THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW
 
 A 
 
 y 
 
 A COMPENDIUM 
 
 llalu antr laractiff 
 
 VENDORS AND PURCHASERS 
 
 REAL ESTATE. 
 
 BY J. HENRY p A R T, 
 
 OP LINCOLN'S IKN, ESQ., BARRISTER-AT-LAW. 
 
 LONDON: 
 
 V. & R. STEVENS AND G. S. NORTON, 
 
 {Successors to the late J. if W. T. CLARKE, of Portugal Street,) 
 26, BELL YARD. LINCOLN'S INN. 
 
 MDCCCLI.
 
 r 
 
 LOXDOX : 
 
 stbtv'ens and co., printebs, bell yard, 
 Lincoln's inn.
 
 "0 
 
 Is 
 
 4^ 
 
 
 PREFACE. 
 
 The object proposed by the author of the following pages has been 
 to produce a Avork which^ without being a mere elementary outline 
 on the one hand, or a mere index of cases on the other, may 
 supply the student with a concise and connected statement of the 
 present law and practice aflfecting vendors and purchasers of real 
 estate, and the practitioner with a portable book of reference to 
 the recent, and the most important early authorities on the 
 subject. 
 
 The general arrangement is, so far as practicable, chronological : 
 considering in regular order the several points which present 
 themselves to notice in cases where an ordinary contract is com- 
 pleted, in the usual way, without litigation actual or threatened; 
 and then discussing, under separate heads, the remedies of either 
 party or his representatives, in cases where the opposite party 
 refuses, neglects, or is unable to perform his agreement ; and also 
 the variations consequent on the sale being under a decree of 
 the Court of Chancery. This order is believed to be best adapted 
 to secure attention and aid the memory, and therefore the easiest 
 for purposes of reference. 
 
 The establishment of a General Register will, of course, even- 
 tually effect considerable changes in the law and practice of sales ; 
 but inasmuch as no part of the present system would become 
 wholly obsolete until many years after such a plan had received 
 
 a 2 
 
 702778 
 LAW
 
 iv PREFACE. 
 
 the assent of the Legislatiii-e, it has not been considered neces- 
 sary or expedient to delay the publication of the present work. 
 Should^ however^ a Register Act be passed in the approaching 
 session^ the author proposes to publish^ by way of supplement^ 
 some remarks upon the general provisions and apparent effect of 
 the enactment. 
 
 In conclusion, he cannot but express a hope that the following 
 pages may be found to be of practical utility. That a treatise of 
 this description was wanting, has, he beheves, been long the 
 opinion of many members of the profession ; among whom, as an 
 authority, he may name the late Mr. Duval, upon whose ex- 
 pressed opinion to that effect, and in whose lifetime, the present 
 work was in fact undertaken. The author's professional engage- 
 ments, however, have extended its preparation over a longer period 
 than its moderate bulk would, perhaps, seem to require: the 
 task, moreover, havmg, in itself, been one of considerable labour, as 
 he has examined, and endeavoured to form an independent opinion 
 upon the applicability of, every authority cited : defects, however, 
 he is fully sensible, must and do exist; many of which an un- 
 divided attention might possibly have removed ; but in submitting 
 the volume to the Profession, he has at least the satisfactory 
 assirrance that the most able are also in general the most candid 
 and lenient critics. 
 
 20, Southampton Buildings, 
 
 Chancery Lane, 
 
 \st Janvary, 185!. 
 
 [See Addenda and Errata after Table of Cases.]
 
 CONTENTS. 
 
 CHAPTER I. 
 
 AS TO EESTRICTIONS ON THE GENERAL CAPACITY TO BUY 
 OR SELL REAL ESTATE. 
 
 1. Who are generally incompetent to sell, page 1. 
 Infants, 2 — lunatics, 3 — married women, 5 — traitors, felons, bankrupts and 
 insolvents, 6. 
 
 2. Wlio are relatively incompetent to sell, p. 7. 
 Persons having no transferable title, 7 — or standing in special relation to 
 proposed purchaser which secures imdue personal influence, ib. 
 
 3. Who are generally incompetent to purchase, p. 8. 
 Corporations, except by license, &c., 8 — unincorporated classes, ib. — aliens, 
 recent and present law respecting, 8 to 10 — infants, 10 — lunatics, 12 — married 
 women, j6.— Roman Catholics, before 10th Geo. IV. c. 7, 13 — traitors and 
 felons, ib. — bankrupts and insolvents, ib., 14. 
 
 4. Who are relatively incompetent to purchase, p. 15. 
 Persons filling fiduciary character, 15 — cases in which general rule applies, 
 15 to 19 — incompetent purchaser bound at option of parties, interested, 19 
 — cases in which general rule does not apply, or is relaxed, &c., 19 to 22 — 
 nature of risk incurred by fiduciary purchaser, 22 to 25 — what time allowed 
 for impeaching sale, 25 — confirmation and acquiescence by cestuis que trust, 
 26. 
 
 CHAPTER II. 
 
 AS TO SALES BY FIDUCIARY VENDORS. 
 
 1. As to the time for sale, p. 27. 
 By agents, 27 — assignees of bankrupts and insolvents, 28 — mortgagees, ib. 
 — statutory owners, ib. — trustees, 28 to 31. 
 
 2. As to the manner of sale, p. 31. 
 Whether by auction or private contract, 31, 32 — together, or in parcels, 32.
 
 VI CONTENTS. 
 
 33 — precautions to secure advantageous sale, 33, 31 — sale with consent, 
 what consent suflBcient, 31. 
 
 3. As to the price, p. 35. 
 Must be a gross sum, 35 — reserved biddings, ih. — opening biddings in bank- 
 ruptcy, 36 — no liability on sale by auction below value, ib. — price on 
 sales under Land Clauses Consolidation Act, ih. — rescinding contract, 37. 
 
 4. General points relatinc/ to sales hy fiduciary vendors, p. 37. 
 General liability, 37 — sales by, seldom restrained, 38 — liability of person 
 assuming to act as trustee, ih. 
 
 CHAPTER III. 
 
 AS TO THE EELATIVE DUTIES OF VENDOES A^^D PUK- 
 CHASERS PEIOE TO THE SALE. 
 
 1. As to the disclosure or concealment of defects, incunihrances, S{c., hy 
 vendor, p. 39. 
 Vendor need not point out patent defect, 39 — but must not conceal it, 40 — 
 sale by agent, ib. — must in Equity disclose latent defect, ib. — must fully 
 disclose title, 41 — but need not point out defects or matters of which pur- 
 chaser has notice, ib. — lease is notice, ib. — what facts to be disclosed as 
 material, ib. — inquiry of incumbrancers and trustees, &c., 42. 
 
 2. As to commendatory statements, ^"c, by vendor, p. 43. 
 PuiBng statements, 43 — What mis-statement fatal at Law and in Equity, 44, 
 45 — stranger when liable for, ib. — guarantee of solvency, 46. 
 
 3. As to concealment, S{c., of advantages by purchaser, p. 46. 
 He need not disclose concealed advantage, 46 — but must not mislead vendor, 
 ib. — must disclose fact increasing vendor's interest, ib. 
 
 4. As to depreciatory remarks, Sfc, by purchaser, p. 46. 
 Purchaser depreciating property cannot sue in Equity, 46 — whether liable to 
 action, ib. — agreement with, not to bid against, legal, 47. 
 
 CHAPTER IV. 
 
 AS TO THE PAETICULAES AND CONDITIONS OF SALE. 
 
 1. General matters relating thereto and their construction, p. 48. 
 Construed strictly against vendor, bixt not so as to contravene Law or Cus- 
 tom, 48 — purchaser when bound by catching conditions, 49 — particulars, &c., 
 cannot be contradicted, &.G., by parol, except on behalf of defendant in 
 Equity, 50 — alteration of printed particulars, ib. — sale without reserve, 51.
 
 CONTENTS. Vll 
 
 2. As to the pre2yiiration and contents of particulars, p. 51. 
 Description of property, 51 — what estate aud advantages implied, ib. — mine- 
 rals wlien not included, 52— permanent charges, &c., to be stated, ib. — 
 unless purchaser has notice, 53 — but there must be no misrepresentation, &c., 
 ib., 54 — removal of buildings when to be stated, ih. — reference to plan, 55 — 
 showing intended improvements, ib. — adjoining land described as building 
 land, ib. — meaning of particular descriptive expressions, 56. 
 
 3. As to the conditions, p. 57. 
 Against retracting biddings, 57 — for reserved biddings, ib. — as to the deposit, 
 ib. — abstract, 57, 58 — time for completion, and interest, 58 to 60 — convey- 
 ance, 60 — apportionment of rent, ib. — crops, fixtures, and timber, 61 — mis- 
 descriptions and compensation, 62 to 65 — deeds, attested copies, &c., 65, 
 66 — title, &c., GQ to 68 — identity, 69 — expenses, 70 — indemnity, ib. — time 
 for objections, 70 to 72 — resale and forfeiture of deposit, 73 — facts stated in, 
 must be proved, ib. 
 
 4. What special conditions are generally requisite in various specified 
 
 cases, p. 74. 
 On sale of inclosed lands, 74 — lands formerly waste, ib. — enfranchised copy- 
 holds, ib. — copyholds late waste, 75 — 'leaseholds, ib. — renewable leaseholds, 
 76 — reversions, ib. 
 
 5. General remarks on special conditions, p. 76. 
 Use of, by fiduciary vendors, 76, 77 — expenses on sale in lots, 77 — power to 
 sell under, 78 — misdescriptions, ib. — covenants, ib. 
 
 CHAPTER V. 
 
 THE SALE AND MATTERS CONNECTED THEEEWITH. 
 
 1. Auction, to/iat it is, p. 80. 
 Defined, 80 — express direction to sell by, ib. 
 
 2. The auctioneer, his liabilities, power, and remuneration, p. 80. 
 When liable as principal, 80 — cannot vary terms after sale, ih. — his power, 
 rights, and liabilities as respects deposit, 81 — commission, 82 — insolvent, 
 vendor bears loss, ib. — agent for parties within Statute of Frauds, ib. — re- 
 vocation of his authority, 83 — whether signing as agent he can sue prin- 
 cipal, ib. 
 
 3. Agents, p. 83. 
 How appointed, 83 — private instructions to, 84 — apparent agent, ib. — pur- 
 chaser, how bound by acts of, ib. — agency denied, ib. — contract by agent, no- 
 minally as principal, or by nominal agent, 85 — contract by, how to be signed, 
 ib. — of undisclosed principal, 86 — has no implied power to receive purchase-
 
 Vlll CONTENTS. 
 
 money, ib. — order to, to pay it over, ib. — commission, ib. — authority of, 
 may be revoked, ib. — or unauthorized acts adopted, when, ib. 
 
 4. The deposit, p. 87. 
 
 Its nature, 87— how to be paid, ?"i.— cheque for, 88— investment, ?6.— for- 
 feiture, ib. — retainer by vendor, ib. — loss, 89. 
 
 5. Puffers and reserved biddings, p. 89. 
 
 One bidder allowed in Equity, when, 89— not at law, semble, /J.— purchasing 
 by mistake, 90. 
 
 CHAPTER VI. 
 
 AS TO THE AGREEMENT. 
 
 1. General necessity for a written agreement, p. 91. 
 Statute of Frauds, 91 — what sales not within, ib. — parol agreement for lease 
 &c., void, ib. — parol license, 92 — agreement substantially for sale, ib. — 
 void agreement may excuse trespass, 93 — written transfer of parol agree- 
 ment, ib. — what shares within 4th section, ib. — growing crops, 93 to 95 — 
 tenants' agreements, 95 — agreements as to rent, ib. — agreement partially 
 void, when void in toto, 96. 
 
 2. Preparation of formal agreements, p. 96. 
 Hepresentatives, whether to be named in, 96 — agreement on sale by auction 
 refers to particulars, &c., ib. — on private sale, comprises what, ib. — on sale 
 to railway companies, &c., 97. 
 
 3. What informal documents may constitute an agreement, p. 97. 
 What a sufficient agreement, 97— letters, receipt for money, entry of sale, 
 arbitration bond, notice by or to company, 97 to 99 — rent rolls, abstract, 
 insufficient, 99 — letters, when insufficient, ih. — recital, sufficient, 100 — docu- 
 ment nuTst consist with alleged parol agreement, ih. — names of parties, ih. 
 — offer by letter, 101 — description of property, j'V^. — terms must be fixed, ib. 
 — either by signed document or documents there referi'ed to, 102 — what re- 
 ference sufficient, 102, 103 — correspondence, when an agreement, 104 — con- 
 ditional acceptance, « J. — withdrawal and acceptance of offer, 104,105 — agree- 
 ment sent as instructions, 105. 
 
 4. The signature, p. 105. 
 Of party charged sufficient, 105 — other party must elect, ib. — what sufficient, 
 106 — by agent, ib. — place for, ih. — signature as witness, 107— approval of 
 draft agreement, &c., ?i.— signature by public companies, 108 — unautho- 
 rized alteration of agreement after signature, ib. 
 
 5. The stamps, p. 109. 
 
 What necessary Oii agreement, 109 — several, wlien reipiisite. 110 — loss of
 
 CONTENTS. IK 
 
 unstamped agreement, ib. — document purporting to be, when chargeable as 
 conveyance. 111 — agreement in evasion of stam]} laws, ih. 
 
 6. Illegal agreements, p. 111. 
 Agreement for illegal purpose, void. 111 — champerty and maintenance. 111, 
 112 — splitting votes for elections, 113. 
 
 CHAPTER VII. 
 
 EFFECT OF THE CONTRACT ON EIGHTS OF THE PAETIES. 
 
 1. Purchaser entitled to estate and vendor to purchase-money, p. 114. 
 Estate bound though vendor a trustee, &c., 114. 
 
 2. Purchaser s general rights under contract as against vendor, p. 115. 
 General nature of his interest, 115 — it may be aliened, ib. — crops, windfalls, 
 timber, &c., 115, 116 — contract voidable, if property altered, ib.- — ^he takes 
 accidental benefits, and bears losses, ih. — in what cases, 116, 117 — compul- 
 sory power of purchase not exhausted by contract, 118. 
 
 3. Vendor s general rights under contract against purchaser, p. 118. 
 Vendor has a lien on estate, 118 — may restrain fall of timber, when, ib — ^judg- 
 ment against, charges pvirchase-mouey, 119 — he may keep estate and deposit, 
 when, ih. — rights of, as landlord, how affected, ib. — cannot sue purchaser for 
 use and occupation, when, ib. 
 
 4. Rights of vendor and purchaser, inter se, not affected by death, 
 banhruptcy, S^c, of either party, p. 120. 
 
 5. Death of vendor before completion, its effect on relative rights of his real 
 and personal representatives, under old and under new Laiv, p. 121. 
 Purchase-moneys go to personal, and interim rents and legal estate to real 
 representatives, 121 — conveyance of, how obtainable, ib. — contract under 
 old law revoked prior devise in Equity, ib. 122 — notice by company, 
 whether a contract, ib. — relative rights of representatives depended on his 
 liability to perform contract, 122, 123 — subsequent events immaterial, if con- 
 tract binding, ib — rescinding of, or abandonment of contract, its effect, 
 ih. — estate contracted for, how affected by devise, 124 — effect of 1 Vict. c. 
 26, ih. 
 
 6. Death of purcliaser before completion : its effect on relative rights of his real 
 and personal representatives under old and under neto Law, p. 125. 
 
 Such rights depended on his liability to perform contract, 125 — if not so liable, 
 heir had no claim on personal estate, ib. — relative rights of heir and devisee, 
 126 — election, ib. — devisee's right to purchase -money, ib. — conveyance re- 
 voked will, when, 127 — devise of laud contracted for, &c., ih. — rights of 
 heir and devisee since 1 Vict. c. 26, ib. — purchase of fee by termor, 128.
 
 X CONTENTS. 
 
 7. Effect of contract in various special cases, p. 128. 
 Mortgagee selling, may sue for mortgage debt, 128— liability of equitable 
 purcliaser of lease, 129 — of lessor agreeing to buy underlease, ih. — of assig- 
 nees, selling lease, ih. — agreement, excluded dower of after-taken wife, ib. 
 
 CHAPTER VIII. 
 
 AS TO THE ABSTRACT. 
 
 1. General matters relating to the abstract, p. 130. 
 Turcliaser's right to, and to retain, 130 — must be given up, if contract aban- 
 doned, ih. — vendor pays for, ih. — except on sales to railway companies, &c. ib. 
 
 2. W/ien it is perfect ; — what it must contain and show, p. 131. 
 
 When perfect, 131 — sbould state written consent of consenting parties, 132 — 
 must show wbere legal estate is vested, ih. — showing future title, insufficient 
 at Law, ih. — incumbrances, whether a defect in Equity, 133 — title good, 
 though conveyance delayed, ih. — showing tenancy in tail, whether suffi- 
 cient, ih. 
 
 3. What should he furnished in various cases, p. 134. 
 
 On purchase by tenant in common, &c., 134 — of allotment, ib. — land taken in 
 exchange, 135 — from the Church, or under Inclosure Acts, ib. — or from a 
 charity, 136 — estate, with attendant terms, ib. — enfranchised copyholds, 
 137 — leaseholds, ib. — renewable, or for lives, 138— shares in mines, ih. — 
 or pews, ih. — must go back 60 years, ih. — or 100 years on sale of advowson, 
 139 — must show creation of reversionary interest, ib. — except on sale of old 
 term, ih. — rule the same, though estate be equitable, 140. 
 
 4. Its preparation, contents, and delivery, p. 140. 
 It should commence with a document, 140 — of what kind, 140 to 142 — excep- 
 tion, 142 — should be continued regularly from commencement, ib. — all 
 documents atFectiug legal estate should be abstracted, 143 — in chief, ib. — 
 statements of pedigree, ih. — documents evidencing immaterial or satisfied 
 equities, 143 to 145 — loss of deeds, 145 — shotdd notice judgments, &c., ib. — 
 and be accompanied by what documents, &c., ih. — should be copied legibly, 
 &c., 146 — non-delivery of, ib. 
 
 5. Its examination arid perusal, p. 147. 
 When to be compared with deeds, 147 — consulting counsel, ih. — its perusal, 
 148 — acceptance of title shown by, 149 — defects in title, when not to be 
 communicated, ih. 
 
 6. Verification of the abstract, p. 149. 
 AYhat evidence requisite in proof of documents and facts, 149 — of private Acts, 
 ih. — inclosure awards, ih. — copyhold assurances, ib. — deeds, 151 — recitals of,
 
 CONTENTS. XI 
 
 when evidence, 153, 154 — proof of Fines and Eecovcries, 154, 155 — of frrant 
 from Crown, ih. — proceedings at Law and in Equity, ih. — Bankruptcy and 
 Insolvency, 156 — under 1 & 2 Vict. c. 94, ib. — proof of will, 156 to 158 — 
 negative evidence, 158 — deficiencies in proof of documents, supplied by 
 presumption, 159 — presumption of grant from Crown, ib. — reconveyance, ih. 
 ■ — copyhold surrender, ib. — payment of mortgage, 160 — surrender to will, 
 ib. — enfranchisement, ib. — mesne assignments, ib. — grant of easement, ib. 
 — formalities of deeds, 161 — livery of seisin, ib. — appointment of Inclosui'e 
 Commissioners, ib. — stamps, ib. — not of certain forms required by Law, 161 
 — general rule of presumption, 162 — evidence of matters of fact, ib. — pur- 
 chaser can require what facts to be proved, ib. — as to negative evidence, 
 &c., 163— vendor must answer, what inquiries, 163, 164 — need not explain 
 adverse notice, not acted on, ib. — when required to pi-ove will in equity, ib. 
 — need not disclose confidential communications, 165 — whether bound to 
 produce will as negative evidence, ib. — or to prove intestacy, 165 — pur- 
 chaser cannot require copies of negative evidences, 166 — want of proof of 
 material facts, supplied by presumption, ib. — presumption of identity of 
 parcels, ib. — or individuals, 167 — of seisin, ib. — continuance of seisin, 168 
 — of intestacy, ib. — official appointments, ib. — stock of descent, ib. — legiti- 
 macy, 169, 170 — marriage, 171 — death, 172 — time of death, 173 — survivor- 
 ship, ib., 174 — failm-e of issue, ib. — against aged female having issue, 175 — 
 births, marriages, and deaths proved from registers, 176 — or by declara- 
 tions, &c., 177— entries in books, &c., ib. — old pedigrees, 178 — inscrip- 
 tions, &c., ib. — collateral matters, whether so proveable, 179 — declarations 
 must be " anie litem motam," ib. — by party, in like interest, admissible, 180 
 — recitals, when evidence, ib. — land-tax, redemption of, how proved, ib. — 
 tithes, 181 — commutation of, ib. — proof of composition, modus, or ex- 
 emption, 182— facihtated by 2 & 3 Will. IV. c. 100, ib.— tithes, how 
 afiected by 3 & 4 Will. IV. c. 27, 183— defects in title, when supplied 
 by 2 & 3 Will. IV. c. 71, and 3 & 4 Will. IV. c. 27, ib.— title under 
 2 & 3 Will. IV. c. 71, to light, 184 — rights of way and other easements ex- 
 cept light, /i.— rights of common, &c., 185 — period for which possession must 
 be proved, ib. — cnjoj^ment must have been uninterrupted, as of right, 186 — 
 except as respects light, 187 — interruption, what is, ib. — 3 & 4 Will. IV. 
 c. 27, 188 — actions, &c., must be commenced within what period from accrual 
 of right, ib. — time of accrual in certain cases, 189 — general rule, ib. — admi- 
 nistrator claims as from death, ib. — express trust, 190 — charities, ib. — 
 fraud, ib. — tenancy at will, ib. — mortgagor and cestui que trust, 191 — 
 tenancy from year to year, 192 — right saved by acknowledgment of title, 
 ib. — or receipt of rent or services, ih. — not saved by possession of joint 
 owner, ih. — estates in remainder, &c., when barred, 193 — married woman, 
 194 — remainders expectant on estate tail, 194, 195 — base fee, when to become 
 fee simple, ib. — equity of redemption, 196 — time for action, &c., by spiritual 
 or eleemosynary corporation sole, 197 — for recovery of advowson, &c, ib. — of 
 money charged on land, 197. 198 — of periodical payments, 198 — purchaser
 
 CONTENTS. 
 
 must accept title depending on Statute, 199 — possession under Act bars the 
 rij;]it, 200 — adverse possession as against the Crown, ib. 
 
 CHAPTER IX. 
 
 AS TO THE PRODUCTION AND EXAMINATION OF THE 
 
 DEEDS. 
 
 1. As to the time, place for, and expenses of production, p. 201. 
 Deeds, where to be produced, 201 — expenses, ib. — notice of place, 202 — 
 deeds producible only under covenant, ib. — grants from Crown, ib. — instru- 
 ments on record, ib. — examination of deeds before perusal of title, ib. 
 
 2. Production of deeds, who may compel, p. 202. 
 Owner of undivided share, 202 — of estate held under one of several titles 
 created by same instrument, ih. — purchaser of portion of estate, 203 — con- 
 tingent remainderman cannot, ib. — whether vested remainderman can, ib. 
 — ^remainderman under purchase-deed, 204 — unpaid mortgagee need not 
 produce deeds, ib. — exceptions from rule, 204, 205 — liability of mortgagee 
 for their loss or destruction, lb. 
 
 ■ 3. Non-production of deeds — hotvfar important, p. 205. 
 It may be notice of their deposit, 205. 
 
 4. Examination of deeds, matters to be observed in, p. 20G. 
 
 CHAPTER X. 
 
 AS TO MATTEES AEISING BETWEEN DELIVERY OF AB- 
 STRACT AND PREPARATION OF CONVEYANCE. 
 
 1. Time, ivhen essential at Laiv and in Equity, p. 208. 
 Is essential at Law, 208 — not in Equity, unless by agreement, or under special 
 circumstances, ib. — as where vendor incurs fresh liability, 209 — or pro- 
 perty is of fluctuating value, ib. — or determinable character, ib. — or is evi- 
 dently required at once, ib. — or vendors are a fluctuating body, ib. — ten- 
 dency of modern decisions, ib. — purchase-money being wanted to discharge 
 incumbrances, is material, 210 — private unexpressed motives for purchase 
 immaterial, ib. — effect of, if subsequently communicated, ib. — undertaking 
 to deliver possession not binding in Equity, ib. — wilful delay concludes in 
 Equity, ib. — either vendor, ib. — or purchaser, 211 — less time now allowed, 
 ib. — title at hearing, when sufficient in Equity, ib. — rule at Law, ib. — time 
 may be limited by notice, ib. — allowing a reasonable period, ib. — vendor 
 giving notice need not return deposit, 212 — purchaser giving notice need 
 not sue for deposit, ib. — cannot determine contract without notice, ib. —
 
 CONTENTS. XUl 
 
 time, when held to remain optional, lb. — althontrh essential may he enlarged 
 or waived, 213 — by proceeding in purchase, ih. — or neglecting to I'cquire 
 possession, ih. — how not enlarged at Law, ib. — conditional waiver, ib. — 
 time for delivery of absti'act, how waived in Equity, 213, 214 — waiver by 
 not objecting to certain or highly probable delay, ih. — effect of protest, ih. 
 — "month," 215. 
 
 2. Ohjections to title ; — negotiations upon and waiver of; — token 
 possession taken amounts to waiver, p. 215. 
 Effect of negotiations on condition as to objections, 215 — solicitor purchasing 
 from client cannot object to title which he accepted, ih. — danger of frivolous 
 objections, &c., ih. — or of withholding objections, &c., 216 — purchaser's ^rma 
 facie right to good title, ^i.— may be waived, 217 — counsel's opinion, when 
 not binding, ih. — acceptance of title, subject to specified requisition, ib. — 
 waiver may be implied, ih. — from apologies for non-payment, ih. — from 
 payment for and dealing with estate, 218 — preparation, &c., of conveyance, 
 when a waiver, ih. — attempt to resell, no waiver, ih. — to resell part, ih. — pos- 
 session, when evidence of waiver, 219, 220 — leasing, equivalent to posses- 
 sion, 220. 
 
 3. As to the general rights and liabilities of a purchaser in possession, 220. 
 He may generally act as owner, without waiving title, 220 — whether so after 
 discovery of defect, 221 — retention of possession and refusal to discuss title, 
 an acceptance, /S.-^waiver of title, but not of compensation, ih. — waiver, 
 how modified, ib. — purchaser rejecting title may be ejected without com- 
 pensation for expenditure, ih. — what allowance made when vendor sues in 
 Equity, 222 — purchaser whether liable for use and occupation, if title bad, 
 ib. — giving up possession may maintain use and occupation after comple- 
 tion, when, 223 — rejecting title must reinstate altered premises, ih. 
 
 4. Vendor in possession, by altering property, avoids the contract, p. 223. 
 Material alteration of property by, may avoid contract, 223, 224 — e.g., fall of 
 ornamental timber, 224 — alterations in value of estate, or failure of con- 
 sideration, ih. 
 
 5. As to entry and possession by railway comp)anies before completion, p. 224. 
 Provisions of Lands Clauses Consolidation Act, 1845, as to entry, &c., 224, 
 et seq. 
 
 CHAPTER XI. 
 
 AS TO SEAECHES FOE, AND INQUIEIES EESPECTING, 
 INCUMBEANCES. 
 
 1. What inquiries should be made of vendor s solicitors and of supposed incum- 
 brancers, trustees, and tenants, p, 227. 
 Inquiry to be made of vendor's solicitors, 227 — and supposed incumbrancers.
 
 XIV CONTENTS. 
 
 ,7j. — whether inciiiubrancer need communicate his claim, 228 — inquiry to be 
 made of trustees, ib.— but does not give priority, 229— liabiUty of trustee, 
 ib. — inquiry of tenants, lb. 
 
 2. What searches should be made for incumbrances — law respeoting 
 judgments, Sfc., p. 229. 
 Liability of solicitor omitting to search for incumbrances, &c., 229, 230 — gene- 
 ral law respecting judgments, 230 — purchasers, &c., without notice, not 
 affected by 1 & 2 Vict. c. 110, ih. — want of notice not to be relied on, ib. 
 — ^judgments under old law, what they do or do not affect, 231 — docketing 
 necessary, ih. — purchaser bound by notice of undocketed judgment, ib. — 
 Equity aided creditor, when, ib. — effect of bankruptcy, ih. — purchaser 
 without notice, protected by legal estate, ib. — with notice, protected by 
 exercise of power of appointment, 233 — judgment after contract, ib. — ex- 
 tended remedies of creditor under 1 & 2 Vict. c. 110, 233 to 236 — 
 effect of bankruptcy, ib. — creditor postponed to cestui que trust, or prior 
 equitable incumbrancer, 237— judgment, whether a charge on mortgage 
 debt, ib. — is a charge on annuity issuing out of, 238 — on legacy charged 
 on land, ib. — or unpaid purchase-money, ih. — and surplus proceeds of sale 
 by mortgagee, ib. — certain decrees and orders operate as judgments, ib. — 
 remedies under new law depend on registration, 238, 239 — to be renewed 
 every five years, 239 — whether so as to palatinate judgments, 239, 240 — 
 whether such judgments bind purchasers without notice, ih. — effect of 
 notice of tmregistered judgment, ih. — of judgment docketed but not regis- 
 tered, or registered but not re-registered, 241 — Crown debts and account- 
 antships, ih. — lis pendens, 242 — Court rolls and local registers, ib. — bank- 
 ruptcy and insolvency courts, ib. — annuities, 243 — recovery deeds, and 
 acknowledgments by married women, ib. 
 
 3. Time for mahing searches and inquiries, p. 243. 
 Searches, &c., time for, 243 — unnecessary, costs of not allowed, 244» 
 
 CHAPTER XII. 
 
 AS TO THE PEEPAEATION OF THE CONVEYANCE. 
 
 1. General matters relating to, and to the form of, p. 245. 
 Purchaser prepares conveyance, 245 — manorial custom, contra, valid, ib. — 
 conveyance of equitable interest, ib. — preparation of, no acceptance of title, 
 245, 246 — whether purchaser can require outstanding interests, &c., to be 
 got in by separate deed, 246 — statement of unnecessary matters, &c., inel- 
 igible, 246, 247 — disentailing deeds, 247— statutory railway conveyances 
 ineligible, ib. — parliamentary forms of 1845, ib. — incumbrances, when to be 
 got in by separate deed, 248 — how to be kept on foot, if desired, ib. —
 
 CONTENTS. XV 
 
 distinct estates, &c., slioukl be dealt witli by separate deeds, ib. — Act for 
 Merger of satisfied Terms, its effect, ih. 
 
 2. As iu the parties, p. 250. 
 Who must be, 250 — stipvilation that unnecessary parties shall concur, ih. — 
 purchaser from mortgagee cannot requii-e mortgagor's concurrence, ih. — 
 bankrupt, when a party, 250, 251 — dowress, 251 — assignment of term, 
 whether a suiEcieut bar of dower, ih. — jointure, 252. 
 
 3. As to the recitals, p. 252. 
 Should be used, with what object, 252 — whether desirable in disentailing 
 assurances, 253 — of vendor's title, effect of, ih. — of written agreement, 
 when desirable, 254 — of objections, in deed of confirmation, ih. 
 
 4. As to the consideration, words of conveyance, and parcels, p. 254. 
 Consideration to be truly stated, 254 — fixtures, timber, &c., 254, 255 — chat- 
 tels passing by dehvery, 255 — recital of sale, its effect, ih. — apportionment 
 of consideration, ih. — sale in consideration of transfer of stock or grant of 
 annuity, 256 — compensation, on sale to Railway Company, 256, 257 — 
 operative words, 257 — reference to, 4 & 5 Vict. c. 21, unnecessary, ib. — 
 dower uses, ih. — forms of conveyance in colonies, ih. — parcels, how de- 
 scribed, 258 — mines, &c., when to be specified, ih. 
 
 5. As to the covenants, p. 258. 
 
 Covenants for title, 258 — solicitor's liabihty, respecting, ih. — what entered into 
 by absolute beneficial owner, 259 — for whose acts, ih. — owner covenants on 
 sale by Court or trustees, 260 — landowner's covenants on sale to Eailway 
 Company, ih. — covenants by tenants for life, 260, 261 — by husband and 
 wife, on sale of her estate, ih. — by fiduciary vendors, ih. 262 — incumbrancer 
 releasing, ib. — Crown gives no covenants, ih. — parties interested in pur- 
 chase-money, lb. — covenants against known defect, ih. — for production of 
 deeds, 263 — purchaser's right to, ih. — respecting what document, 264 — 
 with whom vendor should covenant, ih. — purchaser's covenants with 
 vendor, 265 — on purchase of equity of redemption, ih. — leaseholds, ih. — or 
 freeholds subject to quit rent, &c., ih. — for production of deeds, ih. — agree- 
 ment against using land in specified manner, how carried out^66 — cove- 
 nants by purchaser of minerals, ih. — by purchaser in consmeration of 
 annuity, ih. — purchaser not executing conveyance, yet bound in Equity 
 by covenants, ih. 
 
 6. As to draft and engrossment, p. 267. 
 
 Alterations in draft should be communicated, 267 — engrossment, ?7>.— belongs 
 to purchaser, ib. — executed, and then contract i-escinded, ih.
 
 CONTENTS. 
 
 CHAPTER XIII. 
 
 AS TO MATTEES RELATING TO THE COMPLETION 
 OE THE PUECHASE. 
 
 1. The execution of the conveyance hy married toomen, Sfr. ; conveyance of 
 trust estates under the Trustee Act, 1850, p. 269. 
 Vendor must convey in person, 269 — conveyance of freeliolds by married 
 woman must be acknowledged, 269, 270— acknowledgment, practice respect- 
 in<T, 270 to 272— assurance of her copyholds, 272— or reversionary interest 
 in proceeds of sale of, or money to be invested in, real estate, 273 — or her 
 terms for years, ib. — husband's concurrence, when dispensed with, 273, 274 
 — conveyance of her contingent interests, and disclaimer, 275 — assignment 
 of terms by executors, &c., ?:6.— power for promoters of public undertakings 
 to convey to themselves, ih. — trustees must convey at request, &c., 276 — 
 by what description, ib. — mortgagee need not convey before time fixed for 
 redemption, ib. — assignee in bankruptcy, ib. — conveyance of legal estates 
 from trustees, lunatics, or infants, under Trustee Act, 1850, 277 — the 
 Court may, in several specified cases, make vesting or releasing order, 
 operating as an assurance, 277, 278— and may make vesting order in respect 
 of mortgaged lands in specified cases, 278, 279— or may appoint person to 
 ■ convey, &c., «i.— as to copyholds, ?'J.— Court may declare who are trustees 
 of land comprised in suit for specific performance, &c., 280— orders under 
 Act. how obtainable, ?&.- certain allegations, evidence, if order made 
 thereon, 280, 281 — no escheat of trust and mortgage estates, 281. 
 
 2. As to the discharge of incumbrances, p. 281. 
 Vendor liable for incumbrances, &c., until conveyance executed, 281, 282 — 
 incumbrances must be paid off or released, iS.— discharge of, under the 
 Lands Clauses Consolidation Act, 1845, 283. 
 
 3. As to jjurchc/ser's liability to see to application of trust purchase- 
 money, p. 283. 
 Liability t^ed by intention of author of trust, semble, 283— as expressed or 
 implied, /J.— matters posterior to creation of trust, neither take away, 284 — 
 nor confer power to give receipts, ib. — what circumstances attending trust 
 confer it by implication, 284, 285— cases where no such power is implied, 
 285— subsequent events not material either way, 286, 287— distmction, 
 where the sale itself is a breach of trust, 288— case of sale to provide for 
 deficiency in personal estate, 289— purchase-money is payable to decease^d 
 vendor's executor, 290— surviving trustees can give receipts, when, ib.— 
 trustee irregularly appointed, ib.—aSi trustees must join, ib.—l & 8 Vict, 
 c. 76, ib. — power to lend on mortgage implies power to give receipts, 291 — 
 application of purchase-money in payment oi charges, ?5.— when estate is
 
 CONTENTS. XVll 
 
 iiitencled to be a contiuuiiig security, 291 — and wUeu immediate sale is cou- 
 templated, ih. — cliarj^e of debts equivalent to trust for sale to pay, 291, 292 
 — statutes makiug real estates assets not equivalent to charge of debts, 292 
 — receipt under usual povrer of attorney, when not a suiBcieut discbarge in 
 equity, 292. 
 
 4. Anioimt payable in respect of purchase-money , how increased or 
 diminished, p. 293. 
 Increased by interest ; rate of, 293 — payable from what time if delay rests 
 with purchaser, ib. — or with vendor, ib. — whether, until title shown, pur- 
 chaser may appropriate his money, 294 — purchaser in possession pays 
 interest althouj^h contract ainbiguoua, ib. — is payable, from what time, if no 
 time fixed for completion, 295 — on sale of reversion, ib. — on valuation of 
 timber, 295, 296 — fixtures, 29G — leaseholds, 297 — trade premises, ib. — what 
 a sufficient appropriation of purchase-money, 297, 298 — payment into Bank, 
 ib. — purchaser acceding to delay, ^■i.— express agreement to pay interest, 
 effect of, ib. — "unavoidable obstacle," &c. &c. 299 to 302 — agreement to 
 take profits excludes interest, 302 — increase of purchase-money for excess 
 in quantity, 303 — statutory acre, li.— vendor's right to compensation, doubt- 
 ful, 304 — variations in quality of estate, no allowance, semble in his favour, 
 ib. — purchase-money how diminished, 305, 30G — ^by proceeds of estate re- 
 ceived, &c., by vendor, 306 — deteriorations, ib. — abatement in respect of 
 original defects, 307 — for deficiency in quantity, ib. — effect of expressions 
 " by estimation," &c., 308 — purchaser's right confined to compensation, ib. 
 ■ — surface deficiency on sale of woods, 309 — abatement in respect of defi- 
 ciency in quality, ib. 
 
 5. To whom and hoio purchase-jnoney should be paid, p. 310. 
 
 Agent or solicitor not authorized as such to receive it, 310 — to whom it should 
 be paid, ib. — on sale in bankruptcy, 311 — lieu of third party advancing it, 
 as against purchaser's assignees, ib. — payment on sale to Railway Com- 
 panies, &c., ib. — prima facie right of parties in possession, 312 — affidavit on 
 petition for payment out of Court, ib. — re-investment, 313. 
 
 6. As to purchaser s right to deeds, attested cop)ics, Sfc, 314. 
 Purchaser's right to deeds, &c., 314 — on purchase of only part of estate, ib. — 
 
 although vendor has covenanted to produce them to other parties, ib, — sale 
 under a settlement, ib. — liability of mortgagee settling several mortgages 
 by a single deed, 315 — purchaser not entitled to negative evidences, ib. — 
 his right to attested copies, 315, 316 — covenant for production, 316 — absence 
 of documents not produced should be explained, 316, 317. 
 
 7. Matters necessary to ensure the full effect of the executed conveyance, 
 registration, enrolment, Sfc, p. 317. 
 Local registration, 317 — what interests are excepted from the Acts, 317, 318 
 — copyholds, 318 — leases at rack rent, what are, ib. — for twenty-one years, 
 
 b
 
 XVin CONTENTS. 
 
 318 — London not within the Middlesex Act, ib. — assignment of money 
 charged on land, ih. — deed of appointment, 319 — ^Railway conveyances, 
 &c., ih. — will, ih. — memorial, its contents, ih. — attestation of, ih. — where 
 deed conveys several shares or estates, 320 — registration under Bedford 
 Level Act, ib. — enrolment under Mortmain Act, ib. — enrolment of disen- 
 tailing deed, 321 — consent of protector, ib. — assurances on sale by tenant 
 in tail of copyholds, 321, 322 — certificate of acknowledgment by married 
 women, 323 — entry on Coiirt rolls of copyhold assurances, ih. — conveyance 
 of contingent interest in copyholds, 324 — assurance of copyholds under the 
 L. C. C. Act 1845 to be entered on Court EoUs, ib. — indorsed notice of con- 
 veyance, when expedient, 324, 325 — notice to trustees, ih. — to mortgagee on 
 purchase of equity of redemption, ih. 
 
 8. As to stamps, p. 325. 
 Deed unstamped, not evidence, 325 — may be stamped after execution, ib. — 
 ad valorem duty payable only on consideration stated, 326 — on what con- 
 sideration, 326, 327 — amount may be reduced, to lessen duty, 328 — family 
 arrangement, ib. — money paid for lease granted at request, ih. — duties pay- 
 able imder-13 & 14 Vict. c. 97, ih. — commissioners may determine proper 
 amount, 329 — certain conveyances exempted from increased duty, ih. — 
 what payable on single conveyance to joint purchasers, ib. — or in case of 
 subsales, 330 — on single conveyance of separate estates to sole purchaser, 
 ib. — deed of confirmation, ib. — prmcipal assurance, ib. — denoting stamp, ib 
 — steward to deliver out copies of Court EoU stamped, ih. — conveyance by 
 several owners, 331 — deed with double operation, ib. — matters not involv- 
 ing additional duty, 332 — deed stamp unnecessary, although ad valorem 
 duty under 35*., ib. — indorsed receipts, &c., are counted, ih. — stamps of im- 
 proper denomination, 333 — presumption as to stamps, ih. — alteration of 
 instrument, ih. 
 
 9. As to costs, p. 334. 
 
 Of conveyance, purchaser pays, 334 — of execution, vendor pays, ib. — expenses, 
 how borne on purchase of copyholds, 335 — costs of lease, 336 — of convey- 
 ance, in consideration of rent-charge, ib. — on sale under L. C. C. Act, ih. — of 
 re-investing purchase-money, &c., 337 to 339 — additional expenses, if estate 
 is encumbered, &c., 339, 340 — as to taxation under 6 & 7 Vict. c. 73, 340 to 
 342 — under general jurisdiction, 343 — under 8 & 9 Vict. c. 119, ih. 
 
 CHAPTER XIV. 
 
 • AS TO THE EFFECT OF THE CONVEYANCE ON THE EELA- 
 TIVE RIGHTS OF VENDOR AND PURCHASER. 
 
 1. Vendor's lien on estate for unpaid purchase-money, p. 344. 
 Vendor's lien 344, 345 — general nature of and incidents to, 345, 346 — marshal- 
 ling for. 346 — is lost by taking independent security, ib. — not by taking note,
 
 CONTENTS. XIX 
 
 bill, or bond, 346 — although for deferred payment, 347 — or third parties join 
 in note or bill, ih. — eflfect of surety joining in bond, ib. — of conveyance being 
 expressly in consideration of covenant, ih. — payable on an incalculable con- 
 tingency, ib. — or, expressly, in consideration of a bond, ih. — or, in mere fact, 
 in consideration of a covenant or bond, 348 — if bond be for payment on an 
 incalculable contingency, ib. — or on calculable contingency, ib. — or for an 
 annuity consideration, 348, 349 — or if sale be of a reversion, 349 — lien may sub- 
 sist as to only part of unpaid money, 350 — presumable intention either way 
 may be rebutted, ib. — hen how lost as against third parties, ib. — none im- 
 plied in favour of disqualified parties, ib. — is merely equitable, vendor can- 
 not at once siie at Law and in Equity, 351 — its efiect when purchase-money 
 remains on mortgage, ib. — vendor cannot claim miscalculated interest, ib. 
 
 2. Whether the vendor has any remedy if estate has been sold at an under- 
 value, or more has been conveyed than was intended, p. 351. 
 
 Not for mistake as to extent or value of property, 351 — or extent of his inter- 
 est, 352 — aliter, if property not intended to be dealt with is conveyed, ib. 
 — or if in fixing price he rely on purchaser's information, 353 — or if being 
 ignorant or distressed he sell at undervalue, ih. — general rule as to distress, 
 ib. — inadequacy of consideration no general reason for setting aside con- 
 veyance, 354 — uncertain amount of purchase-money, ib. — on sales of rever- 
 sionary interests, onus probandi lies on purchaser, ib, — what interests are 
 considered such, 254, 355 — reversioners relieved as well as expectant heirs, 
 355 — voluntary confirmation, ih. — heir when deprived of special protection, 
 356 — adequacy of consideration how determined, 357 — sale of goods, ih. 
 — sale fraudulent as against tenant in tail, set aside at suit of remainderman, 
 358 — terms of relief, ih. — acquiescence and confirmation, 359. 
 
 3. Vendor s rights of pre-emption under Lands Clauses Consolidation 
 Act, 1845, p. 359. 
 Provisions of Act in respect of superfluous lands, 359. 
 
 4. Vendors remedies at Law and in Equity on purchaser s covenants, p. 360. 
 Purchaser's covenants classified, 360 — whether first class run with the land, 
 3(31 — second class do not, semble, but in Equity bind alienee with notice, ib. 
 — ^but not always, 362 — third class, remedies on, ih. — Covenantor liable on 
 covenants in gross, ib. — assignee not liable on collateral covenant, 362, 363 
 — efiect of bankruptcy, 363. 
 
 5. Purchaser's remedies on vendor s covenants, p. 363. 
 Are in general his only remedies for defects after conveyance, 363— covenants 
 for title, 364 — who are liable on, ib. — benefit of, runs with land, when, 364 
 to 366 — covenants in conveyance of equitable estate, ih. — assignee may sue 
 on, in name of covenantee, ih. — breach of covenants for title, ih. — Statute of 
 Limitations, ib. — covenants for seisin and right to convey, how broken, 367 
 —action before eviction, ih. — covenant for quiet enjoyment, and free from 
 
 b2
 
 XX * CONTENTS. 
 
 incumbrances, 3G7— particular expressions, 3G8, 369— covenants against 
 known defects, 3G9— for further assurance, 370, 371— for title, how restricted, 
 371— how classified, i5.— restrictive words, effect of, 372, 373— who may sue 
 for breach, 373, 374— what damages recoverable, 374, 375— bankruptcy and 
 certificate, where no defence, 375, 376— formerly no action of covenant lay 
 against devisee, 376— alteration under 1 Will. IV. c. 47, ?:6.— damages 
 when claimable as debt in administration suit, ib.— not apportioned between 
 tenant for life and remainderman, 377— purchaser's remedies on vendor's 
 covenants other than for title, 377, 378. 
 
 6. Purchaser's remedy in Equity under special circumstances, if title prove 
 
 defective, p. 378. 
 Purchaser with defective title, when reheved in Equity, 378, 379— wilful mis- 
 representation, 379— fraud of agent, 380— terms of rehef, ib. 
 
 7. As to purchasers right to pay of^ incumbrances out of unpaid 
 purchase-money, p. 381. 
 
 8. Purchaser's remedy iniquity if he buy his own estate, or if lands are omit- 
 ted from conveyance, and as to further assurance in Equity and by Statute, 
 p. 382. 
 
 Purchaser buying his own estate, relieved, 382 — whether so if he buy estate 
 Avhich has no existence, ib. — he may claim lands shown to him, or acci- 
 dentally omitted, 382, 383— may require vendor to convey subsequently 
 acquired interests, 383— although sale were of mere expectancy, semble, 384, 
 385_no estoppel by doubtful recital, 385— voidable estate created by tenant 
 in tail, confirmed by subsequent assurance, ib. 
 
 9. As to the general rights and liabilities of ptir chaser under 
 conveyance, p. 386. 
 Purchaser's right to rent, 386 — to sue for breach of covenant, ib. — re-entry, 
 ih. — next estate now the reversion, 387 — purchaser's rights and liabilities 
 as lessee cease on conveyance, ib. — vendor retaining possession not liable 
 for use and occupation, ib. — purchaser's will, how aflfected, ib. — conditional 
 conveyance and mortgage distinguished, 388. 
 
 CHAPTER XV. 
 
 AS TO THE EFFECT OF THE CONVEYA.NCE ON THE ADVEESE 
 EIGHTS OF THIED PAETIES. 
 
 1. Purchaser loithout notice, protected by legal estate against prior 
 claimants, p. 389. 
 If Equities equal, legal estate prevails, 389— purchaser without notice pay- 
 ing purchase-money and acquiring legal estate under conveyance, 389, 
 390 — or by subsequent assurance, acquires indefeasible title, 390 — though
 
 CONTENTS. « XXI 
 
 vendor liacl no title in Equity, 390 — notice of another's better right to legal 
 estate is notice of all his equities, 390, 391 — legal estate from trustee with 
 notice, whether available, 391 — from unsatisfied incumbrancer, ib. — best 
 right to call for, protects, 392 — equity will not in general act against bond 
 fide purchaser without notice, ib. 
 
 2. Furchaser tvith mere equitable title is postponed to prior 
 equitable claimants, p. 392. 
 Between mere equitable claimants prior title prevails, 392 — mortgagees by 
 deposit bound by secret trust, 393 — no priority by notice to owner of legal 
 estate, ib. — concealed incumbrance thrown wholly on puisne equitable 
 purchaser, ib. — charities, 394.'. 
 
 3. Picrchaser, ho iv far protected against defective execution of powers ; against 
 prior claimants loho have encouraged him to purchase; and by Statute in 
 various cases, p. 394. 
 
 Relief against defectiv^e execution of powers, 394— against incumbrancers, &c., 
 encouraging purchase of, or subsequent expenditiu'e on, property, 394, 395 
 — omission to take deeds, whether material, 395 — assignees of insolvent 
 delaying to assert their rights yet not postponed, 396 — protection against 
 vendor's assignees in Bankruptcy and Insolvency, 396 to 398 — ^^judgment 
 creditors, 398 — defects in fines or recoveries, 399 — or in sales of laud tax, 
 ib. — or against lis pendens, ib. 
 
 4s. As to priority/ under Registration Acts, p. 399. 
 Protection against unregistered deeds, 399 — prior registration conclusive at 
 Law but not in Equity, ib. — purchaser's title how impeachable uuder the 
 Acts, 400, 401 — priorities under Fines and Eecoveries Abolition Act, 402. 
 
 5. As to notice — tohat it is, hoio it may be proved, and its effect — of void or 
 voidable estates and voluntary or fraudulent conveyances ; equitable relief 
 against purchaser with notice, p. 402. 
 
 Notice of unregistered assurance or judgment must bo actual, 402 — to soli- 
 citor, is notice to client, ib. — when, by whom, and how, to be given, 402, 
 403 — of doubtful instrument, 404 — constructive notice, nature of, 404 to 406 
 — negligence may have the effect of, 406 — notice of particidar fact, &c., held 
 to be notice of connected facts, &c., 407— purchaser held to have notice of 
 facts which he ought to have known, 408, 409 — cases where he is not 
 affected with notice, 409 to 412 — he need not use excessive caution, 412 — 
 notice to counsel, solicitor, or agent, is notice to purchaser, ib. — although 
 solicitor, &c., is employed by both parties, or is himself the vendor, 413 — 
 professional confidential communications, notice not to be proved by, 414 — 
 cases, opinions, &c., 415 — effect of notice, ih. — of void or voidable estates, 
 agreements, &c., 416 to 419 — of fraudulent conveyances, &c., immaterial, 
 -/5. — what are such, 420 — marriage, a consideration, 421 — limitations to 
 collaterals, whether valid, 421, 422 — supported by necessary concurrence
 
 XXll • CONTENTS. 
 
 of tliird person, 423 — or by being prior to limitations to issue of marriage, 
 ih. — settlement by widow, 424 — unexpressed consideration may be proved, 
 ih. — settlement may be supported by matter ex post facto, ih. — whether 
 heir or devisee can set aside voluntary or fraudulent deed, ih. — revocable 
 settlements are fraudulent, 425 — vendor's want of notice protects purchaser, 
 ih. — settlements to defraud creditor, void, 426 — on what terms purchaser 
 evicted if estate belong to infant, 427 — Statute of Limitations begins to run 
 on conveyance by trustees, ih. 
 
 6. As to contrihution to paramount charges, p. 428. 
 
 7. As to rights of third parties, after conveyance, in various cases, p. 429. 
 Provision in Lands Clauses Consolidation Act, 1845, for purchase of omitted 
 interests, 429 — incumbrancer has no claim against vendor for purchase- 
 money, when, ih. — conveyance of equity of redemption to mortgagee, 430 
 ■ — mortgagee selling after foreclosure cannot resort to collateral securities, 
 ih. — purchaser from mortgagee bound by agreement with mortgagor for 
 redemption, ih. — conveyance determines parol hcence, ih. — purchaser of 
 part of rent-charge may distrain, ih. — purchaser, when liable for nuisance, 
 430, 431. 
 
 CHAPTER XVT. 
 
 AS TO THE EIGHTS, UNDER THE CONVEYANCE, OF JOINT 
 PUECHASEES AND PERSONS OTHER THAN THE NOMINAL 
 PUECHASEES. 
 
 1. As to joint purchasers, p. 432. 
 Purchasers joint tenants at Law, when so in Equity, 432, 433 — joint tenant's 
 lien for expenses of repairs, &c., and renewal fines, 433, 434 — advantage 
 secured by partner enures to benefit of co-partners, 434 — partner in specu- 
 lation must conform to agreement, ih. — trust for co-purchasers, how proved 
 against nominal purchasers, 434, 435. 
 
 2. As to purchases in the name of a nominal purchaser, p. 435. 
 If consideration be paid by others than nominal purchasers there is a resulting 
 trust, 435 — custom, contra, is bad, 436 — payment proveable by parol 
 evidence, ih. — conveyance may be shown to be a mortgage, 437 — prima facie, 
 no trust results on purchase in name of wife or child, 437, 438 — presump- 
 tion of advancement may be rebutted, how, 438 to 440 — election 440 — pur- 
 chases in name of child or wife not within the 27th or 13th Eliz., semhle, 
 441 — resulting trust may be rebutted, ih. — land purchased with, trust-money 
 becomes impressed with trust, ih. — proof of application, ih. — cestuis que 
 trust can claim money or land purchased in breach of trust, 442.
 
 CONTENTS. XXUl 
 
 CHAPTER XVII. 
 
 EEMEDIES AT LAW FOE BEEACH OF CONTEACT. 
 
 1. Purchaser's remedies against vendor, p. 443. 
 Vendor in default, purchaser's right of action, 443, 444 — agents may sue and 
 be sued, when, 444 — purchaser can recover, what, in action after rescinding 
 contract, 445 — what in action for damages, 445 to 447 — death of purchaser, 
 personal representatives may sue, 447 — death of vendor, liability of his 
 representatives, 448. 
 
 2. Vendor's remedies at law against pur cJiaser, p. 448. 
 Eight of action in vendor or his representatives against purcliaser and his 
 representatives, 448 — vendor cannot recover entire purchase-money if no 
 conveyance, ib. — purchaser, whether liable for use and occupation, ib. 
 
 3. Plaintiff, how far bound to perform his part of the agreement 
 before action, p. 449. 
 Mutual agreements, when dependent, 449, 450 — refusal to convey, no defence 
 to action on secui'ity for purchase-money, 451. 
 
 4. As to the agreement, how affected by parol evidence, p. 451. 
 Parol evidence inadmissible to vary contract, 451 — how far admissible to ex- 
 plain, 451, to 453. 
 
 5. Production of agreement, lohen compelled, p. 453. 
 6. Grounds of defence at Law, the agreement being admitted, p. 454. 
 Original invahdity of contract, 454 — or subsequent waiver, ib. — or release, 
 455 — or satisfaction, ib. — or Statute of Limitations, ib. 
 
 7. Action, when restrained in Equity, p. 455. 
 8. General matters relating to the action, p. 456. 
 Particulars of claim, 456— time is at Law essential, z6.— equitable objections 
 to title, a defence. 457. 
 
 CHAPTER XVIII. 
 
 AS TO SPECIFIC PEEFOEMANCE. 
 
 1. Matters relating to the jurisdiction generally, p. 458. 
 Specific performance, the only remedy in Equity, 458, 459— Court of Bank- 
 ruptcy cannot enforce, semble, 459— on what principle decreed, f6.— vendor 
 may sue for purchase-money in Equity, why, 459, 460— existence of remedy 
 hjonandamiis, whether a bar, 460— plaintiff cannot proceed at once at Law 
 and in Equity, «7j.— Specific performance, when decreed, although contract 
 may vest estate in purchaser, 460, 461.
 
 XXIV CONTENTS. 
 
 2. By lohum specific performance loill he enforced, p. 461. 
 At suit of purchaser or his representatives in interest, 461 — or of vendor or 
 his representatives in interest, ib. 
 
 3. Acjainst lohoni specific p>erformance will be enforced, p. 462. 
 Against vendor and parties claiming under him by subsequent title (except 
 pui-chasers without notice), 462 — or under prior title, which he might have 
 displaced by conveyance, ib. — contract for sale of married woman's estate, 
 463 — of her chattels real, 464 — whether she may adopt husband's contract, 
 ib. — vendor's contract not enforced against parties claiming under prior 
 absolute title, ib. — purchaser's contract enforced against himself and his 
 representatives, 464, 465 — against separate estate of married woman, 465. 
 
 4. As to the parties to the suit, p. 465. 
 Parties to contract, in general, sole necessary parties to suit, 465 — pur- 
 chaser cannot join, as co-defendants, receiver or steward, ib. — or parties 
 claiming adverse interests prior to the contract, 465, 466 — person inter- 
 ested in contract and bound to convey not a necessary party to vendor's 
 bill, 486 — persons having adverse, inconsistent, or no rights, cannot join 
 vendor as co-plaintiffs, ih. — but may be defendants (semble), 467 — pur- 
 chaser of one lot, when a necessary party to sue in respect of another lot, 
 ib. — agent, or auctioneer, when to be a party, 467, 468 — death of vendor, 
 who then may sue, and who are proper parties, 468 — to purchaser's suit, 
 469 — alienation of vendor's interest by act inter vivos, who are proper 
 parties, ib. — death of purchaser, who then may sue, and who are proper 
 parties, 469, 470 — to vendor's suit, 470 — alienation of purchaser's interest 
 by act ititer vivos, who are proper parties, ib. 
 
 5. As to the bill, p. 470. 
 Suit may be commenced by bill or claim, 470— form of bill, 471 — need not 
 allege signature, &c., ib. — letters, how to be referred to, ih. — inferences of 
 law, whether to be stated, ib. — waiver relied on should be alleged, ib — and 
 facts supporting it stated, 471, 472 — prayer for general relief, what to be 
 obtained under, 472. 
 
 6. As to proceeding by claim under the Orders of April, 1850, p. 473. 
 Ordinary claim, 473 — special claim, ib. — writ of summons, ib. — who to be 
 named defendant, 473, 474 — showing cause, ih. — hearing, and order 
 thereon, ih. — effects of order, ih. — Court at hearing may direct bill to be 
 fded, ib. — form of order, 475 — plaintiff may proceed by bill, ^hen, ib. — 
 extra costs occasioned by bill, ih. — in what cases orders applj', ib. 
 
 7. As to hoio the plaintiff ' s case may be sustained in the absence of a ivritten 
 agreement,— fraud, part-performance, admission by defendant of parol 
 agreement, parol variation of written agreement, p. 476. 
 
 Written agreement dispensed with, 476 — on the ground of, \s,t, fraud, 477 ■
 
 CONTENTS, XXV 
 
 2iid, part performance, what acts of, sufficient, 477 — or insufficient, 478 — 
 expenditure by tenant, 479 — verbal notice and retention of possession by 
 tenant, held to be a sufficient declaration of option to purchase, 480 — case of 
 mere acquiescence in heavy expenditure and no agreement, lb. — plaintiff, 
 how far bound to show precise terms of contract, 481 — immaterial terms, 
 though stated, need not be proved, ih. — material terms must ultimately 
 be clearly shown, ih. — act by defendant, merely to his own prejudice, no 
 part performance, 482 — nor does part performance as to one lot affect 
 another lot, ih. — sales by auction and in bankruptcy are within the statute, 
 ih. — 3rd, admission of agreement, and statute not insisted on, ih. — purchaser 
 cannot in general enforce specific performance of written contract with 
 parol variation, 483 — subsequent parol variation enforcible only if part per- 
 formed, ih. 
 
 8. As to grounds of defence negativing plaintiff's right to specific performance, 
 except ivith a variation of the original tvrittefi agreernent ; viz., fraud, mis- 
 take, misrepresentation, unfulfilled promise, parol variation, Sfc, p. 484. 
 
 1st, Fraud, or mistake, affecting the terms of the agreement, 484 — 2udly, fraud, 
 mistake, or surprise, inducing defendant to enter into agreement, misappre- 
 hending its effect, 484, 485 — mere suspicion of fraud insufficient, ih. — 3rdly, 
 misrepresentation or unfulfilled promise, inducing defendant to enter into 
 agreement, knowing its terms and effect, 485, 486 — parol addition, when 
 admissible, 487 — stipulation omitted by consent, no defence, 488 — 4th, 
 subsequent parol variation part performed, ih. 
 
 9. As to grounds of defence negativing in ioto plaintiff ' s right to specific per- 
 formance ; viz., personal incapacity ; nature of contract, or fraud, Sfc, Sfc. 
 
 attending its execution ; matters relating to the estate, title, or consideration ; 
 plaintiff's conduct, Sfc, after contract ; election of other remedy, p. 488. 
 1st, Personal incapacity to contract on part of defendant, 489 — intoxication, 
 ll_ — personal incapacity on part of plaintiff, how far a defence, ih. — 2nd, 
 matters relating to the contract, &c. ; illegality, 490 — impolicy, ih. — breach 
 of trust, ih. — improvident contract by agent, 491 — hardship, ih. — fraud, 
 mistake, surprise, misrepresentation, or concealment, 492 — fraud of third 
 person, when immaterial, 493 — want of mutuality of remedy, vrhether a 
 defence, 493 to 495— nominal contractor, 496— insertion of penalty no 
 defence, /i.— inability to recover damages at Law, how far a defence, ih. — 
 3rd, matters relating to the estate ; original defects in, 497— public nuisance, 
 jVj. — destruction of estate, 498— 4th, matters relating to the title ; want of, 
 considered as a vendor's defence, 26.— vendor must convey part of estate 
 with abatement, 499 to 501— must convey partial interest with an abatement, 
 when, 501 to 503— indemnity, 503— vendor's and purchaser's rights as to 
 abatement, not reciprocal, j6.— purchaser's right to, how lost, i5.— vendor, 
 how ftir bound to make good interest contracted for out of his own higher 
 interest, 504— want of title, where a defence for purchaser declining abate-
 
 Xxvi CONTENTS. 
 
 ment, 504 — where estate is of diiferent tenure, ib. — or is held in a diflferent 
 manner, ib. — or no title is shown to the same extent of interest as he con- 
 tracted for, 404, 405 — or no title is shown to a material part of estate, 
 505 — or incumbrances or liabilities exist which would affect its enjoyment, 
 506 — or matters exist which increase his proposed liability, ib. — or alFect 
 the enjoyment of material part of property, 507— defect in title to one of 
 several lots, ib. — benefit of defence, how lost to purchaser, 508— defects in 
 title which are not a purchaser's defence, ib. — hmited instead of unlimited 
 right of common, ib. — small quit-rents, &c., ib. — tithes, when freedom from 
 tithe was no part of inducement, 508, 509 — existence of footway, 509 — 5th, 
 matters relating to consideration, 510 — inadequacy of, when a vendor's 
 defence, ib. — sale by auction, ih. — sale of unascertained interest, 511 — con- 
 sideration uncertain in amount, whether question of inadequacy thereby 
 excluded, ib. — reversionary interests, 512 — failure of contingent considera- 
 tion, ib. — excess of purchase-money, when a purchaser's defence, ib. — 6th, 
 conduct of plaintiff after contract, when a defence, 513 — release, waiver of, 
 or delay to enforce the contract, 514 — what delay in filing bill a defence, ib. 
 — conduct of plaintiff, waste of estate, 515— ejectment of purchaser right- 
 fully in possession, ib. — inabihty of vendor to perform material stipulation 
 under contract, 515, 516 — election of remedy, action brought and damages 
 recovered, 516. 
 10. As to the proceedings in the suit ; viz., payment of purchase-money into 
 Court, reference of title and proceedings thereon, decree for plaintiff, con- 
 veyance, decree dismissing bill, p. 516. 
 Purchaser in possession, when ordered to pay purchase-money into Court, 516 
 — allowed to elect either to pay or vacate possession, 517 — quantity of land 
 taken, when uncertain, no order made, ib. — imder special circumstances, 
 receiver appointed, 517, 518 — or occupation-rent set on estate, 518 — vendor- 
 plaintiff seeking injunction, when obliged to pay in deposit, ib. — injunc- 
 tion against waste by purchaser in possession, ih. — against exercise by 
 vendor of his legal rights, zi.— reference of title, on motion before hearing, 
 519 — unless contract resisted on grounds other than title, ib. — frivolous 
 defence, 520— objections to title, what are, z6.— order refused on ground of 
 delay, 521 — or waiver of title, ib. — conditional acceptance, ib. — order, sub- 
 ject-matter and form of, ib. — in suit commenced by claim, 522— proceedings on 
 reference, 522, 523— purchaser need not accept doubtful or merely equitable 
 title, 523 — or consent to a case being sent to Law, ib. — as to doubtful titles, 
 524, 525 — pendency of adverse suit, 525 — adverse right not likely to be 
 enforced, 526 — outstanding interest, 527 — report in favour of title and no 
 exception, decree for plaintiff unless new matter appears, 528 — exceptions 
 taken ; cause should also be set down on further directions, ib. — if excep- 
 tions allowed, a fresh reference will be directed at vendor's request, ib. — 
 otherwise bill is dismissed, 529 — exceptions overruled ; purchaser how far 
 precluded from other objections, f6.— report against title and no exceptions,
 
 CONTENTS. XXVll 
 
 bill dismissed on motion, 530 — exceptions taken and allowed ; reference 
 back, when directed, ih. — if no exceptions, decree will be made on bearing, if 
 vendor can then remove objections, ib. — removal of objections, an answer 
 to purchaser's motion to be discharged, 531 — purchaser's general right to 
 reference of title, how waived, ih. — purchaser, after great delay, not forced 
 to take clearly bad title, ih. — decree for specific performance, its form, 532 
 — plaintiff may take a decree adopting parol variation proved by defendant's 
 agent, ih. — may elect to take defective title, 533 — decree for specific per- 
 formance no bar to adverse claims, ih. — plaintiff not allowed to take decree 
 according to that construction of agreement which he had repudiated, ib. — 
 defendant may take decree with parol variations of written contract offered 
 by purchaser's bill, 534 — parol variation proved by defendant, no decree for 
 plaintiff, but defendant may take decree without cross bill, ib. — decree 
 should direct accounts, &c., ih. — decree, in vendor's suit, may direct re-sale, 
 and payment of the deficiency by purchaser, ib. — as to conveyance being 
 settled by Master, 535 — course of proceeding, 536, 537 — conveyance under 
 the Trustee Act, 1850, ib. — under 1 Will. IV. c. 65, in case of lunatic 
 vendor, ih. — how to be obtained when party refuses to convey, ib. — interest 
 on money refunded on appeal, not generally allowed, 538 — decree dismiss- 
 ing vendor's bill, return of deposit when ordered, ih. 
 
 2. As to costs, p. 539. 
 Costs, unsuccessful litigant generally pays, 539 — cases where general rule is 
 allowed to operate, 540 — cases where it is enforced with more than ordi- 
 nary stringency, 541 — cases where it is modified so as to deprive suc- 
 cessful litigant of costs wholly or m part, ib. — cases where, in conti'avention 
 of general rule, successful litigant is made to pay costs, 543 — costs, when 
 defendant submits to plaintiff's demand, 545— when defendant disclaiming 
 is entitled to costs, 546 — possession, how far important, ib. — deposit not set 
 off against costs, 547 — costs of case sent to LaW; ih. — costs of action at Law, 
 ib. — no uiterest payable on costs refunded, 548. 
 
