in this case left uncertain on the face of the settlement, whether it was made before mar- riage or not ; and he denied the authority of the case (/), (i) See particularly Chapman v. (0 Senhouse v. Earle, Ambl, Emery, Cowp. 2/8. 335 \ see 2 Ves. 00 n. (k)2 Yem. 384. However, VOLUNTARY SETTLEMENTS." 439 However, considering the present temper of the courts in regard to bona fide voluntary conveyances, this opinion of lord Hardwicke's cannot safely be relied on. Indeed, if notice of a settlement apparently voluntary, but which turns out to be made on valuable consideration, should not be deemed notice to a purchaser of the consideration, yet, unless he has a prior legal estate, he cannot protect himself against the settlement. Both the parties being purchasers, equity must stand neuter, and then of course the person claiming under the conveyance must recover at law. A purchaser without notice of a voluntary settlement may compel a performance in specie of the agreement, al- though the settlement were made bona fide (m). In Bennet v. Musgrove (n), lord Hardwicke said, the dis- tinction in equity was, that where a subsequent purchaser for a valuable consideration would recover the estate, and set aside or get the better of a precedent voluntary convey- ance, if that conveyance was fairly made, without actual fraud, the court will say, Take your remedy at law : but wherever the conveyance is attended with actual fraud, though they might go to law by ejectment, and recover the possession, they may come into this court to set aside that conveyance ; which is a distinction between actual and pre- sumed fraud, from its being merely a conveyance. From this it seems clear, that equity would not compel a specific performance in favour of a purchaser who bought . with notice of a prior voluntary conveyance made without fraud. And I am told that the present master of the Rolls, in the case of Burke v. Dawson (o), seemed of opinion, that (w) Leech v. Dean, 1 Cha. Rep. (n) 2 Ves. 51 j and see Oxley V, 78 ; and see Parry v. Carwarden, 2 Lee, 1 Atk. 625. Dick. 544 ; see also Powel v. Plcy- (o) Rolls, March, 1SQ5, MS. delL.l8Vin.Abr. (D) pi 5. 2 if 4 although 440 OF PROTECTION FROM SETTLEMENTS although a purchaser without notice of a voluntary conveyance might compel a specific performance, yet the vendor could not enforce the execution of the contract against an unwilling contractor. Indeed this seems to flow from the rule, that the voluntary conveyance is binding en the settlor himself; and the stat. of Eliz. was passed to pro- tect purchasers, and not to enable persons to break through bonajide settlements voluntarily made by them. It remains to consider the construction which the part of the statute relating to conveyances with power of revocation has received. It is of course quite clear, that a settlement by which a power of revocation, or a power tantamount to it, is reserved to the grantor, is void against a subsequent purchaser (/>) ; and no artifice of the parties can protect the settlement. Therefore, although the power is conditional, that the settlor shall only revoke on payment of a trifling sum to a third person (q), or with the consent of any third person, who is merely appointed by the grantor (r), in these and the like cases the condition will be deemed colourable, and the set- tlement will be void against a subsequent purchaser. But if a settlement is made, with a power to the settlor to revoke, so as that the money be paid to trustees to be in- vested in the purchase of other estates (.?), or to revoke with the consent of a stranger bonajide appointed by the parties, and his consent is made requisite, not as a mere colour, but for the benefit of all parties, the settlement will be valid and (/>) Cross v. Faustenditch, Cro. (?) See 3 Rep. 82, b. ; Lavender Jac. 180; Tarback v. Maibury, 2 v. Blackston, 3 Keb. 526. Vera. 510 ; see Lane, 22. (s) Doe v. Martin, 4 Term, Ecpi (q) Griifin v. Stanhope, Cr#. Jac. 39- 454, , cannot WITH POWER OF REVOCATION. 441 cannot be impeached by a subsequent purchaser (/). This was determined in the case of Buller v 9 Waterhouse («.), which however, Mr. Powell thought, did not settle the point, because all the claimants under the conveyance iverc purchasers for tended OF PROTECTION FROM CHAR. USES. 443 tended to operate as a mode of conveyance. But without insisting that where a purchaser is aware of the settlement he must require the power to be executed, it may be urged, that where a purchaser does rest his title on the execution of the power, he rejects the aid of the legislature, and takes his title under, and not in opposition to the settlement ; and can, therefore, only stand in the same situation as any- other purchaser who has unfortunately taken an estate under a power defectively executed. The purchaser can scarcely be held to have a good legal title, unless the vendor not only attempted to execute the power, but actually con- veyed the estate to him. In the statute of charitable uses (7 ) is a proviso, that no person who shall purchase or obtain, upon valuable consi- deration of money or land, any estate or interest of or in any lands, &e. that shall be given to any of the charitable uses mentioned in the statute, without fraud or covin, (having no notice of the same charitable uses) shall be impeached by any decrees of the commissioners therein mentioned. A purchaser who hath bought for an inadequate considera- tion is not within this proviso ; and the adequacy of the consideration is measured according to the rule of the civil jaw ; but if one purchase lands under half the value, and sell to another upon good consideration bonajide, the fraud is purged (c). . If a rent- charge be granted out of land to a charitable use, and the land is afterwards sold for valuable considera- tion to one who had no notice, it has been said, the rent remains; because the purchase was of another thing that (. ) 43 ra.z. c< 4, (0 Vide supra. \\ 1/4 3 Duke, 1/7 . was 444 OF PROTECTION FROM was not given to the charitable use (d) : but, in Tothil (e), the same case is referred to as an authority, that a purchaser coming in without notice of a rent-charge shall not be chargeable therewith, although given to a charitable use. The correct distinction seems to be, that where the rent- charge is legal, it must, like every other legal incumbrance, bind the purchaser, although he purchased without notice ; but that, where it is a mere equitable charge, the commis- sioners shall not make any decree for payment of it against the purchaser, if he purchased without notice, If the first purchaser gave a valuable consideration, and vet had notice, all that claim in privity under his estate and title, whether they have notice or not, will be bound by the decrees of the commissioners (/*), This rule, as we shall hereafter see, differs from the gene- ral rule of equity in this respect : — a subsequent purchaser without notice not being affected by notice in the person of whom he purchased. With this exception, however, the same rules seem to prevail in the construction of the act, wich respect to notice, as are generally adopted by equity (g). By the- statute 13 Eliz. c. 7, a purchaser would be de- feated, although there should be forty years after an act of bankruptcy, and before a commission; and although the purchaser had no notice : for the words of the statute arc general after bankruptcy, and the proviso in the end of the statute makes it still plainer, viz. That assurajices made by a bankrupt before bankruptcy, and bona fide, shall not be (J) East Greenstcd's case, Duke, (/) EastGreensted's case,Duke, 64; and see Peacock v. Thewcr. 64 ; 3nd see ibid. 173. Duke, 82. (g) East Greensted's case, uli (e) Toth. 226, ■ i and Dnke, 173. defeated* ACTS OF BANKRUPTCY. 445 defeated. — This was hard doctrine against fair purchasers without notice ; but so the law was (Ji). With a view to prevent this injustice, and at the same time to preserve creditors their just rights, and perhaps in analogy to the statute of fines, it was by the 21 Jac. I. c. 19, s. 14, enacted, that no purchaser for good and valuable consideration should be impeached by virtue of that act, or any other act theretofore made against bankrupts, unless the commission to prove him a bankrupt should be sued forth against such bankrupt within five years alter he should become a bankrupt. But even since this provision it is always dangerous to purchase an estate from a trader ; for an act of bankruptcy may have been committed within five years before, which will reach the estate (?*). It has been decided, that if a purchaser has notice of the act of bankruptcy, he is not a purchaser within the meaning of the statute, and consequently is not entitled to the bene- fit of it (k) : but if the act of bankruptcy arise by the exe- cution of a fraudulent deed, notice of the deed, without notice of the fraud, will not be deemed notice of the bank- ruptcy (/). This is a point which frequently occurs in practice : a deed appears upon an abstract, by which the owner, being subject to the bankrupt laws, conveys all his estate for the benefit of his creditors, and to which all the creditors are stated to be parties. Now supposing the title to be so circumstanced, that the purchaser could not be affected by an act of bankruptcy, unless he had notice of it, the question at once arises, whether notice of the deed is no- tice of any creditor not having executed it, in which the case the deed would be fraudulent, and an act of bankruptcy. (h) See Forester, 66, 6j\ lip, 7 Vin. Abr. 119. (i) See 4 Ves. Jun. 398. ^) S. C. (-*) Read v. Ward, 2 Eq.Ca.Abr. This 446 OF PROTECTION FROM JUDGMENTS, This is a very : mportant question, as it is impossible to give evidence of all the creditors having executed. But it seems to follow from the decision in Read v. Ward, that the purchaser would not be held to have had notice, that all the creditors were not parties to the deed ; and this opinion appears to be adopted in practice. To avoid a purchase, the act of bankruptcy must be committed within five years before the commission (m). The five years are, however, computed from the last act of bank- ruptcy preceding the sale ; for the words of the statute are not after he shatters/ be a bankrupt, but only after becoming bankrupt generally (n) : and, therefore, if after several acts of bankruptcy an estate is sold by the bankrupt, and a com- mission issues within five years from the last act, the sale will be avoided (o). But no act of bankruptcy after the sale will affect the purchaser ; and consequently his title will not be impeached by any ■commission, issued after five years from the act of bankruptcy immediately preceding the sale (/>). Bv a fiction in law, all judgments were supposed to be judgments of the first day of the term in which they were obtained ; and therefore a purchaser might have his estate incumbered by a judgment acknowledged subsequently to his purchase. To obviate this injustice it was enacted (9), that any judge, or officer of any his Majesty's court ; of Westminster* that should sign any judgments, should at the signing of (mj Radford v. Bloodworth, 1 cited; Radford v. Bloodworth, 1 Lev. 13. Lev.] 3, 1 Keb. 11. (n) Spencer v.Venacre, 1 Keb. (/>) Spencer v. Venacre, 1 Keb. 722 1 Lev. 14. 722j ■andseeCullen'sB.L.241. (9) Jellif v. Horn, 1 Keb. 12, (?) 2Q Car. II. c.3, s. 14, 15. the OF PROTECTION FROM JUDGMENTS. 447 the same set down the day of the month and year of his so doing, upon the paper, book, docket, or record, which he should sign ; which day of the month and year should also be entered on the margin of the roll of the re- cord where the said judgment should be entered, and such judgments, as against purchasers bona fide for valuable con- sideration of lands, tenements, or hereditaments, to be charged thereby, should in consideration of law be judg- ments only from such time as they should be so signed, and should not relate to the first day of the term whereof they were entered, or the day of the return of the original, on filing the bail. But though this settled all differences respecting the fic- tion of law, whereby judgments were supposed to be all of the first day of the term, by compelling the party to set down the particular period when the judgment was signed, ■ and declaring that, as against purchasers bona fide for a valuable consideration, the lands, tenements, and heredita- ments, to be charged thereby, should be charged only from such time ac the judgment was signed ; yet inasmuch as it did not compel the plaintiff to carry in the judgment roll, purchasers and others were rendered almost incapable of discovering what judgments were recovered (r). And therefore by another statute (:;) it was enacted, that the clerk of the essoins of the court of C. B., the clerk of the doggets of the court of B. R., and the master of the office of pleas in the court of E: hould make and put into an alphabetical dogget, by the defendants' names, of all the judgments entered in their respective courts of mi- chaelrnas and hilary terms* before the last day of the ensuing terms; and of the judgments of r and trinity terms, before the last day of michaelmas term.; (r) Robinson v. Harrington, 1 made perpetual by 7 and 8 W II L Pow.Mortg.518, 4th edit. S.C. MS. c. 3(5, s. 3. 0) 4 and 5 W. and M, c. 20, * and 443 OF PROTECTION FROM JUDGMENT?. and that no judgments should affect lands or tenements sen to bona fide purchasers for valuable consideration, unless doggeted and entered according to the act ; and it is di- rected that every dogget shall be put into and kept in books in parchment, to be searched by all persons at reasonable times, paying 4d. for searching every term. " Dockets or indexes to judgments were in use long before this statute* They were invented by the courts for their own ease, and the security of purchasers, to avoid the trou- ble and inconvenience of turning over the rolls at larger The statute of William and Mary did not supersede the former practice of docketing the judgment in parchment or paper, which is still necessary to be done by the attornies, on entering and bringing in the rolls ; but was intended to operate in addition to that practice, by requiring the dockets to be entered in alphabetical order, by the officers of the court (/ V Now upon the provisions of this act it is to be observed, that judgments cannot be docketed alter the time men- tioned in the act ; and the practice of the clerks' docket ing them after that time, is only an abuse for the sake of their fees, and ineffectual to the party (»;. And as the object of the act is to enable purchasers to discover judg- ments, by the names of the persons against whom they are entered, if the name of a dc fendant be falsely entered, a^ Compton for Crompton, tin judgment will be void against purchasers', and the court will not amend the recorder;. If it is wished to enter a judgment as of a term, it must be actually entered before the essoin day of the succeeding term; and lord C.J. Holt has said, that if judgment be (n Tidcfs Pract. S5S, SGO, 3d Forshall v. Coles, Appendix, no. 16. edit. Gilb. C. P. 140. (.0 Sale v. Crompton, IVYils. 01, (u) Per master of the Rolls, \fl 2 Str. 12Q0. signed OF PROTECTION FROM JUDGMENTS. 443 signed in a term, and in the subsequent vacation the de« fendant sells lands, and before the essoins of the next term the plaintiff enter his judgment, it shall affect the lands in the hands of the purchaser (y)» And although this has been doubted (z), yet it seems to be correct, as the judgment is not affected by the act of Charles II. or that of William and Mary. The judgment binds only according to the letter or the statute of Charles ; and it is not required to be docketed by the act of William and Mary, till before the last day of the subsequent term. And there is no inconvenience in this rule, for I find, upon enquiry, that the practice is to index judgments as soon as they are signed, in order to enable purchasers to search- for them with facility. But this prac- tice is wholly independent of the directions of the act by which judgments are required to be doggeted* Although a judgment is not duly doggeted, and there- fore void against a purchaser, yet if the purchaser has no- tice of it, and did not pay the value of the estate, it will be presumed that he agreed to pay off the judgment, and equity will compel him to pay it (a). The general rule of equity would warrant an assertion, that the case would be the same although no agreement were made. In the case of Forshall v. Coles (&), however, it appears that the master of the Rolls held decidedly, that notice of a judgment not docketed was not material. But this decision cannot be relied on : theeffect or it would be to over-rule all the decisions on the statutes for registry. They were passed for precisely the same purpose as the act of William and Mary, viz. to enable purchasers readily to (y) Hodges v. Tempier, 6 Mod. Abr. 53, pi. 5 j 2 Eq. Ca. Abr .69 i. 391. pi. 7. (s)Tidd's Pract. 857 ; Bac. Abr, (5) 7 Vln. Abr. 54, pi. 6 ; 2 Ej by Gwill. Tit. Execution (9.) n. Ca, Abr. 592, pi. S ; S. C. MS. a (aY Thomas v. Pled well, 7 Vin. better note, Appendix, No. 16. 9 g discover 450 OF PROTECTION FROM JUDGMENT*. discover incumbrances ; and therefore, if a purchaser has notice of any judgment, the statute does not in equity extend to him, as he is already in possession of what the legislature intended to furnish him with. Formerly, if goods had been sold during long vacation, a Jleri facias tested the preceding term would have over- reached the sale although issued subsequently to it (c). To remedy this inconvenience, it was enacted (r/) that no writ of Jleri facias , or other writ of execution, should bind the property of goods against whom such writ of execution was sued forth, but from the time that such writ should be delivered to the sheriff, under-sheriff, or coroners, to be executed ; and for the better manifestation of the said time, the sheriff, under-sheriff, and coroners, their deputies and agents, should, upon the receipt of any such writ, with- out fee for doing the same, indo:se upon the back thereof the day of the month or year whei'eoQ he or they received the same. It has been said (e), that the whole intention of this pro- vision w T as to secure purchasers, under a second execution, against any former writ which might have been delivered to the sheriff. But a purchaser under a second execution was always protected against any prior writ of which he had no notice, by the rule of law, independently of the statute of 'frauds (f) ; and th( dy given appears to be the ' correct one. It has been doubted whether the word " goods," in the (c) Houghton v. Rushley, Skm. Hutchinson v. Johnson, 1 Term. 257; and see Comb. 145 ; 2 Ventr. Rep, 731. 2J8, (/) See SrnaUcomb v. Bucking- - K d) 2Q Car. II. cap. 3. s. lC. ham, 1 Lord Raym. 251, Carth. (4 Per Ashniit J. in casu 4l9;.Payne v. Drcwe, 4 East. 623. act OJ PROTECTION FROM JUDGMENTS. 451 act referred to, extends to leaseholds ; and it appears by two opinions ( 1 ) published in Mr. Rigge's observations on registry, (1) Mr. Serjeant Hill's Opinion. " I incline to think that the judgment is a lien upon the estate. It would certainly be so, if Mr. K's house was a freehold : but I suppose it is only a leasehold for years ; and if so, I think it is a doubtful point whe- ther the judgment is a lien upon it ; but I incline to think it is. Before the statute of West. 2. 13lh Edw.I. 1. ch. 18. no subject could on a judg- ment have execution of the lands of the defendant against whom the judgment was obtained, except in some special cases (2 Inst. 394) ; but by that statute, the plaintiff may elect to have a writ of execution of a moiety of the defendant's lands ; and though the statute mentions lands generally, yet it extends to land in which the defendant has a term for years, 2 Inst. 3gt>, 1. 1. 2. And it is at the option of the plaintiff either to have the term sold; or to have it extended, 8 Co. 171. The form of the writ of execution founded on this statute, is a command to the she- riff, " to cause to be delivered to the plaintiff, at a reasonable price or extent, a moiety of the defendant's lands and tenements in his bailiwick, whereof the defendant on such a day (being the day on which the judg- ment was given) was seised j to hold the said moiety to the said plain- tiff, &c." The word seised in the writ is not properly applicable to a leasehold for years, but still the authorities are that a lease for years may be extended on an elegit ; and those authorities have never been contra- dicted : consequently this estate of Mr. K.'s, though he has only a lease- hold, may be extended, pursuant to the command of the writ of elegit, if any should issue on the judgment, notwithstanding he should alien it before the writ issued ; because the command of the writ is to extend a moiety of all the lands he had on the day the judgment was given ; and this form h3$ continued since the statute of frauds, 1Q Car. II. c. 3. Yet the doubt I have arises on the ]6th section of that act, by which it is enacted, " that no writ of execution shall bind the propei ty of goods against whom such writ of execution is sued forth, but from the time such writ is delivered to the sheriff, under-sheriff, or coroners, to be exe- cuted/' A term for years is a chattel real, and sometimes comprehended under the word goods : and if it be so in that statute, then a bon'aJiJs sale before the writ of execution is delivered to the sheriff would be good Against the execution; and so was the opinion of the lord-keeper in the as2 ease 4\52 CF PROTECTION FROM JUDGMJ&NTS* registry, that Mr.serjeant Hill thought it did Hot include leascholds,but that they might be extended on awrit of elegit', and consequently were bound from the time the judgment was duly entered and doggeted ; and that, on the other hand, Mr. Butler thought the word " goods" did comprise leaseholds, which therefore were not bound until delivery to the sheriff of the writ of execution. It must be admitted, that a leasehold for years may be extended on an elegit, if it is in the possession of the de- base of an extent upon a statute I Vern. 204, and of the court in 2Vern. 300 ; and Chan. Pre. 125 ; in the case of an extent at the suit of the crown, which in most cases reaches farther than the subject's execution. But these are not the same with an etegil on the statute West. l 2, and therefore not in point ; for in the case of an execution by Jieri facias, or any other execution only against goods, they, before the statute of frauds, related to the award of execution, 2 Rol. Abr. 157 ; and since the statute in the subject's case, only to the time the writ is delivered to the sheriff to be executed : but the elegit relates to the judgment, as appears by many authorities, and the Form of the writ ; and therefore T incline to think that the statute has not altered the law with respect to an elegit, founded on the statute West. 2 j but that the same still relates to the judgment, if doggeted as recmired by statutes later than any of the above. « G.HIL'L, " Line. Inn, July 27, 17.QO." Mr. Erxi fea's Opinion. " By the 29th Car. II. c. 3, s. 18, it is enacted, ' that no writ of 'fieri facias, or other writ of execution, shali bird the property good* of the person agaii^t Whom such writ of execution shall be sued, but from the time such execution shall be delivered to the sheriff to be exe' cuted." In the present caie, therefore, if the writ of execution was not delivered to the sheriff before the assignment to J. K. the properly was' not subject to it. Whether the writ was or was not delivered to the sheriff, may be known by searching at the sheriffs office. " CHARLES BUTLER, " Ligc. Inn. 12th April, 1701;" fendant OF PROTECTION FROM JUDGMENTS. 4.53 fendant at the time execution is awarded (Vj. It was, however, settled long before the statute of Charles II. that a sale of chattels was good after judgment, although not utter execution awarded (A) ; so that it is evident, that as to a term of years the command to the sheriff in an elegit does not over-reach the sale in the same manner as it does in the case of a freehold estate. This distinction appears to have been expressly taken in Fleetwood's case. With respect to judgments, the statute of frauds hath two branches : the one relating to judgments against real estate ; the other relating to executions on judgments against goods or personal estate. The act being a remedial one, the mode of discovering whether leaseholds are bound by the last pro- vision, seems to be, first, an enquiry whether purchasers of leaseholds were within the mischief the legislature intended to guard against ; and if they were, then an enquiry whe- ther the word " goods'* is sufficiently comprehensive to effectuate the intention of the act. First then, the act was passed for the quiet and in favour of purchasers ; and admitting that least-holds were only bound from the award of execution, it is evident that the first provision in the act does not apply to leaseholds j which are therefore clearly within the mischief intended to be guarded against by tbte second provision, as a sale of them is liable to be pyevturaed by a writ awarded in vacation, and tested in the preceding term ; and if we do not hold lease- holds to be within ihe operation of this branch of the act, (g) Sir Gerard Fleetwood's case, (//) Sir Gerard Fleetwood's case, 8 Co. 171 ; and see and consider g Co, I71 j and see 1 Fitz. Abr. tit. 31 Ass. p. 6; 38 Ass. p. 4$ and Execution, pi. 10« ; 2 Ro. Abr. see 2 Inst. 3Q5 ; Gilb. \i\ 33, 35. 157 ; Wilson v. Wormo!, Godb. The authpr fell into an error in this 101, pi. 220 ; Shirley v. Watts, 3 fespect in the first edition. Atk. 200. 2g$ the 454? OF PROTECTION FROM JUDGMENT*. the consequence is, that purchasers of them are still ob- noxious to the danger the statute intended to prevent. Assuming that leaseholds are within the meaning, it remains to inquire, whether they are within the words of the act. This depends upon the construction which the word fi goods," as used in the act, ought to receive. Biens bona, sir Edward Coke says (*), includes all chat- tels as well real as personal. Chattels, he adds, is a French word, and signifies goods, which by a word of art we call catalla. And this, as sir Wm. Blackstone. observes (/*), is true, if understood of the Norman dialect, for in the Grand Ctmstumier (/) we find the word chattels used and set in opposition to a fief or feud, so that not only goods, but whatever was not a feud, were accounted chattels ; and the learned commentator is of opinion, that our law adopts it in the same large, extended, negative sense. This opinion appears to be correct, if confined to the word chattels ; but it must not be extended fo the word goods, which, in our law, certainly has a more confined operation. By the civil law, however, lona includes all chattels, as well personal as real ; and therefore a general bequest of all one's goods will pass a leasehold estate (m), because the civil law guides the construction of hequests of person^ alty ; but it seems very clear, that in an assignment, which must be construed according to the rules of the common law, a leasehold estate will not pass under the word goods (3). (i) Co. Litt. 118, b. (»») Portman v. Willis, Cro. (k) 2 Coram. 385, 7th edit. Eliz. 3S6\ (/) C 87. It (3) This was decided in 4 Ed. VI. but in Portman v. Willis, ubi. sup^ CJawdy \vas of opinion, against Pcpharu and Clench, that a grant of OF PROTECTION FROM JUDGMENTS. 455 It is evident, therefore, that in some cases that word will include leaseholds, while in others it will not ; and the true rule to discover what sense was affixed to it in the statute ol frauds, seems to be, an investigation of the meaning usually attached to the word in acts of parliament passed before that statute. By the statute of West. 2, (n), it is enacted, that where, upon the death of any person intestate and indebted, the goods (bona) shall come to the ordinary, he shall be bound to pay the debts as far as the goods (bona) will extend, in the like manner as executors would have been if he had left a will. And in the 31 Edw. III. f» for the commit- ment of administration, the word goods (biens) only is used. In both these statutes, therefore, the word goods was considered as denoting personalty in general. It may indeed be objected, that terms for years were not then much in use : but allowing this, later acts place the point still more out of doubt. Thus the 21 Hen. VIII. c. 5, after directing how admi- nistration shall be granted in certain cases of the " goods" of intestates, contains a direction, that surety shall be taken of the administrators for the administration of the " goods, chattels, and debts," which they should be authorised to minister (/;). («) 13 Ed. I. c. 19. (P) And se « 43 E15? ' c " S ' (o) Stai. I. c 11. omnia bona molilia et immobilia, would pass lenses for years ; and so .ie said would a grant of omnia bona in general ;. for 30 H. VI. 35, v. as, I a man had rent for years an I grant d omnia bona sua; and it was 1 that this rent passed ; and he vouched 4 3 fen. IV. as another author- ity, because an executor shall have an ejecthneftrmasby the equity ol the statute of i Ed. III. de bonis asportatis. On examination it appears, that the authorities cited by Gawdy do not apply. The grant was of omnia bona etcataUa, tarn viva qua:n mortua ; arid in the statute of 4 Edw. III. the words biens et cha.teux are used. r> r* >. In 456 OF PROTECTION FROM JUDGMENTS. In ih'iSf statute the word "goods" was used as synoni- mous to " goods, chattels, and debts :" and the point seems placed beyond controversy by the same sense being attached to that word in a statute passed but a few years previously to that upon which the present question arises. The statute to which I allude, is the 22 and 23 Car. II. c. 10, which, after giving power to commit administration of the " goods" of intestates, directs bonds to be taken, with a condition for (amongst other things) making an inventory of the " goods, chattels, and credits" of the de- ceased ; which words are used throughout the condition. In fact, the words *' goods," fi goods, chattels, and credits," and '* estate," have one and the same meaning attached to them throughout the statute (q). As this point is of very great importance in practice, and the opinion of so great an authority as serjeant Hill would perpetually lead to disputes on this subject, it is hoped this minute (and I fear tedious) investigation will not be unac- ceptable to the learned reader. It remains to remark, that lord Hardwicke seems to have considered leaseholds as within the operation of the 16th section of the statute of frauds, and consequently as not bound until the delivery of the writ of execution to the sheriff. For in Burdon v. Kennedy (r), his lordship said, where an execution by elegit, or fieri facias, is lodged in a sheriff's hajids, it binds goods from that time, except in the case of the crown, and a leasehold estate is also affected from that time ; and if the debtor, subsequent to this, makes an assignment of the leasehold estate, the judgment creditor need nut bring a suit in ejectment to come at the leasehold (q) And see 2Q Car. II. c. 3. (r) 3 Atk. 739 ; and see Jeane§ S. 25, y, Wilkius, 1 Ves. 1Q5. estate. OF PROTECTION FROM UNREGISTERED DEEDS, &C. 4o? estate, by setting aside the assignment, but may proceed at law to sell the term, and the vendee, who is generally a friend of the plaintiff, will be entitled at law to the posses- don, notwithstanding such assignment (4). There is still another provision in the act of Charles II. in favour of purchasers. It is enacted, that the day of the month and year of the enrolment of the recognizances shall be set down in the margin of the roll; and that no recogni- zance shall bind any lands, &c. in the hands of any pur- chaser, honafide and for valuable consideration, but from the time of such enrolment {s\ By several acts of parliament all deeds and wills con- cerning estates within the north (J), east (u), or west (a?) ridings of the county of York ; or within the town and county of Kingston upon Hull (y) ; or within the county of Middlesex (z), are directed to be registered. And it is enacted, that all such deeds shall be adjudged fraudulent and void against any subsequent purchaser, or mortgagee for valuable consideration ; unless a memorial thereof be registered in the manner thereby prescribed, be- fore the registering of the memorial of the deed under which such subsequent purchaser, or mortgagee, shall cl.dtn. (s) 20Cha. II. c. 3, s. IS. (x) 2 and 3 Ann, c. 4. 