 CHAPTER XIX. 
 
 AS TO SALES BY THE COURT OF CHANCERY. 
 
 1. As to the time for, conduct of, and manner of the sale, p. 549. 
 
 Sale is usually by auction, but may be by private contract, 549— when made 
 in administration suit, ib. — may be made under 3 & 4 Will. IV. c. 104, in 
 suit by person claiming under will, 550 — in suits commenced by claim, ib. 
 —who may bid at, ih. — who conducts, 551— Court, executing trust, cannot 
 anticipate time thereby fixed for sale, ?'&.— sale may be in town or country, 
 ib. — relative duties of vendors and purchasers prior to, 552 — particulars and 
 conditions ; preparation, allowance, and nature thereof, ib. — payment of 
 deposit, arrangement respecting, 553— advertisements, ?7j.— expenses, ib. —
 
 XXviii CONTENTS. 
 
 lii'i-liest bidding by a person incompetent, or of insufficient means, 553 — 
 bidding after estate bouglit in, 554— resale of lots remaining unsold, ih. 
 
 2. As to the rights and liabilities of the highest Udder after the sale, but before 
 
 confirmation of the Master's report, and as to opening bidding, p. 554. 
 Highest bidder not the purchaser until Master's report confirmed ; his rights 
 in the interim, 554 — death of, before confirmation, contract cannot be 
 enforced against representatives without suit, 555 — subsale at profit before 
 confirmation, is for the benefit of the estate, ib. — until confirmation, bid- 
 dings may be opened on sufficient advance in price, ib. — what advance 
 sufficient, 556— several lots, 557— course of proceeding, /i.— deposit required, 
 558 — flrst purchaser to be paid interest and costs, ib. — biddings may be 
 reopened on neglect to pay in deposit, ib. — resale, ib. — first purchaser 
 discharged by order opening biddings, 559— person opening biddings, if 
 outbid at resale, is prima facie discharged, /^».— when entitled to costs, ib. — 
 opening biddings in fictitious name, ib. 
 
 3. As to confirming the Masters report of the p)urchase, and as to the 
 purchasers rights and liabilities after confirmation, p. 559. 
 How purchaser can confirm Master's report, 559— after confirmation, he is 
 ^ri/Ha/ae/e entitled to estate, 560— may move to pay in his purchase-money, 
 or to discharge incumbrances, 561— substitution of purchaser, ib. 
 4. As to the incestigation of the title, payment and application of purchase- 
 money, possession, and jjreparation and execution of the conveyance, p. 
 562. 
 Abstract, and title, 562— costs of reference, ^^>.— purchase-money may, under 
 special circumstances, be paid in without accepting title, 564 — as to its 
 application and distribution, *7a— where the estate is encumbered, 565— if 
 invested at purchaser's request, ho takes proceeds of investment, if con- 
 tract rescinded, 566— is entitled to possession, when, ib.— on purchase of 
 life interest or life annuity, 567— as to the abstract, &c., ?:&.- conveyance, when 
 to be settled by Master, ?'6.— executor of lessee entitled to indemnity from 
 purchaser of leaseholds, i6.— purchaser may require concurrence of all 
 necessary parties, 568— who are such, it.— party refusing may be ordered 
 to convey, ib. — against whom order will be made, ib. — party refusing may 
 be declared a trustee, 569. 
 
 5. Purchasers rights after completion, p. 569. 
 Purchaser, after conveyance executed, may claim deeds, 569 — as to attested 
 copies, 570— will be protected against all parties to the suit, ib.— unless 
 Court exceeded its jurisdiction, ?6.— allowed compensation for misdescription 
 of estate, 571. 
 
 6. The practice token the purchaser fails to complete, p. 571. 
 Course to be adopted if pui-chaser refuse to complete, 571— if supposed to be 
 irresponsible, 572— if supposed to be responsible, /6.— purchaser, whether 
 allowed to forfeit deposit and abandon contract, 573.
 
 TABLE OF CASES. 
 
 Abbott V. Stratten, HI. 
 
 Acland v. Gaisford, 294, 306. 
 
 Acton V. Woodgate, 420, 424. 
 
 Adams v. Barry, 197. 
 
 V. Blackwall Railway Company, 98, 
 
 122, 460. 
 
 V. Broke, 496. 
 
 V, Heathcote, 517. 
 
 V. Lindsell, 101. 
 
 Adamson v. Evitt, 42. 
 
 Adderley v. Dixon, 459, 400. 
 
 Addis V. Campbell, 354, 355, 350 
 
 Addison v. Walker, 204. 
 
 Ahearne v. Hogan, 7, 15. 
 
 Airth Earldom, 179. 
 
 Aislabie v. Rice, 542. 
 
 Aldborough, Lord, v. Trye, 357. 
 
 Alder v. Boyle, 82. 
 
 Aldrich v. Cooper, 241. 
 
 Aldridge v. Westbrook, 565. 
 
 Alexander, Ej!' parte, 16. 
 
 V. Crosby, 149, 153, 154, 217, 
 
 233. 
 
 , app, ; Newman, resp., 113. 
 
 Allan V. Bower, 480. 
 Allen's Charities, in re, 553. 
 
 V. Aldridge, 342. 
 
 V. Allen, 2. 
 
 V. Anthony, 408. 
 
 V. Bennet, 102, 103. 
 
 V. Cameron, 452. 
 
 V. Knight, 391, 395, 411. 
 
 V. Martin, 216, 250. 
 
 Alley V. Deschamps, 514. 
 
 Alsop V. Lord Oxford, 201. 
 
 Alvanley v. Kiunaird, 18, 304, 380, 484, 
 
 485, 564. 
 Alves V. Bunbury, 155. 
 Ambrose v. Nott, 460. 
 Anderson v. Higgins, 138. 
 Anderton v. Arrowsmitb, 375. 
 Andrew v. Andrew, 528. 
 Andrews v. Paradise, 367. 
 Angell, Ex parte, 337. 
 Angier v. Stannard, 38. 
 Annesley v. Muggridgc, 81, 446, 456. 
 Anon, (cited 6 Ves. 632), 25. 
 
 Anon, (cited 4 Taunt. 785), 40. 
 
 (Godb. 333), 368. 
 
 (Moore, 124), 370. 
 
 (Freem. Ch. R. 137), 408. 
 
 (cited 6 Ves. 24), 511. 
 
 (2 Ves. jun. 335), 554. 
 
 (2 Ves. jun. 286), 558. 
 
 (6 Ves. 513), 558. 
 
 (1 Ves. jun. 453), 560. 
 
 (Sug. 74), 564. 
 
 V. Collinge, 542. 
 
 V. Handcock, 2. 
 
 V. Walford, 470. 
 
 Anson, Lord, v. Hodges, 538. 
 
 V. Lee, 112. 
 
 V. Towgood, 49, 555, 567. 
 
 Anspach, Margravine of, v. Noel, 218, 521, 
 
 531, 540. 
 Appertoii, in re, 270. 
 Appletou V. Binks, 85, 414. 
 
 V. Campbell, 454. 
 
 Archer v. Slater, 157. 
 
 Archibald v. Wright, 394. 
 
 Arkwright v. Gell, 184. 
 
 Armiger v. Clarke, 494. 
 
 Arnald v. Arnald, 122. 
 
 Arnot V. Biscoe, 42. 
 
 Ashby V. Ashby, 464. 
 
 Atcherley v. Vernon, 127. 
 
 Atherton, in re, 270. 
 
 Att.-Gen. v. Backhouse, 392, 409, 410. 
 
 . V. Brettingham, 7, 190. 
 
 V. Brown, 255, 328. 
 
 V. Christchurch, 294, 295. 
 
 V. Christ's Hospital, 394. 
 
 V. Lord Clarendon, 17. 
 
 V. Culverwell, 176. 
 
 t-. Day, 91, 482, 501, 505, 
 
 555. 
 
 V. Fishmongers' Company, 159. 
 
 V. Flint, 190, 392, 408. 
 
 V. Gardner, 321. 
 
 V. Glyn, 321. 
 
 V. Hall, 188. 
 
 V. Kerr, 190. 
 
 V. Lambe, 202. 
 
 V. Munro, 321.
 
 XXX 
 
 TABLE OF CASES. 
 
 Att.-Gen. v. Newark, Corporation of, 7, 
 563, 571. 
 
 V. Newcastle, Corporation of, 
 
 420, 442. 
 
 V. Pargeter, 410. 
 
 V. Persse, 190. 
 
 V. Pilgrim, 591. 
 
 V. Plymouth, Corporation of, 7, 
 
 682. 
 
 V. Sitwell, 34, 149, 304, 483. 
 
 V. South Sea Company, 7, 571. 
 
 V. Ward, 321. 
 
 Attwood V. Small, 63. 
 Aubrey v. Fisher, 61. 
 Austin V. Chambers, 20. 
 
 ' — V. Croome, 314. 
 Avarne v. Brown, 132. 
 Averall v. Wade, 394. 
 Aylett V. Ashton, 463, 503. 
 
 Back V. Andrews, 437, 438. 
 Baggett V. Meux, 5. 
 Bagshawe, in re, 340. 
 Bailey v. Maule, 551. 
 
 V. Todd, 549. 
 
 Baillie v. Jackson, 550. 
 Baker v. Bent, 355. 
 
 V. Carter, 25. 
 
 V. Sowter, 570. 
 
 V. Wetton, 189. 
 
 Baldwin r. Belcher, 115. 
 
 V. Peach, 162. 
 
 Balfour v. Welland, 285, 286, 287. 
 Ball V. Burnford, 420. 
 
 V. Harris, 292. 
 
 Ballard v. Way, 53. 
 Balls v. Margrave, 204. 
 Bally V. Wells, 366. 
 Balmanno v. Lumley, 503, 519. 
 Bamford r. Bamford, 198. 
 
 V. Shuttleworth, 445. 
 
 — V. Watts, 565. 
 
 Bainpton V. Birchall, 188. 
 Banbury Peerage, 177. 
 
 , Lord, V. Briscoe, 202. 
 
 Bankin v. Hamilton, 453. 
 Banner v. Jackson, 415. 
 Barber, in re, 272. 
 Barclay v. Raine, 263, 362. 
 Bardell v. Spinks, 45. 
 Barfield v. Rogers, 569. 
 Barker JJ. Greenwo^od. 87. 310. 
 
 • V. Harrison, 15, 492. 
 
 V. North Staffordshire Railway Com- 
 pany, 225. 
 
 V. Richardson, 160. 
 
 V. Smark, 351. 
 
 V. Vansommer, 358. 
 
 Barnes v. Racster, 428. 
 
 Barnes v. Stuart, 182. 
 BarrauQ v. Archer, 53, 400. 
 Barrett v. Rolfe, 92. 
 Barrington, Ex parte, 459. 
 Bartlett v. Pickersgill, 437. 
 
 V. Tuchin, 457. 
 
 • V. Vinor, 454. 
 
 Barton v. Dawes, 258. 
 
 V. Fitzgerald, 373. 
 
 Bass V. Wellsted, 252. 
 Batchelor v. Middleton, 196. 
 Bates V. Bonnor, 556, 557, 558. 
 Battersbee v. Farrington, 426. 
 Battersby v. Rochfort, 401. 
 Baugh V. Price, 23. 
 
 Bawtree v. Watson, 355, 359. 
 Baylies v. Baylies, 490. 
 Baylis v. Newton, 439. 
 
 V. Usher, 455. 
 
 Baynton, Ea: parte, 17. 
 Beadon v. King, 415. 
 Beale, in re, 341. 
 Beatson v. Nicholson, 480. 
 Beaufort, Duke of, v. Phillips, 535. 
 
 V. Mayor of Swansea, 
 
 167. 
 Beaumont v. Bramley, 352. 
 Becke and Flower, in re, 342. 
 Beckett v. Cordley, 393. 
 Beckford v. Beckford, 437. 
 Bedford, Duke of, v. Trustees of British 
 Museum, 362. 
 
 V. Bacchus, 400. 
 
 V. Forbes, 241. 
 
 Beech, in re, 569. 
 Beere v. Head, 241. 
 Beete v. Bidgood, 327. 
 Beevor v. Simpson, 215. 
 Belchier». Renforth, 391. 
 Bellamy v. Liversidge, 468. 
 
 V. Sabine, 354, 357, 358, 493. 
 
 Bellasis, Lady, v. Compton, 436. 
 Bellringer v. Blagrave, 490. 
 Benbow v. Townsend, 441. 
 Bennet's case, 371. 
 
 Bennet v. Lord Tankerville, 123. 
 Bennett, ex parte, 16, 17, 18, 19, 23, 84, 
 459. 
 
 , in re, 340, 342. 
 
 V. Colley, 25. 
 
 V. Cooper, 385. 
 
 V. Fowler, 533, 544. 
 
 V. Rees, 519, 521, 522. 
 
 Bensley v. Burdon, 385. 
 
 Benson v. Glastonbury Canal Company, 
 517. 
 
 V. Lamb, 212, 250. 
 
 Bentinck v. Willink, 257. 
 Berisford v. Milward, 228, 394.
 
 TABLE OF CASES. 
 
 XXXl 
 
 Berkeley Peerage Case, 178, HO. 
 Bermingham v. Burke, 37G. 
 Berry v. Armistead, 378. 
 
 V. Johnson, 563. 
 
 V. Young, 146,315, 316, 449, 456. 
 
 Bevan v. Bevan, 564. 
 Beverley's case, 3, 4. 
 
 , Mayor of, v. Craven, 154. 
 
 Bickerton v. Burrell, 444. 
 Bickford v. Parson, 387. 
 Bignold, 171 re, 341, 342. 
 
 V. Audland, 81. 
 
 Billing V. Webb, 270, 509. 
 Binghain v. Bingliam, 382. 
 
 Binks V. Lord Rokeby, 294, 295, 409, 506, 
 
 509. 
 Birce v. Bletcbley, 471. 
 Birnh, in re, 558, 573. 
 
 V. Podmore, 299. 
 
 V. Wrigbt, 386. 
 
 Bird V. Boulter, 82, 83. 
 
 V. Higginson, 92. 
 
 Bisco V. Earl of Banbury, 407. 
 Biscoei). Wilks, 525, 541. 
 Blacbford v. Kirkpatrick, 478, 531. 
 Blackbeard v. Lindigren, 554. 
 Blackburn v. Gregson, 345. 
 
 V. Scboles, 81, 86. 
 
 V. Smith, 11, 131, 444. 
 
 V. Stace, 516. 
 
 Blacklow w. Laws, 30, 58, 73, 217, 521, 
 551, 57L 
 
 Blackston v. Morland, 325. 
 
 Blackwell, in re, 509. 
 
 Blackwood V. Borrowes, 30. 
 
 Blagden v. Bradbear, 83, 91, 98, 101, 
 482. 
 
 Blair v. Bromley, 190, 469. 
 
 V. Nugent, 190, 192. 
 
 V. Ormond, 111, 161, 453. 
 
 Blake, in re, 569. 
 
 V. Phinn, 67. 
 
 Blakesley v. Whieldon, 266, 535. 
 
 Blakey v. Porter, 453. 
 
 Blandy v. Herbert, 327. 
 
 Bleakley v. Smith, 101, 106. 
 
 Blenkinsopp v. Blenkinsopp, 414. 
 
 Blennerhasset v. Day, 16. 
 
 Blomfield v. Eyre, 426, 427. 
 
 Blore V. Sutton, 106. 
 
 Blosse V. Lord Clanmorris, 523, 524. 
 
 Bloye's Trust, in re, 15, 17, 18, 22. 
 
 Blundell v. Stanley, 181. 
 
 Blyth V. Elmhirst, 520. 
 
 Boardman v. Mostyn, 480. 
 
 Bodington v. Great Western Railway Com- 
 pany, 213. 
 
 Boehmu. Wood, 210, 495, 634. 
 
 Bolingbroke, Lord, case of, 498. 
 
 Bond V. Kent, 346. 
 
 V. Warden, 311. 
 
 Boothby v. Bootbby, 355. 
 
 Borell V. Dann, 77, 78, 410, 510, 511. 
 
 Boswell V. Mendam, 76. 
 
 Boughton V. Jewell, 65, 66, 315. 
 
 Bourn v. Bourn, 556. 
 
 Bousfield V. Godfrey, 111, 453. 
 
 Bowen v. Evans, 25, 392, 571. 
 
 Bower v. Cooper, 51, 266, 511, 545. 
 
 Bowles V. Rogers, 121, 345. 
 
 V. Round, 40, 52, 510. 
 
 Boxmoor Trustees, ea; parte, 339. 
 
 Boyce v. Greene, 93, 100, 102. 
 
 Boyd V. Belton, 394. 
 
 Boydell v. Drummond, 102. 
 
 Boyes v. Liddell, 213, 520. 
 
 Bracey, in re, 340. 
 
 V. Earl of Scarborougli, 552. 
 
 Bradley v. Holdsworth. 93. 
 
 Bradshaw, ex parte, 299, 337. 
 
 Bradstock, ea' parte, 251. 
 
 Braithwaite v. Britain, 289. 
 
 Branch v. Browne, 569. 
 
 Brandlyn v. Ord, 425. 
 
 Brandon v. Woodthorpe, 175. 
 
 Branmer's Estate, in re, 338. 
 
 Brasier v. Hudson, 292. 
 
 Braybrooke, Lord, v. Inskip, 131, 132. 
 
 Braye Peerage, 157, 167. 
 
 Brazier v. Hudson, 275. 
 
 Brealey v. Collins, 44, 510. 
 
 Breedon v. Breedon, 285. 
 
 Breeze v. Hawker, 150. 
 
 Brennan v. Bolton, 478. 
 
 Brett r. Ellis, 446, 447. 
 
 Brewster v. Kitchen, or Kidgil, 378. 
 
 Bridges v. Wilts S. & W. Railway Com- 
 pany, 225. 
 
 Bright V. Walker, 184, 185, 186. 
 
 Brinkley v. Hann, 492. 
 
 Bristow V. Wood, 362. 
 
 Brocklebank v. Whitehaven Junction Rail- 
 way Company, 29. 
 
 Brodie v. St. Paul, 102, 453. 
 
 Brook V. Rawl, 47. 
 
 Brooke v. Anon. 529. 
 
 V. Champernowne, 295, 302. 
 
 V. Hewitt, 120. 
 
 , Lord, V. Routhwaite, 44, 65; 
 
 Brooker v. Collier, 552. 
 
 Brookfield v. Bradley. 556. 
 
 Broome v. Monck, 125, 126, 470. 
 
 Brothers v. Bence, 412. 
 
 Brougbton v. Conway, 373. 
 
 V. Lashmar, 543. 
 
 Brown v. Carter, 424. 
 
 V. Cole, 133, 276. 
 
 V. Jones, 420, 42L
 
 xxxn 
 
 TABLE OF CASES. 
 
 Brown v. Perrott, 238. 
 
 u. Pringle, 175. 
 
 V. Raindle, 4C2. 
 
 /;. Stead, i;iO. 
 
 Browne r. Amyot, 38fi. 
 
 V. Fenton, 63. 
 
 ■ V. Lake, 335, 567. 
 
 V. Lodcliart, 204. 
 
 Browning v. WiMght, 371, 373. 
 
 Bi-uce, in re, 274. 
 
 Brunton v. Neale, 233, 462. 
 
 Biyan v. Lewis, 494. 
 
 Bryant v. Busk, 65, 142, 152, 538, 540. 
 
 Buckinghamshire Railways, in re, 313. 
 
 Ruckland v. Ponknell, 349. 
 
 Buckler. Mitchell, 462. 
 
 Buckley v. Lanauze, 402. 
 
 Buckmasterw. Harrop, 125, 470, 477, 482. 
 
 Bugden v. Bignold, 43, 228, 393, 410. 
 
 Bull V. Price, 86. 
 
 BuUcn V. Denning, 62. 
 
 Bullin V. Fletcher, 127. 
 
 Bullock V. Thome, 425. 
 
 Bulmer v. Alison, 572, 573. 
 
 Bulteel V. Lord Abinger, 32. 
 
 Burch V. Coney, 376. 
 
 Burke v. Smith, 415. 
 
 Burnell, Ea parte, 16. 
 
 V. Brown, 52, 219, 506, 508, 540. 
 
 Burrel's Case, 424. 
 Burrell ?^. Lord Egremont, 198. 
 Burrough v. Skinner, 82. 
 Burroughs V. M'Creight, 200. 
 
 V. Oakley, 219, 220, 521. 
 
 Burrowes v. Lock, 43, 45, 229, 510, 543. 
 Burton v Todd, 306, 541. 
 Bury V. Philpot, 169, 170. 
 Butcher v. Stapely, 403. 
 Butler V. Bort on, 33. 
 
 V. Lord Portarlington, 407, 409. 
 
 V. Powis, 494, 496, 499. 
 
 • V. Swinerton, 368. 
 
 Buttemer v. Hayes, 92. 
 Buxton, ex parte, 37. 
 
 V. Buxton, 29. 
 
 V. Lister, 44, 485, 541, 542. 
 
 Cadman v. Horner, 492, 510. 
 
 Caines v. Smith, 449. 
 
 Calcraft v. Roebuck, 219, 221, 308, 508. 
 
 Calverly v. Williams, 485. 
 
 Calvert v. Godfrey, 2, 535, 563, 567, 571. 
 
 Cambridge, Corporation of, ex parte, 311. 
 
 Camden v. Benson, 562. 
 
 Camoys Barony, 178. 
 
 Campbell v. Campbell, 316. 
 
 V. Walker, 22, 25, 26. 
 
 Cane v. Lord Allen, 16. 
 Cann's Estate, in re, 313 
 
 Cann v. Cjinn, 26, 523, 571. 
 Canterbury, in re the Archbisliop of, 313. 
 Capel V. Girdler, 128. 
 Capper v. Spottiswoode, 346. 
 
 V. Terrington, 315. 
 
 Carew, in re, 340. 
 Carleton v. Leighton, 385. 
 Carlon v. Farlar, 236. 
 Carne v. Michell, 498. 
 Curolan v. Brabazon, 490, 514. 
 Carpenter v. Heriot, 26. 
 Carpmael v. Powis, 353, 414. 
 Carr, ex parte, 43, 45, 270. 
 
 V. Foster, 187. 
 
 Carrington v. Roots, 93. 
 Carter v. Dean of Ely, 209. 
 
 V. Home, 434. 
 
 V. Palmer, 15, 17, 22. 
 
 Carven, in re, 342. 
 
 Casamajor v. Strode, 161, 168, 506, 508. 
 
 Casey v. O'Shaunessy, 177. 
 
 Cass V. Waterhouse, 383. 
 
 Cator V. Lord Pembroke, 382. 
 
 Cattell V. Corrall, 51, 68, 133, 136, 321. 
 
 Cattlin, in re, 341. 
 
 Cavaii, Lady, v. Pulteney, 369. 
 
 Cave V. Cork, 468. 
 
 Cawthorne, ex parte, 393. 
 
 Chadwick v. Broadwood, 193. 
 
 Chalmer v. Bradley, 25, 26, 159. 
 
 Chamberlain v. Lee, 495, 530. 
 
 Chambers v. Howell, 288. 
 
 Champernowne v. Brooke, 295. 
 
 Champion v. Plummer, 100. 
 
 Chandos, Duke of, v. Talbot, 61. 
 
 Chant V. Brown, 415. 
 
 Cbaplain v. Southgate, 368. 
 
 Chapman v Fowler, 559. 
 
 Charter v. Trevelyan, 15, 25. 
 
 Cheese v. Cheese, 535, 567. 
 
 Cheval v. Nichols, 400. 
 
 Chillingworth v. Chillingworth, 327, 572. 
 
 Cholmley v. Paxton, 33. 
 
 Christ's Hospital v. Budgin, 438. 
 
 Christian v. Chambers, 561. 
 
 V. Devereux, 197. 
 
 Church V. Brown, 259. 
 Clapham v. Shillito, 44, 63, 492. 
 Clare V. Earl of Bedford, 228, 394. 
 
 V. Maynard, 447. 
 
 V. Wood, 238. 
 
 Cla e Hall v. Harding, 395, 426. 
 Clark V. Burgh, 464. 
 
 V. Seymour, 30, 35. 
 
 Clarke ». Elliott, 517. 
 
 • V. Faux, 67. 
 
 V. Grant, 483, 486. 
 
 V. IVIaynard, 170. 
 
 V. Moore, 515.
 
 TABLE OF CASES. 
 
 XXXlll 
 
 Clarke v. Royle, 347, 348, 349.A 
 Clarkson v. Woodhouse, 141, 167. 
 Clay ?». Rufford, 484. 
 
 V. Sharpe, 250, 466. 
 
 V. Shackeray, 186. 
 
 Clayton v. Ashdown, 489. 
 
 V. Corby, 186, 187. 
 
 V. EarrWinton, 423. 
 
 • V. Gregson, 452. 
 
 Clcgg V. Fishwick, 434. 
 Clermont v. Tasburgh, 492, 503. 
 Clifford V. Turrell, 359, 424, 4(:0. 
 Clinan v. Cooke, 102, 453, 477, 478, 480, 
 
 484. 
 Clinton v. Bernard, 568. 
 Clive V. Beaumont, 104, 218, 471, 532. 
 Close V. Phipps, 34. 
 
 V. Wilberforce, 129, 265. 
 
 Clowes w.Higginson, 50, 483, 485, 486,533. 
 Cochrane v. Robinson, 265, 567. 
 Cockerell v. Cholmeley, 33. 
 
 V. Dickens, 472. 
 
 Cocking V. Ward, 93. 
 Cockman v. Farrer, 168. 
 Coffin V. Cooper, 495, 531. 
 Colclough V. Sterum, 571. 
 Cole V. Coles, 28, 396. 
 Coleman v. Upcot, 100, 494. 
 Coles z>. Kinder, 370. 
 
 w.Trecothick, 15,20, 21, 87,98, 102, 
 
 107, 354, 510, 511. 
 
 CoUard, in re, 523. 
 Collett V. Thompson, 456. 
 
 V. Hover, 466, 469. 
 
 Collier v. Jenkins, 126, 505. 
 Collins V. Archer, 392. 
 
 V. Greaves, 522. 
 
 V. Maule, 153. 
 
 Colpoys V. Colpoys, 452, 453. 
 Colquhun, in re, 340. 
 Colton V. Wilson, 468, 469. 
 Colyer v. Clay, 492. 
 Connell v. Hardie, 556. 
 Cood w. Cood, 347. 
 
 V. Pollard, 350. 
 
 Cook V. Field, 490. 
 Cooke, ex jmi'fe, 242, 337. 
 
 V. Brown, 565. 
 
 V. Burtchaell, 355, 357. 
 
 V. Clayworth, 489. 
 
 V. Cooke, 467. 
 
 V. Farrand, 33. 
 
 V. Soltau, 160. 
 
 V. Tombs, 99. 
 
 Cooper, ex parte, 121. 
 
 V. Emery, 65, 66, 13S, 165, 263, 
 
 264, 316. 
 
 V. Ewart, 340. 
 
 . V. Norfolk Railway Company, 324. 
 
 Cooper V. Smith, 100. 
 
 Coort, ex jjarte, 18. 
 
 Cooth V. Jackson, 98, 482, 483, 490. 
 
 Cope V. Parry, 467. 
 
 V. Thames Haven Company, 83, 108. 
 
 Coppin V. Fernyhough, 138, 407. 
 
 V. Gray, 188. 
 
 Corder v. Morgan, 28, 250, 4C6. 
 
 Cork and Bandon Railway Company v. 
 
 Cazenove, 10. 
 Cornfoot v. Fowke, 40, 454. 
 Corrall v. Cattell, 68. 
 Coslake v. Till, 209. 
 Cosser v. Collinge, 408. 
 Costello, in re, 554. 
 Costigan v. Hastier, 491. 
 Cothay v. Sydenham, 411. 
 Cotman v. Orton, 310. 
 Cotterell v. Homer, 422. 
 Cottrell V. Watkins, 142, 530. 
 Coulton V. Ambler, 94. 
 Cousens v. Harris, 181. 
 Coussmaker v. Sewell, 142. 
 Coverley, in re, 271. 
 Coverley v. Burrell, 52, 504. 
 Cowgill V. Lord Oxmantown, 530. 
 Cox V. Allingham, 157. 
 
 V. Chamberlain, 541. 
 
 — V. King, 377. 
 
 Crabb v. Crabb, 438. 
 
 Craddock v. Piper, 250, 562, 568. 
 
 Craggw. Holme, 489. 
 
 Craven, ex parte, 313. 
 
 Crawford, in re, 2'i'l. 
 
 Creagh v. Blood, 159. 
 
 Crease v. Barrett, 177. 
 
 Cripps V. Jee, 437. 
 
 — V. Reade, 282. 
 
 Crisp V. Platel, 204. 
 
 Crober, ex parte, 337. 
 
 Crockford v. Alexander, 118, 518. 
 
 Crofton V. Ormsby, 416. 
 
 Croraack v. Heathcote, 414. 
 
 Croome v. Lediard, 486, 544. 
 
 Crop V. Norton, 498. 
 
 Crosby v. Wadsworth, 94. 
 
 Crossfield v. Morrison, 372. 
 
 Croughton ?;. Blake, 152. 
 
 Crowther f . Solomons, 111. 
 
 Crutchley v. Jermingham, 87. 
 
 Cud V. Rutter, 459. 
 
 Cuddon, ex parte, 18, 32, 37. 
 
 Culley V. Doe dem. Taylerson, 193. 
 
 Culpepper v. Aston, or Austin, 289. 
 
 Cunningham v. Williams, 572. 
 
 Curling V. Flight, 138, 519, 520, 528, 529. 
 
 Currant v. Jago, 437, 439. 
 
 Curre v. Bowyer, 123. 
 
 Currie, in re, 340, 341. 
 
 C
 
 XXXIV 
 
 TABLE OF CASES. 
 
 Currie v. Nind, 420. 
 Curtis V. Marquis of Buckingham, 518. 
 Custance v. Bradshaw, 433. 
 Cuthbert w. Furrier, 172, 173. 
 Cutts, ex parte, 91, 459, 482. 
 
 V. Thodey, 72, 462, 469. 
 
 Dakin v. Cope, 29", 542. 
 Dalby v. Pullen, 495, 505, 530, 551. 
 Dale V. Hamilton, 433, 434, 435, 477, 478, 
 479, 480. 
 
 V. Lister, 501, 503. 
 
 Daly, e.v parte, 272. 
 
 Damer v. Earl of Portarlington, 204, 545. 
 
 Damerell v. Protheroe, 53. 
 
 Daniel v. Adams, 31, 84. 
 
 Daniels v. Davison, 119, 229, 408, 462, 
 
 469. 
 Danks, ew parte, 18. 
 Dare v. Tucker, 66, 263, 315, 316. 
 Darkin v. Marye, 561. 
 Darling, in re, 272. 
 Darwin v. Upton, 160. 
 Davenport v. Bishopp, 259, 421. 
 Davidson v. Gardner, 21, 463. 
 Davies v. Cooper, 42, 46, 118, 355, 511. 
 
 V. Davies, 404. 
 
 V. Lowndes, 178, 179. 
 
 V. Thomas, 390, 407. 
 
 Davis V. Earl of Strathmore, 400, 402. 
 
 V. Symonds, 541. 
 
 Davy V. Barber, 295. 
 
 • V. Maltwood, 272. 
 
 Dawes v. Betts, 49, 54, 528, 529, 530, 531. 
 
 V. King, 44. 
 
 Dawson v. Dawson, 99, 561. 
 
 Day V. Newman, 512. 
 
 Deane v, Rastron, 510. 
 
 Dearman v. Wyche, 198. 
 
 De Begnis v. Armistrad, 454, 490. 
 
 De Beil v. Thomson, 86. 
 
 De Wall's Case, 10. 
 
 Delabere v. Norwood, 466. 
 
 De Montmorency v. Devereux, 26. 
 
 De Visme v. De Visme, 59, 60, 294, 300, 
 
 301, 302, 564. 
 Dempsey v. Deinpsey, 564. 
 Denn v. Diamond, 328. 
 Denning v. Henderson, 59, 299, 564. 
 Dent V. Bennett, 7. 
 
 ■ • V. Rob, 182. 
 
 Denys v. Shuckburgh, 193. 
 
 Deverell v. Lord Bolton, 149, 216, 217, 
 
 542. 
 Dewhirst v. M^rigley, 161, 185. 
 Dick V. Donald, 67. 
 Dicker v. Jackson, 450. 
 Dickenson v. Dickenson, 291. 
 V. Shaw, 438, 
 
 Dickinson v. Heron, 298. 
 Dike V. Rick?, 289. 
 Dinning v. Henderson, 550. 
 Dixon, i7i re, 271. 
 
 V. Astley, 221, 516. 
 
 V. Pyner, 551. 
 
 Dobell D. Hutchinson, 64, 457. 
 Doe V. AUsop, 400. 
 
 V. Angell, 193. 
 
 V. Archer, 417. 
 
 V. Barnard, 200. 
 
 • V. Barnes, 176. 
 
 V. Benham, 192. 
 
 V. Benson, 452. 
 
 V. Birch, id. 
 
 V. Bold, 191. 
 
 V. Bramston, 194. 
 
 V. Brydges, 150, 152. 
 
 ■ V. Burt, 452. 
 
 V. Caperton, 151, 222, 449. 
 
 V. Carter, 191, 192. 
 
 V. Chamberlaine, 222, 249. 
 
 V. Clifford, 153. 
 
 V. Coombs, 111, 161. 
 
 V. Coulthred, 167. 
 
 V. Davies, 179, 180. 
 
 V. Edmonds. 189, 192, 193. 
 
 V. Evans, 112. 
 
 V. Freeman, 150, 151. 
 
 V. Grazebrook, 171. 
 
 V. Groves, 191. 
 
 -v. Hampson, 168. 
 
 V. Lord Hertford, 414. 
 
 V. Hinde, 192. 
 
 V. Horrocks, 193. 
 
 V. Jones, 200, 249. 
 
 V. Keeling, 247. 
 
 V. Langton, 452. 
 
 V. Lightfoot, 189. 
 
 V. Liversedge, 194. 
 
 V. Manchester, Bury, and Rossendale 
 
 Railway Company, 276. 
 
 V. jMartin, 454. 
 
 V. Monro, 321. 
 
 V. Moore, 192. 
 
 V. Morgan, 453. 
 
 V. Moulsdale, 193, 19-1, 249. 
 
 V. Needs, 453. 
 
 V. Nepean, 173. 
 
 V. Oxenham, 193. 
 
 V. Page, 191. 
 
 V. Pedgriph, 107. 
 
 V. Penfold, 168. 
 
 V. Perkins, 42. 
 
 V. Phillips, 152, 191, 332, 399. 
 
 V. Price, 155, 248, 249. 
 
 V. Roberts, 200. 
 
 V. Rock, 191, 222. 
 
 V. Roe, 420.
 
 TABLE OF CASES. 
 
 XXXV 
 
 Doe V. Rolfe, 421, 423. 
 
 V. Ross, 154. 
 
 V. Sayer, 120, 449. 
 
 V. Smith, 11. 
 
 V. Stanion, 119, 120, 449. 
 
 V. Sumner, 192, 200. 
 
 ». Tarver, 180. 
 
 V. Thompson, 191, 419. 
 
 V. Turner, 191. 
 
 V. Waterton, 162. 
 
 V. Webster, 3b^. 
 
 ■ V. M^estlake, 453. 
 
 V. Weston, 330. 
 
 V. Woodroflfe, 193. 
 
 V. Woodward, 399. 
 
 Dobell V. Hutchinson, 102, 457. 
 
 Doloret v. Rothschild, 209. 
 
 Domville v. Berrington, 550, 556. 
 
 Donations, Commissioners of, i>. Wybrants, 
 190. 
 
 Donellan v. Read, 95. 
 
 Donohoe v. Conrahy, 435. 
 
 Donovan v. Fricker, 220, 222, 223, 380, 
 381, 42G. 
 
 Doo V. London and Croydon Canal Com- 
 pany, 99. 
 
 Doran v. Wiltshire, 285. 
 
 Dorin v. Harvey, 519, 521. 
 
 Doughty V. Bovfman, 361. 
 
 Douglas V. Whitteronge, 408. 
 
 Dowellw. Dew, 416, 463, 464, 477, 494. 
 
 Dowle V. Lucy, 549, 554. 
 
 Dovileyv. Winfield, 172, 173, 174. 
 
 Downes, in re, 342. 
 
 V. Grazebrooke, 18, 22, 25, 33. 
 
 Downman v. Jones, 85, 445. 
 
 Drake, in re, 340. 
 
 Drant v. Vause, 124. 
 
 Draper v. Borlace, 394. 
 
 Drew, in re, 340. 
 
 V. Earl of Norbury, 344, 406. 
 
 Drewe v. Corp, 504. 
 
 V. Hanson, 508. 
 
 Driver v. Cholmondeley, 82. 
 
 Druce v. Denison, 464. 
 
 Drury v. Man, 335. 
 
 Dryden?;. Frost, 346, 408, 411, 413. 
 
 Duckler. Baines, 126. 
 
 Dudley v. Folliott, 367. 
 
 Duffield V. Scott, 375. 
 
 Duffill, ex parte, 274. 
 
 Du Hourmelin v. Sheldon, 8. 
 
 Duke V. Barnett, 67, 68. 
 
 Dunimer t?. Pitcher, 438, 440. 
 
 Duncuft V. Albrecht, 93, 459. 
 
 Dundas v. Dutens, 479. 
 
 Dunlop V. Higgins, 101, 105. 
 
 Dunsany, in re, 272. 
 
 Dunsmure v. Boulderson, 173. 
 
 Dutch V. Warren, 444. 
 
 Du Vigier v. Lee, 198, 199. 
 
 Dyas V. Cruise, 501. 
 
 Dyer v. Dyer, 436, 438, 439. 
 
 17. Hargrave, 63, 297, 309, 508, 
 
 V. Pulteney, 115. 
 
 Dykes V. Blake, 54, 55, 64. 
 V. Taylor, 550. 
 
 Eady, in re, 272. 
 
 Earl V. Baxter, 160. 
 
 Early v. Garrett, 378. 
 
 Eastern Counties Railway Company r. 
 
 TufFnell, 336. 
 East Grimsted Case, 394, 403, 425. 
 East India Company v. Clavel, 425. 
 
 V. Vincent, 395. 
 
 Eaton V. Sanxter, 233, 290. 
 Ebrand v. Dancer, 437. 
 EcbliffjJ. Baldwin, 469, 518. 
 Edden v. Read, 445. 
 Edev. Knowles, 419, 426. 
 Eden v. Earl of Bute, 452. 
 Edmonds v. Peake, 82. 
 Edward v. Harvey, 540. 
 Edwards v. Browne, 355, 356, 357. 
 
 V. Fidel, 436. 
 
 V. M'Leay, 41, 222, 378, 380. 
 
 V. Meyrick, 20. 
 
 Egerton v. Jones, 528. 
 
 Egremont, Lord, in re, 311. 
 
 Eland V. Eland, 284, 286, 287, 288, 289. 
 
 Ellard v. Lord LlandafF, 46, 499. 
 
 Elliot V. Brown, 433. 
 
 V. Edwards, 350. 
 
 V. Elliot, 439,440. 
 
 V. Merriman, 291. 
 
 V. South Devon Railway Company, 
 
 359. 
 Elliott V. Turner, 299, see errata, 337. 
 Ely, Dean and Chapter of, v. Cash, 183, 
 
 188. 
 V. Bliss, 183, 
 
 188, 193. 
 Elworthy v. Billing, 550. 
 Elwyn V. Williams, 464. 
 Emanuel v. Dane, 454. 
 Emery v. Grocock, 159, 162, 166. 
 
 V. Pickering, 519. 
 
 . V. Wase, 463, 498. 
 
 Emmerson v. Heelis, 83, 107, 109. 
 Enraght v. Fitzgerald, 295. 
 Esdaile v. Oxenham, 267, 345. 
 
 V. Stephenson, 508, 527, 530. 
 
 „. Stevenson, 59, 294, 299. 
 
 Esron v. Nicholas, 3, 395. 
 
 Essex V. Baugh, 319, 320, 400, 401. 
 
 Estcourt V. Kingscote, 182. 
 
 Eton College, ex parte, 337.
 
 XXXVl 
 
 T.A.BLE OF CASES. 
 
 Evans v. Bagwell, 190. 
 
 V. Bickiiell, 6, 43, 393, 395, 411. 
 
 V. .Tackson, 4G7. 
 
 V. Llewellyn, 353, 492. 
 
 V. Roberts, 94. 
 
 V. Upsher, 336. 
 
 Evelyn v. Templar, 420. 
 
 Ewing V. Osbaldiston, 454, 490. 
 
 Ewer V. Corbet, 288. 
 
 Exeter, Marquis of, w. The Marchioness, 3 52. 
 
 Eyre, in re, 340. 
 
 Eyston v. Simonds, 495. 
 
 Fagan, in re, 271. 
 
 Fain v. Ayers, 203. 
 
 Faine v. Brown, 491. 
 
 Fairbrother v. Prattent, 81. 
 
 Falmouth, Lord, v. Thomas, 94, 95, 96. 
 
 Fane v. Spencer, 137. 
 
 Farebrother v. Simmons, 83, 84. 
 
 Farlow v. Wieldon, 556, 558. 
 
 Farmer v. Farmer, 353, 357, 359. 
 
 ?'. r^obinson, Bfi. 
 
 Farrar v. Lord Winterton, 124, 334. 
 Farrer v. Nightingal, 444. 
 Farrow v. Rees, 395, 404, 543. 
 Faulkner v. Daniel, 197. 
 Fawell V. Heelis, 345. 
 Featherstonhaugh v. Fenwick, 434. 
 Fellowes v. Clay, 183. 
 
 V. Lord Gwydyr, 496. 
 
 Fenner v. Hepburn, 245, 461. 
 
 Fennings v. Humphrey, 460. 
 
 Fenton v. Browne, 43, 44, 542. 
 
 Feoffees of Heriot's Hospital v. Gibson, 55. 
 
 Fergus, Executors of, v. Gore, 560. 
 
 Ferraby v. Hobson, 20. 
 
 Ferrars v. Cherry, 407. 
 
 Fewster v. Turner, 55, 309, 545. 
 
 Field V. Churchill. 543. 
 
 V. Hutchinson, 471. 
 
 Fielder v. Fielder, 557. 
 
 V. Higginson, 544, 563. 
 
 Fife V. Clayton, 534. 
 
 Filder v. Bellingham, 559. 
 
 Fildes V. Hooker, 67, 528, 529. 
 
 Finch V. Finch, 437, 440. 
 
 Firmin v. Pullin, 540. 
 
 Fisher v. Dudding, 234. 
 
 Fitch V. Weber, 9. 
 
 Fitzwalter Peerage, 65, 152, 157, 178. 
 
 Flather w. Stubbs, 110. 
 
 Fleetwood v. Green, 521, 531, 540. 
 
 Flight V. Barton, 41, 54. 
 
 V. Bentley, 386. 
 
 V. Bolland, 489. 
 
 V. Booth, 53, 62, 64. 
 
 V. Thomas, 186, 187. 
 
 Flower v. Hartopp, 69, 527, 529, 563. 
 
 Flower v. Walker, 523. 
 
 Fludyer v. Cocker, 29/5. 
 
 Flureau v. Thornhill, 446, 447. 
 
 Foljambe, in re, 341. 
 
 Follett V. Jefferies, 415. 
 
 Fooks V.Wilts, S. t\ W. RailwayComp.,224. 
 
 Foord V. Wilson, 373. 
 
 Forbes v. Peacock, 132, 284, 285, 286, 287, 
 
 288, 547. 
 Fordyce?;. Ford, 504, 508. 
 Forster v. Hale, 435. 
 
 or Foster, v. Hoggart, 34, 182. 
 
 Fort V. Clarke, 180. 
 
 Forteblow v. Shirley, 52,22), 294, 506. 
 
 Foster, in re, 270, 272. 
 
 V. Bates, 86. 
 
 V. Charles, 46. 
 
 V. Deacon, 306, 307. 
 
 or Forster v. Hoggart, 34, 132. 
 
 V. Leonard, 61. 
 
 and Wilson v. Mapes, 368. 
 
 Fountain v. Young, 414. 
 Fourdrin v. Gowdey, 8, 9. 
 Fowle V. Freeman, 105. 
 Fowler v. Ward, 517. 
 Fox V. Mackreth, 22, 46. 
 
 V. Wright, 357. 
 
 Foxlowe V. Amcoats, 519. 
 Frame v. Dawson, 479. 
 Frampton v. Frampton, 420. 
 Francis, ex parte, 270. 
 
 V. Grover, 190, 198, 199. 
 
 V. Wigzell, 463, 465. 
 
 Frank v. Mainwaring, 463. 
 Franklyn v. Lamond, 80. 
 
 , ex parte, 313. 
 
 Eraser v. Wood, 530. 
 Frazer v. Jones, 417. 
 Freeman v. Cooke, 46. 
 
 V. Fairlie, 257. 
 
 Freer v. Rimner, 57. 
 Freme v. Wright, 67. 
 Frost V. Brewer, 308. 
 Fry V. Porter, 403. 
 Fiuhling V. Schroeder, 445. 
 Fuller V. Bennett, 413. 
 
 V. Wilson, 380. 
 
 Fulham v. M'Carthy. 466, 467, 469, 470. 
 Fursdon v. Clogg, 192. 
 Fyson, in re, 340, 342. 
 
 Gabriel v. Sturgis, 465, 546. 
 Gainsford v. Griffith, 373. 
 Gait V. Osbaldeston, 392. 
 Gaitskell, in re, 340. 
 Gallon V. Emuss, 47, 490. 
 
 V. Hancock, 128. 
 
 Ganvilli'. Utting, 168. 
 Garbrand v. Allen, 12.
 
 TABLE OP CASES. 
 
 xxxvn 
 
 Gardiner v. Fell, 257. 
 Gardner, ex parte, 213. 
 Garmstone v. Gaunt, 2, 571. 
 Garrard v. Grimling, 484. 
 
 • V. Lord Lauderdale, 420. 
 
 V. Tuck, 160, 191. 
 
 Garrick v. Lord Camden, 116, 567. 
 Gaskarth v. Lord Lowther, 126, 494. 
 Gaslight Company v. Turner, 454, 490. 
 Gaston v. Frankum, 465, 471. 
 Gee, in re, 205. > 
 
 V. Pearse, 88, 515, 539, 542, 547. 
 
 Geldard v. Randall, 551. 
 
 Gell V. Watson, 308. 
 
 George v. Milbanke, 424. 
 
 Gerahty v. Malone, 539. 
 
 Garrard v. O'Reilly, 359. 
 
 Ghost V. Waller, 310. 
 
 Gibbins v. N. E. Metropolitan Asylum, 
 
 104, 105, 532. 
 Gibbons v. Howell, 558. 
 Gibson v. Clark, 159. 
 
 V. D'Este, 41, 54, 64, 378, 379, 
 
 380, 381. 
 
 V. Ingo, 404, 409. 
 
 V. Russell, 7. 
 
 V. Spurrier, 52. 
 
 Gigner v. Bayly, 453. 
 Gilbert v. Wethereli, 556. 
 Giles V. Homes, 30. 
 Gill, ex parte, 274. 
 Gillett V. Rippon, 375. 
 
 V. Peppercorne, 7. 
 
 Gillibrand v. Gould, 291. 
 
 Gilmore, ex parte, 275. 
 
 Gingell v. Purkins, 255, 256, 326, 327. 
 
 Glaister v. Hewer, 437. 
 
 Glascott V. Lang, 472, 541. 
 
 Glover, in tlie goods of, 106. 
 
 — — — ■ V. Rogers, 546. 
 
 Goddard v. Complin, 325. 
 
 Goodall V. Pickford, 557. 
 
 Goode V. Burton, 345. 
 
 Goodson V. Ellisson, 2?6. 
 
 Gordon, Lord, v. Lord Hertford, 492. 
 
 V. Ball, 520. 
 
 V. Crawford, 353. 
 
 Gore, ex parte, 16. 
 
 Langton, ex parte, 337. 
 
 V Stacpoole, 469. 
 
 Goring, ex parte, 28. 
 
 Gosbell V. Archer, 99, 107, 202. 
 Gosling's case, 400, 402. 
 
 V. Carter, 30, 292. 
 
 Goss V. Lord Nugent, 451, 455. 
 Gough V. Bult, 190. 
 Gould, ex parte, 459. 
 
 V. Shayer, 397. 
 
 Govett V. Richmond, 392. 
 
 I Gowland v. De Faria, 354, 357, 358. 
 Graham v. Jackson, 257, 269. 
 
 V. Musson, 85. 
 
 V. Oliver, 502. 
 
 V. Sime, 335. 
 
 Grainge, ex parte, 312. 
 
 Grand Junction Canal Company v. Dimes, 
 
 429. 
 Granger v. Worms, 54. 
 Grant v. Ellis, 188. 
 
 ■ V. Maddox, 110. 
 
 V. Mills, 347. 
 
 V. Munt, 40, 309. 
 
 Gravenor v. Miles, 559. 
 Gray v. Briscoe, 367, 374. 
 
 V. Gray, 572. 
 
 Great Northern Railway Company, ex 
 
 parte, 336. 
 Great Western Railway Co. v, Cripps, 492. 
 Green v. Bailey, 65, 152. 
 
 V. Briggs, 539. 
 
 V. Pulsford, 164, 526. 
 
 V. Smith, 114, 126. 
 
 Greene v. Cramer, 104. 
 
 Greenhalgh v. Manchester and Birmingham 
 
 Railway Company, 226. 
 Greenlaw v. King, 15, 16, 23, 414. 
 Greenwood v. Churchill, 59, 299, 412. 
 
 V. Rothwell, 204. 
 
 V. Taylor, 283. 
 
 Gregory v. Gregory, 25. 
 
 ^^ — V. Mighell, 477, 481. 
 
 Greswold v. Marsham, 429. 
 
 Grey v. Grey, 437, 438, 439, 440. 
 
 Griffin v. Stanhope, 420, 425. 
 
 Grissall v. Stelfox, 173. 
 
 Grose v. West, 168. 
 
 Grosse v. Gayer, 6. 
 
 Grove v. Bastard, 158, 16"5, 469, 526. 
 
 Grover v. Hugell, 18, 20, 547. 
 
 Groves v. Perkins, 353. 
 
 Grugeon v. Gerrard, 34. 
 
 Guest V. Homfray, 146, 542. 
 
 Gwynn v. Lethbridge, 534, 536. 
 
 Haigh V. De la Cour, 454. 
 
 V. Jaggar, 519. 
 
 Hall, ex parte, 420. 
 
 V. Bainbridge, 453. 
 
 V. Betty, 100, 137, 446. 
 
 V. Franck, 310. 
 
 V. Jenkinson, 518. 
 
 V. Laver, 221, 470, 521. 
 
 V. Noyes, 25. 
 
 " V. Smith, 40, 53. 
 
 V. Warren, 496. 
 
 Hallen v. Runder, 95. 
 Hallett V. Middleton, 370. 
 Hamilton v. Denny, 434.
 
 xxxvm 
 
 TABLE OP CASES. 
 
 Hamilton v. Royse, 428. 
 Hamlet, in re, 35. 
 Hammond v. Toulmin, 376. 
 Hampshire t\ Bradley, 276. 
 Hanbury v. Litchfield, 410, 472, 502. 
 Hariley v. Cassan, 87, 310. 
 Hansard v. Hardy, 408. 
 Hanson v. Keeling, 5, 273. 
 
 V. Lake, 335, 336. 
 
 Harbidge v. Warwick, 137. 
 Harding, in re, 341, 
 
 • V. Ambler, 351. 
 
 V. Harding, 572. 
 
 Hardwicke, ex parte, the Earl of, 338. 
 
 ,Earlof,i7.LordSand\ 5,116,567. 
 
 ■ ^ — V. Vernon, 22. 
 
 Harford v. Furrier, 116', 207. 
 
 Hargrave t>. Hargrave, IGD, 170 
 
 Hargreaves v. Roth well, 412. 
 
 Harington v. Hoggart, 82. 
 
 Harland v. Sinks, 424. 
 
 Harnett v. Yielding, 490, 492, 498, 503. 
 
 Harper, in re, 271. 
 
 V. Faulder, 395. 
 
 • and Jones, in re, 341. 
 
 Harrington v. Long, 112. 
 Harris v. Davison, 237. 
 
 • V. Wall, 10. 
 
 Harrison, in re, 341, 342. 
 
 • V, Borwell, 197. 
 
 V. Coppard, 379, 544. 
 
 V. Southcote, 350. 
 
 Harrisson v. Duignan, 199, 416. 
 Hart V. Hart, 65, 111, 152, 161. 
 Hartley v. Wharton, 10. 
 Hartly v. O'Flaherty, 393. 
 Harvey v. Grabhara, 455. 
 
 V. Mount, 7. 
 
 V. Philips, 152. 
 
 HarvvooJ v. Tooke, 385. 
 
 Hasell, ex jmrte, 189, 190. 
 
 Haslock V. Fergusson, 46. 
 
 Hastings v. Wilson, 37, 129. 
 
 Hatch V. Hatch, 7- 
 
 Hatherton, Lord, v. Bradburne, 121, 327. 
 
 Hawkins, ex parte, 123, 124. 
 
 V. Gathercole, see Addenda. 
 
 V. Holmes, 108. 482. 
 
 Haydon v. Bell, 218, 5.35. 
 
 Hayes v. Bailey, 538. 
 
 Haynes v. Hare, 47. 
 
 Head v. Egerton, 392. 
 
 Headen v. Rosher^, 357. 
 
 Heaphy ». Hill, 515. 
 
 Hearn v. Tomlin, 222. 
 
 Helsham v. Langley, 491. 
 
 Heming v. Archer, 565, 568. 
 
 Hemingway v. Fernandes, 362, 470, 492. 
 
 Hemming v. ISIayo, 476. 
 
 Hemming v. Spiers, 174, 175. 
 
 Henderson v. Barnewall, 81, 82. 
 
 Henson v. Coope, 451. 
 
 Hepworth v. Heslop, 565. 
 
 Herbert ?7. Tuckal, 180. 
 
 Hercy v. Ferrers, 204. 
 
 Herring v. Clobery, 414,415. 
 
 Hertford, Marquis of, ». Boore, 514. 
 
 Hesse v. Stevenson, 373, 410. 
 
 Hicks V. Hankin, 84. 
 
 Hickson v. Collis, 241. 
 
 Hide V. Hide, 563. 
 
 Hiernw. Mill, 168, 408, 472. 
 
 Higgins V. Senior, 444. 
 
 V. Shaw, 289. 
 
 Higginson v. Clowes, 49, 50, 61, 485, 534. 
 Hill V. Buckley, 304, 307, 308, 309, 499. 
 Hillary v. Waller, 159, 162, 176, 524. 
 Hincksman ». Smith, 354, 357. 
 Hinde v. Blake, 424. 
 
 V. Whitehouse, 102. 
 
 Hindle v. Dakins, 564, 566. 
 Hinton v. Hinton, 462. 
 Hippeslev v. Spencer, 119. 
 Hipwell^. Knight, 214, 215. 
 Hitchcock V. Giddings, 382. 
 
 V. Sedgwick, 410. 
 
 Hitchens v. Lander, 112. 
 
 Hobson V. Bell, 58, 77, 78, 162, 166. 
 
 V. Middleton, 369. 
 
 Hoby V. Roebuck, 95. 
 
 Hodder v. Ruffin, 555, 566, 572. 
 
 Hodge, ex parte, 338. 
 
 Hodges V. Horsfall, 453. 
 
 V. Lord Litchfield, 147, 202, 446. 
 
 Hodgkinson v. Cooper, 138. 
 Hodgson V. Dean, 406, 410. 
 
 ■ V. Shaw, 567. 
 
 Hoggart V. Scott, 495. 
 Holden v. Chalcraft, 475. 
 
 V. Hayn, 4 0. 
 
 Hole ». White, 478, 479. 
 Holford v. Phipps, 276. 
 Holland v. Clark, 192. 
 HoUick, ex parte, 313. 
 Hollis V. Claridge, 204. 
 Holmes v. Baddeley, 415. 
 
 V. Blogg, 11. 
 
 V. Buckley, 378. 
 
 Holroyd v. Wyatt', 555, 556, 561. 
 Holyman, ex parte, 16. 
 Homfray v. Scroope, 181. 
 Honeycomb v. Waldron, 401. 
 Hood V. Beauchamp, 180. 
 V. Hall, 569. 
 
 V. Phillips, 442. 
 
 Hooper v. Goodwin, 551, 556. 
 Hopkins v. Grazebrook, 447. 
 V. Hopkins, 469.
 
 TABLE OF CASES. 
 
 XXXIX 
 
 Hordern, ex parte, 313. 
 
 Ilore V. Smith, 338. 
 
 Horlock V. Smith, 201. 
 
 Horn V. Horn, 292. 
 
 Hornby v. Matcham, 205. 
 
 Home V. Wingfield, 58, 130. 
 
 Horsfall v. Hey, 111, 255. 
 
 Hoskins v. Phillips, 225. 
 
 Hotham v. Somerville, 2.55. 
 
 Houghton v. Houghton, 433. 
 
 Howard, in re, 340. 
 
 V. Braithwaite, 106. 
 
 V. Ducane, 20. 
 
 V. Hopkyns, 46, 496. 
 
 V. Shaw, 222, 449. 
 
 Howarth v. Smith, 165, 523. 
 
 Howelv. George, 491, 492, 498, 499. 
 
 V. Howell, 23, 426, 427. 
 
 V. Richards, 373. 
 
 Howes V. Brushfield, 369. 
 
 Howland v. Norris, 508. 
 
 Hubert v. Treberne, 107. 
 
 V. Turner, 107. 
 
 Hughes, ex parte, 17, 24, 28. 
 
 V. Kearney, 347. 
 
 ' V. Kelly, 190, 199. 
 
 V. Lipscombe, 554, 556. 
 
 V. Parker, 51. 
 
 V. Wynne, 201. 
 
 Huguenin lu Baseley, 7. 
 
 Hull V. A^aughan, 120, 223. 
 
 Humble n. Humble, 561. 
 
 V. Hunter, 444. 
 
 Humphrey v. Gary, 198. 199- 
 
 ■ V. Lucas. 444. 
 
 Humphreys v. Hollis, 4 64, 465. 
 
 V. Home, 484. 
 
 V. Roberts, 556, 558, 559. 
 
 Humphries 2'. Harrison, 119. 
 
 V. Home, 383. 
 
 Hungate v. Gascoigne, 175. 
 
 Hunt V. Danvers, 367. 
 
 V. Silk, 444. 
 
 Hunter, ex parte, 73. 
 
 V. Daniel, 112, 472. 
 
 V. Nockolds, 199, 539. 
 
 Hunting v. Sheldrake, 376. 
 
 Hurd V. Fletcher, 368. 
 
 Hurley v. Baker, 445. 
 
 Hutchinson, ex parte, 36, 112. 
 
 V. Bowker, 452. 
 
 V. Manchester Railway Com- 
 pany, 225. 
 
 v. East Lancashire Railway 
 
 Company, 225. 
 
 V. Morly, 454. 
 
 V. Morritt, 524. 
 
 Hutton V. Mansell, 564. 
 
 V. Warren, 452. 
 
 Hyde v. Dallaway, 49, 197, 545. 
 Hyde v. Edwards, 460. 
 V. Wrench, 105. 
 
 Ibbottson V. Rhodes, 42, 228, 394. 
 
 Icely V. Grew, 448. 
 
 Incorporated Society v. Richards, 190, 
 
 192. 
 Ireland v. Bircham, 369. 
 Irnham, Lord, v. Cliild, 483, 488, 496. 
 Ithel V. Potter,, 108. 
 Ivemey, ex parte, 319. 
 
 Jack V. Armstrong, 319, 401. 
 Jackson v. Grant, 476. 
 
 V. Jackson, 433. 
 
 V. Lever, 117, 511. 
 
 V. Milfield, 569. 
 
 V. Rowe, 392, 405, 407, 408. 
 
 Jacob V. Kirk, 100, 102. 
 James, ex parte, 21, 22, 23, 24. 
 
 V. Salter, 189. 
 
 V. Shore, 110. 
 
 Jefferson v. Tyrer, 30. 
 Jeffereys v. Small, 433. 
 Jeffreys u. Smith, 557. 
 Jenkins v. Briant, 376. 
 
 V. Hiles, 531. 
 
 V. Hutchinson, 85, 445. 
 
 V. Keymis, or Keymes, 423, 425. 
 
 V. Portman, 129. 
 
 Jenkinson v. Pepys, 485. 
 Jennings v. Blencorne, 384. 
 
 V. Bond, 393, 4 06. 
 
 V. Hopton, 521. 
 
 Jerrard v. Saunders, 392. 
 Jerritt v. Weare, 368. 
 Jervoise v. Clarke, 553. 
 
 V. Duke of Northumberland, 157. 
 
 Jeudwine v. Alcock, 528, 529. 
 Jillard v. Edgar, 378, 430. 
 Johnson v. Johnson, 282. 
 
 V. Kennett, 284, 285, 286, 287. 
 
 V. Lawson, 177. 
 
 V. Legard, 422, 424, 462, 490. 
 
 V. St. Peters, Hereford, 386. 
 
 Johnston v. Todd, 177. 
 Johnstone v. Baber, 30, 551, 571. 
 Jolland V. Stainbridge, 402, 403. 
 Jones, ex parte, 193. 
 
 in re, 340, 341, 342. 
 
 V. Barkley, 449. 
 
 V. Downman, 84. 
 
 V. Edney, 53, 56. 
 
 V. Evans, 500. 
 
 V. Flint, 94, 95. 
 
 V. Jones, 229, 334, 393. 
 
 V. Kearney, 6, 384. 
 
 V. Lewis, 246, 338, 339, 340.
 
 xl 
 
 TABLE OF CASES. 
 
 Jones V. Littledale, 444. 
 
 V. Matthie, 34. 
 
 V. Mudd, 294. 
 
 V. Nanney, 82. 
 
 V. Newman, 452. 
 
 V. Powles, 390. 
 
 V. Price, 14^!, 214, 285. 
 
 V. Pugh, 414. 
 
 V. Roe, 385. 
 
 V. Smith, 206. 34 7, 390, 403, 405, 
 
 407, 408, 409, 410, 411, 412. 
 
 V. Stanley, 390. 
 
 V. Thomas, 20. 
 
 ■ V. Williams, 558. 
 
 Jordan v. Jones, 493, 568, 569. 
 Joyce V. De Moleyns, 392. 
 Joynes v. Statham, 484. 
 JumpsoQ V. Pitchers, 194, 569. 
 
 Keatinge w. Keatinge, 568. 
 Keeble ?>. Dennish, 476. 
 Kenneys v. Proctor, 83. 
 Kendall?;. Beckett, 354. 
 
 V. Hulls, 413. 
 
 Kennedy v. Daly, 426. 
 
 W.Green, 206, 207, 267, 409, 413. 
 
 V. Lee, 98, 105. 
 
 Kenney v. Wexham, 511. 
 
 V. Browne, 395, 411, 426. 
 
 Kent V. Newman, 430. 
 
 Kenvvorthy v. Schofield, 102, 106. 
 
 Keppell V. Bailey, 361. 
 
 Ker V. Clobery, 506. 
 
 Kerr v. Gillespie, 414. 
 
 Kerrey Glazier, in re, 328. 
 
 Ketsey's Case, 11. 
 
 Killick ». Flexney, 17. 
 
 Kilpin V. Kilpin, 437, 438, 439. 
 
 Kiiiiberley v. Jennings, 492. 
 
 King V. Cotton, 424. 
 
 ■ V. Hamlet, 356, 358. 
 
 V. Jones, 374, 375. 
 
 . V. King, 223, 453, 547. 
 
 V. Leach, 569. 
 
 V. Moody, 135. 
 
 ■ V. Smith, 119, 
 
 V. Wilson, 54, 212, 213, 307. 
 
 King of Spain v. Machado, 468. 
 
 Kiugdon v. Nottle, 374. 
 
 Kingsley». Young, 468. 
 
 Kinnard v. Christie, 570. 
 
 Kirby v. Hansaker, 367. 
 
 Kirk'». Clark, 424. 
 
 Kirkman v. Booth, 82. 
 
 Kirtland v. Pounsett, 120, 222, 448. 
 
 Kirwan v. Daniel, 424. 
 
 KnatchbuU v. Grueber, 218, 221, 497, 
 
 505, 506, 515. 
 Knight V. Crockfonl, 449. 
 
 Knight V. Harden, 544. 
 
 V. Marjoribanks, 18, 353, 359, 
 
 511, 541. 
 
 V. Marquis of Waterford, 182. 
 
 KnoUys?;. Alcock, 122, 123. 
 V. Shepherd, 124. 
 
 Knott, ex parte, 391, 392. 
 Knowles v. Haughton, 490. 
 Knox V. Kelly, 241. 
 
 Lacey, ex parte, 16, 22, 26. 
 
 V. Ingle, 282, 346, 404. 
 
 Laird v. Pim, 448, 449, 450. 
 
 Lake v. Craddock, 433. . 
 V. Gibson, 43^, 434. 
 
 Lamb v. Newbiggin, 184. 
 
 Lambert v. Rogers, 202, 204. 
 
 Lamplugh v. Lamplugh, 438, 440. 
 
 Lane v. Dighton, 441. 
 
 Lang». Gale, 215. 
 
 Langford v. Mahony, 244. 
 
 V. Pitt, 521. 
 
 Langham v. Great Northern Railway Com- 
 pany, 225, 546. 
 
 Langley v. Fisher, 541. 
 
 Langton v. Horton,237. 
 
 V. Hughes, 454. 
 
 . V. Tracy, 420. 
 
 Lapham v. Pike, 166. 
 
 Lapierre v. M'Inlosb, 9. 
 
 Lapsley v. Grierson, 171, 174. 
 
 Lassence v. Tierney, 270, 463, 464, 479. 
 
 Latham, ex parte, 511. 
 
 Lavender v. Stanton, 285. 
 
 Law V. Law, 134. 
 
 V. Urlwin, 418, 502, 523. 
 
 Lawes v. Bennet, 122. 
 
 Lawrence v. Knowles, 120, 121. 
 
 Lawrenson v. Butler, 503. 
 
 Layfield [misprinted Longfiekl] , ex parte, 
 337. 
 
 Laythoarp v. Bryant, 102, 105, 151. 
 
 Leach v. Leach, 177. 
 
 V. Mullett, 64. 
 
 Leader v. Ahearne, 417- 
 
 Lechmere i\ Brasier, 494, 530, 562. 
 
 Lee, ex parte, 36. 
 
 Leech v. Leech, 291, 420. 
 
 Leeds, Duke of, v. Lord Amherst, 25, 26, 
 193. 
 
 Lefroy v. Lefroy, 556. 
 
 Legale. Miller, 472, 488. 
 
 Legge V. Croker, 379, 380. 
 
 Le Grand v. Whitehead, 532. 
 
 Leigh, Lord, v. Lord Ashburton, 467. 
 
 Leman v. Whitley, 437. 
 
 Lempter, Lord, v. Lord Pomfret, 203. 
 
 Lench v. Lench, 437. 
 
 Le Neve v. Le Neve, 400, 402, 413.
 
 TABLE OF CASES. 
 
 xli 
 
 Leng V. Hodges, 175, 
 
 Lesturgeon v. Martin, 217, 521. 
 
 Lewin v. Guest, 132. 
 
 Lewis, ea? parte, 37. 
 