5 Ann, (0 8 Geo. II. c. 6. c 18. (y) 6 Aim, c. 35- (a) 6 Ann, c. 35. (») / Ann, c. 20. (4) Note, if the judgment creditor tamper with the sheriff to have the estate sold at an under value, equity will relieve against the sale. Gfascoigae v. Stut, 3 Cha, Rep. 32. And *5S OF PROTECTION FROM And that all devises by will shall be adjudged fraudulent and void against subsequent purchasers or mortgagees ; unless a memorial of such will be registered within the space of six months after the death of the devisor, or testa* trix, dying within Great Britain ; or within the space of three years after his or her death, dying upon the sea, or in parts beyond the seas.. This provision is the same in all the acts, but different provisions are made by the several acts in the case of wills contested or suppressed. If the devisee of an estate within any of the three ridings of the county of York, or the town of Kingston upon Hull, be disabled to exhibit a memorial within the time limited, by the suppression of the will, or other inevitable difficulty, then a memorial entered of such impediment within six months after the death of such devisor or testatrix, who shall die within Great Britain, or within three years after the decease of such person who shall die upon the sea, or beyond the seas ; and a memorial of such will, also registered within six months after the removal of such impediment, will protect the devisees against any purchaser subsequently to the will. But as to estates in the north riding of York it is enacted, that in case of the concealment or suppression of any wilt or devise, any purchaser shall not be disturbed or defeated in his purchase, unless the will be actually registered within three years after the death of the devisor. As to estates in the county of Middlesex, it is pro- vided, that an entry of the impediment within two years after the death of any devisor or testatrix who shall die in Great Britain, or within four years after the decease of such person who shall die upon the sea or beyond the seas ; and the registry of a memorial of the will within six months after the removal of the impediment shall be good. But m UNREGISTERED DEEDS, &C. 459 no concealed will is to affect a purchaser, unless it be regis, tered within five years after the death of the testator. None of the acts extend to copyhold estates, or to .eases a t rack-rents, or not exceeding 21 years, where the actual poss, ssion and occupation go along with the lease. And the act fo. the county of Middlesex does not extend to any of the chambers in Serjeants Inn, the Inns of Court, or Inns ° f S, the same acts further provided, that nc .judg- ment, statute, or recognisance (other than such as shall be entered into in the name and upon the proper account of the Umg his heirs and successors) shall bind any such estates a afofesaid, but only from the time that a memonal thereof shall be duly entered. This clause is general as to estates in M.dd.esex; but „ to estates in the east and west riding* of York and Lgston-upon-Hull, it is enacted, that the reg.stry of Sments, statutes, or recognizances withm th.rty day 2 the acknowledging or signing thereof shaU bmd all t lands of the defendant at the. time of sue ac now .edgment or signing- and ^-^ovtsmn ^madea to estates in the north riding of \ ork, oniy limited to twenty days. In commenting on these important acts, I propose to con- rider, first, the memorial required by the acts; secondly, in the acts; and fourthly, the equitable doctrme on these statutes in regard to notice. Id first, every memorial of a deed or conveyance » dhS by the acts to be under the hand and seal of some o one of the grantees, his or their heirs, executors, or ad- ministrators, guardians, or trustees, attested by two w, - .esses, o,e .hereof t, he one of the **«* to the e,eu 460 OF PROTECTION I' ROM tion ef the deed; which witness shall, upon his cath before the register prove the signing and sealing of the memorial, .if id the execution of the deed mentioned in such memorial* A line is by mistake omitted in the act for the north riding of York; the memorial is required to be attested " by two witnesses to the execution of such deed, which witness" is directed to prove the execution of the memorial and the deed. It is evident, that the words in the other acts " one whereof to be one of the witnesses" are omitted after the word " witnesses," and before the words " to the execution of such deed." By this act the person signing the memorial may acknowledge it, and the execution of the deed. The intention of the legislature clearly was, that no deed should be memorialized, the execution of which by the granting party was not proved on oath by one of the wit- nesses to it. It is however observed, in the Observations on Registry (a), that if a considerable time has elapsed from the date of a deed intended to be registered, and all the witnesses are dead, or the testimony otany of them not easily obtained, no further delay need originate from either cause, as the re-execution of such deed by any one of the parties in the presence of a new witness will be sufficient to effectuate the registry. Now there seems great reason to contend, that such a memorial would be wholly inoperative under the registering acts. A witness to the execution of the deed, intended to be registered, was required for the purpose of authenticating the original execution of the deeds, and to prevent forged deeds being put on the register (b). The requisition of the {a) RiggeoaReg. p. 76, n. (d). (J) See Hobhouse v. Hamilton, Precedent, No. 32, p. 143. 1 Schoales and Lefroy, 20J. UNREGISTERED DEEDS, &C. 461 act is not even substantially complied with by an execution, which is totally inoperative, and which, if it had any opera- tion, would be a fraud upon the revenue. It seems that the direction in the act, by which the heirs, executors, or administrators, guardians, or trustees of some or one of the grantees, are authorised to execute the memo- rial, has been thought not to convey a very clear idea of the manner in which the registry by such representative is to be effected ; and therefore the Register requires the instru- ment to be registered, to be sealed and delivered by the person requiring the registry, as if he was a party in his own right (Q. t m But it seems quite clear that no such execution is neces- sary. The representative need execute the memorial only in the presence of two witnesses, " one whereof to be one of the witnesses to the execution of such deed or conveyance," which witness will then, according to the very words of the act, prove the signing and sealing of the memorial, and the execution of the deed or conveyance mentioned in such memorial. So it seems, that where a lease or any other deed is from a corporation who of course affix merely a seal without any signature, the lessee is required to execute the deed for the conveniency of registry (c). This practice is open to the observation just made ; for it is clear, upon principle as well as authority (d), that a cor- poration affixing their seal is tantamount to a signing m& sealing by an individual. And it is to be observed, that in this and the preceding case, it is indispensably requisite that one of the witnesses to the original execution of the instru- (b) Rigge, 74 n. (b). Precedent, (d) Doe v. Hogg, 1 New. Rep. No. .31, p. 142. 306. («) Id. 106, 107, ment 462 OF PROTECTION FROM ment Intended to be memorialized, should be a witness to the memorial. It appears also that the registers are in the habit of re- ceiving and registering certificates of writs of execution (upra. execution UNREGISTERED DEEDS, &C. 463 execution of a power, the interest limited by it, arises under the deed creating the power. But to this it was answered, that the deed was within the mischief intended to be guarded against by the act, as a purchaser could not otherwise dis- cover whether the power was exercised ; and it was accord- ingly decreed, that deeds of appointment must be regis- tered (/). The other question was, whether the non-registry of a lease was cured by registering an assignment in which the lease was recited ; and it was very properly decided, that it was not (j?n) ; for the intention of the legislature was, that the register should contain such information as might ena- ble purchasers to ascertain, whether estates were or were not subject to incumbrances ; for which purpose it is necessary, that the register should contain a regular chain of title. If one link is broken, the object of the legislature is de- feated. Thirdly, we come to the exceptions in the act. The first exception is of copyhold estates. This excep- tion is very general ; and it seems clear, that no deed rela- ting to a copyhold estate need be registered. No effectual Hen can be created on the land without its appearing on the court rolls. A lease indeed once created by license is a common law interest, and may be assigned without the assignment appearing in the court books ; but this is a very inconsiderable mischief, as the license must appear on the court rolls. Indeed in some few manors copyhold tenants may lease without license, and this is a good custom. But still in all cases, although the interest granted by the lease is (/) Scrafton v. Quincey, 2 Ves. (to) Honeycomb v. Waldron, 413, 2 Str. 1064. a common 4G4 CF PROTECTION FROM a common law interest:, yet the estate remains copyhold, and is within the exception in the act. The next exception is of leases at rack-rent. It frequently happens, that a lease originally at rack-rent becomes of some value in the course of a few years. When the lease is sold for a valuable consideration, the question is, whether the lease continues within the exception, or ought to be registered (n). On one side it may be urged, that the pro- perty being valuable, is within the spirit of the statutes, as a purchaser of it might otherwise be defeated by a prior se- cret assignment ; but the next exception shews, that the legislature did not intend eyery species of property to be subject to the acts, although it is a saleable interest. And it may be insisted, that the lease at the time it was granted, being within the exception, cannot be affected by any mat- ter, ex post facto, for then one day it may be within the ex- ception, and another it may be subject to the directions of •the act, just as the property may rise or fall in value. Per- haps, therefore, the better opinion is, that a lease originally at rack-rent, and within the exception in the acts, continues so during the term, although it may become a valuable and saleable interest. The next exception is of leases not exceeding 21 years, where the actual possession and occupation go along with the lease. And it has been said, that where such a lease becomes assigned for a valuable consideration, its registry ought always to be recommended, and particularly when such assignment is by way of mortgage : for then it is clearly out of the exemption, the possession and occupa- tion (mentioned conjunctively) being divided (o). The latter part of this observation is correct ; and it is always usual in practice to require a lease, not exceeding 21 years, to be (n) Sec Rigge, 88, n. (o) Rigge, S8 fl. (o). registered UNREGISTERED bE££)S,.&C. 46J registered where it is assigned by way of mortgage. And indeed the acts seem cautiously worded, so as not to exempt the lease in that event. But it is impossible to contend, that the assignment of the lease for a valuable considera- tion can take it out of the exception. It stiil remains Clearly within, as well the spirit as the words of the excep- tion. While the possession and occupation go along with the lease no one can be deceived, and the lease still conti- nues " a lease not exceeding 21 years, where the possession and occupation go along with the lease." The last exception requiring notice is, of the chambers in Serjeants-Inn, which is certainly within the City ; and it therefore seems to have been doubted, whether the lepis- lature did not intend the act of 7 Ann to include in its operation the whole metropolis, except the borough of Southwark (.p). But there is not the least ground for this doubt. It is not surprising that the mistake should have been made, and it is impossible to argue, that such an error shall make an act passed relating to lands " in the county of Middlesex," upon the petition of the " justices of the peace, and grand jury of the county of Middlesex," extend to the dty of London. This construction would invalidate some thousands of leases, as the general opinion of the profession is, that the act dcea not extend to the city. The fourth division of this subject remains to be discussed. The questions on this head are simply three, viz. First, Whether a person having the legal estate, as a mortgagee, and advancing more money without notice of a second mortgage duly registered, shall hold against the (p) Itigge, S3, n. (p), 2 n second 466 OF PROTECTION FROM second mortgagee, till he is satisfied, all the money he has advanced ? And it hath been adjudged that he shall (./)(1). This decision was made upon this ground : that though the statute avoids deeds not registered, as against purchasers, yet it gives no greater efficacy to deeds that are registered than they had before ; and the constant rule of equity is, that if a/ first mortgagee lends a further sum of money without notice of the second mortgage, his whole 1 money shall be paid in the first place. Indeed this rule ought to be more inflexible in a register, than in any other county ; because, by the establishment of the register, the second mortgagee hath the best possible means of discovering whether the estate is incumbered, and who the incumbrancer is ; and if he has not searched the register, or, having searched the register, has neglected, in compliance with the general rule of equity, to give the prior incumbrancer notice of the. second mortgage, he is not a proper object for the extraordinary protection of a court of equity : for even the rule of law is, vigilantibus nan dormi* eniibus servat lex* This principle extends to a mortgagor paying off mort- gage-money to a mortgagee, without notice of his having transferred the mortgage ; which is a valid payment, al- though the transfer ot the mortgage is duly registered (/•)• (■?) Bedford v. Backhouse, 2 Eq. Ca. Ah:, ik^, pi. 7- Ca. Abr. Gl5. pi. 12, 2 Kel iuCha. (r) Williams v. Sorrell, 4 Ves. 5; Wrightion v. Hudson, 2 Eq. Jun.3^o. (1) Lord Redesdale has determined differently on the Irish registering aet, because the act declares that every deed shall be effectual according to the priority of the time of -registry There appears ta have been con- siderable difficulty in the way of this decision. Bttshell v. Bushell, La- iouche ?, lord Du^any, 1 Schofttea axul Lefroy's Rep. oo, 13/. And UNREGISTERED DEEDS, &C. 467 And it is conceived that the rule would apply to a mort« gagee lending a further sum of money to the mortgagor, without notice of the sale of the equity of the redemption : and therefore a purchaser of an equity of redemption of an estate should, immediately after the sale, give notice of it to the mortgagee, although the estate be situate in a register county, and his conveyance be duly registered. And here it may be remarked, that a purchaser should not in any case take an assignment of a mortgage, without the privity of the mortgagor as to the sum really due ; for although it undoubtedly is not necessary to give notice- to the mortgagor, that the mortgage has been assigned (s), yet the assignee takes, subject to the account between the mort- gagor and mortgagee, although no receipt be indorsed on the mortgage deed for any part of the mortgage-money which has been actually paid oft' (t). The second question is, whether a person purchasing v. -knout notice, and obtaining the legal estate, shall be pre- judiced by a prior equitable incumbrance, which was duly registered previously to his purchase ? And it was decided by lord Camden, m the case of Morecock v. Dickens (?/). that he shall not. This decision seems hardly reconcilable with the general principles of equity j It is manifest that a purchaser must search the register, if he intend to be safe ; and it would not, perhaps, be too violent a presumption that every purchaser does search the register, especially when we advert to the very slight circumstances which are deemed constructive notice to a purchaser (*■), The contrary doctrine evidently (s) See 9 Vps. Jan. 410. (a) Ambl. 678. (0 Matthews v. Wall wyn, 4 (f } See post, ch.17- Ves. Jun. 118 ; see Q VesJun, 2$4. 2 K 2 lead$ 468 OP PROTECTION FROM leads to perjury, which the stature intended to prevent (//)- If upon searching the register, a purchaser should meet with equitable incumbrances only, he might, upon the authority of lord Camden's decision, purchase the estate, and then deny notice ; and there are very few cases in which it could be proved that he actually did search the register. But the case of Morecock v. Dickens would not per- haps be deemed an -authority. Lord Camden seemed to make his decree (in opposition to his own opinion) because much property had been settled, and conveyances had pro- ceeded, on the ground of the determination in Bedford, v. Backhouse (:.). A thousand neglects, he said, had been occasioned by that determination, and therefore he could not take upon himself to alter it. He added, that if it was a new case, he should have had his doubts ; but the point was closed by that determination, which had betn acqui- esced in eve- since. Now lord Camden's decision can only be considered an authority, so far as it is authorised by the case upon which he professed to ground his opinion : and it seems clear, that the case of Bedford v. Backhouse was not an authority in point ; and that the case before his lordship was, in every respect, a new question. In the case of Bedford v. Backhouse, by the known and settled rule of equity, the first mortgagee was entitled to hold against the second mortgagee, unless he had notice ; and as the second mortgagee had it in his power to give such notice, and neglected doing so, the decision seems perfectly proper. But in the case before lord Camden, the prior in- cumbrancer had no means whatever to acquaint the pur- chaser with the incumbrance, while he himself had it in his power to ascertain whether the estate was incumbered. (y) SeeHine v.Dodd, 2 Atk. (») Supra. 2T5. Where UNREGISTERED DEEDS, &C 469 Where the neglect is the purchaser's, who else should bear the loss occasioned by that neglect? Besides it seems clear, that no person, not being seised of the legal 'estate, could ever have been induced to neglect searching the register on the authority of any of the cases on this subject, much less on that of Bedford v. Backhouse, which could not, one should think, be so misconstrued as to sanction or lead to such a neglect. Since these observations were published, lord Redesdale's decisions in Ireland have appeared. There are two cases in which the point in question was discussed, although it was not necessary to decide it ; but Ion Redesdale expressed his opinion to be that the registry tf an equitable incumbrance was not notice to any subsequent purchaser. His lordship admitted, that if a man seiches the register, he will be deemed to have notice, *"* that no person thinks of pur- chasing an estate with ^ * s notice of that instrument; if a fact, it is notice of that fact («). So if it be notice, it must be nor tice, whethe: the deed be duly registered or not ; it may be undulv registered, and if it be so, the act does not give it a preference, and thus this construction would avoid all the provisionsm the act for complying with its requisites (b). Now athough one cannot but feel the weight of any ob- servation of lord Redesdale's on a point of this nature, yet these d> not appear to be conclusive. The distinction en- (a) \ashell v. Bushel], 2 Sclw> iles (b) Latouche v. lord Dunsaiiy, ar4I>roy*s Rep. 103. 1 Schoales and Lefroy, 15?. 2h3 deavoured •J-70 OF PROTECTION FROM deavoured to be established in the text, viz. between the cases where the purchaser has and where he has not the legal estate at the time of his purchase, was not discussed. Indeed it was unnecessary to discuss it with preference to the registering act for Ireland. Lord Redesdale's opinion, there- fore, was wholly extra-judicial. There can scarcely be any objection to the registry of a deed being deemed notice of all its contents, \vh en a purchaser can require the produc- tion of the deed before he completes the contract. Cer- tainly there appears to be great weight in the objection, that if the registry be of itself notice, it must be notice, al- though the deed be unddy registered. But this objection assumes what has never bten decided ; and it should seem that the courts might hold, wrhout any violation of principle, that a purchaser should not be leemed to have notice of an equitable incumbrance by the nib- e registry of it, unless it was duly registered, Why shoula equity interfere in fa- vour of an incumbrancer, when he h^ no t complied with the salutary requisitions of that very act i^on which he lays his foundation for relief? The reader is ren; n d e d that these observations are addressed to the case of a puxhaser not having the legal estate at the time of his contract And it js hardly necessary to say, that whatever private opimon may be entertained on this point, no one can be advised to rely on an equitable charge on an estate in a register county, although it is duly registered, and there is no rrior incum- brance on the register, The third and last question is, whether a person buying an estate with notice of a prior incumbrance not regstered, shall in equity be bound by such incumbrance, although he hath UNREGISTERED DEEDS, &C. 471 hath at law obtained a priority by registering bis de:\ls ? And it hath been holelen that he shall (c). This decision is perfectly consonant to the general prin- ciples of equity. The intention of the act was to secure subsequent purchasers and mortgagees against prior secret conveyances and fraudulent incumbrances ; and therefore where a person has notice of a prior conveyance, it is not a secret conveyance by which he can be prejudiced ; for he can be in no danger where he knows of another incum- brance ; because he might then have stopped his hand from proceeding, and therefore is not a person whom the statutes meant to relieve (d). It will occur to the learned reader, that although the prior purchaser would, in a case of this nature, be relieved against the subsequent sale, yet the legal estate will be vested in the subsequent purchaser by -force of the statute. From the foregoing decisions, it is evident that a pur- chaser may be bound by a deed, although not registered ; but it is equally clear, that it must be satisfactorily proved, that the person who registers the subsequent deed must have known exactly the situation of the persons having the prior deed ; and, knowing that, registered, in order to defraud them of that title he knew at the time was in them (e). Apparent fraud, or clear and undoubted notice, would be a proper ground of relief ; but suspicion of no- ( ould lose the money he had paid (m). On this statute it remains to observe, that a purchaser having notice of the vendor being a papist is immaterial, un- less it was given to him by the person taking advantage of the disability according to the act of Geo. I. Here, lastly, may be. mentioned the 4th section of the 14 Geo. II. c. c 20, for which the profession are indebted to the late Mr. Pigot, whereby, after reciting that by the de- (i)2Vo\. Gas. and Opin. 60 ; 210 ; Barnard, Rep. Cha. 455; and sec several other opinions, ib. Smith v. Read, 1 Atk. 526. $4 to 71. ("0 Harrison v. Southcote, 1 (/) Wildgoose v. Moore, 1 Atk. Atk. 528, 2Ves.380. 5 \~ 2 v c -, ?,<.)2 i cited ; iee 2 Atk, • fault IN RECOVERIES. 475 fault or neglect of persons employed in suffering common recoveries, it has happened, and may happen, that such recoveries -are not entered on record, whereby purchasers for a valuable consideration may be defeated of their just rights: u It is enacted, that where any person or persons hath, or have purchased, or shall purchase for a valuable consideration, any estate or estates, in lands, tenements, or hereditaments, whereof a recovery or recoveries is, are, or were necessary to be suffered, in order to complete the title, such person and persons, and all claiming under him, her, or them, having been in possession of the purchased estate or estates, from the time cf mu h v>urchase, shall and may, after the end of 20 years from the time of such pur- chase, produce in evidence the deed or deeds, making a tenant to the writ or writs qf entry, or other writs for suffer- ing a common recovery or recoveries, and declaring the uses of a recovery or recoveries, and the deed or deeds so produced (the execution thereof being duly proved) shall, in all courts of law and equity, be deemed and taken as a good and sufficient evidence for such purchaser and purcha- sers, and those claiming under him, her, or them, that such recovery or recoveries was or were duly suffered and perfected, according to the purport of such deed or deeds, in case no record can be found of such recovery or recove- ries, or the same shall appear not to be regularly entered of record : provided always that the person or persons making such deed or deeds as aforesaid, and declaring the uses of a common recovery or recoveries, had a sufficient estate and power to make a tenant to such writ or writs as aforesaid, and to suffer such common recoverv or recoveries." With respect to the general operation of statutes passed in favour of purchasers, it may be laid down as a rule, that eauity will not permit them to be taken advantage of where the 476 OF EQUITABLE RELI£f the purchasers have notice of the incumbrance ur d< which the statutes were intended to guard them against, because qui scit se decepi rum decipitur, and the resolutions respecting voluntary settlements must be considered anoma- lous. Thus have we taken a cursory view of the several statutes passed for the relief or protection of purchasers. The re- lief and protection afforded to purchasers by the rules of equity, form the next branch of our enquiry. A court of equity acts upon the conscience, and as it is impossible to attach any demand upon the conscience of a man who has purchased for a valuable consideration, bona Jidc, and ivithout notice of any claim on the estate, such a man is entitled to the peculiar favour and protection of a court of equity. And it has been laid down as a general rule, that a pur* chaser bonajide, and for a valuable consideration, without notice of any defect in his title at the time he made his pur- chase, may buy, or get in a statute, mortgage, or any other incumbrance (and that, al (hough it is satisfied) ; and if he can defend himself at law by any such incumbrance, his adversary shall never be aided in a court of equity for setting aside such incumbrance : for equity will not disarm a purchaser, but assist him ; and precedents of this nature are very ancient and numerous, viz. where the court hath refused to give any assistance against a purchaser, either to an heir, or to a vendor, or to the fatherless, or to credit tors, or even to one purchaser against another (n). (n) Basset v. Nosworthy, Finch, 208: Hithcox v. Sedgwick; 2 102 - 7 Jerrard v. Saunders, 2 Ves. Vern. 156. Jun. 454 ; see Anon. 2 Cha. Ca. And - AND PROTECTION. *77 And the favour and protection of a court of equity is ex- tended to a purchaser, not only where he has a prior legal estate, but also where he has abetter right to call for the le- gal 'estate than any other person (o). ' A purchaser cannot, however, protect himself by taking a. conveyance or assignment of a legal estate from a trustee, in whom it was vested upon express trusts ( p). The court of Chancery will not supersede a commission of bankruptcy even for fraud, where there has been pur- chasers under it (q). So equity will not relieve against a bona fide purchaser without notice, although the remedy be gone by accident (r) ; nor will it compel him to disco- ver any writings which may weaken his title (s) ; or take any advantage from him by which he may ^protect himself at law, or obtain terms of his antagonist ft); neither will equity give any person an advantage over (a) a purchaser, or any assistance against him (x) ; and his having taken a collateral security for the title will not make his case worse (j/), unless the purchase by the vendor was frauds v ,) See 2 Vera. 000 ; Willough- Abr. 333, pi. 54 ; Millard's .case, by v. WiUoughby, 1 Term Rep. 2 Freem. 43 ; sir John Burlace v. 763 3 Blake v. sir Edward Hun- Cook, 2 Freem. 24 ; Jerrard y. gerford, Prec. Cha. 158 ; Charlton Saunders, 2 Ves. Jun. 454. v. Low, 3 P.Wins. 328. (0 Walwyim v. Ue,y Ves Jun. (p) Saunders v. Dehew, 2 Vern. 24. 371 , 2 Freem. 123. («0 BechinaB v. Arnold, 1 Vern. {q) Ex parte Edwards, 10 Ves. 354. j^ n 104 (*) See Graham v. Graham, i (r)Har.vyv. Woodhouse, Sel. Ves. 262. ' Cta. Ca. 80 ; Bell v. Cundal, Ambl. (v) Lowther v. Carleton, Forest. Wlm 187. S. C. MS. j see, however, (s) Bishop of Worcester v. Par- White v. Stringer, 2 Lev. 105 ; ker, 2 Vern. 255 ; Hall v. Ad- Jennings v. Selleck, 1 Vern. 467. &m$on, 'i, Vern. 463 ; I E^. Ca. lent ; 47S OF ICUlTABr.F RELIEF lent : in which case it would have considerable weight with a court of equity (:,). The rules on this subject have gone so far, that a pur- chaser bona fide for valuable consideration, and without notice, has been allowed to take advantage of a deed which he stole out o'i a window by means of a ladder {<£) ; and of a deed obtained by a third person without consideration, and by fraud (A Equity will relieve a bond fide purchaser without notice, from ancient statutes, if there be no direct proof on eithei side, and will decree them to be cancelled (c . And this rule extends to mortgages, and all incumbran- ces which have Iain dormant for a long time, and no de- mand made in respect thereof (el). So equity will relieve a purchaser for valuable considera- tion, against a defective execution of a power, in the same manner as he will be relieved against a defective surrender of copyholds (e). But if a devisee, having an estate for life, with a power to dispose of the inheritance by u'ill, sell the estate in his life- (-..) How v. Weldon, 2 Ves. 516. (a) See a case i ited in i ■ v. Deligue, 2 Freera. 123 ; and Siddea v. CbarneHsj Bi andseeFagg's case, cited I 52, and reported in J Cha. Ca. 6S ; nomine Sherly v. Fagg, where the circumstance of theft does not appear. U) Harcouu v. Kn >wei, 2 fern. \5Q, cited. (c) Burgh v. Wolfj Tath. 22 Smith v. Rosew-i., \l\d. 247 ; and tee U & 224. (.A Sec Abdy v. Loveday, Finch, 250j Sibson v. Fletcher, 1 Chi. Rep. 32. (e) Fide infra; and see Chap- man v. Gibson, 3 Bro. C. C. 22), (i) Lord Bravhroke v. Tnskip. C.C. "07, n. 5 Clare v. earl of Bed- (k) Hobs v. Norton, 2 Cha. Ca. ford, 13 Vin. 536. 128 ; Harming v. Ferrers, 1 Eq. (n) Pearson v. Morgan, 2 Bro. Ca. Abr. 350, pi. 10; and see 1 C.C.3S8;* see also Teasdale v, Freem. 310. Teasdale, Sel. Cha. Ca. 50 ; but (/) Savage v. Foster, Mod. observe the circumstances of that 35 5 and see Evans v. Bicknell, 6 case. Ves. .Tun. 174. (o) Supra, p. 8, g. (w) Watts v. CresweH, 9 Vin. (p) Burrowes v. Lock, 10 Ves, 41.3, Mod. 38, 00, 07, 4 Bro. Jan. 470, supra, p. 5. (3) Sed qu. this- as a general rule, unless there be fraud? See Hay- craft v. Creaky, 2 Enst, 02 > Tappv. Lee, 3 Bos. and Bull. 367. notice Aftfi PROTECTION. 481 But a person having an incumbrance upon an estate, is not bound to give notice of it to any person whom he knows is in treaty for the purchase of the estate (7). If a purchaser take a defective conveyance from the ven- dor, equity will compel the vendor and his heirs, and all other persons claiming under him by act of law, as assig- nees of a bankrupt, although without notice, and even per- sons claiming as purchasers for valuable consideration, if with notice, to make good the conveyance (r). So, a purchaser by defective conveyance will be relieved against persons who did not consider the land as their origi- nal, or primary security j although they may have obtained an advantage at law (s)* And if a man sells an estate to which he has no, title, and after the conveyance acquires the title, he will be compelled to convey it to the purchaser* But it seems to have been considered, that this is a per- sonal equity, attaching on the conscience of the party, and not descending with the land ; and therefore, that if the vendor do not in his life-time confirm the title, and the es- tate descend to the heir at law, he will not be bound by his ancestor's contract [t). This opinion, however, seems open to much observa- tion, aiid cannot, it is conceived, be relied on, It has been said, that every person who takes an assign- ment of a chose in action, gives personal confidence that there is no lien upon it (u) f Upon the purchase of a clips? (/A Osbofn v. Lea, Q Mod. 96. and see Gilb, For. Rom. 228. (r) laques v. Huntley, I Cha. (I) Morse v. Fajkener, 1 Anstf, ftep. 5, cited ; Taylor v. Wheeler, 1 \. 2 Ycxn. 564; Morse v. Falkener, (a) Per lord Thurlow, in 9JSH 1 Anstr. 1 1 ; and see 2 Ves. Jun. Davies v. Austen, 1 Ves. Jun. }5 1 5 6 Ves. Jun. 745. 247- {s) Borgh v. Francis, Finch, 28; 2 1 in 482 OF EQUITABLE RELIEF in action, or of any equitable right, it is the invariable practice of the profession, to require notice of the sale to be given to the trustee. This of course binds his consci- ence. And notwithstanding the general rule, that with re- spect to equitable rights, qui prior est tempore potior est jure (xj, it seems probable that equity would prefer a sub- sequent purchaser, who had given a proper notice to the trustee, to a prior purchaser, who had neglected to do so. At least there is a case (y) which seems, in some measure, to authorise this conclusion. It may be laid down as a general rule, that a purchaser of a chose in action (%), or of any equitable title (a)^ must always abide by the case of the person from whom he buys. And yet, as we have seen (bj, there may be a case in which a purchaser of a chose in action, merely by sustaining that character, will be in a better situation than the person was of whom he bought. Where a purchaser, after the conveyance, or even be= fore the conveyance, in prospect of the articles for sale be- ing carried into execution, hath laid out money in lasting improvements, there are but few cases in which he will not be allowed for them, in case the aid of a court of equity is Required to relieve against the purchase [c). And even supposing the court to be uh willing to make (a) Sec Tourville v. Naisbj 3 P. Peterson v. Hickman, I Cba. Rep. VTms. 307} and see 2 P. Wms. 3, cited; Walley v. Whaltey, 1 4pS, Vern. 484 ; Savage v. Taylor, (w) Stanhope v. «arl Veruey, Forr. 234 j Baugh v. Price, 1 Vv T ils. JButler'sn. (1) to Co. Lilt. 2QO, b. 326 ; Exparte Hughes, 6 Ves. Jim. (z) Davies v. Austen, ubisufi. 617 ; Ex parte James, S Ves. Jur« (a) Whitfield v. Fausset, 1 Ves. 327 • Browne v. Odea, 1 Schoale's 397, and LefYov's, Rep. 115; and see (/ (A) .George v. Milbanke; 9 Yes. Mod. 412; Barnard. Cba. Rep. Jun. lpO. Supra, p. 437. 450, and 1 Vera. 15^ (c) Edlin v. Sattaly, 1 ]>v. lo"2 j aw AND PROTECTION. 483 an allowance for repairs and improvements, yet if an ac- count of rents and profits is to be taken, and the plaintiff will not accept the account, according to the value of the estate when the purchaser entered, but insists to have the account taken according to the present value, the court will compel him to make an allowance for repairs and im- provements (d ). If, however, a man has acted fraudulently, and is con- scious of a defect in his title, and with that conviction in his mind expends a sum of money in improvements, he is not entitled to avail himself of it. If a different rule should pre- vail, it would certainly, as lord Clare remarked, fully jus- tify a proposition, once stated at the bar of the court of Chancery in Ireland, that it was a common equity to im- prove the right owner out of the possession of his estate. However, if the sums be large, it may influence the court in decreeing an account from the time of filing the bill only, and not from the time of taking possession (e). Eut if the aid of a court of equity is not required, and P a person can recover the estate at law, equity, unless there be fraud, cannot, it is conceived, relieve the purchaser on account of money laid out in repairs and improvements j but must dismiss a bill for that purpose with costs (/;. It seems, that where two persons claim a reversion, to which only one can be entitled, a biH will lie to perpetuate testimony, although both of them are purchasers, or only (<^)Thomlinsonv. Smith, Finch, son v. Hickman, t Cha. Rep. 3, * ' cited. This case, probably, turned (e) Kenny v. Browne, 3 Ridgw. on the fraud in ihe wife standing by- while the improvements were (/)See Needier v. Wright, made, without giving notice of her Nels. Cha. Hep. 57 j but see Peter- claim to the tenant. 2 l 2 one 484. OF EQUITABLE RELIE* one of them is a purchaser (g) ; for such a bill calls for no discovery from the defendant, but merely prays to secure that testimony ; which might be had at that time, if the circumstances called for it (4). Thus have we seen how peculiarly a bonajide purchaser without notice is favoured and protected by equity. But if a purchaser has notice of any claim, or incumbrance, his conscience is affected ; and a court of equity will then not only refuse to interfere in his favour, but will assist the claimant, or incumbrancer, in establishing his claims against him : his having given a consideration will not avail him ; for, as lord Hardwicke observes, he throws away his money voluntarily, and of his own free will (h). And it may be laid down as a general rule, that a purchaser with notice is in equity bound to the same extent, and in the same manner as the person was of whom he purchased (/). A purchaser will be bound even at law, by a parol agree- ment for a lease not within the statute of frauds , the grant* 5ng o^ which constituted.paft of the consideration, although It be not mentioned in the agreement for purchase, and the rent be not fixed (k). (g) See lord Bursley v. Fitzhar- case, Lane, Go ; Gore v. Wigles- dinge, 6 Ves. Jun. 251. worth, cited, ibid. ; earl Brook v. (h) See 3 Atk. 238 ; Fitz. T. Bulkeley, 2 Ves. 498 ; Taylor v s Subpena, pi. 2. Stibbert, 2 Ves. Jun. 437. (i) Winged v. Lefebury, 2 Eq. (i) Dehn v. Cartwright, 4 East* Ca. Abr. 32, pi. 43 5 Jackson's 29. (4) But note, the point was not settled, and it does not seem o^utc clear what determination it would receive ; as retaining such a bill ia evidently granting relief against a purchaser, But, AND PROTECTION. 485 But where the consent of a person is necessary to the va- lidity of a lease agreed to be granted, and he purchases the inheritance, although with full notice, yet he will not be bound by the agreement. This was decided in a recent case, where a copyholder holding of the manor of Great Bromley, in Essex, (of which no one would, at present, wish to hold) granted a lease for one year, and so from year to year, if the lord would give a license. Hanson, the lord of this manor, pur- chased the reversion, and took a surrender in the name of Mr. Nunn. The terms of the demise were correctly stated in the abstract of the title ; the agreement contained an ex- ception of all subsisting leases (if any there were;, and in a deed from the vendors to the purchaser's trustee, there was an exception in the covenant against incumbrances, " of the several and respective subsisting lease or leases, or agreements for leases, under which the present tenants now hold the premises." After the purchase, Hanson gave notice to his trustee, that he would not grant any license to any copyholder of his manor to demise. Nunn, the trus- tee, then gave notice to Luffkin to quit, and brought an ejectment, in which he recovered, the court of King's- bench being of opinion, that the lease did not operate as a lease for 14 years (/), Then LufFkin filed a bill against Nunn and Hanson for a specific performance, on the ground of Hanson having notice of the lease, and its being except- ed in the contract, &c. A case was directed to the court of Common Pleas, who held first, that the lease was not a lease for 14 years ; and secondly, that the tenant had no remedy on the covenant in the lease for quiet enjoyment(?»). The cause then came on upon the equity reserved, and was fully argued by Romiliy for the plaintiff, and by Hollist (I) Doe v. LufFkin, 4 East,22l. (w) I New Rep. 1.53. 2 i 3 and 436 OF EQUITABLE RELIEF and Bosanquet for the defendants. And lord Eldon, after taking a day to consider, pronounced judgment shortly, that there was not equity sufficient to support the bill (»). This decision demands particular attention. It seems founded on great principles of equity, although the pur- chaser had voluntarily placed himself in a situation in which it was his interest to refuse his consent, without which the lease could not be sustained. We cannot fail to distinguish this case from those where a man, having a partial interest in an estate, agrees to grant a lease which his interest does not enable him to grant ; and then joins with the remainder man in selling the estate to a purchaser, with full notice of the agreement. There equity rightly holds the purchaser bound by the agreement. The vendor was bound to grant the lease, or to answer in damages for non-performance of the agreement ; and as the purchaser had notice of the con- tract, and takes an estate, which enables him to perform it, it is but just that he should be compelled to do so, were it only to exonerate the vendor from an action for breach of the contract. And on this ground it should seem, that if in the case of Luffkin v. Nunn, Luffkin could have re- covered on the covenant for quiet enjoyment, Hanson would have been compelled to perform the agreement. If this had not been lord Eldon's opinion, he would not have asked the court of Common Pleas, whether Luffkin could recover on the covenant for quiet enjoyment in case he were evicted? Although a purchaser with notice should, to strengthen his estate, levy a fine, and five years were to pass without a claim, yet the fine and non-claim would be inoperative : for as he purchased with notice, notwithstanding any consider («) Ch. 15th July, 1805= AND PROTECTION. 48>7 ration paid by him, he is but a trustee, and so the estate not being displaced, the fine cannot bar (o). But where it is a mere legal title, and a man has purcha- sed an estate which he sees himself has a defect upon the face of the deeds, vet the hue will be a bar, and not affect him with notice so as to make him a trustee for the person who had the right, because this would be carrying it much too far for the defect upon the face of the deeds is often the occasion of the fine being levied. This was laid down by lord Hardwicke (p). And it was resolved in Fermor 8 case (a), that if A. purchases land of B. and afterwards perceiving that B. had but defeasible title, and that C. had right to it, A. 'levies a fine with proclamations to a stranger, or takes a fine from another with proclamations, to the in- tent to bar the right of C. : this fine so levied by consent, Should bind, for nothing was done in this case which was not lawful. Notice before actual payment of all the 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. But if the conveyance be executed, and the money paid, a purchaser will not be affected by notice of an incumbrance, although a prior incumbrance, intended to be discharged, is not paid off (u). (0 ) i Vern. 14Q, 2 Atk. 631- I Cha. Ca.-54, 2 Freem. 175, pi. (p) 2 Atk. 031 J and see ih 235. £ (j) Jones v. Stanley, 2 Eq. Ca. (?)3Rep.79, a- Abr. 035, pi. 9. „, mi x' • v, <* P (A Wiw v Wisfe, 1 Atk. 384. (r) Toiu'ville v. iSaish, 3 r. {t) wibk v - 'ofe' Wins. 307 ; Story v. lord Windsor, («) Meynell v. Garraway, *di, ^ Atk. 630 i More v. Mayhow, Cha. Rep. 63, % I 4 And 488 OF EQUITABLE RELIEF And notice at the time of getting in a precedent incum- brance, as a protection against mesne charges, is not mate- rial, so that he had not notice at the time of the pur- chase (V). Indeed, after a conveyance is executed, it is seldom a purchaser thinks of procuring a prior legal estate, unless he discovers some incumbrance on the estate, against which he is anxious to protect himself. But although a purchaser hath notice of an equitable claim by which his conscience is affected, yet a person pur- chasing from him bonajide, and without notice of the right, will not be bound by it (y). So, on the other hand, a person with notice of an equit- able claim, may safely purchase of a person who bought bonajide, and without notice of it (z) ; although this cir- cumstance may influence the court with respect to costs (a) (5). This rule is consistent with the others ; it (x) Coekesv. Sherman, 2 Freem. 51, 1 Eq. Ca. Abr. 331, pi. 6; 13, and see 2 Ves. 574. Brandlyng v. Ord, 1 Atk. 571 ; (j) Ferrars v. Cherry, 2 Vern. Sweet v. Southcote, 2 Bro. C. C. 3S4; Mertins v. Joliffe, Ambl. 66, 2 Dick. 67 1 ; Lowther v. 313 ; Lowther v. Carleton, MS. Carleton, 2 Atk. 242 ; Andrew v. Barnard. Rep. Cha. 358; For- Wngley, 4 Bro. C. C. 125. rester, 187, 2 Atk. 242 ; see Pitts (a) Andrew v. Wrigley, 4 Bro. v. Edelph, Toth. 2S4. C. C. 125. (a) Harrison v. Forth, Prec.Cha. (5) In Grounds and Rudiments of Law and Equity, p. 275, Tit. 3/7, Lord Talbot is erroneously stated to have held in Lowther v. Carleton, that where a purchaser with notice conveys to another without notice, the second sale was vicious, because of the former conveyance being with notice, and the author of that book warmly espouses the doctrine. k AND PROTECTION. 489 is not in favour of the purchaser with notice, but of the purchaser without notice. If a different rule prevailed, he might not be able to sell the estate. It still remains to show what will be deemed sufficient no-> tice to a purchaser ; but the importance of this subject seems to demand a separate chapter. CHAP. ( 490 ) CHAPTER XVII. OF NOTICE. iNoTiCE is either actual, or constructive ; but there is no difference between actual and constructive notice in its con- sequences (a). I. Of actual notice little can be said. It requires no de- finition, and it need only be remarked, that, to constitute a binding notice, it must be given by a person interested in the property, and in the course of the treaty for the pur- chase. Vague reports from persons not interested in the property, will not affect the purchaser's conscience ; nor will he be bound by notice in a previous transaction which he may have forgotten. That vague reports from strangers are not notice, was decided in the case of Wildgoose v. Wayland (/'), where one man came to a person about to buy a house, and told him to take heed how he bought it, for the vendor had no- thing in it, but upon trust for A. ; and another person came to him, and told him it was not so, for the vendor wasseis- ed of the land absolutely. The information of the first proved correct, yet the purchaser was held not to have no- tice ; because such flying reports were many times fables, and not truth j and if it should be admitted for a sufficient (a) SeeAmbl. 626. (b) Goulds. 147, pi- $7 i and Cornwallis's case, Toth. 254. notice^ OF NOTICEc 491 notice, then the inheritance of every man might easily be slandered. And not only a mere assertion, that some other person claims a title is not sufficient, but, perhaps, a general claim is not sufficient to affect a purchaser with notice of a deed, of which he does not appear to have had knowledge (<•). However, no person could be advised to accept a title concerning which there were any such reports, or assertions, without having them elucidated ; because what one judge might think a flying, vague report, or a mere assertion, another might deem a good notice. For instance, in Fry v. Porter (c/i. Hale, C. B. in speaking of the point of notice in that case (which, however, did not relate to a purcha- ser), said, " here are several circunivStances that seem to shew there might be notice, and a public voice in the house, or an accidental intimation, &c. may possibly be sufficient notice." That the notice to the purchaser must be in the same transaction, seems to have been settled in a case (ej t upon the statute of charitable uses (J), the facts of which were : That land given to charitable uses was intended to be sold by act of parliament - y and when the bill was read in parlia- ment, it was declared, that the land was chargeable with a charitable use, and an offer was made to otherwise assure the charitable use. The bill, however, did not pass, and the land was afterwards sold to one of the members of the house, who spoke in the debate on the bill j yet this notice (c) See Jolland v. Stainbridge, 3 Duke, 64 ; and the cases infra, as Ves. Jun. 4/8. to notice to an agent ; see 1 Ves. (d) 1 Mod. 300j see Butcher Jun. 425. V. Stapely, 1 Vern. 363. (/) Supra, p. 443. (e) Sec East Greeiasted'a case, Was 492 OF NOTICE. was held not to be sufficient notice, because it was not known to the purchaser, except as a member of parliament. It may here be proper to mention, that an action on the case for slander of the vendor's title will not lie against a person for giving notice of his claim upon an estate, either by himself or his attorney, at a public auction, or to any person about to buy the estate ; although the sale be there- by prevented (g). Nor will the action lie against the attorney, although he do not deliver the precise message of his principal, provided it be to the same effect. II. Constructive notice, in its nature, is no more than evidence of notice, the presumptions of which are so violent that the court will not allow even of its being controvert- ed (A) : but it is difficult to say what will amount to con* structive notice. The following rules may, perhaps, assist the learned reader in his researches. 1. Notice to the counsel, attorney, or agent of the pur- chaser, is notice to him (/) : . for otherwise a man who had a mind to get another's estate, might shut his own eyes, and employ another to treat for him who had notice of a former title; which would be a manifest cheat (k). And the same rule prevails, although the counsel, attorney, or (g) Hargrave v. Le Breton, 4 Hatt, 2 Vern. 574; Ashley v. Burr. 2422. Eaillie, 2 Ves. 368; Maddox v. (h) See 2 Anstr. 438 ; per Eyre, Maddox, 1 Ves. 61. C. B. (k) Attorney- General v. Gower, (i) Newstead v. Searles, 1 Atk. 2Eq. Ca. Abr. 685, pi. 11 - 3 per 265 ; Le Neve v. Le Neve, 3 Atk. lord Talbot ; see Ambl. 626. 64.6, l Veg. 64; Brotherton v. agent*. OF NOTICE. 498 agent, be the vendor (/), or be concerned for both vendor and purchaser (m). So, notice to the town agent of the purchaser's attorney in the country, is also notice to the purchaser (n). And if a person, with notice of any claim, purchase an estate in the name of another, without his consent, yet if he afterwards assent to it, he is bound by the notice to his agent (o). So a man cannot elude the effect of having no- tice, by procuring the conveyance to be made to a third person (p). Although the counsel, attorney, or agent, be employed only in part* and not throughout the transaction, the pur* chaser is equally affected by the notice. This was doubted in the case of Vane v. lord Barnard (q) j but in the later case of Bury v. Bury, before lord Hardwicke (r), his lord- ship said, *'* where an agent has been employed for a per- son in part, and not throughout, yet that affects the per with notice." The notice to the counsel, attorney, or agent, must, however, be in the same transaction ; as he may very easily have forgotten it (s); and if this were not the rule of the (/) Sheldon v. Cox, Ambl. 624. (r) Chan. 11th July 1/48, MS.; (m) Le Nevev. Le Neve, 3 Atk. Appendix, No. ig. 046. (s) Preston v. Tubbin, 1 Vera. (n) Norris v. Le Neve, 3 Atk. 236 ; Fitzgerald v. Faueonberge, 26. Fitzgib. 207 ; 2 Eq, Ca. Abr. (o) Merry v. Abney, 1 Cha. Ca. 6S2, (D) n. (b) ; Warwick v. 38, 1 Eq Ca. Abr. 330, 2 Free m. Warwick, 3 Atk. 2Q1 ; Worsley 151, Nels. Cha. Rep. 59; Jen- v. earl of Scarborough, 3 Atk. iiings v. Moore, 2 Vern. 6C9, 1 3Q?; Steed v. Whitakcr, Barnard. Bro. P.C. 244. Cha. Rep. 220 ; Hine v. Dodd, 3 (p) Coote v. Mammon, 5 Bro. Atk. 275 ; Lowther v. Caleton, P.C. by Tomlins, 355. 2 Atk. 242, S. C MS. 3 Ashley (q) Gilb. Eq. Rep. 6; see 2 v. Baillie, 2 Vcs. 3C3 ; see 1 Yes. JW, Mortg. 597, 598, 4th edit. 435. court. 494 OF NOTICE* 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 emi- nence to have notice, as they are engaged ill a great num- ber of affairs of this kind (t). 2. A public act of parliament binds all mankind j but a private act of parliament is not, of itself, notice to a pur- chaser (m). And it is conceived, that an act of parliament of a private nature, but made a public act (l), in order that it might be judicially taken notice of, instead of being specially pleaded, and to save the expense of an attested copy, would not be deemed such a public act, as to be, of itself, notice to a purchaser (x). 3. Lis pendens is, of itself, notice to a purchaser fyjg unless it be collusive ; in which case it will not bind himfz). But, to affect a purchaser, the lis pendens must be in full prosecution fa). A subpoena served is not a sufficient lis pe,?u dens, unless a bill be filed (b) ; but when the bill is filed, (t) Per lord Hardwicke, 2 Atk. Wms. 117; Garth v. Ward, 2 Atk, 242. 1 74, 3 Barnard. Rep. Cha. 450 ; (u) See 2 Ves. 480. Worsley v. earl of Scarborough, 3 (x) See 3 Bos. and Pull. 578. Atk 3£2 ; Walker v. Smalwood, (y) See Tath. 45 ; Yeavely v. Ambl. 676 3 5 Co. 47 b. ; Hill v. Yeavely, Toth. 227, 3 Cha. Rep. Worseley, Hard. 320 ; Goldson «, 25 5 Diggs v. Boys, Toth. 254; Gardiner, 1 Vein, 459, cited. Culpepper v. Aston, 2 Cha. Ca. (z) 2 Cha. Ca. 1 16. 116, 223 5 Barns v. Canning, 1 («) Preston v. Tubbin, 1 Vern, Cha. Ca. 300 ; Sorrel v. Carpen- 286. ter, 2 P. Wms. 482 ; and see 3 P. {b) Anon. 1 Vern. 318. (1) This will not happen in future, as it has bc-en resolved that a pri- vate act shall not be made a public act; but it may be enacted, that the act shall be printed by the king's printer, and that a printed copy of it shall be evidence. the OF NOTICE. 495 the lis pendens begins from the service of the subpoena. And the question must relate to the estate, and not merely to money secured upon it (c) ; but a bill to perpetu-te the testimony of witnesses, and to establish a will, is a suffi- cient lis pendens (d). A purchaser pendente Vile, on filing his supplemental bill, goes into the court pro bono et ma/o, and will be liable to all the costs in the proceedings, from the beginning to the end of the suit ( e ) ; and he will not be admitted to exa- mine the justice of a former decree, but will be bound by the prior proceedings (f). Relief being sought against a bona Jldc purchaser who bought pendente lite, without actual notice, is, however, considered a hard case in equity ; and although the court cannot refuse its aid against him, yet the plaintiff is by no means a favourite ; and therefore if he make a slip in his proceedings, the court will not assist him to rectify the mis- take (V). 4. Decrees of the courts of equity are not of themselves notice to a purchaser (//). This was expressly decided in Worsley v. the earl of Scarborough (i) ; in which case it appears, by a manuscript note of the late Mr, Coxe's, to the case of Preston v. Tub- bin, in his copy of Vernon, in Lincoln's-Inn library, that lord Hardwicke held most decidedly, that decrees were not {c) Worsley V. earl of Scarbo- Cha. 12."; and see sir Thomas rough, 3 Atk. 302. Harvey v. Montague, 1 Vein. 57, (d) Garth v. Ward, 2 Atk. 122. *7 4 - (i) 3 Atk. 3p2; and see Rivers (e) See 1 Atk. Sp. v. Steele, Lib Reg.U. 128 ; temp. (/) Finch v.Newnham, 2 Vera, lord Hardwicke, referred to by 216 - Mr. Coxe. Note, owing to the (g) Sorrell v. Carpenter, 2 P. generality of the reference, I could Wms. 4S2. not Ifcd this case in the register's (/j) See Totli. 45 j Prac. Reg. booje. notice 496 OF NOTICE. notice. He said, there was no such doctrine that meri were to take notice of the decrees of this court, though they were to take notice of a lis pendens. In Sorrel 1 v. Carpenter (k) s it was said by lord chancellor King, that the court will oblige all to take notice of its decrees as much as of judgments. This dictum is frequently quoted as an au- thority to prove that the decrees of equity are notice to pur- chasers ; but it was only an obiter dictum ; and indeed, as judgments are not of themselves notice to a purchaser, it does not appear to affect the question. At first sight the case of Wortley v. Birkhead (/), seems to militate against the doctrine, but on examination it Will be found not to disturb it ; that case having only settled, that after a decree, and direction to settle the priorities of the demands, a puisne incumbrancer cannot take in the first incumbrance, and thereby gain a preference to the second ; as it would lay a foundation for the greatest collusion and contrivance be- tiveen the parties to exclude each other. Decrees, however, which do not put an end to' the suit, as decrees to account, are, of themselves, notice to a pur- chaser (w) ; because the lites pendentes are not thereby terminated. 5. 1 he docketing of judgments is not, cf itself, notice to a purchaser (m) ; for, as lord Talbot observed, judg- ments are infinite (o). 6. Registration of deeds is not, of itself, notice to a pur* chaser who was seised of the legal estate at the time of the (k) 2 P.Wms. 4S2; Ca. 47 ; Greswold v. Mar.sham, &, (1) 2 Ves. 571. Cha. Ca. ! ~0 ; Churchill v. Grove, (?h) Worsley v. earl of Scarbo- 1 Cha. Ca. 37, 2 Freem. 1/6. rough, 3 Atk. 3Q2. (0) 2 Eq. Ca. Abr. 6S2, (I)) n. (n) Snelling v. Squint, 2 Cha. (b), purchase* OF NOTICE. 497 purchase. In a former part of this work (/>), some obser* vations are submitted to the learned reader, which tend to show, that a person not being seised of the legal estate at the time of his purchase, is bound by all incumbrances duly registered, although he had not actual notice of them ; or, in other words, that in such cases registered deeds are of themselves notice to purchasers. 7. Neither an act of bankruptcy (q), nor a commission of bankruptcy (r), is notice to a purchaser. Indeed a decision, that an act of bankruptcy is, of itself, notice to a purchaser, would operate as a repeal of the pro- vision in the statute of James, in favour of purchasers from bankrupts. For, as we have already seen, a purchaser, with notice of the act of bankruptcy, cannot take advantage of the statute (s). With respect to a commission of bankruptcy ; it was in Hithcox v. Sedgwick, held by lords commissioners Trevor and Hutchins, against lord commissioner Rawlinson, that a commission of bankruptcy was notice to a purchaser ; and that case is considered, by the profession, as having settled that a commission of bankruptcy is, of itself, notice (/). (p) Fide supra, p. 46?. vol.xiv. p. 601, (q) Wilker v. Bodington.,2 Vern. (j) Fide supra, p. 445. 5§9 ; Anon. 2 Cha. Ca. 13o ; Col- (f) See For. 70 ; g Ves. Jun. Jet v. De Gols, For. 65 (1) ; and 23 ; 1 Pow. Moitg. 563, 4th edit.; see 4 Burr. 2425. Cooke's B. L. 628, 2d edit. Cul- (■/•) Hithcox v. Sedgwick, 2 Jen's B. L. 235 ; 2 Cruise's Digest, Vern. 156 ; reversed in DormProc. 250. See journals of the house of lords, (1) On this case being cited before lord Redesdale it is said, that the court observed, that it was now the constant practice for the assignees to compel a redemption on payment only of what was advanced before the bankruptcy. i Schoale's and Lefroy's Rep. 152, sed qu t 2 k. But 498 OF K0TIC2. But it appears, that upon appeal to the house of lords., the decree against Sedgwick was reversed, and the estate ordered to be sold, and Sedgwick to be paid the 2200/. (the money advanced after the commission issued), with in- terest, costs, and charges as mortgagees are usually allow- ed ; which was of course deciding, that a commission oi bankruptcy is not, of itself, notice to a purchaser. In the late Mr. Coxe's copy of Vernon, in Lincoln's-Inn library,, is a note to the case of Hithcox v. Sedgwick (which must have been written befose the publication of the lords jour- nals), that Mr. I.Ord had told him the decree was reversed on appeal to the house of lords, as against Sedgwick, and that he (Ord) found it so said in a note of this ease, taken by lord Trevor, in which he says, the decree was so reversed j and that he was counsel on the appeal for Sedg- wick. 8. What is sufficient to put a purchaser upon an enquiry, is good notice (») ; that is, where a man has sufficient in- formation to lead him to a fact, he shall be deemed conu- sant of it. Therefore, if a man knows that the legal estate is in a third person at the time he purchases, he is bound to take notice what the trust is (.r). This doctrine has been carried so far, that notice that part of the estate was in possession of a tenant hath been holden to be notice of a lease, although the purchaser took for granted the tenant was only so from year to year (,y). But this of course, as in all other cases on notice,. only prevails in equity; for although purchaser has actual notice of a lease, yet if it be invalid, he may, at law, recover the possession from the lessee (z). (a) Smith .v. Lowyi Atk. 4S§. (z) Doe v. Lufl'kin, 4 East, (.r) Anon. 2 Freem . 1 3 7 , pi. I ~ l . 2 2 1. (y) See 2 Ves. Jun. 4H>, Notice OF NOTICE. 499 Notice "of a tenancy will not, it seems, affect a purchaser with constructive notice of the lessor's title. Therefore if a person equitably entitled to an estate lets it to a tenant who takes possession, and then the person having the legal estate sells to a person who purchases bonafde, and with- out notice of the equitable claim ; the purchaser must hold against the equitable owner, although he had notice of the tenant being in possession. So a purchaser bonajide, and without notice, cannot be affected by the mere circumstance of the vendor having been out of possession many years. Thus in a case (a) (6), where A. covenanted to surrender lands to uses, which were enjoyed accordingly, although no surrender was made; and A. 13 years afterwards, surrendered the same lands to £. for valuable consideration, without notice of the cove- nant ; B. was holden to be entitled to the lands, and the covenantees were left to their remedy at law. In all cases where a purchaser cannot make out a title but by a deed which leads him to another fact, whether by description of the parties, recital, or otherwise, he will be deemed conusant thereof; for it was crassa negligentia that he sought not after it fjk) ; and for the same reason, if (a) Oxwfth' v. Rummer, Bac. v. Yardly, 2 Vera. 662 j Merlins Abr. T. Mortgage, E; s. 3; 2Vctn. v. Joliffe, Arabl. 313 j Bury v. G3Q s>c< Bury, Chancery; lltb July, 1748, (b) Bisco v. earl of Banbury, I MS. Appendix, No. lfi ; and Cop- Cha. Ca. 287 ; Moore v. Bennett, pin v. Fernyhough, 2 Bro. C. C. 2 Cha. Ca. 246 ; Ferrars v. Cherry, 2J)1 . 2 Vern. 3S4 ; Drapers Company (6) From the report hi Vernon, it seems that lord Cowper thought there was no specific agreement to surrender the copyhold to Oxwith j bat the report in Bacon is very full and cixeum.stantial. ^ 5j ^ 2 a purchaser £00 OF NOTICE, a purchaser has notice of a deed, he is oound by the whole of its contents (c). But the recital in a deed of a fact, which may or may not, according to circumstances, be held in a court of equity to amount to a fraud, will not, it seems, affect a purcha- ser for valuable consideration denying actual notice of the fraud (d). Although a term assigned generally in trust to attend the inheritance is equally charged with the inheritance itself, yet such a trust is not of itself notice to a purchaser of any incumbrances ; for it is notice of nothing, but that there is an inheritance to be protected, and that the term is attendant. It therefore gives notice to a purchaser of no- thing, but what he had notice of by the deeds making out the title to the fee. But if in an assignment it be declared that the term is assign- ed to attend the inheritance, as limited or settled by suchadepd* or to protect the uses of such a settlement, as is sometimes- done, that will be notice of the deed or settlement, and con- sequently of all the uses of it, and the purchaser is bound to find them out at his peril (e). 9. The better opinion seems to be, that being a witness to the execution of a deed will not, of itself, be notice ; (c) Tanner v. Florence, 1 CLa. not affect the purchaser with the Ca. 259 , Taylor v. Stibbert, 2 presumptive notice, but dismissed Ves. Jun. 437 ; which have over- the bill. ruled Philips v. Redhel, 2 Vern. (J) Kenny v. Browne, 3 Ridge wj 160, cited, where tenant for life P. C. 512. sold as tenant in fee, and the very (e) Willolighby v. Willoughby, Settlement at the time of the pur- 1 Term Rep. ?(J3, 1 Collec. Jn* chase was delivered to the purcha- ridica. 337, ser bimselfs yet the court would OF NOTICE. 501 for a witness, in practice, is not privy to the contents of the deed (/). This question has hitherto only occurred between a first mortgagee who witnessed a second mortgage, and the se- cond mortgagee ; but it might arise between a purchaser who had, previously to his purchase, attested the execution of a deed relating to the estate, and the person in whose favour the deed was executed. Lastly, It remains to consider, whether a purchaser is bound to take notice of the mere construction of words, which are uncertain in themselves, and often depend on the locality of them for the interpretation which they may re- ceive. This question arises where a settlement is made in pursu- ance of articles ; but the estate is, contrary to the intention of the parties, limited, so a* to enable the parent to dispose of it. It is clear that the court will rectify the settlement, according to the intention, in favour of the issue, as be- tween themselves, or as between themselves and persons claiming under the parent without consideration ; but this has never yet been done' against a purchaser (g). In Senhouse v. Earle (A), lord Hardwicke drew a dis- tinction between ancient articles of this sort, and modern ones, and expressed his opinion, that in the case of ancient articles the purchaser should not be disturbed ; because modern methods of conveyancing were not to be construed to affect ancient notions of equity ; but in case of notice of modern articles, he thought the court ought to carry them (/) Mocatla v. Murgatroyd, 1 see Harding v. Crethorn, 1 Esp. I 1 Wms. 393 ; Editor's and Cox's Ca. 56. notes, ibid. } Welford v. Beezely, 1 (g) Warrick v. Warrick, 3 Atk. V«. 6 ; Beckett v. Cordley, lBro. 29 1, C,C, 35/ 3 see \ Ves, Jan. 55 5 and (A) Ambl, 2S5. 