 V. Campbell, 3G5, 375. 
 
 V. Lane, 436. 
 
 V. Marshall, 452. 
 
 V. Peake, 375. 
 
 V. Thomas, 190, 192. 
 
 V. Tucker, 295. 
 
 Lidbetter v. Smith, 572. 
 
 Lightfoot V. Heron, 462, 485, 489. 
 
 Lindsay v. Lynch, 482. 
 
 Lister v. Turner, 419. 
 
 Litchfield, Earl of, in re, 34. 
 
 Livesey v. Harding, 205, 570. 
 
 Llewellyn v. Earl of Jersey, 258. 
 
 Lloyd V. CoUett, 211. 
 
 V. Lloyd, 129. 385, 451, 486. 
 
 V. Spillet, 441. 
 
 V. Tomkies, 367. 
 
 V. Wait, 177, 179. 
 
 Lobb V. Stanley, 106. 
 
 Lockhart v. Hardy, 430. 
 
 Lodge V. Lyseley, 2M. 
 
 Loft, in re, 31. 
 
 London, Mayor of, &c. v. Pewterers' Com- 
 pany, 187. 
 
 London and Birmingham Railway Com- 
 pany 0. Winter, 86, 484, 494, 533. 
 
 London and Brighton Railway Company, 
 V. Fairclough, 334. 
 
 London and Southampton Railway Act, 
 in re, 336. 
 
 London Bridge Act, in re, 260, 261, 337, 
 339. 
 
 London and Greenwich Railway Com- 
 pany, in re, 131, 336. 
 
 V. Goodchild, 360. 
 
 Long V. Collier, 71, 54 5. 
 
 V. Fletcher, 505. 
 
 Longchamps v. Fawcett, 452. 
 Lord V. Lord, 555. 
 
 V. Stephens, 71, 307, 516. 
 
 Loughton, the Rector of, ex parte, 337, 
 
 339. 
 Lovelock V. Franklyn, 449. 
 Lowe V. Swift, 461. 
 Lowe's estate, iti re, 121, 537. 
 Lowther v. Carlton, 425. 
 
 • V. Lowther, 510. 
 
 Loyd V. Griffith, 259, 536. 
 
 V. Read, 437, 438. 
 
 Lucas V. Dennison, 192. 
 
 i>. James, 41, 104, 105, 106, 498, 
 
 531. 
 Lucy V. Levington, 374. 
 Ludlow, Corporation of, v. Charlton, 83, 
 
 108. 
 
 Lufkin V. Nunn, 416, 419. 
 Lumsden v. Fraser, 121. 
 Lutwycli V. Winford, 571. 
 Lyddal v. Weston, 176, 521, 527. 
 Lyford v. Coward, 160. 
 Lynch v. Joyce, 550. 
 Lyon V. Reed, 159. 
 
 V. Colvill, 553. 
 
 Lysney v. Selby, 45. 
 Lyster v. DoUand, 433. 
 
 Maberley v. Robins, 82. 
 
 M'Donald v. Hanson, 37. 
 
 Macclesfield, Earl of, v. Blake, 559. 
 
 Macdonnell v. Harding, 29S. 
 
 M'Esvan v. Smith, 345. 
 
 Mackreth v. Simmons, 345, 346, 347, 
 
 349, 350. 
 Maclean v. Dunn, 86. 
 M'Namara w. Arthur, 455, 456. 
 
 V. Williams, 465. 
 
 M'Naughten v. Hasker, 546. 
 
 M'Queen v. Farquhar, 164, 411, 525, 
 
 541. 
 Maddison v. Andrew, 438, 441. 
 Magennis v. Fallon, 43, 116, 131, 133, 
 
 216, 224, 528. 
 Magor i). Chadwick, 184. 
 Maguire v. Armstrong, 417, 418. 
 Major V. Ward, 34, 166, 167, 169, 252. 
 Malcolm v. Charlesworth, 318. 
 Maiden v. Merick, or Menil, 352. 
 Maiden v. Fyson, 446, 543. 
 Maling v. Hill, 540. 
 Malins v. Freeman, 83, 90, 489, 492. 
 Malpas V. Ackland, 407. 
 Man V. Ricketts, 152, 157. 
 Mangles v. Dixon, 346. 
 Mann v. Stephens, 361. 
 Manners v. Furze, 558. 
 Manning, ex parte, 295. 
 Manningford v. Toleman, 345, 393, 442. 
 Manser v. Back, 49, 51, 83, 84, 86, 485. 
 Margerison v. Saxton, 398. 
 Majoribanks v. Hovenden, 413. 
 Marlborough Estates, in re, 312. 
 Marlow V. Smith, 562. 
 Marshall, es parte, 337. 
 
 V. Collett, 352. 
 
 V. Davies, 476, 520. 
 
 V. Lynn, 456. 
 
 V. Sladden, 38, 541, 545. 
 
 Martin v. Mitchell, 105, 463, 489, 494, 
 
 510. 
 Martin v. Cotter, 41, 51, 510. 
 Martinez v. Cooper, 317, 393, 395, 396. 
 Martyn v. Macnamara, 112, 373. 
 Mason v. Armitage, 83, 90. 
 V. Corder, 506.
 
 xlii 
 
 TABLE OF CASES. 
 
 Mason v. Franklin, 467. 
 
 Massey, in re, 340, 341, 342. 
 
 Massy v. Nanney, 328. 
 
 Masten v. Cookson, 172. 
 
 Mather v. Priestman, 28, 32. 
 
 Matson v. Swift, 299, 568. 
 
 Matthew V. Bowler, 349. 
 
 Matthews v. Dafia, 519. 
 
 Matthie v. Edwards, 33, 34. 
 
 Mattock V. Kinglake, 450. 
 
 Maundrell v. Maundrell, 251. 
 
 Maurice v. Wainewright, 567. 
 
 May V. Roper, 273. 
 
 Mayfield v. Wadsley, 95. 
 
 Maynard's case, 381. 
 
 Meadows v. Tanner, 51, 89. 
 
 INIechelen v. Wallace, 96. 
 
 Medley v. Horton, 248. 
 
 Mellish V. Motteux. 40. 
 
 Merchant Tailors' Company, iii re, 339. 
 
 Metcalfe v. Clough, 8<i. 
 
 V. Pulvertoft, 462. 
 
 Mens V. Bell, 402. 
 
 V. Maltby, 408. 
 
 V. Smith, 311. 
 
 Micklethwait v. Nightingale, 486. 
 Middleton, Lord, v. Wilson, 102. 
 Middle Claydon Trust, ex parte, 338. 
 Midland Counties Railway Company, in 
 
 re, 313. 
 Midland Counties Railway Company v. 
 
 Oswin, 98, 122, 124. 
 Midland Counties Railway Company v. 
 
 Westcomb, 335, 336. 
 Midleton, Lord, v. Eliot, 205. 
 Mildmay v. Hungerford, 485. 
 Miles V. Knight, 175. 
 
 V. Langley, 229, 408, 410. 
 
 Milfield, in re, 569. 
 Millard, in re, 271. 
 Miller, ea: parte, 28. 
 
 V. Priddon, 290. 
 
 V. Smith, 561. 
 
 Milligan v. Cooke, 502, 503. 
 Mills V. Oddy, 62, 63, 88. 
 
 V. Osborne, 291. 
 
 Milward v. Earl of Thanet, 514. 
 Minchin v. Nance, 307. 
 
 V. Vance, 145. 
 
 Mines, case of, 527. 
 Minor, ex parte, 554. 
 Mirfin, 274. 
 Mitchells. Hayne, 81. 
 
 V. Neale, 269. 
 
 Mocatta v. Murgatroyd, 430. 
 Moggridge v. Jones, 450, 451. 
 Mole V. Smith, 251, 532. 
 Molesworth v. Opie, 559. 
 MoUett V. Wackerbarth, 108. 
 
 Molony v. Kernan, 16. 
 
 Molton V. Camroux, 4, 12. 
 
 Molyneux, ex parte, 367. 
 
 Monck V. Huskisson, 159. 
 
 Monk V. Huskisson, 294, 299. 
 
 Monkton v. Attorney- General, 178, 179, 
 
 180. 
 Montgomery, ex parte, 38. 
 Moor V. Raisbeck, 124. 
 Moore v. Edwards, 482. 
 
 V. Greg;, 129. 
 
 Morecock v. Dickins, 400. 
 Morgan v. Hunt, 367. 
 Morice v. Bishop of Durham, 560, 
 Morley v. Cook, 58, 72, 131. 
 Morphett v. Jones, 477, 480. 
 Morris v. Barrett, 433. 
 
 V. Bull, 564. 
 
 V. Clarkson, 565. 
 
 V. Davies, 169, 170. 
 
 V. Ellis, 188. 
 
 V. Kearsley, 130, 134. 
 
 Morrison v. Arnold, 468. 
 Morse v. Faulkner, 384. 
 
 V. Tucker, 376, 377. 
 
 Morshead v. Frederick, 573. 
 Mortimer v. Capper, 117, 511. 
 
 V. Orchard, 472, 543. 
 
 V. Shortall, 352. 
 
 Mortlock V. BuUer, 463, 490, 495, 499, 
 
 502. 
 Moses V. Macfarlane, 444. 
 Moss V. Gallimore, 386, 387. 
 
 V. Matthews, 73, 88. 
 
 Moxhay v. Inderwick, 265, 470, 515. 
 
 Mulhallen v. Marum, 7. 
 
 Mumma v. Mumma, 437, 440. 
 
 Munch V. Cockerell, 26. 
 
 Mundy v. Jolliffe, 478, 479, 480, 481. 
 
 Murless v. Franklin, 437, 439. 
 
 Murley v. Sherran, 4. 
 
 Murphy v. O'Shea, 16. 
 
 Murray, in re, 343. 
 
 V. Currie, 86. 
 
 V. Palmer, .S58, 381. 
 
 Muskerry v. Chinnery, 417, 418, 419. 
 Muston V. Bradshaw, 204, 465. 
 Myddleton v. Lord Kenyon, 421. 
 Mynn v. Joliffe, 86. 
 
 Nagle V. Baylor, 356, 489. 
 Nairn v. Prowse, 346. 
 Nantes v. Corrock, 463. 
 Napper I?. Lord Allington, 371. 
 Nash V. Aston, 367, 370. 
 Naylor v. Winch, 21. 
 Neale v. Mackenzie, 502. 
 
 V. Swind, 454. 
 
 Neap V. Abbott, 485.
 
 TABLE OF CASES. 
 
 xliii 
 
 Neate, in re, 340. 
 
 V. Duke of Marlborough, 232. 
 
 Nceld V. Duke of Beaufort, 84. 
 
 Neesom v. Clarkson, 24, 194, 407, 408, 
 
 411, 426, 427. 
 Neeves v. Burrage, 29, 457. 
 Neild's Case, 417. 
 Nelson v. Bridges, 116, 534. 
 
 Earl, V. Lord Bridport, 539, 540. 
 
 V. Callow, 30 
 
 V. Nelson, 383. 
 
 Nelthorpe v. Holgate, 41, 71, 85, 229, 
 
 461, 467, 470, 496. 503. 
 Nelthorpe v. Pennyman, 573. 
 Nervin v. Munns, 373. 
 Netterville Peerage, 157. 
 Neville v. Wilkinson, 45. 
 Newallr. Smith, 216, 542. 
 Newbold v. Roadknight, 122. 
 Newenham v. Pemberton, 273, 464. 
 Newlands v. Paynter, 237. 
 Newman v. Rogers, 209. 
 Newry v. Enniskillen Railway Company 
 
 V. Coombe, 10. 
 Newstead v. Searles, 424. 
 Newton, e.r parte, 338. 
 
 Newton V. Grand Junction Railway Com 
 pany, 234. 
 
 Newton's Charity, in re, 571. 
 
 Nicholson v. Hooper, 394. 
 
 V. Knapp, 519. 
 
 Nicloson V. Wordsworth, 221, 543, 544. 
 
 Niell «. Morley, 4. 
 
 Nind V. Marshall, 373. 
 
 Noble V. Cass, 366, 377. 
 
 Noel V. Bewley, 159, 383, 384. 
 
 v. Hoy, 494. 
 
 v. Ward, 203. 
 
 i-. Weston, 260. 
 
 Noke V. Awder, 365. 
 
 Nokes V. Lord Kilmoiey, 210, 542. 
 
 Norfolk, Duke of, v. Worthy, 63, 441, 
 445. 
 
 Norman v. Stiby, 377. 
 
 Norris v. Le Neve, 413. 
 
 Northwick, ej; parte, 338. 
 
 Nottingham v. Mould, 476. 
 
 Nouaille v. Greenwood, 142. 
 
 V. Flight, 503, 507. 
 
 Nutbrown v. Thornton, 459. 
 
 Ochiltree's, Lord, case, 171. 
 O'Connor v. Spaight, 96. 
 Ogilvie V. Foljambe, 50, 101, 217. 
 Ohrly V Jenkins, 546. 
 Okill V. Whittaker, 352. 
 Oldfield V. Round, 40, 52, 510. 
 Oliver v. Court, 25. 
 Omerod v. Hardman, 487. 
 
 Onley v. Gardiner, 186. 
 Ord V. Noel, 33, 36, 490. 
 O'Reilly v. Thompson, 478. 
 Orlebar v. Fletcher, 120, 462. 
 Ornie v, Broughton, 447, 455. 
 
 V. Wright, 17, 430. 
 
 O'Rourke v. Percival, 499. 
 Osbaldeston v. Askew, 526. 
 Osborn v. Lea, 228, 395. 
 Osborne v. Harvey, 67, 220, 516. 
 Osgood V. Strode, 422, 423. 
 Ouseley v. Anstruther, 440, 564. 
 Overton v. Banister, 3, 394. 
 Owen V. Davies, 120, 295. 
 
 „, De Bef-uvoir, 189, 200. 
 
 V. Foulks, 559. 
 
 V. Thomas, 98, 101, 105. 
 
 Owens V. Dickenson, 465. 
 Oxenham v. Esdaile, 267. 
 
 V. Lord Falmouth, 299, 544. 
 
 Oxwick V. Brockett, 383. 
 V. Pluraer, 389, 411. 
 
 Paddock v. Forrester, 185. 
 Padwick ?'. Hanslip, 492. 
 
 Piatt, 466, 469, 470. 
 
 Paine v. Meller, 116, 117. 
 Page V. Adam, 71, 72, 131, 133, 284, 286, 
 287, 292. 
 
 V. Broom, 262. 
 
 Palmer, ex parte, 338. 
 
 V. Temple, 73. 213, 451. 
 
 Palmerston, Lord, ex parte, 338. 
 Parker v. Carter, 420, 424. 
 
 V. Frith, 209. 
 
 v. Gossage, 452. 
 
 V. Mitchell, 186. 
 
 V. Morrell, 538, 548. 
 
 V. Smith, 107, 462, 478, 482. 
 
 Parkes, ex parte, 350. 
 
 Charity, in re, 571. 
 
 ■ V. White, 21. 
 
 Parkins v. Moravia, 109. 
 Parkinson v. Francis, 177. 
 Parkhurst v. Lowten, 414. 
 Parnther v. Gaitskell, 310. 
 Parrott v. Sweetland, 348, 349. 
 Partington, ex parte, 36. 
 Partridge v. Scott, 180. 
 Pasmore, ex parte, 337. 
 Paterson v. Long, 53, 466. 
 Paton V. Brebner, 387, 503. 
 
 V. Rogers, 299, 499, 531. 
 
 Pawle V. Gunn, 93. 
 Payne v. Cave, 57. 
 
 V. Compton, 392. 
 
 Peachey's Case, 436. 
 Peacock v. Burt, 391, 393. 
 V. Evans, 357.
 
 xliv 
 
 TABLE OF CASES. 
 
 Peacock v. Penson, 55, 466, 490, 491, 
 
 503. 
 Pearce w. Pearce, 561. 
 Pearsall, in re, 272. 
 Pearse v. Pearse, 164, 165, 415. 
 Pearson v. Morgan, 42, 45, 395. 
 Peate v. Dicken, 109. 
 Peck- V. Cardwell, 434. 
 Peddei-, ex parte, 18. 
 Peers v. Lambert, 506. 
 Peirce v. Derry, 234. 
 Peles V. Gervies, 373. 
 Pember v. Matthews, 483. 
 Pender, in re, 340. 
 Pendrell v. Pendrell, 170. 
 Penn v. Glover, 367. 
 Penniall v. Harborne, 75. 
 Penny v. Pretor, 568. 
 
 V. Watts, 229, 392, 408, 409, 412. 
 
 Peiiruddock v. Hammond, 415. 
 Pepper v. Barnard, 138. 
 Pt-ppercorn v. Peacock, 525. 
 Perkes, ex parte, 16. 
 Perkins v. Bradley, 412. 
 Perry v. Meddowcroft, 388. 
 Perry v. Smith, 59, 299, 414. 
 Persse v. Persse, 357. 
 Pet and Cally's Case, 370. 
 Peto V. Gardner, 571. 
 Petre v. Duncombe, 466. 
 Plieysey v. Vicary, 186. 
 Phillimore v. Barry, 106. 
 Pbillipo ¥. Munnings, 197. 
 Phillips V. Fielding, 450. 
 
 V. Duke of Bucks, 85, 496. 
 
 Pickersgill, in re, 272. 
 
 Pierce v. Scott, 290. 
 
 Piers V. Piers, 171. 
 
 Pimm V. Insall, 292. 
 
 Pinckle v. Cartels, 214. 
 
 Pitchers v. Edney, 81. 
 
 Play ford v. Playford. 354, 356, 512. 
 
 Plumb V. Fluitt, 404, 411. 
 
 Polhill V. Walter, 46. 
 
 Poole, ex parte, 442. 
 
 V. Coates, 127. 
 
 V. Hill, 60,450. 
 
 . V. Rudd, 88, 
 
 V. Shergold, 116, 508, 510. 
 
 Pope?). Garland, 41, 52, 53. 
 
 V. Roots, 117, 511. 
 
 Popham V. Eyre, 210. 
 
 Porcher v. Gardnt-r, 450. 
 
 Pordage v. Cole, 450. 
 
 Portman v. Mill, 56, 295. 303, 304, 308, 
 
 506, 508, 528. 
 Portmore v. Taylor, 355. 
 Pott V. Todhunter, 424. 
 Potter?). Sanders, 101, 105, 462, 469. 
 
 Potts V. Curtis, 357. 
 
 V. Button, 340. 
 
 Powell w. Divett, 108. 
 
 V. Doubble, 56, 64. 
 
 V. Edmunds, 50. 
 
 V. Martyr, 293. 
 
 V. Thomas, 395, 480. 
 
 Powys V. Mansfield, 438. 
 
 Poynder v. Great Northern Railway Com- 
 pany, 225. 
 Prankerd v. Prankerd, 439. 
 Prendergast v. Eyre, 505. 
 Preston v. Barker, 556. 
 Prettyman's Case, 417. 
 Price w. Assheton, 480. 481. 
 
 V. Berrington, 649. 
 
 V. Blakemore, 441. 
 
 V. Corporation of Penzance, 545. 
 
 V. Dyer, 488, 514. 
 
 • V. Hathaway, 321. 
 
 V. North, 304,573. 
 
 V. Price, 550, 557. 
 
 Prior V. Horniblow, 197. 
 Prodgers v. Langham, 424. 
 Propert v. Parker, 106. 
 Prosser ?;. Edmonds, 112. 
 
 V. Watts, 142. 
 
 Pullan V. Rawlins, 157. 
 Pulvertoft V. Pulvertoft, 421, 423. 
 Purcell V. Blennerliasset, 188. 
 Purvis w. Rayer, 137. 
 
 Pyke V. Northwood, 518. 
 
 V. Williams, 477. 
 
 Pym V. Blackburn, 477, 482, 483. 
 V. Lockyer, 438. 
 
 Queen, the, v. Birmingham and Oxford 
 Junction Railway Com- 
 pany, 29, 98. 
 
 V. Bishop's Stoke (Lord of 
 
 Manor of), 245, 258. 
 
 V. Ellis, 242. 
 
 V. Steward of Eton Coll. 331. 
 
 V. IiigUton (Lord of Manor 
 
 of), 322. 
 
 V. Inhabitants of Mansfield. 
 
 169. 
 
 11. London and South-West- 
 
 ern Railway Co., 99. 
 
 ('. Middlesex Registrars, 319. 
 
 . — V. Pitt, 253. 
 
 V. Rigge, 245. 
 
 Rabbett v. Raikes, 61. 
 Rac'kham %k Siddall, 38. 
 Radcliffe v. Eccles. 568. 
 Raflety v. King, 196. 
 Rainy v. Vernon, 82. 
 Ralph, ex parte, 266,361.
 
 TABLE OF CASES. 
 
 xlv 
 
 Ramsbottom v. Gosden, 484. 
 Ramsden v. Manchester Railway Com- 
 pany, 92A. 
 Rand w. Macmahon, 157. 
 Randall v. Morgan, 420. 
 Ranken v. Harwood, 2.^2. 
 Rankin v. East and West India Dock 
 
 Comiiaiiy, 225. 
 Ravenscroft v. Frisby, 198. 
 Rawlins v Burgis, 127. 
 Rawson v. Tasburgh, 133. 
 Raynt-r v. Grote, 444. 
 Read?;. Brookman, 159. 
 
 V. Shaw, 35. 
 
 Redding v. Wilkes, 471. 
 Redington v. Redington, 440. 
 Redshaw v. Newbold, 568. 
 Reece v. Trye, 201, 415. 
 Rees V. Lloyd, l(il. 
 Reeves v. Barraud, 81. 
 
 , V, Gill, 24t), 339. 
 
 Reid V. Langlois, 414. 
 
 V. Shergold, 35,394. 
 
 Reilly ». Fitzgerald, 179. 
 
 Rendlesham, Lord, v. Meux, 31, 33, 289. 
 
 Rex ?'. Eastbourne, 8. 
 
 V. Holland, 8. 
 
 r. Pedly, 430. 
 
 V. Rigge, 245. 
 
 Reyiiell v. Sprye, 415. 
 
 Reynolds ex parte, 22. 
 
 V. Blake, 563. 
 
 V. Nelson, 211,455. 
 
 V. Waring,477, 481. 
 
 Rhodes, in re, 341. 
 
 Rice, in re, 343. 
 
 V. Gordon, 354. 
 
 Rich V. Basterfield, 431. 
 
 ('. Rich, 373. 
 
 Richards v. Att-Gen. of Jamaica, 123. 
 
 Richardson ». Chasen, 446. 
 
 V. Horton, 292. 
 
 V. Ward, 535, 567. 
 
 llicketts V. Bell, 461. 
 
 lliddell V. Riddell, 365, 366. 
 
 Rider». Jones, 204. 
 
 Ridgway V. Gray, 65, 418, 502, 503. 
 
 Rigby V, M'Namara, 559. 
 
 ■ V. Macnamara, 561. 
 
 Rigden v. Vallier, 432. 
 
 Rights. Beard, 120.449. 
 
 V. Bucknell, 385, 419. 
 
 Riley, App., Crossley. Resp., 113. 
 
 Rippingall v Lloyd, 202, 213. 
 
 Rist V. Hobson, 471. 
 
 Ritchie v. Smith, 454, 490. 
 
 Rivis V. Watson, 386, 430. 
 
 Roach V. Wadham, 361, 365, 
 
 Roake v. Kidd, 523, 
 
 Roberts, in re, 4. 
 
 w. Marchant. 461, 468. 
 
 V. Massey, 88. 
 
 0. Rowlands, 456. 
 
 ?'. Tunstall, 25. 
 
 V. Walker, 13. 
 
 V. Williams, 424, 572. 
 
 V. Wyatt, 71, 72, 130. 
 
 Robertson i>,,Great Western Railway Com- 
 |)any, 466. 
 
 V. Lockie, 34. 
 
 V. Skelton, 560, 572. 
 
 Robinson v. Drybrough, 109. 
 
 V. Harman, 447. 
 
 V. Hedger, 238. 
 
 V. Milner, 529. 
 
 r. Musgrove, 63, 64,69. 
 
 V. Page, 514, 534. 
 
 V. Ridley, 23. 
 
 V. Rosher, 543. 
 
 V. Wall, 51, 89. 
 
 V. Wood, 569. 
 
 Robson». Collins, 483. 
 Rochard v. Fulton, 402, 406, 412. 
 Rocke V. Cooke, 188. 
 Roddy?;. Williams, 378, 403. 
 Rodnev ». Rodney, 550. 
 Rodwe'll V. Phillips, 94. 
 Roe V. Ireland, 160. 
 
 V. Mitton,423, 
 
 Roffey V. Shallcross, 505. 
 Rogers v. Brenton, 53. 
 Rolleston v. Morton, 236. 
 Rome V. Young, 535. 
 Roots V. Lord Dormer, 109. 
 Roper V. Coombes, 457. 
 Roscommon Earldom, 171. 
 Rose V. Cunynghame, 98, 126. 
 Rosewell v. Prior, 430. 
 Rossiterz;. Walsh, 16, 
 Routledge w. Grant, 105. 
 Rowe V. Teed, 482. 
 Rowley v. Adams, 408. 
 Royle V. Wynne, 460. 
 Rudd V. Sewell, 20, 25. 
 Rushbrooki). Hood, 331, 332. 
 Rust V. Baker, 172. 
 Rutter V. Marriott, 564, 572. 
 Ryan v. Anderson, 469. 
 Ryle V. Swindells, 512. 
 
 Sainsbury v. Jones, 459. 
 
 St. Cross V. Lord Howard de Walden, 
 
 452. 
 St. George, Parish of, v. St. Margaret's, 
 
 169, 170. 
 St. John V. Bishop of Winton, 127. 
 
 , Lord, V, Boughton, 192. 
 
 St-Katherine's Dock Company, m re, 339.
 
 xlvi 
 
 TABLE OF CASES. 
 
 Sainter v. Furguson, 516. 
 Salisbury, in re, the Bishop of, 337. 
 
 , c. Hatclier, 490, 495. 
 
 Salkeld v. Johnston, 182, 183, 547. 
 Salman v. Bradshaw, 306. 
 Salmon v. Randall, 98. 
 Salters' Company v. Jay, 184. 
 Sanders v. Richards, 467. 
 Sanderson v. Cockermouth Railway Com- 
 panv, 481. 
 
 V. Walker, 21. 
 
 Sansom v. Rhodes, 208, 457. 
 Satterthwaite v. Powell, 174. 
 Saunders v. Dehew, 390, 391. 
 . V. Gray, 572. 
 
 . V. Musgrove, 222. 
 
 Saunderson ik Jackson, 102, lOG, 107. 
 Saward v. Anstey, 373. 
 Sawyer v. Birchmore, 414. 
 
 . V. Mills, 545. 
 
 Savage v. Carroll, 481 
 
 V. Foster, 6, 228, 394. 
 
 Savile v. Savile, 573. 
 
 Saye and Sele Barony, 170, 171. 
 
 Sayer v. Wagstaff, 341. 
 
 Scargill v. Hurry, 476. 
 
 Scawin v. Scawin, 440. 
 
 Scbiff, in re, 272. 
 
 Schneider v. Heath, 40, 45. 
 
 V. Norris, 106. 
 
 Scholefield, fix parte, 271. 
 
 V. Heafield, 568. 
 
 Schreiber v. Creed, 55, 302. 
 Scoones v. Morrell, 74, 544. 
 Scott V. Davis, 19. 
 
 V. Dunbar, 355, 541. 
 
 , V. Fenhoullet, 128. 
 
 V. Hanson, 43. 
 
 . V. Langstaffe, 496. 
 
 V. Nesbit, 556. 
 
 V. Nixon, 199, 200. 
 
 Scrafton v. Quincey, 319. 
 Scroope v. Scroope, 438. 
 Seabourne v. Powel, 383. 
 Seagood v. Meale, 100, 101. 
 Seaman v. Price, 93. 
 
 V. Vawdrey, 52, 503, 500, 527. 
 
 Searle?;. Colt, 189, 199. 
 Seatou V. Mapp, 48, 210. 
 Seaward v. Willock, 449, 457. 
 Selby V. Selby, 106. 
 
 V. Jackson, 4. 
 
 Seliick V. Trevor, 68. 
 
 Selsey v. Lord Rhoades, 19, 25. 
 Sentence v. Porter, 546. 
 Seton V. Slade, 115, 140, 210, 213. 
 Sewell V. Walker, 355, 357. j 
 Shadforth v. Temple, 122. 
 Shackleton v. Sutcliffe, 64, 307, 506. 
 
 Shalcross v. Dixon, 406. 
 Shallcross v. Hibberson,*556. 
 Shannon v. Bradstreet, 461, 489. 
 Sharp V. Taylor, 490. 
 Shaw, ex parte, 272. 
 
 V. Borrer, 292. 
 
 V. Fisher, 459. 
 
 V. Shaw, 203. 
 
 V. Simpson, 553. 
 
 V. Wright, 562. 
 
 Sheffield v. Lord Mulgrave, 524. 
 Sheffield Canal Company v. Sheffield 
 
 and Rotherham Railway Company, 
 105. 
 
 Sheldon v. Cox, 402, 404, 412, 413. 
 
 Sheehy v. Muskerry, 418. 
 
 Shelly'». Nash, 76, 357. 
 
 Shelton r. Livius, 50. 
 
 Shepherd v. Hall, 328. 
 
 V. Keatley, 67, 08. 
 
 Sheppard v. Doolan, 502. 
 
 V. Duke, 197. 
 
 V. Wilson, 291. 
 
 Sherry v. Oke, 440. 
 
 Sherwood v. Beveridge 562. 
 
 V. Robins, 65. 
 
 Shields v. Boucher, 179. 
 
 V. Rice, 160. 
 
 Shippey v. Derrison, 108. 
 
 Shirley, ew parte, 274. 
 
 V. Stratton, 40. 
 
 Shore v. Collett, 202, 315. 
 
 V. Wilson, 452. 
 
 Short V. Calloway, 375. 
 
 V. Stone, 449. 
 
 Shrewsbury v. Blount, 46. 
 
 Sibbering v. Earl of Balcarres, 355, 356, 
 359. 
 
 Sibthorp v. Brunei, 450. 
 
 Sidebotham, ex parte, 220, 459. 
 
 V. Barrington, 133, 217, 530, 
 
 541. 
 
 Sidmouth v. Sidmouth, 437, 438, 439, 
 440. 
 
 Sidny v. Ranger, 18, 550. 
 
 Sillick V. Booth, 172, 173, 174. 
 
 Silvester v. Bradley, 33. 
 
 Simmonds v. Palles, 420. 
 
 Simmons v. Pettit, 325. 
 
 Simpson v. Lancaster and Carlisle Rail- 
 way Company, 99, 118. 
 
 V. Gutteridge, 275. 
 
 V. Henderson, 452. 
 
 V. Margitson, 215, 452. 
 
 Sivell V. Abraham, 545, 546. 
 
 Skarf r. Soulby, 426. 
 
 Skeats v. Skeats, 438. 
 
 Skeeles v. Shearley, 233. 
 
 Skelton v. Robertson, 117, 300, 561.
 
 TABLE OF CASES. 
 
 xlvii 
 
 Skinner v. M'Douall, 104, 471, 483. 
 
 Sladden, in re, 341. 
 
 Slane Peerage Case, 178, 179. 
 
 Slaney v. Wade, 178, 179, 180. 
 
 Slater's Devisees, ex parte, 337. 
 
 Small V. Attwood, 40, 44, 220, 221, 378, 
 
 468, 538,548. 
 Smart v. Sanders, 80. 
 Smith, ex parte, 18, 338. 
 
 , in re, 275, 340. 
 
 V. Baker, 384. 
 
 V. Bowin, 489. 
 
 V. Burnam, 14(3. 
 
 V. Capron, 41, 207, 218, 530. 
 
 V. Chichester, 314. 
 
 V. Clarke, 89. 
 
 V. Compton, 373, 375. 
 
 V. Dimes, 342. 
 
 V. East India Company, 84. 
 
 V. Ellis, 48, 68. 
 
 V. Garland, 462, 490. 
 
 V. Henley, 111, 161, 4.^)3. 
 
 V. Hurst, 232, 236. 
 
 V. Jackson, 81, 518. 
 
 0. Keating, 420. 
 
 V. Leigh, 544, 547. 
 
 V. Lloyd, 506, 517. 
 
 V. Nelson, 563. 
 
 c. Phillips, 430. 
 
 ' — -- ('. Sleap, 445. 
 
 V. Surman, 94. 
 
 v. Tolcher, 509. 
 
 V. Tombs, 93. 
 
 V. Wilson, 452. 
 
 Sneezum v. Marshall, 110. 
 
 Sober v. Kemp, 429. 
 
 Soloman v. Turner, 454. 
 
 Sotilichos V. Kemp, 452. 
 
 South Wales Railway Company, ex parte, 
 
 225. 
 Southby V. Hutt, 58, 07, 146, 152, 217. 
 Southwell V. Nicholas, 491. 
 Souter V. Drake, 137. 
 Southcomb v. Bishop of Exeter, 88, 212, 
 
 222, 515, 539. 
 Sowarsby v. Lacy, 285. 
 Sparke v. Montriou, 204. 
 Sjjackman y. Timbrell, 292. 
 Spain, King of, v. Machado, 408. 
 Spartali v. Benecke, 452. 
 Spence v. Hogg, 469. 
 Spencer's Case, 361, 363. 
 
 V. Marriott, 368. 
 
 Spiller V. Westlake, 450, 451. 
 
 V. Spiller, 518, 519. 
 
 Spratt V. Jeffery, 67. 
 
 Spurrier v. Fitzgerald, 471, 482. 
 
 V. Mayoss, 60. 
 
 Squire v. Campbell, 55. 
 
 Squire v. Tod, 444, 450. 
 
 Stacey v. Elj)h, 19. 
 
 Stacpoole V. Stacpoole, 422. 
 
 Stafford Barony, Case of, 171. 
 
 Staines v. Morris, 261, 265, 267, 541, 
 
 547. 
 Stamford, Earl of, v. Dunbar, 182, 183. 
 Stamps V. Birmingham and Stour Valley 
 
 Railway Company, 99, 118. 
 Standen v. Christmas, 386, 387. 
 Stanhope v. Earl Verney, 390. 
 Stanley v. Hayes, 368, 369. 
 Stannard v. Forbes, 373. 
 
 V. UUithorne, 258. 
 
 Stanwix's Case, 174. 
 Stapylton v. Scott, 492, 531. 
 Staynroyde v. Locock, 370. 
 Stead V. Cragh, 464. 
 
 V. Dawber, 455, 456. 
 
 V. Nelson, 463, 464. 
 
 Steed V. Calley, 12. 
 Steedman v. Poole, 5, 409. 
 Steel w. Prickett, 168. 
 Steele v. Stewart, 414. 
 Stephen, in re, 341. 
 Stephens v. Guppy, 133. 
 Stevens, ex parte, 225, 336. 
 
 V. Guppy, 165, 219, 264, 472, 
 
 532. 
 
 V. Stevens, 395, 396. 
 
 Steward v. Bridges, 624. 
 Stewart V. AUiston, 56, 63, 504. 
 
 V. Smith, 211, 213, 515. 
 
 Stikeman v. Dawson, 3, 394. 
 
 Stileman v. Ashdown, 438. 
 
 Stilwell, or Stillwell. v. Mellersh, 508. 
 
 V. Wilkins, 353, 510. 
 
 Stirke, in re, 341, 
 
 Stokes V. Moore, 106, 108. 
 
 V. Russell, 362. 
 
 Stone, 274. 
 
 V. Commercial Railway Company, 
 
 98. 
 Story V. Lord Windsor, 390. 
 Stourton, Lord, v. Meers, 495. 
 Stowell V. Robinson, 213. 
 Stratford v. Bosworth, 543. 
 
 V. Twynam, 19. 
 
 Street, in re, 272. 
 
 V. Brown, 454. 
 
 Stronghill v. Buck, 253. 
 .Stuart, ex parte, 263. 
 Stubbs, in re, 270, 272. 
 
 V. Sargon, 570. 
 
 Stuckey v. Drewe, 398, 
 Sturge V. Starr, 352. 
 
 V. Sturge, 353, 35 7. 
 
 Sturgis V. Champneys, 464. 
 Suir Island Charitv, in re, 571.
 
 xlviii 
 
 TABLE OF CASES. 
 
 Sussex Peerage Case, 177. 
 Sutherland v. Briggs, 478. 
 Swansborough v. Coventry, .55, 56. 
 Sweet V. Lee, 103, 1C6. 
 
 V. Southcote, 425. 
 
 Swift V. Davis, 439. 
 Syers v. Jonas, 452. 
 Sykes v. Giles, 87. 
 Symes, in re, 442. 
 Symons v. James, 48, 51, 73. 
 
 Talbot w. Ford, 492. 
 Tanner v. Florence, 407. 
 
 ■ V. Smith, 72, 446, 456. 
 
 Tarback v. Marbury, 425. 
 Tardiffe v. Scrughan, 349. 
 Tasker v. Small, 30, 115, 388, 4G6, 467. 
 Tawney v. Lynn and Ely Railway Com- 
 pany, 98. 
 Taylor, ex parte, 275. 
 
 in re, 337. 
 
 V. Ashton, 46. 
 
 V. Baker, 403, 409. 
 
 V. Blacklow, 149. 
 
 V. Brown, 212, 544. 
 
 V. Debar, 371, 383. 
 
 V. Forster, 414. 
 
 V. Martindale, 51, 530. 
 
 V. Salmon, 84, 467. 
 
 V. Stibbert, 408, 415, 416. 
 
 ■ V. Tabrum, 29, 35, 37. 
 
 V. Wheeler, 462. 
 
 Tebbott V. Voules, 123. 
 
 Teed v. Carruthers, 347. 
 
 Templer v. Sweet, 555, 556, 557. 
 
 Tendring ik London, 494. 
 
 Tetley, ex parte, 338. 
 
 Tew V. Jones, 387. 
 
 Thames Haven Company v. Brymer, 449, 
 
 450. 
 Thelusson v. Woodford, 126. 
 Thicknesse v. Lancaster Railway Company, 
 
 29. 
 Thomas v. Blackman, 98, 104, 478. 
 
 r. Dering, 71, 464, 499, 502. 
 
 V. Gwynne, 538, 569. 
 
 V. Phillips, 20, 543, 545. 
 
 V. Powell, 381. 
 
 Thompson, in re, 341. 
 
 V. Blackstone, 491. 
 
 V. Leach, 4. 
 
 V. Simpson, 394, 404. 
 
 Thomson v. Miles, 211, 457. 
 
 • V. Thomson, 490. 
 
 Thornbury v. Bevill, 105, 107. 
 Thornett v. Haines, 51, 89. 
 Thorn hill v. Glover, 571. 
 
 ■ V. Thornhill, 556. 
 
 Thorneley, app. Aspland, resp. 113. 
 
 Thoroton, ex parte, 337. 
 
 Thynne, Lady v. Earl of Glengall, 478. 
 
 Thorpe v. Freer, 542. 
 
 Tickle V. Brown, 186. 
 
 Tilsley, ex parte, 557. 
 
 Tipping V. Power, 565. 
 
 Titley V. Davies, 392, 429. 
 
 Tindal v. Cobham, 517. 
 
 Todd V. Gee, 459,499, 541. 
 
 V. Hoggart, 456. 
 
 Toft V. Stephenson, 114, 190, 198, 346. 
 
 Tomkins, ex parte, 37. 
 
 Tomlins v. Tomlins, 177. 
 
 Tomlinsont;. Manchester and Birminghai 
 Railway Company, 490, 517. 
 
 Toulmin v. Steere, 412, 430. 
 
 Tourville v. Nash, 390, 393. 
 
 Towgood, ex parte, 337. 
 
 Townley v. Bedwell, 122. 
 
 Townsend v. Champernowne, 131, 133, 
 470, 542,544, 547. 
 
 Townshend, Marquis of, v. Stangroom, 
 304, 483, 484, 488, 492, 542, 543. 
 
 Tracy Peerage, 178. 
 
 Trafford, ex parte, 338. 
 
 Trail v. Kibblewhite, 177. 
 
 Travis v. Collins, 454. 
 
 Trefusis v. Lord Clinton, 295, 566. 
 
 V. Clinton, 559. 
 
 Trevelyan v. Charter, 23, 377, 535. 
 
 Trimlestown, Lord,!'. Kemmis, 161. 
 
 Trinity House, Corporation of, ex parte, 
 
 337. 
 Trower v. Newcombe, 44. 
 Trulockt;. Robey, 192. 
 Tryon, in re, 201, 341. 
 Tulkt;. Moshay, 361. 
 TuUw. Owen, 197. 
 
 Tunstall v. Trappes, 232, 233, 400, 402. 
 Turner, in re, 21 A. 
 
 V. Doe dem. Bennett, 191. 
 
 V. Harvey, 46, 510. 
 
 V. Richardson, 37. 
 
 1>. Trelawny, 16,19, 23. 
 
 V. Wright, 519. 
 
 Turquand v. Vanderplank, 396". 
 
 Twentyman v. Barnes, 485. 
 
 Twigg V. Fifield, 567. 
 
 Twining?). Morrice, 90, 492, 504. 
 
 Twyford v. Trail, 530. 
 
 Twynam v. Pickard, 366, 386. 
 
 Twyne's Case, 425, 426. 
 
 Tylden v. Hyde, 285. 
 
 Tylee» Webb, 413. 
 
 Tyler v. Beversham. 304, 352. 
 
 Tyndale v. Warre, 556. 
 
 Tyrconnel, Earl of, v. Duke of Aiicaster, 
 
 56. 
 Tyrer v. King, 447.
 
 TABLE OF CASES. 
 
 xlix 
 
 Unilerhill, ear parte, 276. 
 
 Vale V. Davenport, 561. 
 Van V. Corpe, 54, 483. 
 Vancouver v. Bliss, 504, 539, 546. 
 Vandaleur v. Blagrave, 310. 
 Vane v. Lord Barnard, 282. 
 Vansittart v. Collier, 560. 
 
 I'. James, 560. 
 
 Vaughau v. Hancock, 96. 
 Vernon v. Keys, 46. 
 
 V. Thellusson, 560. 
 
 Vesey v. Elwood, 555. 
 Vickers v. Scott, 31. 
 
 Vigers v. Pike, 354, 380, 510, 512. 
 Vincent v. Going, 198, 555. 
 
 Wace V. Bickerton, 374. 
 
 Waddington v. Bristow, 94. 
 
 Wakefield v. Newbon, 204. 
 
 Wakeman v. Duchess of Rutland, 469, 
 
 537. 
 Waldron v. Forester, 295. 
 Walker, in re, 295. 
 
 V. Aston, 568. 
 
 V. Barnes, 70, 503. 
 
 V. Earl Beauchamp, 179. 
 
 V. Eastern Counties Railway Com- 
 pany, 98, 460. 
 
 V. Jeffreys, 210, 515. 
 
 V. Moore, 447. 
 
 V. Richardson, 321. 
 
 V. SmalvFood, 29. 
 
 Wall V. Bright, 124. 
 
 V. Stubbs, 510. 
 
 Wallis V. Harrison, 430. 
 
 M'alond v. Walond, 556, 557, 559. 
 
 Walsh V. Trevanion, 414. 
 
 Walsingham, Lord, v. Goodricke, 415. 
 
 Walter v. Maunde, 41. 
 
 Walters, in re, 342. 
 
 V. Jackson, 569. 
 
 V. Pyman, 530, 540. 
 
 Waltham, Lord, Case of, 523. 
 Walton V. Holt, 524. 
 
 V. Earl of Stamford, 417. 
 
 Walwyn v. Coutts, 420. 
 Warburton v. Farn, 35. 
 
 V. Loveland, 401, 402. 
 
 V. Sandys, 29, 290. 
 
 V. Vaughan, 538, 569. 
 
 Ward, ex parte, 2>\\. 
 
 V. Arch, 190. 
 
 V. Cooke, 556, 558. 
 
 V. Moore, 127. 
 
 V. Trathen, 149, 562. 
 
 Wardle v. Carter, 355, 357. 
 Waring v. Hoggart, 54. 
 Warn v. Bickford, 370. 
 
 Warren v. Richardson, 218, 531. 
 Waterford, Marquis of, v. Knight, 182. 
 Waters v. Groom, 18, 19. 
 Watkinsr. Cheek, 288. 
 Watling ». Horwood, 110. 
 Watt V. Evans, 478. 
 Watts, ex parte, 18. 
 
 V. Cresswell, 394. 
 
 —, V. Martin, 558. 
 
 V. Symes, 248, 430. 
 
 Watson V. Brickwood, 560. 
 
 V. England, 172, 174. 
 
 V. Reid, 515. 
 
 V. Toone, 17. 
 
 Way, ex parte, 272. 
 Webb V. Russell, 364. 
 Webber, ex parte, 271. 
 
 V. Jones, 568. 
 
 Webster v. Birchmore, 173. 
 Wedderburn v. Wedderburn, 26. 
 Wedgwood v. Adams, 492, 539, 545. 
 Welchman, in re, 341. 
 Welcome v. Upton, 161, 167, 185. 
 Wells, Dean and Chapter of, v. Dodding- 
 ton, 188. 
 
 in re, 340, 342. 
 
 West V. Reid, 158, 165, 406, 407, 411, 
 412. 
 
 W.Vincent, 559. 
 
 Westby v. Westby, 357. 
 Western v. Perrin, 542. 
 
 V. Russell, 103, 106, 499, 500, 
 
 510. 
 Wethered v. Wethered, 385. 
 Whaley v. Bagnel, 99, 478. 
 Whatman v. Gibson, 361. 
 Wheatley v. Slade, 499, 500. 
 Wheelers. Collier, 89,100. 
 Whichcote v. Bramston, 355. 
 
 V. Laurence, 25. 
 
 Whitbread v. Jordan, 151, 206, 317,409. 
 Whitchurch v. Whitchurch, 128. 
 Whitcomb v. Foley, 530. 
 
 V. Minchin, 18. 
 
 Whitcombe, ex parte, 341. 
 White V. Bartlett, 81. 
 
 1;. Cuddon, 49, 53, 65, 78, 463, 
 
 490, 502, 545. 
 
 V. Damon, 510, 511. 
 
 V. Foljambe, 261, 542. 
 
 V. Hill, 168. 
 
 V. Lisle, 167. 
 
 V. Proctor, 106. 
 
 . V. Wakefield, 350, 411. 
 
 V. Wilson, 560. 
 
 Whitmel V. Farrel, 497. 
 Whitworthi;. Gaugain,237, 325, 399. 
 Whittaker v. Whittaker, 530. 
 Whittle ». Henning, 464. 
 
 d
 
 TABLE OF CASES. 
 
 Wickham v. Evered, 517- 
 ■ — v. Hawker, 185. 
 
 •Wiggv. Wigg, 115,390. 
 Wiggins w. Lord, 81. 
 Wilcock V. Purchase, 173. 
 Wild V. Lockhart, 565. 
 Wilder. Gibson, 45, 354, 379, 380, 413, 
 » 472. 
 Wildgoose v. Wayland, 402, 403. 
 Wilding V. Andrews, 564. 
 
 V. Richards, 420. 
 
 Wilker v. Bodington, 392. 
 Wilkins V. Fry, 35. 
 Wilkinson, esc parte, 341. 
 
 V. Lloyd, 444. 
 
 V. Proud, 185. 
 
 ■ V. Torkington, 534. 
 
 Willan jj.Willan, 492. 
 Willatts V. Busby, 462. 
 Willcox V. Bellaers, 529, 542. 
 Willes V. Levett, 128. 
 Willey V. South-Eastern Railway Com- 
 pany, 225. 
 Williams, ex parte, 274. 
 
 ■ V. Attenborough,551, 557,559. 
 
 V. Bland, 158. 
 
 ». Carter, 495. 
 
 V. Edwards, 71, 88, 501, 541, 
 
 547. 
 
 V. Earl of Jersey, 395. 
 
 V. Lambe, 392. 
 
 V. Owen, 388. 
 
 V. Protheroe, 112. 
 
 V. Shaw, 472. 
 
 V. Teale, 535. 
 
 V. Wace, 563. 
 
 V. Wentworth, 4. 
 
 Williamson v. Seaber, 24. 
 Willis V. Brown, 320. 
 
 V. Hiscox, 276. 
 
 V. Willis, 437. 
 
 Willoughby v. Backhouse, 455. 
 
 V. Willoughby, 390,391. 
 
 Wills V. Stradling, 477, 478, 479. 
 Willson V. Leonard, 266. 
 Wilmot V. Pike, 229, 393. 
 Wilson V. Allen, 160, 544. 
 
 V. Clapham, 294, 306, 542. 
 
 . V. Fuller, 40, 380, 454. 
 
 ■ V. Greenwood, 550. 
 
 — — — V. Kearse, 11. 
 
 V. Knubley, 376. 
 
 • V. Rastall, 414. 
 
 ». Short, 113. 
 
 V. Tummon, 86, 87. 
 
 V. Wilson, 420. 
 
 Wiltshire v. Rabbits, 229, 393. 
 Winch V. Winchester, 308, 486, 542. 
 Winged v. Lefebury, 120. 
 
 Winter v. Lord Anson, 310, 345, 347, 
 348, 350, 370. 
 
 V. Blades, 297. 
 
 ■ V. Vizitelly, 545. 
 
 Winterbottom v. Ingham, 119, 120, 222, 
 
 448, 522, 523. 
 Wise V. Wise, 412. 
 Withy V. Cottle, 209, 460, 520. 
 Witty, ex parte, 27 L 
 Wollaston v. Hakewill, 153. 
 Wolseley v. Cox, 332. 
 Woodv. Abrey, 353, 355, 359. 
 
 V. Birch, 433, 434, 436. 
 
 V. Court, 130. 
 
 V. Dixie, 426. 
 
 V. Downes, 26. 
 
 V. Griffith, 501. 
 
 V. Harman, 291. 
 
 V. Lake, 92. 
 
 V. Lambirth, 272. 
 
 V. Marquis of Londonderry, 417, 
 
 419. 
 V. Machu, 212, 520. 
 
 V. Patteson, 2. 
 
 V. Waud, 184. 
 
 V. White 30 (misprinted Wood), 
 
 465, 467, 533. 
 
 Woodall, in re, 274. 
 
 Woodcock, in re, 274. 
 
 Woodhouse v. Jenkins, 369. 
 
 V. Meredith, 15. 
 
 Woodman v. Higgins, 205. 
 
 Woodroff V. Greenwood, 368. 
 
 WoodrofFe v. Allen, 355. 
 
 V. Titterton, 523. 
 
 Woods V. Woods, 390. 
 
 Woodward v. Miller, 50, 57, 89, 546. 
 
 Woollam V. Hearn, 483, 484, 486. 
 
 Wootton V. StefFanoni, 9. 
 
 Worley v. Frampton, 38, 78, 261. 
 
 Worrall v. Jacob, 420. 
 
 Worthington, m re, 271. 
 
 V. Morgan, 206, 317, 345, 
 
 408,409, 411,412. 
 
 i\ M'arrington, 446, 447. 
 
 Wray v. Steele, 435. 
 
 Wren v. Kirton, 557, 566. 
 
 Wright ?;. Burroughes, 386, 387. 
 
 V. Colls, 444. 
 
 V. Dannah, 83, 84. 
 
 V. Howard, 209, 504, 545. 
 
 . V. Maunder, 32, 35. 
 
 V. Smythies, 162. 
 
 V. Snowe, 395, 629, 643. 
 
 V. Wilson, 62. 
 
 Wrightson v. Hudson, 325, 400. 
 Wrixon v. Vise, 198. 
 Wyatt V. Barwell, 402. 
 Wyllie V. EUice, 427-
 
 TABLE OF CASES. 
 
 Wynn v. Morgan, 495. 
 Wynne r. Griffith, 132, 418. 
 
 V. Price, 459, 
 
 • V. Styan, 197. 
 
 V. Tyrwhitt, 150. 
 
 Wyvill V. Bishop of Exeter, 117, 544. 
 
 Yates V. Farebrother, 81. 
 Yeates, in re, 338. 
 
 York Buildings Company v. Mackenzie, 
 15, 23. 
 
 Yorke, ex parte, 18. 
 Young V. Guy, 87, 310. 
 
 V. Raiiicock, 253, 373. 
 
 V. Lord Waterpark, 191, 198- 
 
 V. White, 87, 310. 
 
 Younge v. Duncombe, 517. 
 Younghusband v. Gisborne, 238. 
 
 Zouch V. Parsons, 2, 5.
 
 ADDENDA ET ERRATA. 
 
 p. 3, n. (j), add, as a reference, " Wright v. Snowe, 2 De G, & S. 321." 
 P. 4, n. {g), add, "see also Price v. Berringlon, 7 Ha. 394." 
 P. 25, n. (a), for " Bower v. Evans," read " Bowen v. Evans." 
 P. 30, n. {p), for " Wood v. T^Foo<^," read " Wood v. FFAz7e." 
 P. 32, n. («), for " L. C." read " V. C. K. B." 
 P. 57, n. (y), for " Case" read " Cave." 
 P. 87, n. lb), for " 8," read " 9 Ves." 
 
 P. 95, n. (a), for " Haller v. Bunder," read " Hallen v. Runder." 
 P. 102, n. (o), for " 2 B. & Ad.," read " 2 B. & Cr." 
 P. 102, n. (0, for " 2 Bro. & P.," read " 2 Bos. & P." 
 
 P. 108, n. (rf), insert, as second reference, "Davidson v. Cooper, 13 Mee. & W. 343." 
 P. 109, in sixth line from bottom, for " 10th," read " 11th Oct." 
 P. 115, n. (c), for " 3," read " 1 Atk." 
 P. 115, n. (d), insert, as first reference, " 6 Ves. 352." 
 P. 129, in first marginal note, for " assignment," read " purchase." 
 P. 183, n. (e), for ''Fellows," read " Fellowes." 
 P. 186, n. (w), for " 2," read " 1 Cro. M. & R." 
 
 P. 226, add, as an additional paragraph, "It has been recently held that the 68th 
 section of the Lands Clauses Consolidation Act applies to the case of land of which the 
 company is in possession under the 85th section; Adams v. Blackwall Railway Com- 
 pany, 2 Mac. & G. 118.'' 
 
 P. 235, 12th line from top, add, as a reference to the word " tithes," " It has just 
 been decided by V. C. Rolfe that a registered judgment against a spiritual incumbent 
 operates, under this section, as a charge on the tithes and other profits of the living; 
 Hawkins \. Gathercole, 14 Jur. 1103." 
 
 P. 241, n. (w), insert, at end of note, " But the exception does not seem to extend to 
 terms for years in copyholds; Prid. on J. 3rd ed. 155." 
 P. 266, n. (o), supply reference, '"p. 314." 
 
 P. 269, the first three lines should be qualified as follows: "The vendor must, if 
 practicable, in person convey, or, as respects copyholds, surrender the property ; the 
 purchaser need not unnecessarily rely upon a power of attorney." 
 P. 274, n. (j), for " In re" read " Ex parte Williams.''' 
 
 P. 283, between first and second paragraphs, insert, " The 2 & 3 Vict. c. 11, s. 10, in 
 effect authorizes the Commissioners of the Treasury, upon payment of such suras into 
 the Exchequer as they may require, or on such other terms as they may think proper, 
 to issue a certificate discharging, as in favour of an actual or intended purchaser or 
 mortgagee and his represen*^atives, the lands, tenements, or hereditaments of a vendor, 
 who is a Crown debtor or accountant, from all subsisting and future liability to the 
 Crown, except, in the case of leases, in respect of the rents and covenants, &c. ; and, 
 under the 9th section, a quietus, when obtained by a Crown debtor or accountant, is to 
 be registered at the Common Pleas at Westminster." 
 
 P. 299, n. {e), " Elliott v. Turner, 477," insert " 13 Sim." 
 P. 313, n. (x) Add, as a reference, " Barry v. Marriott," 2 De G. & S. 491. 
 P. 319, n. (d), for " Hud. & Bro." read " 1 Hud. & Bro." 
 
 P. 326, n. (/t), the statement here referred to seems to have been corrected by Mr. 
 Tilsley in a second edition. 
 
 P. 328, after 17th line from top, insert, in continuation of the paragraph, " and the 
 result, it is conceived, must be the same, although the person holding the original 
 agreement be not made a party to the lease." 
 
 P. 332, in first marginal note, insert " not" after " But." 
 P. 337, n. (w), for " Ex parte Longfield," read " Ex parte Layfield." 
 P. 337, n. (a), add, " the transfer of purchase-money from the account of the Railway 
 Act to that of an administration suit, has been held to be a " payment out of Court," 
 within the 80th sect.. Dinning v. Henderson, 2 De G. & S. 485." 
 P. 413, in sixth line from bottom, insert " be" before " notice." 
 P. 415, n. (g), " Beadon v. King" is now reported, 17 Sim. 34. 
 P. 441, n. (/), add, as a reference, " Trench v. Harrison, 17 Sim. 111." 
 Pp. 465 and 471, Gaston v. Frankum is now reported, 2 De G. & S. 561. 
 P. 541, second marginal note, for "unsuccessful," read " successful."
 
 A COMPENDIUM, 
 
 &c. &c. 
 
 CHAPTER I. Chapter!. 
 
 AS TO RESTRICTIONS ON THE GENERAL CAPACITY TO BUY 
 OR SELL REAL ESTATE. 
 
 1 . As to who are genei'ally incompetent to sell. 
 
 2. Who are relatively incompetent to sell. 
 
 3. Jflio are generally incompetent to purchase. 
 
 4. Who are relatively incompetent to purchase. 
 
 1 HE questions who may sell^ and avIio may buy, real 
 estate, may be conveniently discussed, by assuming the 
 existence of a general capacity to enter into the relation of 
 vendor or purchaser ; and by then treating of the excep- 
 tions to the general rule. 
 
 Incapacities to sell or buy, may be considered as of two Joseiior bu* 
 descriptions ; 1st, such as depend on some circumstance ^^^ 
 personal to the proposed vendor or purchaser, and affect- 
 ing his general capacity to buy or sell any real estate : general 
 and, 2ndly, such as depend on the relation in which he or relative, 
 stands to the particular property proposed to be sold or 
 bought ; or to the party with whom he purposes to deal. 
 
 (1.) As to incapacities to sell of the 1st description. 
 
 A proposed vendor, although having a good title to, and ^^^^^^^^° 
 being the absolute owner of property, and standing in no peSfo™" 
 
 B ^^"-
 
 RESTRICTIONS ON GENERAL CAPACITY 
 
 Chapter I. 
 
 Infants. 
 
 Estates of, 
 cannot be 
 sold by tbe 
 Court, ex- 
 cept under 
 special cir- 
 cumstances. 
 
 But they 
 may convey 
 under Sta- 
 tute. 
 
 And are 
 empowered 
 by Statute to 
 sell for cer- 
 tain special 
 purposes. 
 
 May exer- 
 cise collate- 
 ral power. 
 
 And may 
 sell under 
 custom of 
 gavelkind. 
 
 situation of trust towards the proposed purchaser^ may yet 
 be under some personal incapacity, which may prevent a 
 sale : that is to say, he may be, 1st, An infant : if so, he 
 can, as a general rule, execute no conveyance wliich will 
 bind, either liimself when he comes of age, or his heirs in 
 the event of his dying, either under age, or of full age, but 
 without having (in those cases which admit thereof) con- 
 firmed the transaction (a) . 
 
 Nor has a Coiu't of Equity any authority to sell the real 
 estate of an infant, under the mere notion that a sale will 
 be beneficial {b). 4£t. i^-««-4A* %-dtfJU^ f^ ^€4A^i4rh (X&^tk 
 
 But, by Statute, in particular cases, infants holding 
 land in trust, or subject to the debts of their ancestor or 
 testator, are enabled to convey, mider the authority of the 
 Court of Chancery (c) ; and, in various special cases, 
 infants, or their guardians, are enabled, by Statute, to sell 
 and convey land for purposes connected with religion [d], 
 instruction (e), or works of a public nature. 
 
 So, an infant can convey under a power simply collate- 
 ral (/), but he cannot be empowered, at least as against 
 himself, to contract for the sale of land, or to do any other 
 act which requires an exercise of discretion. 
 
 But, by the custom of gavelkind, an heir at the age of 
 15, may, for valuable consideration, sell, and convey for an 
 estate in possession, lands which he took by descent ; the 
 
 (a) 4 Bac. Abr. 360, et seq. ; any 
 deed which takes effect by delivery, is, 
 if executed by an infant, voidable 
 only ; but Letters of Attorney, and 
 deeds which delegate a mere power, 
 and convey no interest, are absolutely 
 void ; Zouch v. Parsons, 3 Burr. 
 1794; Jnon. v. Handcock, 17 Ves. 
 383 ; Allen v. Allen, 2 Dm. & War. 
 307. 
 
 {h) Calvert v. Godfrey, 6 Beav. 
 97 ; and see Wood v. Patteson, 10 
 
 Beav. 541 ; as to a sale under spe- 
 cial circumstances, see Garmstone v. 
 Gaunt, 1 Coll. 577. 
 
 (c) Vide infra, Ch. XIII. and 
 XIX. 
 
 (rZ) See, for a list of the Church 
 Building Acts, the preamble to 3 & 4 
 Vict. c. 60. 
 
 (e) See 4 & 5 Vict. c. 38 ; and 6 
 & 7 Will. IV. c. 90. 
 
 (/) 1 Sug. Pow. 211, 7th edit.
 
 wliat relief 
 against, in 
 equity. 
 
 TO BUY OR SELL REAL ESTATE. 3 
 
 conveyance being by feoffment^ and livery of seisin being Chapter i. 
 delivered by him in person {y) . 
 
 An infant_, however, has no privilege to commit a s^^g^f"^®*^* 
 fraud {h) : if, therefore, he were to sell and convey, assert- 
 ing that he had attained his majority, it is conceived that 
 the purchaser would, in Equity, be entitled to the protec- 
 tion of the legal estate, (supposing him to have acquired 
 it ;) and that, if the infant, (supposing him to have the 
 legal estate,) were to proceed at Law to recover the pro- 
 perty, Equity would restrain the action, except upon the 
 terms of his refunding the purchase-money ; for instance, 
 where an infant received a premium for a lease of his 
 lands, upon his false assertion that the lessor was his 
 guardian, Lord King decreed a retm^n of the premium 
 with interest ii) . It has, however, been held that, in order There must 
 
 ^ ' _ _ be misrepre- 
 
 that Equity may interfere, there must be something equi- sentation. 
 valent to misrepresentation on the infant's part ; and that 
 the mere fact of his entermg into a transaction which 
 could be vahd only if entered into by an adult, is not such 
 a fraud as entitles the other party to relief {j) . 
 
 By the 53 Geo. III. c. 141, s. 8, aU contracts for the ^^j^yl?"^- 
 sale of any annuity or rent-charge by an infant are de- by"isVow^by 
 
 . -, . -, Statute. 
 
 clared utterly void, notwithstandmg any attempted con- 
 firmation after majority : and the intended purchaser is 
 made guilty of a misdemeanor. 
 
 Or, 2ndly, The proposed vendor may be a lunatic or Lunatics. 
 idiot : in which case, according to the early authorities, his ^^w fa/' 
 conveyance may be set aside by his Committee, or his heirs abie."'^^'" " 
 after his death : yet he himself, though he recovered his 
 senses, was said to be unable to avoid it {k) ; at least if 
 
 {g) 4 Bac. Abr. pp. 49, 50. This (i) Enron v. Nicholas, 1 De G. & .S. 
 
 customary feoifment is excepted from 118. 
 
 the 8 & 9 Vict. c. 106, s. .3. {j) Stikeman v. Dawson, 1 De G. 
 
 (h) Chambers on Infancy, 412 ; & S. 90. 
 
 and see Overton v. Banister, 3 Hare, (k) Beverley's case, 4 Rep. 123 6. 
 503. 
 
 b2
 
 RESTRICTIONS ON OENERAL CAPACITY 
 
 C'i"pter I. made by feoffment, with livery of seisin delivered by him 
 in person (/) : it has, however, been held, that a Bargain 
 and Sale, Lease and Release, or other innocent conveyance 
 by a lunatic, is absolutely void (m) ; and the 8 & 9 Vict. c. 
 106, s. 4, which deprives a Feoffment of its tortious opera- 
 tion, would appear to render such a conveyance by a 
 lunatic equally inoperative; the rule, however, against a 
 party being allowed to stultify himself, would not prevail 
 in Equity [n), nor, according to the modern authorities, at 
 Law (o), in favour of a purchaser who had knowingly dealt 
 with an incompetent vendor. While, on the other hand, 
 it has been held, at Law, in a very recent case, that where 
 a person, apparently of somid mind and not known to be 
 otherwise, enters into a contract which is fair and bond 
 fide, and which is executed and completed, and the pro- 
 perty, the subject-matter of the contract, cannot be re- 
 stored so as to put the parties in statu quo, such contract 
 cannot afterwards be set aside, either by the alleged 
 lunatic or his representatives {j)) : and such seems to be 
 the present doctrine of the Courts of Equity [q) . 
 
 And if a lunatic levied a Fine or suffered a Recovery in 
 person, the conveyance was held to be good (/•) : but, of 
 
 Or disentail- coursc, uo similar result would noAv be attained by his 
 
 ing as'sur- '' 
 
 anceby. executing an assurance under the Fines and Recoveries 
 
 Abolition Act. 
 statutnijr Aiul, iu various special cases, Committees of Lunatics 
 
 Fine or re- 
 covery. 
 
 (/) Thompson v. Leach, Comb. 
 468 ; Beverley's case, 2ibi supra. 
 
 (m) 2 Sug. Pow. 179, 7th edit. 
 
 (m) Shelf, on Ijunacy, 350. 
 
 (o) Moll on V. Camroux, 2 Exch. 
 Rep. 487, 501 ; .S". C, in error, 18 
 L. J., N. S. Exch. Cham. 356, and 
 cases cited. 
 
 (/,) S. C. 
 
 (q) Niell v. Morley, 9 Ves. 4 78; 
 
 Williams v. Wentworth, 5 Beav. 
 325 ; Selby v, Jackson, 6 Beav. 192 ; 
 Aff. on Appeal, p. 204. 
 
 (r) See Shelf, on Lunacy, p. 316, 
 et seq. ; Murley v. Sherren, 8 Ad. 
 & E. 754 ; but as to the deed making 
 the tenant to the prjecipe, and the 
 declaration of uses (if any) being 
 affected by the Lunacy, see 3 Atk. 
 313.
 
 TO HUY OR SELL REAL ESTATE. 
 
 are, as are infants {s), enabled by Statute^ to sell and ^''"^''^'■•'' ^- 
 
 1 1 power of 
 
 convey land. committees. 
 
 Or, Srdly, The proposed vendor may be a married ^'o^^'i"n'^can 
 woman; in which case she may, with her husband, convey oniy'coTivty 
 her freehold estates under the Fines and Eecovcries Aboli- wiii. iv. c. 
 
 74. 
 
 tion Act; but any other conveyance executed by her is, 
 at Common Law, absolutely void {/) : her copyhold estates 
 will pass by her sui'render with her husband's concurrence ; 
 or, if her interest be merely equitable, either by such a 
 surrender or by deed acknowledged under the Act ; and 
 her legal terms for years will pass by the sole assignment 
 of her husband {u) ; though whether they will be bound by 
 his contract, in the event of his death in her lifetime and 
 before conveyance, seems to be doubtful (v) : as respects 
 her equitable terms for years, it would appear, that in 
 order to perfect the title, she must join in and acknoAv- 
 ledge the assignment (w) . 
 
 And although the legal and equitable fee simple may be ^^1X4^^^;.*^^ 
 vested in a married woman, she and her husband may, Ift'ilougii tiie 
 nevertheless, be unable effectually to assure it to a pur- be ghen^ to*" 
 chaser ; for where the property has been acquired under a 
 will or settlement which forbids alienation during cover- 
 ture, such restriction is binding, although no trustee be in- 
 terposed (a?). 
 