2 K 3 * nt0 £02 pr NOTICE. into execution against a purchaser. But in a later case (?) lord Northihgton seemed rather of opinion, that no relief should be granted against a purchaser ; but this case is not satisfactory, as the language attributed to the chancellor, on the principal question in that case, is by no means con- sistent with the prior cases en the subject. Under these circumstances, a purchaser cannot be advi- sed to accept a title depending on a settlement made in pur? suance of articles, but not framed according to the general rules of equity [k) ; and, certainly, a court of equity would not enforce a purchaser to take such a title ; although no relief might be granted to his prejudice if he actually had purchased. Having endeavoured to shew what will be deemed notice, either actual or constructive, we are now to enquire what will be sufficient proof of such notice. It seems that the counsel, attorney, or agent of the pur- chaser, cannot be admitted to prove notice. In Maddox v. Maddox (/'), the reading of the deposition of the agent of the purchaser, who swore, in proof of no- tice, that the deeds were laid before counsel, who made objections about the plaintiff's title was objected to : but lord Hardwicke said, that though an attorney or counsel concerned for one of the parties may, if he pleases, demur to his being examined as a witness ; yet if he consents, the (i) Cordwell v. Msckrill, Ambl. (£) See Fearne's Tosth. 315, 515 ; and see Hardy v. Reeves, 4 (I) 1 Ves. 62 ; and see bishop of Ves. Jun. 466, 5 Ves. Jun. 4-20 ; Winchester v. Fouwiier, 2 Ves* Parker v. Brooke, Q Ves. Jun. 5S3; 4.45. and Mathews v. Jones, 2 Anstr. 506. court OF NOTICE. 503 court will not refuse the reading his deposition. This ob- jection, he added, had often been made ; and though some particular judges had doubted, it was then always over- ruled. And, on investigation, it will, I believe, be found that lord Hardwicke invariably adhered to this opinion. But it was settled before lord Hardwicke's time (?»), and has been the observed rule of the courts ever since (??), that counsel and attornies ought not to be permitted to discover the secrets of their clients, though they offer themselves for that purpose ; and this is the privilege of the client, not of the counsel or attorney ; for it is contrary to the policy of the law to permit any person to betray a secret with which the law has intrusted him. But an attorney may give evidence of the time of exe- cuting a deed, for a thing of such a nature cannot be called the secret of his client ; it is a thing he may come to the knowledge of without his client's acquainting him, and is of that nature that an attorney concerned, or any body else, may inform the court of (o), So, if an attorney put his name to an instrument as a witness, he makes himself thereby a public man, and no longer clothed with the character of an attorney ; his sig- nature binds him to disclose all that passed at the time, re- specting the execution of the instrument ; but not what took place in the preparation of the deed, or at any other time, and not connected with the execution of it. Every (7?z) Lord Say and. Seal's case, Jun. 2S0; Sloman v. Heme, 2 Esp. 10 Mod. -11 ; see Lee v. Markham, Ca. (5Q5 ; Robsonv. Kemp, 5 Esp. Toth. 110, and Anon. Skin. 404. Ca. 52; Brand v. Ackcrman, ib. (n) Lindsay v. Talbot, Bulk N.P. 1 \g. 284; Wilson v. Rastall, 4 Term (a) Lord Say and Seal's case, 10 Rep. 753 ; and see 2 Esp. N. P. Mod. 41, J\6r, WrigUt v. Mayer, Ves. 2 k 4 person S04f OF NOTICE. person who claims an interest in the property, has a right to call upon the attorney, as being the attesting witness (/j). If notice be only proved by one witness, a positive and express denial by the answer will prevent the court decree- ing against the answer (e done where it was merely oath against (w) Walton v. Hobbs, 2 Atk.lp; (a) See 1 Bro. C. C. 53, 54 j Anon. 3 Atk.270 5 Oaly v. Walker, 9 Ves. Jun. 284 ; 1 Smith's Rep. 3 Atk. 407 ; ' Pember v. Mathers, 210. 1 Bro. C. C. 52 ; East I. C. v Do- (t) See 1 Eq. Ca. Abr. 229, pi. raid, 9 Ves. Jun. 2/5, 1 Smith's 13. Rep. 213 ; and see 6 Ves. Jun. 40. (c) Stadd v. Cason, Toth. 230 ; (.v) Arnot v. Biscoe, 1 Ves. 95. Ibbotson v. Rhodes, 2 Vern. 554 ; (y) Jolland v.Stainbvidge, 3 Ves. 1 Eq. Ca. Abr. 229, pi. 13, S. C ; Jun. 478. Cant v. lord Beauclerk, 3 Atk. (z) Pember V. Mathers, 1 Bro. 403, cited ; Sedvlde Christ College C.C. 52, V. Widdrington, 2 Yern. 2S3. oath 506 OF NOTICE, oath (fiT) ; and as an issue, would not now be directed in such a case, the answer of the defendant cannot, it should seem, at the present day, be directed to be read at a trial at law. But if a bill is hied for a discovery only, the an- swer of the defendant may be read on the trial (e). It must be remarked, that if the notice arise, by con- struction of equity, on a deed which is in the possession^ of the purchaser (/), and he contend that it did not come into his custody till after the completion of his purchase, the proof therefore will lie on him (g-). In one case ( h), however, although the only evidence of the deed being in the possession of the defendant, was the discovery in his answer, and on the deed being produced the counsel offered to read the answer, to shew that it had not been delivered to him till lately, and long after he had purchased the estate, lord Hardwicke refused it, though it was argued to be very hard ; because the only account of the delivery of the deed was in the answer ; and by its not being permitted to be read, the deed must be taken to be in his custody at the time of the purchase, ten years before ifactually was. But it seems, that the defendant had sufficient notice be- sides the mere custody of the deed. His conveyance re- cited all the former deeds ; and therefore reading the an- swer, to prove when the deed in question came into his custody, was perfectly unnecessary. And this case, there- fore, cannot be deemed subversive of the general rule. (J).Only v. Walker, 3 Atk. 407- (g) See 2 Vcs. 486. (e) See Q Yes. Jan. 282, 1 (A) Melting v. Joliffe, AmbJ. Smith's Rep. 218. 311. (/) See 1 Ves. 392. €U A?* £ m 3 .CHAPTER XVilL QF PLEADING A PURCHASE, ^ Supposing a plaintiff to have a full title to the relief he prays, and the defendant ' can set up no defence in bar of that title, yet if the defendant has an equal claim to the pro- lection of a court of equity to defend his possession, as the plaintiif has to the assistance of the court to assert his right, the court will not interfere on either side. This is the case where the defendant claims under a purchase for valuable consideration, without notice of the plaintiff's title, which he may plead in bar of the suit («)." The principle of this plea, lord Eldon observes, is this : f* I have honestly and bonajide paid for this estate, in order to make myself the owner of it ; and you shall have no information from me as to the perfection or imperfection of nry title, until you deliycr me from the peril in which you state I have placed myself in the article of purchasing bona Jide (£)." This plea is a peremptory plea, and must be sworn by the pleader (c). It must be put in ante litem contestatam, because it is a plea why an answer should not be put in ; and, therefore, if a defendant answers to any thing to which he may plead, he over-rules his plea (d) j but he may (a) Mitford on Pleading,2d edit. . (c) Marshall v. Frank, Prec.Cha. p. 2 15 ; Cough v. Stedman, Finch; 480. 203. () Hardingham v. Nicholb, 3 246 j and see 3 Ves. Jun. 226 ; and Atk. 304. 9 Ves. Jun. 32. {(/) See supra, p. 312. (/) Hughes v. Garth, Ambl. 421 . (r) Millard's case, 2 Freem. 43 > (m) Seymour v. Nosworth, 2 and Snag's case, cited Hid. ; and see Freem. 123,3 Cha. Rep. 23, Nels. Wagstaff v. Read, 2 Cha. Ca. 156. Cha. Ren. 135. (3) This is the doctrine of Littleton, with which it seems Gilbert agrees ; but since Littleton's time it has been held, that the releasee has a base fee determinable by the entry or action of the issue. See .Butler's n. (I) to Co. Litt. 331 a. and the authorities there referred to. decided £10 OF PLEADING A PURCHASE. decided otherwise (s}. There can, however, be no objec- tion to state the consideration, as if it be valuable, the plea will not be invalidated by mere inadequacy (/). The question is not, whether the consideration is adequate, but whether it is valuable ? for if it be such a consideration as will not be deemed fraudulent within the statute of *27 Elizabeth, or is not merely nominal (u), or the purchaser- is such a one as would hinder a puisne purchaser from over- turning it, it ought not to be impeached in equity. The plea must also deny notice of the plaintiff's title or claim (cc), previously to the execution of the deeds and payment of the purchase-money (7/) ; for till then the transaction is not complete, and therefore if the purchaser have notice previously to that time, he will be bound by it (z.). And the notice so denied must be notice of the existence of the plaintiff 's title, and not merely notice of the existence of a person who could claim under that title («). But a denial of notice at the time of making the purchase, and paying the purchase-money, is good ; and notice before the purchase need not be denied, because notice before is notice at the time of the purchase, and the party will in such case, on its being made appear that he had notice before, be liable to be convicted of perjury (b). (s) Morev.Mayhow, 1 Cha.Ca. (y) Moi-e v. Mayhow, 1 Cha. 34 ; Day v. Arundell, Hard. 510. Ca. 34; Story v. lord Windsor, 2 (0 Bassett v. Nosworthy, Finch, Atk. 630 ; Attorney-General vj 102 ; Ambl. 767 ; Mildmay v. Gower, 2 Eq. Ca. Abr, 6S5, pi. IVTldmay, Ambl. 767, cited ; Bui- 11. lock v. Sadlier, Ambl. 704. (s) Fide supra, p. 487- (u) See More v. Mayhow, 1 (a) Kelsall v. Bennett, 1 Atk, Cha Ca. 34 5 Wagstaff v. Read, 2 S22; which has over-ruled Bf amp; Cha. Ca. 156. ton v, Barker, 2 Vera. 159, cited. (,r) Lady Bodmin v.Vandenben- (I) Jones v. Thomas, 3 P. Wms. dy, lVern. 179; Anon. 2 Ventr. 243. 301. The OF PLEADING A PURCHASE. 511 The notice must be positively, and not evasively de- nied^), and must be denied, whether it be or be not charged by the bill (d). If particular instances of notice, or circumstances of fraud are charged, the facts from which they are inferred must be denied as specially and particu- larly as charged (e). Notice must also be denied by answer, for that is matter ©f fraud, and cannot be covered with the plea, because the plaintiff must have an opportunity to except to its sufficiency* if he think fit ( /'); but it must also be denied by the plea, because otherwise there is not a complete plea in court on which the plaintiff may take issue (g). Although a purchaser omit to deny notice by answer, he will be allowed to put in the point of notice by way of answer (A), and the omission will not invalidate his plea, if it is denied by that (z), If notice is omitted to be denied by the plea, and the plaintiff reply to it, the defendant has then only to prove his purchase, and it is not material if the plaintiff do prove notice, as he has waved setting down the plea for argument, in which case it would have been over- ruled (/). If, howeve, a bill is exhibited against a pur- chaser, and he plead his purchase, and the bill is thereupon dismissed, a new bill will lie charging notice, if the point of notice was not charged in the former bill, or examined to j (c) Cason v. Round, Piec. Cha. (/) Anon. 2 Cha. Ca. l6l ; 226 ; and see 2 Eq. Ca. Abr. 082, Pi ice v. Price, 1 Vein. 185. {!)) n. (b). (g) Harris v. Ingledew, 3 P. (). Whether it will protect his possession frain a le^al, as well as an equitable title, is perhaps doubtful. In Burlace v. Cooke (7), lord Nottingham held the plea to be good against a legal estate ; but in the subsequent case of Rogers v. Seale (r), he is reported to have been of a dif- ferent opinion, and to have decreed accordingly. But un- fortunately both these cases appear to be very ill reported. In Parker v. Blythmore (s), the master of the Rolls thought the plea good against a legal estate. But in Williams v. Lambe (/), upon a bill filed by 2 dowress against a h&najide purchaser*, without notice of the marriage, lord Thurlow over-ruled the plea. His lordship said, the only question was, whether a plea of purchase (I) Williams v.Williams, 1 Cha. (p) See 3 Ves. Jun. 225. Ca. 252. (?) 2 Freem. 24, (m) Hardy v. Reeves, 5 Vjes. (r) 2 Freem. 64. Jun. 426. U) 2 Eq. Ca. Abr. 79, pi 1 . (w) Leaves v. Fielding, Colle's (/) 3 Ero.G.C 264. P.C. 361. (0) Patterson v. Slaughter, Arab. 292. without OF PLEADING A PURCHASE. 513 -without notice would lie against a bill to set out dower ; •that he thought where the party is pursuing a legal title \ as dower is, the plea did not apply, it being only a bar to an "qui l able, not to a legal claim. In a later case (u), lord Rosslyn considered it impossible that Rogers v. Sealc, could be the decision of lord Notting- -ham, and decreed that the plea could stand against a legal as well as an equitable title. Lord Rosslyn did not, however, mention the case of Williams v. Lambe, which is against the doctrine he laid down ; nor indeed did he notice the case of Parker v. Blyth- rnore, which is in favour of it. It is much to be lamented that all the authorities were not considered. To argue from principle, it seems clear that the plea is a protection, against a legal as well as an equitable claim ; and as the authorities in favour of that doctrine certainly pre- ponderate, we may, perhaps, venture to assert, that it will protect against both. {u) Jcmrdv. Saunders, 2 Ves. Jun. 454, APPEN* [ 515 ] APPENDIX, No. I. Notice by the Owner and his Agent-, of the Agent's Intention to bid («); Sir, I the undersigned A. of owner of the estates intended to be sold by you at by public auction, on the day of next, do hereby give you notice, that I have appointed the undersigned B. of, &c. to bid on my behalf, or for my use, at the same sale. And I the above-named B. do hereby give you notice, that I have accordingly agreed to bid at such sale, for the use of the said A. To Mr, Auctioneer. No. II. Notice by" the Agent if his Intention to bid (b), SlRj I the undersigned A. of, &c. agent of B. of, &c. owner of the estates intended to be sold by you at by public auction, on the day of next, do hereby give you notice, that I intend to bid at the same sale, on the behalf, or for the use of the above-named B. To Mn Auctioneer. (a) Vide supra, p. 13. (b) Fide supra, p. 13. U2 No. III. 516 APPENDIX. No. III. Notice by the Agent', and the Person appointed by him, of such Person's Intention to bid (r). Sir, I the undersigned A. of, &c. agent of B. of, &c. owner of the estates intended to be sold by you at , by public auction, on the day of next , do hereby give you notice, that I have appointed the undersigned C. of, &c. to bid at the same sale, on the behalf, or for the use of the above-named B. And I the said C. do hereby give you notice, that I have accordingly agreed to' bid at such sale, for the use of the said B. To Mr. Auctioneer. No. IV. Conditions of Sale (rf). I. That the highest bidder shall be the buyer : and if any dispute arise as to the last or best bidder, the lot in dispute shall be put up at a former bidding. II. That no person shall advance less at any bidding than £ (l ) ; or retract his or her bidding (e). III. That every purchaser shall immediately pay down a deposit in the proportion of £, for every 100/. of his or (c) Fide supra, p. 13. (e) Payne v. Cave, 3 Term Rep. (d) Fide supra, p. 21. .148. Fide supra, p. 25. (l) Or thus, " than such sum' as shall be named by the auctioneer at She time her APPENDIX, SV her purchase-money, into the hands of the auctioneer (2) ; and sign an agreement for payment of the remainder to the proprietor, on the day of next, at which time and place the purchases are to be completed, and the respective purchasers are then to have the actual possession of their respective lots ; all outgoings to that time being cleared by the vendor. IV. That within from the day of the sale, the vendor shall, at his own expense, prepare and deliver an abstract of his title, to each purchaser, or his or her soli- citor ; and shall deduce a good title (3) to the lots sold. V. That upon payment of the remainder of the pur- chase-money at the time above-mentioned, the vendor shall convey the lots to the respective purchasers: each pur- chaser, at his or her own expense, to prepare the convey- ance to him or her j and to tender or leave the same at for execution, by the vendor (/). VI. That the auction duty of id. in the pound shall, immediately after the sale, be paid to the auctioneer by the vendor and purchaser, in the proportions following \ that is to say, one moiety thereof by the vendor, and the other moiety by the purchaser (&) (4). VII. That if any of the purchasers shall neglect or fail to comply with the above conditions, his or her deposit-money (/) Vide svpra, p. 25. (g) Fide, supra, p. 26. (2) This is scarcely ever done in, the country; but the deposits are paid to the agent of the vendor. (3) Where the estate is leasehold, and the vendor cannot produce the lessor's title, this condition should go on thus : « to the lease granted o the premises j but the purchaser shall not be entitled to require, or call for the title of the lessor." tide supra, p. 24. _ (4) This condition should be omitted where the estate u sold by assignees of a bankrupt, and is not in mortgage. Vide supra, p. 11, 12. 2 L 3 sha tt 51S APPENDIX. shall be actually forfeited to the vendor, who shall be at full liberty to resell the lot or lets bought by him or her, cither by public auction, or private contract ; and the defi- ciency (if any) occasioned by such second sale, together with all expenses attending the same, shall, immediately after the same sale, be made good to the vendor by the defaulter at this present sale : and in case of the non-payment of the same, the whole thereof shall be recoverable by the vendor, as and for liquidated damages (//). Lastly, That if any mistake be made in the description of the premises, or any other error whatever shall appear in the particulars of the estate, such mistake or error shall not annul the sale ; but a compensation, or equivalent, shall be given 01 taken, as the case may require. Condition to be inserted where the Title-deeds cannot be delivered up (/'). That as the title-deeds which concern this estate relate to other estates of greater value, the vendor shall retain the same in his custody, and enter into the usual covenants (to be prepared by his solicitor, and at his expense) for the pro- duction of them to the respective purchasers ; but all at- tested copies which may be required of such deeds, shall be had and made at the expense of the person requiring the same. flliere an Estate is intended to be sold in Lots, and the Title-deeds are to be delivered up, the following Condition ■may be inserted: That as the aforesaid lots are holden under the same title, the purchaser of the largest of the said lots shall have (A) Fide supra, p. 15. (i) Vide supra, p. 23, the APPENDIX. 519 the custody of the title-deeds, upon his entering into the usual covenants for the production thereof to the purchaser or purchasers of the remaining or other of the said lots : such covenants to be prepared by and at the expense of the person or persons requiring the same ; who may have attested copies of such deeds at his, her, or their own expense. Where the Properly is considerable, it may be advisable to make a stipulation as to the expense of the attested copies according to ike value of the lots. As for instance : That all attested copies of the title-deeds shall be made and delivered at the expense of the person requiring the same, unless his or her purchase-money exceeds £ but does not amount to £. ; in which case the ven- dor shall furnish the attested copies of all such deeds and writings as shall be deemed necessary, according to profes- sional usage, at the joint expense of him and the purchaser ; and if the purchase-money exceeds £. , the vendor shall furnish the same at his own expense. No. V. Agreements to be signed by Vendor and Purchaser after .Sales by Auction (h). It seems advisable to hare two sets of conditions, at the end of one of which may be printed an agreement for the auctioneer, or agent of the vendor, to sign ; and at the end of the other, may be printed an agreement for the pur- chaser to sign, (k) Vtdt supra, p. 28. 2 l 4 The £20 APPENDIX. The agreement to he signed by the auctioneer, or agent vf the vendor, may be thus : I do hereby acknowledge, that has been this day declared the purchaser of lot , of the estates mentioned in the above-written particulars, at the sum of £. ; and that he has paid into my hands £. as a deposit, and in part-payment of the said purchase-money ; and I do hereby agree, that the vendor shall, in all respects, fulfil, on his part, the above-written conditions of sale. As witness my hand, this day of Purchase-money £. Deposit-money £. Remainder unpaid £. Witness The purchaser may sign the following agreement ; I do hereby acknowledge, that I have this day purchased by public auction, lot of the estates mentioned in the above-written particulars, for the sum of £. ; and have paid into the hands of the sum of £. , as a deposit and in part-payment of the said purchase-money ; and I do hereby agree to pay the remaining oum of £. , unto , at , on or before the day of ; and in all other respects, on my part, to fulfil the above- written conditions of sale. As witness my hand, this day of Purchase-money, £. Deposit-money, £. Remainder unpaid £. Witness No. VI. APPENDIX. S21 No. VL Agreement for Sale of an Estate by Private Contract (I), Articles of agreement made and entered into this day of , between A. of, &c. for himself, His heirs, executors, and administrators, of the one part ; and B. of, &c. for himself, his heirs, executors, and administrators, of the other part, as follow : viz. The said A. doth hereby agree with the said B. to sell to him the messuages, &c. (parcels) with their appurtenances, at or for the price or sum of £. ; and that he the said A. will within one month from the date hereof, at his own expense, make and deliver unto the said B. or his solicitor, an abstract of the title of him the said A. to the said mes- suages and premises ; and will also, at his own expense, deduce a clear title thereto. And also that the said A. or his heirs, and all other necessary parties, shall and will, on or before the day of next, on receiving of and from the said B. his executors or administrators, the said sum of £ , at the costs and charges of him the said B. his heirs, executors, administrators, or assigns, execute a proper conveyance, for conveying and assuring the fee -sim- ple and inheritance of and in all the said messuages and premises, with their appurtenances, unto the said B. his heirs or assigns, free from all incumbrances. And the said B. hereby agrees with the said A. that he the said B. his heirs, executors, administrators, or assigns, shall and will, on the execution of such conveyance as aforesaid, pay the sum of £. unto the said A. his exe- cutors or administrators. (I) Fide supra,, p. 3£. And 5'22 APPENDIX. And it is hereby further agreed by and between the said Ji. andB. as follows : viz. That the conveyance shall be prepared by and at the expense of the said B, and that the same shall be settled and approved of on the pans of the said A. and B. by their respective counsel ; and that each of them, the said A. and B. shall pay the fees of his own counsel. And that all rates, taxes, and outgoings payable for or in respect of the premises to the day of , shall be paid and discharged by the said A. his executors or admi- nistrators. And lastly, that if the said A. shall not deliver an abstract cf his title to the said B. or his solicitor, before the expira- tion of one calendar month from the date hereof, or shall not deduce a good and marketable title to the said mes- suages and premises, before the said day of then and in either of the said cases, immediately after the expira- tion of the said one calendar month, or the said day of (as the case may be), this present agreement shall be utterly void to all intents and purposes whatsoever, and the jurisdiction of equity wholly barred ; it being the true intent and meaning of the parties hereto, that in the event afore- said, execution of this agreement shall not enforced by any court of equity, notwithstanding any rule (if such there be) that time cannot be made of the essence of a contract, or any other rule or maxim whatsoever (ra). In wit- ness, &c. A provision may also be inserted in agreements, making time of the essence of the contract, in case the purchase- ■money is not paid at the day appointed. ; but clauses making agreements void if a title is not made, or the. purchase- money paid by a stated time, should never be inserted unless, (m) Fide supra, p. 257, it APPENDIX. 523 it be the express intention of the parties. Where time is not deemed material, clauses to the following effect should be inserted : That the said B. and his heirs shall have, receive, and take the rents and profits of the said messuages and pre- mises, from the day of next, for his and their proper use. And that if the said conveyance shall not be executed by the necessary parties, and the said purchase-money paid on or before the said day of then and in such case the said B. his heirs, executors, or administrators, shall from the same day of pay interest for the said purchase- money unto the said A. his executors or administrators, after the rate of £. per cent, per arm. APPEN- [ &&* 3 % APPENDIX OF CASE- No. VII. Sir John Morshead and others v. Frederick (a) and others* Ch. 10th February, 1 80G. Certain estates of the late sir John Frederick were devised to trustees upon trust, by mortgage or sale thereof, to raise 34,OOOl. for the benefit of his two daughter;;, lady Morshead and Miss Thistlethwayte. Part of this estate con- sisted of a house in the occupation of Smith, Payne and Smith, the bankers. In 1751 a ground lease of this house was granted for sixty-one years, at 561. a-year. The representative of the lessee assigned the lease to Smith and Company, subject not only to the original ground- rent of 50/. a-year, but also to an additional rent of 210/. A bill was filed for carrying the trusts of sir John Frederick's will into execution. With the approba- tion of all parties, the house in question was offered for sale, and represented as subject to the ground lease at CGI. a-year. Smith and Company employed an auctioneer to enter into a treaty with the plaintiffs' solicitors for the pur- chase of the house, and he was informed by them that it was subject to the lease at 561. a-year. The auctioneer va- lued the house as being subject to the lease, and to no other rent, charge, or incumbrance, at 6150/. and verbally agreed with the plaintiffs' solicitors for the purchase by Smith and Company of the house at that sum. The con- tract was referred to the master, who approved of it, and by (a) Fide supra, p. 115. an APPENDIX OF CASES, 525 an order in the cause Smith and Company were directed to pay the purchase-money into court, to the credit of the cause, and it was ordered, that they should be let into receipt of the rents from the last quarter day. The title was approved of on behalf of the purchasers, and the mo- ney was paid into the Bank according to the order. A few months afterwards, and before the conveyance was execu- ted, application was made to Smith and Company for pay- ment of the rent of 220/. to the person entitled to it. Upon this, Smith and Company insisted upon an abatement in the purchase-money, which the plaintiffs would not accede to. A motion was then made to the court by Smith and Com- pany that the money paid into the Bank might be repaid to them, and the contract for the purchase of the house re- scinded. In support of this motion, the auctioneer swore, that he valued the house, as subject to the 53h a-year only, and that he was ignorant of its being subject to any other rent or outgoing. The solicitor for Smith and Company swore, that no notice was taken in the abstract, of the lease by which the 210/. a year was reserved. One of the bankers swore, that when the money was paid into the Bank and when the valuation was' made, he and his part- ners beiieyed that the auctioneer had been made fully acquainted with all the charges, whether consisting of rents or otherwise, which in any ways affected the house ; and that his not being made acquainted with the rent of 210/. was occasioned by some undesigned omission or mistake. In opposition to these affidavits, the solicitor of the plaintiffs swore, that he had been in receipt of the rent of 5QL a-year nearly thirty years, which had been paid by Smith and Company since 1797,. and that he had never heard that the house was ever granted by any underlease, or was made subject to any other rent than the rent of 567. -until long after the sale to the bankers. And that upon enquiry £26 APPENDIX OF CASES. enquiry he found, that the rent of 2101. had been paid by the bankers themselves, ever since they purchased the lease. The motion came on before lord Eldon, who expressed an opinion in favour of the purchaser's right to rescind the contract, but did net decide the point. It afterwards came before the present chancellor, who held this to be a proper case for the interference of equity, on the ground of mis- take, and accordingly granted the motion. The circum- stance of both rents being payable by the purchasers, his lordship thought immaterial, as it appeared, that they had not communicated that circumstance to their broker, and the magnitude of their concerns might easily account for the omission. It could not be imagined, that any man would willingly conceal such a fact from a broker employed by him to value any property he wished to purchase ; and it was equally absurd to suppose, that if a broker, in valuing any property, was ignorant of the existence of an additional rent of 200/., no relief lay against such a mistake in a court of equity. No. VIII. Bratt v. Ellis (a), C. B. Mich, and Hil Terms, 45 Geo. III. John Goodwin being indebted to Ellis, the defendant. an auctioneer, deposited the title-deeds of some houses with him, as a security ; and gave him a written authority to sell them by auction, at any time before midsummer, 180:3. They were accordingly put up at Garraway'sj and, not fetching the sum expected, they were bought in by Good* (c) Fide supra, p. 158, win. APPENDIX OF CASES. 52? win. Ellis not being paid, put up the houses again in Sep- tember 1804, under the usual conditions. The plaintiff was declared the highest bidder at 8161. ; paid a deposit of 75/. and signed an agreement to complete the col ract. The defendant delivered possession to the plaintiff, who expended about 10/. in repairs; and the defendant sent the deeds to the plaintiff's attorney, who approved of the title, and prepared a conveyance ; and the defendant undertook to procure Goodwin to attend and execute the deed. Goodwin, however, upon being applied to, refused to com- plete the contract, which, was made without his authority. The plaintiff brought the present action to recover the de- posit-money and interest, and the expense of perusing the abstract, preparing the conveyance, &c. ; and the damages the plaintiff had sustained by losing such a good bargain. The plaintiff gave 31.5/. for the houses ; and a surveyor, ex- amined on his behalf, proved that they were worth 751/. The defendant suffered judgment to go by default. Upon the execution of the writ of inquiry of damages, the de- fendant's counsel admitted, that he was liable to repay the deposit, with interest, and fair expenses incurred in inves- tigating the title, &c. But as it appeared by the declaration that the defendant was only an auctioneer, and Goodwin was the owner, he insisted that the defendant was not an- swerable for the difference of value. The sheriff, in his charge to the jury (which was specially summoned), said, it was admitted on all hands, that the deposit and interest, and expenses, must be paid to the plaintiff. With respect to the demand for the loss of the bargain, he thought, that the demand was recoverable ; for the defendant had admit- ted that he had sold the property without authority ; but the amount of the damages was in their discretion. They would consider, whether it would have sold for 751/. If they 528 APPENDIX OF CASES. they believed the surveyor, it would be quite competent id give the whole, or what they pleased. The jury returned a verdict for 350/., being upwards of 250/. as damages for loss of the bargain. The court of Common Pleas, how- ever, granted a rule to shew cause, why the writ of enquiry should not be set aside, and the defendant let in to plead in the action, upon paying into court the depocit-money, and interest, and on payment by the defendant to the plaintiff of his costs occasioned thereby, together with his costs of the present application. Upon shewing cause, the court made the rule absolute ; on payment to the plaintiff of the depo- sit, with interest, the costs of investigating the title, and the costs of the action, as between attorney and client. No. IX. Hillary v. Waller (a) r Rolls, 23d December, 1805, In this case the master of the Rolls held generally, that uhere there is any definite period: at which a reconveyance ought to have been made of an old outstanding legal estate, he did not see any difficulty in presuming such reconvey- ance at that period, and compelling a purchaser to take the title. In this case an estate was conveyed in 1664, byway of indemnity ; and as to one moiety of the estate there was no provision for reconveying it ; as to the other there was such a provision, and it ought to have been reconveyed after the death of a life in being, and a few years afterwards. In a family settlement executed in 1694, the conveyance of 1 664 was excepted as an existing conveyance, From that time, however, no notice was taken of the outstanding le- gal estate, but the estate was conveyed by the persons in (a) J'Ve supra, p. 213. possession, APPENDIX OF CASrS. 52$ possession, as if they were seised of the legal estate, so that the owners had acted as proprietors seised in fee for 110 years ; and no claim appeared to have ever been made on the" estate, under the deed of indemnity. The question was, whether the purchaser should be compelled to take the title. The master of the Rolls, after ably discussing the general doctrine of presuming a conveyance of a legal estate from a trustee to his cestui que trust, and entering into the par- ticular circumstances of the case said, that it was admitted, that there was great improbability that any incumbrance upon the estate intended to be indemnified, would ever ap- pear. Supposing, therefore, his honor added, that the particular grounds to which he had referred in support of this presumption, were in themselves but slender, and per- haps, if the deeds were accurately investigated, would not furnish a sufficient foundation for it ; yet upon the general complexion of the case, the length of time without demand from those who were to be indemnified, and the extreme improbability of disturbance from the want of a formal con, veyance, he had no difficulty in saying, that upon those legal grounds upon which presumptions are raised, this title could never be brought before either the court or a. jury in a case in which that presumption would not be made in its favour^ as a presumption injurious to no one, and tending to support a fair title. For these reasons his honor thought that the title might be safely taken t and made his decree accordingly. No. X. Coussmakerv. Sewell, fa), Ch, 4th Mny. 1791. In this cause it was referred to master Greaves, to see if a good title could be made to the estate in question. An ab- (a) Vih supra, p. 215. 2 M Stract 530 APPENDIX OF CASES. stract was delivered. It appeared by it, that William Per- kins, an ancestor of the vendor, had made a settlement of his estate in the year 1 705 ; but neither the settlement it- self, nor any copy or abstract of it could be produced, and the contents of it were totally unknown. In 1751 a fine was levied by Mr. Perkins and his eldest son ; and in 1760 a recovery was suffered, in which Mr. Perkins and his second son (the eldest son being then dead) joined in making a tenant to the precipe, and the second son was vouched. The estate was mortgaged in 1 759, and the title was then ap- proved of by Mr. serjeant Hill ', and from the wording of his opinion, it was collected, that the settlement of 1 705 was then before him. Supposing the limitations in the set- tlement of 1705 to have been to the sons of that marriage, successively in tail male, those estates tail, and the remain- ders expectant upon them (if any), were completely barred by the fine and recovery. The counsel for the purchaser objected to the title, on the ground that the deed of 1 705 was not produced, and that it might contain limitations which were not barred by the fine and recovery ; and might have created charges to which the estate still continued subject. These objections were laid before the master ; and the vendor not acquiescing in them, they were argued before him. The counsel for the purchaser avowed his client to bean unwilling purchaser, and stated his objections with great perspicuity and ability, and required of the master, that if he did not think the title such as a court of equity was warranted to force on an unwilling purchaser, he should not report in favour of it. The original opinion of Mr. serjeant Hill could not be produced, and the serjeant had not that recollection of what was before him at the time he gave the opinion, as enabled him to say that he had seen the settlement* APPENDIX OF CASES. 5Sl settlement. Much stress was not, therefore, laid upon the opinion. On the 21st February, 1791, the master made his report, in which he stated, that he had seen the opinions given by Mr. Serjeant Hill, and by Mr. Shadwell, the pur- chaser's counsel ; and that, considering the circumstances of the case, and the length of the possession since the reco- very, he was of opinion a good title might be made. To this report the purchaser excepted, and the exceptions were argued before the chancellor on the 4th May, 1791, by sir John Scott, with great earnestness : but the chancellor over- ruled them, and the report was confirmed. No. XI. Casein the reign of Henry Filth (a). This case first came on in the 14th Henry VII. and is the last case reported in that year. In the King's-bench the case was such : A man had certain feoffees in his land to his use, and made his will, and wills that his lands shall be sold after the death of one A. whom he willed to have the profit during his life ; which feoffees have enfeoffed others to the use to perform the will of the testator ; and if the second feoffees shall sell the land or not, that was the matter, Kings, semble, that the second feoffees may well sell the land. This case came on again in trinity term, in the 1 5th of Henry VII. and is in the year-book, fo. lib. A man en- feoffs A. and B. upon trust, and afterwards he makes his will, and recites that A. and B. were seised to his use, and that his will is, that the said A. and B. should make an es- tate to his wife for the term of her life, and the remainder to his son and heir, and to the heirs of his body begotten. (a) fide supra, p. 225. 2 m 2 And $32 APPENDIX Of CASES. And if the son should die without heirs of his body, then his will was, that the aforesaid feoffees should alien the said land > and that the money arising thereby should be distri- buted for his soul Then the feoffor died, and the feoffees make a feoffment over to the same use, and declare their will that the second feoffees shall act according tothefirstwill, &c. And the wife dies, and the soil of the first feoffor dies without heir, and the second feoffees alien the land to a stranger in fee, and if this alienation was good or net, that is the matter. Per Rede, justice. It seems to me that the second feoffees cannot make an alienation according to the will of the first feoffor ; for the will of the man ought to be taken according to the intent of him who made the will, and according to the law of the land ; for if a man makes his will, that the land of which he was seised shall be sold and aliened to I. S. after his death, &c. and then dies seised, there his will shall not be performed, because his will is contrary to the law of the land, to make a will of land of which he was seised, and died seised: quodfuit concessum per Tremaile. And so if a man has feoffees upon confidence in his land, and makes his will, that one I. S. shall alien his land, and there is no such person in rerumnatnra, there his will is void, because no other man can sell that; and, for that reason, the feoffees shall be seised to the use of the heir, &c. because it appears by the will, that no other man shall interfere with the alienation. And so also if a man has feoffees in his land, and makes his will that I. N. shall alien the land ; there, if I. N. dies without heir, his executors shall not alien, because that is not warranted by the will ; but the feoffees shall remain seised to the use of the heir of the first feoffor. And so it is where he names the feoffees from the first in the will., and then he says, the aforesaid &c. feoffees shall alien the land for his soul : the authority is solely given to them, and their AFTENDIX OF CASES. 533 their executors cannot alien this. But if these feoffees make a feoffment over to the same use, yet the first feoffees may alien the land according to the will of the first feoffor : quodfuit concessit.™ per Fineux et Tremaite. And also the second feoffees may alien the land by the commandment of the first feoffees, and that is good, for it is the sale, and the alienation of the first feoffees in law. And no one will deny, that the second feoffees cannot alien the land during the life of the first feoffees, if it be not by their command- ment; so that it be, in fact, their alienation ; and by con- sequence no more can they sell after the decease of the first feoffees; Trema\\e to the same purpo se. Ard thereis a ' diversity where the will is, that the alienation shall be made to a person certain ; and where it is, that the alienation shall be made generally : for if the will was, that the aforesaid feoffees alien to one I. S. ; there, if they make a feoffment over to the same use, yet the second feoffees shall make this alienation, for there is in a manner an use to I. S. quod fuit concession, per Rede et FineiiT. But when the will is, that the aforesaid feoffees shall alien, there the au- thority is solely given to them : for if his will was, that his executors shall alien his lands, although they refuse to alien, yet the feoffees cannot alien. So if his will was, that the feoffees shall alien, and they will not, but die, yet the executors cannot alien. And so it is here. Fineux, chief justice, to the same purpose. And so if a man makes not a will, the common law makes a will for every man, as to his lands and his goods, and that is, so that the heir shall have the land, and the ordinary the goods. But if a man is de- sirous that his land shall be aliened in another manner to that which the common law ordains, then the common law suffers him to make his will of them.. And every will which a man makes ought to be construed and taken according to the purport of the words ; or, as it may be implied and ui> 2 m 3 derstood 534t APPENDIX OF CASES. derstood by the words, what his intent was. Therefore here, when he recites the names of the feoffees, and then says that the aforesaid feoffees shall alien, &c there it is as much as to say in effect that no other shall alien except them. And if the will was, that the aforesaid feoffees should alien within the two years next ensuing, if they do not do so, they cannot do it afterwards, but the heir of the feoffor shall have the land for ever. And if a man makes his will that I. S. shall have his land in perpetuum for his life, there by that he shall only have it during his life ; for these words, " during his life," abridge the interest given before. And so here, when he says the aforesaid feoffees shall alien, there no other can have that power, but only them. And there is a diversity where the power given to the feoffees is annexed to the land, and where not ; for if the will be, that the aforesaid feoffees shall make an estate over to a cer- tain person for certain year?, there, if they make feoffment over to the same use, the first feoffors cannot do that, for that power is a thing annexed to the land, which no one can do but he who has the land. But here the will was, that the aforesaid feoffees shall alien the land, &c. and that may well be done after the feoffment made by themselves to the use ; and therefore their power is not determined by their feoffment. And if a man has feoffees upon confidence in his land, and makes his will that his feoffees shall alien his land to pay his debts, there the creditors shall compel the feoffees to alien, &c. quod fait concessum per Rede et Tremaile. And so if the will was, that a stranger shall alien this land to one I. S. there I. S. shall compel this stranger by subpoena to alien this land to him ; and the feof- fees cannot alien. But if the will was, that the feoffees shall alien his lands for money to distribute, &c. (in pios usus), there no man can compel them to make an alienation &c. ; for no one is damaged, although the land be not aliened, APPENDIX OF CASES. 535 aliened, &c. ; and so there is a diversity, quod fuit conces- sum. And if a man has feoffees upon confidence, and makes a will that his executors shall alien his lands, there if the executors renounce administration of the goods, yet they may alien the land, for the will of land is not a testa- mentary matter, nor have the executors to interfere in this will, except so far as a special power is given to them. And if a man has feoffees in his land, and makes his will that his executors shall sell his land, and then he does not make executors, there the ordinary shall not meddle with the land nor the administrator neither, for the ordinary has only to meddle with testamentary matters, as of goods ♦, and consequently no more can the administrator, who is but his deputy. And, therefore, it was lately adjudged in the Exchequer chamber by all the judges of England, that if a man makes a will of his lands, that his executors shall sell the land, and alien, &c. if the executors renounce ad- ministration and to be executors, there neither the admi- nistrators nor the ordinary can sell or alien, &c. ; quod nota. Quod fuit concessit™ per Rede et Tremaile, for good law. And if a man makes his will that his executors shall alien his land, without naming their proper names, if they refuse the administration and to be executors, yet they may alien the land : quod fuit concessum per Fineux et Tre- maile for clear law : Rede non dedixit. And if a man makes his will, that his land which his feoffees have, shall be sold and aliened, and does not say by whom, there his executors shall alien that, and not the feoffees, per Rede 9 Tremaile, et Frowik. Fineux said nothing to this this day ; butthedaybefore,he in a manner affirmed this. Conisby said that the feoffees shall alien this, for they have the confidence placed in them, &c. But this was denied, for executors have much greater confidence placed in them than the feof- fees have, for the money to arise by the sale of the execu- 2 M 4 tors > 53Q APPENDIX OF CASES. tors shall be assets in their hands, and therefore they shaft sell. FineuXj Rede et Trcmaile said, that if a man makes his will that his feoffees shall alien his land, before the alien* ation the heir may take the profits, and they are seised to his use ; and if an alienation be not made by them, the heir shall have the land for ever, &c. No. XIII. The King against John Smith, Esq.(a) Serjeants Inn Halt, March 2, 1804. — The judgment of the Court, as deli' vered b$ the Lord Chief Baron, x\ le King against Smith has occupied 3 .. 10a of the court, and that in a great . to the prodigiously extensive consequences that it may have according as it is decided in the one way or in the other. We were therefore anxious to search in order to find out what materials existed en the subject. Af- ter all the pains we could take, we find them to be but few. We have found no decision or authority similar in its terms to the present case ; and the consequence of that is, where we can find principles laid down, we must be governed by them in the absence of every direct precedent on the sub- ject. The magnitude of the question is very considerable, because, on the one hand, from some instances of persons in the service of government, and who have been entrusted with the public money, I have experience enough to say, that the ingenuity exercised by them may be such as not to make it very difficult to avail themselves of their situation, and to render it no easy matter to make them responsible ; on the ether hand, it puts those who make purchases from (a) Fide supta, p. 277. persons APPENDIX OF CASES. oS7 persons in such a situation in a very unpleasant and preca- rious situation, if the lands or goods so purchased may be extended. In this view the question is of very great import- ance. The stake in the present instance is next to nothing ; but the decision will be such as will govern multitudes of cases that exist, and I believe many to exist of the same sort. This case arises on an extent that was issued against John Montresor, Esq. late engineer in the service of government in North America, who owed vast sums to government. It was found that a great balance remained in his hands which he had not accounted for. The extent issued to the sheriff of Kent — that you diligently enquire what; lands and tene- ments, and of what yearly value, the said John Montresor had in your bailiwick on the 28th of September, in the 18th year of our reign, when the said John Montresor first became indebted to us in the said money, or at any time after, in the common language. An inquisition is returned of course, and in the inquisition it is stated that the sheriff seised, &c. Without going minutely into all the circumstances of this case, I believe I can state from memory the leading facts upon which the question depends. The property now in question, which consists of a small messuage, and of some closes of land, originally belonged to a Mr. Thompson. He being seised of this property demised it for the full term of 500 years : the residue of this term was afterwards assigned to Ann Carter j and last of all to John Smith, the present defendant in trust. And in 1795 Mr. Smith pur- chased the reversion of General Montresor, he being then seised of this property in his demesne as of fee subject to this term of 500 years ; and at the time of the purchase Mr. Smith had no notice of any debt that had been incurred by John Montresor to the king. This 5S8 APPENDIX OF CASES. This is the short state of the case, and I believe it is all that is necessary : and the question then is, whether this outstanding term, which is held in trust for Mr, Smith, does or does not protect him against the claim of the crown. The argument on behalf of Mr. Smith turned almost entirely on the statute of uses in courts of equity, and be- sides that, on the doctrine laid down in Wiiloughby against Willoughby, which has never been shaken, and which I hope never will. I take that now to be a leading decision never to be departed from in cases between subject and subject. In answer to this case, made on the part of the defendant irrefragable as between subject and subject, in answer to this case it was argued, that the case of the crown is essentially different from that of the subject ; and as far as we are furnished with light on this subject, it does seem that the case of the crown is essentially different. In the first place we find from a variety of authorities, that lands or goods in the hands of debtors or accountants to the crown, or in the hands of those who are debtors to the debtors of the crown, or which are held in trust for them, or to their use, are most clearly the subject of an extent. Further, we find in PI. Com. 321, in the great case of the mines in the hands of the crown, there was a great number of the king's debtors brought into the court of exchequer, and there the court held that lands which had belonged to the king's debtors, which had been their property after they had so become debtors to the crown, were subject to the seisure of the king, into whatever hands they afterwards came, whether by descent, purchase, or otherwise. Among other cases there cited, is that, of sir Wra. Scyntloo, who married the widow of sir Wm. Cavendish, who was treasurer of the household. Sir Wm. Seyntloo and his lady were re- turned terre-tenants, in right of the wife 3 of certain land which was APPENDIX OF CASES. 539 was sir Wm. Cavendish's, and were called into the court of exchequer, and made accountable for the arrears due to the queen for sir William's office. See Dyer, 224 and 225. It appears from the case, that after sir Wm. Cavendish became indebted to the crown he purchased divers lands and after- wards aliened them, and took back an estate therein to him- self and his wife, and afterwards died without rendering any accounts, and the terre-tenants (as I have just stated of the land were charged to answer to queen Elizabeth for the arrears. These lands might have been seised in the hands of sir William, and for the same reason they might be seised in the hands of every one who came in under him. In 2 Rol. Ab. 156, the difference is stated between the effect of a sale of land by a debtor to the crown, when that sale took place before he became a debtor, and a sale after- wards. In Dyer, 160, there is the case of one Thomas Fa- vel, who was a collector of the 15th and 10th. He was indebted to the crown, and being seised of certain lands in fee simple, and having divers goods and chattels, die intro- missionis de collectione et levatione, of the 1 5th and 10th aforesaid, in extremity of illness aliened his tenements, goods and chattels to divers persons, and died without heir or exe- cutor, and process was issued against the terre-tenants, and possessors of the goods and chattels to account for the col- lection aforesaid, and to answer and satisfy the king thereof, &c. ; and this by the advice of the chancellor of England, the chief justice of England, and the other judges of either bench. It is therefore clear beyond all doubt that the land itself may be extended into whatever hands that land may have been aliened. The next step which we find in a matter of this kind, is the doctrine which is laid down in sir Edward Coke's case, and which is mentioned afterwards by lord Hale in deciding another case, which I shall state by and by. This case of sir 540 APPENDIX OF CASES. sir Edward Coke being of great consequence, the master of the court of wards was assisted by four of the judges in the hearing and debating of it j and after many arguments at the bar, the said four judges argued the same in court, viz. Dodderidge, one of the justices of the King's-bench, Tan- field, lord chief baron of the exchequer, Kobart, lord chief justice of the court of common pleas, and Ley, lord chief justice of his majesty's court of King's-bench. First of all I would draw your attention to this point, that this is an infinitely stronger case than any of those I have stated. In general the debtor to the crown was at one time in possession of the land himself ; but in this case the king's accountant never had the land in bim, the land and debt never centered in the accountant to the crown. The case in effect was this : — Queen Elizabeth, by her letters patent, did grant to sir Christopher Hatton the office of remembrancer and collector of the first fruits for his life, habendumtohim afterthe death or surrender of one Godfrey who held the said office, then in possession ; sir Christopher Hatton being thus estated in the said office in reversion, and being seised in fee simple of divers manors, lands and tene- ments, did covenant to stand seised of his lands, &c. unto the use of himself for life, and afterwards to the use of J. Hatton, his son in tail, and so to his other sons in tail, with remainder to the right heirs of J. Hatton in fee, with pro- viso of revocation, at his pleasure, during his life. Godfrey, the officer in possession, died, and sir Christopher Hatton became officer, and was possessed of the office, and after- wards he became indebted to the queen by reason of the said office ; and the question in this great cause was, whether the manors and lands which were so conveyed and settled by sir Christopher Hatton, might be extended for thesaid debt due to the queen by reason of the proviso and revocation in the said conveyance of assurance of the said manors and lands* The APPENDIX OF CASES. -541 The debt due to the queen was assigned over, and the lands were extended, and the extent came to sir Edward Coke -, and the heir of John Hatton sued in the court of wards to make void the extent ; and it was agreed by the said four justice and so it was afterwards decreed by Cranfield, mas- ter of the court of wards, and the whole court, that tne said manors and lands were liable to the said extent. The judges en that occasion cite a great number of cases, and some of them go a great deal farther than I could have well expected. I shall just mention two or three of them, and it will be unnecessary to state more. One of the cases there cited is, that of Waiter de Chirton, customer, who was indebted to the king 18,000/. for the customs and purchased lands with the king's money, and caused the feoffor of the lands to enfeoff certain of his friends with an intent to defraud and deceive the king; and notwuhstandmg, he himself took the profits of the land to his own use, and those lands upon an inquisition were found, and the value of them, and returned into the exchequer, and there by judgment given by the court, the lands were ^ed »t.o the king's hands, to remain there till he was satisfied the debt due to him ; and yet the estate was never in htm ; but be- cause he had a power (to wit), by subpoena in chancery, to compel his friends to settle the estate of the lanos upon him, therefore they were chargeable to the debt. See Dyer, 160. Walter Chirton in that case never was seised ot the saia lands, Chirton had no remedy in law to have the lands, but 'nis remedy was only in a court of equity. Another case is that of Philip Butler, who was sheriff ot a county; and being indebted to the king, his feoffees were chargeable to the king's debt by force of the word halwt for hatuii, the lands in his power. In Morgan's case it was adjudged, that lands purchased in the names of his fnend. 542 APPENDIX .OF CASES. to his use, were extendable for a debt due by him to the king. There are several other cases cited in sir Edw. Coke's case, and which are also mentioned by lord Hale in the case to which I have already alluded. In a great many of these cases, the lands that were seised for the payment of debts due to the crown had been held in trust for the king's debtors ; and it was no objection that the legal estate was not in them. The ground of decision there was, that they by an act of their own might at any time reduce it into possession : they had it in their power, viz. by a subpoena in chancery, &c. to compel their friends to settle the estate of the lands upon them, and therefore they were made chargeable to the debt. This being an outstanding term held in trust, it is ana- logous to all the cases of uses and trusts. It was held there to be no objection, that the legal estate was not in him, be- cause it was in his power, by an act of his own, to reduce it into possession. But the case that comes nearest to the present is that of the Attorney-general against sir George Sands. Upon an information exhibited here, and proceedings upon it, a case was made and stated, which was to this effect, viz. Sir R. Freeman purchased lands for the term of 99 years in his own name, and afterwards purchased the inheritance of the same lands, in trust, and then by his will disposed of these lands to the sons of sir George Sands, his grand- children born, or which should be born in his life-time, and directed conveyances to be made accordingly by his trustees, and died. At that time sir Geo. Sands had two sons, Free- man and George, and Freeman died j and after the death of sir Ralph, sir George had another son Freeman, who killed his brother George, for which he was attainted and executed, and APPENDIX OF CASES. 54S and no conveyances were made by the trustees, pursuant t« sir Ralph Freeman's will ; and the questions hereupon were two: 1st, Whether, as this case is, the term for years was forfeited ; 2dly, Whether or no the inheritance in trust was forfeited. The result in this case was, that, inasmuch as there did not appear to be a tenure, there could be no forfeiture for the felony ; because to a forfeiture for felony, and to an escheat, a tenure is requisite, and therefore judgment was afterwards given quod defender® eat i?id sine die. This case of sir George Sands is reported in Hardress, 488, and also in Freeman. I mention this case with greater confidence, because, though lord Mansfield, in the case of Burgess against Wheate, 1st Blackst. Rep. 123, observes in delivering his judgment, that it was a family business, and that the circumstances of sir Geo. Sands's case were com- passionate ; yet I have the authority of lord keeper Henley for saying it was decided on great principles of law. — Having this authority with me at this great distance of time, I con- ceive it gives it the description I have now mentioned. Hale, chief baron, says, there is no question concerning the forfeiture of the fee simple in trust, for that must arise by escheat, and there can be no escheat, but pro defectu tenentis. But here is a tenant in esse. If the offence committed had been treason, then there might have been a question, whether the inheritance in this case should be for- feited, in respect that the rent and tenure have a continu- ance. But whether sir Geo. Sands shall hold the land dis- charged of the lease, or that the king shall have the term, is the sole doubt. The king does not gain an interest in a trust by forfeiture, as he does in debt ; for there the interest of the bond passes to the king, and process lies to execute it in the king's own name. And it is questionable, whether the king can have this in point of prerogative, in case of felony 544 APPENDIX OP CASES, felony ; though perhaps more might be- said, if the Case had been treason. It is the intention of the party that creates and governs uses and trusts ; and therefore a lease shall be deemed to attend the inheritance, if it appears the parties intended it should do so, as here it does ; and then it is no- more than a shadow, an accessary to it, for otherwise it would not be attendant on it. And then it cannot in this case go to the felon, but to the administrator 01 George the son. And here they are consolidated by the intention of the will, which directs that the trustees shall make conveyances accordingly. Nor is it kept on foot, but only to avoid mesne incumbrances, which might affect the inheritance. And this appears to have been the intention of the parties, when the fee was purchased, and therefore the lease ought to go with the fee ; and in the cases of leases for years in trust, that have been forfeited, fraud was the ground of it in the cases that have been cited. Lord Hale says on another occasion (for this case was twice spoken to by the court), I agree that in the case of the king's debtor, lands in trust for him in fee simple are liable to the king's debt by the common law, jber cursum scaccarii, which makes the law in such cases ; and this appears by pre- cedents temp. Hen.VI. ; and before 4 Hen. VII. a trust or use was liable to a statute ; and that is the reason of Chirton's case in 50 Ass. And it was held, in sir Edward Coke's case in Curia Wardarum, that if the king's debtors have a power of revocation, that makes them liable to the king's debt ; and that was the reason of Babington's case in Cktia War- dorum, in 30 Car. j and of Hoad's case inPasch. 4/flc. where lands in trust for a recusant were subjected to the debt of 20/. per mensem : so, in 41 Eliz. Babington's case, a trust liable to a debt imprest, because cestui que trust has a profit by it, but that is a special case, and grounded on a special course APPENDIX OF CASES. 54-5 course m, the exchequer. He proceeds to state many other cases which I think it unnecessary to mention. If you take the converse of this case, I think it will make it still more clear. The reason why the term was not for- feited, was, because the inheritance thereof was not forfeited; but if the inheritance had been forfeited, the term must have been forfeited. In deciding according to the course of the common law, I therefore think it clear that an out- standing term cannot defeat the king's process by extent. In courts of equity it has been said, that a purchaser without notice is a person favoured by that court. Perhaps it may be a sufficient answer to say, that in the present instance we are not in a court of equity. The question is, What ought to be our decision according to the common law ? This ques- tion could not be decided in a court of equity : they could not sue for a decree. When a court of equity is resorted to, and this is the situation of the parties, the court does nothing but stand neuter between such parties, and leaves them to make the most of it. Now therefore I think on the whole, in the first place the land is chargeable that has been in the hands of the king's debtors ; and from the cases that have been decided, it is sufficiently clear, that the term is ; it is the whole interest in the land, whether it be divided or not ; and so likewise in uses and trusts ; and from what is said by lord Hale, I infer the same doctrine is applicable to the actual case now before us. It was hinted, that the 33 Hen. VIII. ca. 39, sect. 50, 53, and 74, puts the king's debts on the same footing as a statute staple; but we find the same difficulty again recurs, for the 33 of Hen. VIII. does not alter the subject out of which the thing is to be paid. If I suppose in the present instance they are put on the same footing with statutes staple, the question would return : supposing the king has a 2 n debt; 545 APPENDIX OF CASES. debt upon bond, which is to be treated as a statute staple, I do not find the act meddles with the subject out of which he is to compel the payment of his debt, but the act relates singly to the mode by which he is to do it ; and if the king were to put it on the footing of a statute staple,, it would de- prive him of no remedy which the common law gave him. The subject is not at all touched by the statute, but merely the manner in which he is to proceed, which perhaps gives the subject rather more advantages than he had before, though I do not see very clearly in what respect the situation of the king's accountant is altered. Now that being so, it should seem to be the result of what one finds in the books, that of the king's common law remedy it is impossible to doubt ; and that remedy is given in every case where the party who is indebted to the crown has a present beneficial interest, as well as a reversion : both of these are considered as chargeable for the debt of the crown ; the lands of the king's debtor may be extended by the crown, in whatever hands they may be found ; and therefore, upon the whole, the judgment of the court in this case must be for the crown. Judgment for the King. No. XIV. The Attorney General v. Lockley and others (a*). Chan. Mich. 9 Geo II. This was an information brought to secure a charity, and the case was thus : — John Radford, and Anne his wife, were seised in fee, and conveyed the premises by fine and deeds, declaring the uses thereof to their trustees and their heirs, to the use of them and their heirs, in trust for John Radford (a) Fide supra, p. 282. and APPENDIX OF CASES. 