 But a married woman may, in exercise of a power, pass, fn^g^^grcigg^ 
 either a legal estate, by limitation of an use, or an equit- "fa power. 
 able estate: and she has always an imphed power to of'|y,''ig'j;'^'' 
 dispose of, as if she were single, her equitable interest in [^.ot rg!^'"' 
 property settled to her separate use with no restriction from a'luici. 
 upon alienation {y) . 
 
 (s) Supra, p. 2. (m') See Hamon v. Keathifj, 4 
 
 (0 Burton's Comp. pi. 206 ; see Hare, 1. 
 
 judgment in Zo?«eA v.P«r*o'/is, 3 Burr. (r) Bnyyeif v. Miiuv, 1 Pli. G27 ; 
 
 1805. Steedman v. Poole, G Hare, li).'}. 
 
 (m) Burton's Comp. pi. 893. (y) 1 Sug. Pow. 206, 7th edit.; 
 
 (/') Infra, {:\\. XVllI. Viiidors, 230; and see also, infin,
 
 RESTRICTIONS ON GENERAL CAPACITY 
 
 Chapter I. 
 
 Relief 
 against frau- 
 dulent Bale 
 by. 
 
 Traitors, 
 felons, &c. 
 
 Bankrupts 
 and insol- 
 vents. 
 
 Power given 
 to incapaci- 
 tated own- 
 ers by Lands 
 Clauses Con- 
 solidation 
 Act, 1845. 
 
 The observations already made {z) upon fraudulent sales 
 by an infant^ apply, it is conceived, to similar transactions 
 by a married woman («) . 
 
 Or, lastly ; The proposed vendor may have been guilty 
 of treason, or murder, either as principal or accessory be- 
 fore the fact (b) ; and have thereby subjected his land to 
 forfeitiu'c, and escheat, upon his attainder (c), that is upon 
 sentence of death being passed upon him {d) ; or of any 
 other felony punishable with death, attainder upon which 
 involves forfeiture during life (e) : or he may have incurred 
 a Praemunire (/) ; and in any of these cases, or at least 
 in any of the first three, his conveyance, although bond 
 fide, for valuable consideration, and to a purchaser vdih- 
 out notice, is subject to the inchoate rights of the Crown, 
 or the Lord of the fee [g] . In these cases, however, that 
 which we have, for convenience, referred to as an in- 
 capacity to sell, is, in strictness, a mere want of title as 
 against the Crown or Lord of the fee : Leaseholds of 
 traitors and felons are forfeited to the Crown upon con\dc- 
 tion (h) ; but, of these, a bond fide sale between the crime 
 and the conviction, will, it seems, be good (i) . So, the 
 incapacities of bankrupts and insolvents to sell, depend 
 merely upon their want of title as against their assignees. 
 
 And, with reference to incapacities to sell both of the 
 1st and of the 2nd descriptions, we may here refer to the 
 general consolidating Act of the 8 Vict. c. 18; which 
 enables incapacitated owners, or owners of pai-tial estates. 
 
 Ch, XVIII. as to contracts for sale 
 by married women. 
 {£) Supra, p. 3. 
 
 (a) See Jones v. Kearney, 1 Dru. 
 & War. 134 ; Savage v. Foster, 9 
 Mod. 35; and 6 Ves. 181. 
 
 (b) 54 Geo. III. c. 145; 9 Geo. 
 IV. C.31, 9. 2. 
 
 (c) 3 Bac. Abr. 7:^8. 
 
 (rf) 4 Jarm. Conv. by S. 74. 
 
 (e) 4 Bl, Com. 385, and 54 Geo. 
 III. c. 145. 
 
 (/) 16 Ric. II. c. 5. 
 
 {g) See Grosse v. Gayer, Cro. Car. 
 172 ; 6 Bac. Abr. 383 ; 4 Jarm. Conv. 
 by S. 75. 
 
 (//) 4 Bl. Com. 388. 
 
 (/) Ibid.
 
 TO BUY OR SELL HEAL ESTATE. 
 
 to sell land to the promoters of imdertakings authorized chapter i. 
 by Acts in which the general Act is incorporated [j). /• 
 
 (2.) As to incapacities of the 2nd description ^reV°r'"° 
 
 lively in- 
 corn])etent 
 to sell. 
 
 affecting vendors. 
 
 These may be considered to consist of, 1st, the want y'irsons\v^\- 
 
 '' ' ' ingnotrans- 
 
 of a transferable (k) title to the property proposed to be ^'^^^^^^ title. 
 dealt with ; and, 2ndly, the existence of some relation on gt^^j^JJl i^ 
 the part of the proposed vendor to the purchaser wliich relation 
 
 . 1 ,1 . 1 . • /. towards the 
 
 prevents a sale except under sj)ecial precautions ; tor proposed 
 
 . purchaser, 
 
 instance, an agent tor pui'chase cannot sell his OAvn estate which se- 
 
 . . . . . cures undue 
 
 to his principal^ without acquainting him with the facts (/) ; personal 
 and, as a general rule, whenever such a relation subsists 
 between the contracting parties as may enable one to 
 exercise an undue influence over the other, whether it be 
 that of guardian and ward, solicitor and client, trustee and 
 cestui que trust, medical man and patient, spiritual adviser 
 and penitent, or the like, the Court, upon proof of the 
 exercise of such undue influence, will set aside the 
 transaction, and will consider the circumstance of the real 
 facts not being stated on the face of the assurances to be 
 in itself prima facie e\ideucc of fraud (w). 
 
 (j) See sects. G, 7, et seq. that they were beneficial for the 
 
 (/t) See Att.-Gen. v. Corporation Charity : vide infra, Ch. XIX. 
 
 of Plymouth, 9 Beav. 67; where See 4 & 5 Vict. c. 35, s. 92, 
 
 a corporation was held incapable removing a customary restriction 
 
 in Equity of contracting to sell which, in some manors, prevented 
 
 property, by reason of a duty which the alienation of ancient copyhold 
 
 it owed in respect thereof to the tenements in portions, 
 
 public. As to the alienation of (0 Gillett v. Peppcrcorne, 3 Beav. 
 
 Charity lands by Trustees, see Jtt.- 78. 
 
 Gen. V. Corporation of Newark, 1 (w) See Mulhallen v. Marurn, 3 
 
 Hare, 395; Att.-Gen. v. Bret ting- Dru. & War. 317 ; Ahearnev. Ilogan, 
 
 ham, 3 Beav. 91 ; Att.-Gen. v. South 1 Dru. 310 ; Gibson v. Rmsell, 2 
 
 Sea Company, 4 Beav. 453 ; and Y. & C. C. C. 104 ; Hatch v. Hatch, 
 
 cases cited : such alienations are not 9 Ves. 292 ; Huguenin v. Baselcy, 
 
 necessarily void, but it lies on the 14 Ves. 273; Dent \. Bennett, A M^\. 
 
 parties claiming under them to show Si Cr. 269 ; Harvey v. Mount, 8 Beav.
 
 o RESTRICTIONS ON GENERAL CAPACITY 
 
 Chapter I. 
 
 As to who (3.) As to incapacities of the 1st description 
 
 are gene- 
 rally incom- affectinc/ purchasers. 
 
 petent to ,u u i 
 
 purchase 
 
 huiV'*^^'^ Piircliasers must^ necessarily, be either indi\iduals or a 
 
 Corpora- Corporation : corporations, of whatever description, may 
 
 tions canuot 
 
 ahc n'^''°"* purchase, but cannot, in their corporate capacities, hokl 
 lands, except under a licence to hold in mortmain (w) or 
 the special provisions of an Act of Parliament, 
 an'uniifcor'-^ Purchascs by individuals (who are imincorporated) must 
 ckiss'of per- ^^G made by them in their piivate capacities and individual 
 names : e.g. ■& purchase by, eo nomine, the inhabitants of a 
 place, or the parishioners or churchwardens of a parish, is 
 bad ; so is a similar pm-chase by, or grant to, the com- 
 moners of a waste (o) . 
 wrpOT^'tfons ^^^, by custom, in London and some other places, the 
 chase'?" parsou and churchwardens are a coi'poration to purchase 
 land {p) ; and so, by Statute, are chm-chwardens and 
 overseers generally in some matters relating to the Poor 
 Laws {q) , and to Education (/•) . 
 Kjunoriioid ^^ alien, before denization, can piu'chase ; but, upon 
 by a*^trustee. officc found, thc land bclougs to the Crown {s) ; and the 
 Crown can claim land vested in trustees for an ahen {t) ; 
 but not any part of the produce of sale of real estate, 
 de\ised in trust to sell and to divide the purchase-money 
 among aliens [u) . 
 Leases to, Tlic claim of tlic Cro^Ti extends to terms for vears [v] ; 
 
 were for- - \ J > 
 
 meriyvoid. ^^^^ imtil recently, the only exception was of leases of 
 
 439 ; and cases therein respectively Aleyn, 14. 
 
 cited. (if) 1 Beav. 90 
 
 (w) Co. Litt. 2 b. {u) Du Hourmeliu v. Sheldon, 4 
 
 {(>) Co. Litt. 3 a. Myl. & Cr. .125 : and see p. 530, as 
 
 (y;) Note 4 to Co. Litt. 3 a. to distinction between that case and 
 
 (y) 9 Geo. I. c. 7, s. 4 ; Su?. 883. Fourdrin v. Gowdei/, 3 Myl. & K. 
 
 (r) Jointly with the minister ; see 383. 
 
 ■1 & 5 Vict. c. 38, s. 8. (v) Co. Litt. 2 b ; Rex v. East- 
 
 {s) Co. Litt. 2 b; Rex v. Holland, bourne, 4 East, 107.
 
 TO BUY OR SELL REAL ESTATE. 9 
 
 habitations of alien merchant fnciids during their hves Chapter i. 
 and residence Avithin the realm {w) ; but leases, or agree- 
 ments for a lease {x), to aUen artificers or handicraftsmen, 
 were, prior to the 7 & 8 Yict. c. 66, absolutely void; 
 although an assignment to an alien artificer of a subsisting 
 lease has been held valid (?/) : by the above Act, however. Exception 
 
 y-J I J ' ' under 7 & 8 
 
 a resident alien friend may hold any lands, houses, or J/ ^* y,,^^^, 
 other tenements, for the pui'pose of residence, or of p'i^emlses cor 
 
 ,,. ■,{, 1- . r l^ resideuce or 
 
 occupation by liimseli or his servants, or tor the purpose trade, 
 of any business, trade, or manufacture, for any term not 
 exceeding twenty-one years, as if he were a natural-born 
 subject {z). 
 
 By the Acts of 7 Anne, c. 5, 4 Geo. II. c. 21, and 13 .^i^''^""- 
 
 '' • } } } tied as a 
 
 Geo. III. c. 31, the children of a male British-born subject, "uSto"''* 
 or of his son, are, mth certain special exceptions (a), to be 
 considered natural-born subjects ; and, by 7 & 8 Vict. c. 66, 
 the cliild born of a British mother out of the Queen's 
 allegiance, is rendered capable of holding land [b) . 
 
 After denization, the ahen can both purchase and bene- ^^[^^f'""' 
 ficiaUy hold land ; and is entitled to land pm'chased before 
 denization, if the Crown, before office found, has, by the 
 letters patent of denization, confirmed his estate (c) . 
 
 Naturalization, for the purpose of holding land, could J^^^'^^jj^f" 
 formerly be obtained only by a special Act of Parlia- ^^^ ^ ^ *''^- *'■ 
 ment [d) ; but, under the provisions of the 7 & 8 Yict. 
 c. 66 (e), any resident alien may petition the Secretary of 
 State for the home department for a certificate of naturali- 
 zation; upon obtaining which, and taking the oath of alle- 
 giance required by the Act, the alien, (so far as the posses- 
 
 {w) 32 Hen. VIII. cb. 16, s. 13. Fitch v. Weber, 6 Hare, 51. 
 
 (.r) Lajrkrre V. M'lntosh, 1 Per. {h) Sect. 3 of Act. 
 
 (N Dav. G29 ; 9 Ad. & E. 857. {c) Fourdrin v. Gowdey, 3 Myl. 
 
 {ij) Woottou V. Steffenoni 12Mees. & K. 383. 
 & W. 129. {d) As to naturalization in the 
 
 (-) Sect. 5 of Act. Colonies, see 10 & 11 Vict. c. 83. 
 
 {(i) As to which, see the Act.s, and {e) See sect. 6, et seq.
 
 10 
 
 RESTRICTIONS ON GENERAL CAPACITY 
 
 Chapter I. 
 
 Marriage of 
 female alien 
 to a natural- 
 born subject. 
 
 Infant pur- 
 chasing may 
 elect when 
 he comes of 
 age. 
 
 What 
 amounts to 
 confirma- 
 tion. 
 
 I Fe may be 
 bound by 
 simple ac- 
 quiescence. 
 
 What time 
 allowed for 
 election. 
 
 sion and enjoyment of property are concerned, and subject 
 to any special exceptions contained in the certificate), 
 acquires all the rights and capacities of a natural-bom sub- 
 ject : a female alien, upon marriage to a natural-born or 
 natiu-aHzed subject, becomes herself naturahzed (/) ; but 
 this provision does not apply where the woman died before 
 the passing of the Act {g) . 
 
 An infant can purchase ; but, on his attaining twenty- 
 one, he may, at his option, adopt or abandon the con- 
 tract (A) ; and should he, either having attained twenty- 
 one die without agreeing to it, or die under that age, the 
 like privilege descends on his representatives. 
 
 Any written instrument signed by the infant after at- 
 taining majority amounts to a ratification, if of such a 
 nature as, if signed by an adult, would amount to an adop- 
 tion of the act of a party professing to act as his agent (i) : 
 and where a written ratification is proved, it hes on the 
 infant to show, if he can, that, at the time of giving it, he 
 had not attained majority (J) . 
 
 And it is not essential that there should be any express 
 ratification ; mere acquiescence may suffice : for instance, 
 occupation, or receipt of the profits by the infant, without 
 dissent, for a short time after attaining his majority, would, 
 it is conceived, be a confirmation of the transaction by 
 election {k) : but in order to sustain an action for the pur- 
 chase-money, there must be a ratification in writing (/) . 
 
 No precise rule can be laid down as to the time within 
 which the infant, after attaining majority, must make his 
 
 (/) Sect, 16. 
 
 (ff) Count De JVall's case, 12 
 Jurist, 145. 
 
 (A) Ketsey's case, Cro. Jac. 320 ; 
 Co. Litt. 2 b. 
 
 (J) Harris v. Wall, 1 Exch. Rep. 
 122. 
 
 {j) Hartley v. Wharton, 3 Per. 
 
 cSc Dav. 529. 
 
 {k) See Sug. 884 ; 8 Taunt. 42 ; 
 Cork and Bandon Railway Company 
 V. Cazenove, 1 1 Jur. 802 ; and Newry 
 and Enniskillen Raihvay Company v. 
 Coomht', 3 Excb. 716. 
 
 (/) 9 Geo. IV. c. 14, s. 5.
 
 TO BUY OR SELL REAL ESTATE. 11 
 
 election ; it appears, however, that an unexplained acquies- chapter i. 
 cence of three or fom- months {m), or, prohably, a shorter 
 period (n), in the case of a pui'chase, Avoiild amount to 
 acquiescence ; a fortnight would, it appears, be a reason- 
 able time in which to elect (o) . 
 
 And, although the infant may abandon the conti'act, and ^*eTOvw 
 thus relieve himseK fi'om all unsatisfied liabihties under it, tfon^mo^ney. 
 he cannot, it is said, recover money which he has actually 
 paid, unless such payment w^ere procured by fraud [p] ; and 
 his Luability to restore the consideration^ would be an addi- 
 tional bar to the action ; for instance^ where an infant paid a 
 premium for a lease of business premises, and entered upon 
 and occupied them, it was held, upon his attaining majority 
 and repudiating the lease, that, whatever might be the 
 general rule, he could not, under the circumstances, recover 
 the premiiun, inasmuch as he had enjoyed a part of that 
 term for which it formed the consideration {q) ; and 
 although, upon the purchase of the fee simple, the same 
 decisive effect might not always be attributable to mere 
 occupation (r), it is conceived, that any act affectiag the 
 value of the estate, e. g., the feUing of ornamental timber, 
 or the removal or alteration of buildings, &c., would be 
 conclusive agaiust his right to reclaim the purchase-money. 
 
 If, however, the infant had fraudulently represented Fraudulent 
 
 ' ^ ./ i purchase by, 
 
 himself to the vendor as an adult, it is conceived that J^fn^^^ 
 Equity would reheve the vendor by restraining any action ^i'^'*^- 
 for a retm-n of the pm'chase-money, (supposing such an 
 action to be maintainable,) and would allow the vendor 
 to avail himself of any collateral secm-ities which he might 
 hold for the payment of the unpaid part of the purchase- 
 
 {m) Ketsey's case, Cro. Jac. 320. Chambers on Infancy, 431. 
 
 («) See judgment in Holmes v. (q) Holmes v. Blo(/(/, S Taunt. 
 
 Blof/(/, 8 Taunt. 42 ; Park, J. 508. 
 
 (o) 2 Durn. & E. 4.39. (>•) See however Blackburn v. 
 
 {p) Macph, on Infants, 484 ; Wil- Smith, 2 Exch. R. 783. 
 son V. Kearse, 2 Pea. Ca. 19fi ; see
 
 12 RESTRICTIONS ON GENERAL CAPACITY 
 
 Chapter I. money ; but it could not enforce any secimty given by the 
 purchaser personally dming his infancy ; such being abso- 
 lutely void (s) . 
 Purchase by A Kuiatic or idiot may purchase : and according to the 
 
 luiiatie, how '' ^ *-' 
 
 far voidable, garly authorities, cannot himself, though he recover his 
 senses, avoid the transaction : but it may be set aside by 
 his Committee after inquisition ; or by his representatives 
 after his decease, in any case except that of his ha-sing re- 
 covered his senses and agreed to the purchase (/) ; the 
 present doctrine of the Courts seems, however, to be in 
 accordance with what has been already stated with respect 
 to contracts for sale by kmatics (?/) ; in a modern case, a 
 purchase of an estate in consideration of the release of a 
 bond debt, was set aside at the suit of a legatee of the bond 
 debt(?;). 
 
 Purchase by A married woman may purchase ; and, if she have sepa- 
 
 married wo- 
 man void- i-ate property, she can, and perhaps even though she do 
 
 not refer to it, bind it by a contract for pui'chase {w) : in 
 
 other cases the purchase may be annulled by the husband; 
 
 and the purchase-money may be recovered by him in 
 
 trover, unless she pui'chased by his avithority {.x) ; or it 
 
 may be annulled by herself after his death, although he 
 
 may have agreed to it ; or by her representatives, imless 
 
 she agreed to it after her husband's decease (y) . 
 
 May be con- The general rules above referred to, respecting acquies- 
 
 acquies- ccucc by ail infant after majority, will, it is conceived, 
 
 apply to the case of a married woman holding oAcr after 
 
 the termination of the coverture; and, in the case of a 
 
 pm'chase by a married woman representing herself to be 
 
 (») Chambers on Infancy, 444. and see S. C, as to evidence of in- 
 
 (t) 2 Bl. Com. 292 ; Shelf, on sanity. 
 Lunacy, 347. (m') Sug. 885 ; t^ide infra, Ch. 
 
 (u) Supra, p. 4 ; see Molton v. XVIII. 
 Camroux, 2 Exch. R. 487 ; S. C. (jc) Garbrand v. Alien, ] Ld. 
 
 (in error) 18 L. J., N. S. Exch. 356. Raymond, 224. 
 
 (/•) Steed V. Calley, 1 Keen, 620; (//) Sug. 885; Co. Litt. Zn.
 
 TO nUY oil SELL HEAL ESTATE. 13 
 
 sin£i;lc, or who, coiiti'actiu}^ jis if single, lias so dealt with 52'"' ''^'^'^Jl 
 the property as to prevent its perfect restoration in specie, puj't'hii's.^^by, 
 Equity would, it is conceived, secure to the vendor all his against. 
 legal rights^ and would restrain the exercise of any adverse 
 legal right either by the married woman or her husband, 
 (supposing him to have been privy to the fraud) . 
 
 Roman Catholics were formerly subject to disabilities in JJat'lJoiic.- 
 this respect, which have been removed by a modern sta- 
 tute {z) . 
 
 Persons auilty of the crime of treason, or felonv, or who Traitors, 
 have incurred a Praemunire, may, before judgment, pur- 
 chase land; but, upon judgment, it will be subject to the 
 rights of the Lord of the fee, or of the Crown : purchases by 
 such persons after judgment are subject to the same rules 
 as purchases by aliens before denization («) ; the capacity 
 of a felon sentenced to transportation, is not restored until 
 the term of transportation has expired {b) . 
 
 So, upon a purchase by a bankrupt before obtaining his r.ankrupts 
 certificate (c) ; or by an insolvent under the 1 & 2 Vict, ''''"f'' 
 c. 110 id), before his final discharge; or by an insolvent 
 under the 5 & 6 Vict. c. \lQ{e), before his debts are paid 
 in fall, the land vests in the assignees ; and, according to 
 the Law as it existed before the passing of the recent 
 Bankruptcy Law Consolidation Act, where the bankrupt's 
 estate had not paid 15«. in the pound, and he had pre- 
 \dously been bankrupt or discharged under an Insolvent 
 Act, or had compounded with his creditors, the rights of 
 
 {z) 10 Geo. IV. c. 7. As to the now 12 & 13 Vict. c. 106, sect. 142. 
 position of Roman Catholics with {(l) See sect. 'M . 
 
 reference to land devoted to religious (e) See sect. 7. Insolvent debtors, 
 
 or charitable purposes, see 2 & 3 under the 7 & 8 Vict. c. 70, seem to 
 
 Will. IV. c. 115, and Anstey on have been in the same position, as 
 
 Roman Catholics, p. 128, e/ spy. regards after-acquired property, as 
 
 (a) Co. Litt, 2 b. ; Sug. 884. Bankrupts : see sects. 8 and 13. 
 
 (6) Roberts \. WalJcer, 1 Russ. & Query as to the effect of the new 
 
 Myl. 752. Bankruptcy Act upon the rights of 
 
 (e) See 6 Geo. IV. c. 16 ; and see assignees under the 7 & 8 Vict.?
 
 14 RESTRICTIONS ON GENERAL CAPACITY 
 
 Chapter T. thc Assignees were not affected by his certificate (/) : the 
 
 recent Act, which repeals the Statute of Geo. IV., does 
 
 not seem to contain any similar provision ; but it provides, 
 
 That if any Assignee indebted to the estate of which he is 
 
 such Assignee, in respect of money being part of the 
 
 estate of the bankrupt retained or employed by him, 
 
 become bankrupt, and obtain his certificate, it shall have 
 
 the effect only of freeing his person from arrest and 
 
 imprisonment, but his future effects (except tools, &c.) 
 
 shall remain liable for so much of his debt to the estate of 
 
 which he was Assignee as shall not be paid by dividends 
 
 under his bankruptcy, and for interest at the rate of five 
 
 per cent, per annum on the whole debt {g) : and it also 
 
 contains clauses, which enable any creditor or Assignee of 
 
 a bankrupt, to apply for the recall of the certificate on 
 
 good cause shown at any time within six months after 
 
 its allowance (/«) ; or at any subsequent period, in case the 
 
 same shall appear to have been obtained on false evidence, 
 
 or by reason of an improper suppression of evidence, or 
 
 otherwise by means of fraud {i) . 
 
 Insolvent. And, in the case of an insolvent under the 1 & 2 Vict. 
 
 c. 110, although property acquired by him after his final 
 
 discharge does not vest in his Assignees, it still remains, 
 
 until his debts are paid in full {j), subject to the judgment 
 
 which is directed by the 87th sect, to be entered up against 
 
 him. 
 
 (/) 6 Geo. IV. c. 16, s. 127. {h) Sect. 203. 
 
 (g) See 12 & 13 Vict. c. 106. s. (0 Sect. 207. 
 
 156. U) See sect. 92.
 
 TO BUY OR SELL REAL ESTATE. 15 
 
 Chapter I. 
 (4.) As to incapacities of the 2nd description ab to who 
 
 /v. ,. , are rela- 
 
 affectwff purchasers. tiveiy in- 
 
 coni]>etont 
 
 The remarks wliicli we have already made (A-), as to *° «^"'"'='"''''*'- 
 undue personal influence, seem to be as applicable to 
 pm-chasers as to vendors. 
 
 It is also a general rule in equity, that no person " who ,^^[^""1 
 by being employed or concerned in the afi'airs of another charlcter. 
 has acquired a knowledge of his property" {/), or who, in 
 respect of the property to be sold, has a duty to perform 
 which is inconsistent with the duty or interest of a pur- 
 chaser (/«), shall himself purchase such property; nor shall 
 he purchase for himself in another's name ; nor shall he him- 
 self purchase as agent for another (n) ; nor, perhaps, even 
 employ a third person to buy as agent for another (o) ; the 
 rule, however, is subject to particular qualifications here- 
 inafter mentioned. 
 
 Nor is such a purchase rendered valid by the fact of the rurciiaseby, 
 
 ^ "^ invalid, 
 
 sale having been by auction, or before the Master under a alfcuoif'or^ 
 Decree of the Court (p) ; nor, in the case of a person who Master''*^ 
 by filling a confidential situation has acquired a know- 
 ledge of the property, is his capacity to purchase restored 
 by his previous retirement from such situation (</) ; for his 
 knowledge remains. 
 
 The rule has been held to apply to the several cases of j^n-chaflsby 
 An agent for sale (r) : Agents: 
 
 An agent for the management of property ; who can 
 
 (k) Page 7. (/■) Yot^k Buifdinr/s Compatii/ v. 
 
 (/) Sag. 887; Ahearne v. Hogan, Mackenzie, 8 Bro. P. C. 42; Wood- 
 
 1 Dru. 310. house v. Meredith, 1 Jac. & W. 204; 
 
 (m) Greenlaw Y. Kin f/, 3 Be&v. 49. Barker v. Harrison, 2 Coll. 546; 
 
 (».) 9 Ves. 248. Charter v. Trevelyan, 11 CI. & Fin. 
 
 (o) Sug. 890. 714 ; In re Bloi/es' Trust, 1 Mac. & 
 
 (p) Sug. 891. G. 488; at vide infra, as to Solici- 
 
 (q) Carter v. Palmer, 8 CI. & tors and Agents. 
 Fin. 657.
 
 10 RESTRICTIONS ON GENERAL CAPACITY 
 
 Chapter I. only pui'cliasc subject to the onus of proAang that he 
 afforded his principal all the knowledge respecting its 
 value which he derived as agent (s) : 
 Arbitrators: All arbitrator, contracting for unascertained claims of 
 
 parties to the reference {t) : 
 Assignees : An assignee of a bankrupt ; against whom the rule is 
 more than ordinarily stringent {u) ; and it extends to a 
 purchase by liis partner on behalf of the firm (v) ; the 
 Court has, however, on the petition of a purchasing assig- 
 nee, directed a reference to the Commissioners to inquire 
 whether the purchase would be for the benefit of the 
 estate, he paying all the costs {w) ; and, on the report 
 being favourable, has confirmed the sale {x) : it has also, 
 under special circumstances, allowed an assignee to be 
 removed, at his OAvn request, in order that he might bid at 
 the sale of the bankrupt's estate [y] : where, however, an 
 assignee, who was also second mortgagee of the property, 
 applied for leave to bid, (remaining assignee,) the Com't 
 refused the application ; but allowed him to name a price 
 at which he might take the property if not sold at the 
 auction {z) : 
 Auctioneers: An auctioneer employed to sell the property (a) : 
 Bishop A Bishop purchasing an annuity to be charged upon a 
 
 re^uireti to I'Gctory ; he being the person whose consent was required 
 ^'^^^' to the sale; although giving a better price than could 
 
 have been elsewhere obtained {b) : 
 
 («) Cane v. Lord Allen, 2 Dow. Turner v. Trelawny, 12 Sim. 49. 
 
 289; Molony \t Kernan, 2 Dru. & (v) Ex parte Burnett, 7 Jur. 116. 
 
 W. 31 ; and see Rossiter v. Walsh, {w) Ex parte Gore, 6 Jur. 1118 ; 
 
 4 Dru. & W. 485 ; Murjjhy v. 3 Mon. D. & De G. 77. 
 
 O'Shea, 2 Jo. & L. 422. (a) S. C, 7 Jur. 136. 
 
 {t) Blcnnerhassett v. Day, 2 Ball (y) Ex parte Perkes, 3 Mon. D. 
 
 & B. 116. & De G. 385. 
 
 (m) Ex parte La.cey, 6 Ves. 630; (r) Ex parte Holyman, 8 Jur. 156. 
 
 Ex parte Bennett, 10 Ves. 395 ; Ex (a) Sug. 887. 
 
 parte Alexander, 2 Mon. & Ay. 492 ; (/y) Greenlaw v. Kiny, 3 Beav. 49.
 
 TO BUY OR SELL HEAL ESTATE. 17 
 
 A Commissioner of bankrupts {c), although he had ^hapten. 
 ceased to act in the prosecution of the fiat {d) : ?iZ^l^in 
 
 Commissioners for Inclosure under the general Inclo- ''^^"'"""''"'y 
 
 ° Commis- 
 
 sure Act ; who cannot purchase amj land in a parish in Sosufe' 
 
 which an Inclosure is made, until five years from the date 
 
 and execution of their award (e) : and a similar disability ^"'^ Valuers. 
 
 for the term of seven years affects valuers acting under 
 
 the Commons Inclosure Act (/) : 
 
 The Committee of a lunatic's estate ; the Court has even committee 
 refused to confirm a lease to the Committee though ap- 
 proved by the Master as advantageous to the estate {g) : 
 
 Counsel, who purchased, below their nominal value, counseL 
 charges upon his late client's estate (A), upon the validity 
 of which he had advised ; 
 
 A creditor of a bankrupt, who had been consulted by creditor of 
 
 * Bankrupt, 
 
 the assignees as to the best mode of selling the estate (i) : ^^h? i'^'^ 
 
 " o v / advised as 
 
 Executors and administrators, in respect of the personal ^'^ *^''^- 
 
 Executors 
 
 estate of the deceased ( /) : and admi- 
 
 ^'' ' nistrators. 
 
 A guardian, purchasing from his ward, immediately on Guardians 
 his coming of age ; although the price was adequate [k) : 
 
 A governor of a charity, taking a lease of the charity Governor ot 
 lands (/): ' ' ""'''''''■ 
 
 A mortgagee with a power of sale ; who cannot purchase, urortgagee. 
 under the power, either in his own name or through an 
 agent : nor can his agent, who has acted in survejdng the 
 property and receiving the interest, purchase on his own 
 account from the mortgagee (m) ; but the rule does not 
 
 (c) Ex parte Bennett, 10 \es.3Sl. (j) KilUck v. Flexney, 4 Bro. 
 
 {(l) Ex parte Baynton, 7 Jur. 244. C. C Irtl ; Watson v. Toone, 6 
 
 (e) 41 Geo. III. c. 109, s. 2. Madd. 153. 
 
 (/) 8 & 9 Vict. c. 118, s. 129. (k) See Sug. 892. 
 
 {g) Shelf, on Lunacy, p. 446. (0 Alt. -Gen. v. Lonl Clarendon, 
 
 (A) Carter v. I'almer, 8 CI. & 17 Ves. 491. 
 
 Fin. 657. (m) Onne v. Wriylit, 3 Jur. 19 ; 
 
 (/) Ex parte Huf/hes, 6 Ves. 617. /(/ re Bloj/es' Trust, 1 Mac. &. G. 
 
 C
 
 18 
 
 RESTRICTIONS ON GENERAL CAPACITY 
 
 Chapter I. 
 
 (Who may, 
 howerer, 
 purchase 
 from the 
 mortgagor.) 
 
 Permission 
 for, to bid, 
 whether 
 requis^ite on 
 sale in Bank- 
 ruptcy. 
 
 Rector buy- 
 ing glebe. 
 
 Solicitor to 
 Fiat. 
 
 Solicitor of 
 disqualified 
 purchaser. 
 
 Steward. 
 
 apply to a purchase of the equity of redemption by the 
 mortgagee from the mortgagor {n) ; it is, however, usual, 
 although perhaps not strictly necessary, upon a sale under 
 the general order in Bankruptcy, for a mortgagee intending 
 to bid, to apply for leave so to do (o) ; in the case of a legal 
 mortgage, it appears to have been a common, although 
 improper, practice, for the mortgagee to conduct the 
 sale (p) ; in such a case, of course, he could not purchase 
 without the permission of the Court : 
 
 A rector, purchasing in the name of his cm^ate a portion 
 of glebe sold for the redemption of the land-tax {q) : 
 
 A solicitor to a commission of, or fiat in. Bankruptcy, 
 purchasing the estate from the Commissioners (r) ; and a 
 solicitor conducting a sale under a Decree and purchasing 
 the estate {s) : and the sohcitor or agent of a person dis- 
 qualified from purchasing, would, it is conceived, in 
 general, be unable to purchase on his own account (t) : 
 but in a recent case, under special cii'cumstances, the 
 sohcitor to a fiat was allowed to purchase part of the 
 estate {u) : 
 
 A steward contracting for a lease from his employer. 
 
 488 ; and see Downes v. Grazebrook, 
 3 Mer. 200. 
 
 (n) Sug. 888 ; and see Waters v. 
 Groom, 11 CI. & Fin. 684; Knight 
 V. Marjoribanks, 2 Mac. & G. 10. 
 
 (o) Sug. 889, and cases cited. 
 The costs of an application merely 
 for leave to bid, are, it appears, al- 
 lowed to the mortgagee only when 
 the petition is presented at the re- 
 quest of the assignees ; Ex parte 
 Coort, 7 Jur. 864 ; Ex parte Banks, 
 
 12 L. J., N. S. 45 ; Ex parte Smith, 
 
 13 Jur. 1044. In a case of Ex 
 parte Pedder, 1 Mon. & Ayr. 327, 
 the Court, after the sale, made an 
 order for the mortgagee to bid, nunc 
 
 pro tunc; to which Sir Edward 
 Sugden adds a query ; but a similar 
 order seems to have been made in 
 the recent case of Ex parte Yorke, 3 
 Mon. D. & De G. 329. 
 
 (jo) See Ex parte Cuddon, 3 Mon. 
 D. & De G. 302. 
 
 (g) Grover v. Hugell, 3 Russ. 
 428. 
 
 {r) Ex parte Bennett, 10 Ves. 381. 
 
 (s) Sidny v. Ranger, 12 Sim. 118. 
 
 {t) Downes v. Grazebrook, 3 Mer. 
 209; Whitcomb v. Minchin, 5 Mad. 
 91 ; In re Bloyes' Trust, 1 Mac. & 
 G. 488 ; but see Alvanley v. Kinnaird, 
 2 Mac. & G. 17. 
 
 (m) Ex parte Watts, 1 De G. 265.
 
 TO BUY OR SELL REAL ESTATE. 19 
 
 to sustain Avliicli, he must show the fairness of the f^'hapterL 
 transaction [w) : 
 
 Trustees, unless merely such in name {x), can onty pur- Trustees, 
 chase subject to special restrictions (y) : and there will be 
 an additional objection to a purchase by a trustee^ if the 
 object of the trust were apparently to secure to the cestui 
 que trust a continuing control over the property (z) : 
 
 But, of coui'se, the mere fact of a person having been ^ce^tLY^ 
 named as a trustee will not alBFect his capacity to purchase, *"'"**' 
 if he decHne the trust ab initio ; and it is not essential that 
 he should execute a deed of disclaimer (a) : 
 
 A trustee whose duty it is to pui'chase particular pro- 1^ll^^^J°^ 
 perty for his cestui que trust, (e. g. : a trustee of renewable 
 leaseholds, bound, if possible, to renew,) shall never buy it 
 for himself; even though the proposed vendor positively 
 refuse to part with it for the benefit of the cestui que 
 trust {b). 
 
 But, in all the above cases, the transaction is binding trafpii^/-" 
 on the purchaser; and voidable merely at the option of bouirdat 
 the parties originally interested in the property, or their parties in- 
 representatives. 
 
 On the other hand — not affect 
 
 execution 
 
 An execution creditor may buy the property sold mider creditor. 
 the execution [c] : 
 
 A solicitor, generally, is under no positive disability to asTo^wmpe- 
 
 purchase from his client; but, if the transaction be im- solicitor to 
 
 . purchase. 
 
 peached, he must prove its fairness ; and that he gave his 
 
 (w) See Lo7rl Sekei/ v. R/ioade.i, 87, 90. 
 
 2 Sim. & St. 49; 1 Bli. N, S. 1. (a) Stacey v. Elph, 1 M. & K. 
 
 (.r) See Waters v. Groom, 11 CL 195. 
 
 & Fin. 684; where the question was, {b) Ea' parte Bennett, 10 Ves. 
 
 whether the purchaser was a Trustee 395 ; see Turner v. Trelawny, 12 
 
 or merely acreditor holding security. Sim. 49. 
 
 {y) As to which, z;/<7e in/ra, p. 21. (c) Stratford v. Twynam, Jac. 
 
 {z) Scott V. Davis, 4 Myl. & Cr. 418. 
 
 c2
 
 20 
 
 RESTRICTIONS ON GENERAL CAPACITY 
 
 Chapte r I. client all the information respecting the subject of the pur- 
 chase which he himself possessed : but he need not have 
 pointed out a mere speculative advantage, (such as the 
 possibility of an unplanned, though contemplated railroad, 
 running near the property,) which might be reasonably 
 supposed to be equally in the knowledge of both parties {d) : 
 nor does the fact of the consideration having in part con- 
 sisted of costs necessarily invalidate the transaction [e) ; 
 nor does the rule extend to prevent a purchase, by a soli- 
 citor, of his client's property in respect of which he has not 
 been professionally employed (/) ; or his purchasing by 
 auction his client's property if he have not acted for him 
 professionally in respect of the sale {g) . 
 
 The son or other relation of a trustee or other disqualified 
 person, may purchase bond fide on his own account ; and, 
 although, in the case of a trustee selling to a relation, the 
 relationship is calculated to excite suspicion, which, if con- 
 firmed by any other cu'cumstance, it would require a very 
 strong case to remove [h), the Court will, in the absence 
 of fraud, even decree specific performance at the suit of the 
 purchaser (i). 
 
 A tenant for life under a settlement, whose consent is 
 requisite to the exercise of a power of sale by the trustees, 
 may, nevertheless, purchase from them under the power [k); 
 but this is an avowed exception from the general rule ; and 
 was so decided by Lord Eldon, on the ground of its being 
 dangerous to unsettle the practice of conveyancers (/) . 
 
 Son of dis- 
 qualified 
 purchaser. 
 
 Tenant for 
 life on sale 
 by Trustees 
 with his 
 consent. 
 
 (d) See Edwards v. Meyrick, 2 Ha. 
 60, where the earlier cases are cited 
 aud reviewed : see Rudd v. Sewell, 
 4 Jur. 882, C. ; and Thomas v, Phil- 
 lips, II Jur. 80. 
 
 (e) Edwards v. Meyrick, ubi 
 supra. 
 
 (/) 2 Y. & C. Exch. 520 ; 2 
 Ha. 68. 
 
 (^g) Atisdnv. Chambers, 6 CI. & 
 Fin. 1. 
 
 (A) See Ferraby v. Hobson, 2 Ph. 
 261. 
 
 (0 Sug. 892; see Coles v. Tre- 
 cothick, 9 Ves. 234. 
 
 {k) Howard v. Dttcane, Turn. & 
 R. 81. 
 
 (/) Turn.&R.86&87;3Russ.432.
 
 TO BUY OR SELL REAL ESTATE. 31 
 
 A trustee may either simply, though expressly, hold the chapter i. 
 property in trust for others; or, although not nominally a ^aseby' 
 trustee, he may yet owe duties to others in respect of it difflrint" 
 which invest him with a fiduciary character in the contem- trust. 
 plation of the Court ; or he may actually hold it in trust 
 to ejBFect a sale. 
 
 So, his cestuis que trust may be either sui juris, or the 
 contrary, — as infants, married women, &c. &c. 
 
 It does not appear that the rule against purchasing affects J^^ 
 
 Trus- 
 
 may 
 
 mere diy trustees ; e. g.-. a trustee to preserve contingent p^'^^''®^- 
 remamders [m], or (it is conceived) a trustee to bar dower, 
 or of a term for years assigned to attend the inheritance, 
 or of a mere outstanding legal estate, or, in fact, a trustee 
 of any description who cannot possibly derive in the trans- 
 action any advantage from his fiduciary character [n) . 
 
 Nor is a trustee who comes mthin the restrictive rule fc'th-eTrus^^ 
 incapable of purchasing from the cestuis que trust, if they be dstuiqw 
 sui Juris ; but, in any such case, the Coui't looks at the valid. 
 transaction with a jealous eye (o) ; and the question to be '^H^^L 
 determined is, not whether the price is fair, but whether 
 the pm-chaser, having held a confidential situation pre- 
 viously to the purchase, has, at the time of the pm'chase, 
 shaken off that character, by the consent of the cestuis que 
 trust, freely given, after full information, and has bargained 
 for the right to purchase {p) . 
 
 So, where the sale by auction is in fact conducted by the ^^fjltiyP^Pf " 
 cestui que trust, a purchase at an adequate price by the ^bstantia"- 
 trustee for sale may, perhaps, be supported {q) . Jue trust, 
 
 - - . - whether 
 
 In the case of a trust for the benefit oi crecbtors, there valid, 
 is Httle doubt that the consent of the majority will not creditors' ^ 
 
 (>m) 11 Ves. 226. {l)) Per Lord Eldon, Ej' parfe 
 
 (m) See 1 Sim, & St. 567. James, 8 Ves. 353. 
 
 (o) Davidson v. Gardner, Sug. (<?) See Coles v. Trecothick, 9 
 
 8y0. Ves. 234.
 
 22 
 
 RESTRICTIONS ON GENERAL CAPACITY 
 
 Chapter T. 
 
 Trustee, 
 with consent 
 of majority, 
 invalid. 
 
 Solicitor of 
 cestui que 
 trust cannot 
 consent to 
 the pur- 
 chase. 
 
 Resignation 
 of trust once 
 accepted 
 immaterial. 
 
 Purchase in 
 name of 
 another 
 svispicious. 
 
 Purchase by 
 decree, if 
 cestuis que 
 trust are 
 under dis- 
 ability. 
 
 Risk in- 
 curred by 
 disqualified 
 purchaser. 
 
 He may be 
 lorced to re- 
 couvey ; 
 
 or let the 
 estate be 
 resold ; 
 
 or to ac- 
 count for 
 profit if he 
 has sold. 
 
 Sub-pur- 
 chaser with 
 notice is 
 
 bind the minority, so as to render valid a purchase by the 
 trustee for sale (r). 
 
 The solicitor of a cestui que trust has no general autho- 
 rity to authorize a purchase by the trustee {s) . 
 
 A trustee cannot get rid of his incapacity by resigning 
 the trust or confidential situation ; for he would still retain 
 the knowledge he had acquired while in office {t) . 
 
 And the circumstance of a trustee or agent purchasing 
 in the name of a thii-d person is indicative of fraud, and 
 the sale will more readily be set aside {u) . 
 
 Where the cestuis que trust or any of them are not sui 
 juris, a purchase by a trustee, who comes within the re- 
 strictive rule, can be safely effected only under an order of 
 the Cornet; which order will not be made unless to the 
 evident advantage of the trust {v) ; and it is presumed that 
 he would have to pay the costs of the suit. 
 
 We may next consider the nature of the risk incurred 
 by the trustee or other person purchasing while under 
 any incapacity of the second description. 
 
 1st, He may be required to reconvey the estate, sup- 
 posing he has not sold it {w) . 
 
 2ndly, He may be obliged to let it be put up to sale, 
 and to reconvey to another purchaser if a better can be 
 found ; but if not to keep it (<r) . 
 
 3rdly, If he have resold it at a profit, he may be required 
 to account for such profit (y) . 
 
 And a sub -purchaser, buying Avith notice of the cir- 
 cumstances creating the incapacity in the original pur- 
 
 {r) Sug. 895 ; 6 Ves. 628. 
 
 (s) Downes v. Grazebrook, 3 Mer. 
 209. 
 
 (0 8 Ves. 352 ; and see Carter v. 
 Palmer, 8 CI. & Fin. 657. 
 
 (m) Lord Hardwicke v. Vernon, 
 4 Ves. 411 ; In re Bloyes^ Trmt, 1 
 
 Mac. & G. p. 497. 
 
 (w) See 5 Ves. 681. 
 
 (m') 6 Ves. 627. 
 
 {x) Ex parte Reynolds, 5 Ves. 
 707. 
 
 {y) Fox V. Macreth, 2 Bro. C. 
 C. 400.
 
 TO BUY OR SELL REAL ESTATE. 23 
 
 chaser, is in the same predicament, if the sale be im- chapter i. 
 peached (2'). i^X'^^rfy 
 
 In the first of the above cases, the purchaser will be Tfrmsupon 
 
 ' '^ wmch a re- 
 
 credited ^vith his original purchase-money and interest at wurbr"'^*' 
 £4 per cent., and all sums expended by him in substantial '*®'=''''^''- 
 improvements, (imless he have been guilty of actual 
 fraud) (ft), (as, in one case, buildings erected, and inclo- what 
 sures made) {h) or in repairs (c) ; and interest from the '^^'o^^'^- 
 time of the advances ; and will be debited with rents re- fc«)unte°d^^ 
 ceived by him, an occupation rent for any part occupied 
 by himself [d), and his receipts for the sale of timber, &c., 
 with interest ; and also with the estimated amount of dete- 
 riorations, (if any) (e) ; and on receiving the balance, (if 
 in his favour,) he must reconvey. 
 
 And if nothing appear to be due to him, he must give F°'i*'V°^ 
 up his purchase without receiving any further considera- ouc™rlcon* 
 tion(/). 
 
 In making the above estimates, buildings puUed down, aMe^s^ftJr"^^' 
 will, if incapable of repair, be ^'alued as old materials, but puiiedd^own. 
 otherwise as buildings standing [g) . 
 
 Where the decree directs a reconveyance, and an account Mustre- 
 
 •" convey at 
 
 and payment of the balance to the purchaser, but does not decree^^fves 
 in terms give liim a lien for such balance upon the estate, fo?baiance 
 the reconveyance must be made at once, without waiting 
 for the accounts (/<) . 
 
 The estate, if put up for resale, will be put up at the ^S^^'state 
 amount of balance due to the purchaser, ascertamed as just ^id. ^ ^^' 
 
 (z) Sug. 899. for, even in cases of fraud ; 1 Wils. 
 
 (a) Bauffh v. Price, 1 Wils. 320 ; 322. 
 
 see Howell V, Howell, 2 Myl. & Cr. {d) Ea; parte James, 8 Ves. 351. 
 
 478 ; and Turner v. Trelawny, 12 (e) Ex parte Bennett, 10 Ves. ; 
 
 Sim, 49. seep. 101. 
 
 {b) York Buildings Company v. (/") Greenlaw v. King, 3 Beav. 63. 
 
 Mackenzie, 8 Bro. P. C. ; see pp. (y) Robinson v. Ridley, 6 Madd. 2. 
 
 56 and 71. (A) Treveh/an v. Charter, 9 Beav. 
 
 (c) Necessary repairs are allowed 140.
 
 u 
 
 RESTRICTIONS ON GENERAL CAPACITY 
 
 Chapter I. 
 
 If no ad- 
 vance, pur- 
 chaser must 
 keep it. 
 
 At what 
 amount put 
 up. 
 
 Cannot be 
 re-allotted 
 for sale. 
 
 Purchaser 
 having 
 more than 
 repaid him- 
 self must 
 account for 
 the balance 
 
 Purchaser 
 paying 
 money into 
 Court not 
 affected by 
 variation in 
 funds. 
 
 General 
 rule as to 
 costs. 
 
 mentioned {i), and, if there be no advance, he must keep 
 the estate : in a modern case, where permanent improve- 
 ments had been made, it was put up at its improved value, 
 subject to the question whether he should be allowed the 
 amount of such improvements {j) . 
 
 In the case of a resale, the cestuis que trust cannot, if the 
 estate were bought in one lot, insist on its being put up in 
 several lots {k), nor, it is conceived, allotted otherwise than 
 as it was bought ; to effect the change they must take it 
 off the pm-chaser's hands on the terms we have already 
 mentioned (/) . 
 
 The third rule would extend to a purchaser who, by sale 
 of wood, minerals, &c., had more than repaid himself his 
 purchase money, expences, and interest {m) ; or who had 
 made a similar profit by merely letting the property, (which 
 in the case of imexpected public improvements might often 
 easily happen in the course of a few years, although the 
 original price were perfectly fan' ;) it is apprehended, that, 
 in either of these cases, he would have, not only to re- 
 convev, but also to pay the balance foimd due from 
 him (n). 
 
 If, in any of the above cases, the purchaser has paid 
 purchase-money into Coiu't, and it has been invested, he 
 will neither gain nor suffer by a rise or fall in the funds (o) . 
 And, as a general rule, a trustee, though free from fraud, 
 must pay the costs of a suit occasioned by his improper 
 dealing with the estate (p) : such is the almost invariable 
 practice where the cestuis que trust are infants (</) ; in other 
 
 (f) Vide supra, p. 23 ; Ex parte 
 Hughes, 6 Ves. 617- 
 
 (_;■) Williamson v. Seaber, 3 Y. & 
 C. 717. 
 
 (k) 8 Ves. 351. 
 
 {I) Supra, p. 23. 
 
 {in) York Buildings Company v. 
 Mackenzie, 8 Bro. P. C. see p. 71. 
 
 (w) S. C, and see 6 Ves. 622 ; 
 and the decree in Neesom v. Clarkson, 
 2 Ha. 176; 4 Ha. 97. 
 
 (o) 8 Ves. 351. 
 
 {p) Sug. 898. 
 
 {q) See Sanderson v. Walker, 13 
 Ves. 601.
 
 TO BUY OR SELL REAL ESTATE. 25 
 
 cases, however, the rule is sometimes relaxed where the Chapter i. 
 trustee is free from all moral blame (r) ; and in one 
 instance it would seem that he was even allowed to receive 
 a sum on account of costs (s) . 
 
 But a cestui que trust wishing to impeach a sale must do Jj^o,.^"^^^' 
 so within a reasonable time {t) ; which generally is less gafe!^'"'^ 
 than the time allowed by the Statute of Limitations : a 
 delay of eighteen years has been held to amount to an 
 implied confirmation of the transaction (m) ; ten years 
 have been allowed in the case of an individual (v) ; and 
 twelve in the case of creditors {w) ; but the general tendency 
 of modern decisions is still further to discourage stale de- 
 mands ; a longer time, however, is allowed a class of per- ^'0^1^. 
 sons, as creditors, than would be allowed an individual {x) . ^ndfvWuab" 
 And time will not run against a cestui que trv^t until he pg^^^^e 
 be sui juris {y), and aware that the trustee was improperly run."^*" 
 the pm'chaser [z] ; nor will it, in general, run against him, 
 so long as his interest is contingent, or reversionary (a), 
 or (in particidar) dependent on the will of the pui'chasing 
 trustee, or of a party implicated in the breach of trust (b) : 
 it does not appear that the poverty of the cestui que trust 
 is in itself an excuse for laches [c], although it would, 
 probably, have an effect upon the Court if united with 
 other circumstances {d) . 
 
 (r) Baker \. Carter, 1 Y. & C. bell v. Walier, 5 Ves. 678, 682. 
 
 Ex. 250. (z) Chalnier v. Bradley, 1 Jac. & 
 
 (.v) See Downes v. Grazehrook, 3 W. 51 ; Charter \ . J'revelyan, 11 CI. 
 
 Mer. 209. & Fin. 714. 
 
 {t) 1 Jac. & W. 59 ; Lord Sekeij («) Buke of Leeds v. Lord Ani- 
 
 V. Rhoades, 1 Bli. N. S. 1 ; Rudd v. herst, 2 Ph. 117 ; Bennett v. Colley, 
 
 Sewell, 4 Jur. 882, C. 5 Sim. 181 ; Bower v. Evans, 1 Jo. 
 
 (m) Gregory v. Gregory, G. Coop. & L, 178 ; Roberts v. Tunstall, 4 
 
 201 ; Jac. 631. Ha. 257. 
 
 {v) Hally. Noyes, cited 3 Ves. 748. (b) Roberts v. TunstaU, 4 Ha. 257. 
 
 {w) Anon, cited 6 Ves. 632. (c) S. C. 
 
 (.r) JJTiichcotev. Lawrence, SYes. (rf) Gregory v. Gregory, G. 
 
 740. Cooper, 201 ; and see Oliver v. 
 
 (y) Lewin on Trusts, 37 1 ; Canij)- Court, 8 Pri. 168.
 
 26 
 
 RESTRICTIONS ON GENERAL CAPACITY, ETC. 
 
 Chapter I. 
 
 Distinctions 
 between 
 prior acqui- 
 escence and 
 subsequent 
 confirma- 
 tion. 
 
 Lastly, a cestui que trust may confirm a voidable pui'- 
 cliase by his trustee, &c. ; but, to make his confirmation 
 binding, he must be sui juris [e), fully aware of the 
 material facts (/), and that he can, if he please, impeach 
 the transaction [g) ; he must be under no undue in- 
 fluence [h), the confirmation must be a solemn and de- 
 liberate act {i), free from any pressure resulting from the 
 original transaction {j), and, in the case of a plurality of 
 cestuis que trust, it must, to be effectual, be the act of 
 all [k), as a majority cannot bind the minority. 
 
 And we may here remark, that conduct, or language, on 
 the part of a cestui que trust who is sui juris, and which, if 
 it had occurred vipon or previously to the commission of 
 the breach of trust might have amounted to acquiescence, 
 and have precluded him from all right of complaint, may, 
 if it occur subsequently to the breach of trust, be wholly 
 insufficient to confirm the transaction, or to release the 
 trustee from liability (/) . 
 
 (e) Campbell v. Walker, 5 Ves. 
 678, 682. 
 
 (y) Chalmer \. Bradley, 1 Jac. & 
 W. 51 ; see Wedderburn v. Wedder- 
 burn, 4 Myl. & Cr. 41. 
 
 {g) 1 P. Wms. 727. 
 
 (A) Lewin on Trusts, 374. 
 
 (i) Carpe^der v. Heriot, 1 Ed. 
 338 ; see De Montmorency v. Deve- 
 reujc, 7 CI. & Fin. 188. 
 
 {j) Wood V. Dowries, 18 Ves. 128. 
 
 (k) 6 Ves. 628. 
 
 (0 5 Myl. & Cr. 218 ; and see 2 
 Ph. 123.
 
 CHAPTER II. Chapter II. 
 
 AS TO SALES BY FIDUCIARY VENDORS. 
 
 1. As to the time of sale. 
 
 2. The manner of sale. 
 
 3. The consider'ation. 
 
 4. General points relating to sales by fiduciary vendors. 
 
 Under the term, fiduciary vendors, we may comprise O" sales by 
 
 ^ _ •' ' . Fiduciary 
 
 agents for sale, assignees of bankrupts and insolvents, vendors, 
 mortgagees with powers of sale, persons selling under the 
 special authority of Railway and other Acts of Parliament, 
 and, in particular, of the Lands Clauses Consolidation Act, 
 1845^ (and who may be conveniently described by the 
 general appellation of statutory owners,) and, lastly, trus- 
 tees selling in pursuance of either an express trust or only 
 a permissive power ; — the term, tmstees, being also held 
 to include executors, when selling freeholds or copyholds 
 in exercise of a power expressed or implied, and personal 
 representatives generally, when selling the chattels real of 
 their testator or intestate. 
 
 We may consider sales by such vendors, with reference As to time, 
 
 •' mJ ■> considera- 
 
 to the questions. When ought they to sell? How ought ^^1''^°^° r of *^ 
 they to sell ? and. For what price ought they to sell ? and ^^^^' 
 then refer to some points which cannot conveniently be 
 classed under any of the above heads. 
 
 (1 .) When ought they to sell ? ^s to ume 
 
 An agent for sale, should, subject to a reasonable exer- By agents, 
 cise of discretion, sell Avith all convenient speed.
 
 28 SALES BY FIDUCIARY VENDORS. 
 
 Chapter II. Assignees of a bankrupt sliould also sell without any 
 
 BaSpts"^ unnecessary delay (a) ; and any single creditor may insist 
 
 dufr'n^a'y On a salc ; andj if he so insist^ it is doubtful whether the 
 
 sale. Court can refuse its assent {b) ; until creditors' assignees 
 
 are chosen, the official assignee alone may sell under the 
 
 order of the Court, if the Court consider that delay would 
 
 be prejudicial to the bankrupt's estate; after creditors' 
 
 assignees are chosen, the official assignee is not to interfere 
 
 in directing the time or manner of effecting a sale (c) . 
 
 Assignees of An assiguec of an insolvent, under the 1 & 2 Vict. c. 
 
 Insolvent. • i i /^ 
 
 110, must, in the absence of special direction by the Court, 
 seU, if practicable, within six (lunar) months after his ap- 
 pointment {d) ; but a sale is not necessarily invalid by rea- 
 son of its being made after such period has elapsed (e) . 
 
 Mortgagees. A mortgagee with power of sale may sell without wait- 
 ing for the concurrence of the mortgagor ; nor does a sti- 
 pidation in the mortgage deed that the mortgagor shall, if 
 required, join in any sale, entitle a purchaser to requii'e 
 his concurrence (/) . 
 
 statutory Statutory owners must, of course, sell within such 
 
 limits (if any) as to time as are prescribed by the Act 
 under which they derive their powers ; the Lands Clauses 
 Consolidation Act, 1845, seems to impose no restriction as 
 to time upon the pui'chase of lands by agreement ; although 
 it limits the time for compulsory purchases by the Com- 
 pany to a period of three years from the passing of the 
 special Act, unless some other period be therein prescrib- 
 ed (^) ; and it would seem that, in the absence of restric- 
 
 (fl) Ex parte Goring, 1 Ves. jun. 7 & 8 Vict. c. 96, s. 10. 
 I(j9. {d) See s. 47 ; and see last note. 
 
 (S) S. C. ; and see 6 Ves. 622 ; (e) Mather v. Priesfman, 9 Sim. 
 
 Ex parte Miller, 1 Men. D. & De G. 352 ; Cole v. Coles, 6 Hare, 517. 
 44. (y) Corder v. Morgan, 18 Ves. 
 
 (c) 12 & 13 Vict. c. 106, s. 40 ; 344. 
 and as to estate of Insolvents peti- {g) L. C. C. Act, 1845, sect. 123. 
 
 tioning under 5 & 6 Vict. c. 116, see 
 
 owners.
 
 SALES BY FIDUCIARY VENDORS. 29 
 
 tion, even a compulsory powei* could be exercised without Chapter it. 
 reference to lapse of time {h) . It is sufficient if the Com- 
 pany, Avithin the limited period, give notice of their inten- 
 tion to take the lands, and summon a jiuy to assess their 
 value (i) . 
 
 Trustees for sale are not, by the usvial direction to sell Jaie**^^* **"^ 
 with all convenient speed, preckided from exercising a 
 reasonable discretion as to the time of sale ; nor need one 
 co-trustee adopt the opinion of another (j) . 
 
 It is laid down that, in the absence of any special direc- bound t^o 
 tion, trustees for sale, should, subject to a reasonable exer- dlate?y"^ 
 cise of discretion, sell with all convenient speed (k) ; in 
 practice, hoAvever, trustees of a will or settlement are not 
 generally considered bound, under the ordinary trust for 
 sale, nor is it usual for them, to sell, except upon the 
 request of some one or more of their cestuis que trust, or 
 under circumstances which render a sale necessary or 
 expedient (/) ; or unless the property is not of a permanent 
 character : after a bill is filed for the administration of the 
 trust, trustees cannot sell without leave of the Court [m) ; 
 it was, however, held by the Com-t of Queen's Bench, in a 
 recent case, that the power of an executor to make a good 
 title to the chattels real of the testator is not aff'ected by 
 the existence of an administration suit, so long as there is 
 no decree [n) . 
 
 (A) TMcknesse v. Lancaster Canal money, although the trust-instru- 
 
 Company, i Mee. & W. 472. ment directs any vacancy to be filled 
 
 (i) Brocklebank v. Whitehaven up within a specified time which has 
 
 Junction Railway Company, 15 Sim. elapsed ; IVarburton v. Sandys, 14 
 
 632 ; and see Reg. v. Birmingham Sim. 622 ; sed qu. 
 
 and Oxford Junction Railway Com- (k) Sug. 57- 
 
 pany, 15 L. T. 392. (1) Davidson's Conv. vol. iv. p. 
 
 {j) Buxton v. Buxton, 1 Myl. & 342, n. 
 
 Cr. 80 ; but see Taylor v. Tabrum, 6 {m) IValker v. Sniahrood, Amb. 
 
 Sim. 281. It has been recently held, 676. 
 
 by the Vice-Chancellor of England, (n) Neeves v. Bnrrage, 14 Jur. 
 
 that surviving trustees can make a 177, sed qu. 
 good title and receive the purchase-
 
 30 
 
 SALES BY FIDUCIARY VENDORS. 
 
 Chapter II. 
 
 Trustees 
 under 
 power of 
 
 Time fixed 
 by author 
 of trust, 
 cannot be 
 anticipated, 
 altlioush 
 delay be 
 prejudicial. 
 
 Reversion 
 may be sold 
 under trust 
 in settle- 
 ments, al- 
 though 
 rights of 
 parties are 
 thereby 
 altered. 
 
 Conditional 
 powers of 
 and trusts 
 for sale. 
 
 Subsequent 
 and prece- 
 dent condi- 
 tion. 
 
 Trustees of a power of sale^ with the u,sual trusts for re- 
 investment in real estate,, ought not to sell except for some 
 good reason (o) : the Courts however^ will not control a 
 bond fide exercise of their discretion [p) ; but a sale by a 
 Trustee^ after a cestui que trust has become absolutely 
 entitled to the property^ is 2)rh7id facie invalid (q). 
 
 "VMien the instrument creating the trust fixes the time 
 for sale, this cannot be anticipated either by the trustees 
 or the Court, however ruinous the delay may be to the 
 estate : e.g.; where a testator directed an advowson to be 
 sold upon the death of A. the incumbent, the Court held 
 that it had no jurisdiction to sell in A.^s lifetime, although 
 upon his death it w^ould be necessary to present a new in- 
 cumbent before any sale could be eifected (r) . 
 
 And, on the other hand, where a settlement of a rever- 
 sion, in terms authorized a sale at any time w ith the con- 
 sent of the tenant for life under such settlement, it was 
 held that the trustees might proceed to an immediate sale, 
 although its effect would be, under the trusts declared of 
 the purchase-money, to vary the rights of the cestuis que 
 trust by gi'^'ing such tenant for life an immediate in- 
 come (s) . 
 
 Pow ers of and trusts for sale are often exercisable only 
 under certain specified conditions ; when this is the case, 
 and a sale is made in breach of a condition, the purchaser's 
 safety would seem to depend upon the following considera- 
 tions, viz. : 1st, whether the condition is subsequent or 
 precedent ; and 2ndly, whether it affects the title to the 
 
 (o) Sug. 62. 
 
 (p) 2 Sug. Pow. 470; as to the 
 validity of a power of sale, with re- 
 ference to the rule against perpe- 
 tuities, see Wood v. Wood, 4 Myl. & 
 Cr. 460 ; Nelson v. Calloiv, 15 Sim. 
 353 ; and cases cited. 
 
 (?) Jefferson v. Tyrer, 9 Jur. 
 1083, V. C. E. 
 
 (/•) Johnstone v. Baber, 8 Beav. 
 233 ; see Blacklow v. Laws, 2 Hare, 
 40 ; Gosling v. Carter, 1 Coll. 652. 
 
 {s) Clark v. Seymour, 7 Sim. 67 ; 
 and see Tanker v. Small, 6 Sim. 
 625 ; Blackwood v. Borroires, 4 Dru. 
 & War. 441 ; Giles v. Homes, 15 
 Sim. 359.
 
 SALES BY FIDUCIARY VENDOUS. 31 
 
 legal estate : if it merely affect the equitable title, an apt <-'''apterii. 
 
 declaration in the instrument creating the trust or power ^tatc. 
 
 will protect a pui'chaser against the nonperformance of a 
 
 precedent {t), and, a fo7'tiori, of a subsequent condition ; as 
 
 in the case of an ordinary power of sale in a mortgage, which 
 
 usually contains a precedent condition that certain notices 
 
 shall have been given, and defaults made in payment : 
 
 but A^ith a declaration relieving purchasers from liability 
 
 for a breach of such condition : if, on the other hand, the Difficulty 
 
 ' where legal 
 
 exercise of a power is to affect the legal estate, as where pelfdf tn 
 land is hmited in strict settlement, and a power is given to power^^ub- 
 
 trustees, in certain specified events, to sell, and, for that cedent con- 
 dition, 
 purpose, to revoke the old and appomt new uses, here, un- 
 less the required events occiu', the old limitations remain 
 unaff'ected, notwithstanding any attempted exercise of the 
 power ; and any declaration that pm'chasers shall not be 
 bomid to see that the events haA-e happened, would, it is 
 conceived, be inoperative (m). 
 
 A tenant for life, under a wiU, of the proceeds of sale of ^.l^j^.^t^fop 
 estates directed to be sold with all convenient speed, will, of esfate"*^ 
 from the end of twelve months after the testator's decease, beloid. 
 be entitled to the rents of the estates, although they re- 
 main unsold {v) . 
 
 (2.) How ought they to sell? manner of 
 
 sale. 
 
 An agent or trustee, simply authorized to sell by public ^.^i^^j^^^^. 
 auction for a given sum, cannot, whatever may be the l,orkutht 
 
 rizc shIc by 
 
 price offered, sell by private contract Ua), private con- 
 
 tract 
 
 And an express authority to sell by private contract, -^yhether 
 would not, it is conceived, justify a sale by auction {a:') ; seTbypri- 
 
 (0 2 Sug. Pow. 473, K. 500. 
 
 (?«) See, as to the construction of {w) Daniel v. Adams, Arab. 495 ; 
 
 a discretionary trust for sale, Lord In re Loft, 8 Jur. 206, C. ; Sug. 56. 
 
 Rendlesham v. Meu.v, 14 Sim. 249. {x) See and consider Daniel v. 
 
 {v) Vickers v. Scott, 3 Myl. & Adams, Amb. 495.
 
 3.2 
 
 SALES BY FIDUCIARY VENDORS. 
 
 Chapter II. 
 
 vate con- 
 tract, autho- 
 rizes sale by 
 auction. 
 
 Power to 
 sell to A. 
 does not 
 authorize 
 sale to B. 
 
 As to mode 
 of sale by- 
 Assignees of 
 Bankrupt ; 
 
 or Insol- 
 vent; 
 
 or Mortga- 
 gees , Trus- 
 tees, or 
 Agents. 
 
 Estate may 
 be sold in 
 parcels. 
 
 unless the autliority were to sell for a given sum, and the 
 price obtained at the auction (after pajonent of the inci- 
 dental expenses) exceeded or equalled that amount. 
 
 Nor does an authority to sell to A. for a given sum, 
 necessarily justify a sale to B. for that (or, it is conceived, 
 any greater) sum {y). 
 