547 and his wife, and the survivor of them, and the heirs of the survivor, with power for the wife, in case the husband survived her, to charge the estate with 400/. The wife died first, and executed her power for charitable uses ; John enjoyed the estate during his life; and by will, dated 25th Jan. 1723, he devised the premises in fee to Tuder Lockley. Now this estate was to be sold for discharging the charity and payment of mortgages made by Tuder Lockley; and the question was, whether the sale should be subject to the dower of Tuder Lockley's wife, in case she survived her husband. It was argued by Noel in favour of dower, and by Verney against it; and the following cases were cited : Preced. Cane. 250, 241 ; Banks and Sutton at the Rolls 9 March, 1733. Preced. Cane. 336. Chan. Rep. 369. Show. 111. Preced. Cane. 65. Cro. Car. 190. Ambrose and Ambrose, determined in the year 1717, in the house of lords. Talbot, lord chancellor. This is a considerable point, and should be settled some way or other : in the first place, with regard to the wife, her demand is properly a legal one, and it has been hinted at, as if the legal estate was executed in Mr. Tuder Lockley; but there is no foundation for that, as the estate is limited to trustees and their heirs ; therefore, it is a legal estate absolutely executed in the trustees, for there cannot be a use limited on a use. Then the question will be whether Tuder Lockley 's wife is entitled to dower of an equitable estate of inheritance vested in her husband; for at present the husband is living, and if the wife died before him, then this question never can arise. As dower is a legal demand, so clearly with regard to a use, a wife was not dowable of it before the stat. H. 8. Vernon's case, 4. Co. 1 . Then how can she be dowable of a trust after the stat.? For is there any solid distinction between a use before the stat. 2 n 2 and 548 APPENDIX OF CASES. and a trust after it ? What was a use but a right to receive the rents and profits of lands of which the legal estate was in another ? And a trust is the very same now : and if before the stat. the right of the wife was considered strictly as a legal right, so that the equitable interest was not affected by it, the reason holds equally strong since the stat., that courts of equity should follow what was the rule before the stat. with regard to those estates. How there came to be a differ- ence as to estates by curtesy, I cannot tell ; nor how it came to be extended to estates by curtesy, and yet not to dower, I cannot tell. I do not see, on this general question, whether a wife shall be endowed of a trust- estate of inheritance, that there is one case from the time of the stat. H. VIII. to this time, that is directly in point, except the case of Fletcher and Robinson, Preced. in Cane. 250. That case is ex- tremely short; and the reason given for it is, whether it be a good one or no I shall not say, that the conveyance was considered as fraudulent, being done with an intent to pre- vent a forfeiture; and therefore in that case the court seems to have disregarded it, which shews it was not determined simply on this point, but on other matters, which do not fall in with this case. The case of Banks and Sutton seems to have been determined on this, that the time of the conveyances was come, and the husband had a right to call for it; and then the court, upon considering that as done which ought to have been done, might properly assist the wife in that case. The case of Bottomley v. Fairfax, Preced. in Cane. 336. before my lord Harcourt, is an express authority that a wife is not dowable of a trust-estate of in- heritance ; and to this it may also be added, that it is the genera, received opinion of every one who has attended this bar constantly, that they are not ; and it is the practice to make purchases in the name of the purchaser and trustees — tut APPENDIX OF CASES. 549 but to what Intent or purpose? Only to prevent dower, that by there being a survivor to the purchaser, his wife might not be entitled to it. But if it should be ruled, that a wife is en- titled to dower of a trust-estate of inheritance, provisions of this kind would be overthrown. I mention this, because it is hinted at, as if the practice of conveyancers was not of great weight; and truly it is not in their power to alter the law: but when there is a received opinion, and conformity of contracts, and settlements thereon, it is extremely dangerous to shake it, which would disturb the position of many who are very quiet, and think themselves very secure; therefore it ought to be done only on the clearest and plainest ground. In the present case I cannot say they are mistaken, because they have gone on this ground, that trusts are now what uses were at the common law, where a wife was not dowable of a use. There are other cases where terms for years have been carvedout, and the inheritance remains in the husband: and as to those there is no difficulty. Where the term is created for particular purposes, and the inheritance remains in the husband, and descends to his heir; which term is not a bar at law of dower, but only prevents the execution of it till the term is expired; there the term may be redeemed ; and that was the case of my lady Dudley, Preced. in Cane. 24 (. There the express limitation of the term was to the owner of the freehold after the trust expired. As to those cases where the inheritance is sold for a valuable consider- ation (Preced. in Cane. 65). which was the case of lady Radnor, and the purchaser took an assignment of the term, if it was without notice, there could be no difficulty ; but whether that case was so or not, I do not remember. But the present case is not that of a wife entitled to dower, with a cessat executio ; for the question here is, whether the wife is dowable of an equitable estate of inheritance in fee 2 n 3 simple, 550 APPENDIX ©F CASES. simple. As to what is said, that this is to be considered as a contract on the part of the wife, therefore equity should supply it : the answer is, Equity, where there is a valuable consideration, will supply form. But, hath she contracted for this particular estate ? No; for nothing but what the marriage implies, which is, that she shall have dower of what she is dowable by law; and then the question comes to this, whether she is dowable by law of a trust. Here she could have nothing of this in contemplation at the time of her marriage; for the equitable interest was left to her hus- band, long after the time of her marriage, which was in 1713 ; and the equitable estate was not given him till 1723. Therefore the decree must be, that the land shall be sold and enjoyed, discharged of any claim of dower. In another manuscript note of this case, lord Talbot is reported to have said that trust-estates, since the statute of uses, ought to be considered as uses, before the statute, of which estate a woman could not be endowed ; that the case of Bottomley and lord Fairfax was express in point : that, as this method of conveying on purpose to prevent dower, had been used for so many years, a court of equity ought not to make a decree which would overturn such a number of settlements. And the reason of the decree in the case of Banks and Sutton (which he stated) was different; for there the direction of the will was, that the legal estate should be conveyed to Sutton; and the wife married him on the expectation of that estate, and it was a fraud in the husband not to call for the settlement. The other cases of dower of trust-estates are, where terms are created for par- ticular purposes, and the inheritance remains in the husband : in these cases she has a title of dower, and so she may come into this court and redeem the term, which is the case of lady Dudley. Bret APPENDIX OF CASES. 551 No. XV. Bret v. Sawhridge and others, (a). Before the master of the Rolls. Sir John Wroth was seised in fee of the lands in dis- pute, and mortgared the same for 1000 years to Francis Hill, as a security for 1 100/. which, by several mesne assign- ments and further charges, to the amount of 2400/. in the whole, came to Richard Watson, in trust for sir Edward Bret ; and Brewster (who assigned the same to Watson), covenanted that sir John Wroth, or his heirs, should convey the inheritance to sir Edward Bret: and sir Edward Bret reciting by his will, that he had purchased of Brew- ster the residue of the said term of 1000 years, and that there was a covenant in the purchase deed from Brewster as aforesaid, but that, Sir John Wroth dying before the con- veyances were executed, and leaving an infant of 8 years old his heir at law, it was then impossible to have the fee conveyed : therefore sir Edward Bret declared it to be his will, that when the heirs of sir John Wroth should attain the age of 21, a conveyance should be executed according to the settlement in tail after mentioned; and he devised the same to John Bret Fisher for life, remainder to trus- tees, to preserve contingent remainders ; remainder to his first and every other son in tail male successively ; re- mainder to Nathaniel Fisher for life, and in the very same manner ; and so to Edward Fisher ; remainder to the right heirs of Stephen Beckingham and Richard Watson (the trustees of the term), whom he made his executors; and then he directed the remainder of the term should re- (a) Vide supra, p. 291. maniy Sn 4 £<52 APPENDIX OF CASES. main, and be attendant on the inheritance, according to the limitations above mentioned : and all other his real and personal estate he devised to John Bret Fisher, Nathaniel and Edward Fisher. Upon the death of sir Edward Bret, the executors proved the will ; and afterwards Nathaniel and Edward Fisher died intestate, without ever having any issue j and John their brother took out administration to them. John Bret Fisher, thinking the limitations over to the right heirs of Beckingham and Watson void, took himself to be absolute owner of the term, as co-residuary legatee, and representative of the other two his brothers, in case he should ever die without having issue, and mort- gaged the residue of the term for ] OOO years to the defen- dant Sawbridge, as a security for 350/. One Newland pur- chased the reversion, and the equity of redemption, from the right heirs of sir John Wroth, for 100 broad pie. ces ; but before the purchase, he promised John Bret Fisher should have the benefit of it, if he would pay him the pur- chase-money, his expenses, and a small gratuity : however John Bret Fisher, a long time after the purchase was com- pleted, neglected to comply with the terms, and so it was sold to the defendant Sawbridge. John Bret Fisher, by his will, devised all his real and personal estate to the defendant Sawbridge, and made him his executor, and afterwards died without ever having issue. The plaintiff filed his bill, to have the estate conveyed to him according to the will of sir Edward Bret, all the pre- cedent limitations being spent, and to have an account of the rents and profits, he being heir at law, and also repre- sentative of the personal estate of Richard Watson, who died in the life-time of John Bret Fisher : but Stephen Beckingham is still alive, and made a defendant in this cause. Sir APPENDIX OF CASES. 553 Sir Joseph Jekyll, master of the Rolls, after argument on both sides, and time taken to consider of it, delivered his opinion to the effect following : the plaintiff in this case does not want to have the term assigned to him, because he has the legal interest of it in him, as representative of Richard Watson, who was a trustee of the same for sir Edward Bret. Then the point to be determined is with re- gard to the account of the rents and profits. Though Brew- ster covenanted that sir John Wroth, or his heirs, should convey the inheritance to sir Edward Bret and his heirs, yet it does not appear that sir John Wroth was under any obligation to convey the same ; for he was no party to the conveyance to sir Edward Bret, nor did any thing to shew his agreement thereto : but the covenant of Brewster to sir Edward Bret, being before the statute of frauds, there might be a parol agreement by sir John Wroth, that he would convey, and it would be good ; otherwise it would be diffi- cult to account why Brewster should enter into such covenant. However, sir Edward Bret, by his will, desiring the heirs of sir John Wroth to convey the inheritance, and directing the limitations of the same, and that the term should be attendant on it, did intend to devise the inheri- tance, and not the term in gross. But it is said, though the inheritance cannot pass, the term may according to the limitations in the will of sir Edward Bret. It is not neces- sary now to enter into the question how far limitations of terms are good, or whether, by such limitations as those in the present case, all the prior devisees dying without having had issue, the remainder of this term could vest in the plaintiff as to one moiety. But if I was to deliver my opinion about it, I should be under great difficulty : for on this point there is the opinion of one lord chancellor against another j my lord Cowper, in the case of Higgins and Dewier, ■554t APPENDIX OF CASES. Dowler, 2. Vern. 600, and Salk. 1.56. held such remain- der of a term to be good, all the parties dying without ever having any issue ; and by the present lord chancellor, there have been two cases determined, Clare and Clare, P. 7 G.II. Saberton and Sabcrton, 8. G. II. In one of them it may be taken, there was an estate tail in the first taker; but in the other it seems not to be so; but in both of them my lord chancellor held such limitations of estates tail, though to persons not in being, and never vesting, to be too re- mote, and so delivered his opinion. Higgins and Dowler, as it appears to me, was not clearly stated and urged, but was taken as it is reported in Salk. and Vern. which my lord chancellor said was incorrectly done in both of them : but I have a compleat report of it by two gentlemen; and in the case of Stanley and Lee, M. 8. G. II. Hooked into the pleadings, and the register's book; and on the whole matter I find the judgment of my lord Cowper was, that such limitations never having been in esse, and so not vesting, the limitation over might be good. There is one case 1 did not mention, when I gave my opinion in Stanley and Lee, and that is Massenburgh and Ashe, Chan. Rep. 275, in which the judges were of opinion, that the limitation of a trust of term must be considered as limitations of a erm at law ; and that case is stronger for allowing limitations over than this, though that was on a deed, and this is on a will, which has a more favourable construction. But I must leave this point of the limitations of a term for future consi- deration, if ever it comes before the court, for this case will turn on a different point (!). Here sir Edward Bret, thought (1) It is very satisfactory to find that sir Joseph Jekyll did not give up his opinion in Stanley v. Lee. The doctrine in the case of Stanley v. Lee (2 P. Wms. S.C. MS.) is now well established, and the case of Clare APPENDIX OF CASES. .5.55 thought he was entitled to the trust of the inheritance, and did not intend to devise the term in gross, but in- tended Clare v. Clare (For. 21, S. C. MS.) is over-ruled by a series of authori- ties. See Sabarton v. Sabarton, For. 55, 245, S. C. MS. ; Knight v. Ellis, 2Bro.C.C. 570 ; Phipps v. lord Mulgrave, 3 Ves.Jun. 613. The rule, as now settled, is accurately stated by Mr. Fearne. —Whatever number of limitations there may be after the first executory devise of the whole in- terest, any one of them, which is so limited that it must take effect (if at all) within twenty-one years after the period of a life then in being, may be good in event, if no one of the preceding executory limitations, which could carry the whole interest, happens to vest ; but when once any preceding executory limitation, which carries the whole interest, happens to take place, that instant all the subsequent limitations become void, and the whole interest is then become vested. Exec. Dev. 4th edit. 415. In the late case of Brown v. Higgs, 4 Ves. 708, a leasehold estatewas bequeathed to J. B., and to the heirs of his body lawfully begotten ; and in default of such heirs over. J. B. died in the testator's life-time. Lord Alvanley admitted, that if J. B. had survived the testator, the limitation over would have been absolutely void ; but that in the event that had happened it was not void, all the limitations, as to personal estate, being clearly good, until one vests carrying the whole interest. Lord Eldon however, upon the case coming before him, threw out a doubt upon this point ; for he observed, the commencement of die limi- tation over was not merely in case J. B. die in the life of the testator, but after a general failure of issue. See 8Ves.Jun.5CJ8, 5dQ. It was not, however, necessary to decide the point. But it seems clear, that lord Alvanley's opinion cannot be supperted. In a manuscript note of Clare v. Clare (and see For. 26), lord Talbot said, he never had any doubt but that a will or deed ought to be construed as if things stood as they did at the time of making it ; and that no accident or event happening after- wards should vary the construction of it, unless such accident or event was particularly provided for or against by it. We cannot but perceive the marked distinction between a decision, that a remainder over shall be good, where the preceding limitation is to a person not in esse, and who never came into existence ; and a decision, that the limitation over shall be good, by the death of the first taker in the testator's life- time, when the 556 APPENDIX OF CASES. tended to devise the inheritance, and that it should at- tract the term ; "Whitechurch v. idem, 10th Feb. G. I. A man the bequest over would have been absolutely void if the event had hap- pened which was contemplated by the testator. I shall close this not? by observing, that it has frequently been thought that an executory devise may be limited to take effect twenty-one years and a few months, allowing for gestation, after lives in being, without reference to the birth and infancy of the devisee. It is observable however that this point has never been decided. The case of Stephens v. Stephens, in Mr. Forrester's reports, does not come up to it ; and yet that case was then thought to go a great way; and it is observable that the judges, in their certificate, gave as a reason for their judgment, that the power of aliena- tion would not be restrained longer than the law would restrain it, viz. during the infancy of the first taker. The devise was to an unborn child of a person in esse, at 2 1 . To this there certainly can be no objection ; but if it should be thought, that the 21 years and a few months were merely allowed for the birth and infancy of the child, and it seems im- possible to account for this rule on any other rational ground, then it may be doubted, whether an executory devise, at least toa person unborn, can be limited to take effect at the expiration of a term in gross of 21 years and a few months, afterlives in being ; for in that case the devisor takes the chance of the person who shall then become entitled, being an infant, in which event the power of alienation would be restrainedlongerthan it would in the common case of a strict settlement. It is true that, in the case ofa strict set- tlement, several successive infancies may occur, during which the estate would be unalienable j but in this case the same thing may happen, and 21 years are moreover taken, during which the estate cannot be aliened, although the person presumptively entitled is adult. This certainly out- strips every other mode of tying up an estate. An estate may, by legal conveyance or devise, be limited to a person unborn, for lite, but estates cannot be given to the children of ihat person, as pure! lasers ; so that even in this case, which at first sight appears a great stretch, the estate is only tied up in any event ly the limitation, during a life in being, and the 21 years and a few months are not taken independently of the birth and infancy of the person intended to take. The opinions which have been expressed on this subject appear deserving of the student's attention, In Thel'usson v. Wood- ford, APPENDIX OF CASES. A man being seised of a reversion in fee, and having the trust of a term for years to attend it, made a will of his own hand- ford, 4 Ves. Jun. 337, I observe that lord Alvanley said, ad- dressing himself to this very point, that as to the period of twenty- one years, with submission to the learned judge (Buller) who imme- diately preceded him, it had never been considered as a term that may, at all events, be added to such executory devise or trust : he added, that he had only found this dictum, that estates may be unalienable for lives in be'mgand 21 years, merely because a life may be an infant, or en ventre samere. Therefore he was clearly of opinion, that expression could not be held to mean more than children in the womb at the testator's death (1 ). This opinion is entitled to peculiar attention, considering the judge from whom it fell, and that it was deliberately made in opposition to an opi- nion expressed by another learned judge ; although I strongly incline to think that Mr. justice Buller did not intend to say, that the term of 21 years could be taken without reference to infancy. See 4 Ves. Jun. 328. The same doctrine has been frequently laid down, although not al- ways in terms. Lord C. B. Macdonald, in delivering the opinion of the judges in Thellusson v. Woodford, said that with an easy interpetration we find from lord Nottingham, what that tendency to a perpetuity is which the law has considered as a public inconvenience, namely, where a conveyance would have the effect of making lands unalienable beyond the time which is allowed in legal limitations, that is, beyond the time at which one in remainder would attain his age of 21 years, if he were not born when the limitations were executed. I understand him to mean, said the learned judge, that he gives the same (but no greater) latitude to executory devises and executor)' trusts as to estates tail. This has ever since been adopted, 1 New Rep. 386. And in another place the same iudge observed, that the established length of time daring which the vesting may be suspended, is during a life or lives in being, the period ot gestation, and the infancy of such posthumous child, 1 New Rep. 3p3. So in Goodman v. Goodright, lord Mansfield said that a life in being, and 21 years afterwards, is the utmost extent for an executory devise, and is no more than the common law allows in legal limitations, which restrain the heir from aliening till 21. 4 Ves. Jun. 2/3. (1) And see his judgment in Routledge v. Dorril, 2 Ves. Jun. 33fi Lord 558 APPENDIX OF CASES. hand-writing, and thereby carved out several limitations of the land and premises, not unlike these now in question ; but Lord Kenyon laid down the doctrine instill plainer terms in Long v. Blackall, 7 T. Rep. 102. And the same doctrine was explicitly laid down in the reasons offered on the part of the crown, for affirming the judgment in Thellusson v. Woodford, 1 New Rep. 379, and* &ee 4 Ves. Jun. 260, 264,at thetop. And inarguing in support of the will, the counsel addressing themselves to the question, whatwerethe principles established by all the casesas forming the boundary .'said, They are, that an estate may be limited upon a contingency to take effect within lives in being, and a certain portion of time afterwards. It is a mistake to say that may be extended to a term in gross for 21 ysars ; that cannot be done. 4 Ves. Jun. 292, 293. Mr. Yorke also has deliberately said, that by way of execu- tory devise or springing use, the inheritance may be suspended from vesting during a life or lives in being, or during the infancy of the first unborn tenant in tail, bnt it can be suspended no longer, 2 Vol. Ca. and Opin. 440. And in the duke of Marlborough's case, it is expressed in the reasons of the very able counsel of the respondent, that by the policy of the law against perpetuities, the vesting of the inheritance or ownership may not be suspended beyond the compass of a life or lives in being, or beyond the age of 21 years of the first unborn tenant in tail, during whose infancy the law itself will restrain his power of alienation. Lord Spencer v. duke of Marlborough, 5 Bro. P. C. 592. And Mr. Powell appears to have construed the rule in the same way. Ex. Dev. 113. Indeed, if the contrary doctrine is clear, how came Lloyd v. Carew, (Show. P. C.) to undergo so much discussion, and why has so much alarm been manifested at the decision in Long v. Blackall ? If lord EL don entertained this opinion, then it should seem that he thought an ab- solute term of nine years a greater tendency to a perpetuity than any given number of lives. See Crooke v. De Vandes, hfra. Such are the authorities against the extension of executory devise3 to a term of 21 years in gross after lives in being ; and I have not met with any authority in the books in which the contrary doctrine has been laid down, if I except what appears to be an allusion to it in Mr. Har- grave's very learned argument in Thellusson's case, see 4 Ves. Jun. 278, (but see ibid. 260, 264, at the top), and an expression of the chief baron's, in delivering the opinion of the judges : after citing the result of the cases as summed up by lord chief justice Willes, (Rep. 215), his lordship added, that, comparing what the testator had done in the present case APPENDIX OF CASES. 55* but did not publish it in the presence of witnesses ; and the doubt was about the limitations of the term; for the will could not case (Thellusson v. Woodford) wilh what was above cited, it would ap- pear that he had not postponed the vesting even so long as he might have done. 1 New Rep. 385. But in the passage cited from "Willes, the rule seems expressly referred to the case of a child in ventre sa mere. If that part of the passage in which it is said " that the rule has in many instances been extended to 21 years after the death of a person in being, as in that case likewise there is no danger of perpetuity," should be thought to mean a term of 21 years in gross ; it may be answered, that there i» «• instance in which the rule has been so extended. Indeed this observation of the lord chief baron's is more than counterpoised by the observations before stated, in which he repeatedly confined the allowance of the 21 years, &rc. to the gestation and infancy of the devisee. In touching upon this interesting subject, in regard to which so much still remains to be said, one scarcely knows where to end. In the late case of Crooke v. de Vandes, before lord Eldon, (see 9 Ves. Jun. 197), a legacy was given to the nephews and nieces of the testator, if at the end of 30 years from his decease neither of his two grandsons (both living) had any grandchild living. The bill charged that this bequest, at the expiration of 30 years from the death of the testator, was too remote and void ; and this point was treated as per- fectly clear both at the bar and upon the bench, and judgment appears to have been given accordingly. If an executory devise may be limited to take effect at the expira- tion of 30 years from the devisor's death, there seems reason to contend that a pecuniary legacy may equally be given at the same period. Now in Scattergood v. Edge, 1 Salk. 229, tnc court held unanimously, that an executory estate to rise within the compass of a reasonable time, was good ; that twenty, nay thirty years, had been thought a reasonable time. In Blandford v. Thackerell, 2 Ves. Jun. 238, lord Rosslyn, laid it down that you may give a legacy to the grandson of A., born in the life-time of A. It is, he added, a good description of the legatee; and he would take within 21 years afte» the life in being. And the rule may be laid down more broadly, s for a legacy may be given after two or more lives in being. Lord Eldon appears to have held, that 30 years is, in the eye of the law, a greater portion of time than any given number of lives. In Scattergood v. Edge, than which few cases were better considered, the judges 560 APPENDIX OF CASES. not pass the inheritance, being not executed according to th* statute of frauds. But it was insisted, it might carry the terrr> or judges expressed an opinion which would not support the judgment in the case of Crooke v. de Vandes. Long as this note unintentionally is, yet I am still invited to offer a few observations on devises not executory. The decision in the recent case of Seward v. Wtllock, 5 East. ig3 f claims the particular approbation of the profession : it in some measure opposes that desire to effectuate the general intention of a testator at the expense of a particular intent, or rather to the destruction of every in- tention which has lattly so much prevailed. Whoever shall carefully class these cases, will find his labour well rewarded. The student will observe that in the Attorney-general v. Sutton, 1 P. Wins. 754. S. C. MS. and that line of cases, there is no pretence for defeating the express limitations to the children as far as they extend •, but subject to those limi- tations the parent may well be holden to take an estate tail. The leading decision on this subject is Robinson v. Robinson, 1 Burr. 38. It is remarkable that, although Mr. Fearne refers to similar cases, yet he does not discuss this case to which, on the contrary, lord Ke- nyon never failed t© advert in the many decisions that he made on this subject. I cannot account for Mr. Fearne's omission of it. Highly as the profession are indebted to the labours of this writer, yet one may be allowed to observe, that he appears, at least in some measure, to have confounded the cases under discussion with those which depend strictly on the rule in Shelley's case. The cases appear to be totally distinct. The reasons at the end of the case of Robinson v. Robinson are well known to have been written by lord Mansfield. In these reasons it is said, the difficulty was, how to mould an estate agreeable to the rules of law, to effectuate the testator's intent, and to construe his sense and meaning into apt words of limitation. If the father could have taken an estate for life, and the sons successively an estate in tail male, the whole intention would have been better answered : for by such construc- tion all the words in the will would have received their naturalsense and meaning, without rejecting any words ; and none should be rejected, unless the testator's intent cannot be otherwise attained. But THAT could not be by law. An estate to the heirs male of the body of Laun- celot Hicks is implied, though an estate for life only is given to him ; because the testator's heir was not to take till failure of such heirs. But by APPENDIX OF CASES. 