 The assignees of a bankrupt may, although they incui' a 
 risk in so doing, sell by private contract ; and they are 
 justified in selling in lots {z) ; we may here remark, that a 
 sale under the general order in Bankruptcy should be 
 conducted by the assignees, and not by a mortgagee (a) . 
 
 The assignees of an insolvent, under the 1 & 2 Vict. c. 
 110, (see s. 47,) must, if practicable, sell by public auction, 
 in such manner, and at such place or places as shall be 
 directed by the creditors : if, however, they ineffectually 
 attempt to sell by auction, they can, after the expiration of 
 the time (six lunar months) limited by the Act, sell by 
 private contract, with the consent of the major part in 
 value of the creditors present at a meeting duly convened 
 for the purpose {b) : nor is the sale necessarily invalid by 
 reason of the directions of the creditors as to the manner 
 of sale not having been strictly complied with (c) . 
 
 Mortgagees, trustees, and agents for sale, may, in the 
 absence of restriction, sell by private contract or public 
 auction {d) ; they should, however, as a general rule, 
 unless specially authorized to sell by private contract, sell 
 1)y auction, to avoid questions Avith their beneficiaries, as 
 to whether the price obtained was adequate. 
 
 They may also, as a general rule, sell either altogether 
 or in parcels (e) ; subject, of course, to a liability to be 
 
 (y) Bulteel v. Lord Abinger, 6 
 Jur. 410, V. C. W. 
 
 {z) See Sug. 56. 
 
 (a) Ex parte Cuddon, 3 Mon. D. 
 & De G. 302 ; L. C. 
 
 (J) Mather v. Priest mati, 9 Sim. 
 
 352. 
 
 (c) Wright v. Maunder, 4 Beav. 
 512. 
 
 {d) Sug. 56. 
 
 {e) Sug. 56. It would appear that 
 a trust for sale of " any part of" an
 
 SALES BY FIDUCIARY VENDORS. 33 
 
 called to account in Equity if they adopt a mode of sale cha pter ii. 
 which is clearly depreciatoiy : but it may be doubted undivided 
 whether, even at Law, a power (/) of sale, extending to LwWp,' 
 the entirety of an estate, would be well exercised by a sale 
 of an undivided share : and it has been decided that trus- standing 
 
 timber, &c., 
 
 tees for sale under a settlement must sell the standing ^"^^y^^ii 
 timber with the estate, although the tenant for life be un- ""^ ^^''' 
 impeachable of waste (g) ; and that a sale of the estate, 
 apart from the timber, is void at Law {h) : the same doc- 
 trine would, it is conceived, in ordinary cases, apply to a 
 reservation of minerals, or any other part of the inherit- 
 ance, upon a sale by fiduciary vendors (i) , 
 
 They are also bound to use all reasonable diligence to ^ro^osed^ 
 obtain a fair price (j) : if, therefore, they sell by auction, fn!^!^!!^^ 
 they should give due notice of and advertise the sale : and verti'se^.'* 
 if the estate have been advertised to be sold in one par- 
 ticular manner, (as in lots), they should not sell in any 
 other way, (as altogether, or under a different plan of 
 allotment,) without re-advertising the sale in accordance 
 Avith the proposed alterations {k) . 
 
 A harsh and improvident sale by a mortgagee, mil not, ^urby*'^* 
 however, be set aside in Equity, if clearly within the terms no°t nlcfs-^ 
 of the power; nor Avill a mere offer, miaccompanied valid. 
 by actual tender, of the amount due to him, be sufficient 
 to prevent a sale (/) : where, as is usually the case, the 
 
 estate, at the discretion of the trus- of the timber was, in equity, severed 
 
 tees, would authorize a sale of the from the inheritance of the soil ; and 
 
 entirety. Lord Rendlesham w.Meux, Butler v. Borton, 5 Madd. 40. 
 14 Sim. 249 ; see Cooke v. Farrand, {i) But not (it is conceived) to a re- 
 
 7 Taunt. 122. servation of Mines, on sales to Rail- 
 
 (/■) Chance on Powers, 2441. way or Waterworks Companies ; see 8 
 
 {g) Cockerellv. Cholmeley, 1 Russ. Vict, c, 20, s. 77, and 10 Vict. c. 17, 
 
 &M. 418. s. 18. 
 
 (Ji) Cholmeley v. Paxton, 3 Bing. U) 3 Mer. 208. 
 
 207 : see a ca,se of Silvester V . Bradley , {k) Ord v. Noel, ,') Madd. 438; 
 
 13 Sim. 75, where it was, unsuccess- see p. 441. 
 
 fully, contended that the inheritance (/) See Matthie v. Edwards, oo 
 
 D
 
 34 
 
 SALES BY FIDUCIARY VENDORS. 
 
 Chapter II. 
 
 Sale under 
 deprecia- 
 tory condi- 
 tions, im- 
 proper. 
 
 Trustees, 
 &c., employ- 
 ing agent, 
 are respon- 
 sible for his 
 acts. 
 
 Sale with 
 consent, 
 what con- 
 sent suffi- 
 cient. 
 
 power is exerciseable only upon notice, a contract for sale 
 is not invalid by reason of its being entered into before the 
 expiration of notice duly given (m) : but where the equity 
 of redemption has been incumbered, and the power does 
 not contain the usual clause making an irregular sale valid 
 as in favour of a pm'chaser, a sale without the required 
 notice is invalid as against the subsequent incumbrancers, 
 even although the mortgagor expressly waive the notice 
 and consent to the sale (w) . 
 
 . Fiduciary vendors are not, without special authority, 
 justified in selUng under any imnecessary and depreciatory 
 special conditions, (such as a condition that the purchaser 
 shall take, at a valuation, fixtures belonging to a third 
 person,) or conditions unnecessarily restrictive of the pui*- 
 chaser's right to a marketable title; it is by no means 
 clear that, under such circumstances, they can make a 
 title which a purchaser can be advised to accept (o) . 
 
 If they employ an agent to sell, or confide the sale to a 
 co-trustee, &c., they will be responsible for his acts (p) . 
 
 It seems to be doubtful whether, when a poAver of sale 
 is exerciseable only with a specified consent, a general pro- 
 spective consent is sufficient ; or whether there must not 
 be a consent to the particular sale ; also, whether consent 
 given after the execution of the power is sufficient {q) : we 
 
 appeal, 11 Jur. 761 ; and (as /one* v. 
 Matthie) 11 Jur. 504, reported be- 
 low, 2 Coll. 465 : and see Grugeon v. 
 Gerrard, 4 Y. & C. 119. Money 
 paid for expenses by mortgagor to 
 mortgagee's solicitor, under a threat 
 of an exercise of a power of sale, but 
 not really due, may, it seems, be re- 
 covered at Law; Close v. Phipps, 7 
 Man. & Gr. 586. 
 
 (m) Major v. JT^ard, 5 Ha. 598 ; 
 which also see, as to mode of giving 
 notice : notice of dissolution of a 
 partnership has been held good, 
 
 although the party served was a lu- 
 natic ; and the Court said, it would 
 have been good had he been totally 
 blind and deaf ; Robertson v. Lockie, 
 10 Jur. 533, V. C. E. ; but see other 
 cases there referred to. 
 
 (m) Forster v. Hoggart, 15 L. T. 
 134, Q. B. 
 
 (o) 1 Mer. 268 ; 3 Dav. Conv. 
 95. 
 
 ip) 1 Atk. 87. 
 
 {q) See Chance on Powers, 727 to 
 737 ; and Att.-Gen. v. Sitwell, 1 Y. & 
 C. Ex. 559 : as to the question whe-
 
 SALKS BY FIDUCIARY VENDORS. 35 
 
 have seen that a consent is not necessarily invahd by ^^'lapt^"" ii. 
 reason of its effect being to benefit the consenting party (r) . 
 
 As to the 
 considera- 
 tion, they 
 
 (3.) As to the price for lohich they should sell: — 
 
 m. n i? tion, tnev 
 
 iney must sell tor a gross sum of monev, unless any must seii for 
 
 •' gross sum. 
 
 other consideration be specially authorized : for instance, 
 a sale in consideration of a rent charge {s) or annuity is 
 invalid [t) . Statutory owners under the Lands Clauses Con- 
 solidation Act (w) are expressly restricted to a sale for a 
 gross sum. .r ..■-.-- i'^£i::t.\>-'^-^ i,^ 
 
 They should use all reasonable diligence (v), as if the havt estate 
 estate were their own, to obtain a fair price ; and therefore, ^^'"^'^• 
 of course, should ascertain its value, even at the expense 
 of a valuation, where circumstances seem to render such a 
 course expedient ; if bound to sell by auction, or, perhaps, ^"eiy^'J^th. 
 in any case, they cannot safely, without special authority, fix ^kyffix^a 
 
 rcsyrvcd 
 
 a reserved bidding (-«,') : but such authority, if possessed, bidding; 
 should be exercised ; or, if wanting, should, if practicable, 
 be obtained. 
 
 It has been recently held by Lord Lang dale, that the ^*soh°!ft"^ 
 assignee of an insolvent, selling by auction at a price below bdow^re- 
 the sum fixed by the creditors for a reserved bidding, could caiTmake 
 make a good title to a purchaser ; but that he was answer- 
 able to the creditors if the discretion Avhich he had exer- 
 cised was improper {x) . 
 
 ther the consenting power of a tenant (i) Reid v. Shergnld, 10 Ves. 370, 
 
 for life is affected by the alienation 381. 
 
 of, or incumbrances on, his life estate, {u) Sect. 10. 
 
 see 5 Jarm. Conv. by Sweet, 161, et {v) Sug. 57. 
 
 seq.\ Warburton v. Farn, 16 Sim. {w) Taylor v. Tabrum, 6 Sim. 
 
 625 ; and Lord Leigh v. Lord Ash- 281 : see in re Hamlet, 7 Jur, 660; 
 
 burton, 11 Beav. 470, (where the where leave was given to Assignees 
 
 life estate was subject to judgments,) in Bankruptcy to fix such reserved 
 
 and cases cited. bidding as the Commissioner might 
 
 (r) Clark v. Seymour, 7 Sim. 67, approve. 
 
 supra, p. ,30. (y) Wright v. Maunder, G Jur. 71 ; 
 
 (s) Read v. Shaw, 2 Sug. Pow. 4 Beav. .512. 
 Appendix. 
 
 D 2 
 
 title.
 
 36 
 
 SALES BY FIDUCIARY VENDORS. 
 
 Chapter II. 
 
 Biddings 
 may be 
 opened in 
 Bank- 
 ruptcy. 
 
 Fiduciary 
 vendors not 
 responsible 
 for loss on 
 sale by auc- 
 tion. 
 
 .Statutory 
 owners can- 
 not fix 
 price. 
 
 As to sales 
 to Railway 
 Companies, 
 &c., by 
 trustees 
 under mere 
 discretion- 
 ary power ; 
 costs of re- 
 investment. 
 
 It appears [y) that the biddings for an estate sold in 
 Bankruptcy may be opened before conveyance^ upon terms 
 similar to those on which biddings are opened in Chan- 
 cery {z) ; and the practice, although disapproved of by Sir 
 E. Sugden {a), has been followed by V. C. K, Bruce in a 
 recent case [b). 
 
 As a general rule, fiduciary vendors, selling by auction, 
 and using all proper ^precautions to effect an advantageous 
 sale, incur no responsibility should the estate sell below 
 its value ; and Equity will even help the piu'chaser to his 
 bargain (c). 
 
 Under the Lands Clauses Consolidation Act, statutory 
 owners have no power to fix the price ; this must be 
 determined either by a jury, or arbitration, or valua- 
 tion [d) ', it is conceived, however, that a company agree- 
 ing with a statutory owner to purchase at a certain price, 
 is bound, if such price be subsequently ascertained, in 
 manner prescribed by the Act, to be a fair value for the 
 land (e) . 
 
 Where real property is settled in the usual way, with a 
 tenancy for life, and a discretionary power of sale in 
 trustees, and a trust for reinvestment of the purchase- 
 money in land, it may be a question whether the trustees 
 could be advised to exercise the power for the purpose of a 
 sale under the Lands Clauses Consolidation Act, except 
 under a special stipulation that the company shall bear the 
 costs of reinvesting the purchase-money, in the same way 
 as if the sale had been made by the tenant for life under 
 the statutory power (/) ; or with an increase of purchase- 
 money, as a special compensation for such costs. 
 
 (y) Ex parte Hutchinson, 2 Mon. 
 & Ay. 727 ; Ex parte Partington, 1 
 Ball & B. 209. 
 
 {z) Infra, Ch. XIX. 
 
 (a) Sug. 61. 
 
 {b) Exparte Lee, 12 Jur. 99o. 
 
 (c) 5 Madd. 440. 
 {d) Sect. 9. 
 
 (e) See Frend & Ware's Railway 
 Conv. 69. 
 
 (/) See sect. 80.
 
 SALES BY FIDUCIARY VENDORS. 37 
 
 Municipal Corporations can, under the above Act, sell chapter ii. 
 only with the consent of the Treasuiy {g) . munkfpai 
 
 If the assignee of a bankrupt, being unauthorized by the tions".'^^" 
 creditors, buy in the estate, he will, unless they subse- buyilgTn 
 quently sanction the step, be deemed a purchaser on his nlbie to be 
 
 j_/7\ Ti 1 • 1 held the 
 
 own account [fi) : and where the assignees put up the purchaser. 
 estate in two lots, and bought in both without authority, set off ^"^"^ 
 
 GxcGss on 
 
 and, on a resale, there was a loss upon lot A., but a erain resale of 
 
 ' r ; 5 one lot. 
 
 upon lot B., tliev were charged with the loss, and were not against de- 
 
 i- ^ •■ c } flciency on 
 
 allowed to set off the gain {i) . another 
 
 And trustees for sale, mortgagees, and agents, cannot, |'''i't^^^'. 
 Avithout incurring a risk of being held liable for any conse- scind[ng 
 quent loss, buy in the property, or annul a contract for sale nTbie'for 
 without special authority so to do [j). 
 
 (4.) As to general points relating to sales by fiduciary 
 vendors. 
 
 As a general rule, fiduciary vendors must show a market- fendors7 
 able title, and are in all respects Hable to a pm^haser as if raiiLbrnty; 
 they were absolute and beneficial owners [k) ; except that n^nts*^"^^ 
 they ordinarily enter into no covenants for title beside the 
 
 {g) Sect. 15 of Act. although the contract subsequently 
 {h) Ex parte Leu- is, Ex parte Bux- go off; unless, perhaps, it be clearly 
 ton, 1 Gl. & Jam. 69 & 355 : see shown that it could not have been 
 Ex parte Cuddon, 7 Jur. 334 ; S. C. enforced ; Hastings v. Wilson, Holt's 
 3 Mon. D. & De G. 302 : and see N. P. Ca. 290. As to the lessor's 
 Ex parte Tomkins, Sug. Appendix, right to compel assignees of bank- 
 No. IX. rupts or insolvents to elect whether 
 (/) Ex parte Lewis, 1 Gl. & Jam. they will accept or decline the lease, 
 69. The mere putting up a lease to see 6 Geo. IV. c. 16, s. 75 ; 12 & 13 
 sale by assignees who have not taken Vict. c. 106, s. 145; 1&2 Vict. c. 
 possession, without describing it as 110, s. 50 ; 7 & 8 Vict. c. 96, s. 12. 
 having belonged to the bankrupt, or (j) Tat/lor v. Tafjrum, 6 Sim. 281; 
 as belonging to themselves, will not Hill on Trustees, 492 ; but see Sug. 
 fix them as assignees of the lease, if 58. 
 
 not knocked down ; Turner v. Rick- (k) Sug. 61, 63; McDonald v. 
 
 ardson, 7 East, 335 ; sed contra, if a Hanson, 12 Ves. 277. 
 sale be effected and a deposit paid,
 
 38 
 
 SALES BY FIDUCIARY VENDORS. 
 
 Trustee of 
 legal estate 
 must con- 
 vey to trus- 
 tees for sale 
 of equitable 
 estate. 
 
 Sale by 
 trustees, 
 rarely re- 
 strained by 
 injunction. 
 
 Person as- 
 suming to 
 act as trus- 
 tee, and 
 signing re- 
 ceipt for 
 purchase- 
 money, 
 liable. 
 
 covenant against incumbrances (/) : and their liability 
 extends to costs in a suit for specific performance ; they 
 have, however, a general right, except in cases of mis- 
 behaviour, to recover such costs from the estate of their 
 beneficiaries. 
 
 Wliere an equitable fee is conveyed to trustees for sale, 
 the trustee of the outstanding legal estate must convey it 
 to them without requiring the concurrence of their cestui 
 que trust ; but if he do more than merely so convey, he will 
 be responsible for any breach of trust which he may thus 
 facilitate {m) . 
 
 It is only upon strong grounds, and where irreparable 
 injury is likely to be sustained by the parties interested, 
 or a clear breach of trust is about to be committed, that 
 the Court will, by injunction, stop an intended sale by fidu- 
 ciary vendors {n) . 
 
 We may here remark, that if a person, either rightfully 
 or wrongfully, assume to act as trustee for sale, and in that 
 character sign a receipt for purchase-money, he will be 
 answerable for it, whether he himself receive, or allow it to 
 be received by a stranger (o) . 
 
 (l) See Hill on Trustees, 269 ; 
 Worley v. Frampton, 5 Hare, 560 ; 
 vide infra, Ch. XII. 
 
 (»m) Angier v. Stannard, 3 Myl. & 
 K. 566, 567. 
 
 (w) See Ex parte Montgomery, 1 
 Gl. & J. 338 ; Marshall v. Sladden, 
 7 Ha. 428. 
 
 (o) Rackhani v. Siddall, 1 Mac. & 
 G. 607.
 
 39 
 
 CHAPTER III. chapterm. 
 
 AS TO THE RELATIVE DUTIES OF VENDORS AND 
 PURCHASERS PRIOR TO THE SALE. 
 
 1. As to the disclosure or concealment of defects, incum- 
 brances, ^c. by the vendor. 
 
 2. As to commendatory and other similar statements by 
 vendor. 
 
 3. As to the disclosure or coticealment of advantages by 
 purchaser. 
 
 4. As to depreciatory remarks or conduct by purchaser. 
 
 We mav next advert to some sreneral rules as to the relative Preliminary 
 
 " . negotia- 
 
 duties of intended vendors and purchasers before entering ^j^^^^'^^jj^t^^* 
 into an agreement for sale : they relate to — served m. 
 
 1st. The disclosm'e or concealment of defects^ incum- 
 brances^ &C.J by a vendor : 
 
 2ndly. Conunendatory and other similar statements by a 
 vendor : 
 
 3rdly. The disclosm-e or concealment of advantages by a 
 purchaser : 
 
 4thly. Depreciatory remarks or conduct by a purchaser. 
 
 (1.) As to the disclosure or concealment of defects, incum- f^^^^f^^ 
 brances, ^^c, by a vendor. ment of 
 
 defects, in- 
 
 Defects in an estate may be either patent, that is, such &c™ by 
 as might be discovered by ordinary ^^gllance on the part ot vendor 
 a purchaser ; e. a. the existence of an open footpath over pofnt"out 
 
 patent di.Q- 
 fect.
 
 40 
 
 Chapter III. 
 
 But must 
 not conceal 
 or divert 
 attention 
 from it. 
 
 Vendor 
 selling by 
 agent and 
 not commu- 
 nicating to 
 him mate- 
 rial defect, 
 allowed to 
 enforce 
 contract at 
 law. 
 
 But vendor 
 not disclos- 
 ing ZoteH^de- 
 fects cannot 
 enforce spe- 
 cific per- 
 formance. 
 
 RELATIVE DUTIES OF VENDOR AND 
 
 the property {a), or the ruinous state of buildings (b) ; or 
 latent, — that is, such as the greatest attention (c) would 
 not enable him to discover ; e. g. the existence of defects in 
 a ship's bottom when sold afloat {d) : it is held that a vendor 
 is not bound to point out patent defects (e) . 
 
 But he must not, either during a treaty for, or while 
 intending, a sale, endeavour to conceal a defect, or to divert 
 a purchaser's attention from it : in neither case, if proved, 
 can he enforce the agreement in Equity (/) : and in the 
 first, (as where a vendor, about to sell a house, purposely 
 plastered and papered over a defect in the main wall {g),) 
 the purchaser may recover his deposit at Law : and this, 
 although the estate be sold " with all faults (A) ." 
 
 But at Law, where the plaintiff, knowing that a nuisance 
 existed which rendered his house unfit for a residence, 
 employed an agent to dispose of it, without mentioning to 
 him the nuisance, and the agent, upon being asked by the 
 intended lessee whether there were any objection to the 
 house, rephed that there was not ; a majority of the Com*t 
 held, that this was no defence to an action for breach of 
 the agreement to take the house {i) ; inasmuch as the 
 plaintiff made no false representation, and the agent, 
 although he made one, did not know it to be false. 
 
 But, in a suit for specific performance, the decision would 
 doubtless have been in favour of the lessee ; and, in fact, a 
 vendor cannot, although the estate be sold subject to all 
 
 (a) OldfieU or Bowles v. Round, 5 Attwood, You. 490. 
 
 1 
 
 Ves. 508. 
 
 {b) Grant v. Munt, Coop. 177. 
 
 (c) Sug. 383. 
 
 id) See Mellish v. Motteux, 1 Pea. 
 Ca. 156. 
 
 (e) Sug. 2. 
 
 (/) Sug. 2 ; see Shirley v. Strat- 
 ton, 1 Bro. C. C. 440; Small v. 
 
 (^r) 4 Taunt. 785. 
 
 (A) Schneider v. Heath, 3 Camp. 
 506. 
 
 (0 Cornfoot v. Fowke, 6 Mee. & 
 W. 358 ; and see Wilson v. Fuller, 3 
 Ad. & E., N. S. (in error) 68; 3 
 Gale & D. 570.
 
 PURCHASER PRIOR TO SALE. 41 
 
 faults {j), rely on the aid of a Com-t of Equity, if he omit Chapter iii. 
 to disclose a latent defect which the purchaser has no means 
 of ascertaining {k) . 
 
 As to incumbrances and defects in title ; — A vendor 5^^"^* J""*': 
 
 duce deeds, 
 
 must produce to the purchaser all documents of title in his ma^teria'i'^'^'' 
 possession (/) or power; and inform him of all material nTednot"* 
 facts not apparent thereon (m) ; but he need not direct defecUn 
 
 title ; 
 
 attention to defects, &c., apparent on the title deeds («) ; 
 
 or to any matter of which the purchaser has actual or im- ot^wWch^'^ 
 
 plied notice ; for instance, upon the sale of leaseholds (o) Eas notice. 
 
 the stringent or unusual character of the covenants need not 
 
 be mentioned; as notice of the lease is notice of its contents; 
 
 but there must, of coiu'se, be no misrepresentation (p) 
 
 upon the subject, nor any artifice to divert attention. 
 
 And it may, perhaps, be doubted, Avhether the above whether it 
 
 •^ ^ -^ is universal- 
 
 rule as to notice, (general as are the terms in which it is n^yc^Vf"^* 
 
 laid down {q),) would, if the question arose in a suit for noTice'ofaii 
 specific performance, be held to apply so as to affect the 
 piu'chaser with notice of any matter in a lease which is 
 not in its natru'C incidental to such an instrument ; whe- 
 ther, for instance, such impUed notice, although extending 
 to unusual covenants on the sale of the term, would also 
 extend to a clause of pre-emption contained in a lease, 
 upon the sale of the reversion (r) . 
 
 It is conceived, that upon the purchase of an estate in w^hat facts 
 
 ■' ^ ^ are material 
 
 possession, those facts only are so far material as to render ^jth/nthe 
 
 above rule. 
 
 (j) Sug. 2. (p) See the judgment in Pope v. 
 
 (k) See Lucas v. James, 7 Ha. Garland, 4 Y. & C. 401, 402, and 
 
 410. cases cited. 
 
 {I) I Jarm. C. by S. 63. (g) See Sug. 8. 
 
 (m) Cooper, 312 ; and see Gibson (r) In Martin v. Cotter, 3 J. & 
 
 V. D'&^e, 2Y.&C.C. C.542; Sug. 6. L. 506, Sugden, C, intimates an 
 
 (w) Sug. 8. opinion that the doctrine as to a lease 
 
 (o) Hall V. Smith, 14 Ves. 426; being notice has been carried too far: 
 
 Pope V. Garland, 4 Y. & C. 394 ; and see Nelthorpe v. Hnlgate, 1 Coll. 
 
 Walter v.Maunde, 1 Jac. & W. 181 ; 203; and Flii/ht v. Barton, 3 Myl. 
 
 Smith V. Capron, 7 Ha. 189. & K. 282.
 
 42 
 
 RELATIVE DUTIES OF VENDOR AND 
 
 Chapter III. 
 
 Not matters 
 which in- 
 crease a 
 known risk ; 
 semble. 
 
 Except on 
 purchase of 
 a reversion- 
 ary inter- 
 est. 
 
 Vendor's 
 solicitor 
 liable for 
 misrepre- 
 sentation. 
 
 Purchaser 
 should in- 
 quire of 
 party sup- 
 posed to 
 have a claim 
 on the es- 
 tate. 
 
 Supposed 
 claimant 
 bound by 
 his state- 
 ment or 
 denial. 
 
 their disclosure obligatory upon the veudor, which aflfect 
 his power to give to the pvu-chaser that which he has con- 
 tracted for ; and that, if he buy subject to a known risk, 
 circumstances which increase the amount of risk need not, 
 in general, be stated ; for instance, it has been held that 
 the grantor of a personal annuity, or his agents, although 
 bound to give honest answers to all relevant questions put 
 by the intended grantee, need not voluntarily disclose 
 the fact of his being already imder large pecuniary liabih- 
 ties {s) ; but where the consideration for the annuity is a 
 reversionary interest belonging to the purchaser, the gran- 
 tor is bound, in Equity, to communicate to the purchaser 
 the unhealthy state of the proposed cestui que vie {t) . 
 
 And the mere preparation of an annuity deed by the 
 grantor's solicitor does not place him in any confidential 
 relation towards the grantee, even although no other 
 sohcitor be employed in the transaction [u] . 
 
 A solicitor, however, is liable, at law (v) and in Equity [w) , 
 who by his misrepresentation induces a person to purchase 
 his client's estate with a defective title. 
 
 We may also, in connection with the above head, ob- 
 serve, that a purchaser suspecting that a third person has 
 a claim on the estate, should {x), in the presence of wit- 
 nesses (who may take notes of what passes) {if), inquire of 
 him whether such be the fact, and the amount of his 
 claim ; at the same time stating his o^vn intention to pur- 
 chase {z) : and if such person deny the existence of his 
 claim, or assert that it is confined to a specified sum, he 
 will, in Equity, be bound by his denial or assertion (a) : 
 
 (.s) Adamson v. Evitt, 2 Russ. & 
 M. 72. 
 
 {t) Davies v. Cooper, 5 Myl. & Cr. 
 270. 
 
 (m) Adamson v. Evitt, 2 Russ. & 
 M. 72, 
 
 {v) Sug. 6, n. (/). 
 
 {w) Arnot v. Biscoe, 1 Ves. s. 96. 
 
 (x) Sug. 9 ; Ibhottson v. Rhodes, 
 2 Vern. 554. 
 
 (y) Doe V. Perkins, Z Durn. & E. 
 749. 
 
 (z) 2 Vern. 554. 
 
 (a) Pearson v. Morgan, 2 Bro.
 
 PURCHASEH PRIOR TO SALE. 43 
 
 but, although bound to answer truly, if at all, he may, it C 'aptcriii. 
 would appear, decline to answer, unless the intended pur- 
 chaser offer to redeem him {b) . 
 
 So, if the interest contracted for be merely equitable, gj,oukf^n- 
 
 the purchaser should inquire of the trustees whether there Trustees on 
 
 are any and what incumbrances; and, on completion, eciuitabie 
 
 estate, and 
 
 should give them notice of the sale ; this is advisable for give notice, 
 the sake as well of avoiding litigation with futm'e, as of does not 
 
 give pri- 
 
 discoverinff the existence of present incumbrancers : at the ority in case 
 
 ^ ^ _ of real 
 
 same time, when the purchase is of an equitable estate in estate. 
 land, it appears to be settled that no priority is obtained 
 by inquiry and notice (c) . 
 
 The trustees will be liable in Equity if they give false fJ^failF"^' 
 information, either fraudulently or merely through forget- is uabie. 
 fulness {(I). 
 
 (2.) As to commendatory and other similar statements by ^IndatTy 
 
 7 statements 
 
 a vendor. by vendor. 
 
 It may be laid down as a general rule, that mere ex- vendor not 
 
 •' o ' prejudiced 
 
 pressions of praise or affirmations of value, such as, that ^^^fg*" 
 an estate, sold as a renewable leasehold, is " nearly equal statements. 
 to freehold (e) ;" or that land, in fact imperfectly watered, 
 is " uncommonly rich water meadow land (/) -j" that a 
 house of mean character, is "a desirable residence for a 
 family of distinction [g] ;" will not, however objectionable 
 they may be in point of morality, avoid the contract in 
 Equity. 
 
 And the rule, perhaps, extends to any statement by a ,^„|™°^ere 
 vendor, which is, in effect, a mere expression of his own of Spinlo^n*! 
 opinion, and does not amount to an assertion of an inde- statementof 
 
 ^ facts. 
 
 C. C. .^88 ; and see 6 Ves. 183, and 4 70. 
 3 Ves. & B. 111. (e) Fenion v. Browne, 14 Ves. 144. 
 
 (b) See 2 Y. & C. C. C. 390, Bn;/- (/) Scott v. Hamon, 1 Sim. 13. 
 flen V. Bignold. (ff) Magennis v. Fallon, 2 Moll, 
 
 (c) Vide infra. 587. 
 (rf) Burroires v. Lock, 10 Ves.
 
 44 
 
 RELATIVE DUTIES OF VENDOR AND 
 
 Chapter III. 
 
 What mis- 
 representa- 
 tion will at 
 law avoid 
 the contract, 
 or sustain 
 an action. 
 
 Mis-state- 
 ment that a 
 life is a 
 healthy one, 
 not qualified 
 by guaran- 
 tee that it 
 is insurable 
 at specified 
 rate. 
 
 Valuation 
 of estate by 
 surveyor. 
 
 Offer for 
 purchase of 
 estate by 
 third 
 person. 
 
 Difference 
 between the 
 two last 
 cases. 
 
 pendent and ascertainable fact : such as, a statement, on 
 the sale of an advowson, that an avoidance is " likely to 
 occur soon (A) ;" or, on the sale of renewable leaseholds, 
 that the fine payable is " small (^) f if a purchaser choose 
 to rely on the vendor's opinion as to what is a small fine, 
 or a probability of speedy avoidance, he does so at his 
 peril. 
 
 And in the strong case of the vendor of an annuity 
 stating that the grantor, (then in prison for debt and in- 
 solvent,) " was a man of large property,'' he was held not 
 liable to an action of deceit at Law {j) . 
 
 Where, however, on the sale of a hfe interest, the par- 
 ticulars described the tenant for life as a very healthy 
 gentleman aged forty-eight, whose life was insurable, and an 
 insurance was guaranteed at five guineas per cent., and it 
 turned out that the vendors had recently insured the life 
 at a rate less than five gumeas j)er cent., but exceeding the 
 rate usually charged on healthy lives, their bill was dis- 
 missed with costs, although the purchaser 'admitted that 
 he knew five guineas to be more than the usual premium {k) . 
 
 And a false statement, by a vendor, of an independent 
 fact, — as, that the property has been valued by a surv eyor 
 at a specified sum, — will, if rehed on by the purchaser [l], 
 avoid the contract at law and in equity [m) ; and might, 
 perhaps, sustain an action at Law : but a vendor is not 
 liable to such action for the false assertion that a third per- 
 son has offered a specified sum for the estate {n) . 
 
 There Avould seem to be a clear ground of distinction be- 
 tween the two last cases ; for a purchaser might naturally 
 consider the opinion of a surveyor to indicate something 
 
 (A) TroiDer v. Neweome, 3 Mer. 
 704. 
 
 (?) Fenton v. Browne, 14 Ves. 144. 
 {j) Dawen v. King, 1 Stark. 75. 
 {k) Brealey v. CoUim, You. 317. 
 (/) See Clapham v. Shillito, 7 
 
 Beav. 146. 
 
 (m) Buxton v. Lister, 3 Atk. 386 ; 
 Small V. Attwood, 1 You. 407 ; Sug. 
 4 ; Lord Brooke v. Rounthicaite, 5 
 Hare, 298. 
 
 («) Sug. 3.
 
 PUUCHASER PRIOR TO SALE. 
 
 45 
 
 like the market value of the property, although he might ' -''^^t)tcriii . 
 attach little importance to the bare offer by an individual, 
 possibly made hastily and soon repented of: though cer- 
 tainly, in the reported case, the purchaser seems to have 
 been directly influenced by the mis-statement. 
 
 And a false statement that a specified rent is paid for the ^hen^fabie 
 premises (o), has been held to subject the vendor to an statement 
 action at law, although the purchaser did not rely on his "n. "^^ "^ 
 statement, but made inquiries of other persons ; who, it is 
 presumed, also deceived him. 
 
 And the same hability is incm-red by a stranger, who, Ihenlflbie 
 even from mere wantonness, intending to deceive, although statement. 
 without any view to gain, mak"es a false representation to 
 a purchaser as to the value or rent of the property ; nor is 
 it material that the sale is by auction instead of private 
 contract {p) ; Sir E. Sugden says [q), citing Sir W. Grant, 
 "In cases of this nature it will be sufficient to show, 1st, 
 that the fact as represented is false ; 2ndly, that the per- 
 son making the representation had a knowledge of a fact 
 contrary to it (r)." The rule is otherwise laid down by 
 Mansfield, C. J., who says, that "it signifies nothing 
 whether a man represents a thing to be different from 
 what he knows it to be, or whether he makes a representa- 
 tion which he does not know at the time to be true or 
 false, if in point of fact it tiu-ns out to be false {s) " : the 
 better opinion, however, seems to be, that, in order to 
 sustain an action at LaAV, there must be actual fraud ; that belctu^r 
 is, either an assertion, (with or without motive,) of what semUe. 
 the party knows to be untrue [t], or a commimication, 
 
 (o) Zy^ney V. 5?%, Ld. Raymond, 506; and see 1 Bra. C. C. 546; 3 
 
 1118. Ves. &B. Ill, andPefl>'«o«v.il/or^aM, 
 
 {p) Bardell v. Spinks, 2 Car. & 2 Bro. C.C. 388. 
 K. 646. (0 See Lord Campbell's judgment 
 
 {q) Sug. 5. in Wilde v. Gibson, 1 H. L. C. 633 j 
 
 (r) Burrowes\. Lock, 10 Ves. 476. and cases cited infra, n. {v), 
 
 [s) Schneider v. Heath, 3 Camp.
 
 46 
 
 RELATIVE DUTIES OF VENDOR AND 
 
 Cha pter III . fQj. ^ deceitful and fraudulent purpose, of that which is 
 in fact untrue, although he may not know it to be 
 so (?/). 
 
 S-"oh-ency A representation that a man is able to answer an obliga- 
 
 wdting. *" tion is not binding unless in writing {v) . 
 
 As to con- 
 cealment 
 and disclo- 
 sure of ad- 
 vantages by 
 purchaser. 
 
 Purchaser 
 need not 
 disclose con- 
 cealed ad- 
 vantages. 
 
 But cannot 
 sue in equity 
 if he mislead 
 the vendor. 
 
 And must 
 disclose fact 
 increasing 
 vendor's 
 interest in 
 the pro- 
 perty. 
 
 (3.) As to concealment and disclosure of advantages 
 by the purchaser. 
 
 A purchaser need not disclose any fact, unknown to the 
 vendor, which increases the value of the property itself; 
 e. g. the existence of a mine (w;) . 
 
 But anything, even a mere word, which tends to mislead 
 the vendor upon such a point, will deprive the purchaser of 
 the assistance of a Court of Equity {x) . 
 
 And a purchaser is boimd, in Equity, to disclose any 
 fact, uiikno\\Ti to the vendor, which increases his interest 
 in the property ; e. g. the actual {y) or imminent {z) death 
 of a prior life tenant. 
 
 As to depre- 
 ciatory re- 
 marks, &c., 
 by pur- 
 chaser. 
 
 Purchaser 
 depreciating 
 the proper- 
 ty to in- 
 tended 
 buyer can- 
 not sue in 
 equity. 
 
 Whether 
 liable to an 
 
 (4.) As to depreciatory remarks, ^c, by the purchaser. 
 
 A purchaser who has misrepresented the property to a 
 third person desirous of purchasing it, cannot enforce the 
 contract in Equity {a) . 
 
 A purchaser, hoAvever, is not liable to an action at Law 
 for having depreciated the value of the property, or the 
 vendor's chance of sale {b) : nor will an action lie against a 
 
 (m) See Foster v. Charles, 6 Bing. 
 396; Polhillx. Walter, 3 B. & Ad. 
 114 ; Shrewsbury v. Blount, 2 Man. 
 & Gr. 475 ; Freeman v. Cooke, 6 
 Dow. & L. 187 ; Taylor v. Ashton, 
 11 Mee. & W. 401. 
 
 {v) 9 Geo. IV. c. 14, s. 6 : see 
 Hasloclc v. Fergnsson, 1 Ad. & El. 
 86. 
 
 (w) 2 Bro. C.C. 420; Jar. 178. 
 
 Or) Jac. 178. 
 
 (y) Turner v. Harvey, Jac. 169; 
 and see Davies v. Cooper, 5 Myl. & 
 C. 270. 
 
 {z) Ellardw. Lord Llandaff, 1 Ball 
 & B. 241. 
 
 {a) Hovard v. Hopkyns, 2 Atk. 
 371. 
 
 (/y) Vernon\. Keys, 12 East, 632 ; 
 see p. G38.
 
 PURCHASER PRIOR TO SALE. 
 
 47 
 
 stranger for preventing a sale by giving notice of his claim Chapter iii. 
 upon the estate, unless it be shown that such notice was law. 
 given maliciously (c) : and, in any case, in order to sup- fitfeby^^^ 
 port an action for slander of title, the Plaintiff must prove ^ •''^^ser. 
 falsehood, malice, and special damage {d). 
 
 It appears that an agreement between two persons, not ^1^*;^^^"* 
 to bid against each other at an auction, is not illegal ; and against at 
 forms a good consideration for an agreement giving to the missibie. 
 party withdrawing his opposition at the auction a right of 
 pre-emption over other property {e) . 
 
 It may be remarked that, when a written agreement ^^^g°^ 
 between the parties has once been entered into, all previous o^''pr^fn°f- 
 representations become immaterial, except for the purpose tiatfons^" 
 of defence in Equity (/), or of rebutting a defence, and so 
 maintaining the wi'itten contract. 
 
 (c) See Sug. 423, and cases cited. (e) Galton v. Emms, 1 Coll. 243. 
 
 {d) Brook V. Rawl, 19 L. J. 114, (/) Haynes v.Hare, 1 H.Bl. 664. 
 
 Exch.
 
 48 
 
 Chapter IV. 
 
 CHAPTER lY. 
 
 AS TO THE PARTICULARS AND COXDITIOXS OF SALE. 
 
 Doubtful 
 particulars 
 and condi- 
 tions con- 
 strued 
 strictly 
 against 
 vendor. 
 
 But not so 
 as to con- 
 travene rule 
 of law or 
 universal 
 custom. 
 
 1. General matters relating to particulars and condi- 
 tions, and their construction. 
 
 2. Preparation and contents of particulars. 
 
 3. As to the conditions. 
 
 4. As to what special conditions are generally requisite 
 in various specified cases. 
 
 5. General remarks on special conditions. 
 
 (1.) Particulars and conditions of sale^ if intended to ex- 
 clude the purcliaser from "vvliat lie would otherwise be 
 entitled to^ must be expressed in terms the most clear and 
 unambiguous («) ; if there be any chance of reasonable 
 doubt or misapprehension as to their meaning, the con- 
 struction will be in his favoiu" {b) . 
 
 It seems_, however, that general expressions may not be 
 so read by a purchaser as to make them contravene a well 
 known rule of law, or universal custom, if they be capa- 
 ble of bearing a modified meaning; as where the par- 
 ticulars stated that the fines of a manor about to be sold 
 were arbitrary, it was, in the opinions of Lords Campbell 
 and Brougham, no misdescription, when it was shown that, 
 (the fines on alienation being arbitrary,) those on the 
 
 (a) Symom v. Jatnes, 1 Y. & C. C. C. 562 ; Smith v. Ellis, 14 Jur. 
 C.C. 490. 682. 
 
 (b) S. C. ; Smton v. Mapp, 2 Coll.
 
 PARTICULARS AND CONDITIONS. 49 
 
 admission of a widow to freebench were certain ; inasmuch ^'hainer i v. 
 as such latter fines never are arbitrary (c) . 
 
 And even when the conditions are such as would not, ^^^ ^^J 
 under ordinary circumstances, be enforced in Equity, a whoreatten- 
 purchaser may be bound if his attention be drawn to their rcctcd to 
 
 their objec- 
 
 obiectionable nature before he buys : as where, upon a tionaWe 
 
 ■' J ' ' s: character. 
 
 sale under catching conditions as to title, he inquired, 
 " whether a good and marketable title could be made ?" 
 and the auctioneer and vendor's solicitor refused to insert 
 any such statement in the conditions, but said that a good 
 title could be made under the existing conditions, the pur- 
 chaser was held to his bargain {d) . 
 
 Any undertakinar on the part of the vendor \\\\\, it is vendors 
 
 •^ ° ^ _ _ undertak- 
 
 conceived, as a general rule, be construed strictly in favour ii ?? sfictiy 
 
 ' G ' » con:rtrued. 
 
 of tlie purchaser; in fact, in a recent case, where, in an 
 agreement for a twenty-one years' lease of a house in 
 Highbmy Place, it was stipulated, that there should be a 
 " covenant by lessor for quiet enjoyment by the tenant, 
 and not to let any of the land near Highbmy Place, for 
 the pm-pose of making and burning bricks," it Mas held, 
 by Y. C. Wigram, that the lessor must show his title 
 to bind the adjoining land by such a covenant during the 
 proposed term ; although it appeared, on the face of the 
 agreement, that the lease was to be granted under a power 
 contained in a Will (e) : but this decision was reversed by 
 Lord Cottenham (/) . 
 
 As a general rule, the particulars and conditions cannot ^jfj,°"aJ,i^.f. 
 be contradicted, explained, or added to, by any verbal ejlormtded 
 declarations at the time of sale {g) ; evidence of such deciarl-^' 
 declarations is inadmissible at Law on behalf of either 
 
 (c) White V. Cuddon, 8 CI. & F. (/) i\ C. 12 Jur. TOO. 
 
 see pp. 786 and 796. {g) 1 Jai-. & W. 639 ; Sug. 22 ; 
 
 {il) Hyde V. Dallaivai/, It Jur. l\d ; Hir/r/inson v. Clowes, 15 Ves. 521; 
 
 4 Beav. 606. and see Manser v. Back, 6 Ila. 443. 
 
 {p) Dawes v. Belts, 12 Jur. 412.
 
 50 
 
 PARTICULARS AND CONDITIONS. 
 
 Chapter IV. 
 
 Such decla- 
 rations in- 
 adniissible 
 at hiw, and 
 (if tendered 
 by plaintiff) 
 in equity. 
 
 Rule the 
 same be- 
 tween pur- 
 ch;iser and 
 sub-pur- 
 chaser. 
 
 Verbal de- 
 clarations at 
 sale why 
 prejudicial 
 to pur- 
 chaser. 
 
 Should be 
 reduced into 
 writing. 
 
 Particular 
 information 
 to pur- 
 chaser, or 
 declarations 
 by auction- 
 eer, may be 
 defence in 
 equity 
 a,iiainst spe- 
 cific per- 
 formance. 
 
 Alteration 
 of printed 
 particulars 
 and asree- 
 
 plaintiff or defendant {h) ; and in Equity on behalf of the 
 plaintiff; even although the defendant (the purchaser) 
 have agreed in writing to abide by the conditions and 
 declarations at the sale (i). 
 
 And the same rules apply between the original purchaser 
 at a sale^ and his sub-purchaser [j). 
 
 When the auctioneer has_, at the sale, made verbal de- 
 clarations at variance with the particulars, &c., a purchaser 
 would seem to be under this disadvantage, viz., that if the 
 Court were clearly satisfied that lie heard and understood 
 the effect of the verbal declarations, he probably would not 
 obtain a decree for specific performance without the varia- 
 tions, supposing them to be to his prejudice {k) ; nor, on 
 the other hand, could he enforce specific performance with 
 the variations, supposing them to be in his favour : a pur- 
 chaser, buying under such circumstances, should have the 
 requisite alterations made in the printed particulars or 
 conditions before the agreement is signed by himself and 
 the vendor : although, in cases where the vendor is selling 
 under a power or trust, this might occasionally give rise 
 to questions with the parties beneficially interested. 
 
 But any particular personal information given to the 
 purchaser, as to incumbrances, or the title, or even decla- 
 rations on such points by the auctioneer, may be given in 
 evidence by vendor or purchaser as a defence against a suit 
 for specific performance according to the particulars, &c. ; 
 but do not seem to be admissible on behalf of the plain- 
 tiff (/). 
 
 Where the alteration was made in the printed parti- 
 culars, and the altered copies Avere first produced in the 
 
 (h) Powell ■v. Edmunds, 12 East, 6. 
 
 (i) Hiyyinson v. Clowes, 15 Yes. 
 521. 
 
 {j) Sheltoii V. Livius, 2 Cromj>. & 
 J. 411. 
 
 (^-) Sug. 23 ; Ogilvie v. Foljambe, 
 ?> Mer. 53 ; Woodward v. Miller, 2 
 Coll. 279. 
 
 (0 15 Vcs. 23; 1 Ves. & B. 
 524.
 
 of vendor. 
 
 PARTICULARS AND CONDITIONS. 51 
 
 auction-room on tlie morning of sale, and the auctioneer, chapter iv. 
 having read and sold by an altered copy, inadvertently ^ unaiter-*^ 
 signed agreements indorsed on unaltered copies, it was 
 held, that a purchaser could not enforce specific perform- 
 ance according to the particulars as originally pubhshed ; 
 although it did not appear that he had heard the auc- 
 tioneer read the altered copy, or had any knowledge of the 
 alteration {ni). 
 
 If the sale be stated to be made " without reserve," the fo^jfe wlth- 
 employment of a bidder to protect the estate («) , or any no wddTng' 
 
 ., ii-iT/\ allowable 
 
 private arrangement eqmvalent to a reserved biddmg (o), on behalf 
 will vitiate the sale even in Equity ; at Law there seems 
 to be an inclination to carry the doctrine still further ; and 
 where the intention is to reserve a bidding, it is prudent 
 to notice it in the particulars or conditions (p) , 
 
 (2.) As to the preparation and contents of the particulars. Particulars. 
 
 The particulars should fairly and accm-ately describe the ^/propP*rty 
 estate; if, although grammatically correct, they are so fal/and 
 obscure as to be hkely to deceive an ordinary pm-chaser, 
 the sale will be Hable to be set aside {q) . 
 
 An agreement to sell land, is, in the absence of any re- ^feuTaTd, 
 strictive expressions, an agreement to sell the whole of the hicfudes. 
 vendor's interest therein (r) ; and such interest, if not de- 
 scribed, will be inferred to be an estate in fee simple {s) ; 
 and, unless the contrary be expressed, the mterest offered j^"dents 
 for sale, (whether it be absolute or qualified,) will be pre- ed^'to at"™' 
 
 (m) Manser v. Back, 6 Ha. 443. & C. C. C. 658 ; Symons v. James, 
 
 (n) Meadoivs v. Tanner, 5 Madd. ib. 490; Martin ^.Cotter, .3 J. & Lat. 
 
 34. 496. 
 
 (o) Robinson v. Wall, 10 Beav. (r) Bower v. Coojier, 2 Ha. 408. 
 
 61 ; 2 Ph. 372. («) Sug. 339; Hughes v. Parker, 
 
 (p) See Thornpft v. Haines, 15 8 Mees. & W. 244 ; and see, Cattel 
 
 Mees. &W. 371, 372. v. Corrall, 4 Y. & C. 228, 236. 
 
 {q) Taylor v. Martindale, 1 Y. 
 
 E 2
 
 o:z 
 
 PARTICULARS AND CONDITIONS. 
 
 Chapter IV. 
 
 company 
 the pro- 
 perty. 
 
 Minerals, 
 unless nam- 
 ed, not in- 
 cluded in 
 sale to Rail- 
 way or 
 Waterworks 
 Company. 
 
 Particulars 
 or condi- 
 tions must 
 notice per- 
 manent 
 charges, or 
 rights re- 
 strictive of 
 absolute 
 enjoyment 
 of property. 
 
 Rights of 
 way. 
 
 And any- 
 thing which 
 may deter- 
 mine vend- 
 or's interest. 
 
 sumed to be accompanied by all those advantages wliich 
 are legally incidental to it. Therefore, an infringement of 
 the rule, Cujus est solum ejus est usque ad coelum, is, (if not 
 mentioned in the particulars,) sufficient to avoid the con- 
 tract as against the piu-chaser {t). 
 
 But an agreement to sell land to a Railway {u) or 
 Waterworks Company (v), if subject to the provisions of 
 the late Consolidation Acts, does not include the minerals, 
 unless they are expressly comprised in the pm'chase. 
 
 So, any charge upon the estate, or right restrictive of the 
 purchaser's absolute enjoyment of it, and the release of 
 which cannot be procured by the vendors, should be stated; 
 or the omission may, in many cases, avoid the sale as 
 against the pui'chaser {w) ; e. g., a right of sporting over 
 the estate [x), a right of common every third year (?/), a 
 right to dig for mines (^r), a liabihty to repair the church 
 chancel {a), or, (it is conceived,) a liability to heriots, or 
 any other right or liability which cannot fairly admit of 
 compensation, would, if undisclosed, have that effect. 
 
 Rights of way (if any) should be referred to ; for although 
 a mere non-disclosm-e of their existence, might not, in ge- 
 neral, avoid the contract (6), the Com-t would readily lay 
 hold of anything in the particulars, &c., at all inconsistent 
 with their existence, as a ground for relie^dng a purchaser. 
 
 So, if the vendor's interest be in any way determinable, 
 the fact should appear ; for when a redeemable annuity was 
 offered for sale, simply as an annuity (c), and leasehold 
 houses were sold, without any mention being made of a 
 
 (/) Pnpp V. Garland, 4 Y. & C. Ad. Ca. .50. 
 403. {z) Seaman v. Vairdrey, 16 Ves. 
 
 {n) 8 Vict. c. 20, s. 77. 390. 
 
 (») 10 Vict. c. 17, s. 18. («) Forfeblow v. Shirley, 2 Sw. 
 
 (w) Sug. 352, 353. 223. 
 
 {x) Buniell v. Brown, 1 Jac. & {b) Oldfeld or Bowles \\ Round, 
 
 W, 172. 5 Ves. 508. 
 
 {y) Gibson v. Spurrier, Peake's (c) Coverley v. Burrell, Sug. 29.
 
 PARTICULARS AND CONDITIONS. 53 
 
 private Act of Parliament which gave a Company the right Chapter iv. 
 to purchase them [d), the sales were held invalid. 
 
 The vendor, however, is not bound to mention in the But not 
 
 ^ ' matter of 
 
 particulars any matter affecting the property, and of which ^jj;^'^^^^?,'^^; 
 the pui'chaser has notice: e.g., on the sale of leaseholds, "tHnlent^" 
 the fact that the covenants and restrictions in the lease are '^onllitof 
 
 , leaseholds. 
 
 unusually stringent, need not be stated : tor the purchaser, 
 having notice of the lease, should satisfy himself as to the 
 contents before he buys {e) . 
 
 So, on the sale of copyholds, the particulars need not Or^f°j^^^°^„ 
 refer to the fines or customs of the manor ; these being ^^Jfyf^ids. 
 generally incidental to copyhold tenure (/) . 
 
 So, where, on the sale of freeholds, it distinctly appears or quit 
 
 ^ •' rents, ike, 
 
 by the particulars that the land is held of a manor, it is "^^^^^^.^l 
 
 conceived, that the vendor need not refer to the existence i>eehoid. 
 of quit rents, or even heriots {g) ; the fair and proper 
 
 com-se, however, would be to mention the fact : so, where orstatutory 
 
 ' ' local taxes. 
 
 land is sold as Fen land, the particulars need not refer to 
 Embanking and Drainage Taxes, to which it is subject under 
 a local but public Act of Parliament (A) . 
 
 So, on the sale of lands within the mining districts, any *^'Ji°*°^,i°"* 
 reference to the rights of minmg (i), mider the local cus- ^°'"'- 
 toms, would, it is conceived, be unnecessary ; as their exist- 
 ence is matter of notoriety. 
 
 But the particidars must contain no misrepresentation ; ^^^t bl'no 
 e. a., if, on the sale of leaseholds, the terms of the lease "ntS"; 
 
 1 T_ 1, J.T, e-!/, mis- 
 are misstated, the sale mav be set aside; even although the statement of 
 
 ' "■ terras of 
 
 auctioneer read the lease at the sale (j) . S^h^read 
 
 at sale. 
 
 {d) Ballard v. Way, 1 Mee. iSc Q. B. 20 ; showing that heriots may 
 
 W. 520. be due in respect of freeholds. 
 
 (e) Hall V. Smith, 14 Ves. 426 ; (k) Barraud v. Archer, 2 Sim. 
 
 Pope V. Garland, 4 Y. & C. 394 ; 433 ; affirmed, 2 Russ. & Myl. 751-. 
 
 Paterson v. Long, 6 Beav. 590. (0 As to which see Rogers v. 
 
 (/) See and consider, White v. Brenton, 12 Jur. 263. 
 
 Ciiddon, 8 CI. & Fin. 766. 0') Flight v. Booth, 1 Bing. N. C. 
 
 (.«7) See Damerell v. Protheroe, 10 379 ; Jones v. Edney, 3 Camp. 285,
 
 54 
 
 PARTICULARS AND CONDITIONS. 
 
 Chapter IV. 
 
 Or of di- 
 mensions of 
 property, 
 although in 
 occupation 
 of i)ur- 
 chaser. 
 
 Nor any- 
 thing calcu- 
 lated to 
 deceive, or 
 lull suspi- 
 cion. 
 
 Reference 
 to decep- 
 tive plan. 
 
 Or decep- 
 tive state- 
 ment as to 
 liability 
 under cove- 
 nants in 
 lease. 
 
 On sale of 
 lease, remo- 
 val of build- 
 lugs which 
 lessee must 
 deliver up 
 at end of 
 term, must 
 be stated. 
 
 So, where property thirty-three feet in depth was de- 
 scribed as forty-sLx feet deep, the purchaser was allowed an 
 abatement, although he was the occupying tenant {k) . 
 
 And the effect of what would otherwise be notice may 
 be destroyed, not only by actual misdescription or mis- 
 statement, but by anything calculated to deceive, or even 
 lull suspicion, upon the particular point ; as where lot A. 
 (building land), was expressed to be sold subject to the 
 rights of way reserved by the existing leases of adjoining 
 property B., and a plan, specially referred to in the particu- 
 lars, disclosed a carriage-way reserved over A. to B., and 
 also a way reserved over A. to another lot C, but gave 
 no indication of another way reserved over A. to B., the 
 particulars and plan were treated as deceptive, and the 
 purchaser was not held bound, under the particular cir- 
 cumstances, to have inspected the leases (/) . 
 
 So, where a lessee sold, (by way of underlease,) part of 
 a demised estate, and the particulars mentioned that the 
 original lease contained a power of re-entry on breach of 
 a covenant against certain trades being canied on upon 
 the premises, and that the pm-chasers must enter into 
 similar covenants, but did not state the fact that some 
 underleases, already granted of parts of the property, con- 
 tained no such covenants, the purchaser recovered his 
 deposit at Law {m). 
 
 Vfhere a lease, which contains the usual covenant to 
 deliver up the premises in good repair at the end of the 
 term, is sold, and any of the demised buildings have been 
 removed, the fact should be stated : the omission of the 
 buildings from the particulars is not sufficient [n] . 
 
 and see Va7i v. Corpe, 3 Myl. & K. 
 2Jo9 ; Fliffht V. Barton, ib. 282. 
 
 (Jc) King v. Wihon, 6 Beav. 124. 
 
 (/) Dykes v. Blake, 4 Bing. N. C. 
 463 ; and see Gibson v. D'Este, 2 Y. 
 & C. C. C. 542. 
 
 (?w) Waring v. Hoggart, Ry. & 
 Moo. 39 ; and see Dawes v. Betts, 
 12 Jur. 412, 709. 
 
 («) Granger v. Worms, 4 Camp. 
 83.
 
 PARTICULARS AND CONDITIONS. 55 
 
 As respects commendatory statements and descriptions Chapterrv. 
 
 in the particulars, we may refer to the observations akeady i^gi°tite?' 
 
 made in Ch. III. : a fair and correct description will, in pS^cuiars. 
 the average, be found to be as agreeable with sound pohcy 
 as it is with morality. 
 
 When a plan of the estate is attached to, or accompanies. Reference 
 
 '■ •' -t^ •' to erroneous 
 
 the particulars, and is incorrect, it will be a material con- t^'*^"* 
 
 sideration with a Court of Equity whether the purchaser 
 
 was thereby misled : but, if accurate, it is merelv tanta- To »" accu- 
 
 •^ _ •' rate plan, is 
 
 mount to a view of the property ; so that when an estate tamolfnt to 
 was sold in lots, and it correctly appeared by the plan that l^^Z.e! 
 lot 1, an Inn, was supplied with water by a drain leading 
 from a well in lot 4, this was held not to amount to any 
 engagement on the part of the vendor that there should be 
 any reservation of a right to water in the conveyance of 
 lot 4 : and a bill filed by the purchaser of lot 1 for com- 
 pensation, was dismissed with costs (o) . 
 
 So, on the sale or lease of building-ground, the exhibi- To plan 
 
 " " shewing in- 
 
 tion, on the plan, of intended improvements on the adjacent tended ad- 
 land, does not bind the vendor or lessor to execute such P^ovements. 
 improvements [p] : although it appears that a vendor would 
 not be allowed to divide and appropriate the land in a dif- 
 ferent manner, so as to attract an occupancy and popula- 
 tion entirely different from that which would probably have 
 been produced by acting on the plan proposed and held out 
 at the sale (q) : nor, on the other hand, when a house is ^^tement 
 sold " with all its lights,^' does a statement in the particu- in^^anils' 
 lars that adjoining land is building-land, authorize the [""nd.'"^' 
 vendor, or a purchaser of the adjoining land, to build 
 thereupon, so as to obstruct such lights (r) . 
 
 (o) Fewster v. Turner, 6 Jur. Schreiber v. Creed, 10 Sim. 9. 
 
 144; and see Dykes -v. Bla/cCii Bing. (q) Peacock v. Penson, 11 Beav. 
 
 N, C. 463. 355. 
 
 (p) Feoffees of Heriot's Hospital {r) Stimnsborough v. Coventry, 9 
 
 V. Gibson, 2 Dow, 301 ; Sqnire v. Bing. 305. 
 Campbell, 1 Myl. & Cr. 459 ; see
 
 56 
 
 PARTICULARS AND CONDITIONS. 
 
 Chapter IV. 
 
 Vendor of 
 
 house 
 
 retaining 
 
 adjoining 
 
 land cannot 
 
 obstruct 
 
 lights. 
 
 Meaning of 
 
 patticular 
 
 expressions. 
 
 " Brick-built 
 house i" 
 
 " Clear 
 yearly 
 rent ;" 
 
 "Farm;" 
 
 "Free pub- 
 lic house ;" 
 
 " Ground 
 rent ;" 
 
 And it may be here remarked^ that it is well established 
 that where the same person possesses a house, having the 
 actual use and enjoyment of certain lights, and also pos- 
 sesses the adjoining land, and sells the house to another 
 person, although the lights be naw, he cannot, nor can any 
 one who claims under him, build upon the adjoining land 
 so as to obstruct or interrupt the ^enjoyment of those 
 lights (5) . 
 
 In the construction of particulars of sale, the Courts 
 have attached the following meanings to the following 
 expressions ; viz.. 
 
 By the description of a house as " brick -built,'^ is under- 
 stood brick -built in the ordinary sense of the word ; not 
 composed externally partly of brick, and partly of timber 
 and lath and plaster if) : 
 
 By " clear yearly rent," is understood a rent clear of all 
 outgoings, &c. usually borne by the tenant ; but subject to 
 such (as land tax) as are borne by the landlord (w) : 
 
 The expression " farm," includes woodland, part of the 
 estate, although not in the occupation of the Tenant {^) ; 
 
 The expression " free public house," is a misdescription 
 when the lease contains a covenant to take beer from the 
 lessor {w) : 
 
 By the expression " ground rent," if imexplained, is to 
 be understood a rent less than the rack rent of the pre- 
 mises : its proper meaning is the rent at which land is let 
 for the purpose of improvement by building (a) . 
 
 (s) Per Curiam, 9 Bing. 309. 
 (0 Powell V. Doubble, Sag. 30. 
 (m) 2 Yes. sen. 500. 
 
 {v) Portman v. Mill, 3 Jur. 356. 
 {w) Jones V. Edney, 3 Camp. 285. 
 {x) Stewart v. J His ton, 1 Mer. 26.
 
 PARTICULARS AND CONDITIONS. 57 
 
 Chapter IV. 
 
 (3.) As to the conditions. conditions. 
 
 In tlie absence of stipulation, a bidder at an auction ^^f^^^^f^g 
 may, audibly, before the fall of the hammer, retract his '^'^dings. 
 bidding {y) ; a condition negativing this right is almost 
 always inserted, and is recommended by Sir E. Sugden, ^^^^^l^^"^^ 
 who nevertheless expresses his opinion that it cannot be 
 enforced [z) : such a condition, however, was recently held 
 to bind a mortgagee's solicitor, who bid at a sale of the 
 mortgaged property made by the Court with the mort- 
 gagee's conciu'rence (a) . 
 
 On sales by auction, a reserved bidding, if desned, should f^ biSgl 
 be provided for by the conditions : it does not, however, ap- ne&essary 
 pear that the employment of a bidder merely to protect the 
 estate from a sale at an undervalue, will, in Equity, avoid 
 the sale, unless it be stated to be without reserve [b] . 
 
 On a sale by auction, it is usual to require, by the con- ^J^^IH' 
 ditions, payment of a deposit by the purchasers ; and, in "fd^posit! 
 many cases, this may be a prudent precaution on a sale by 
 private contract : if the deposit will amount to a large sum, 
 it may be well to provide for its investment, (Exchequer 
 Bills are usually selected,) in order that there may be no 
 loss of interest, nor liability from the depreciation of 
 securities. 
 
 It is also the ordinary practice to insert a condition of"abstract7 
 that the vendor shall, within a specified time, at his own 
 expence, make and deliver to every pm-chaser an abstract 
 of the title to the lot or lots purchased by him; but 
 the vendor is, independently of any condition, bound to 
 deliver an abstract; a delivery of the title deeds is not 
 
 iy) Payne v. Case, 3 Durn. & E. (A) Sug. 16 ; Woodward v. Mil- 
 US,, ler, 2 Coll. 279 ; vide infra, Ch. V. 
 (r) Sug. 20. and svpra, p. 51. 
 («) Freer v. Rininer, 14 Sim. 391.
 
 58 
 
 PARTICULARS AXD CONDITIONS. 
 
 Chapter IV. 
 
 Restrictive 
 of purchas- 
 er's right to 
 abstract, 
 when expe- 
 dient. 
 
 " Abstract," 
 in conditions 
 as to time, 
 means "per- 
 fect ab- 
 stract." 
 
 Effect of 
 non-deli- 
 very of, on 
 conditions 
 as to time. 
 
 Condition 
 for time of 
 completion, 
 and as to 
 interest. 
 
 sufficient (c) : the condition, however, is useful as fixing 
 the time for dehvery. 
 
 When the lots are small, and the title is voluminous, it 
 may be well to pro^-ide, that no purchaser whose aggregate 
 purchase-money shall not amount to a specified sum shall 
 be entitled to an abstract, (or an abstract going beyond a 
 certain date,) except at his own expence : in such a case it 
 may be well to stipulate that a full abstract shall be 
 deposited with the vendor's solicitor, or elsewhere, for 
 inspection by purchasers. 
 
 If any other condition refer to "the dehvery of the 
 abstract," this, in any question as to time, will be held to 
 mean the dehvery of 2i perfect abstract {d) : i. e., an abstract 
 as perfect as the vendor could fiu-nish at the time of 
 dehvery (e). 
 
 If the vendor fail to dehver a perfect abstract within the 
 time specified, the pm'chaser is relieved from any condition 
 binding him to object to the title within a given period 
 from dehvery of the abstract (/) : it is not unusual to 
 guard against this rule, by proAiding, (in the condition as to 
 objections,) that " an abstract shall, as regards any objec- 
 tion or requisition, be considered perfect, if it supply the 
 information suggesting the same, although it may be other- 
 Tvase defective" (g). 
 
 It is usual, and proper, in every case, to specify in the 
 conditions the day on which the purchase is to be com- 
 pleted, and from which day the purchaser is to have pos- 
 session of the estate, or (if it be in lease) receipt of the 
 rents and profits, and to pay interest upon the purchase- 
 money if not then paid ; and up to which day the vendor 
 is to pay the oiitgoings. This condition, as to time, will 
 
 (c) Sug. 431 ; Home v. Wing- 
 fieM, 3 Scott, N. R. 340. . 
 
 (rf) Hobson V. BpU, 2 Beav. 17. 
 (e) Morley v. Cook, 2 Ha. 1 1 1 . 
 
 (/) Blacklow V. Laws, 2 Ha. 40 ; 
 
 Southby V. Hutt, 2 Myl. & Cr. 211. 
 
 {g) And see also vifra, Ch. VIII.
 
 PARTICULARS AND CONDITIONS. 
 
 59 
 
 not, hoAvever, in ordinary cases, be binding in Equity, ch apter iv. 
 unless time be declared to be of the essence of the con- 
 tract (h) . It is generally thought best to provide that the fKor pay- 
 arrangement as to payment of interest and receipt of the terest in aii 
 profits, &c., shall hold, whatever may be the cause of delay 
 in completion : and it was, until recently, the general 
 opinion, that the purchaser must, under such a condition, ^ou^dukfn.^^ 
 pay interest during the time spent in clearing up the 
 title {i) : although, of com'se, it would not justify the 
 vendor in wilful delay {j ) : but where the expression was, 
 " if from any cause whatever the purchase-money shall not 
 be paid on, &c., the pui'chaser making default shall pay 
 interest," &c., it was decided, that the pm*chaser was 
 exempted fi-om payment of interest when the delay arose 
 from the state of the title ; inasmuch as he had made 
 no default {k) : in a modern case, at Law, where the agree- 
 ment was that the piu'chaser should pay interest from the 
 day fixed for completion, if completion " should be delayed 
 on his part," and the vendor and his trustee were ready to 
 complete on the day named, but the purchaser was not 
 prepared, and afterwards, when the purchaser was ready, 
 the vendor's trustee refused to concm-, it was held that 
 interest was not payable after the latter date {I) : in a recent %l ^ime/' 
 important case {ni), where the pui'chase was to be com- 
 pleted and the money paid on a certain day, " but if the 
 pm'chaser shoidd fail in making such payment, then, from 
 Avhatever cause the delay might have arisen," interest was 
 to be paid at five per cent. ; and considerable delay arose in 
 making out the title, it was held, either that the purchaser 
 
 (k) Vide infra, Ch. X. G. & S. 689 ; 12 Jur. 89. 
 