561 vx the personal estate, upon which the opinion of the court was taken. But it war, determined, it should not pass, because fcy law the testator could by no: words have made the father tenant for life, and the heirs male of his body purchasers. By this position the student must merely understand that the testator could not make the father tenant for life, and the heirs male of his lody purchasers simply by those words, because the courts will not construe those words, standing unexplained, to mean first and other sons. But -of course a man may be made tenant for life, and the heirs male ot his ^cdy purchasers, by apt words of limitation. The reasons go on to state, that if he had devised " to the father for life, remainder to the son for life, remainder to the heirs male of the body of the father," or " to the father for life, remainder to the son, and the heirs male of the body of the father," in either of these cases the father must have taken the estate in tail wale. The case put in Lit. sec. 30. and the determination mentioned in lord Coke's comment upon that section (in pa. 26, b.), on the gift " to Roberge, and to the heirs of John de Mandevillc, her late husband, on her body begotten,'' are no exception to this rule; for in both cases the father was DEAD at the time of creating the intail. Here the student should be told, that the death of the father is merely -mentioned to show the reason why the son took immediately, for in other Respects that fact seems to have been unimportant. If John de Mande- Ville had been alive, yet as he would have taken no preceding estate of freehold (in truth no estate was limited to him), the limitation to the iheirs of his body would not have attached in him, and the words could not give an estate tail to the Wife, because the heirs were not of her fcody. The heirs, therefore, necessarily took by purchase ; that is, the first took by purchase, and the others as it were by descent ; for although 'the limitation did not attach in the ancestor, yet it devolved upon the same persons as it would have done had it vested in him. And this rule prevails in every case where the ancestor does not take a preceding estate of freehold. But where the ancestor does take such an estate, and the subsequent limitation is held to vest in the heir, he takes strictly by purchase, and upon failure of his issue inheritable to the intail, the estate tail ceases. 2 a Next 562 APPENDIX OF CASES. because the devisor intended to pass an inheritance, and the writing under the testator's own hand was looked on as an Next to Robinson v. Robinson, perhaps, the most important case on this subject is Doe d. Candler v. Smith, 7 T. Rep. 530. The devise was, "To my daughter, MaryAscough, and the heirs of her body lawfully to be begotten, for ever, as tenants in common, and not as joint tenants; and in case my said daughter shall happen to die before twenty-one, or .without leaving issue of her body, then to R. Ascough, his heirs, and assigns for ever." Lord Kenyon (whose decisions are admired by no one more than by the writer of this note) said, there were no words of limita- tion added totheestate given to the children (supposingthey took aspurcha- sers), and yet the remainder over was not to hike effect until there was a general failure of her issue, so that there must be an estate to compre- hend all her children for ever. He admitted, that the testator intended that his daughter should only take an estate for her life, and that her children should take as purchasers, but then he also intended that all the progeny of those children should take before any interest should vest in his more remote relations : now the latter intention could not be carried into effect, unless the daughter took an estate tail. Therefore he deter- mined that she did take an estate tail, in order to give effect to the tes- tator's general intent. This is indeed a strong c^se : the words, "as tenants in common, and not as joint tenants," are so forcible, and so materially vary the case from a deviseto the heirs(general or special) where they are adjudged to take by descent; (see Doe v.Applin,4T.Rep. 82 : lBos.andPall.221 j ST. Rep. 7 n. ; 4 Ero. C.C. 546), that it required a very general intent to autho- rise the court to strike these words out of the will. Lord Kenyon's rea- son for so doing was, that there were no words of limitation added to the estate given to the children ; and certainly there were no express technical words, but the devise was to them "forever," which words were sufficient to give a fee, Co. Litt. 9 b. ; and in this case, the word " heirs" appears ex vi termini, to have carried a fee. To this effect is the case of B- rchett v. Durdant, 2 Lev. 232, (adjudged by the name of James v. Richardson), where a devise to the heir male of A. then living, and to such other heirs male or female as he should thereafter happen to have of his body, was he!d to operate as a descripiio persona, and conse- quent!} the heir took by purchase. Then the question n as, whw. estate the heir took, and it was resolved that he took a fee j for by htirs is in- cluded APPENDIX OF CASES. 563 an inchoate act to pass the inheritance, and therefore could not operate on the term. Besides, the testator in that case having prepared a writing which was intended to be execu- ted according to the statute, there was no notice taken of any term that should be attendant on the inheritance, as there is in the present case, which makes it stronger against the plaintiff than it was in that case. That case looks like an authority that must govern the present case ; for though sir Edward Bret was not entitled to the trust of the inhe- ritance, yet he thought sir John Wroth was bound to con- vey, and on that assurance and persuasion made his will, and intended to pass it as an inheritance. There are several cases, where a man intended to pass something, and yet the law will not allow it ; as in case of a devise, where there is an uncertainty either of the person or the thing, a fortiori here it should be void, because the testator inten- ded to pass what he had not, for he intended to pass the inheritance when he had it not ; and there is a great dif- ference between real and personal estates, as to being assets or not, and also as to the course of succession to whom the same shall go after the death of the owner ; and there is like- wise a difference where a will is made as to the limitations of the one and of the other ; therefore,when the testator intended eluded all the heirs of the heirs : and the judgment was affirmed, first in the exchequer, and afterwards in the house of lords. Upon the au- thority of this case it may probably be thought, that the children of M. Ascough took in fee as tenants in common, in which case the progeny of the children would take, and lord Kenyon's objection be removed. Perhaps the true construction of the devise was, to M. Ascough for life, remainder to her children, as tenants in common in fee, provided that, if she died under 21, and without issue, then to R. Ascough in fee ; so that the devise was for life, with a contingency with a double aspect, as in Loddington v. Kime, and that line of cases. It is clear that or meant and\ see Fairfield v. Morgan, printed cas- Dom. Proc, 1 1th July, 3605. 2 o 2 to jG4 APPENDIX of cases. to pass an inheritance and had it not, there is no reason to suppose he designed to pass a term in gross ; for he says the term shall be attendant on the inheritance according to the limitations mentioned in the will ; and so, as to passing the term, the testator had not animum testandi : therefore I con- ceive the bill must be dismissed, No. XVI. Forshall v. Cole and Short («), Ch. 27 th Nov. 1733. The master of the Rolls sitting for the Chancellor. Bill was brought to have a bond delivered up and pro- ceedings at law upon it to be stayed ; the bond was entered into on this occasion : one Durant, in 1728, made a mort- gage to plaintiff, but, before this, had given a bond to Cole for 200/. Cole, in 1725, obtained judgment upon his bond, and afterwards, since the date of the mortgage, took out an elegit, and extended the mortgaged premises towards satis- faction of his judgment: upon this, plaintiff, to save expense and discharge the lands, gave Cole a bond for the 200/. and interest ; but it was agreed between them, that the bond should be deposited in Short's hands, and only to be made use of if Cole's judgment was entered so as to affect the lands precedent to plaintiffs mortgage. The judgment was signed in 1725, but not doggeted, secundum stat. 4 & 5 W. and M. c. 20, till 23th January, 1730/ Upon reading the statute the master of the Rolls was of opinion, that judgments cannot be doggeted after the time mentioned in the act,, viz. the last day of the subsequent term in which they are entered ; and that the practice of the clerks* doggeting them after that time is only an abuse for (a) Vide supra, p. 3 1 1, 44(J. the APPENDIX OF CASES. 565 the sake of their fees, and ineffectual to the party ; and he said he would speak to the judges about it. Solicitor General. It is proved in the cause, that the mortgagee had aotice of the judgment at the time of the mort), Ch. Mich. 9 Geo. II. This cause was very long and intricate ; but the chief question was, what length of time would bar an equity of redemption ? And as to that point, Talbot, lord chancellor,, said that courts of equity had of later years generally ad- hered to the time lain down in the statute of limitations with regard to ejectments, and that it was certainly right to have fixed rules in equity as well as law, that people might know- how far their property extended, and where it was bound ; (a) This case was by mistake omitted in p. 536, supra, (b) Vide supra, p. 242. and APPENDIX OF CASES. 571 and that he did not know any more reasonable rule in gene- ral than what the legislature had prescribed for such posses- sory actions. The person claiming the equity of redemption offered some proof out of the ecclesiastical court to show she was an infant at the time of her marriage, which was not allowed to be read, and other proof that the marriage continued for many years, both which taken together would excuse the non-redemption for a long time ; but my lord chancellor gave her liberty to file an interrogatory to prove her infancy at the time of her marriage, if she could; and said, he would then consider whether equity had also followed the statute of limitations in allowing only ten years for infants and femes coverts to commence their suits after the imperfections removed, for he did not remember the court had pursued that part of the statute ; and Mr- Verney, king's counsel, cited the case of Brewer and Baker- straw, which he believed to be about five years ago, where the father mortgaged some chambers in Gray's Inn, and died, leaving his son an infant, during which time many years were saved ; and yet nineteen years after he was come of age he was permitted to redeem. But to this Mr. Fazakerley answered there was as much reason for observing it in the one case as the other ; and that, in the present case, thirteen years had passed between the death of the husband and the bill filed for a redemption. This was on a supposition she could prove her infancy at the time of her marriage ; for if she was then of full age, my lord Chancellor said, the time would attach and run out against her, notwithstanding the subsequent marriage, and then she would be put off from all possibility of relief, for there would be near forty years possession against her un- accounted for. By statute 21 Jac. 1. c. 16. persons hav- ing any right or title of entry must enter within twenty years after titles accrued j but the title of infants, femes covert 572 APPENDIX OF CASES. covert, he. are saved, so as they commence their suits within ten years after the imperfection removed. This cause coming on again the same term, was ended by consent of the parties: but lord chancellor Talbot spoke however in this case to this effect : A peaceable and quiet possession for a long time weighs greatly with me in ail cases. The foundation which the court goes on in cases of the like nature with the present, is not any presumption, that after a long space of time the party has deserted his right ; but to quiet and secure men's possessions, which is very reasonable to be done after twenty years time, without some very particular circumstances : and for this cause a court of equity has generally acted in conformity to the statute of limitations. Whether the present plaintiff was an infant at the time of her marriage, is to me very doubtful ; but taking it she was then an infant, as the court has not in general thought proper to exceed twenty years, where there was no disability, in imitation of the first clauses of the sta- tute, so if I had been forced to have made a decree in the present case, I should have been of opinion, that after the disability removed, the time fixed for prosecuting in the proviso, which is ten years, should also have been observed ; for the proviso containing an exception of several cases out of the purview of the statute, if the parties at law would avail themselves by the proviso, they must take it under such restrictions as the legislature hath annexed to it, and that is, to sue within ten years after the impediment ceases. Why should not the same rule govern in equity ? I think there is great reason that it should. The persons who are the subject of the proviso are not disabled from suing, they are only excused from the necessity of doing it during the continuance of a legal impediment ; therefore when that difficulty is removed, and no body can say how long it may last. APPENDIX OF CASES. 573 last, the time allowed after such impediment removed for their further proceeding should be shortened. If they would excuse a neglect under the first part of the proviso, should they not do it upon the terms such excuse is given ■? If I had given my opinion on this case, I should have dis- missed the bill. i Since the work has been printed, the case of Morice v. the bishop of Durham, 1 1 Ves. Jun. 57, has been published In this case lord Eldon disapproved of the decision in Wat- son v. Birch, vide supra, p. S8, and held, that after a pur- chaser has confirmed his report, unless some particular prin- ciple arises out of his character, as connected with the ownership of the estate, or some trust or confidence, or his own conduct in obtaining his report, the bidding ought not to be opened. Aftep. line 8, page 302, supra, what follows was, by- mistake, omitted : " although if any judgments are entered up after the purchase -money, being an adequate consideration, is actually paid, equity would relieve the purchaser against the judg- ments, notwithstanding that they were entered up previously to the execution of the conveyance; the vendor being, in equity, 'only a trustee for the purchaser, and a judgment being merely a general lien, and not a specific lien on the land : and this equity prevails, whether the judgment cre- ditor had or had not notice of the contract («)." (a) See Nek. Cha. Rep. 184; Wms. 278, 10 Mod. 41S, 11 Vin. Finch v. earl of Winchelsea, 1 P. Abr. 118. The case mentioned in the note to p. 433 has, since that note was printed, been put off till next term. INDEX. INDEX. In order to avoid repetitions, the points have been arranged undei the heads to which they appeared principally to belong, and references are made to the principal heads from every other title to which it was thought a reader would refer for any particular point. To give an in- stance, under the head, act of bankruptcy, the reader is referred to " Notice," where he will find whether or not an act ©f bankruptcy is notice to a purchaser. Abstracts — what should be attended to in examining them., 8, n. if the abstract be not ready at the day, the ven- dor cannot enforce the contract at law, 157. but if the purchaser do not call for the abstract in sufficient time to complete, or receive it after the day fixed, equity will relieve the vendor, 157. must be furnished by the vendor, at his own ex- pense, 260. should mention every incumbrance, ibid. is considered complete, when, ibid. See Time. Acres-— what shall be deemed customary, and what statute, 202. Act of parliament— ^to, Notice. Act of bankruptcy — See Bankruptcy, act of. Action — a party is entitled to recover a penalty, where, 155. may be brought by a purchaser for his deposit, where, 157- may be brought by a purchaser for damages in case of fraud, although he has paid the money under a de- cree, ibid. purchaser r 376 Index. Action — continued. purchaser bringing an action for his deposit on account of a defect in a title must prove it bad, ibid. purchaser may either bring an action for non-perfoi r .- ance, or for money had and received, in what cases, '59- purchaser bringing an action must give the vendor a particular, of what, ibid. a vendor bringing an action must shew his title to the estate, 160. where a vendor brings an action for the purchase- money, a court of law may enter into equitable obiections, semble i ibid. but if a purchaser brings an action, rju. 161. or breach of contract cannot be brought by a purchaser without tendering the conveyance and purchase-mo* ney, 163. unless the vendor's title is bad, or he has incapacU tated himselt to perform the agreement, \6.\. cannot be brought by a vendor, without having exe- cuted the conveyance, or offered to do so, \6%. Sec Abstract. Auctioneer. Damages. Purchaser. Title. Vendor. Advancement — purchase by a father in the name of his childj al- though illegitimate, is an advancement, 419.- so a prant of copyholds successive to children as nominees, 420. if the father be a papist incapable of purcha- sing, the case is stronger, 421. but the child must be unprovided for, ibid. or must be considered by the parent as un- provided for, ibid. possession by the father during the child's in- fancy is immaterial, ibid. so even where the child is adult, 5emble t ^.22» the parent laying out money in repairs, Sec. is immaterial, ibid. so a declaration of trust or devise by the father subsequently to the convey ance, 423. but INDEX, 577 Advancement-— continued. but if a conveyance to a son is for a particular purpose, a trust will result to the father, ibid. purchase by a father in the joint names of him- self and child, although an advancement, is not so strong a case as the other, qu. 423. where the father is dead, a purchase by the grandfather in the name of the grandchild is an advancement, 425. purchase by a husband in the name of his wife is an advancement, ibid. purchase by a father, in the name of his wife or child, voidable by creditors, where, ibid. See Evidence. Purchaser. Resulting trust. Agent — cannot buy the estate of his principal, 391. employed by parol to buy an estate and paying all the money, cannot be compelled to convey it to his prin- cipal, 418. but if he deny the agreement, the principal is a com- petent witness to prove the perjury, ibid. who is a sufficient agent within the statute of frauds, 56, 64. estates bought by an agent with his principal's mo- ney may be followed, where, 427. See Attorney. Evidence. Notice. Agreements — will be enforced in equity. against the heir at law of a vendor, 138. but whether this will be done during the minority of the heir, qu. ibid, equitable issueintail, where there has been a decree in the ancestor's life-time 5 selnblc, 141. a widow entitled to free bench, wherej 142. the survivor of joint tenants, where, a husband, who has covenanted to sell "his wife's estate, where, 144 — 146. -? r against 5*73 inCex: jigreemerits-mWhe enforced in equity — continued. against a person becoming lunatic after the con- tract, where, 146. a person entitled, in default of execution of a power of sale, where a legal contract has been made under the power, and the power is extinguished by the deaths of parties, 146. although the agreement is by parol, where, and where not, 42 — 86. there be defects in the estate, where, 2, 195. the vendor Or vendee become bankrupt, J 20. the vendor or vendee be dead, ibid. the purchaser is a nominal contractor, where, and where not, 151, 15a. void at law, where, and where not, 153. a penalty be imposed, 155. the estate is destroyed, where, 174. the consideration, being contingent, has failed, where, 177. the vendor has not the interest which he pretended to sell, or a title to the whole estate, where, and where not, 183 — 191. the estate is freehold, and was sold as copy- hold, where, 192. the estate be defective, where, and where not, 195. will not be enforced in equity. against issue in tail where no fine or recovery, 140. a w:idow entitled to dower, I42, a feme covert, 143. **vhere an agent has sold the estate in a manner not authorised by his authority, 149. where INDEX. 579 J crtmen is— witt not be enforced in equity— continued. where an agent has committed a gross breach of trust to his principal in the sale, 149. so of a 1 trustee, ibid. it would be particularly hard on the party against whom it should be de- creed, 148. there has been supprehio vert) or sugges- tio falsi, 148, 152. i vendor has industriously concealed a patent defect, 2, 200. or not disclosed a latent defect, 2, I99. of was Hot bona fide owner of the es- tate at the time of the contract, 150. of although a bona fide contractor, yet cannot make a title, 150. the purchaser Can obtain only an undi- vided part of the estate contracted for, 190. the estate is leasehold or copyhold, and the purchaser contracted for freehold, 191. gerikral rules by which equity is guided in grant- ing a specific performance, 147. See Consideration. Purchaser, Statute of frauds. Time. Title. Vendor. Volun- tary conveyance. Z'.v;*--can only purchase for the benefit of the king, 389. unless he be made a denizen, ibid. MUguiiiek-my be explained by parol evidence, where, and where not, J 01 — 107. , ,fe^— estate sold for an annuity must be secured, how, where no agreement, 165. estate sold for a life annuity, must be conveyed to the purchaser although the annuitant dies before the con- veyance, where, 177. bona fide granted for any other than a money conside- ration, is not within the annuity act, semble, 178 n." See Incumbrances. . 1 3 P % Appointment 5S0 INDEX. Appointment — the case of Roach v. Wadham considered, 368 it. Assets — See Executor. Purchase-money. Assignees of\ must make good a covenant for further assurance, bankrupts — J although the bankrupt was tenant in tail and did not suffer a recovery, 387. cannot purchase the bankrupt's estate,39i. and such a purchase is a sufficient cause of re- moval, 391 n. assignee permitting his co-assignee to buy the estate is a sufficient cause of removal, 392 n. See Lien. Time. Title. Altested\the expense of them should be provided for on sales, 23. copies — J should be taken of the parcels, where the estate is sol4 in lots, 29. what attested copies must be furnished to the purchaser by the vendor, 293. semb. that an agreement to produce the title deeds will not bar the purchaser of his claim to attested copies., 294. vendor must, at his own expense, furnish the purcha- ser with a covenant to produce the deeds, ibid. and a purchaser is entitled to see the deeds, 293. purchaser obtaining possession of the deeds may re- tain them, where, 294. purchaser will be obliged to take copies if the deeds are lost, where, ibid. Attorney — if an attorney sell an incumbered estate without dis- closing the incumbrance, he is responsible to the purchaser, 6, 7. the vendor's attorney should not be employed by the purchaser, ibid. should attend to what, in examining abstracts, 8 n. bidding beyond his authority will himself be liable, but not unless he be limited as to price, ibid. how he should execute an agreement for sale of the principal's estate, 29. is answerable to his client incase of neglect, 3II. purchaser not bound to take a conveyance executed by attorney, 261. vendor INDEX, 581 Attorney — < continued. vendor not compellable to execute by attorney, 262. to a commission of bankruptcy cannot purchase the bankrupt's estate, 39 1. See Agent. Evidence. Auctioneer— ovi^at not to prepare particulars of sale, 10. may deduct auction duty out of money received, or, otherwise recover it by action, 13. must pay the duty himself if he undertake to give pro- per notices, &e. and neglect it, 14. may demand payment of the duty from the purcha- ser, where payable by him, 26. cannot give credit for the purchase-money, 27. should keep the deposit till the contract be completed, ibid. *n action will lie against him for recovery of the de- posit, ibid. so, for damages on breach of contract, unless he disclose the name of his principal, ibid. is an agent for the purchaser within the statute of frauds, semble, 57—64. cannot buy the estate himself, 392. See Auction. Auction duty. Bidding. Damages. Deposit, Interest. Auction duty -oi sevenpence in the pound is payable in respect of monies produced by sale of estates by auction, 11 . not payable in respect of what estates, II, 12. not payable if estate be bought in by or by the or- der of the vendor, 13 or by or by the o<\!er of his agent, ibid. but proper natic< s must be gi\en, ibid. will be allowed, ifthe vendor's title prove bad, 20. vendor may stipulate that the duty shall be paid by the purchaser, 26. payment ot duty, not a part performance of a pa* rol agreement, 81. See Auctioneer. Bidding. Condi/.oiu of sale.. 2 j> o Auction SS2 INDEX. Auction — dutch, how conducted, 17 n. estates advertised to be sold by auction, should not be; sold by private contract without sufficient notice can, be given to the public, 20. sales of estates by auction are within the statute of frauds,, qu. 57—64. contra of goods, ibid. See Cpnditions of sale. Deposit. bankrupt — purchase by, in the name of a wife or child, is within the statute of James, 425. See Agreements. Assignees of bankrupts. Com- missioners of bankrupts. Covenants. Title. Bankruptcy ad of— will not discharge a contract for ale, 120. nor an action for breach of covenant foe title, 387. will affect a purchaser, where, 444. Bankruptcy, commissioners of- — See Notice. Bankrupt assignees of— See Assignees of bankrupts. Bankrupts commissioners of— See Commissioners of bankrupts. JBaron and feme — estates purchased by husband with the wife's se- parate money, may be followed, where, 427. what is a good consideration for a settlement on a wife, 434. See Agreements. Advancement. Bidding — dumb bidding is within the auction duty acts, ia. but putting up an estate and no person bidding, is not, ibid. private bidding on the part of the owner, not fraudu- lent where there are real bidders, 15—19. if public notice has been given, the sale is good, although only the puffer and the purchaser bid, 19. if the advertisements state that the estate will be sold ivithout reserve, the sale will be void if a puffer bid, 39. may be countermanded before the lot is knocked down., 2,6. JNDEX. SS3 Bid ding-^-con tinued . by a purchaser void, unless he pay the auction duty when payable by him, 26. See Attorney. Auction duty. Sales before a master. Chancery — See Sales before a master. Charitable uses — will not affect a purchaser, without notice, 443. unless he bought of a person who had notice, 444. Chose In action— purchaser of, must abide by the case of his vendor, 482. semble that a purchaser of a chose in action, or of any equitable right giving notice to the trustee, will be preferred to a prior purchaser who gave no notice, 10, 481. Churchwardens-— can purchase a workhouse, 388. Collateral security — purchaser not affected by taking it, unless the first purchase was fraudulent, 477. Commissioners of bankrupts — cannot buy the bankrupt's estate^ I. Commission of bankruptcy — not superseded even for fraud, where there are purchasers under it, 477. Conditions of sale — cannot be verbally contradicted, 21. unless the purchaser have personal informa- tion given to him, 33. pasted up in sight, will bind a purchaser, aa. will be liberally construed, ai. what provisions should be inserted therein, ^2—37. See Auction. Auction duty. Bidding. Qmdderalion — unreasonable, no ground to refuse the aid of equity, 167, inadequate, where a bar to the aid of the court, and where not, when the contract is execu- tory, 168 — 170. inadequate, a ground of relief when the convey- ance is executed, in what eases, 1,0 — 17 . inadequat , is a ground for relief where the verir dor is an heir selling an expectancy, 173. 2 p a. Qontingi 584 INDEX. Consideration — continued. contingent, agreed for, the estate belongs to th© purchaser, although the consideration fails before ihe conveyance, 177. what is deemed valuable to support a settlement against a subsequent purchaser, 434. price fixed by a referee good, where, 174. how payment thereof must be pleaded, 509. See Agreement. Annuity. Purchaser, Voluntary conveyance. Construction of the parties — not admissible to explain an instru- ment, 106. Contract — the equitable consequences of it, 120 — 166. 174 — 182. for sale of an estate, converts it into personalty in equity, 133. although the election to purchase rests with the pur- chaser, 134. unless a title cannot be made, or equity will not per- form the contract, I35. See Purchaser. Devise. Conveyance — it should be stipulated on a sale that the conveyance shall be prepared by and at the expence of the purchaser, 25. must be prepared and tendered by the purchaser, although not bound to prepare it by the agree- ment, semble, 163, 261. but although required to prepare the conveyance, need not do so if title is bad, 164. the expence attending the execution of the convey- ance, falls on the vendor, 261. if the estate be copyhold, the purchaser must pay for both surrender and admission, ibid. «|u.. whether the vendor is bound to pay a fine certain, if he covenant to surrender and assure the copyholds at his own expense, ibid. the vendor must himself execute the conveyance or surrender the copyhold, ibid* and INDEX* *85 Conveyance — continued. and he is not compellable to convey by attorney, 262. of an estate in a register county should be registered immediately, 263. •purchaser will be relieved against a defective con- veyance, where, 48.1. See Terms of years. Corporations— cannot purchase lor their own benefit without li- cense, 388. sealing by them is equivalent to signing and sealing^ 461. Copyholds— contracted for, devisable before admittance, 122. pass under a general devise, if surrendered, although bought after the will which is not republished, 130. See Conveyance. Covenants— m an agreement for purchase, are construed de- pendent, 161, 162. Covenants^ purchaser is entitled to what, 295—301, fir title—] run with the land, where, and where not, 367—373. General, do not extend to tortious evictions, 374. unless the wrong doer is named in the covenant, 375- or is the covenanter himself, ibid. or the covenant is against all pretending to claim, ibid. will not be restrained on slight grounds, 380. may on the ground of mistake be rectified in equity, 386. covenant, for right to convey extends to the capa- city of the grantor, 375. Limited, how construed, 375 — 379. Restrictive words in the first of several covenants ha- ving the same object, extend to them all, 381. but where the first covenant is unlimited, it will not in general be restrained by a subsequent limited covenant, 383. nor will a preceding general covenant enlarge a subsequent limite^ covenant, 384. and 5 86 INDEX. Covenants for title — Restrictive words — continued. and where the covenants concern different things., they will notbecontrouled by res ttictive words added to one, 3^5. purchaser is entitled to what remedy under covenants for title, 386. Creditors—- consulted as to the mode of sale cannot buy the pro- perty themselves, 39a. See Advancement. Purchase-money. Trustees. Crown debts — whether a purchaser can protect himself against them by a prior legal term, 277. Damages — nominal only, can be recovered for breach of contract where the vendor cannot without fraud make a title, 157. so even where an auctioneer sells an estate, after his authority has expired, and the principal will not perform the contract, 15 S. Declarations of uses — See Fines. Decrees of equity — Sec Notice. Defective conveyance — See Conveyance. Denizen. — See Alien. Deposit — should be retained by the auctioneer till the contract is completed, 27. is a part payment, ibid. purchaser may forfeit his deposit, and abandon the con- tract, where, 32. an investment of a deposit in the funds will be binding on a vendor, where, 28. if a vendor accept less than the deposit, he cannot after- wards object to it, 28. purchaser will be relieved against a forfeiture, where, 2S. if a purchaser's hill for specific performance be dismissed, the court cannot order the deposit to be returned, 28. See Action. Auctioneer. Interest. Sales before a master. Description cf an estate, false, 195. DlvUee— of an estate contracted for, not entitled to the estate, 01 the purchase-money if a titte cannot be made, 137. INDEX. 587 f)evisee — continued . contra, if an estate not contracted for is by a will di- rected to be bought, ibid. shall take au estate tail to effectuate the testator's gene* ral intention, where, Appendix, note. Devise— estates contracted for may be devised, whether freehold or copyhold, I2r. will pass by will, where, 122, 123. will not pass, where, 127. of a term is revoked by the purchase of the fee, 133. of equitable estate not revoked by a subsequent convey- ance to the devisor, I23. unless to different uses, 126. revoked by a contract for sale, 144. unless equity will not perform the contract, semb. 131. where the agreement is abandoned, qu. 132. See Will. Devise executory — its utmost limits, Appendix, note. Devise too remote— the children of an unborn tenant for life can- not take as purchasers (contra-distinguished from descent), Appendix, note. Discovery — purchaser will not be compelled to discover writings, 477- Dotuer — a purchaser is entitled to a fine in respect of it, where, and where not, 217. equitable bar of, what is, 221. purchaser can protect himself against dower by a prior legal term, 282. wife joining in barring her dower, is a valuable consi- deration for a settlement on her, 435. Election — See Heir at law. Elegit — leasehold estates may be extended on, 452. Equity— protects purchasers bona fide and without notice, 476. See Sales before a master, and passim. Equity of redemption — See Mortgage. Evidence — parol admissible, where to prove a consideration consistent with the deed, 87, 438. 50, 5SS INDKX. Evidence—* parol, admissible, where — continued. so, as a defence to a bill seeking a specific per- formance on the ground of fraud, mistake, or surprise, 90. or to explain latent ambiguities, 101. or the meaning of ancient instruments, io6\ or to explain a mistake where, and where not, 107 — 116, 119. or on the ground of fraud, 117. or to correct a settlement made contrary to the intention of the parties, merely to prevent a forfeiture, 1 14. to prove a resulting trust, 41 5. even after the death of the nominal pur- chaser, 415 — 417. to rebut a resulting trustor any equitable pre- sumption, 418. parol, not admissible, where to disannul or vary a written agreement,88,9.5. nor to correct printed conditions of sale, 22, 89. the rules are the same in equity, 89, 90. not even as a defence to a specific performance, if the agreement was at the time cor- rectly reduced to writiug, 93. nor of collateral matters, although not men- tioned in the agreement, 94 — 96. nor of the discharge of a written agreement, except as a defence in equity, 100. unless the parol agreement has been in part performed, 100. nor to explain a patent ambiguity, 102. as the meaning of a word in a deed, 103. or act of parliament, 103. nor to restrain general words, 104. nor of t,he construction of the parties, 106". INDEX. 58!) Ev idence — parol, not admissible, where, continued. nor where parties have omitted a provision, deeming it illegal, 116. where a man purchases in the name of a stranger the evidence to rebut, the resulting trust lies on theno- minal purchaser, 418. contra where the purchase is in the name of a child, 421. principal is a good witness to prove the perjury of his agent, where, 418. agent not a good witness against the principal, 503. what is sufficient evidence of notice in equity, 503. See Witness. Execution — See Judgments. Executor — cannot mortgage the assets for his private debt, 348. his receipt is a discharge for the purchase-money of leasehold estates, 347. estates bought by an executor with the assets cannot be followed, unless the trust appear on the deed, or the application of the money is clearly proved, 427. See Purchase-money. Ezpences — of investigating a title, &c. may be recovered where the vendor cannot make a title, 158. Father and child — See Advancement. Felons — can purchase, but not hold, 389. Feme covert — can only purchase sub modo, 390. unless authorised by her husband, ibid. is answerable in equity for a fraud, 480. Fhus— declaration of uses of fines and recoveries, subsequently to the assurance, must be by deed, 410, n. See Copyholds. Dower. Power. Title. Fire — loss by, after the contract, must be borne by the pur- chaser, ij$. Fraud — if persons having a right to an estate encourage a pur- chaser to buy it, they will be bound bv the sale, 4SC. if even a stranger make a false representation to a purchaser of value, Sec. an action will lie against him, 3 in 590 IND'E*. Fraud — continued. in a written agreement relieved against, according to' parol evidence, 117. See Evidence. Incumbrances. Statute of frauds,, Fraudulent conveyance — settlement, with general power of revoca- cation, void against a purchaser, 440. See Voluntary conveyance. Gratidfaaber and grandchild — See Advancement. Guardian — cannot purchase his ward's estate on his coming of age, senible, 396. Heir — relieved against asale^ for an inadequate consideration, 172. Heir at law — bound by his ancestor's contract, although he die before the time limited for completing it, 120. unless the devisee permit the heir to take the estate for a long time, 125. what should be attended to in purchasing an estate of an heir at law, conveyed or surrendered to his ancestor after his will, ?2C/, 130. will be entitled to lands contracted for by his ances- tor, where, 127. may be put to his election, although he would take the estates devised to him, as heir at law, in de~ fault of a will, semble, 128, ri. whether an infant heir at law will be deemed a trus- tee within the 7 Ann for a purchaser under aeon- tract by the ancestor, qu. 138. purchaser will be compelled totake a title, although a will is not proved against the heir at law, 223* Id'/ots—^can only purchase sub modo, 390. Improvements — purchaser will be relieved in respect thereof 3 in what cases, 482. Inadequate consideration — See G >nsiderat'ion. Infants — can only purchase sub modo, 3S9. are answerable in equity for a fraud, 480. See Heir at Law. Dower. Incumbrances — should be disclosed to a purchaser, 5. a person having an incumbrance and denying it id a purchaser will be relieved against, 8. a person INDEX. 591 Incumbrances — continued. a person having an incumbrance is not bound to give notice of it to a purchaser, 481. purchaser will be relieved against dormant incum- brances, 478. judgments should be searched for on behalf of a purchaser, 302. although the estate is leasehold, 306. purchaser will be bound by judgments of which he has notice, although the vendor has only an equity of redemption, or a trust estate, 303. but where the estate is in trustees for sale, whose receipt is a discharge, he may pay to them, 305. purchaser will be relieved against, where, 302. See Appendix, p. 57 1. need not be searched for, in what cases, 302. where the estate is in a register county, the register should be searched, 308. register need not besearched,in what cases,3oa. if the estate is leasehold, the register, and also the proper courts, should be searched for judg- 1 ments, 3 1 1 . annuities should be searched for, 311. solicitor is personally responsible, if he neglects to search for incumbrances, 311. purchaser may retain or recover purchase-money in respect of incumbrances, or defects in the ti- tle, where, and where not, 312 — 318. where two persons purchase an incumbered estate and an allowance is made to one, it enures to both, 400. See Attorney. Purchaser. Purchase-money. Vendor. Interest — must be paid by a purchaser from the time the contract ought to be completed, 319. unless the money has lain dead, and the purchaser gave the vendor notice of the fact, and the delay be occasioned by the vendor, ibid* v, here 592 INDEX. Interest — continued. where a purchaser takes possession and agrees to pay interest, he may rescind the agreement, if it appear that a long- time must elapse before a title can be made; unless he acquiesce in the delay, $ n i. is not to be paid by a purchaser after the conveyance is delivered to the vendor's attorney for execution, 323. must be paid by a purchaser of a reversion, from what time, 323. must be paid by a purchaser of a leasehold estate, al- though he has not received the rents, and the vendor must pay a rent for the estate, 324. must be paid in respect of a sum deposited with a pur- chaser to pay off incumbrances, 326. an agreement to pay interest, although signed by the vendor only, will bind, where, 324. what rate of interest is payable, 324. can be recovered by a purchaser on a deposit paid either to a principal, or to an auctioneer, 158, 327. cannot be recovered in an action for money had and re- ceived, 327. must be paid by a vendor where he cannot make a title, if the purchase-money has lain dead, ibid. so by a person opening biddings, ibid. must be allowed to a trustee where a purchase by him of trust-property is set aside, 328. an agreement by a purchaser to pay a rent exceeding legal interest is not usurious, where, 328. Jointure — See Dower. Judgments— bind after purchased estates, 305. do not bind leasehold estates, till when, 306, 450. do not affect an equity of redemption of a term, 307. do not bind real estates until entered and doggeted, 446. cannot be doggeted after the time appointed by the. act, 448. may be defeated by a purchaser without notice, who has a prior legal estate, 277. See Incumbrances. Notice, Register. Leasehold INDEX. 593 Leasehold estates— Va^y pass in a will under the word ie goods," 454- but cannot pass in an assignment under that word, 454, n. See Incumbrances. Interest. Judgments, Purchaser. Title. Leaseholds renewable— -where a good title cannot bz made to them, 209. Legatee— Sua Marshalling. Letters— are agreements within the statute of frauds, where, 45. Vim'— purchaser has a lieu on the estate for money paid, if vendor 1 cannot make a title, 352. purchaser has not a lien on the purchase -money, in re- spect of a concealed incumbrance after the money is appropriated by the vendor, 317. vendor has a lien on the estate for purchase-money un- paid, 352. unless he be a papist incapable of purchasing, ibid. or take a distinct security for the money, 358. but taking a bond or note will not discharge the li en > 353—357- the lien extends to whom — 358 — 363. prevails against whom, 363. semB. that it cannot prevail against an equitable mort- gage by deposit of title-deeds, 365. Limitation of time— Set Statutes of limitations. Lis pendens — See Notice. Lunatics — can only purchase sub modo, 390. See Agreement. Marriage — a valuable consideration, 434. Marshalling— -the vendor's lien, and the personal estate of the pur- chaser, will be marshalled in favour of a legatee, where, and where not, 358—363, Master in Chancery — See Sales before a master. Merger — See Terms for years. Memorial— of deeds to be registered must be executed in the pre- sence of what witnesses, 459, 461. deeds cannot be re-executed for the purpose of registry, semB. 460. a* ■ * caled 59b INDEX. Memorial — con tinned. * sealed by a corporation is equivalent to signing and sealing, 461. Mistake — if a person buy his own estate he will be relieved, 166. in written instruments corrected by equity according to parol evidence, where, and where not, 107 — 1 16. not to the prejudice of a purchaser, t 19. of parties to a conveyance of their rights will not affect a purchaser, 479. See Evidence. Sales before a master. Title. Mortgage-*— purchaser of an estate in mortgage makes his perso- nal estate the primary fund for payment of it, where, 134. so joint purchasers, where, 409. must indemnify the vendor against the mortgage. money, 165. equitable mortgage will prevail over a lien for pur- chasc-monev, semb.$6$. purchaser of an equity of redemption should give no- tice of the sale to the mortgagee, 467. purchaser of a mortgage should not buy without the privity of the mortgagor, ibid. See Auction-duty. Ne exeat regna — lies against a purchaser for purchase-money un- paid, where, 165. Notice — of an act of bankruptcy deprives a purchaser of the benefit of the statute of James, 4^5. what is not notice of an act of bankruptcy, ibid. of ajudgment not duly doggcted binds a purchaser, semb. 448. so of deeds not duly registered, 470. purchaser with notice is bound in the same manner as the person was of whom he purchased, 484. unless his consent was necessary to the validity of the incumbrance, 485. and a fine and non-claim will not improve his title, 486. ' unless it is a mere legal title, 487. to INDEX. rjg^ Ice- — continued. to be binding must be had, when, 487. purchaser without notice is not affected by notice in his vendor, 484. purchaser with notice will not be affected if his vendor bought withouj notice, Hid. is either actual or constructive, 490. actual will not bind unless given by a person inte- rested in the property during the treaty, 490. what is constructive notice, 402. notice to the counsel, agent, &c. of the pur- chaser, ibid. but it must be in the same transaction, 493, a public act of parliament, 494. lis pendens, ibid. what is not a sufficient lis pendens, ibid. registration of deeds where the purchaser is not . seised of the legal estate before the purchase, 445> 497- whatever is sufficient to put a purchaser upon inquiry, as possession by a tenant, description, in a deed, &c, 498. what is not constructive notice. a private act of parliament, 494. a public act of a private nature, semble, ibid. ijecrecs of equity, 495. unless they are decrees to account, 496. an act of bankruptcy, 497. a commission of bankruptcy, ibid. doggeting of judgments, 496. registration of deeds, where the purchaser is seised of the legal estate before the purchase, 4 9 5. the vendor being out of possession, 499. witnessing of deeds, 500. equitable construction of words, 50I. what is sufficient evidence of notice, 502, how denial of notice should be pleaded, 510. See Judgments. Register. Voluntary corrT." . % a % •596 INDEX. Papists — who have not taken the proper oaths can only purchase sub modi, 390. but protestants may safely purchase of such papists, in what cases, 472. See Advancement. Lien. Parishioners — cannot purchase, 388. Parliament, act of- — See Notice. Parol agreement —for a lease will bind a purchaser, where, 484. See Evidence. Statute of frauds. Part performance — See Statute of frauds. Partial execution of a contract, where it will be inforced, 183. Particulars of sale — See Auctioneer. Conditions of sale. Sta- tute of frauds. Penalty — See Action. Agreements. Perjury — If a defendant deny a parol agreement, he may be tried for perjury, 69. and the plaintiff is a competent witness to prove the perjury, ibid. Pleading — See Purchase. Possession— delivery of, in general a part performance of a parol agreement, 73. Power — to a tenant for life to charge portions on his estate, after his death, or to appoint the estate amongst his chil- dren is a power in gross, and may be destroyed by fine, semhle, 2^4. to the execution of which signature is required to beat- tested by witnesses, well executed, although the word M signed" is omitted in the attestation, semble, 235. where a conveyance by a man having both a power and an interest shall be an execution of the power, and not a conveyance of the interest, 368, n. general power of revocation in a settlement makes it void against a purchaser, 440. purchaser will be relieved against a defective execution of a power, 478. Premunire — purchaser guilty of this offence, can purchase, but not hold, 389. Presumption — legal estate will be presumed to have been conveyed, where, 213. Puffer INDEX. ,59-7 PuJir—ScQ Bidding. Purchase — how it should be pleaded, 507. for a valuable consideration, is a protection, in equity, against legal as well as equitable estates, semble, 512. Purchaser — who cannot be, 388. cannot be relieved in respect of patent defects in an f state, 2, 195. but otherwise of latent defects of which the ven- dor was aware, 2, 199. should not trust to any statements of the vendor res- pecting value, 3. but may rely on a statement as to rent, 4. should npt employ the vendor's attorney, 6. should not take possession of an estate where the title . is doubtful, 9. but may take possession when contract is entered into, ibid. is i>ot bound to. acquaint a vendor with any latent ad- vantage in the estate, 2, n. what enquiry should be made, where an equitable right, not in possession, is purchased, 9. ©f a leasehold estate, must indemnify the vendor against the rent, Sec. 24. oi an equity of redemption must indemnify the vendor against the mortgage-money, 1(^5. may sell or devise an estate contracted for before the conveyance, 121. must bear any fqss happening to the estate by fire or otherwise, before the conveyance, and is entitled to any benefit accruing to it in the interim, 121, 174. will be compelled to take a part of the estate, where^ 183—191. may insist upon a part performance, where, 192. will be relieved in respect of a defect in the quality or quantity of the estate, where and where not, 195 — 204. is entitled to what relief under covenants for title^ ^6. a 03 of 39S INDEX. Purchase)' — con t i n u ed. of an heir at law or devisee not bound by specialty debts of the ancestor or testator, 330 n. joint purchasers will in equity take as tenants in com- mon, where, 406 — 4.C9. where two persons purchase an estate, am 1 the money, he can only file a bill against the other for a contribution, 40c. a purchase by two in the name of one, the trust may be proved, how, 410. >] agreement by two, and the conveyance taken in 1 . name of one, is taken out of the statute of frauds, where, 412. iaking a conveyance in the name of a stranger, the trust results to him, 414. taking a conveyance in the name of his child is an advancement, 419. without notice of an act of bankruptcy will not be affected by any commission of bankruptcy unless issued, when, 445. buying an equity of redemption should immediately give notice to the mortgagee, 467. j and should declare whether his personal estate shall or shall not as between his representatives be the primary fund for payment of the mortgage, 135. . will be relieved and protected in equity, in what cases, 476. See Action. Advancement. Agreement. At- tested copies. Auctioneer. Bidding. Cha* ritable uses. Chose in action. Conveyance. Consideration. Covenants. Deposit. De- vise. Fraud. Improvements. Incumbran- ces. Judgments', Mistake. Ne exeat regno. Notice. Papists. Power. Purchase-monev, Register. Recoveries. Resulting trust. Re- version. Sales before a master. Time. Ti- tle. Trustees. Voluntary conveyance. Purchase- INDEX. 599 Purchase- ") a deposit is part payment of,28. pioney. — /payment of, is not a part performance of a parol agreement, semb. 74 — 81. purchaser is a trustee of, for the vendor from the thru; of the contract, 1 20. is always assets of the vendor, 121. may be retained or recovered by a purchaser in re- spect of incumbrances or defects in the title, where, and where not, 312 — 318. paid to a creditor having two securities, shall be taken in satisfaction of the security affecting the estate, 318. equity in favour of creditors will prevent payment of purchase-money to an heir or devisee, 330, n. purchaser must see to the application of purchase- money of real estates, where the trust is for payment of specified debts or legacies, 331. the debts are ascertained by a decree, 333. is not bound to do so where the first or only trust is for payment of debts generally, 332. the cestuis que trust are infantsor unborn, 333. the cestuis que trust are abroad, semb. 340. the trusts require time and discretion, 333. is not bound to ascertain the deficiency, although the trust be for payment of such debts as the per- sonal estate shall be insufficient to pay, 342. but he is bound to do so where only a power is given, 343. is equally bound, although there is only a charge of debts, &c. 335. may be discharged from seeing to the application, how, 345. the receipts of what trustees will be discharges, 345- purchaser of lea» pletefe, 308. what need not be registered, ibid. 458, 463. what cannot be registered, 462. semlle that writs of execution on judgments intended to affect leasehold estates need not be registered, 310. deeds should be registered immediately after their exe- cution, %6%. deeds, &c. are void against a purchaser unless registered, 457- deed of appointment under a power must be registered, 463. registry of an assignment which recites a lease is not a sufficient registry of the lease, 463. registry of deeds is not notice to a person seised of the legal estate, 465, 466. but it is notice to a person not seised of the legal esv tate, semlhy 467 purchaser buying with notice of a prior incumbrance not registered will be bound by it, 470. Se« Incumbrances, Memorial. Notice. Resulting INDEX. 601 Repairs — See Advancement. Improvement. Resulting trust — purchaser taking a conveyance in the name of a stranger, a trust results, 414. but even a parol declaration will prevent a re- sulting trust, 418. See Advancement. Evidence. Reversion— qu. if a bill will lie against a purchaser of a reversion to perpetuate testimony, 483. See Time. Title. Roman Catholics — See Papists. ^ or *ithe advertisements are prepared, by whom, 30, a master — J conducted, how, 31. the purchaser must procure a report of his being the best bidder, 33. is entitled to a conveyance, when, 34. the conveyance to be drawn, by whom, 35. . biddings will be opened, where, 36—39. practice with respect to opening biddings, 40. purchaser will be compelled to complete, when, 33 will be discharged, upon what terms, 31. will not be hurt by any irregularity in a decree, 32. may abandon the contract, and forfeit his depo- sit, where, 32. may be discharged from his contract, where he has, by mistake, given an. unreasonable price for the estate, 115. is entitled to possession, from what time, 35. joint purchasers must pay their money together, 35. incumbrance not appearing upon the report may be paid off, when, 34. estate directed to be sold before a master cannot be sold otherwise, 40. are not within the statute of frauds, 41. although an agent's authority could not be proved unless there he fraud, ibid. See Auction. Interest. Title. Seller— See Vendor, Signature 60^ INDEX. Signature—See Corporation. Statute of frauds. iS der of Title* 493. Solicitor—See Attorney. * S performance— See Agreements. jS uteof) no action can be b mgfc pon any contract for sale jrauds — 3 of lands unless in writing, and signed bytheperson? to be charged, 42. an agreement fox an assignment is within the act, 42. so is a sale of a standing crop of grass, ibid. but timber growing upon the land is not, ibid. the signature of the party to be charged is sufficient, 43- a letter or a receipt is a sufficienl writing, 45. but it must specify all the terms, 46, for the most trifling omission will be fatal, 48. but if it refers to a writing that contains the whole agreement, although not signed, that is sufficient, 48. so a letter written to a third person, containing di- rections to execute the agreement, will do, 50. rent rolls, 8cc. will not be deemed an agreement al- though signed, 50. the sending a sufficient agreement as instruction to prepare a technical agreement is immaterial, 52, what is a sufficient signature, 53 — 64. . agent maybe authorised to contract by parol, 56. but his clerk cannot act \tithout a special autho- rity, 56. an auctioneer is an agent for the purchaser with- in the statute, sembte, 57 — 64. sales by auction of estates are within the statute, semble, 57—64. contra of goods, ibid. but an entire agreement for real and personal es- tate if void as to the real, is void in toto, 64. sales not within the statute, where there is no dan- ger of perjury, 65. as a sale before a master, Hid, Statute INDEX. C03 Statute of\ sa | eg nQt w j t ^ n t i le statute— continued. Jrauas— J or under the authority of the court, ibid. or where the agreement is confessed by the answer, 65—66. unless the defendant plead the statute, 69. which he cannot do by an answer to an amended bill, where he has admitted the agreement by his original answer, ibid. sales not within the statute where it would protect fraud. as a sale by auction where a purchaser refuses to sign an agreement according to the printed conditions, semble, 70. or a private sale where the agreement is express to reduce the contract into writing, semble, 71. or an agreement partly performed, 73, 85. delivery of possession is in general a part per- formance, 73. so where two are in treaty for an estate, and one desists, semble, 412. but ancillary acts are not, 72. nor acts done to the defendant's own prejudice, 81. nor payment of purchase-meney, semble, 74. auction duty, 81. part performance as to one lot does not extend to other lots sold under distinct particulars, 82. where the agreement is in part performed, the court will endeavour to ascertain the terms, 82-85. resulting trusts are excepted out of the statute, 418. See Advancement. Agent. Auction. Evidence. Fines. Perjury. Purchaser. Resulting trust. Sales before a master. Steward — See Agent. Statutes of 'limitations— their operation and effect, 237—243. Surprise €04 INDEX. Surprise — See Evidence. Surrender — purchaser not compellable to take a surrender of copy* holds by attorney, 261. Tenant for life— may purchase the settled estates, although his consent is required to the sale, 398. See Power. Tenant hi tall — See Agreements. Assignees of Bankrupts. Tender— conveyance must be tendered by the purchaser, where, 163. Termsof') purchaser buying a term of years may acquire the fee years — ) how, 191 n. bequest of, revoked by the purchase of the fee, 123. purchaser may require an assignment of what, 264. cease by force of a proviso in the deed creating them, where, 265. merge by an union with the fee, where, 266. title to must be deduced at the expense of vendor, 271. the expense of the assignment to attend must be borne by the vendor or purchaser, where, ibid. an assignment of may be dispensed with, where ; and where not, 272 — 275. a man having an actual assignment may prevail over one having all the deeds and a declaration of trust of the term, 275. a person having the deeds and a declaration of trust will prevail over one having only a declaration of trust, 373- purchaser may protect himself by a term assigned in trust for him, against what, 276 — 284. should be assigned by a separate deed where they do not appear on the conveyance, 275. what recitals are necessary in an assignment of, 285. shall attend the inheritance without an express declara-t tion, where, 285. are personal assets, where, 291. trustees should be satisfied of what, before they sever a , term from the inheritance, 284. an assignment of, cairies notice of incumbrances on the^ inheritance, where, 500. See Will. Testimony INDEX. 605 Testimony— qv\, whether a bill lies to perpetuate it against a pur- chaser, 483. Time— fixed fur completing the contract is at law of the essence of the contract, 244. so in equity where either party has not shewn himself ready to perform the agreement, 246. and if the vendor take no steps although in time ujo-cd to do so, equity will not relieve him, 247. but a vendor will be relieved after the day appointed, \t he has not been guilty of gross negligence, 248. or the purchaser has waved the time, 246 — 247. is more particularly attended to in sales of reversions, 249. delays occasioned by defects in the title will not be a bar to the aid of equity where the time i,i not material, 449— 256. so if no application has been made for the title, a ven- dor mav recover at law although he did not obtain a title till after an actiou brought, 250. but if a defective title be produced, a purchaser will re- cover at law, although the vendor has a title at the time of the trial, £5 1 . equity will allow a vendor time to procure a title where the purchaser at the time of the contract was aware of the objections, 252 — 253- a dormant treaty will be enforced if the contract is not abandoned, 255. where by the death or bankruptcy of the purchaser the purchase-money cannot be paid, the vendor may rescind, the contract, 256. Clay -be made of the essence of a contract, semble, £57. Title — where it should be Inspected before sale, 10. where it is doubtful, a purchaser should not take posses- sion, 9. purchaser objecting to a title, must prove it bad, 157. a vendor bringing an action, must shew his title to the estate, 160. icpurt of law can enter into equitable objections, where, ■and where not. 16O, Title 606 INDEX. Title — continued. a purchaser can require a title for 60 years, 203. semble that a purchaser of a lessee can require the produc- tion of the lessor's title, 206. a purchaser cannot be compelled to take a doubtful or an equitable title, 210. but he will be compelled totake an equitable title where the sale was under a decree of a court of equitv, 212. and cannot object to a title on account of a mere proba- bility, 214. a purchaser is entitled to a fine from a vendor's wife in or- der to bar her dower, where, and where not, 217— 221. a purchaser is entitled to the same title from assignees of bankrupts as from vendors sui juris, 223. a purchaser will be compelled to take a title, although a will is not proved against the heir at law, 223. purchaser being defendant may have the title referred to the master, 155. where a purchaser takes a defective title relying on the vendor's covenants, the agreement should be recited, 296. purchaser is entitled to what relief in case the vendor can* not make a title, J57. where he has purchased a defective title, 312 — 318. where he has taken a defective conveyance, 481. person joining upon a purchase to obviate an objection to the title, will not be bound unless the objection is fully stated, 479 • but if a person join upon a general statement, he will be bound, ibid, blander of, 432. See Action. Auction duty. Contract. Devisee, Power. Statutes of limitations. Time. Treason — persons who have committed, can purchase, but not hold, 389. Trust—See Resulting trust. Statute of frauds. Trustees — their receipts are discharges for purchase-money, where, and where not, 329. Trustees index: 607 Trustees — receipts are discharges — continued. every trustee who has accepted the t r ust, must join in the receipt although he has released, 346". but not if' he renounced, ibid. cannot buy the trust estate, 391. unless they be clearly discharged from the trust, 406. samble, that trustees for creditors cannot buy with- out the consent of all the creditors, 399. trustees for persons not sui juris cannot buy with- out the sanction of a court of equity, 401. purchase by a trustee, without the knowledge of his cestui que trust, may be confirmed under par- ticular circumstances, 395. a purchaser bekig a relation of the trustee is im- material, unless fraud be proved, 396. cestui que trust has what remedy against a trustee who has sold to himself, 401 — 404. cestui que trust may bar his equity to set aside the purchase, by lachess, 404. estates boug-ht by a trustee with trust money cannot be followed, unless the trust appear on the deed, or the application of the purchase money is clearly proved,. 427. but where a trustee is bound to buy estates, it will be presumed he acted in execution of the trust, 42S. unless he considered himself entitled to the pur- chase-money, ibid. are answerable to a purchaser for a false representation as to incumbrance 5,480. Sec Heir at law -incumbrances, Interest. Pur- chase-money. Terms of years. Unreasonable consideration— ^Sec Consideration* Uses, declaration of — See Fines. Uses — See Charitable uses. Value — false affirmation of— See Vaoilor. covenants as to, 38 c. 60S iNDEX. Vendor — not answerable for defects in the estate of which he was ignorant, i. not bound to disclose patent defects, i, 195. but must not industriously conceal even a patent de- fect, 2, 2co. and is bound to disclose latent defects, 1. '99. cannot be relieved against for false affirmation of value, 3- but otherwise for false affirmation of rent, 4. or of a valuation, 3. must not conceal incumbrances, 5. is a trustee of the estate sold for the purchaser, from the time of the contract, 1 2o. will be relieved where he has conveyed more lands than were agreed for, where and where not, 20c — 204. vendor, and those claiming under him, must make good a defective conveyance, in what cases, 481. See Action. Agreement. Annuity. Attested co- pies. Conveyance. Purchaser. Time. Title. Trustees. Voluntary con- ) fraudulent and voluntary conveyances void against veyance — ) purchasers, 430, 432. purchase by a father, in the name of his .child, is not voluntary, 424. a conveyance for payment of debts is voluntary, where and where not, 43 t. notice to a purchaser of a fraudulent or volun- tary conveyance, is immaterial, where he has a conveyance, 437. may become good by matter ex post facto, 436. what is a fraudulent or voluntary settlement, and what is a good consideration, 434 — 435. parol evidence is admissible in support of a deed 0*appai entry voluntary, 438. purchaser having notice of, cannot be advised to complete, 438. and a specific performance would not be en- forced against him, whether he bought with or without notice, 439, Voltm* INDES. C09 Voluntary con- ? contInued . veyance — J nor would a specific performance be enforced in his favour, unless he bought without no- tice, ibid. See Fraudulent conveyance. Ward — See Guardian, ^'//—mistakes in corrected, where evident, 107, n. unless the supplying of the words would defeat the tes- tator's intention, ibid. republication of, what amounts to, 127. purchaser cannot require a will to be proved, semble, 223. terms of years attendant on the inheritance will not pass by a will not attested according to the statute of frauds, 290. and where the inheritance is intended to pass, but does not, the term shall not, ibid. See Contract. Witness—may look at a paper if he can afterwards swear from memory, 8, n. 4. See Notice. Perjury. THE END. Sf.iKTt.D BV B. WIlKi, 6J>,CHAKC8BVl SCHOOL OF LAW LIBRAFY UNIVERSITY OF CALIFCIi^IA LOS ANGELES UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 836 055 4 f