 (?) See Greenwood v. Churchill, 8 (/) Perry v. Smith, 1 Car. & M. 
 
 Beav. 413; Esdaile v. Stejjhenson, 1 554. 
 Sim. & St. 122. (»m) De Viame v. De Visme, 1 Mac. 
 
 (_;■) S. C. ; see the judgment in De & G. 336 ; vide infra, Cli. Xlll. as 
 
 Visme v. De Visme, 1 Mac. & G. 336. to payment of interest. 
 
 (k) Denning v. Henderson, 1 De
 
 60 
 
 PARTICULARS AND CONDITION'S. 
 
 Chapter IV. yrsis not bouiid to pay interest irntil a good title was shown, 
 or that, if bound by the condition to such payment, he was 
 entitled to an equivalent compensation from the vendor : 
 probably a condition that " if from any cause whatever, other 
 than the wilful and capricious refusal of the vendor to make 
 out his title or to convey the estate, the purchase shall not 
 be completed on the specified day, the purchaser shall 
 thenceforth pay interest on so much of his purchase-money 
 as for the time being shall remain unpaid, and shall have 
 no claim to compensation in respect of the delay in comple- 
 tion," might escape the rule laid down in De Visme v. De 
 Visme. 
 
 Condition Wc may licre remark that an agreement that if the 
 
 for paynu-nt 
 
 ofreiitin purcliasc-moncv IS not paid at the time fixed for com- 
 
 lieu of inter- * * 
 
 usuhoiH. plction the purchaser shall pay " in heu of interest upon 
 the same a clear rent of /. per annum" is not usiu'ious 
 l)y rcjison of the rent exceeding tlie amount of interest at 
 5/. per cent, on the purchase-money (/?) . 
 
 Forprepa- It is usual upou a salc bv auction, to provide, that the 
 
 ration and ' ' 
 
 execution of vcudor shall, upon ])avment of the i)urchase-monev, execute 
 
 conveyance. ^ i x . 1 ^ > 
 
 proper conveyances to the respective purchasers, of the lots 
 ])urcliascd by them respectively ; such conveyances, &c., to 
 be prepared by and at the expence of the respective pur- 
 chasers, and by them tendered for execution at a specified 
 time and place : the condition is scarcely necessarj^ ; for 
 the contract in itself gives the purchaser a right to a con- 
 veyance upon pa^Tnent of his purchase-money ; and he is, 
 privid facie, bound at his own expence to prepare and 
 tender it (o). 
 For appor- If, whcrc property is sold in lots, any part comprised in 
 rent.onsaie two or morc lots be upon lease at one entire rent, or if all 
 
 01 reversion. ^ ' 
 
 or any part of the property comprised in one lot, be let 
 together with other property at one entire rent, the con- 
 
 («) Spurrier v. Mai/oxs, 1 Ves. (n) Sug. 263; Ponlf v. /////, 6 
 
 jun. 527. Mee. & W. 835.
 
 PARTICULARS AND COXDITIOXS. 01 
 
 ditions must proWde for its apportionment ; and, althouo^h Chapter iv. 
 not strictly necessary, it may, by way of precaution, be 
 well to pronde, that the concm-rencc of the tenant shall 
 not be required {p) . 
 
 Upon the sale of land used for agricultural purposes, it ^^Z*' '^^°^^' 
 may be often necessary to insert a condition as to the 
 growing crops being taken and paid for by the purchaser. 
 
 If the property be in lease at the time of sale, the pm-- ,^',fo condi- 
 cliaser will, of course, be subject, in this respect, to the *'°°' 
 rights of the tenants : if, however, it be in liand, and 
 nothing be said as to the crops, they Mill belong to him 
 from the day fixed for completion : and it is conceived that 
 the vendor will not be at liberty previously to remove 
 them in an immature state. 
 
 There should be a condition as to fixtures, if the pur- Auto 
 
 ' * fixtures. 
 
 chaser is to pay for any ; common fixtures would probablv 
 be held to l)e included in a contract for sale, and would 
 pass by the conveyance, unless a contrary' intention coidd 
 be collected from the instrument {q). 
 
 Pavment for timber bv the purchaser, if intended, must ■^'"^o 
 
 payment for 
 
 be provided for by the conditions {r) . timbtr. 
 
 The expression "timber," includes oak, elm, and ash, what is 
 
 ^ ' ' ' > "timber." 
 
 everj^where ; and, by local custom, beech (*) and various 
 other trees ; even trees which are primarily fruit trees, as 
 cherry, chestnut, and walinit (/) ; no wood, however, is 
 timber until of twentj' years' growth [u): as a general rule, 
 pollards would seem not to be timber; if sound they may, 
 however, be timber by local custom : and the expression 
 " timber and timber-like trees," would seem, to include 
 sound pollards (r) : an exception, in a lease, of " all timber 
 
 (/>) 3 Dav. Conv. 7.^. (0 Duke of Chaudon v. Talbot, 2 
 
 (y) Sug. 37, and cases cited. P. Wms. 60G. 
 
 (r) Sug. 36; see Iligginson v. (u) Foster v. Leo)iarrf, Cro. EWzA. 
 
 Cloven, 15 Ves. 516. (r) Rabbet t v. Raikes, Woodfall'a 
 
 (*) Aubrey V. Fisher, 10 East, Landl. and Ten. 457 ; and see 2 P. 
 
 440. Wms. 606.
 
 62 
 
 PARTICULARS AND CONDITIONS. 
 
 Chapter IV. 
 
 As to mis- 
 description 
 and com- 
 pensation. 
 
 Does not 
 extend to 
 misdescrip- 
 tion, if 
 wilful ; 
 
 or affecting 
 the substan- 
 tial subject- 
 matter of 
 the contract; 
 
 or caused 
 by gross 
 negligence. 
 
 and other trees, but not tlie annual fruit thereof/' would 
 seem not to include garden or orchard fruit trees, unless 
 by local custom [w) ; the term " fruit" being considered to 
 refer to the mast of timber trees. 
 
 It is generally proAaded, upon a sale by auction, and 
 often upon a sale by private contract, that any misdescrip- 
 tion, mistake, or error in the particulars, either way, shall 
 not avoid the sale, but shall be the subject of compensation. 
 
 Notwithstanding this condition, the mis-statement, if 
 wilful or designed, amounts to fraud, and, even at Law, 
 avoids the contract as against the pui'chaser : if it arise 
 simply from negligence. Equity will, notwithstanding the 
 condition, refuse a specific performance at the suit of the 
 vendor, if the error be not a fair subject for compensa- 
 tion [x] : at Law, cases have occurred, in which the 
 opinion was entertained that, however gross the negli- 
 gence, the purchaser is bound, if there be no fraud {y) ; 
 but this opinion has not been followed [z) : and the rule at 
 Law seems now to be as laid down by Tinclal, C. J. ; Adz., 
 "that where the misdescription, although not proceeding 
 from fraud, is, in a material and substantial point, so far 
 affecting the subject-matter of the contract that it may 
 reasonably be supposed that, but for such misdescription, 
 the piu-chaser might never have entered into the contract 
 at all, in such a case the contract is avoided altogether, 
 and he is not bound to resort to the clause of compensa- 
 tion : under such a state of things he may be considered as 
 not having purchased the thing which was really the sub- 
 ject of the sale" [a). 
 
 And Avhere a vendor, who has the means of knowledge, 
 
 («') Bullen V. Deiininy, 5 B. & C. 
 842. 
 
 {x) Sug. 30. 
 
 (y) Wright v. Wilson, 1 Moo. & 
 R. 207 ; and see Mills v. Oddy, 6 
 
 Car. & P. 728. 
 
 {z) Sug. 36. 
 
 (a) Flight v. Booth, 1 Bing, N. C. 
 370, 377.
 
 PARTICULARS AND COXDITIONS. 63 
 
 and is bound to use due diligence, misdescribes his pro- Chapter iv. 
 perty upon any important point, it seems probable that 
 the facts would in themselves be deemed conclusive as to 
 fraud {b) : e.g., a statement in particulars that the estate 
 was about one mile from Horsham, when in fact it was 
 upwards of three miles distant (c) ; and, in another case, a 
 material mis-statement, upon the sale of a house, as to the 
 amount of the ground rent {d), and, in a later case, a de- 
 scription of dilapidated property, as " good and substantial 
 but unfinished buildings (e)," seem to have been con- 
 sidered, at Law, to be, from their very nature, fraudulent. 
 
 If, however, the intended purchaser do not rely upon fi^as^'"''" 
 the particulars or statements of the vendor, but examine racy^ol'^w" 
 
 , . 11- 1 -1 ticulars may 
 
 the property m person or by his agents, he cannot, m the be bound, 
 absence of direct fraud, contend that he is deceived by the 
 representations of the vendor as to any point upon which 
 he has thus tested their acciu'acy (/) . 
 
 And it may be collected from the cases at Law and in materiality^ 
 Equity, that, independently of fraud, and on the mere scription 
 ground of the materiality of the misdescription, the usual common 
 
 . . . . . . condition. 
 
 condition as to compensation vdll not avail in the follow- 
 ing cases, \'iz : — 
 
 1st. Where the property is not of the same description ^rly'^fso™ 
 as it appears to be in the particulars ; as where long lease- nature ; 
 hold is described as freehold (g) ; or as wliere, upon the 
 sale of an estate let at lease on a rack rent, such rent is 
 described as a gTOund rent (//) ; or as where a house, com- 
 
 (i) See Sug. 36. pensation in equity : Dyer v. Har- 
 
 (c) Duke of Norfolk v. Worthy, 1 grave, 10 Ves. 505, 508. 
 Camp. C. 337. (/) See Attwood v. Small, 6 CI. & 
 
 (af) Milk V. Oddy, 6 Car. & P. Fin. 232; see the judgment in Clap- 
 
 728. ham v. Shillito, 7 Beav. 149. 
 
 (e) Robinson v. Mungrove, 8 Car. {g) See and consider Browne v. 
 
 & P. 469 ; but, in general, a mis- Fenton, 14 Ves. 144. 
 statement as to the state of repairs (A) Stewart v. Alliston, 1 Mer. 26. 
 
 would seem to be a matter for com-
 
 64 
 
 PARTICULARS AND CONDITIONS. 
 
 Chapter IV. 
 
 or not 
 identical ; 
 
 or material 
 part of it is 
 wanting, or 
 has no title ; 
 
 or its clue 
 enjoyment 
 is materially 
 affected ; 
 
 or amount 
 of compen- 
 sation can- 
 not be esti- 
 mated; 
 
 posed externally partly of brick and partly of timber and 
 lath and plaster, is described as a brick-built liouse (?) . 
 
 2ndly. Where the property, as described, is not identical 
 with that intended to be sold : as when a vendor, intending 
 to sell No. 2 in a street, described it as No. 4, the pur- 
 chaser, although No. 2 was the same description of house 
 as, and in better repair than, No. 4, recovered his deposit 
 at Law [j). 
 
 3rdly. Where a material part of the property described 
 has no existence, or cannot be found [k) ; or where no title 
 can be shown to it ; as when, upon the sale of a leasehold 
 house and small yard adjoining, the yard was not included 
 in the lease, but held from year to year at a separate 
 rent (/). 
 
 4thly. WTiere the misdescription is upon a point material 
 to the due enjoyment of the property ; as when, upon the 
 sale of a lease of a house and shop, the particulars merely 
 stated that the lease contained a restriction against certain 
 specified trades being carried on upon the premises, 
 whereas in fact several other trades were forbidden {m) : so 
 also, where^ upon the sale of a piece of land described as 
 '^ a first-rate building plot of gi'ound," no notice was taken 
 of a right of way passing over it («.), or of an undergi'oimd 
 watercourse which third parties had liberty to open, 
 cleanse, and repair, making satisfaction for damage thereby 
 occasioned (o). 
 
 Stilly. Where the misdescription is of such a natm'e that 
 the amount of compensation cannot be estimated; as 
 where, on the sale of a reversion, expectant on the decease 
 
 (i) Poivell V. Donbble, Sug. 30. 
 
 {j) Leach v. Mullett, 3 Car. & P. 
 115. 
 
 {k) Robin-ton v. Mungrove, 2 Moo. 
 & R. 92. 
 
 (/) Dohell V. Hutchinson, 3 Ad. & 
 El. 355. 
 
 (w) Flight V. Booth, 1 Bing. N. C. 
 370. 
 
 (n) Dykps V. Blake, 4 Bing. N. C. 
 463; and see GiUon v. D'Ente, 2 
 Y. & C. C. C. 542. 
 
 (o) Shockleton v. Sutcliffe, 1 De 
 G. & S. 609.
 
 I'AKTICULAKS AND CONDITIONS. 65 
 
 of A. in case he should have no children^ his age was de- Chapter iv. 
 scribed as 66 instead of 64 (^) ; or as where^ on the sale 
 of a wood^ the particulars erroneously stated that the 
 average size of the timber approached 50 feet^ the number 
 of trees not being stated [q) ; or as where the particulars 
 stated the premises to be in the joint occupation of A. and 
 B. as lessees, when in fact A. was only assignee of the lease^ 
 and B. Avas a mere joint occupier (r). 
 
 And it may be observed, that where the vendors are whether 
 trustees they are not justified in allowing compensation for use'^condi- 
 
 ,1 • T /"< n • •^1 f tion as to 
 
 their own errors, and a Court or equity will refuse to act misdescrip- 
 tions. 
 upon the condition {s) . 
 
 In the absence of stipulation, a vendor is bound to pro- as to deeds ; 
 
 duce, at his own expense, the originals of all deeds and liability of 
 
 vendor to 
 
 other instruments necessary to verify the abstract {t) ; ex- pJ','^^"^!^'^^,^ 
 cept copies of Court Roll, and such instruments as are pfetionT" 
 upon record (^<), or have been lost (y) or destroyed; as ^nested 
 respects all which he may verify his abstract by secondary 
 evidence ; he must, however, as a general rule, in order to 
 render copies admissible in evidence, prove the execu- 
 tion, and delivery of the originals {iv) ; Avliich, when 
 deeds are lost and the witnesses unknown, is often an in- 
 superable difficulty : when the sale is completed, the pur- 
 chaser is entitled to the original title deeds, or a covenant 
 to produce them, and attested copies of the originals [x) ; 
 
 (p) Sherwood v. Robins, Mood. & safe custody and not under any stat- 
 
 Malk. 194 ; and see 8 CI. & Fin. utory provision ; see 9 Jar«i. Conv. 
 
 792. by Sweet, 10. 
 
 (?) Lord Brooke v. RountMvaite , (v) As to what is sufficient evi- 
 
 5 Ha. 298. dance of loss, see Green v. Bailey, 15 
 
 {r) Ridgivay v. Gray, 1 Mac. & Sim. 542 ; FitzwaUer Peerage, 10 
 
 G. 109. CI. cSc Fin. 953; Hart v. Hart, 1 
 
 («) White V. Cuddon, 8 CI. & Fin. Ha. 1. 
 
 766. (iv) Bryant v. Busk, 4 Russ. 1 ; 
 
 {f) Sugden, 449. see however as to this, infra, Ch. 
 
 (m) Cooper v. Emery, 1 Phil. 388. VIII. 
 
 It seems doubtful whether the rule (.r) Bovyhton v. Jewell, 15 Ves. 
 
 extends to deeds inrolled merely for 176. 
 
 F 
 
 copies.
 
 66 PARTICULARS AND CONDITIONS. 
 
 Chapter IV. ^[^[.g^ right, however, does not seem to extend to old deeds 
 not necessary to make a title (y) ; or to copies of Court 
 Roll, or instruments on record^ unless, (as respects the 
 covenant for production,) they are in the vendor's posses- 
 sion or poMcr {z) ; or to documents used merely as negative 
 evidence («) : the attested copies and deed of covenant 
 must be prepared at the expense of the vendor (6) : if he 
 wish to negative the purchaser's rights in the above respects, 
 
 As to at- he must do so clearlv and explicitlv in the conditions : and 
 
 tested ."..." 
 
 copies; soli- ^vhen propertv is sold in lots, it is the almost invariable 
 omittirH''^ practicc to thi'ow the expenses of attested copies upon the 
 coil ition. purchasers, and a solicitor would generally incur personal 
 liability by omitting a condition to that effect : the condi- 
 tion, if so intended, should expressly provide for the ex- 
 pense of all attested copies, whether required for the 
 Mdo'^ted" ^^ verification of the abstract or for any other purpose ; par- 
 pano?'^ "' ticular care to insert proper conditions as to deeds should 
 estate.'**'''^ bc takcn upou tlic salc of a part only of an estate in mort- 
 gage, when the purchase-money is not likely to pay off the 
 incumbrance ; a deposit of the deeds with some third 
 party, for the joint benefit of the mortgagee and purchaser, 
 will, if acquiesced in by the mortgagee be the most eligible 
 arrangement (c). 
 As to uiti- On a sale in lots, it is generallv requisite to provide for 
 
 mate custo- ' o . i 
 
 dy of deeds, ^j^g ultimate custodv of the deeds: the purchaser of the 
 
 OTi sale in j •' i 
 
 lots. largest lot is usually made to take them and covenant for 
 
 their production : where the intention is that they shall 
 belong to the purchaser whose purchase-money amounts to 
 the largest sum, it may occasionally be well to provide for 
 the contingency of the two largest purchasers buying to 
 an equal amount. 
 of^urchalf- Every condition intended to relieve the vendor from his 
 t*^i'ife'^and '^ ^° pt'wid fade liability to deduce a marketable title, and 
 
 {y) Dare v. Tucker y 6 Ves. 460. 1 Hayes on Conv. 573. 
 
 {z) Vide infra, 316. {h) Bouyhlon v. Jewell, lo Ves. 176- 
 
 {a) Sec Cooper v. Emery, ( itcil in (r) Sug. 4.'>7.
 
 PARTICULARS AND CONDITIONS. 67 
 
 verify the abstract by proper ev-idence at his own expense, chapter i\. 
 must be expressed in plain and unambiguous language (d). evidence, 
 For instance, a condition that he shall not be bound to ''''°'*- 
 
 Against 
 
 produce anv original deed or other document than those production 
 
 ^ ' ° of deeds. 
 
 in his possession and set forth in the abstract, was held not bou'ifd^to*"^ 
 to relieve him from his liabiUty to verify the abstract ; for It'raJt«?i- 
 non constat that because he has only certain specified 
 deeds in his possession he cannot prove his title (e). 
 
 So, on an agreement by a vendor to sell a lease " as he ^g^inst 
 
 •' ~ ♦' production 
 
 held the same" for twenty-eight years, a condition that title fpur- 
 the purchaser should not require the lessor's title, would provri^se 
 not, it appears, prevent the latter fi'om shoAving that the 
 lease was invalid (/). 
 
 So, upon a sale of an underlease, described simply as a ormereun- 
 
 '^ *^ •' derlease, 
 
 lease, a stipulation that the vendor should not be called i].)bmf "of 
 upon to prove his title, was held to be worthless, when it covenants. 
 appeared that the original lease comprised other premises, 
 and contained covenants embracing both properties, and 
 exposing the piu'chaser to eviction through the default of 
 the holder of such other premises (g) . 
 
 It may be doubted whether, in the absence of express As to reci- 
 
 . . . . tals being 
 
 stipulation, the common condition, as to recitals being evidence, 
 evidence, would bind the pm^chaser to accept recitals as 
 evidence of conclusions of Law (h) . 
 
 But a clear stipulation as to title is binding on a pur- ^o"4'*[°" .][ 
 chaser ; e. g., an agreement by Assignees of a bankrupt to cij^ge?"*^ 
 sell liis estate " under such title as he recently held the 
 same, an abstract of which may be seen" (^) ; and a con- 
 
 {d) Osborne \. Harvey, 7 iav. 229, M. & R. 127, 128, disapproving of 
 
 V. C. K. B. ; nnd see Clarke v. Fan.v, Spratt v. Jeffery, 5 Man. & R, 138 ; 
 
 3 Russ. 320. but see 2 Coll, 341. 
 
 (e) Southby v. Hutt, 2 Myl. & Cr. {g) Blake v. Phinn, 3 C. B. 976 ; 
 
 207 ; and see Dick v. Donald, 1 Bli. see Fildes v. Hooker, 3 Madd. 193. 
 N. S. 655. {h) 9 Jartn. Conv. by S. 4. 
 
 (/) See Sug. 391 ; and see judg- («) Freme v. Wright, 4 Madd. 
 
 ment in Shepherd v. Keatley, 1 Cro. 364. 
 
 f2
 
 G8 
 
 PARTICULARS A\D CONDITIONS. 
 
 Chapter IV. 
 
 That ab- 
 stract shall 
 commence 
 witli speci- 
 fied docu- 
 ment. 
 
 Does not 
 preclude 
 objections. 
 
 ITow to be 
 framed 
 when early 
 title lost or 
 defective. 
 
 Production 
 
 dition that the purchaser should accept the vendor's title 
 "without dispute" (k). 
 
 A condition, however, that the abstract shall commence 
 with a specified document, merely precludes the purchaser 
 from objecting to the title as commencing at too recent a 
 period (/) ; so that, if the instrument in question do not 
 form a good root of title, he may require the earher title ; 
 so, a mere condition against production of the earlier title, 
 would not preclude him from requiring the production of 
 recited instruments which appear from their recitals to be 
 of a suspicious character (;«). 
 
 Nor will a mere condition against production, in any 
 case prevent a purchaser from investigating and objecting 
 to the earlier title, if he have the collateral means of 
 doing so {n). 
 
 If, therefore, the earlier title merely be wanting, the 
 contUtion should provide for the abstract commencing with 
 a specified document, (the nature and eftect of which 
 should be stated, if it be of such a kind as not to form a 
 satisfactory root of title ; e. (/., n recovery deed) ; and the 
 purchaser should be precluded from requiring the produc- 
 tion of the earlier title, or of any earlier documents which 
 may be recited or noticed in the abstracted title : if the 
 earher title be defective, or if the recited missing instru- 
 ments are of a suspicious character, the condition should 
 be extended, so as to preclude him from requiring, investi- 
 gating, or making any objection to the earlier title, or any 
 document prior to the commencement of the abstract, 
 although subsequently recited or referred to. 
 
 And Avhen a vendor, although not haring a marketable. 
 
 (/t) Duie V. Barnett, 2 Coll. 337 ; 
 and see Sir Edward Sugden's re- 
 marks, V. and P. 395, 396, on Caitell 
 V. Corrall, 3 Y. & C. 413 ; and see 
 Corrall v. CattpU, 4 Mee. & W. TM; 
 
 682. 
 
 (0 SelUck V. Trevor, 1 1 Mee. & W. 
 722. 
 
 (w) S. C. 
 
 ()i) Shepherd v. Keatley, 1 Cro. 
 
 but see also Smith v. Ellis, 14 Jur. M. & R. 117.
 
 PARTICULARS AND CONDITIONS. 09 
 
 has still a safe holding title, it may be prudent, in using <^hapter i v. 
 very special conditions, to state, that an abstract of the bc-tWesafe 
 
 • 1 1 • 1 1 /> 1 1 sometimes 
 
 title may be inspected beiore the sale. advisable. 
 
 It is often requisite to insert conditions pro^ading for de- ^s to 
 fects in e^ddence of the identity of the parcels ; such con- P^^ceis. 
 ditions, however, will not relieve the vendor from the 
 necessity of pointing out what the entire property is which 
 he intends to convey; nor, (miless expressly framed to 
 meet the case,) will they do more than proAide for mere 
 deficiencies in evidence ; that is, they will not provide for 
 repvffnancies. 
 
 For instance, a condition that a certain plot of land when part 
 
 ' -T of property 
 
 could not be properly identified by the vendor, but it being found ^ ^^ 
 fairly presumed that the pui'chascr, by iuquiiy in the 
 neighbourhood, would be able to ascertain its true situa- 
 tion, he was to accept the plot by the description only 
 contained in the conveyance deed of it, was held worthless, 
 even at Law, when it appeared that the plot did not exist 
 or could not be discovered (o). 
 
 So, a condition that no further e^'idcnce of identity of t^oJlfargP' 
 the parcels shoidd be required than what Avas aflbrded by [gut"*'* 
 the deeds, instruments, and other documents abstracted, 
 did not preclude a purchaser from requiring fui'ther evi- 
 dence on the ground of the descriptions of the parcels in 
 the abstracted documents var}dng from those in the parti- 
 culars and from each other (j)). 
 
 In the case of copyholds, the generahty and vagueness vague 
 
 i -J ' CI „ o descriptions 
 
 of the descriptions on the Com't Rolls ai-e unimportant, gi^^'-^nt^''^^ 
 if the vendor can show that the property has been actually 
 held under such descriptions (q) . 
 
 The Courts, it may be remarked, look with jealousy con^ff°n*g 
 on conditions negativing a purchaser's right to the usual by coujr^** 
 
 (o) Robinson v.Musffrove, 2 Moo. 476. 
 & R. 92. {q) Long v. Collier, i Russ. 267. 
 
 ( p) flower V. Ilartopj), 6 Beav.
 
 70 
 
 PARTICULARS AND CONDITIONS. 
 
 Chapter IV . 
 
 Abstract on 
 sale in lots, 
 should be 
 verified at 
 vendor's 
 expense. 
 
 As to 
 expense of 
 8earcbes,&c. 
 
 As to 
 indemnity 
 against 
 charges, &c. 
 
 As to time 
 for objec- 
 tions, &c. 
 
 and reasonable evidences of title ; they should not be used 
 to a greater extent than is necessary^ as their tendency is 
 to damp the sale ; and this^ not so much by diminishing 
 the biddings of parties who actually attend^ as by keeping 
 away others who are ahve to theii- objectionable character; 
 it cannot; however^ be denied, that the prejudicial effect of 
 even the most stringent conditions is practically far less 
 than might be reasonably anticipated. 
 
 And it may be observed, that, on a sale in lots, the 
 vendor should either verify the abstract at his o^vn ex- 
 pense, or the expense of verification should be divided 
 among the purchasers in some specified proportion ; other- 
 wise the purchaser who first calls for evidence may be 
 at the sole cost of prociuing it. 
 
 " There must be express conditions where the vendor 
 intends to throw upon the purchaser the expense of such 
 searches as are usually made by the vendor, of travelling 
 to a distance to examine the abstract with the deeds, or 
 
 thelike^^(/'). 
 
 If the estate be subject to incumbrances which cannot 
 be discharged, they must be mentioned in the particulars 
 or conditions ; it often happens that property is subject to 
 charges which, fi'om particular cu'cumstances, (such as 
 there being other ample security,) are never Kkely to 
 be enforced, although they cannot be immediately re- 
 leased; in such cases it is ad\dsable to state the facts as 
 clearly and openly as possible, and stipulate that the pur- 
 chaser shall make no objection in respect of the matters 
 so mentioned ; if, as may often be the case, an indemnity 
 be offered, its nature should be expHcitly stated (s) . 
 
 It has become very usual to insert conditions restrictive 
 of the time within which objections may be taken to the 
 
 (r) Sug. 38. 
 
 (s) See 3 Dav. Conv. 68. A con- 
 dition to give a specified indemnity 
 
 will be specifically enforced in equity ; 
 IValker v. Barnes, 3 Madd. 247.
 
 PARTICULARS AND CONDITIONS. 71 
 
 title; and enabling the vendor to annul the sale, if objec- Cha pter i v. 
 
 tions are taken which he is unable to remove ; the latter 
 
 condition, in fact, is inserted by many practitioners, as 
 
 a matter of course, in all but the very plainest cases ; and 
 
 its insertion by a mortgagee, selling under a power with a 
 
 title believed to be marketable but somewhat complicated, 
 
 was approved of bv a late verv eminent convevancer : if " Satisfac- 
 
 _ _ " _^ tory" means 
 
 the condition be for rescinding the contract in case the "market- 
 
 ® able" title. 
 
 title shall not prove " satisfactory" to the purchaser, this 
 will not authorize him to make any other than the usual 
 objections (t). 
 
 This condition, however, cannot be relied upon bv a Not to be 
 
 ' ' -L V relied on by 
 
 vendor who knowingly enters into the contract vriih a knowingly 
 clearly defective title to a portion of the estate : for in- a'^deffctlve'^ 
 stance, where a person, entitled in remainder subject to 
 a Hfe estate, contracted to sell the fee simple in possession, 
 hoping that the tenant for life would concur, which she 
 refused to do, the pm'chaser was allowed to take the 
 reversion Avith a compensation, although there was a con- 
 dition for rescinding the contract if a good title could 
 not be made, which condition the vendor wished to en- 
 force (u). 
 
 Nor will the condition enable a vendor to refuse to show ^>„^^j p^y. 
 a title, or, perhaps, in any case, to rescind the contract as l'u|fo^'^m- 
 against a purchaser who is at once willing to waive the outcompen- 
 objection or requisition and take the property without 
 compensation {v) : but it will enable a vendor, who has ^ow^'pood 
 in fact a good title, to rescind the contract, upon an un- ob]S;don^9^ 
 tenable objection being taken and persisted in {w). 
 
 (0 Lord V. Stephens, 1 Y. & C. 4 Beav. 269 ; Williams v. Edwards, 
 
 Ex. 222. 2 Sim. 78. 
 
 (m) Nelthorpe v. Holgate, 1 Coll. (w) Page v. Adam, ubi supra. 
 
 203; but see Thomas v. Bering, 1 N.B. — In the third marginal pla- 
 
 Keen, 728. citum, it should be, " the objection 
 
 (c) See and consider Roberts v. being held /«valid," instead of " the 
 
 Wyatt, 2 Taunt. 268 ; Page v. Adam, objection being held valid."
 
 72 
 
 PARTICULARS AND CONDITIONS. 
 
 Chapter TV. 
 
 Extends to 
 requisitions. 
 
 Right to re- 
 scind, lost 
 by replying 
 to objec- 
 tions. 
 
 Unless 
 replies are 
 merely 
 argumenta- 
 tive or 
 returned 
 without 
 prejudice. 
 
 Time runs 
 from de- 
 livery of 
 perfect ab- 
 stract ; 
 meaning of 
 the term. 
 
 Objections 
 arising upon 
 subsequent 
 evidence, 
 may be 
 taken, when. 
 
 Where a purchaser required that certain annuitants 
 under a will should join in the conveyance^ this was held 
 to be an objection to the title within the meaning of such 
 a condition [x) : the condition should^ however, in terms 
 extend to requisitions. 
 
 And, as a general rule, a vendor by replying to the pur- 
 chaser's objections or requisitions, waives the right of 
 rescinding the contract, and also the benefit of the condi- 
 tion limiting the purchaser's time for taking objections, 
 &c. (that is, supposing them not to have been taken within 
 such limited time) {y) . 
 
 It seems, however, probable that mere argumentative 
 replies would not amount to such a waiver : and that 
 replies of any description, if returned " without prejudice," 
 or with any similar reservation of the vendor's rights, would 
 escape the rule laid down in Tanner v. Smith [z] : or the 
 rule may, it is conceived, be avoided, by the introduction, 
 into the condition, of the words " notwithstanding any in- 
 termediate negotiations," or some equivalent expression. 
 
 For the purposes of such conditions time runs from the 
 delivery of a perfect abstract ; that is, an abstract as per- 
 fect as the vendor, at the time of delivery, has in his 
 either actual or constructive possession («) ; but a vendor 
 would not be at liberty designedly to deliver an imperfect 
 abstract, or otherwise neglect his duties under the con- 
 tract, for the purpose of rescinding the contract under 
 such conditions (6). 
 
 And the condition as to time does not preclude a pur- 
 chaser from taking subsequent objections arising out of 
 evidence called for before the expiration of the limited 
 
 (x) Page v. Adam, 4 Beav. 269. 
 
 (y) Tanner \. Smith, \Q^\xa. i\Q; 
 see the same case on appeal, 4 Jur. 
 310; Cnffsv. Thodey, 1.3 Sim.. 206. 
 
 {z) See Morley v. Cook, 2 Ha. 
 
 106. 
 
 (a) Morley v. Cook, 2 Ha. 111. 
 
 (6) Page v. Adam, ubi stipra ; 
 Morley v. Cook, ubi supra ; Roberts 
 V. Wyatt, 2 Taunt. 268.
 
 PARTICULARS AND CONDITIONS. 73 
 
 time (c) : sucli objections must, however, it is submitted. Chapter iv. 
 be taken within a corresponding period after the produc- 
 tion of such evidence. 
 
 It is usual, and proper, to insert a condition providing As^to^resaie , 
 for a resale of the property, and forfeiture of the deposit, ^'^jjure^of 
 in case the purchaser fail to comply with the conditions ; ^f^^[^l 
 and that any deficiency upon such resale, together with 
 the costs thereof, shall be borne by the purchaser ; Equity, 
 however, will, at least when the purchaser is bankrupt {d), 
 set off the deposit against such deficiency; and the 
 vendor's equitable right to the deposit in any case Avhere 
 the pm-chaser is able and wiUing to put him in the situa- 
 tion in which he would have been had the contract been 
 duly performed, is doubtful (e) : if, upon a resale, the 
 estate were to produce more than the original purchase- 
 money, the pvirchaser who had violated his agreement 
 could not call for an account of the surplus (/) : a stipula- for°payment 
 tion that the purchaser making default shall pay a specified by pur- 
 
 ^ . . , -, chaser not 
 
 sum, (exceeding the amount of the deposit,) as liquidated ^^'J'jjfjent^ 
 damages, does not amount at law to a condition for the ^r^^"-^ 
 forfeitm^e of the deposit {ff) . 
 
 In the preparation of special conditions it is important j^^^^^^^^^^^l 
 to remember, that a piu-chaser, miless specially precluded ^^.^f^^f 
 fi'om so doing, may require evidence of all matters of fact 
 stated in any condition which goes to restrict his prima 
 facie rights (A) : it is, in fact, suggested by Mr. Jarman {i), J^^^^f/^^ 
 that the ordinary condition throwing upon the purchaser ^^^^""^If 
 the expense of procuring evidence to verify the abstract, requh-'eTn-^ 
 does not preclude him from requiring all such information 
 as to facts as is necessary to complete the abstract; so 
 
 (c) BlacMow V. Laivs, 2 Hare, 40. (g) Palmer v. Temple, 1 Per. & 
 
 (d) Ex parte Hunter, 6 Ves. 94. Dav. 379. 
 
 (e) Sug. 51 ; Moss v. Matthews, 3 (A) Symons v. James, 1 Y. & C. 
 Ves. 279. C. C. 487. 
 
 (/) Per Curiam, 6 Ves. 97. (0 Conv. v. ix. p. 53.
 
 74 PARTICULARS AND CONDITIONS. 
 
 Chapter IV. that^ although precluded from requiring^ except at his own 
 expense, any evidence of a death (material to the title), he 
 may yet insist on being informed when and where such 
 death occui-red; in many cases the expense of obtaining 
 such information would be nearly the same as that of 
 obtaining the usual evidence of the fact ; and the point, 
 although (it is conceived) not often insisted on in practice, 
 may sometimes be usefully guarded against by the condi- 
 tions. 
 
 (4.) As to ivhat special conditions are generally 
 requisite in various specified cases. 
 
 What con- Upou a salc of lauds held under an Inclosure Act, it 
 
 ditions ex- ^ ^ 
 
 sale onn-° ^"^ ^^^^ ^^ expedient to negative the purchaser's prima 
 closed lands, j.^^^.^ ^^^^ ^^ evidence of the vaUdity and regularity of the 
 award (j) : and attention must be paid to the rule which, 
 when an allotment has been made indiscriminately in 
 respect of lands held under diflPerent titles, requires the 
 production and proof of all such titles ; a rule which, if not 
 guarded against, may occasionally lead to expenses which 
 will swallow up the purchase-money. 
 Land for- Where the property comprises strips of waste land, 
 
 iiierly 
 
 waste. recently inclosed, some special stipulations as to title will 
 
 almost invariably be necessary {k) . 
 
 Enfran-^ Where the property has been recently enfranchised (^ 
 
 the production of the manorial title must be guarded 
 against, if the vendor be unable to produce it : or, if pro- 
 duced, it may be well to guard against the rule which 
 
 (j) 3 Dav. Conv. 58 ; but this before the passing of the Act. 
 
 seems to be rendered unnecessary by (k) See, as to the presumption of 
 
 the 3 & 4 Vict. c. 31, in cases coming ownership of such strips, Scoones v. 
 
 within its provisions : the want of Morrell, 1 Beav. 251 ; vide infra, 
 
 inrolment of the award is remedied Ch. VIII. 
 
 by the 3 & 4 Will. IV. c. 87, in (/) Vide infra, Ch. VIII. 
 cases where the award was executed 
 
 holds
 
 PARTICULARS AND CONDITIONS. 75 
 
 enables a purchaser to require evidence of the manor Chapter iv. 
 havings since the enfranchisement^ been enjoyed conform- 
 ably with the earlier title (m) . 
 
 WherCj in the case of copyholds, the title depends upon for'meriy ^ 
 grants, made by the lord of the manor, of part of the lord's 
 
 . . , waste. 
 
 waste, it will, in general, be expedient to provide that 
 no evidence shall be required of such grants being autho- 
 rized by the custom of the manor ; in some manors, how- 
 ever, the right is well established. 
 
 Upon a sale of leaseholds, the following points will re- Leaseholds. 
 quire attention. 
 
 To negative the purchaser's right to the production ^f^^l^^l^^^^ 
 of the lessor's title, if, as generally happens, the vendor tHie!^""^ ** 
 cannot produce it ; if the interest to be sold be an under- 
 lease, the condition should (if so intended) clearly refer to 
 the title as well of the sub -lessor as of the original lessor ; 
 if, however, the lease be by a Bishop, a purchaser has 
 no prima facie right to production, and any condition re- 
 specting the lessor's title may be omitted {n) . 
 
 The covenants in the lease should never be referred to j^^j^'ga^e'how 
 as " usual ;" the preferable plan is, to produce an abstract ^^ot^^^i 
 or copy of the lease at the time of sale; and to state the 
 intention so to do in the particulars or conditions, and 
 to stipulate that the pm'chaser shall be deemed to have full 
 notice of its contents. 
 
 It is also, in general, necessary to provide, that certain I'enceof* 
 specified evidence (usually the production of the last re- &"rhaWng 
 ceipt for rent), shall be sufficient evidence of the per- formed!'^" 
 formance of the covenants and conditions in the lease, up 
 to the completion of the purchase (o) . 
 
 (m) See 1 Jarm. Conv. by S. 83. 159: but the condition, it is conceived, 
 
 (n) Vide infra, Ch. VIII, would not avail if the purchaser could 
 
 (o) With respect to the necessity show that the conditions had been 
 
 of such a condition, see, as to Insu- broken. 
 
 ranee, Penniall v. Harborne, 12 Jurist,
 
 76 
 
 PARTICUL.\RS AND CONDITION'S. 
 
 Chapter IT. 
 
 As to &p- 
 portionment 
 of rent and 
 liabilities on 
 sale in lots. 
 
 On sale of 
 renewable 
 leaseholds. 
 
 On sale of a 
 reversion. 
 
 ^^Tieii leasehold property is sold in lots, it is also neces- 
 sary to proWde for the apportionment of the rents and Ha- 
 bihties under the lease : this cannot be done effectually 
 where, as is usually the case, the lessor refuses, or is 
 incompetent, to concur; underleases, (the original term 
 being retained either by the vendor or one of the pur- 
 chasers), with covenants for mutual indemnity, are fre- 
 quently resorted to; in fact necessaiily so, where, in the 
 case of buildings, the original lease contains a covenant to 
 insure against fire in a given sum : cross powers of distress 
 and entrj* are often rehed on in other cases ; but the plan 
 proposed, whatever it be, should be stated in the con- 
 ditions (/>). 
 
 Upon the sale of renewable leaseholds, it will probably 
 be necessary to p^o^-ide against the production of the title 
 prior to the subsisting lease (rj) . 
 
 Upon the resale of a reversion, it may often be necessary 
 to provide, that no eWdence shall be required of the suffi- 
 ciency of the consideration paid on the original pur- 
 chase (r) ; if such purchase, however. Mere by auction, the 
 condition would seem to be unnecessary' (s) . 
 
 (5.) General remarks on special conditions. 
 
 A* to use of 
 special con- 
 ditions by 
 trustees, &c. 
 
 "mien it 
 amounts to 
 breach of 
 trust. 
 
 Upon sales by trustees, mortgagees, and other persons 
 fiUing a fiduciaiy character, great care is requisite in the 
 use of special conditions ; since, if improperly used, they 
 may not only involve the vendors in personal liability 
 to theii' cestui que trust, kc, but also prevent their making 
 a good title. 
 
 In order to have this effect the conditions must be 
 unnecessary, and of such a depreciatory character that 
 
 (/?) See 3 Dav. Conv. 84. 
 {q) Vide infra, Ch. VIII. 
 (r) See Bostcell v. Mendham, 6 
 
 Madd. 373. 
 
 (*) Shelley s. Xash, 3 Madd. 232; 
 et tide infra, Ch. XIV.
 
 PARTICULARS AND CONDITIONS. / / 
 
 their use araoimts to a breach of trust: it may, however, chapter it. 
 often be difficult to determine whether a given condition 
 comes within this definition. 
 
 Upon a sale bv a mortoraoree, the use of conditions com- useofcer- 
 pelling a purchaser to take all objections within 21 days ^°^'Jj°"* 
 from the delivery of the abstract, that all copies of deeds, ^^^^^f. 
 &c., not in the vendor's possession, should be obtained at 
 the expense of the purchaser, that any mis-statement, &c., 
 should not annul the sale but be the subject of compensa- 
 tion, and that the vendor might resell on breach of condi- 
 tions by the purchaser, was considered by Lord Langdale 
 to form no objection to the title [t) . 
 
 Upon a sale by a mortgagee, with a title bcHeved 
 to be marketable although complicated, the use of a con- 
 dition authorizing the mortgagee, in the event of ob- 
 jections, &c., being taken which he could not remove, 
 to rescind the contract on returning deposit, interest, and 
 costs, and of a condition that purchasers, whose purchase- 
 money should not amount to a specified sum, should pay 
 for their abstracts, (except the abstract of the mortgage 
 deed,) was sanctioned by a late very eminent conveyancer. 
 
 On a sale in a single lot, there would seem to be con- ^^^' 
 siderable difficulty in drawing any distinction between a jupl^i^ 
 
 . * - * , r • between use 
 
 condition tlirowmsr on a purchaser the expenses oi copies ofsnchoon- 
 
 ^ '^ '■ '^ ditionsby 
 
 of deeds, &c., (as in Hobson v. Bell), and one imposing on trustee?, kc. 
 him any expenses connected with the sale which would be ^^^ ^t 
 incurred merely on his own requisition, whether regarding "* °°^ *"* 
 the verification of the abstract or otherwise : in each case 
 the purchaser submits to pay certain indefinite expenses in 
 the event of his insisting on their being incurred ; and, in 
 general, the trust estate probably saves in costs what it 
 loses in purchase money. The case, however, is difi'erent 
 on a sale in several lots, where the expenses of verifying 
 
 (/) Hobson V. Bell, 2 Beav. 17 ; and see Borell v. Dann, 2 Hare, 443. 
 455.
 
 78 
 
 PARTICULARS AND CONDITIONS. 
 
 Chapter IV. 
 
 As to title 
 &c., should 
 be adapted 
 to par- 
 ticular title. 
 
 Power to 
 sell undtT 
 special con- 
 ditions, its 
 efTect. 
 
 As to de- 
 claration 
 that im- 
 proper con- 
 ditions, &c. 
 shall not 
 affect pur- 
 chaser. 
 
 Condition as 
 to misde- 
 scriptions 
 useless to 
 trustees, &c. 
 
 As to cove- 
 nants on 
 sale by 
 trustees, &c 
 
 the abstract are thrown generally on the purchasers ; for 
 then, although the expenses can be but once saved to the 
 estate, each purchaser may think that he will have to bear 
 them, and may be supposed to reduce his biddings ac- 
 cordingly. 
 
 Conditions restrictive of a purchaser's right to a market- 
 able title, or the ordinary evidences of title, should be used 
 only so far as may be requisite from the state of the 
 title {)(). 
 
 Powers of and trusts for sale, at the present day, usually 
 authorize a sale " imder special conditions as to title, e\i- 
 dences of title, expenses or otherwise ; " such an authority 
 may reasonably be supposed to give to a fiduciary vendor 
 somewhat wider limits than he would otherwise enjoy, and 
 would probably turn the scale in a doubtful case; but 
 it is hard to say what is its precise effect; it certainly 
 would not authorize capricious or ob^^ously unnecessary 
 conditions, and necessary or pro^^dent conditions may and 
 should be used ivithout an express authority : it has, how- 
 ever, become very usual to insert in such trusts and pow- 
 ers a declaration, that the use of unnecessary or improper 
 conditions shall not affect the sale ; but even such a de- 
 claration, of course, does not relieve a fiduciary vendor 
 from liability to his beneficiaries. 
 
 And the condition as to compensation for misdescription 
 by the vendor, cannot, it appears, be enforced upon a sale 
 by trustees, &c. {v) ; although the use of the condition 
 may not in itself be a breach of trust [iv) . 
 
 Although it is a general rule that a trustee or mort- 
 gagee, &c., enters into no covenant except that against 
 incumbrances (<r), it is not unusual to insert a special con- 
 dition to that efPect. 
 
 (w) See Hobson v. Bell, 2 Beav. 
 
 (?<) Supra, p. 34 ; see, however, 
 Borell V. Dann, 2 Ha. 443, 445. 
 
 {v) White V. Cuddon, 8C1. & Finn. 
 766. 
 
 17. 
 
 (.r) See Worley v. Frampton, 5 
 Ha. 560.
 
 PARTICULARS AND CONDITIONS. 
 
 79 
 
 Lastly, it may be remarked, tliat those conditions which ^^^p*®,'"^^: 
 to an unprofessional eye appear the simplest, are often the remarks on 
 most dangerous; and those which appear difficult and ditions. 
 complex to the unlearned purchaser may not unfrequently 
 produce an impression favourable to the title upon the 
 mind of his legal ad^dser. The conveyancer who, upon 
 the pui'chase of a large estate, peruses a series of special 
 stipulations, which have evidently been framed with re- 
 ference to points which might be made matters of serious 
 annoyance by a htigious, but are of little practical im- 
 portance to the willing, purchaser, is naturally disposed to 
 beheve that no real difficulties exist where minor objections 
 have been so carefully anticipated; and, on the other 
 hand, nothing is more common than to see conditions 
 whose concise simplicity disarms the suspicion of tlie vm- 
 professional reader, but whose sweeping clauses reduce 
 counsel to the dilemma of either advising a client to com- 
 plete under serious imccrtainty whether he will acquire 
 even a tolerable safe holding title, or of involving him in 
 inquiries, which are almost sm-e to be heavily expensive, 
 and may probably prove wholly unsatisfactory.
 
 80 
 
 Chapter V. CHAPTER V. 
 
 AS TO THE SALE AXD MATTERS CONNECTED THEREWITH. 
 
 1. Auction, what it is. 
 
 2. Auctioneer, his liabilities, power, and remuneration. 
 
 3. Agent, his liabilities, power, and remuneration. 
 
 4. The deposit. 
 
 5. As to puffings and reserved biddings on a sale by 
 auction. 
 
 Auction; (1.) An auction, in the widest sense of the term, is anv mode 
 
 what it is. ^ '^ . . ' 
 
 of sale, however conducted, in which the vendor comes under 
 
 an express or iraphed obhgation to part ^^^th the property 
 
 Direction to to the highest bidder (a) : an express direction to sell by 
 
 sell by. 
 
 auction, would, however, it is conceived, only authorize a 
 sale by auction in the usual mode. 
 
 (2.) As to the auctioneer, ^c. 
 Auctioneer An auctioneer selling without sufficient authority or 
 
 is personally _ _ • i- i i 
 
 liable, if ^ot disclosinsT the name of his principal, is liable to the 
 
 selling o r X. ' 
 
 r^thority purchaser for his costs, and interest on his pm-chase-money 
 dosing"*'" if lying idle {b) : and it has been held that if he sell, with- 
 principai. out at the time of sale disclosing the name of his principal, 
 
 he is personally Uable in damages for nonperformance of 
 
 the contract (c). 
 Cannot vary The auctioneer cannot, without express authority, dele- 
 
 (a) See Sug. 11. (c) S\ig.bO;'Frniiklyn v. Lamo7id, 
 
 lb) Sug. 44. 4 C. B. 637.
 
 THE SALE, AXD MATTERS CONNECTED THEREWITH. 81 
 
 gate the sale to another {d) ; nor can lie, after the sale, Chapter v. 
 
 vary the terms of the contract (e) . si™' *^*^'" 
 
 Unless especially authorized, he has no power to receive ^gp^j^g'^ 
 
 more than the deposit : and if, as respects the deposit or JJawlW ** 
 
 any other part of the purchase-money which he is autho- aUoVed'to* 
 
 . ' , • 1 n 1 1 • • 1 • retain it. 
 
 rized to receive, he allow the purchaser to retam it, on his 
 personal or any other security, he does so at his own 
 risk (/). " 
 
 Until the purchase is completed he is a stakeholder of Holds 
 
 *■ deposit as 
 
 the deposit, and should not part ^vitli it except by consent stakeholder: 
 of both vendor and pui'chaser {g) ; if both claim it, he may inter- 
 file a bill of interpleader (//) ; but, in so doing, he must 
 not claim to retain his commission out of it (i) ; if, how- ^Jargg'^gVut^ 
 ever, he be made a defendant to a bill for specific per- sin^r'"'*'" 
 formance, and the deposit be brought into Court, he will formance. 
 be allowed to deduct his cliarges and expenses, subject to 
 the question as to who shall ultimately bear them (J) . 
 
 At Law, the costs of an auctioneer who has paid the de- ^^l^^^^^ ^r 
 posit into Court under an interpleader order, have been ^^'^^^• 
 allowed out of the deposit, leaving the purchaser to his re- 
 medy over against the vendor, although known to be 
 insolvent {k). 
 
 After the purchase is completed, or before, with the con- May pay 
 sent of the purchaser, the auctioneer may, except in very ^ompletlon.'^ 
 special cases, safely pay the deposit to the vendor, although 
 in embaiTassed circumstances (/) ; if the purchase go off, i" ''^bie to 
 
 (d) Sug. 13; Henderson V. Banie- (/) Mitchell v. Hayne, 2 Sim. & 
 wall, 1 Y. & J. 387. St. fiS ; and see Bignnld v. Audland, 
 
 (e) See Blackburn v. Scholes, 2 11 Sim. 28. 
 
 Camp. 343. U) Annexl/'i/ v. Muggridge, 1 
 
 (/) Sug. 46. Madd. 593 ; Yafen v. Farcbrother, 
 
 (g) See Smith v. Jackson, 1 Madd. 4 Madd. 239. 
 
 620; and see Wiggins v. Lord, 4 {k) Pitchers v. Edney, 4 Bing. 
 
 Beav. 30, where the deposit was re- N. C. 721 ; and sec Reeves v. Bar- 
 
 ceived by the vendor's solicitor. raud, 7 Scott, 281. 
 
 (/() Fairhrother v. Prattent, Dan. (/) Wtiite v. Bartlett, 9 Bing. 378. 
 
 64. 
 
 G
 
 82 
 
 THE SALE, AND 
 
 Chapter V. 
 
 action for, 
 by pur- 
 chaser, if 
 contract 
 rescinded. 
 
 His com- 
 mission, if 
 estate sold 
 by private 
 contract. 
 
 Claim to, 
 (Icl'ciited by 
 uegli{;ence. 
 
 Trustee 
 acting as 
 auctioneer 
 has no 
 commission. 
 
 If auction- 
 eer insol- 
 vent, loss 
 falls on 
 vendor. 
 
 Is agent for 
 
 the purchaser may recover the deposit from the auctioneer 
 in an action at law (wi) : but cannot claim interest, al- 
 though the auctioneer maj'^ actually have made a profit 
 upon it (n) . 
 
 The amount of his remuneration, unless (as it should be) 
 settled by agreement, depends upon custom ; an agreement 
 that he shall receive nothing if there be no sale, will not de- 
 prive him of his commission, if, after he has taken the usual 
 steps preparatory to a sale, the estate be sold by the owner 
 bv private contract (o) : but where an agent was to receive 
 100/. for commission, " one third down and the remaining 
 two thirds when the abstract of conveyance is di'aAvn out," 
 and an abstract of title was delivered, but the contract 
 then went off, he was not allowed to recover from his prin- 
 cipal the two-thirds which remained unpaid {p) . 
 
 And the auctioneer's (or agent's) claim to remuneration 
 will be defeated by any negligence on his part, as to the 
 mode of conducting the sale or otherwise, Avhereby the sale 
 is defeated (//) : and an executor or trustee acting as auc- 
 tioneer in the sale of the trust property cannot charge 
 commission (r). 
 
 As a general ndc, any loss occasioned by his insolvency 
 or mala fides falls on the vendor as his employer (.«?) : but 
 a fiduciary vendor will not be personally responsible for 
 such loss, if he have acted prudently and under proper ad- 
 vice in the matter (/) . 
 
 The auctioneer is, as is also his clerk (</), the agent of 
 
 ()w) Burrough v. Skinner, 5 Burr. 
 2639 ; Maberley v. Robins, 5 Taunt. 
 625. 
 
 (n) Harington v. Hoggart, 1 Barn. 
 & Ad. 577. 
 
 (o) Rainy v. Vernon, 9 Car. & P. 
 559 ; Driver v. C/iolmondeleg, ibid. n. 
 
 (p) Alder v. Boyle, 11 Jur. 591. 
 
 {q) Jones v. Nanvey, 13 Pri. 76. 
 
 (r) Kirkman v. Booth, 11 Beav. 
 273. 
 
 (.f) See Sug. 50, and cases there 
 cited. 
 
 {t) Edmonds v. Peake, 7 Beav. 
 239. 
 
 (?«) Bird V. Boulter, 1 Nev. & M. 
 313 ; Henderson v. Baniewall, 1 Y. 
 & J. 387.
 
 MATTERS CONNECTED THEREWITH. 83 
 
 both vendor and purchaser ^A-ithin the meaning of the 4th chapter^-. 
 
 section of the Statute of Frauds ; and^ as such, can bind witiliii uie*"^ 
 
 them by entries in the sale-book (y) ; and, as respects the Frauds." 
 purchaser, the rule seems to be the same although he bid 
 
 by an agent {w) ; it appears, however, to be doubtful, J/h-'fa'^uu,"- 
 
 whether either party will be bound who, after the lot is soidrbetbre*^ 
 
 knocked down but before the entry is made, revokes name, 
 the auctioneer's imphed authority {x) ; so inconvenient 
 a doctrine the Courts woidd, doubtless, repudiate, if 
 possible. 
 
 But the auctioneer's authority may be revoked by the o'/authoHtV 
 
 vendor at any time before the sale; and such revocation bfndsVur-' 
 
 has been held valid against parties pui'chasing in ignorance out notice. 
 ofit(y). 
 
 It seems to be doubtfid whether he can sue a party for sJ,|fp!|jl^y*" 
 
 whom he personally signs as agent (r) ; but he can main- irj^aets^as 
 
 tain the action when the entry has been made by his clerk "^'^" ' 
 on behalf of the Defendant {a) . 
 
 (3.) As to Agents. 
 
 An agent, either for purchase [b) or sale (6') of an estate, Agent, 
 may, unless the principal be a corporation [d), be appointed "^'J^jnt^g^l^^ 
 1)y word of mouth ; but a verbal appointment, of course, is 
 
 {v) Emmerson v. Heelis, 2 Taunt. upon the faith of it ; vide infra. 
 
 38 ; Kemeys v. Proctor, 1 Jac. & W. (z) Farebrother v. Simmons, 5 
 
 350. B. & Aid. 333 ; Wright v. Dannah 
 
 (w) Emmerson v. Heelis, 2 Taunt. 2 Camp. 203. 
 
 38. (a) Bird v. Boulter, 1 Nev. & M. 
 
 (a?) See Blagdeu v. Bradbear, 12 313. 
 
 Ves. 466; Mason v. Armitage, 13 (5) Sug. 130. 
 
 Ves. 25 ; Malins v. Freeman, 2 Keen, (c) Sug. 131. 
 
 23; Sug. 131. (d) Corporation of Ludlow v. Charl- 
 
 (g) Manser v. Back, 6 Ha. 443; ton, 6 Mee. & W. 815; Cope v. 
 
 sed aliter, if the auctioneer had a Thames Haven Company, 3 Exch. 
 
 written authority, and parties bid 841 ; 6 Rail. Ca. 83. 
 
 g2
 
 84 
 
 THE SALE, AND 
 
 Chapter V. 
 
 Private 
 
 instructions 
 
 to. 
 
 Apparent 
 agent. 
 
 For pur- 
 chaser, liow 
 far he can 
 bind his 
 principal. 
 
 Agency, if 
 denied, may 
 be esta- 
 blished. 
 
 generally inexpedient: neither of the contracting parties 
 can, it appears, act as agent for the other {d) . 
 
 Where the agent has a T>-ritten authority, parties deal- 
 ing with him upon the faith of it ai-e unaffected by private 
 restrictions imposed upon him by his principal, but of 
 which they have no notice (e) . 
 
 Also, a person may so deal with third parties, as to war- 
 rant them in the belief that another is his agent ; and he 
 will, in Equity, be bovmd by any unauthorized agreement 
 of the agent which he (tlie prmcipal) has given them rea- 
 son to consider authorized (/) . 
 
 An agent, employed to bid for an estate, and not limited 
 as to price, can bind his principal to any amount ; if, being 
 limited, he exceed the Umit, and his want of authority be 
 unkuo^ni to the other party, he himself is boimd {g), and 
 his principal is said to be fi-ee [h) : but the production of 
 written instructions authorizing him to give a certain price, 
 does not preclude parol evidence of his having had a gene- 
 ral discretionary poAver (/). 
 
 As between tlie vendor and an alleged agent for pur- 
 chase, but whose authority is denied, the agent has all the 
 rights and liabilities of a principal ; the fact of agency, if 
 denied, may, of com-se, if practicable, be estabhshed, by the 
 agent against the principal, the principal against the 
 agent {j), or the vendor against the principal. 
 
 (d) IVriyht v. Daiwah, 2 Camp. 
 203 ; Farebrotlter v. Simniom, 5 
 Barn. & Aid. 333. 
 
 (e) Neeld v. Duke of Beaufort, 5 
 Jur. 1123 ; see, as to restrictions on 
 an auctioneer, Manser v. Back, G 
 Hare, 443. 
 
 (/) See S7nith v. Eaut India Com- 
 pany, 16 Sim. 76. 
 
 {g) See Jones v. Dovnmaii, 4 Ad. 
 & E., N. S. 235, n. 
 
 (h) I licks V. Hankin, 4 Esp. Ca. 
 
 114; Amb. 498; lOVes. 400; Sug. 
 40 ; Quare, however, whether the 
 rule should not be, that where the 
 agent exceeds the limit, the principal 
 shall be bound to the extent of such 
 limit; provided, in the case of ati 
 auction, that it exceed the amount of 
 the last adverse bidding. 
 
 (i) Hicks v. Hankin, 4 Esp. Ca. 
 see p. 110. 
 
 (_;■) Taylor v. Salmon, 4 Myl. & 
 Cr. 134.
 
 MATTERS CONNECTED THEREWITH. 85 
 
 There is not, as a general riile, any objection to a con- chap ter v. 
 tract for purchase entered into in the name of an agent, ag^ntf*'* ^ 
 
 . - - -. . - . assuming to 
 
 upon the ground of his ha\ang proiessed to deal on his own be principal, 
 
 ^ ^ " enforced. 
 
 account (k) ; but in the converse case of a purchaser pro- 
 fessing to contract as agent for another, Equity would J'enrwhen 
 refuse specific performance against the vendor, if it ap- '^^ '^^'^*^'^' 
 peared that the name of the assumed principal was used 
 as an inducement to a bargain which would not otherwise 
 have been entered into (/) . 
 
 An agreement entered into b}- an attorney or agent, bV"!i!g!int,"'* 
 should, in order to avoid any question as to personal lia- signed. ^ 
 biUty, be made and signed, by him, as attorney or agent, 
 in the name of the principal {in) ; in fact, if a person by |^^.^;j|;.;'[}^*'" 
 deed covenant for himself and his heii*s for the acts of ''''^'*'- 
 another, he is personally liable, although described as 
 agent («) ; it has, however, been held, in a recent case, 
 that if a person enter into a contract in ^n•iting, describing 
 himself as agent and naming his principal, he is not per- 
 sonally liable unless he had no authority to make the 
 contract, or, in making it, exceeded his authority (o) ; and 
 even where a person, without authority, signs an instru- 
 ment in the name of and as agent for another, he cannot 
 be treated as a party to such instrument, and be sued 
 upon it, unless he be shown to have been really the prin- 
 cipal ; although he may probably be hable in an action for 
 damages for the misrepresentation [p) : where the agent of 
 the vendor, at the purchaser's request, signed the agree- 
 ment in liis (the agent's) own name, this was held not to 
 bind the purchaser {q) . 
 
 {k) Sug. 242; Nelthorpe v. Hoi- 148; and cases cited, Sug. 53. 
 
 (/ate, 1 Coll. 203. (o) Downman v. Jonen (in error), 
 
 (/) Phillips V. Duke of Bucks, 1 9 Jur. 454, Ex. Ch. 
 
 Vern. 227 ; and see other cases cited {])) Jenkins v. Ilutcliimon, 13 
 
 in Sug. 214; and see Cb.XVllI.<«/;fl. Jur. 763, Q. B. 
 
 (m) Sug. 53. (?) Graham v. Musson, 5 Bing. 
 
 (u) See Appleton v. Binks, 5 East, N. C. 603.
 
 86 
 
 THE SALE, AND 
 
 Chapter V. 
 
 Agent of 
 undisclosed 
 principal 
 may vary 
 terras of 
 I)ayment. 
 
 Cannot 
 receive pur- 
 chase-mo- 
 ney without 
 authority. 
 
 Order upon, 
 to pay 
 purchase- 
 money to a 
 third 
 person. 
 
 Commis- 
 sion. 
 
 Authority 
 of, may l)e 
 revoked ; 
 
 or unautho- 
 rized act 
 adoi>ted. 
 
 But not l>y 
 
 After the contract is entered into, an agent for sale, if 
 and so long as his principal's name is undisclosed, may vary 
 the terms of payment {r) ; he cannot, without special au- 
 thority, receive the purchase-money {s) ; if authorized to 
 receive it, a direction from his principal to pay it to a 
 thii'd party, is irrevocable, if given for valuable con- 
 sideration (/). 
 
 If an agent for sale is to receive for commission a per- 
 centage on the sum obtained, he cannot claim it in respect 
 of any part of the purchase-money which remains un- 
 paid {u) : unless such nonpayment be occasioned by the 
 wilful act or default of the vendor {v) : if several agents 
 are employed, and one find and another conclude the bar- 
 gain Avith a pm-chaser, each may claim a commission ; but 
 not the usual commission, viz., 2/. per cent, (w) . 
 
 The authority of an agent, either for sale or purchase, 
 may be revoked at any time before he has entered into a 
 l)inding agreement {x) ; if he act without authority, his 
 alleged principal, even although he have had no previous 
 communication Avith him, or were ignorant of his name at 
 the date of the contract, may adopt his acts [y) : nor is it 
 necessary that the principal should be competent to con- 
 tract at the date of the agreement; for instance, an 
 administrator may adopt a contract entered into before the 
 grant of the letters of administration {z) : but a contract 
 
 (/•) Sug. 47 ; Blackburn v. Scholes, 
 2 Camp. 313. 
 
 (.v) Mi/nn V. Jollife, 1 Moo. tk R. 
 326 ; and see further, mfra, Ch. 
 XIII. as to payment to agents. 
 
 {t) Metcalfe v. Clou(/Ji, 2 Man. & 
 Ry. 178. 
 
 (m) Bull V. Price, 7 Bing. 237. 
 
 (») S. C.,seep. 241. 
 
 (w) Murray v. Currie, 7 Car. & 
 P. 584. 
 
 (x) Farmer v. Robinson, 2 Camp. 
 
 339, n. ; Manser v. Back, 6 Ha 
 443; Smart v. Sandars, 3 C. B 
 380. 
 
 {y) Maclean v. Dunn, 4 Bing. 722 
 and see De Bed v. Thomson, 3 Beav 
 469 ; London and Birmingham Rail 
 ivay Company v. Winter, Cr. & Ph 
 57 ; and Wilson v. Tummon, 6 Sc, 
 N. R. 894. 
 
 (z) Foster V. Bafex, 12 Mce. & 
 W. 22G.
 
 MATTERS CONNECTED THEREWITH. 87 
 
 entered into by A,, expressly as agent for B., cannot be chapter v. 
 adopted by C. [a). SVT 
 
 The clerk of an agent for sale has, it appears, no implied principal, 
 authority to bind the principal (6) . er o 
 
 (4.) As to the deposit. 
 
 cannot bind 
 principal. 
 
 The deposit is a payment in part of the purchase- ^^^^'^y!^ 
 money (c) ; and the purchaser cannot elect to forfeit it ^^^^' 
 and avoid the agreement {d). ^oforiitit.^ 
 
 Even the deposit should not be paid to a mere agent for to whom 
 
 ^ ^ " _ and how it 
 
 sale, without express authority from the vendor ; if the should be 
 authority be for the agent to receive it at a particular 
 time, or in a particular manner, of com'se it cannot be 
 safely paid at any other time, or in any other manner (e) ; 
 the purchaser, however, will not be liable for loss arising 
 from his having followed any such special authority as to 
 the mode of payment (/). 
 
 The deposit cannot safely be paid by the purchaser by noUo be 
 being set off" in accoimt Avith the auctioneer or agent, ex- ^^/^J.'^'^'u^^J^g 
 cept under the special circumstances of his being able to ^cept^^°*' 
 show the existence of a debt of equal amount due from the "pectai cir- 
 
 , - cmustanccsi 
 
 vendor to the auctioneer or agent, and that the latter was 
 
 authorized by the vendor to retain the deposit on accoimt 
 
 of such debt {g) ; so, if, instead of making a cash payment, accepLnce. 
 
 the pm'chaser give his acceptance, payment of the bill 
 
 when due is no defence to an action by the vendor, if the 
 
 bill never came into his possession (A) . 
 
 (a) Wilson v. Tummon, 6 Man. & (/) Sug. 47. 
 
 Gr. 236 ; 6 So. N. R. 894. (g) Barker v. Greenwood, 2 Y. & 
 
 {b) Colex V. Trecothick, 8 Ves. C, Ex. 414; Young \.n7iite, 7 Beav. 
 
 234. 506; Hanley v. Cassan, 11 Jur, 
 
 (c-) Sug. 48. 1088. 
 
 {d) 2 Mer. 506. {h) Sykes v. Uiles, 5 Mee. & W. 
 
 {e) See Young v. Guy, 8 Beav. 645. 
 149.
 
 88 
 
 THE SALE, AND 
 
 Chapter V. 
 
 Cheque for, 
 when void. 
 
 Purchaser 
 not bound 
 by invest- 
 ment of, 
 except in 
 special 
 cases. 
 
 Forfeiture 
 of, when 
 relieved 
 against. 
 
 Jtay be 
 retained by 
 vendor, if 
 purchaser 
 die without 
 heir; scmbk. 
 
 If a clieque be given for the deposit, an action on the 
 cheque may be resisted upon any ground which would 
 have enabled the purchaser to recover at Law the deposit 
 if actually paid (?). 
 
 If a purchaser become entitled to a return of his de- 
 posit, he can, in the absence of special agreement, claim 
 the specific sura paid, Avith interest ; and will not be pre- 
 judiced or advantaged by any fall or rise in any securities 
 in which it may have been invested ; unless such invest- 
 ment were made ^vith his assent, (which will not be as- 
 sumed from his making no reply to notice of the invest- 
 ment {j),) or, (in the case of a bill being filed for specific 
 performance,) under the authority of the Court ; in which 
 cases the investment will be at his risk and for his be- 
 nefit {k) : and the same rules apply to an investment of the 
 purchase-money by the purchaser, pending discussions as 
 to title, &c. 
 
 Equity Mill, in general, relieve the piuchaser against 
 forfeiture of his deposit, if he be able and willing to give to 
 the vendor the full benefit of the contract (/) : its return, 
 with interest, may be directed even in a suit for specific 
 performance, where the l)ill is dismissed, if the vendor be 
 Plaintiff"; but not if the purchaser be Plaintiff" (m) ; nor, 
 M'here the vendor is Plaintiff", if the bill be dismissed 
 without any decision upon tlie question of title, but for 
 ladies, or on some other collateral gromid [n) . 
 
 If the purchaser die before obtaining a conveyance, in- 
 testate and without an heir, it seems probable that the 
 vendor might retain both the estate and the deposit (o). 
 
 (j) Mills V. Oddy, 6 Car. & P. Ves. 279. 
 728. (»h) Sug. 51 ; see Willimm v. Ed- 
 
 (j) See Roberts \. Masscnj, l^Vcs. v'ards, 2 Sinn. 78; see also Gee v. 
 
 561. Pcar.se, D. G. & S. 325. 
 
 (*) See Poole V. Radd, 3 Bro. C. C. (w) Sout/icomb v. Bishop of Exeter, 
 
 49 ; Sug. 50, 51. 6 Ila. 225, 228. 
 
 (/) Sug. 51 ; JM.S WiMatt/teivs, 3 {o) Sug. 337.
 
 MATTERS CONNECTED THEKEWITII. 89 
 
 As a general rule, if the deposit be lost through the in- chap t.T v. 
 solvency of the auctioneer^ the loss falls on tlie vendor {p) . insolvency 
 
 of auc- 
 tioneer. 
 
 (5.) As to puffers and reserved biddings. 
 
 Unless the property be expressly or impliedly offered JUftJitider 
 for sale \dthout reserve {q), it appears settled that the em- eqi^i'tyVo" 
 
 /. 1 • -1 T • • I 11 protection, 
 
 plovment of a bidder to prevent its gomg at an imdervalue unless the 
 
 * " sale is with- 
 
 is allowable in Equity (r) ; but the rule is not so extended out reserve. 
 as to authorize the employment of more bidders than one, 
 even although they are limited to the same sum {s) ; nor 
 even of a single bidder for the purpose of enhancing the 
 price indefinitely (/) : but, on a sale in lots, several bidders 
 might, it is conceived, be employed for different parts of 
 the property, provided that no lot were protected by more 
 than one bidder : at Law, the rule as respects the employ- f„"j'^t**;f^'': 
 ment of a single bidder seems unsettled ; Sir Edward ""'"*''• 
 Sugden seems to consider that the authorities preponderate 
 in favour of the practice («) ; however, in a very recent 
 case, the Court of Exchequer maintained the contrary doc- 
 trine, and laid down broadly that the employment of a 
 single bidder to protect the property would vitiate the sale 
 at Law, unless the intention to do so were expressly noti- 
 fied : but tliis opinion was extra-judicial ; the sale, (in the 
 case before the Court,) having been advertised as to be 
 made ^^^thout reserve {v). 
 
 Equity, in fact, seems to favour the employment of a p u. chimin- 
 
 {p) Supra, p. 82. Malk. I'iii; and see 15 Mees. & W. 
 
 {q) Meadotcsv. Tanner, 5 Madd. 372 ; and Sug. 17. 
 
 34 ; Robinson v. Tl'all, 2 Phill. 372 ; (t) 12 Ves. 483. 
 
 and see Tliornett v. Haines, 15 Mees. (m) Sug. 16. 
 
 & W. 3G7. (») Tliornett v. Haines, 15 Mees. 
 
 (;•) Woodward v. Millar, 2 Coll. & W., see pp. 371. 372; and see 
 
 279; and see Sug. 15, 16; and Wheeler y. Collier, \ MooA. &.Ua\V. 
 
 earlier cases there cited. 123. 
 
 («) Wheeler v. Collier, 1 Mood. &
 
 90 THE SALE, AND MATTERS CONNECTED THEREWITH. 
 
 Chapter V. person to protect the property ; for it has refused to en- 
 Sedfied^^' force specific performance against a vendor, in the several 
 notentoc^ cascs of his known agent having bid for the purchaser and 
 been mistaken for a puffer {w), and of the person actually 
 employed to bid for the vendor ha\-ing neglected so to 
 do [x] : so, in a converse case, where, upon a sale of estates 
 belonging to several vendors, the person employed to pro- 
 tect one estate, by mistake purchased another, the bill 
 against him for specific performance Avas dismissed {y) . 
 
 (iff) Twiniiuj v. Morricc, 2 Bro. (t/) Malim v. Freeman, 2 Kee. 25. 
 
 C. C. 326. {■i) Mason y.Armitage, 13 Vea. 25.
 
 91 
 
 CHAPTER VI. Chapter VI. 
 
 AS TO THE AGREEMENT. 
 
 1. As to the general necessity for a written agreement. 
 
 2. The preparation of formal agreements. 
 
 3. What informal documents may constitute an agree- 
 
 ment. 
 
 4. The signature. 
 
 5. The stamps. 
 
 6. As to illegal agreements. 
 
 (1.) UxDER the Statute of Frauds [a), a written agree- 
 ment, signed by the party to be charged, or his agent, is 
 
 Written 
 
 agrti-iiH'nt 
 
 gentrally 
 
 necessary 
 
 generally necessary to the validity of any contract for the tute of 
 
 ' . Frauds. 
 
 sale or pm-chasc of lands, tenements, or hereditaments, 
 
 or any estate or interest in or concerning them ; whether 
 
 such estate or interest be subsisting, or be proposed to be 
 
 created de novo; and the Act extends to sales by auction [b), 
 
 and in Bankruptcy (c) ; but not to sales before a Master, ^J^^ithh"* 
 
 or to purchases imder the Order of the Court, if the t'^*^ '*'''^"*^- 
 
 owner of the estate make no opposition to the confirmation 
 
 of the report approving of the purchase {d) . 
 
 And although an actual demise by parol for any term Parol exe- 
 not exceeding three years, at a rent not less than two f^/ i^^g"* 
 thu'ds of the improved value, is valid under the 2nd section 
 of the Statute, an executory agreement for such a demise 
 
 (a) 29 Car. II. c. 3, see s. 4; (c) Ex parte Cutis, 3 Dea. 267, 
 Sug. 98. Lord Cottenham. 
 
 (b) Sug. 135; see Att.-Gen. v. {d) See note (6). 
 Day, 1 Ves. 218 ; and 12 Ves. 472.
 
 92 
 
 THE AGREEMENT. 
 
 Chapter VI. 
 
 or for 
 
 assignment 
 of term less 
 than three 
 years, void. 
 
 Whether 
 parol 
 
 license is 
 valid. 
 
 Semble, not. 
 
 Any agree- 
 ment SUl)- 
 staiitially 
 for a sale, is 
 within the 
 statute. 
 
 is void unless in "v^"^itiug (e) : so, a parol agreement by a 
 lessee for an assignment of the residue of his term (being 
 less than three years), is void, and cannot, it A\ould seem, 
 operate as an underlease (/) . 
 
 The first section of the Act, which renders a winting ne- 
 cessary for the creation of " all leases, estates, interests of 
 freehold, or terms of years, or any uncertain interest, of, in 
 or out of any lands, &c.," has been held not to extend to a 
 license ; e. cj., a license to A., in consideration of a yearly 
 payment, to stack coals on a piece of ground for seven 
 years, ^rith the sole use of the land so employed {g) : this 
 decision, however. Sir E. Sugden observes (/*), appears to 
 be in the very teeth of the Statute ; and, although it has 
 been often followed (i), its authority seems to be destroyed 
 by subsequent cases which decide that an easement cannot 
 be granted without deed [j) ; it is also conceived that a 
 parol cxccutoiT agreement for such a license would pro- 
 bably be invalid ; the Mords, " in or concerning," in the 
 4th section, being, apparently, more comprehensive than 
 the words, " of, in, or out of," in the 1st section. ' 
 
 Any arrangement which is substantially, although not 
 professedly, a sale of an interest in land, is within the 4th 
 section, and requires a written contract : e.g., an agree- 
 ment by a person possessed of a term for years, to give up 
 possession to another, and allow him to become tenant for 
 the remainder of the term, in consideration of his paying 
 in part for certain repairs (k) ; or an agreement by the 
 • termor to quit possession on a certain day, and pay all out- 
 goings up to that time, in consideration of a sum of money 
 to be paid to him by a party who has agreed ^ith the land- 
 
 (<-) Sug. 95. 
 
 (/) Barrett v. Roljili, 14 Mee. & 
 W. 348. 
 
 {g) Wood V. Lake, Say. 3. 
 (/O Sug. 97. 
 (0 Ibid. 
 
 {j) See 1 Jarm. Couv. by S. 289, 
 and cases there cited ; and, in parti- 
 cular, Bird V. Hiyginson, 4 Nev. & M. 
 505. 
 
 (Ji) Buttemer v. I/ai/cs, 3 Jur. 
 704.
 
 as a license 
 
 excuse 
 
 trespass. 
 
 THE AGREEMENT. 93 
 
 lord for a lease of the premises on the termination of the chaptervi. 
 subsisting term (/) ; or an agreement by a termor, under 
 similar cii'cumstances, that he Avill part with the land, and 
 that the intended lessee shall take it (/) . 
 
 So, a parol agreement by A. with an occupying tenant to 
 pay him 100/., upon the tenant surrendering his lease, 
 and procuring the landlord to accept A. as tenant, is 
 void {m) : nor can the tenant sue for the consideration, 
 upon the contract, although he have performed his part of 
 it ; but he may sue upon an account stated, if, after such 
 performance, A. have admitted that he is indebted to him 
 in the amount of the consideration (/«) . 
 
 An agreement void mider the 4th section, may, until void agree- 
 countermanded, operate as a license, so as to excuse Avhat ^xcVse 
 would otlicrwisc be trespass {n) . 
 
 And the transfer in Avriting of a parol, and therefore written 
 
 ° ^ ' tran.-ferof 
 
 void, agreement for pm-chase of an estate, will be a good {^"J^' ^sree- 
 consideration as between transferror and transferree, if 
 the latter actually obtain a conveyance from the vendor (o) : 
 so, also, if an agent for purchase enter into a parol agree- 
 ment, and pay the pm'chase-money, and procure a con- 
 veyance, he can sue his principal for the amount (jt) . 
 
 The 4th section has been held to extend to agreements Mining but 
 
 ^ not Railway 
 
 for sale of shares in a Mining Company {q ) : but not of ^^■'ll^^l t,,^ 
 
 shares in a Railway Company ; at least if the Act of Incor- *^^ ®*^"^*' 
 poration makes them personal estate (r). 
 
 Questions frequently arise as to the necessity for a growfng 
 
 written agi*eement for the sale of growing crops ; the law '""''•'*■ 
 upon the subject can hardly be considered as settled {s) ; 
 
 (/) Smith V. Toml/s, 3 Jur. 72. (p) Pawle v. Gunn, 4 Bing. N. S. 
 
 (m) Cocking v. Ward, 1 C. B. R. 445. 
 
 B58. {q) Boyce v. Greene, Batty, 608. 
 
 (w) Carrington v. Roots, 2 Mee. (*') Bradley v. Holdsworth, 3 Mee. 
 
 ?c W. 248. & W. 422 ; Duncuft v. Albrecht, 12 
 
 (o) Seaman v. Price, I Ry. & Sim. 189; Aff. 199. 
 
 Moo. 195. (s) Sug. 101.
 
 94 THE AGREEMENT. 
 
 Chapter VI. jj^^ ^}jg following appears to be the general result of tlie 
 authorities. 
 
 The point to be determined in such cases is, whether the 
 interest contracted for be an interest in land within the 
 meaning of the 4th section of the Statute of Frauds ; — in 
 which case a wiitten agreement is necessary ; — or whetlier 
 tlie contract be merely for the sale of chattels ; in which 
 case, however, unless the price be under 10/., there must, 
 under the 17th section, be a written agreement or memo- 
 randum, or part payment of the price, or part acceptance 
 of the goods. 
 
 tife ni^'secr -^^ agreement for sale of the exclusive right to the ves- 
 ture of land, or for sale of crops which would not go as 
 emblements to the executor (/), as mowing grass (u), stand- 
 ing underwood, poles, or timber, is witliin the 4th section ; 
 nor, in the case of grass, does it appear to be material 
 whether it is to be mowed or fed off by the purchaser ; 
 that is, if, in the latter case, he is to have the exclusive 
 riglit to it {v) : so, also, an agreement for the sale of grow- 
 ing fruit, {e.ff., pears) {of), is withm the 4th section. 
 
 wi'thfn'thl ^^^ i^ *^® agreement be for sale of the crop after the 
 stct. seller shall have reduced it to a chattel by severance from 
 the fi'eehold, as where standing timber is to be felled by 
 the vendor, the 4th section does not seem to apply {y) : 
 and the same distinction would, it is conceived, exist in 
 agreements for the sale of gravel {z), stone, or other mi- 
 nerals : nor does the 4th section seem to affect sales of 
 crops which would go as emblements {a) : such as hops {b), 
 
 (t) See judgment in Evans v. (y) Smith v. Sunnan, 9 B. & C. 
 
 Roberts, 5 B. & C. 829 ; Sug. 99. 561 ; and see 1 Cromp. & Mee. 105. 
 
 (m) Crosby v. Wadsiiwrth, 6 East, {z) See Coulton v. Ambler, 13 
 
 C02. Mee. & W. 403. 
 
 (») See Jones \. Flint, 10 Ad. & (a) Sug. 100 ; but see Wadding- 
 
 E. 760. ton V. Bristow, 2 Bos. & P. 452. 
 
 {x) Rodwell V. Phillips, 9 Mee. & (b) Evans v. Roberts, 5 B. & C. 
 
 W. 501 ; sed qu. Whether so, if the 829 ; see judgment ; and Sug. 99. 
 crop is mature at the time of sale ?
 
 THE AGREEMENT. 95 
 
 wheats potatoes^ turnips, &c. : nor does it appear material chapter vi . 
 in such cases whether the crop at the time of sale be ma- 
 tm-e or otherwise, or whether it is to be removed by the 
 buyer or seller, or to be paid for by the quantity, or by 
 the acre ; and even in the case of grass, if the vendor re- 
 tain possession of the land, and the right of tm^ning on his 
 own cattle, and the piu-chaser have no right of severance, 
 but only to feed it oflF along with the vendor, the agree- 
 ment is merely for agistment, and is not within the 4th 
 section (iv) : but in none of these cases is it prudent to dis- 
 pense with a written contract. 
 
 And a parol agreement, for the sale of growing crops, Parol ag'^e 
 which would othermse be void under the 4th section, between 
 
 ' tenants ; 
 
 may be good as between outgoing and incoming ten- 
 ants (x) : but where a farm is let by parol, a sale of the ^"t«x°'if"^ 
 growing crops by the lessor to the incoming tenant, seems Ifjemnhig^ 
 to require a written contract under the 4th section {y) . '^^'^^ ' 
 
 And although an airreement be void under the 4th sec- Vendor's 
 
 <= » remedy if 
 
 tion, the seller, (except perhaps the parties be lessor and I'ake'tne' 
 tenant,) can recover the value of the crop if it be taken or ''™^' 
 received by the purchaser : but he cannot recover on the 
 terms of the agreement, but only on a quantum meruit {z) . 
 
 A sale of tenant's fixtm-es by the tenant to the landlord, Parol iigree- 
 
 •' -' meiit lor 
 
 has been held not to be within the 4th section, although fenanf-s 
 
 they be sold while attached to the freehold (a) . sufficient. 
 
 An agi-eement by a tenant to pay an increased sum by tfinS^nL, 
 
 way of rent, in consideration of improvements to be made mentfof" 
 by the landlord, has been held not to be within the Act ; 
 and therefore to be valid although by parol {b) : but a dif- 
 
 («•) Jones V. Flint, 10 Ad. & E. (z) 1 Cromp. & Mees. 109. 
 
 7G0. (a) Holier v. Runder, 1 Cr. M. & 
 
 (jr) Mayfield v. Waddcy, 3 B. & R. 266. 
 C. 357 ; and see Sug. 100. {b) Donnellan v. Reade, 3 B. & A. 
 
 (y) Lord Falmouth v. Thomas, I 899, 904 ; Holy v. Roebuck, 1 
 
 Cromp. & Mees. 89. Taunt. 157.
 
 96 
 
 THE AGREEMENT. 
 
 Void agree- 
 ment for 
 (inter alia) 
 the sale of 
 land, where 
 void in toto. 
 
 Chapt er VI. ferent nile has been laid doAvii as respects an agreement 
 for abatement of rent {d) . 
 
 If 9,n agreement relating to the sale of land be void 
 under the 4th section, it will also be void as respects 
 any other matters vrhich are either inseparably mixed up 
 with, or are dependent upon, the principal agreement : e.g.; 
 where a tenant agreed to rent a fiu*nislied house, and the 
 landlord was to supply additional fimiiture after the 
 tenant had taken possession, it was held, that the Avant of 
 a written contract was a bar to an action for non-deli- 
 very of the fumitui'c (e) ; so, upon a parol agreement to 
 let a house, and to make certain repairs, which the tenant 
 was to pay for, it was held that the landlord could not sue 
 him for the cost of such repairs (/) . 
 
 As to formal 
 agreements. 
 
 As to 
 
 naming the 
 represienta- 
 tives of the 
 parties. 
 
 Agreement, 
 on sale by 
 auction, 
 refers to 
 particulars, 
 &c. 
 
 What to be 
 comprised in 
 agreement 
 
 (2.) As to the preparation of formal agreements. 
 
 Upon formal agreements for sale, few questions arise 
 distmguishable from those which have been akeady con- 
 sidered with reference to the particulars and conditions. 
 
 In fi'aming such agi'eements, it is usual to make the 
 parties agree, each "for liimself, his heirs, executors, and 
 administrators;" the insertion of the word "heii's," how- 
 ever, is scarcely correct, unless the instniment be imder 
 seal ; and it is not necessary, although the general practice, 
 to name the personal representatives. 
 
 Upon a sale by auction, the agreement, of course, refers 
 to, and is generally written or printed upon a copy of, the 
 particulars and conditions. 
 
 Upon a sale by private contract, the agreement, as a 
 general rule, comprises whatever stipulations and other 
 
 (d^ O'Connor v. Sj)aight, 1 Sch. 
 & Lef. 306. 
 
 (e) Mechelen v. Wallace, 7 Ad. & 
 E. 49. 
 
 (/■) Vaughan v. Hancock, 10 Jur. 
 926 ; and see Lord Falmouth v. 
 Thomas, 1 Cromp. & Mees. 89.
 
 THE AGREEMENT. 9/ 
 
 matter would, had the sale been by auction, have been Chapter vi. 
 comprised ^ntliin the particulars and conditions ; except private con- 
 such matter as exclusively applies to an auction ; when it 
 is probable that special stipulations, as to title, &c., "will be 
 necessary, the agreement should be prepared in blank 
 before the estate is offered for sale. 
 
 In preparing; agi'eements for the sale of land to pro- Matters to 
 
 1. I c> a ^ be provided 
 
 moters of public undertaldngs^ care should be taken to ^entVo?'^'^'' 
 state whether the piu-chase-money is to be in lieu of those lic'com-'" 
 accommodation works which the promoters are prima facie 
 bound to make and maintain for the owners of adjoining 
 land; and whether the ordinary or statutory rule as to 
 the expenses of the pm'chaser is to operate {g) : the agree- 
 ment for sale to a Railway or Waterworks Company, 
 should, if such be the intention, expressly state that the 
 mines and minerals are included in the pui'chase (h) . 
 
 (3.) As to lohat informal documents may constitute 
 an agreement. 
 
 Informal agreements give rise to questions of greater informal 
 
 " " * " agreements. 
 
 difficulty. 
 
 We may lay down, as general, although not universal, bra^su?-*^ 
 rules, 1st, that any writing signed by the party to be agreement 
 
 T 1 • 1 • 1 1 1 within the 
 
 charged, or his agent, and which, either expressly or by statute. 
 reference to other writings, determines the parties to and 
 subject-matter of a. contract, and fixes, or provides the 
 compulsory means of fixing, all its terms, is a sufficient 
 agreement within the Statute ; and, 2ndly, that no writing 
 is a sufficient agreement, which fails in any of the above- 
 mentioned particulars. 
 
 Thus, letters are constantly held to constitute a binding Letters. 
 contract ; and often where such a result is a surprise upon 
 
 {g) See Frend and Ware's Rail- {h) See 8 & 9 Vict. c. 20, sect, 
 
 way Conveyancing, p. 146. 77 ; and 10 & 11 Vict. c. 17, s. 18.
 
 98 
 
 THE AGREEMENT. 
 
 Chapter VI. 
 
 Heccipt for 
 
 purchase 
 
 money. 
 
 Entry of 
 xale in 
 auctioneers 
 book. 
 
 Arl)itration 
 bund. 
 
 Notice l)y or 
 to Ituilway 
 companies, 
 &c 
 
 the writers (i) : and a letter adtlressed by either a vendor, 
 or, it would appear, a purcliaser, to a tliird person, witli 
 directions incidental to the carrjnng out of the agreement : 
 — e.g., the delivery of title deeds, or preparation of the 
 conveyance — may sutHcc to bind the writer {k) : so, the 
 vendor's receipt for the purchase-money or deposit, or a 
 similar receipt signed by the auctioneer, or the entry of 
 sale made by him in his books (/), or a bond of reference 
 to a surA'cyor to settle the price to be paid by the purchaser, 
 would, it appears, be sufficient (m). 
 
 So, notice given by a Railway or other Public Company 
 of their intention to exercise a power of compulsorily 
 taking land, if given to a person under no personal inca- 
 l)acity (»), constitutes a binding contract to the extent of 
 fixing what land is to be taken (o), and cannot be with- 
 drawn by the Comj)any without the consent of the land- 
 ownier (/>) ; and the price, if not settled by agreement, must 
 be determined in the manner pointed out by the Act of 
 Parliament (7) ; but notice by a Company, under the 
 
 (;) Kennedy v. Lee, 3 Mer. 411. 
 "The same construction must be 
 put upon a letter, that would be ap- 
 plieil to the case of a more formal 
 instrument ; the only diflerence 
 being, that a letter or correspond- 
 ence, is generally more loose and in- 
 accurate in respect of terms, and 
 creates a greater difficulty in arriving 
 at a precise conclusion." Per Lord 
 Eldon, ibid. 451 ; see Thoman v. 
 BUickman, 1 Coll. 301. 
 
 (*) Owen V. Thomas, Z Myi. & K. 
 353 ; Rose v. Cunynghame , 1 1 Ves. 
 550; Sug. 122. 
 
 (/) Coles V. Trecoihick, 9 Ves. 
 234 ; BUtgden v. Bradbear, 12 Ves. 
 466; Sug. 114, 121. 
 
 {ni) Per Lord Rosslyn, C> Ves. 1". 
 
 (n) Midland Counties Railway 
 
 Company v Oswiu, 1 Coll, 74. 
 
 (o) Adams v. Blackirall Railway 
 Company, 14 Jur, 0/9, L. C. 
 
 (/») Tawney v. Lyitn and Ely Rail- 
 way Company, lt> L. J., N. S., Ch. 
 282. V. C. E. ; and see Reg. v. 
 Birmingham and Oxford Junc- 
 tion Railway Company, 15 L. T. 
 392. 
 
 {q) See Salmon v. Randall, 3 Myl. 
 & C. 439 ; Stone v. Commercial 
 Railway Company, 4 Myl. & Cr. 124 ; 
 Walker v. Eastern Counties Railway 
 Company, (^ Ha. 594. Where a 
 will gave to A. an option of purchase 
 within a limited period, a mere 
 verbal declaration to the trustees 
 that he intended to take the pro- 
 perty, the purchase-money remain- 
 ing unpaid and the conveyance un-
 
 THE AGREEMENT. 99 
 
 Lands Clmiscs Consolidation Act, of tln-ir intent it)n to <-' ''apt*!r vi. 
 
 take part only of premises nscd as a mannfactory, docs 
 
 not amount to an a^eemcnt to take the whole, although 
 
 under the 92 ud section of the Act the owners may refuse 
 
 to sell less than the whole (a) : it has been recently deter- statutory 
 
 •• ' * power not 
 
 mined, that under the above Act, a Company may give a by'singie* 
 second notice to the same landowner in respect of land °"*^"^^- 
 within the limits to which their compulsory powers extend, 
 if, from unforeseen circumstances, the land taken under 
 the first notice prove insutficicnt for the authorized piu'poscs 
 of the undertaking (r) : so, where a landowner is entitled 
 })y notice to require the Company to purchase his interest 
 in lands affected by the undertaking, the service of such 
 notice constitutes a ijinding contract (*). 
 
 But — and the case may be considered as exceptive from Rem roii*. 
 
 '■ alistracl. 
 
 the first general rule — where B. had entered into a parol ^^.,;|'."""'' 
 agreement to sell an estate to W., and B.'s agent made 
 out and signed a rent-roll, entitled " Rent-roll of lands 
 agreed to be sold by B. to W. from May 1762, at 21 
 years' purchase for the clear yearly rent,'' and the amount 
 of rent was then corrected by B. in his own handwriting, 
 and the rent-roll so altered was delivered to W,, and 
 abstracts of title were also delivered, and B. sent letters to aiui lottors 
 
 to creilitotB ; 
 
 his creditors informing them of the sale, it was held, that 
 there was no sufficient aorrcement (/) : nor will a letter o"" l^'t^'" 
 
 ^^ V / ' written as 
 
 suggesting an abandonment of a parol agi-eement {v), take filenJ**"^*^"' 
 
 executed, wa«, of course, held in- lixie Railway Cumpany, 15 Sim. 580. 
 
 sufficient to entitle hina to the bene- (*) Doo v. Loiulou ami Croyrloti 
 
 fit of the option ; Dairnon v. Dav- Canal Company, 1 Rail. Ca. 257. 
 
 »on, 8 Sira. .146. (/) H'haley v. Baynel, 1 Bro. P. 
 
 (y) The Queen v. London and C. 345 : (the decision was upon the 
 
 South-Westem Railway Company, \2 Irish Statute of Frauds, which cor- 
 
 Jur. 973, Q. B. responds with the English Act :) 
 
 (r) Stamps v. Birminyliam and Cooke v. Tomhn, 2 Anst. 420. 
 
 Stour Valley Railway Company, 2 (f) Gosbell v, .Irclier, 2 Ad. & E. 
 
 Phill. 673; 6 Rail. Ca. 123; and 500. 
 see SimpHon v. Lancaster and Car- 
 
 h2
 
 100 
 
 THE AGREEMENT. 
 
 Chapter VI. 
 
 Recital of 
 agreement, 
 held suffi- 
 cient. 
 
 Document 
 relied on 
 must con- 
 sist with 
 alleged 
 parol 
 agreement. 
 
 Whether 
 both parties 
 must be 
 named. 
 
 As to the 
 name.^ in 
 the case of 
 an agree- 
 
 the case out of the Statute : but where, at Law, an agree- 
 ment was produced in the foUoAdng words, Anz. "A. having 
 agreed to purchase of B. for 250/. the two leasehold houses 
 situate &c., B. hereby agrees to paper and paint; A. to 
 pay .230/. at the time of the contract, and the remaining 
 20/. on the completion of the painting :" it was held, that 
 the agreement to purchase, although recited as an existing 
 agreement, was to be considered as forming part of the 
 agreement produced {w). 
 
 And it is, of course, necessary that the letter or other 
 document relied on should be consistent with the parol 
 agreement set up by the party relying on it [x] . 
 
 As to both parties being named ; — it is stated by Lord 
 Coivper (Lord Keeper), "that if a man being in company 
 makes offers of a bargain, and then writes them down and 
 signs them, and another person then takes them up and 
 prefers his bill, there will be a sufficient agreement [tj) ; " 
 and the dictum, which was extrajudicial, is cited by Sir 
 E. Suyden {z) : however, in Boyce v. Greene [a] a memo- 
 randum in these words, "Sold 100 Mining Purdies at 
 17*. 6</." and signed by the vendor, was held insufficient, 
 as not mentioning the name of the purchaser [b) : so, it 
 has been held, that, in order to bind the pui'chaser by the 
 auctioneer's entry, either the name of the vendor must 
 appear by the entry itself or in the conditions or par- 
 ticulars thereby refeiTed to, or the auctioneer must bind 
 himself personally by his entry [c) . 
 
 In the case of a letter, if the name of the party to whom 
 it is addressed appear in an indorsed direction, or be writ- 
 
 {w) Hall V. Betty, 4 Man. & G. 
 410. 
 
 {x) Coopei' V. Smith, 15 East, 103. 
 
 (y) Coleman v. Vpcot, 5 Vin. Ab. 
 527. 
 
 (z) Sag. 115. 
 
 (a) Batty, 608. 
 
 (A) See Scagood v. Meale, Prec. 
 Ch. 560 ; Champion \. Plummer, 1 
 Bos. & P., N. R. 254. 
 
 (c) Wheeler v. Collier, Moo. & 
 Malk. 12;5; and see Jacob v. Kirk, 
 2 Moo. & Rob. 221.
 
 THE AGREEMENT. 101 
 
 ten at the foot of the letter, no difficulty on the above Chapter vr. 
 point can arise : if an envelope be used, the name may "tter?^ 
 often not appear in the letter; but the Court, it is con- 
 ceived, Avould receive evidence connecting the envelope 
 with the inclosure, 
 
 A letter, it mav be remarked, binds the writer from the pff^r by 
 
 - letter, when 
 
 time of its transmission; not of its receipt by the other t>inding. 
 party (e) : and a person bound to accept or reiect an offer ^^^ty 
 
 ^ " ^ ' ^ r J accepting 
 
 by a particidar post, and duly posting his letter, is not re- nawj fo'r*'^ 
 sponsible for delay in the post office (/) ; even although, the'post- 
 by mistake, he date his reply a day in advance, so that, 
 through such delay, the letter be deHvered at a time appa- 
 rently consistent with its erroneous date (ff) . 
 
 A general description of the estate, — e. ff., " ^Mr. O.^s de^scHption 
 house" (/i), or, " the property in Cable Street" (i), or, su^dent!^ 
 "the house in Newport" {k), — is sufficient; if parol eri- 
 dence can be produced to show what property was in- 
 tended : there must, however, be some description; e. ff., mnstbe'^^ 
 a memorandum that a party has disposed of "his writ- description, 
 ings," {i. e., title deeds,) is insufficient (/) . 
 
 So, all the essential terms of the contract must be must^!'or^ 
 fixed, or, as in the case of the arbitration bond {m), the means^of ^ 
 means of compulsorily fixing them ^vith perfect accuracy tiie terms of 
 must be provided ; thus, a receipt for the deposit has been ment. 
 held insufficient, because it did not state either the price 
 or what proporrion the deposit bore to the price (w) ; so, 
 where the price was fixed subject to variation in respect 
 of a rent-charge, and it did not appear whether the amount 
 
 (e) Potter v. Sanders, 6 Ha. 1. 150. 
 
 (/) Adams v. Lindsell, 1 B. & (k) Owen v. Thomas, 3 Myl. & K. 
 
 Aid. 681. 353. 
 
 ((/) See Dun lop y. Higyins,\ H. of (/) Seagood v. Meale, Prec. Ch. 
 
 L. Ca. 396. 560. 
 
 (h) Ogilvie v. Foljambe, 3 Mer. {m) Supra, p. 98. 
 
 61. (n) Blagden v. Bradbear, 12 Ves. 
 
 (0 Bleakley v. Smith, 11 Sim. 466.
 
 102 
 
 THE AGREEMENT. 
 
 Chapter VI. 
 
 But need 
 not specify 
 them : a 
 reference to 
 other docu- 
 ments con- 
 taining 
 them is 
 sufficient. 
 
 But the 
 reference 
 must be 
 clear. 
 
 Patent 
 ambiguity 
 fatal ; but 
 parol evi- 
 dence is ad- 
 mi.ssible in 
 aid of a 
 defective 
 reference, 
 &c. 
 
 was 5*. or Is. per annum, the defect was held fatal (w) ; 
 so, upon a sale subject to conditions^ the auctioneer's 
 receipt or entry would be void, unless it were actually an- 
 nexed, or clearly referred, to the conditions (o) . 
 
 It is, however, not necessary that the terms should ap- 
 pear on the face of the instrument signed by the party to 
 be charged ; which, when an agreement has to be made 
 out from correspondence, is seldom the case ; it is sufficient 
 if the instrument refer to other documents, (such as condi- 
 tions of sale, pre%'ious letters, or, in fact, any other writ- 
 ings,) which contain the terms {p). 
 
 Such writings, however, must clearly be referred to {q) ; 
 and, unless their entu'e contents are to form part of the 
 agreement, it must distinctly appear what is and what is 
 not to be so included : e. (/., where the signed writing 
 referred to such of the clauses contained in a specified 
 paper as had been read at a meeting between the parties, 
 not stating ivkich had been so read, it was held bad for 
 uncertainty (r). 
 
 In the last case, it will be seen (s) that there was a 
 defect patent on the face of the agreement : the agreement 
 itself, according to its own grammatical construction, 
 raised the question as to which of the clauses were in- 
 tended ; but, in the case of a mere imperfect reference to 
 another instrument, parol evidence is admissible to ascer- 
 tain its identity (/) ; so, parol e\'idence is admissible to 
 explain the sense in which words, in themselves unintelli- 
 
 (n) Lord Middle km V. TJ'ikon,iiug. 
 118. 
 
 (o) Sug. 121; Hinde v. White- 
 house, 7 East, 553, 569 ; Kemvorthy 
 V. Schofield, 2 B. & Ad. 945 ; and 
 see Coles v. Trecothick, 9 Ves. 234. 
 
 {p) Clinan v. Cooke, 1 Sch. & 
 Lef. 22, 33; Allen v. Bennet, 3 Taunt. 
 169 ; Dohell v. Hutchinson, 3 Ad. & 
 El. 355 ; Laylhoarp v. Bryant, 2 
 
 Bing. N. C. 735. 
 
 {q) Boydellv. Drummond, 11 East, 
 142 ; Boyce v. Greene, Batty, 608 ; 
 Jacob V. Kirk, 2 Moo. & R. 221, 
 
 (r) Brodie v. St. Paul, 1 Ves. jun. 
 326, 333 ; see 1 Sch. & Lef. 36. 
 
 {s) See 1 Sch. & Lef. 36. 
 
 (t) See Clinan v. Cooke, 1 Sch. & 
 Lef. 33 ; Saimderson v, Jackson, 
 2 Bro. & P. 238.
 
 THE AGREEMENT. 103 
 
 gible, were used by the parties [t) ; or tlie peculiar mean- Chapter vi. 
 ing wliich local, professional, or trade usage, lias attached 
 to particular expressions (w). 
 
 And it appears that, at least in the case of letters, there ^"nf ^e*ed 
 need not be any specific description of, nor even an ex- fy\lenfT^' 
 press reference to, the prior documents ; it will be suffi- ment refer- 
 cient if the Coui't be clearly satisfied that a reference 
 was in fact intended, and of the identity of the instru- 
 ment. 
 
 For instance, where {v) A., the owner of W. farm, on 
 the 5th July wrote a note in the third person to B., in- 
 forming him that C. had made an offer for the farm, 
 at a specified price, but that, if B. chose to have it at that 
 price, C. would decline the purchase in his favour; B., it 
 was alleged, wrote a note in reply, accepting the ofi'er, but 
 such note was not forthcoming; on the 11th July A. 
 MTote to B., "I have just received your's; and am glad 
 you have determined to purchase the W. farm : I will 
 write to C. to inform him you have agreed to purchase the 
 estate;" — Sir William Grant, relying on the words "de- 
 termine " and " agree," as denoting an acceptance by B. of 
 a pre\aous proposal by A., instead of, as might have been the 
 case, an independent oifer by B., considered that the letter 
 of the 11th was sufficiently connected with the note of the 
 5th, to show that A. agreed to sell upon the terms of that 
 note ; and specific performance was decreed accordingly. 
 
 So, upon a sale of goods, a subsequent letter wTitten by 
 the purchaser, and containing the following expressions, 
 " The tobacco I want immediately forwarded ; I KkcAvise 
 want the invoice of the rice and other tobacco," was held 
 to be sufficiently connected with the prerious entries of 
 sale of the articles in the vendor's order book {iv) . 
 
 CO Siveet V.Lee, 3 Man. & Gr. 452. B. 187. 
 
 (m) Vide infra, Ch. XVII. (w) Jllenv. Bennet, 3 Taunt. 109 ; 
 
 (») Western v. Russell, 3 Ves. & and see, as to connecting one letter
 
 104 
 
 THE AGREEMENT. 
 
 Chapter VI. 
 
 Tests of 
 sufficiency 
 in cases of 
 correspond- 
 ence. 
 
 It must 
 contain a 
 dear acces- 
 sion by both 
 parties to 
 the same 
 terms. 
 
 Effect of 
 
 conditional 
 
 acceptance. 
 
 Offer may 
 be with- 
 drawn 
 before 
 acceptance. 
 
 In cases of con'espondence the difficulty generally is^ to 
 determine whether there has been a concluded agri'eement 
 or merely a treaty ; as to which the follo^^'ing iide seems 
 deducible from the authorities. 
 
 If the original offer be met by a simple acceptance, the 
 treaty is, of course, concluded ; if the reply be either more 
 or less than a simple acceptance, the variation must be 
 acceded to by the original proposer ; or there is no agree- 
 ment : and this state of things will continue, until there is, 
 upon the face of the correspondence, '^ a clear accession on 
 both sides to one and the same set of terms [x)" 
 
 In a late case, where the Defendant wrote at the foot of 
 an agreement for an under-lease, " I have no objection to 
 this agreement, supposing that there is nothing unusual in 
 Sir li.'s (the ground Landlord) leases, which I presume 
 there is not ;" and then, before the agreement with this 
 variation had been acceded to by the other party, withdrew 
 his oftcr ; and it was contended that, inasmuch as the cove- 
 nants Mere usual, he still remained l)ound; Sir J. lilgram, 
 Y. C, admitting that a case might exist in which the dis- 
 tinction between the original and altered agi'cement, must 
 be treated as plainly nugatory, held, that the case before 
 him could not be considered as of that character, merely 
 because the Court might, upon argument, decide that the 
 covenants were not unusual {y) . 
 
 For, it may be obscrs'cd, that an original offer, or, it 
 is conceived, any subsequent proposal, which does not 
 amount to a simple acceptance of the teinns of the other 
 party, may be withdrawn at any time before it is accepted; 
 
 with another, although there is no 
 express reference, Greene v. Cramer, 
 2 Con. & L. 54 ; Skinner v. M'Douall, 
 2 De G. & S. 265. 
 
 (.»■) 1 Coll. 'M2 ; and see, as to an 
 immaterial addition to an acceptanre, 
 
 Clii'ie V. Beaumont, 1 De G. & S. 
 397 ; Gibhins v. North East Metro- 
 politan Afiylum District, 11 Beav. 1. 
 (y) Lucas v. James, 7 Ha. 410; 
 see cases referred to in last note.
 
 THE AGREEMENT. 105 
 
 even although a time be named for its acceptance [z) : and Chapter vi. 
 
 that if rejected^ eitlier by an express refusal^ whether &c',i;e*as(M 
 
 written or verbal {a), or a proposed variation either as to binding. 
 
 time for giving possession, or price, or, it is conceived, 
 
 in any other particular, it at once ceases to be binding {b) ; 
 
 and the acceptance of an offer must be given within a accepted 
 
 ,,.,,.„, , rt. within 
 
 reasonable time (c) ; it, however, a person make an oiier reasonable 
 
 time. 
 
 by post, he cannot retract it, if the other party, before offer by 
 
 receiAing anv notice of withdrawal, retiu'ii an immediate binding, if 
 
 accepted by 
 
 acceptance {d). return of 
 
 A writing which is signed by either party, and is perfect Agreement 
 
 binding, 
 
 as respects the terms of the contract, will not be con- although 
 
 '^ sent as 
 
 sidered otherwise than final from the mere fact of its t"*^7oUci"* 
 
 having, with the consent of the other party, been sent to a ^°'' 
 solicitor as instructions for the preparation of a more for- 
 mal instrument [e] . 
 
 (4.) As to the signature. 
 
 It has been long settled that a party signing an agree- by^^rtT 
 
 mont is prima facie bound by it, although it be not signed sufficient. 
 
 by the other party (/) : but if only one be bound, he may, j^^^^^^P^^y 
 
 it would appear, require the other to signify in writing his other'^party 
 
 assent to or dissent from the contract ; and, unless this be '" ^'^^^" 
 acceded to, he may himself rescind it (g) . 
 
 (z) Routledge v. Grant, 4 Bing. 554, 563. 
 
 653; Martin v. Mitchell, 2 Jac. & (</) See Dunlop v. Iliggins, 1 H. 
 
 W. 428 ; Lucas v. James, 1 Ha. 410. of L. Ca. 400 ; Potter v. Sanders, 6 
 
 (a) Sheffield Canal Company v. Ha. 1. 
 
 Stieffifhland Rotheram Railway Com- (e) Fowle v. Freeman, 9 Ves. 354 ; 
 
 pany, 3 Rail. Ca. 121, R. see Gibbins v. N. E. Metropolitan 
 
 (b) Routledge v. Grant, 4 Bing. Destitution Asylum, \\ Beav. 1. 
 653 ; Hyde v. Wrench, 3 Beav. 334 ; (/) Sug. 112; Laythoarp v. Bryant, 
 Thombury v. Bevill, 1 Y. & C. C. C. 2 Bing. N. C. 735 ; Fou-le v. Freeman, 
 554. 9 Ves. 354 ; Otven v. Thomas, 3 Myl. 
 
 (c) Kennedy v. Lee, 3 Mer. 451 ; &. K. 353; infra, Ch. XVIII. 
 Thombury v. Bevill, 1 Y. & C. C. C. (jg) 2 Jac. & W. 428.
 
 106 
 
 THE AGREEMENT. 
 
 Chapter VI. 
 
 What 
 
 signature 
 
 sufficient. 
 
 In pencil. 
 
 By married 
 woman in 
 surname of 
 deceai*ed 
 husband. 
 
 Signature 
 by agent 
 sufficient if 
 agency 
 proved. 
 
 Agent is a 
 competent 
 witness. 
 
 Signature 
 not neces- 
 sarilyplaced 
 at end of 
 agreement. 
 
 Effect of 
 leaving 
 blank for 
 signature. 
 
 A signature printed, or stamped, instead of written, or 
 by initials, may be binding {h) ; but a mere description, 
 although it satisfactorily identify the party, e. g., " your 
 affectionate mother," subscribed to a letter addressed to 
 the son with his name and address in full, has been held 
 insufficient (i). 
 
 And it appears that an agreement is not the less bind- 
 ing by reason of the alterations and signature being in 
 pencil instead of ink (^) . 
 
 The Ecclesiastical Courts have held a signature to a 
 will by a woman, twice married and then under coverture, 
 in the name of her first husband, sufficient (/) . 
 
 And a signature in the name of an agent will bind the 
 principal if the agency be established {^n) : and the alleged 
 agent may be examined cither to prove or disprove the 
 agency ; but if his evidence go to impeach the validity of 
 the authority under which he has professed to act, it will 
 be received Avith the most anxious jealousy (w). 
 
 The signature to formal agreements is, of course, usually 
 found at the end of the document ; it may, however, as 
 in the case of a letter or agreement in the third person, be 
 inserted in the beginning or any other part of the instru- 
 ment, if inserted so as, in eflPect, to authenticate the entire 
 document, and not to be exclusively applicable to par- 
 ticular purposes (o) : and this, according to some authori- 
 ties, although, in the case of an agreement in the third 
 
 [K) Saunderson v. Jackson, 2 Bos. 
 & P. 238 ; Schneider v, Norris, 2 
 Mau. & S. 286 ; PhilUmore v. 
 Barry, 1 Camp. Ca. 513 ; Sweet v. 
 Lee, 3 Man. & Gr. 452 ; and see 
 Blore V. Sutton, 3 Mer. 245. 
 
 (0 Selhy V. Selby, 3 Mer. 2. 
 
 (k) Lucas V. James, 7 Ha. 410. 
 
 (/) In the goods of S. Glover, 1 1 
 Jur. 1022. 
 
 (m) fFhite v. Proctor, 4 Taunt. 
 
 209; Kemvorthyv. Schofield, 2 Barn. 
 & Cr. 945. 
 
 [n) Howard v. Braithtvaite, 1 Ves. 
 & B. 202, 209. 
 
 (o) Saunderson v. Jackson, 2 Bos. 
 & P. 238 ; Sug. 127 ; Western v. 
 Russell, 3 Ves. & B. 187 ; Propert v. 
 Parker, 1 Russ. & M. 625 ; Bleak- 
 ley V. Smith, 11 Sim. 150; Lobb v. 
 Stanley, 5 Ad. & El. N. S. 574 ; 
 Stokes V. Moore, 1 Cox. 219.
 
 THE AGREEMENT, 
 
 107 
 
 person, a place be left for signature at the bottom, in tbe chapter vi. 
 usual way fj^) : however, in a recent case, where the agree- 
 ment contained the names of the parties in the commence- 
 ment, and concluded with the words, "as witness om- 
 hands," without being followed by any name or signatiire, 
 the Court took a more common-sense xievi of the question, 
 and held that there was no sufficient signatui-e (</) : so, the 
 piu'chaser's signature, in a column left blank for that pur- 
 pose in the printed particulars, may be sufficient (r) . 
 
 And although a principal or his agent sign merely as a by signature 
 
 as witness : 
 
 witness, he may be bound, if the signature amount to an 
 acknowledgment of the existence of the agreement ; e. (/., 
 "AAitness A. B." {s) : but where a person, whose formal auUtinr 
 signature would have bomid the vendor, merely attested 
 the execution of the agreement by the pui'chaser, this was 
 held to be insufficient (t) . 
 
 The written approval by a professional agent, of a draft ^raft°agree^ 
 agreement, or of the di'aft conveyance which recites the conveyance, 
 agreement, will, it would seem, be insufficient {u) ; this, sufficient. 
 however, was much questioned in a recent case (v), which 
 was eventually decided on a collateral point : the effect of 
 a similar approval of a draft agreement by one of the par- 
 ties, is more doubtful {tv) ; the circumstance of the party 
 signing such approval being in the legal profession would, 
 it is conceived, be unfavourable to the sufficiency of the 
 signature; the alteration of the draft conveyance by 
 one of the parties has been held insufficient : about which, 
 
 (p) Saunderson v. Jackson, 2 Bos. (0 Go.sbell v. Archer, 2 Ad. & El. 
 
 iSc P. 239. 500. 
 
 (q) Hubert v. Trehemo, 3 Man. & ((«) Sec Sug. 128. 
 
 Gr. 743; Hubert v. Turner, 4 Sc. {v) Thornbury v.Bevill, 1 Y. & C. 
 
 N. R. 486. C. C. 5.')4. 
 
 (r) Emmerson v. Heelis, 2 Taunt. (w) See Sug. 129 ; Doe v. Ped- 
 
 39. griph, 4 Car. & P. 312 ; Parker v. 
 
 (,?) 9 Ves. 234, 251. Smith, 1 Coll. 608.
 
 108 
 
 THE AGREEMENT. 
 
 .^l2AM 
 
 Chapter VI. upon the case {y) as reported, there could scarcely have 
 been a doubt; as it does not appear that the alterations 
 comprised the name of the party making them : in the 
 case of Ithel v. Potter {z), a similar decision was come to 
 where the entire conveyance had been written by the 
 Defendant ; but it does not appear whether the convey- 
 ance recited the agreement, although such, probably, was 
 the case : in a case where the draft of a lease had, in pui'- 
 suance of a parol agreement, been foi'warded to the in- 
 tended lessee for perusal, and he indorsed and signed a 
 memorandum upon it, requesting the lessee to endeavour 
 to relet the premises, as it would be inconvenient for him 
 (the lessee) to perform his agreement, this was held to be 
 sufficient (a). 
 
 A contract by a Corporation aggregate, should, as a 
 general rule, be under their common seal {b) ; but, by the 
 Companies Clauses Consolidation Act, 1845, any contract 
 entered into on behalf of a Company coming within the 
 provisions of the Act, and which, if made between private 
 persons, would require to be in writing, and to be signed 
 by the parties to be charged therewith, may be made, 
 varied, or discharged in writing, signed by any two of the 
 Directors (c). 
 
 We may here observe, that any alteration made by 
 either party in a material part of a written contract, 
 without the consent of the other party, destroys the rights 
 under the contract of the party making the alteration {d) . 
 
 Signature 
 by public 
 companies, 
 &c. 
 
 Party alter 
 ing agree- 
 ment loses 
 his rights 
 thereunder. 
 
 (y) Hawking v. Holmes, 1 P. 
 Wms. 770 ; and see Stokes v. Moore, 
 1 Cox, 219. 
 
 {z) 1 P. Wms. 771. 
 
 («) Shippey v. Derrison, 6 Esp. 
 Ca. 190. 
 
 (6) See Corporation of Ludlow v. 
 
 Charlton, 6 Mee. & W. 815; Cope 
 V. Thames Haven Company, 3 Exch. 
 841 ; 6 Rail. Ca. 83. 
 
 (c) 8 Vict. c. 16, s. 97. 
 
 (f/) Powell V. Divett, 15 East, 29 ; 
 Mollett V. Wackerbarth, 5 C. B. 
 181.
 
 THE AGREEMENT. 109 
 
 Chapter VI. 
 
 (5.) As to the stamps. 
 
 The agreement, if under seal, is a deed, and chargeable ^*^°pg ^^ 
 with duty as such {d) ; if not under seal, and if the agreenients. 
 subject-matter be of less value than 20/., no duty is 
 payable ; and if, on a sale by auction, the same person buy 
 several lots, a distinct contract arises for each lot; and, 
 whatever may be the aggregate amount, no stamp is 
 required for any lot which separately sells for less than 
 20/. (e) : if the purchase-money exceed 20/., and the agree- 
 ment contain less than 1081 words, a 2*. 6c?. stamp only 
 is payable (/) ; this may, without payment of a penalty, 
 be aiffixed Avithin fourteen days after execution ; after that 
 time a 10/. penalty becomes payable [g) : where a series of 
 letters or other documents constitutes an agreement, and 
 contains altogether less than 1081 words, the 2s. 6d. stamp 
 would seem to attach upon only one of them (A) ; an 
 agreement containing more than 1080 words, is, as 
 respects the time for stamping, subject to the same pro- 
 visions and regulations as a deed {i) ; and, prior to the 
 10th October, 1850, was liable to a 35^. stamp, and (if it 
 exceeded 2159 words) to 2os. followers ; but under the 
 late Act, a 2^. Gd. stamp only is payable for the first 1080 
 words, with 2*. 6d. followers : if, however, an agreement 
 consist of a series of letters, no progressive duty at- 
 taches (J), although 'the letters were written, not by the 
 
 (d) See Robinson v. Drybrough, 6 (Ji) See 55 Geo. III. c. 184, 
 
 Durii. & E. 317. sched. "Agreement;" and Par- 
 
 {e) Emmerson v. Heelis, 2 Taunt. kins v. Moravia, 1 Car. & P. 376 ; 
 
 38 ; Roots v. Lo)-d Dormer, 4 B. & Peate v. Dicken, 1 Cr. M. & R. 
 
 Ad. 77. 422; and see Tilsley on the Stamp 
 
 (/) 7 Vict. 0. 21 ; 13 & 14 Vict. Laws, 43, 1st edit, 
 
 c. 97. (0 See 55 Geo. III. o. 184, s. 
 
 {g) See 7 Vict. c. 21, s. 5; and 9. 
 
 this does not seem to be affected by {j) See schedule to 55 Geo. III. 
 
 the new Act ; see proviso to sect. 12. c. 184, title "Agreement." The
 
 110 
 
 THE AGREEMENT. 
 
 Several 
 stamps, 
 when 
 requisite 
 
 Chapter VI. contracting party himself, but l)y his agent (k) : a contract 
 by the assignees of a bankrupt for the sale of his real 
 estate, is exempt from stamp duty (/) ; as, also, are agree- 
 ments under the Acts for promoting the residence of the 
 Parochial Clerg}', the Churchbuilding, Poor Law, Tithe 
 Commutation, and Commons Inclosui'e Acts, and agree- 
 ments entered into by the Commissioners of Woods and 
 Forests {m). 
 
 There must, in general, be distinct stamps for each 
 distinct agreement or contract ; upon this principle, where 
 a person purchases several lots at an auction, the agi'ee- 
 ment must bear a stamp in respect of each lot for which 
 the pui'chase-money exceeds 20/. (w) : upon a purchase 
 from persons having separate interests in an estate, (e. g., 
 tenants in common, or tenant for life and remainderman,) 
 the agreement, if so worded as to be a contract for the 
 entire estate, would seem to be subject only to single 
 duty ; but if, on the contrary, it were so worded as to 
 amount to separate contracts with the several vendors for 
 their separate interests in the property, so as to give to 
 each vendor a right to enforce the agreement in respect of 
 his own particular interest, it is conceived that separate 
 stamps would be requisite. 
 
 If the agreement be not stamped, and be subsequently 
 lost, or even destroyed by the fraudulent act of the party 
 chargeable thereon, a Court of Equity can give no relief 
 unless the Plaintiff can procure a copy and get it stamped 
 
 Loss of 
 unstamped 
 agreement, 
 effect of. 
 
 new Act declares, retrospectively and 
 prospectively, that progressive duty 
 is not payable in respect of stamped 
 instruments being incorporated with 
 or referred to in the principal instru- 
 ment ; see sect. 1 1 : and see Sneezurn 
 v. Marshall, 7 Mee. & W. 417. 
 
 {k) Grant v. Maddox, 15 Mee, & 
 W. 737. 
 
 (/) Flather v. Stubbs, 6 Jur. 102 ; 
 see 6 Geo. IV. c. 16, s. 98 ; and 12 
 & 13 Vict. c. 106, s. 138. 
 
 {m) See Tilsley on Stamps, 759 
 to 762, 1st edit. 
 
 (m) See James v. Shore, 1 Stark. 
 426; Watling v. Norwood, 12 Jur. 
 48.
 
 THE AGREEMENT. Ill 
 
 at the Stamp Office; the Defendant, if he have a copy, chapter v r. 
 will be ordered to produce it for that purpose (o) ; and it 
 appears, that a copy may be made from recollection, if the 
 witnesses can swear to the precise terms, and not merely 
 the general tenor, of the instrument {p) : and the Court 
 will, in the absence of circumstances inducing a supposi- 
 tion to the contrary, presume that a lost instrument was 
 duly stamped (</) ; or that obhterated stamps were of the 
 right amomit {i'). 
 
 It has been held by the Court of Exchequer, that any I^^^IZT 
 instrument operating as a record of the transfer of pro- propertyls 
 
 , . - 1 T \ liable to 
 
 perty, (not bemg goods, wares, or merchandise,) e. g., a duty as a 
 
 r J ' ^ oo 11/. '• conveyance. 
 
 memorandum that A. has 50 /^Z all the goods and jixtures m 
 a certain shop, is a conveyance within the meaning of the 
 Stamp Laws, and must bear the ad valorem duty {s) . 
 
 We may here remark, that an agreement in evasion of /J,^evS*' 
 the Stamp Laws, e. g., that the document shall, for the I'awsl'S^ 
 present, remain unstamped, but that, if it sliall become 
 necessary to stamp it, one of the parties thereto will pay 
 the penalty, cannot be enforced (/) . 
 
 (6.) As to illegal agreements. 
 
 And as a general rule, no agreement can be enforced, at ^f'^^^^"^' 
 Law or in Equity, which is entered into for an illegal pur- 'p^Srvoid!' 
 pose {u) ; and there are certain agreements which the 
 Legislature has pronomiced to be, in their own nature, 
 illegal; the Statute of 32 Henry VIIL (i;), renders it Champerty 
 
 {0) See Bousfield v. Godfrey, 5 (/•) Doe v. Coombs, 6 Jur. 930, 
 
 Bing. 418 ; Blair v. Ormond, 1 De Q. B. 
 
 G. & S. 428. (s) Horsfallv. Hey, 2 Exch. 778. 
 
 {p) Smith \. Henley, 1 Ph. 391. (0 Abbott v. Straiten, 3 Jo. & 
 
 {q) See cases referred to in last Lat. 616. 
 
 two notes, and Hart v. Hart, 1 Ha. (m) Vide infra, Ch. XVII. and 
 
 1 ; Crowther v. Solomons, 6 C. B. XVIII. 
 
 758. (^) See sect. 2.
 
 112 THE AGllEEMENT. 
 
 Chap ter VI. unlawful to biiy or sell any pretended right or title to any 
 teiiance'" lands or hereditaments, unless the vendors, or their ances- 
 tors, or the persons through whom the claim is derived, 
 have been in possession of the property, or of the reversion 
 or remainder thereof, or taken the rents or profits thereof, 
 within a year before the sale ; but the purchase of a pre- 
 tended title, by a person in lawful possession of the rents 
 and profits, is allowable {w) ; in a recent case, where A,, 
 possessed of a term of years, died in 1828, and strangers 
 entered and occupied until 1841, when A/s next of kin 
 took out Letters of Administration and sold and assigned 
 the term, the assignment was held to be clearly void [x) ; 
 so, the Act extends to a lease under a pretended title [y) ; 
 and to the assignment of the mere right to file a bill to set 
 aside a previous voidable conveyance [z] ; but not to an 
 assignment of a purchaser's interest under the agreement 
 for sale [a] ; nor to an assignment of the subject-matter of 
 a suit [b), unless the purchaser agree to indemnify the 
 vendor against the costs incm-red or to be incurred in the 
 suit (c) ; nor, even then, if the piu'chaser have a previous 
 common interest in the event of the suit ; as in the case of 
 a purchase, by a second mortgagee, of the interest of the 
 first mortgagee, during a suit in which the mortgaged pro- 
 perty is claimed under a paramount title {d) : nor to an 
 agreement to enable the purchaser of an estate to recover 
 for rent due, or injmy done to the property, prior to the 
 purchase [e) : nor to a conveyance to a reversioner or 
 remainderman, with a view to strengthen his estate (/) ; 
 
 {w) See sect. 4. (Jb) Harrington v. Long, 2 Myl. & 
 
 (r) Doe d. Williams v. Evans, 1 K. 590 ; see Martyn v, Macnamara, 
 
 C. B. 717. 2 Con. & L. 541. 
 
 {y) Hitchins v. Lander, G. Coop. (c) Harrington v. Long, ubi supra. 
 
 34. {d) Hunter v. Daniel, 4 Ha. 420. 
 
 {z) Prosser v. Edmonds, 1 Y. & (e) Sug. 423 ; Williams v. Pro- 
 
 C. Exch. 481. theroe, 5 Bing. 309. 
 
 (a) Sug. 422; and see 8 & 9 (/) Co. Litt. 369 i ; see Anson 
 
 Vict. c. 106, s. 6. V. Lee, 4 Sim. 364.
 
 THE AGREEMENT, 113 
 
 nor to cases where tlie right purchased is originally clear, chapter vi. 
 but the litigation results from circumstances subsequently 
 arising or subsequently known {g) . 
 
 By the Act of the 7 & 8 Will. III. c. 25, s. 7, it is splitting 
 declared, that all conveyances made of any hereditaments, fi'^'^pur.^®'"" 
 in order to multiply voices, or to split and divide the ^°^^^' 
 interest in any houses or lands among several persons, to 
 enable them to vote at elections of Members to sen^e in 
 Parliament, are void and of none effect : it appears, how- 
 ever, to be settled by recent decisions, that a conveyance 
 made to carry into effect a real bond fide contract for sale, 
 where the purchase-money is paid and possession taken 
 without any secret reservation or trust for the benefit of 
 the seller, is not within the Statute ; although it be made 
 with a view to the multiplying voices, or the splitting of 
 the freehold ; the intention of the Statute being, to avoid 
 such conveyances only, made with that view, as are in 
 themselves fraudulent and collusive (h) : and the same test 
 of vahdity must of course be apphed to agreements upon 
 which such conveyances are founded. 
 
 (ff) Wikon V, Short, 6 Ha. 366. Newman, Resp. ibid. 122 : Thomily, 
 
 (h) Riley, App. ; Crossley, Resp. jpp^ . Aspland, Resp. ibid. 160. 
 2 C. B. 146 : Alexander, App, ;
 
 114 
 
 Chap. VII. 
 
 CHAPTER. VII. 
 
 AS TO THE EFFECT OF THE CONTRACT ON THE RIGHTS OF 
 THE PARTIES. 
 
 1. Purchaser entitled to estate, and vendor to purchase- 
 money. 
 
 2. Purchaser's general rights under contract as against 
 vendor. 
 
 3. Vendor's general rights under contract as against 
 purchaser. 
 
 4. Rights of vendor and purchaser, inter se, not affected 
 by death, bankruptcy, ^c, of either party. 
 
 5. Death of vendor before completion, — its effect on 
 relative rights of his real and personal representatives, under 
 old, and under new Laio. 
 
 6. Death of purchaser before completion, — its effects on 
 relative rights of his real and personal representatives, under 
 old, and under new Law. 
 
 7. Effect of contract in various special cases. 
 
 Purchaser 
 entitled to 
 estate, and 
 vendor to 
 pui-cliase- 
 money. 
 
 Although 
 vendor be 
 
 (1.) From the time of the owner of an estate having 
 entered into a binding agreement for its sale, he holds the 
 same in trust for the purchaser, subject to pajTnent of the 
 purchase-money ; and if the agreement be binding on the 
 purchaser, he, on the other hand, is, as a general rule, 
 under a personal equitable, as well as legal, liabiHty to the 
 vendor for payment of the purchase-money («). 
 
 And the agreement equally binds the estate, although 
 
 («) See Green v. Smith, 1 Atk. 572 Toff v. Stephemon, 7 Ha. 1.
 
 EFFECT OF CONTRACT ON RIGHTS OF PARTIES. 115 
 
 the vendor be a trustee, or a mere donee of a power of sale. Chap, vii. 
 
 -, n 1 T , a trustee, or 
 
 instead ol absolute owner. donee of 
 
 power. 
 
 (2.) As to purchaser's general rights under contract 
 as against vendor. 
 
 It is sometimes stated, in general terms, that by the con- |^^\°7e^^f 
 tract the purchaser becomes, in Equity, the owner of the PquUaWe ^ 
 property : but " this rule applies only as between the stTange"i'to 
 
 contract not 
 
 parties to the contract, and cannot be extended so as to |ijrected by 
 affect the interests of others. If it could, a contract for 
 the purchase of an equitable estate would be equivalent to 
 a conveyance of it. Before the contract is carried into 
 effect, the purchaser cannot, against a stranger to the con- 
 tract, enforce equities attaching to the property {b) :" so, 
 notice of an incumbrance given to the purchaser before the 
 execution of the conveyance, is effectual, although the pur- 
 chase-money be actually paid (c) ; and the purchaser, 
 although he may then have, or subsequently acquire, the 
 legal estate, can, it is conceived, use it against the incum- 
 brancer only to the extent of secm-ing such purchase- 
 money. His interest under the contract may, however, be Jiie;\^Sn°^ 
 charged, or assigned [d), and will be bound by a judg- 
 ment {e) ; but the incumbrancer, assignee, or creditor, can 
 only obtain relief, as against the vendor, on the terms of 
 undertaking aU the purchaser's liabilities imder the con- 
 tract (/). 
 
 Up to the time fixed for completion, the vendor is, in J^f^^^j^J", ^^ 
 the absence of special stipulation, entitled to the crops, or {Jntf/tlme 
 other ordinary profits of the land ; he would not, however, compkn^on. 
 it is conceived, be entitled to take crops in an immature 
 
 (A) Per Lord Cottenham, in Tas- (e) Baldwin v. Belcher, 1 J. & L. 
 
 kfir V. Small, 3 M. & C. 70. 18. 
 
 (c) Wiffff V. niffg, 3 Atk. 384. (/) Di/er v. Pulteneij, Baru. Ch. 
 
 {d) Seton v. Slade, 7 Ves. 274. R. 160. 
 
 i2
 
 116 
 
 EFFECT OF CONTRACT 
 
 Chap. VII. 
 
 Whether he 
 may take 
 crops after 
 time fixed 
 for, but 
 pendinjr 
 completion. 
 
 Windfalls, 
 &c., belong 
 to jiur- 
 chaser from 
 date of 
 contract. 
 
 Material 
 alteration 
 of property 
 by vendor 
 avoids tlie 
 contract , 
 c (I., a fall of 
 ornamental 
 timber. 
 
 Purchaser 
 takes acci- 
 dental bene- 
 fits, and 
 bears acci- 
 dental 
 losses, as in 
 cases of 
 
 Death of 
 tenant for 
 life: 
 
 or of cestui 
 que vie : 
 
 state, or otherwise than in due course of husbandry. After 
 the time fixed for completion, and pending negotiation, he 
 may, it appears, in due course of husbandry, cut coppice 
 and get in crops, but the net profits will belong to the 
 purchaser [g). 
 
 Everything, however, which forms part of the inheritance 
 belongs to the purchaser from the date of the contract ; so 
 that he is entitled to windfalls (A), and to the produce of 
 ordinar}^ timber cut (i), or, it is conceived, stone or gravel 
 quarried or dug by the vendor after the contract {j ) . 
 
 And any act by the vendor, which prevents his giving 
 to the purchaser that which was, substantially, the sub- 
 ject-matter of the contract, renders the agreement voidable 
 by the latter; e.g., the felling of ornamental timber {k) ; 
 and, even as to ordinary timber, the authorities merely 
 show that the fall of it may be matter for compensation ; 
 cases might, it is conceived, occur, in which the Court 
 would relieve a purchaser on account of falls of wood, 
 although neither planted nor left for ornament or shelter. 
 
 And since, as between the parties to the contract, the 
 purchaser is owner of the estate, he has the benefit of any 
 improvements to the property which may happen after the 
 date of the contract ; e. g., the di'opping of lives on the pur- 
 chase of a reversionaiy interest (/), or a suddden rise in the 
 value of land from its being required for a public pur- 
 pose (m) : and must bear any loss Avhich occurs without 
 the fault of the vendor ; e. g. the death of the cestui que 
 vie, on the purchase of an estate for life, or a life 
 
 (g) Poole V. Shergold, 1 Cox, 273 ; 
 Sua;. 819; see, as to manorial fines, 
 on purchase of a manor, Garrick v. 
 Lord Camden, 2 Cox, 231 (stated 
 infra, Ch. XIX.); and Earl of 
 Hardwicke v. Sandys, 12 Mee. & W. 
 761. 
 
 (//) Poole V. Sheryold, uhi stipra. 
 
 (J) Magennis v. Falloyi, 2 Moll. 
 591. 
 
 (7) See Nelson v. Bridges, 2 Beav. 
 239. 
 
 (k) Magennis v. Fallon, ubi supra. 
 
 {I) 1 Madd. 539. 
 
 (w) 6 Ves. 352.
 
 ON RIGHTS OF PARTIES. 117 
 
 annuity {n) ; or the destruction of liouse property by Chap, vii. 
 fire (o) ; and, as respects fire, the vendor, unless lie agree •"■ ^^^- 
 that the property shall be kept insui-ed, or, it would seem, 
 make some proposition to the purchaser grounded upon the J^^f^J;. 
 fact of its being insm-ed, is not bound to keep up the Sj.e.*° 
 insurance, or to give the purchaser notice of its having 
 dropped (/?) : so, also, the purchaser of house property 
 must make good any injury done to adjoining pre- 
 mises by the faU of the buildings subsequently to the con- 
 tract (q). 
 
 And where the accruing benefit is such, that, if taken Restrictions 
 
 o 'on purclias- 
 
 by the purchaser, it would or might be irrevocably lost to casVlf''* ~ 
 the vendor, (as in the case of a vacancy occuning, pending JaiTof ^ "'^ 
 discussions on the title to an advowson,) the pm-chaser 
 claiming the benefit must accept the title (r) : in Wyvill 
 V. Bishop of Exeter {s), the right to present was altogether 
 denied him, on the gi'ound of his objections to the title 
 haA'ing been frivolous ; but the case seems of doubtful 
 authority {t). 
 
 So, in the converse case of an estate being sold in con- Estate sold 
 
 •' "-^ IB conside- 
 
 sideration of a hfe annuity, and of the cestui que vie dying [fj^'^nnJjty. 
 before completion, the purchaser will be entitled to a con- ^l^m'^lZ, 
 
 p ,1 / \ -J. • 1 on death of 
 
 veyance on payment oi the arrears [u) ; it is, however, as a cestui que rie 
 
 . . . - J . , before con - 
 
 general rule, essential, m such a case, that he should, in the veyance ;- 
 
 o } ' subject to 
 
 Hfetime of the cestui que vie, have made, or tendered, any what re- 
 
 1 ' ' -> ./ strictions. 
 
 payment which became due during such lifetime (?;) ; the 
 rule, however, it is presumed, would not apply, unless a 
 sufficient inten^al had elapsed between the pajonent be- 
 coming due and the death, to allow of payment or tender 
 
 (h) Sug. 330 ; and see 6 Ves. (s) 1 Pri. 292. 
 
 352. (0 Sug. 332. 
 
 (o) Paine v. Mellpr, 6 Ves. 349. (m) Mortimer v. Capper, 1 Bro. 
 
 {p) 6 Ves. 353. C. C. 156. 
 
 {q) Skelton v. Robertson, 14 Jur. {v) Jackson v. Lever, 3 Bro. C. C. 
 
 323. 605 ; Pope v. Roots, 1 Bro. P. C, 
 
 (r) Sug. 332. 370.
 
 118 
 
 EFFECT OF CONTRACT 
 
 Chap. VII. 
 
 Sales by 
 Court. 
 
 Contract by 
 public com- 
 pany under 
 usual com- 
 j>iilsoiy 
 power, does 
 not exhaust 
 the power. 
 
 being made according to the usual course of business : tbe 
 omission, in fact, must amount to laches {w) : nor, on the 
 other band, where a payment had been prenously refused 
 or long neglected, is it hkely that a Com-t of Equity would 
 be satisfied ynih payment or tender made at a time when 
 the cestui que vie was, to the knowledge of the purchaser, 
 d}ang or dangerously ill : it was laid down, in a recent 
 case {x), that although the Com*t, upon sales of property 
 in consideration of an annuity, mtU enforce specific per- 
 formance notwithstanding the death of the annuitant, it 
 will inquire with some jealousy into the fau'ness of the 
 transaction, and will require a cldar case for specific per- 
 formance under such circumstances. 
 
 We shall hereafter have occasion to consider the above 
 rules, "wdth reference to sales under a decree of the Comt 
 of Chancery (y). 
 
 Where a Public Company, under the usual compulsory 
 power, contracts for the purchase of part only of the land 
 suljject to the power, this will not prevent their subse- 
 quently exercising it in respect of the residue {z) . 
 
 Vendor's 
 lien on 
 estate. 
 
 lie may 
 
 restrain a 
 fall of 
 timber by 
 
 (3.) As to vendof-'s general rights under contract 
 as against purchaser. 
 
 The vendor has a lien upon the estate for the unpaid 
 purchase-money (a) ; if therefore, before payment, the 
 purchaser be in possession, equity will restrain him fi'om 
 any act, — such as felling timber, — by which the vendoi-'s 
 secm'ity might be depreciated {Jj) ; if, however, only an 
 
 {w) See Sug. 336. 
 
 {x) Davies v. Cooper, 5 M. & C. 
 see p. 279. 
 
 (y) Infra, Ch. XIX. 
 
 (z) Simpson v. Lancaster and 
 Carlisle Railivay Company, 15 Sim. 
 580 ; Stamps v. Birmingliam and 
 
 Stour Valley Railway Company, 2 
 Ph. 673 ; 6 Rail. Ca. 123. 
 
 (a) As to which, vide infra, Ch. 
 XIV. 
 
 {b) Crockford v. Alexander, 15 
 Ves. 138.
 
 ON RIGHTS OF PARTIES. 119 
 
 inconsiderable part of the purchase-money remain unpaid, Chap, vii. 
 it may be conjectured that the vendor, applying for the poILssion.'" 
 injimction, woidd, as would an ordinary mortgagee, have ^r^J^ul^.*^'"' 
 to satisfy the Com-t of the estate without the timber being *^'*'"<='^^- 
 an insufficient security (c) : and it is also presumed that 
 the injunction might be so extended as to restrain the 
 cutting of imderwood out of the due course of hus- 
 bandry {d), or any other similarly prejudicial act. 
 
 A judgment entered up against the vendor subsequently f,",fi\™n "n 
 to the contract, and registered, is a hen upon the unpaid "hise- ^"'^' 
 
 money. 
 
 purchase-money [e). 
 
 If the pm-chaser die, intestate and without an heir, ^^IJJt'^^on 
 before conveyance, it seems probable that the vendor purchastr 
 misrht keep the estate and any part or the whole of the representa- 
 
 ^ i- -^ r tive before 
 
 purchase-money, if paid (/) . completion. 
 
 Where the purchase is by a tenant, either from year to J'^;?^^;'aTer'!* 
 year or for a longer term, the contract will not determine dSminea 
 the tenancy, unless specially worded so as to be an ^ *^"" ^^^ ' 
 absolute contract for purchase whether the vendor do or 
 do not show a good title {g) : but equity will restrain the 
 landlord from enforcing payment of rent pending com- 
 pletion {h). 
 
 A mere tenancy at will appears to be determined by the wuTS-r" 
 contract (i). 
 
 It has been recently determined, that a purchaser who 
 has been let into possession, pending discussions as to ilabieTor 
 
 .«■! rt>i iiz-j.' "se and oc- 
 
 title, cannot, if the contract go oft tlu-ough detects m cupation.if 
 title, be sued for use and occupation ; even although the 
 occupation may have been a beneficial one {j) : nor can 
 
 (c) See Humphreys v. Harrison, 1 (/) See Sug. 337. 
 
 Jac. & W. 581 ; Hippesley v. Sjien- (g) Doe v. Stanion, 1 Mee. & W. 
 
 cer, 5 Madd. 421 ; King v. Smith, 2 695. 
 Ha. 239. (/«) Daniels v. Davison, 16 Ves. 
 
 {(l) Humphreys v. Harrison, ubi 25.1. 
 supra. (0 Sug. 193. 
 
 (e) Prid. oil Judgments, 21. {j) Winterdollom \. Ingham, 7 Q. 
 
 t 
 t'er- 
 mined. 
 
 Purchaser 
 in posses- 
 sion, not 
 
 no title .
 
 1:20 EFFECT OF CONTRACT 
 
 Chap. VII. Ijp^ unless lie agi-eed to qiiit ou some specified event 
 wliicli lias liappened {k), he ejected without notice (/) : tlie 
 above questions should, of coiu'se^ be pro^'ided for by 
 special agreement Avhere the piu'chaser is let into pos- 
 session before payment, or where the piu'cliase is by a 
 tenant : when the purchase is completed, the pm-chaser^s 
 title, even at Law, so fai' relates back to the time fixed for 
 completion, that he can maintain use and occupation against 
 a person whom he has by mistake allowed to have the in- 
 terim possession (/»). 
 
 (4.) Bights of vendor and purchaser, inter se, not affected 
 
 by deaths bankriiptcy, cVC. of either party. 
 
 S?»°l?.^*fo^ The contract, when once entered into, will not be avoid- 
 not a^ oiueu ^ ' 
 
 bankruptcy, ^d by the death, bankruptcy, insolvency, or lunacy {n), 
 vency. of botli or either of the parties, even before the time fixed 
 
 for completion. 
 
 Upon the bankniptcy of a pm'chaser, the vendor may 
 requii'e the assignees to elect whether they will abandon 
 or perfoiTU the contract ; and, if they fail so to do, may 
 apply by petition for dehvery up of the agreement and 
 possession of the premises (o) : and if, in any case, they 
 allow a reasonable time to elapse without requu'ing the 
 contract to be performed, they will be considered to have 
 abandoned it {p) ; and the question, what is a reasonable 
 
 B. 611 ; and see Kirtland v. Poun- (/«) Hull y. Vaiujhan, 6 Pri. 157 ; 
 
 sett, 2 Taunt. 145, where the Court and see 1 Q. B. 617. 
 
 seemed to attach importance to the {li) Winged v. Lefebury, 2 Eq. 
 
 fact of the purchaser having paid Ca. Ab. 32 ; Orlebar v. Fletcher, 1 
 
 part of the purchase-mouej- ; seep, P. Wms. 737; Owen v. Davies, 1 
 
 14 7 ; but this, although it was also Ves. 82; Brooke v. Hewitt, 3 Ves. 
 
 the case in JT'interboffoni v. Inyham, 255 ; Sug. 191, 192, 233 ; vide infra, 
 
 does not seem to have been there Ch. XVIII. 
 
 considered material. (o) 6 Geo. IV. c. 16, s. 76; 12 
 
 (*) Doe V. Sayer, 3 Camp. 8. & 13 Vict, c. 106, ss. 145, 146. 
 
 (/) See 1 Mee. & W. 700 ; Right (ji) Lawrence v. Knowles, 7 Sc. 
 
 \. Beard, U Ea&t, 210. 381.
 
 ON RIGHTS OF PARTIES. 121 
 
 time^ ^vill^ in ;iu action at Law^ be left to tlie juiy (p) : or <^hap. vir. 
 the vendor may petition for a resale of the property^ and 
 for payment of the amount remaining due to him^ and 
 for leave to prove for the deficiency [q) (if any) ; and he 
 will be entitled to his costs, although there be no written 
 contract, but only part performance of a parol agree- 
 ment (r). 
 
 (5.) Death of vendor before completion : its effect on relative 
 rights of his real and personal representatives, under old, 
 and under neiv Law. 
 
 Upon the vendor's death, the unpaid purchase-money Purchase- 
 moneys go to 
 forms part of his personal estate is) : the piofits of the land pergonal; 
 
 from his death up to the time fixed for completion belong {:g°freu?e- 
 
 to his real representatives {t) . sentanve. 
 
 If he die before convevance, the legal estate, of course, Legal estate 
 
 *■ _ _ . . . descends to 
 
 descends on his heii' or devisee : if he die without an heii' heir or 
 
 devisee: — 
 
 and intestate, a conveyance of the legal estate may be o?"unde?*^^ 
 obtained under the provisions of the Trustee Act, 1850 {ii). no^^eaf'*^ 
 In cases governed by the old law, as it existed before tfve?'"^" * 
 the passing of the new AVills Act iv), (and which, it must i^aw'!con-'^ 
 be remembered, is still binding in all cases where the will yoked prior 
 has not been made or re-published, &:c., on or since the 1st equity, 
 of January, 1838,) the contract for sale, (assuming it to be 
 binding as against the vendor,) is, in equity, a revocation 
 of a prior de\ise of the property ; the legal estate passes to 
 
 {p) S. C. mining licence was purchase-money 
 
 (q) Boivks V. Rogers, 6 Ves. 95' or rent. 
 
 n. (J) Lumsden v. Fraser, 12 Sim. 
 
 (/•) Ex parte Cooper, 3 Men. D. 2G3. 
 
 & De G. 717. («0 13 & 14 Vict. c. 60 ; or, for- 
 
 (s) Sug. 192 ; see Lord Hatherton merly, under the 4 & 5 Will. IV. c. 
 
 V. Bradburne, 7 Jur. 1100 ; 13 Sim. 23 ; see Re Lowe's estate, 2 Ph. 690. 
 
 599 : where the question was whe- (r) 1 Vict. c. 26. 
 ther the consideration payable for a
 
 122 
 
 EFFECT OF CONTRACT. 
 
 Chap. VII. 
 
 Although 
 devise was 
 in trust to 
 sell. 
 
 Relative 
 rights of 
 vendor's 
 real and 
 personal 
 representa- 
 tives, de- 
 pended on 
 nis liability 
 to perform 
 the contract. 
 
 Notice by 
 railway 
 company 
 acquiesced 
 in, whether 
 equivalent 
 to contract 
 by owner. 
 
 the devisee, but merely as a trustee ; and the purchase- 
 money belongs to the personal estate. And even if the 
 estate be devised in trust for sale, and then be agreed to 
 be sold by the testator, tlie purchase-money ^Yill not be- 
 long to tlie legatees of the proceeds of sale {w) . 
 
 In such cases, tlie question between the real and per- 
 sonal representatives seems to be this, viz., whether the 
 vendor at the time of his death was, either absolutely or 
 contingently, under such an agreement as Equity would 
 enforce against him {x) : if so, the property, (as between 
 his real and personal representatives,) forms part of his 
 personal estate from the time fixed for completion ; whe- 
 ther such time be specified in the contract, or have to be 
 determined by the occurrence of some collateral event, or 
 depend upon the mere option of the purchaser (y) ; but, 
 unless and mitil such event occur or such option be de- 
 clared, the estate (in the case of intestacy) belongs to the 
 heir (z), or, in the case of a devise, (either after (a), or, it 
 is conceived, before the contract,) to the devisee, unless 
 the contract evidence a contrary intention ; which inten- 
 tion is not evidenced by a special reservation of the rent 
 and profits, until completion, in favour of the vendor, his 
 heirs, executors, and administrators [b). 
 
 iVnd it has been held that when a railway or other pub- 
 lic company, in exercise of its compulsory power, gives due 
 notice of its intention to take land, mere acquiescence by 
 the purchaser in such notice, will, (unless he be non com- 
 pos, or under some other personal disability) (c), be con- 
 
 (»t>) Arnald v. .Jriiald, 1 Bro. 
 C. C. 401 ; Neifhold v. Roadknight, 
 1 Russ. & M. 677. 
 
 (r) See Knollys v. Alcock, 7 Ves. 
 558 ; Sug. 213. 
 
 (y) Laires v. Bennet, cited 11 
 Ves. 5f)6. 
 
 {z) Townlei/ v. Bedwell, 14 Ves. 
 
 5yi. 
 
 {a) Sug. 2<iA. 
 
 (h) Shadforth v. Temple, 10 Sim. 
 184. 
 
 (c) Midland Counties Railway v. 
 O-swin, 1 Coll. 74, 80.
 
 ON RIGHTS OF PARTIES. 123 
 
 sidered equivalent to a contract ; and the purchase-money cimp. vii. 
 will belong to his personal representatives {d) : but this 
 appears to be open to doubt (e) . 
 
 If, at the vendor's death, there be a binding contract as fjg^^^°'' 
 
 against the pm'chaser, but no binding contract have been [[y^e's^^unaf-" 
 
 entered into by the vendor, the rights of his heir or devisee con^rrucf ^ 
 
 binding only 
 
 are, oi course, unanected. on the 
 
 purchaser. 
 
 If the contract were binding upon both parties at the k contract 
 time of the vendor's death, no subsequent act or matter both parties 
 
 at vendor's 
 
 can alter the relative rights of his representatives (/) : so ^^^J^^h^ 
 that, if the purchaser subsequently act so as to lose his Jllfp^^'g^ntJ!" 
 right under the contract, the estate belongs m Equity to uuaUeJed 
 the next-of-kin of the vendor {(/) . qL^nt ''^ 
 
 If the contract (originally binding) be rescinded or Whether, 
 abandoned by both parties in the lifetime of the vendor, jsmutimny 
 there seems to be jrround to contend that the rights of the before 
 
 ^ 111 death, de- 
 
 de^^see are restored (h) : if, however, it were held that the -risee-srights 
 
 \ I ' ' ' are restored. 
 
 de\isee could not take, the heir would be entitled bene- 
 ficially. 
 
 If, dui-ing the vendor's lifetime, the purchaser alone J^^^^?^"/"'*^ 
 abandon the contract, or act so as to relieve the vendor dor'sTifl?"" 
 from his liabihty to convey the estate, it seems that the binding on 
 
 1 • 1 I •\ bimself: 
 
 property would be considered real estate at his decease [i) ; 
 but unless the vendor have acquiesced in the vacation of 
 the contract, there would seem to be a difficulty in main- 
 taining the rights of the devisee against the heir ; except 
 in cases coming within the new law. 
 
 If, during the vender's lifetime, he himself abandon the purchTser.*^ 
 contract, or if, through want of title or for any other 
 
 (d) Ex parte Hawkins, 13 Sim. Voules, 6 Sim. 40. 
 
 569 ; and see Richards v. Jit. -Gen. (g) Curve v. Bowyer, 5 Beav. 6. 
 
 o//a?Ha;c«, 13 Jur. 197. (h) Sug. 202; but the point is 
 
 (e) Site Adams v. Blacku-all Rail- doubtful, see 7 Ves. 558; 19 Ves. 
 nay Company, 14 Jur. 679, C. 179. 
 
 (/) Bennot v. Lord Tankerville, (?) Sug. 213 ; 1 Jarm. on Wills, 
 
 19 Ves. 179; and see Tebbott v. 49.
 
 124 
 
 EFFECT OF CONTRACT 
 
 Chap. VII. 
 
 Effect of 
 general 
 devise upon 
 real estate 
 contracted 
 to be sold;— 
 devisee 
 takes merely 
 as trustee. 
 
 Specific 
 devisee, 
 when benc- 
 licially 
 entitled. 
 
 Effect Of 
 I Vict. c. 26, 
 on relative 
 rights of 
 vendor's 
 representa- 
 tives. 
 
 reason, the contract, at the time of his death, be capable 
 of being enforced only against and not by him, the right 
 of the personal representatives would seem to depend upon 
 whether the pui'chaser do or do not choose to enforce spe- 
 cific performance {j) ; the case being, in effect, similar to 
 those in Avhich the purchaser has, ab initio, a mere 
 option to pm-chase. 
 
 A general dcAase, of aU his real estates, by the vendor, 
 after the contract, vriW, prima facie, and in the absence of 
 any hmitations or other matter inconsistent with such an 
 intention, pass the legal estate in the property contracted 
 to be sold {k) ; but, although the estate be debased expressly 
 by name, the devisee, as a general rule, takes merely as a 
 trustee for the purchaser, and the purchase-money forms 
 part of the personal estate (/) . 
 
 But in a late case, where a testator devised, by special 
 description, lands subject to a mere option of purchase, to 
 A. for life with remainder over, it was held that the pur- 
 chase-money was subject to the same limitations as had 
 been declared of the lands (m) . 
 
 And the law, as above stated, appears to be unaltered by 
 the 1 Vict. c. 26 {n) ; which, however, removes all doubt 
 as to the de\dsee's right in cases where the contract is 
 rescinded or abandoned by the vendor, or is not binding 
 on him; and also is in favour of the deAasee's beneficial 
 interest in cases similar to Knollys v. Shepherd (o) . 
 
 {j) See 1 Jarm. on Wills. 50. 
 
 {k) Wall V, Bright, 1 Jac. & W. 
 494. 
 
 (J) Knollys v. Shepherd, 1 Jac. & 
 W. 499, cited. 
 
 (m) Dranf v. Vause, 1 Y. & C. 
 C. C. 580 ; see judgment. 
 
 (h) Farrar v. Lord Winterton, 5 
 Beav. 1 ; Moor v. Raisbeck, 12 Sim. 
 123 ; Midland Counties Railway 
 Comj)any v. Osvnn, 1 Coll. 74, 80 ; 
 Ejc parte Haivkins, 13 Sim, 569. 
 
 (o) Ubi supra ; see Sug. 211,
 
 ON RIGHTS OF PARTIES. 125 
 
 Chap. VII. 
 
 (6.) Death of purchaser before completion ; its effect on 
 relative rights of his real and personal representatives, 
 under old, and under new Law. 
 
 Upon the death of the purchaser before completion, the Death of 
 
 ^ ^ -^ purchaser 
 
 property contracted for, (assuming it to be freehold or ^^^^^^ ,; 
 copyhold of inheritance,) descends to his real representa- 
 tive, who is prima facie entitled to have the pm'chase- 
 money paid out of the personal estate {p) . 
 
 Here also, the question betAveen the purchaser's real ^^|ii*'^| 
 and personal representatives is this, viz. : whether at the perso^n^i 
 time of his decease, he was, either absolutely or condition- tfJ'eTdepend 
 ally, under a binding contract to pm-chase ; if absolutely Hawiftv 
 
 1 ' 1 •£■ T • 11 • n 1 1 to perform 
 
 bound, or ii conditionally or optionally bound, and the contract. 
 condition upon wlucli the liability was to become absolute 
 be subsequently fulfilled, or the vendor's option to sell be 
 declared, the real representative is entitled {q) ; and his 
 rights will not be affected by anything subsequent to the 
 death of the purchaser; so that if by such subsequent 
 matter {e, g., the felling of ornamental timber by the 
 vendor), the contract cease to be binding oii the pur- 
 chaser's representatives, his real representative is never- 
 theless entitled to the purchase-money (r.) 
 
 If, however, the contract gave the purchaser a mere ifnotiiaWe 
 
 ° ^ his real 
 
 option, which he had not declared at the time of his [fy'^e^hld'^no 
 decease, or if, through want of title in the vendor or any per^na" '"** 
 act or omission on his part, the agi'eement, although in- 
 tended to be binding on both parties, was, at the time of 
 the pm-chaser's death, binding only upon the vendor ; the 
 real representative of the purchaser has no claim upon the 
 personal estate for the unpaid purchase-money, and a bill 
 
 (jw) Broome v. Monck, 10 Ves. (r) 1 Jarra. on Wills, 46 ; and 
 
 597, 611. see the judgment in Broome v. 
 
 {q) Buckmanter v. Harrop, 13 Monck, 10 Ves. 597. 
 Ves. 456.
 
 126 
 
 EFFECT OF CONTRACT 
 
 Chap. VII. 
 
 Relative 
 riglits of 
 heir and 
 devisee of 
 the purcha."!- 
 er under old 
 law. 
 
 Right of 
 devisee as 
 against Leir 
 depended 
 upon con- 
 tract being 
 binding on 
 vendor. 
 
 But will 
 miprht put 
 him to his 
 election. 
 
 Devisee 
 might be 
 entitled to 
 estate, as 
 against 
 vendor and 
 purchaser's 
 heir, and 
 yet not to 
 nave pur- 
 chase- 
 money paid 
 out of per- 
 sonal estate. 
 
 filed by him against the personal representatives and the 
 vendor, will be dismissed {s) ; but, upon principle, it would 
 seem that, if he chose to pay for the estate out of his own 
 pocket, he might enforce the contract against the vendor. 
 
 The relative rights of the heir and de\asee of the pur- 
 chaser, in cases falling within the old Law, seem to 
 depend on the following rules. 
 
 A pm'chaser, upon entering into a contract for purchase, 
 became entitled to dispose, by will, of his rights under the 
 contract {t) : if, however, the contract were not, at the 
 date of the will, binding upon the vendor, (either abso- 
 lutely, or subject to a condition or option subsequently 
 fulfilled or declared,) the pui'chaser had no enforceable 
 rights, and his will was therefore inoperative ; and any 
 interest subsequently acquired by him in the property 
 descended on his heir {u) ; a clear indication, however, of 
 the testator's intention that the devisee should take, either 
 the particular lands, or, generally, all subsequently pur- 
 chased lands, was sufficient to put the heir to his election 
 between the descended land and any provision made for 
 him by th6 will (t?) : if, however, at the date of the will, 
 the contract were binding as against the vendor, the pur- 
 chaser's devisee became entitled to the benefit of it, (if 
 remaining unperformed at the purchaser's decease;) but 
 his right to have the pm*chase-money paid out of the 
 personal estate, depended, as above sIioami, upon the 
 question whether the contract were binding as against 
 the purchaser at his decease ; and, if this were so, it is 
 conceived that the devisee would, (as against the heir,) be 
 
 (s) Sug. 213; Green v. Smith, 1 
 Atk. 573; Broome v. Monck, 10 
 Ves. 597 ; Collier v. Jenkiiis, 1 You. 
 295. 
 
 (0 Sug. 194, 195; Broome v. 
 Monck, ubi supra ; Rose v. Vunyiig- 
 
 hame, 1 1 Ves. 550 ; Gaskarth v. 
 Lord Lowther, 12 Ves. 107. 
 
 {li) Rose v. Cunyngliame, ubi su- 
 pra ; Buckle V. Baines, 8 Sim. 525. 
 
 (y) Thelusson v. Woodford, 13 
 Ves. 209; Sug. !99.
 
 ON RIGHTS OF PARTIES. 127 
 
 entitled^ although the contract were not binding upon Chap. vii. 
 
 the purchaser at the date of the will. If the contract Cases in 
 
 which con- 
 were performed by the vendor in the purchaser's lifetime ^'Ji^c/'alep*' 
 
 by a conveyance to him in fee, (or, perhaps, to the dev*ise.*^ 
 common uses to bar dower in his favour, in cases 
 where the contract was for a conveyance to him or such 
 uses as he should appoint (t^?),) the de^dsee was entitled 
 in equity, and the legal estate descended to the heir as his 
 trustee : a conveyance to uses to bar dower, operated, 
 however, as a revocation where there was either no Avritten 
 agreement {x), or an agreement to convey in fee [y), or 
 even an agreement to convey to the purchaser, his heirs, 
 appointees or assigns [z) : the doctrine, however, is dis- 
 approved of by Sir E. Sugden {a), and although apparently 
 well settled {b), seems open to much observation. 
 
 Lands merely contracted for, passed along with lands .^eTislof 
 contracted for and conveyed, under a general devise of all tracted ti?"" 
 lands pm'chased by the testator (c) ; and lands recently chased.- 
 purchased and conveyed, passed under a general devise of 
 lands contracted for [d] ; and copyholds surrendered to the clpyilS'^ 
 use of the copyholder's ^vill, passed under a general dcAdse iysu*iren" ' 
 
 clGrGCi to US6 
 
 of copyhold estates contained in a prior will and not sub- of win. 
 sequently republished (e) . 
 
 And, in cases of wills falling within the operation of the vi^t*c°26, 
 late Act, the above questions between the heir and dcAdsce rights of 
 
 heir and 
 
 are settled in favour of the latter, by the proMsion which fievisee of 
 
 •^ *■ purchaser. 
 
 makes the derise operate upon the testator's interests as 
 they exist at the time of his death. 
 
 («•) Sug. 198. like a doubt on the authorities." 
 
 (.r) Ward v. Moore, 4 Madd. 368. Per Lord Cottenham, 2 M. & C. 
 
 (y) liairlins v. Burgin, 2 Ves. & 441. 
 B. 382. (c) Atcherley v. Vernon, 10 Mod. 
 
 {z) Bullin V. Fletcher, 1 Keen, 526. 
 3G9 ; 2 M. & C. 432. {il) St. John v. Bishop of Winton, 
 
 (a) Sug. 198 ; 2 Dru. & War. 497. Cowp. 94. 
 
 (b) " I cannot say I see anything (e) Sug. 200.
 
 128 
 
 EFFECT OF CONTRACT 
 
 Chap.Vir. 
 
 Effect, 
 under old 
 law, of 
 purchase 
 of fee by 
 termor ; 
 
 and under 
 1 Vict. 0. 26. 
 
 Under the old \a.vr, upon a binding contract for pur- 
 chase of the inheritance by a person possessed of a bene- 
 ficial term for years^ the term, although specifically be- 
 queathed by a prior will, became attendant on the inherit- 
 ance ; so that, on the death of the purchaser, even before 
 conveyance, his legatee of the tenn was merely a trustee 
 for his heir (/) : the intervention, however, of any inter- 
 mediate estate, unless held in trust for the purchaser (g), 
 would seem to prevent the operation of the rule (//) : and 
 the rule that the term became attendant was merely one 
 of presumption, which might be rebutted by evidence of a 
 contrary parol declaration by the purchaser (i) . 
 
 It seems probable that, in cases governed by the new 
 law, a contract for purchase, if not completed by convey- 
 ance, would, in equity, defeat (as before) the rights of a 
 party claiming the term under a general bequest ; but 
 would not, (except in cases coming within the operation of 
 the 8 & 9 Vict. c. 112,) affect a specific legatee of the 
 term : but even a specific legatee would lose the benefit of 
 the bequest, if the terra were actually merged by a con- 
 veyance of the fee to the testator, or became attendant on 
 the inheritance, or satisfied and merged under the Merger 
 Act(y). 
 
 Contract 
 for sale by 
 mortgagee 
 under 
 
 Sower :— 
 e may yet 
 sue for 
 mortgage 
 debt. 
 
 (7.) As to the effect of contract in various special cases. 
 
 It has been recently held, that the fact of a mortgagee, 
 with power of sale, having contracted to sell part of the 
 mortgaged estate for a sum exceeding the amount due on 
 the seciu*ity, is no ground for restraining him from 
 bringing an action for recovery of the mortgage debt {k) . 
 
 (f) Gallon V. Hancock, 2 Atk. 
 425 ; Ca])el v. Girdler, 9 Ves. 509. 
 
 {g) Whilclmrch v. Whilchurck, 2 
 P. Wms. 236. 
 
 (h) Scott V. Fenhoullet, 1 Bro. 
 
 C. C. 69 ; 9 Ves. 509. 
 
 (0 Sag. 789. 
 
 U) Sug. 209. 
 
 (k) miles V. Leveft, 1 De G. & 
 S. 392.
 
 ON RIGHTS OF PARTIES. 129 
 
 When the assignee of a lease agreed to sell it^ and it chap. vii. 
 
 was stipulated that the purchaser should not be entitled to fofTsstgm"* 
 
 an assignment, and he entered and retained possession lease, and 
 
 possession 
 
 until the end of the term, the latter was held bound, in taken; pur- 
 chaser must 
 
 Equity, to indemnify the original lessee, although no party ^^f*]"^"'^^ 
 
 to the agreement, against breaches of covenant committed ^^glf^st 
 
 1 • T. • / 7\ breaches of 
 
 Clunng such possession (/) . covenant. 
 
 ^Hiere a lessor becomes the equitable assignee of an Agreement 
 
 *• " by lessor for 
 
 underlease, he incurs the obligation of performing the und^^ig^ase*- 
 
 covenants therein contained ; and cannot set up their non- *^^ ^^^'^^' 
 performance as a groimd for refusing performance of a 
 covenant in the original lease {m) . 
 
 When assignees of a bankrupt contract to sell a lease, fof^li^by*^ 
 
 this fixes them as assignees of it, although the con- ^bjfniOTip° 
 
 tract be subsequently abandoned ; unless, perhaps, it be ance of a 
 
 lease. 
 
 shown that it coidd not have been enforced (»). 
 
 A contract for sale by a single man, was, in cases sub- ^fg^aiT^"*^ 
 
 ject to the old Law of Dower, sufficient to exclude the dower^of 
 
 claim to dower of a wife whom he married before the con- wife, 
 veyance (o). 
 
 (/) Close V. Wilberforce, 1 Beav. (n) Hastings v. Wilson, Holt's N. 
 
 112 ; see Moore v. Gregg, 2 Ph. 717, P. C. 290. 
 725. (o) Lloyd v. Llogd, 2 Con. & L. 
 
 (m) Jenkins V. Portman, 1 Ke. 435. 592.
 
 130 
 
 Chap. VIII. 
 
 CHAPTER VIIT. 
 
 AS TO THE ABSTRACT. 
 
 1. General matters relating to the abstract. 
 
 2. When perfect ; — what it must contain and show. 
 
 3. What should be furnished, in various specified cases. 
 
 4. As to its preparation, contents, and delivery. 
 
 5. As to its examination and perusal. 
 
 6. As to its verification. 
 
 Purchaser's 
 right to 
 abstract. 
 
 His right to 
 retain. 
 
 Must be 
 given up, if 
 contract 
 abandoned. 
 
 Vendor 
 pays for. 
 
 (1.) A PURCHASER may require to be farnislied with an 
 abstract prepared in the usual way {a), even although he 
 have agreed to accept the title [b] : he may retain it, during 
 negotiations upon, and even after rejection of, the title, 
 until the dispute be finally settled, for the purpose of 
 showing the grounds of such rejection (c) ; and, in the 
 interim, he may maintain trover for it, even against the 
 vendor {d) : when the contract is finally abandoned by 
 both parties, he must return the abstract, and may not 
 retain any copy of it (e) ; comisePs opinion and observa- 
 tions he may, it appears, retain if written upon separate 
 paper (/) ; or, if written upon the abstract itself, he may 
 erase them before returning it {g) . 
 
 The vendor, as a general rule, pays for the abstract {h) ; 
 
 (a) Home v. Wingfield, 3 Sc. N. [p) 2 Taunt. 277. 
 
 R. 340; Sug. 431. (/) 2 Taunt. 270; but see Sug. 
 
 {b) Morris v. Kearsley, 2 Y. & C. 447. 
 
 139. {g) Wood v. Court, 2 S. Atk. 
 
 (c) 2 Taunt. 278 ; Sug. 447. Conv. 463. 
 
 {d) Roberts v. Wyatt, 2 Taunt. (/() Sug. 431. 
 268.
 
 THE ABSTRACT. 
 
 131 
 
 but on sales to a company under the provisions of the chap. viii. 
 Lands Clauses Consolidation Act, 184<5, whether such sales to 
 
 railway 
 
 sales be voluntary or compulsory, and whether inade by company, 
 absolute or merely statutory owners, the costs of the 
 abstract (in the absence of agreement) are thrown on the 
 company {i) : and similar provisions (j) are contained in 
 most of the earlier railway and other similar Acts. 
 
 (2.) As to when the abstract is jjerfect ; — what it 
 must contain and show. 
 
 For the purpose of conditions, &c., as to time, an uV,erfect." 
 abstract is said to be " perfect," if it be as perfect an meanhig or 
 abstract as the vendor is able to furnish at the time of of sale. 
 delivery {k), although the title shoAvn by it may be defec- 
 tive : an abstract is, in the stricter sense of the term, .l^rfect,- 
 "perfect" or complete, when it shows a perfect title (/) ; Tsufflclent 
 that is, when it shows that the vendor is either himself 
 competent to convey to, or can otherwise procure to be 
 vested in, the purchaser, the legal and equitable estates 
 free from incumbrances {m) . 
 
 For instance, the non-registration of deeds, which can pg^fe^ctions" 
 be registered [n), the existence of incumbrances, when the s"dered'^°" 
 
 , -r"'' ■^^ -I . • l^ • defects of 
 
 incumbrancers can be compelled to receive their money title. 
 and join in the conveyance (o), the legal estate being out- 
 standing in a married woman, whose interest is bound by 
 an order of the Court of Chancery Qo), are not imperfec- 
 tions of title. 
 
 (i) 7 & 8 Vict. c. 18, s. 82. («) Sug. 446. 
 
 (j) See In re London and Green- (o) Ibid. : Townsend v. Champer- 
 
 wich Railway Company, 3 Ha. 22. nmvn, 1 Yo. & J. 449 ; and see 2 
 
 (k) 2 Ha. Ill ; and see, at Law, Moll. 583 ; but not if their con- 
 
 Blackburn v. Smith, 2 Exch. 783. currence cannot be compelled ; see 
 
 {I) 2 Ha. HI ; Sug. 445. Page v. Adam, 4 Beav. 269. 
 
 (m) See and consider, Lord Bray- (p) Jump.ton v. Pitchers, 1 Coll. 
 
 hrooke v. Inskip, 8 Ves. 436, and 13. 
 other cases cited, Sug. 445. 
 
 k2
 
 132 
 
 THE ABSTRACT, 
 
 Chap. VIII. 
 
 / 
 
 Should state 
 written 
 consent of 
 parties 
 agreeing to 
 join in sale. 
 
 And this is 
 not always 
 sufficient. 
 
 Must show 
 where out- 
 standing 
 legal estate 
 is vested. 
 
 Showing 
 future right 
 to property, 
 insufficient 
 at law ; 
 semhle. 
 
 As in case 
 of mortgage 
 which 
 cannot be 
 discharged. 
 
 But, consistently with tlie terms of the above proposi- 
 tion, where vendors cannot give to or procure for the pur- 
 chaser, a valid discharge for the purchase money, the 
 title is defective [q) . 
 
 And the mere statement on the face of the abstract 
 that a party who is not compellable has agreed to join, 
 although usual, is, of com^se, insufficient ; a written agree- 
 ment to concur should, in strictness, be procured and 
 abstracted : nor is such agreement sufficient, if it do not 
 absolutely bind the interest of the party signing it ; 
 e. g., a title dependent on an agreement by a tenant in 
 tail to suffer a recovery, or execute a disentailing deed, 
 would be imperfect (/•) . 
 
 So, if the legal estate be outstanding, the abstract must 
 show in whom it is vested {s) ; the existence of the rule 
 appears to be recognised in the judgment in Avarne v. 
 Broivn [t), although the Court, upon the case before it, 
 came to an apparently contradictory decision; but the 
 reporter's note [u) seems to intimate that there was some 
 misapprehension as to the facts. 
 
 The expression used by Lord Eldon {v) is, that the 
 abstract is complete, " whenever it appears that, upon cer- 
 tain acts done, the legal and equitable estates will be in 
 the piu-chaser :'' it is, however, conceived that, at least in a 
 Court of Law, it would not be sufficient for the abstract to 
 show merely a futiire, (although certain and early,) right 
 to the property ; for instance, the existence of an incum- 
 brance which cannot be discharged on or before the time 
 fixed for completion [w], would, it is conceived, amount at 
 
 {q) Forbes v. Peacock, 12 Sim. 
 528. 
 
 (r) Lewin v. Guest, 1 Russ. 325 ; 
 3 & 4 Will. IV. c. 74, s. 47. 
 
 («) Wynne v. Griffith, 1 Russ. 2, 
 
 (t) 14 Sim. 303. 
 
 (m) See p. 308. 
 
 (») 8 Ves. 436. 
 
 (iv) See (a case depending on the 
 specialty of the contract) Foster v. 
 Hoggart, 14 Jur. 757. A mortgagee, 
 we may remark, need not receive his 
 money before the day fixed for re- 
 demption, although previously ten-
 
 THE ABSTRACT. 133 
 
 Law to a defect of title : in equity^ as a general rule. Cha p, viii 
 mortgages and other incumbrances are considered merely brances; 
 matters of conveyance (x) ; and this doctrine has even defect in 
 
 ' title in 
 
 been extended to cases where the property was mortgaged equity. 
 to an amount considerably exceeding its value (y) ; they 
 seem, however, to have been decided on the principle that 
 the vendor had the legal power, if he iised the necessary 
 means, of procuring a conveyance; and the conclusion 
 would, it is conceived, be different, if, by reason of an agree- 
 ment for the continuance of the charge, or otherwise, the 
 vendor had no right to call on the incumbrancer to join 
 in the conveyance (~). Lord Lang dale observes, on the 
 general question, " Where an interest is vested in a party 
 to secure a right, the satisfaction of which right entitles 
 the party who has sold the estate to call for a conveyance, 
 then the Court considers it a question of conveyance only ; 
 but I think it has never gone further than that" {a) : in 
 which it seems to be assumed that the right is capable of 
 being satisfied at the time when the question of title or no 
 title arises. At anj^ rate it may be considered that the ai'tiiofgh^' 
 title is perfect, whenever it appears that under the contract cmrveyauce 
 the purchaser either already has, or will necessarily, before curable. 
 the time fixed for completion, be able to acquire an imme- 
 diate and indisputable right to the legal and equitable es- / 
 tates ; even although the absence of parties, or other cir- 
 cumstances, may considerably delay the conveyance. 
 
 It has, in fact, been held, that a good title was deduced, ^c-entif 
 when it appeared by the abstract that the vendor was mereiy^show 
 tenant in tail in possession and able to convey the fee is tenant in 
 
 tail in pos- 
 
 simple by an enrolled conveyance {b) : this decision, so far session. 
 
 dered with interest up to such day : 450. 
 
 Brown v. Cole, 14 Sim. 427. (-) See 2 Moll. 583, 4 Beav. 269. 
 
 (.r) Toivnsend v. Champernoiim, 1 (a) Sidebotham v. Barrhifflon, 3 
 
 You. & J. 449. Beav. 528. 
 
 (y) Ste]}hens v. Guppi/, and Rmv- (h) Cattell v. Corrall, 4 Y. & C. 
 
 son V. Tasburgh, cited 1 You. & J. Ex. 228.
 
 134 THE ABSTRACT. 
 
 Chap. VIII. as {I jiiay tend to establish that such a vendor is not bound 
 at once to execute a disentailing assurance and limit the 
 fee simple either to his own use or to his appointment, 
 seems open to observation; it is clear that his contract 
 would give to the pui"chaser no right which he could 
 enforce in the event of the vendor^ s death before the exe- 
 cution of the conveyance ; which sufficiently distinguishes 
 it ft-om the case put by the Plaintiff's counsel, of a con- 
 tract entered into by a tenant for life with a power of sale : 
 for a contract to exercise such a power, if entered into for 
 valuable consideration, would be enforced in Equity against 
 remaindermen (c) ; whereas, in the case of the tenant in 
 tail, the jurisdiction of Equity is expressly excluded by 
 Statute {d) ; and it is evidently unreasonable that a pur- 
 chaser should be put to the expense of investigating the 
 title and preparing his conveyance, when the death of the 
 vendor would deprive him of the estate, and possibly leave 
 him without available remedy for recovery of his costs, and 
 deposit (if-any has been paid) . 
 
 (3.) As to what abstract should be furnished in various 
 cases. 
 
 th&^Zt^^ If one tenant in common purchase of another, he is 
 
 furailiied in entitled to an abstract of their general title (e) ; the rule, 
 
 cases; on howcvcr, may perhaps be different in the case of a partner 
 
 a tenant in purchasing his co-partuer's share of the partnership lease- 
 common or 
 a copartner, l^okl premises (/) , 
 
 On purchase Upou the salc of lands allotted under an Inclosure Act, 
 
 of allot- ^ 
 
 ment. the abstract, down to the award, must be that of the title 
 
 to the lands in respect of which the allotment was 
 made {g) : when the allotment has been made indiscrimi- 
 
 (c) 2Sug. Pow. 118. 139. 
 
 (rf) 3 & 4 Will. IV. c. 74, s. 47. (/) Law v. Law, 9 Jur. 745. 
 
 (e) Morris v. Kearsley, 2 Y. & C. (y) Sug. 432.
 
 THE ABSTRACT, 135 
 
 nately in respect of lands held under different titles. Chap, viii. 
 aU such titles must be shoAvn by the abstract (h) . 
 
 Where the estate has been taken in exchange at com- ^ieTf„ 
 mon law or under mutual conveyances with eviction clauses, ^^'^ ^°^^' 
 the abstract must, down to the exchange, show the titles to 
 both estates {i) ; unless, in the case of a common-law ex- 
 change, (as to the future operation of which see 8 & 9 Vict, 
 c. 106, s. 4,) the estate given in exchange has since been 
 aliened [j), and the vendor can prove the alienation. 
 
 Where the estate has been taken in exchange under the [fkeTfn 
 Acts authorizing the exchange of ecclesiastical property {k), fromThf 
 or under an Inclosure Act, or the pro\dsions of the 4 & 5 under in- 
 
 closure Act. 
 
 Will. IV. c. 30, (authorizmg the exchange of Common 
 Lands,) the title down to the exchange must be that of the 
 estate given in exchange : Sir E. Sugden, in fact, (speak- 
 ing of Exchanges under Inclosure Acts,) states, that " the 
 title of the person holdmg the estate is the only one relat- 
 ing to it " (/) ; this may be admitted if the vahdity of the 
 exchange be assumed : but, as such exchanges, and also 
 exchanges of common-field lands under the 4 & 5 Will. 
 IV. c. 30, are only authorized to be made by or with the 
 consent in writing of persons having certain specified 
 interests in both estates (^?^), it is conceived, that in such 
 cases an abstract can scarcely be regarded as perfect, 
 
 (A) See and consider, King v. &c. ; and 6 & 7 Will. IV. c. 115, 
 
 A/oo<?y, 2 Sim. & St. 579. s. 35. See also 3 & 4 Vict. c. 31, s. 
 
 (i) Sug. 432. 1> which, in cases falling within the 
 
 {j) 1 Jarm. Conv. by S. 75. Act, makes the award conclusive evi- 
 
 {k) 55 Geo. III. c. 147, see s. 3 ; dence that the provisions of the gene- 
 
 and 56 Geo. III. c. 52 ; and 1 Geo. ral Inclosure Act, and of the 6 & 7 
 
 IV. c. 6. See, as to confirmation of Will. IV. c. 115, have been complied 
 
 void exchanges, by the tithe commu- with, and that all necessary consents 
 
 tation commissioners, 5 & 6 Vict. c. have been given : but, query, whether 
 
 54 s_ 7, this meets the difficulty in the case 
 
 (/) Page 432. of an exchange ; it would rather seem 
 
 (m) See 4 & 5 Will. IV. c. 30, to refer merely to such consents as 
 
 ss. 2, 4, and 25, in which, note the are requisite to the validity of the 
 
 words, "according to the provisions," Inclosure.
 
 136 
 
 THE ABSTRACT. 
 
 Chap. VIII. unless it disclose at least so much of the prior title to the 
 estate taken in exchange as may be sufficient to show that 
 the transaction was within the provisions of the Act : but 
 where the estate has been taken in exchange under the 
 Commons Inclosure Act, 8 & 9 Vict. c. 118, the single 
 title alone seems necessary ; as the Act contains a pro- 
 vision making the award, when confirmed, conclusive evi- 
 dence that the directions of the Act have been comphed 
 with, and declaring that every allotment, exchange, &c., 
 specified and set forth in the award, shall be binding and 
 conclusive on all persons whomsoever in). So, also, if 
 the title be described in the particulars or conditions as 
 arising under an exchange by vii'tue of an award under an 
 Inclosure Act, it is sufficient if the abstract show a title by 
 award in respect of other lands and common rights, with- 
 out showing the particulars of the exchange ; and if the 
 agreement be that the title shall commence with the 
 award, the purchaser cannot require the title of the lands 
 given in exchange for those contracted to be sold (o) . 
 
 Where the title depends upon an exchange under the 
 1 & 2 Geo. IV. c. 92, (authorizing the exchange of charity 
 lands,) the abstract must show the title as well to the 
 lands given as to the lands taken in exchange ; inasmuch 
 as the right of re-entry in case of eviction is expressly 
 reserved to the Charity trustees {p) ; and it is conceived, 
 that the pm'chaser may require evidence of the land given 
 in exchange having been quietly enjoyed by the cha- 
 rity. 
 
 The title to terms of years attendant upon the inherit- 
 ance, and which are considered to have merged under the 
 8 & 9 Vict. c. 112, must still be traced so as to show in 
 whom they were vested at the time when they became 
 
 Of land 
 taken in 
 exchange 
 from a 
 charity. 
 
 Of estate 
 which has 
 attendant 
 terms. 
 
 (»») Sect. 105 ; and see, as to 
 partitions by the commissioners, 11 
 & 12 Vict. c. 99, ss. 13, 14. 
 
 (o) Cattell V. Con-all, 4 Y. & C. 
 Ex. 228. 
 
 (jw) See sect. 9 of Act.
 
 THE ABSTRACT. 137 
 
 subject to the operation of the Act; viz. : by abstracting, if chap, viii. 
 practicable, the deed creating the term, and the mesne 
 assignments : these latter, however, may be abstracted 
 very concisely {q) : the Act, it may be remarked, does not 
 appear to extend to copyholds, or customary freeholds (/') : 
 and it seems doubtful whether the first and second sections 
 extend to any hereditaments other than land technically 
 so called [s) . 
 
 Upon a sale of land formerly copyhold, the abstract ^[jg^g"/*"^"" 
 must trace the copyhold title, and also the lord's title to copyholds. 
 the manor, down to the enfranchisement (/) ; and it is said 
 that a purchaser may fiu'ther require evidence of the 
 manor having, since the enfranchisement, been enjoyed 
 conformably with the title shown by the abstract {u) . 
 
 Upon a sale of leaseholds, the abstract must, (except in J^^/j^'^l^/j.gg. 
 the case of a Bishop's lease {v},) show the lessor's title, as Jj°ustbe^ 
 well as the subsequent title to the term {w) ; even although p'"^'^"'^^"^- 
 the lessors were a corporation, and the lease be one of long 
 standing {x) ; the decision, as to the non-production of the 
 Bishop's title (y), was on the ground of the lease having 
 been granted in a mode prescribed by an Act of Parlia- 
 ment, and upon the presumed notoriety arising from the 
 use of the episcopal seal; and woidd seem to apply to 
 leases granted by a Dean and Chapter, and possibly to 
 other cases : and the general rule does not apply when the 
 pm-chaser enters into the contract with notice that the 
 freehold title cannot be produced {z) ; nor does it appear 
 clear that the rule applies where, on the sale of a lease of 
 
 {q) Sug. 436. {v) Fane v. Spencer, 2 Mer. 430. 
 
 (r) See Dav. Concise Prec. 79. (w) Souter v. Drake, 5 B. & Ad. 
 
 (s) Ibid. 75, 79. 992 ; Hall v. Betty, 4 Man. & Gr. 
 
 (0 Sug. 433 : but as to cases 410 ; Sug. 492. 
 
 where the enfranchisement has been (a) Purvis v. Rayer, 9 Pri. 488 ; 
 
 under the general Act, 4 & 5 Vict. c. see p. 522. 
 
 35, see s. 64 of Act ; et quare. (y) Fane v. Spencer, 2 Mer. 430. 
 
 (m) 1 Jarm. Conv. by S. 83. {z) Sug. 493.
 
 138 THE ABSTRACT. 
 
 Chap, vm. gj.gat antiquity, the vendor shows the creation of the term, 
 and deduces the leasehold title for the last sixty years (a) . 
 Where, however, the pui'chaser can require the lessor's 
 title, it would appear, upon principle, that he might also 
 require evidence of the freehold having been, since the 
 demise, enjoyed conformably with the earlier title. 
 
 Of renew- Upon a sale of renewable leaseholds, if, (as generally 
 
 able lease- ^ ^ y \ <j ^ 
 
 holds. happens,) the subsisting lease be expressed to be granted 
 
 in consideration of the surrender of the prior lease, the ab- 
 stract must show that the surrenderor was the equitable 
 as well as the legal 0A\Tier of the siu'rendered lease [b) . 
 
 Of leases for jf ^j^g jgasc be held for lives, evidence must, of course, 
 
 lives. ' ^ 
 
 be given, that the lives are in existence ; and this, although 
 there be a covenant for pei'petual renewal (c) . 
 
 Sine^s^*^^^ '" Upon a sale of shares in mines, the pm-chaser is not 
 entitled to a regular abstract of title to the mines them- 
 selves, as if he were pm'chasing a share in the land in 
 wliich they are worked, but he is entitled to such e\'idence 
 of the constitution of the Company, and of the nature of 
 the title under which the mines are worked, as will show 
 that the subject-matter of the purchase is what it professes 
 to be, and that the proposed form of transfer will give him 
 a valid title to the shares {d) . 
 
 Of pews. Upon the sale of a messuage with pews claimed as 
 
 appurtenant thereto, the right to the pews must be 
 proved, either by the grant fi'om the ordinary, or by 
 evidence of prescription (e) . 
 
 Must extend ^^ ^q ^j^g Commencement of the title, — Upon a sale of 
 
 over wnat ' *^ 
 
 ?y ye^f'^" freeholds, or (it is conceived) of copyholds or renewable 
 leaseholds, the title must go back at least sixty years (/) . 
 
 (a) 1 Jarm. Conv. by S. 69. see 6 Ha. 41. 
 
 (A) Coppin V. Fernyhough, 2 Bro. (e) As to which see a late case of 
 
 C. C. 291 ; Hodgkhison v. Cooper, 9 Pepper v. Barnard, 7 Jur. 1128; 12 
 
 Beav. 304. L. J., N. S. Q. B. 361. 
 
 (f) Anderson v. Higginn, 1 J. & (/) Cooper v. Emery, 1 Ph. 388 ; 
 
 L. 718. Hodgkinson v. Cooper, iibi supra, 
 
 {d) Curling v. Flight, 2 Ph. 613 ;
 
 THE ABSTRACT. 
 
 139 
 
 The title to an advowson must be carried back at least c^ap. viii. 
 one hundi-ed years [g] ; and the abstract should be ac- dred years 
 
 ■■ . . - . J on sale of 
 
 companied by a list of the presentations during the period advowson. 
 over which it extends (A) ; the rule, it is conceived, is the 
 same, whether the advowson be sold as in gross or ap- 
 pendant ; for although a sixty years' title might be suffi- 
 cient, if it could be shown that the advowson was in fact 
 appendant to the principal estate, yet the purchaser, it may 
 be contended, has a right to see that no severance of the 
 appendancy is disclosed by the earlier title. 
 
 Upon the sale of a reversionary interest, whatever may Si?n°oT 
 be its antiquity, the abstract must go back sufficiently far [nterlst on*^^ 
 to show its creation ; and should also show that the estate 
 has been enjoyed in possession, conformably with the 
 instrument which created the reversionary interest [i) : 
 this, however, only appHes to the sale of reversionary 
 interests commonly so called, and not to the sale of an 
 estate subject to an attendant term ; in such a case it is 
 sufficient to show a good sixty years' title to the freehold, 
 and to the possession of the term, abstracting also the deed 
 creating the term ; and even if this be lost, the loss is said 
 to be immaterial {j ) . 
 
 Upon the sale of an old term of years, it is sufficient g^^^'y^g^^. 
 if the abstract show the creation of the term and a *|.*,^^^^{fe. 
 sixty years' title to the possession, omitting the interme- cilnV^' 
 diate title ; nor will the absence of the deed creating the 
 term render the title unmarketable {k) . 
 
 Upon the sale of tithes held as a lay property, or of any t^fhet or°* 
 other property held, (as such tithes must be,) under a grant perty d™' 
 
 • • 1 rived from 
 
 from the Crown, the abstract should set forth the original the crown 
 
 ' must show 
 
 grant, and then, omitting intermediate instruments, take ^^^.g^^^ 
 
 (g) See 3 & 4 Will. IV. c. 27, (i) 1 Prest. Abst. 249. 
 
 s. 30. (*) 1 Jarm. Conv. by S. 69 ; 
 
 (A) Sug. 487. 1 Prest. Abst. 25, 249. 
 
 (/) 1 Jarm. Conv. by S. 61.
 
 140 THE ABSTRACT. 
 
 Chap. VIII. ^p the history so as to show a good sixty years' title (Z) ; 
 so^ where the tithes are considered to have been merged by 
 the tithe-owner under the late Acts, and the estate is sold 
 as tithe-free, the early title to the tithes must be similarly 
 deduced (m). 
 Stered" by ^^ ^^^ purchascr havc agreed not to call for the legal 
 befng mere- cstatc, this wiU not shortcu the period over which a title 
 must be shown to the equitable estate ; and it must also 
 be shown that no adverse use can be made of the legal 
 estate {n). 
 
 (4.) As to the preparation, contents, and delivery of 
 the abstract. 
 
 Mustif pos- The abstract must always commence with a document, 
 
 sible com- /., i ■ • "^ • c ■> ^ -i 
 
 mence vv-ith of at Icast the requisite age, ii the vendor have one (o) : 
 
 adocument; ^ . 
 
 old deeds hut neither can a purchaser require, nor would the vendor's 
 
 abstracted: solicitor be justified in furnishing, an abstract of deeds 
 
 prior in date to that which would constitute a good root of 
 
 beVnxfuced title (jo) : the purchaser, however, may requii'e the pi-o- 
 
 dor°s^p^os. duction of every document in the vendor's possession, how- 
 session. . . / \ 
 ever ancient (^j . 
 
 Must com- A-S a general rule, the first abstracted documents should 
 
 mence with ° 
 
 scrT\ion of P^i'port to deal with the entire legal and equitable estates 
 as a"^ot of in tbe property, or should at least afford prima facie evi- 
 dence that the title to such legal and equitable estates was, 
 at the date of such documents, consistent Avith the title as 
 subsequently deduced : they should not be dependent for 
 their vahdity upon any previous instrument : and should 
 contain nothing raising a fair doubt whether the parties 
 claiming the interests there purported to be dealt with, 
 were in fact entitled so to deal with them. 
 
 (Z) 1 Jarm. Conv. by S. 68 ; Sug. (o) 2 Sug. V. and P. 138, 10th ed. 
 
 487. (;;) Sug. 432. 
 
 (to) Il/id. (q) 1 Jarm. Conv. by S. C3. 
 (n) Sug. 495.
 
 THE ABSTRACT. 141 
 
 Thus^ a general devise in a will of real estate is an Chap. viii . 
 insufficient root of title ; there being nothing to show that ^ni ^n- 
 the property in question was intended to^ or could, have general 
 
 devise. 
 
 passed by it ; the conveyance to the testator should be 
 abstracted; or, if there are no earlier deeds, evidence 
 should be furnished of his seisin at the date of his will : 
 and even a specific devise is not an eligible root of title. 
 
 Thus also, it is conceived, a mortgage for a term of ^^h 
 
 Whether 
 
 mort- 
 gage for a 
 term- 
 lease. 
 
 years, or a lease, is an improper commencement of an feifn— ora 
 abstract of title to the fee simple, where the vendor has 
 earlier documents ; u.nless, perhaps, in cases where, inde- 
 pendently of the mere fact of the demise, (which might be 
 attributed to a power, or to a mere chattel interest in the 
 grantor,) the instrument contains matter which fur- 
 nishes a fair presumption that he was the absolute owner in 
 fee. A vendor, however, in possession of earlier docu- 
 ments, could not be advised, (except under very special 
 circumstances,) to commence his abstract with a lease ; as 
 it would almost inevitably lead to expensive discussions 
 with the purchaser. And where a lease is relied on, it is 
 necessary, unless it expired before the time of living 
 memory, to show that the lessee had actual possession of 
 the estate (r) . 
 
 Thus also, an instnunent relied upon as an exercise of a i^g[yu^ent 
 power shoidd be preceded by the instrument creating the for^fts'lT* 
 power; and the admittance to copyholds should be pre- preVTous 
 
 instrument. 
 
 ceded by the surrender ; and a recovery deed by the deed 
 creating the entail {s) . 
 
 " If, however, such deed is lost, and possession has gone f^^lf^ "^ 
 along with the estates created by the recovery for a con- of 'prior ?n- 
 siderable length of time, and the presumption is in favour 
 of the recovery having been duly suffered,^' the loss of the 
 deed, and want of evidence of its contents, are no objection 
 
 [r) Clarksonv. H'oodhouse, !)Durn. (s) 1 Jarm. Conv. by S. 67. 
 
 & E. 412 ; Burt. Comp. pi. 428.
 
 142 
 
 THE ABSTRACT. 
 
 Chap. VIII. 
 
 Nor ■with 
 document 
 which 
 throws a 
 doubt on 
 earlier title. 
 
 Need not in 
 all cases 
 commence 
 with a docu- 
 ment. 
 
 But evi- 
 dence of 
 possession 
 is not suf- 
 ficient, if 
 modem 
 deeds are 
 lost or de- 
 stroyed. 
 
 Wherever 
 commenced 
 should 
 thence be 
 regularly 
 continued- 
 keeping se- 
 parate 
 titles se- 
 parate. 
 
 to the title {f), and the same principle would probably 
 apply in the absence of a deed creating a power [u) . 
 
 So, if the first abstracted document contain recitals or 
 other matter throwing a reasonable doubt upon the title as 
 respects the contents or construction of the earlier docu- 
 ments, the purchaser may require the vendor, not only to 
 produce, but also to abstract, so much of the prior title as 
 may be sufificient to remove such doubt; but, in the 
 absence of such reasonable doubt, the mere fact of earher 
 documents being recited would not entitle the purchaser 
 to an abstract of them, although he may require their pro- 
 duction if in the vendor's possession or power {v) ; and it 
 is sufficient to produce (without abstracting) an instru- 
 ment which is required simply " to estabhsh a fact or 
 negative an inference" [w) . 
 
 It is not essential that the origin of the title should be 
 shown either by deed or will ; in the absence of documents 
 it may be sufficient to produce evidence of such long unin- 
 terrupted possession, enjoyment, and dealing with the pro- 
 perty, as to afford a reasonable presumption that there is 
 an absolute title in fee simple [x) . But the proof of title 
 by CA-idence of possession is not admissible in cases where 
 documents forming part of the modern title are lost or 
 destroyed ; in such cases the vendor must prove theii' con- 
 tents and execution [y] . 
 
 The title, wherever taken up, should be thence continued 
 either in chronological or some other regular order : where 
 separate parts of the estate are held under separate titles, 
 such titles should, of course, be traced separately so long 
 as they remain distinct : eveiy subsequent document deal- 
 
 {() Coussmakpr v. Sfiwell, Sug. 
 486. 
 
 (m) See NouaUle v. Greemvond, 
 Turn. & R. 26. 
 
 {v) See Prosser v Watts, 6 Madd. 
 59 ; 1 Jarna. Conv. by S. 63 and 64 ; 
 
 I Hayes, Conv. 566. 
 
 (w) Sug. 431. 
 
 (.r) Coitrell v. Watkins, 1 Beav. 
 365. 
 
 (y) Bryant v. Bmk, 4 Russ. 1 ; 
 Sug. 460.
 
 THE ABSTRACT. 143 
 
 ing with the legal estate^ (except expn-ed leases^ and with chap.viii. 
 the exceptions already referred to (z),) should be abstracted; men'tsaffect- 
 
 - . . T J. i. 1 ing legal 
 
 for instance, a mortgage and reconveyance are not to be estate to be 
 
 suppressed under the notion that the title has been thereby 
 
 brought back to its original state ; such may, or may not, 
 
 have been the case ; and is a point to be determined by 
 
 the advisers of the pm-chaser, not of the vendor : all docu- Documents 
 
 ^ ' snouki be 
 
 ments forming pai't of the title should be abstracted in ^^''^^^^^ 
 chief; the introduction of them merely as recitals in other 
 abstracted instruments, (which is not uncommon, espe- 
 cially in the case of wills,) is, it is apprehended, cleai-ly 
 improper ; were it not so, a copy of the conveyance to the 
 vendor might, in many cases, take the place of an abstract : 
 besides which, the omission to abstract a document in chief 
 may proceed from a desire to avoid noticing matters of a 
 suspicious character occm-ring in such document, but 
 which are not noticed in the recital : it is convenient to ^f 
 introduce, in their proper places, direct statements of ° ''^ '^*^' 
 deaths, mamages, and other matters of pedigree ; and not, 
 as is fi-equently done, to trust to the recitals in the ab- 
 stracted documents ; and in cases of comphcated descents, 
 &c., a regular pedigree should accompany the abstract. 
 
 Docimients affecting merely equitable interests give rise ofTstm-|''" 
 to considerations of greater difficulty ; Sir E. Sugden states dendnr^m- 
 
 '. - -, material or 
 
 o-enerallv, that the sohcitor " should abstract every docu- satisfied 
 
 b .. ' equities— 
 
 ment upon which the title depends, or upon which any j{J>g'^j|^^,g 
 difficulty has arisen : wherever he begins the root of the 
 title, he ought to abstract every subsequent deed" {a) : 
 this, however, it is conceived, must be understood to mean 
 every document upon which the purchaser's title will ne- 
 cessarily depend ; if, for instance, the vendor be possessed 
 of a document declaring that a prior owner who pui'chased, 
 apparently on his own account, was in fact a trustee, or, that 
 
 {z\ Supra, p. 139. («) Siig. 432. 
 
 Statements 
 matters
 
 144 THE ABSTRACT. 
 
 Chap. Yiii. ^ mortgage-debt was trust-money, the title of tlie vendo?' 
 who has notice of the trust may depend upon various 
 instruments which would be altogether immaterial to a 
 purchaser destitute of such notice ; and it would, it is con- 
 ceived, be unusual and highly improper, for the soHcitor 
 to allow notice of such a trust to appear upon his abstract ; 
 this, however, it must be admitted, is, pro tanto, a de- 
 parture from the general principle, that it is for the pur- 
 chaser's solicitor, and not the vendor's, to judge of the 
 materiahty of the muniments of title : but it is sanctioned 
 by convenience and universal practice. Other cases may 
 perhaps occm' in which a document may be, without mate- 
 rial risk, suppressed ; as, for instance, where a good title is 
 shown to the legal estate, and a charge, which clearly ope- 
 rated merely in equity, has been paid oif and no trace of it 
 appears upon the subsequent title ; the difference between 
 the suppression of such an instrument and a legal mort- 
 gage is evident ; the equitable charge has no operation as 
 against a subsequent pm-chaser for valuable consideration 
 without notice, and his title, therefore, is not dependent on 
 the sufficiency of the release ; nor does there seem to be 
 any good reason for making a distinction between an 
 equitable charge by deed, and a mere memorandum ac- 
 companying an old equitable mortgage by deposit, which, 
 except upon special grounds, is never abstracted ; but, in 
 the case of a legal mortgage, the purchaser's title at Law 
 will depend (theoretically if not practically) upon the 
 legal vahdity of the deed of reconveyance, whether its 
 existence be known to him or not : still, even in the case 
 of the equitable charge, it seems at least probable that a 
 solicitor who suppresses it, under the idea that it is unim- 
 
 Deed which portaut to thc title, does so at his own risk [b) ; and it is 
 
 may operate t i i, 
 
 on legal submitted, that such a course should rarely, or never, be 
 
 estate ' 
 
 {b) See Sug. 432.
 
 THE ABSTRACT. 145 
 
 takeiij in respect of an instrument which is so framed chap. viii. 
 
 should 
 never be 
 suppressed. 
 
 that it could by possibility affect tlie legal estate ; as, for never be 
 
 instance, a mortgage of an equity of redemption, drawn as 
 a conveyance with a proviso for redemption ; and which, 
 although merely a charge in Equity if the first mortgage 
 be vahd in Law, would yet pass the legal estate supposing 
 it not to have been effectually transferred by the prior 
 instrument. 
 
 The loss of a deed of a date subsequent to the com- As to loss oi 
 
 . modern 
 
 mencement of the abstract, is no objection to the title, if, deeds. 
 under aU the circumstances, the clear presumption be that 
 the insti-ument, if produced, would not throw any difficulty 
 about the title (c) ; this doctrine, however, must be applied 
 with the greatest hesitation to cases where modern deeds 
 are lost, and no satisfactory evidence exists of their con- 
 tents {d). 
 
 The abstract should notice all judgments and other sub- ^^'^=3',^' 
 sisting charges upon the property (e) . 
 
 The general rules for abstracting documents are ordi- 
 narily known, and may be found in full, in Sir E. Sugden's 
 treatise, and in the first volume of Mr. Sweet's valuable 
 edition of Mr. Jarman's work on conveyancing. 
 
 Copies of wills abstracted, (if at all of an informal cha- fc^ompj! 
 racter,) and of private Acts of Parhament upon which the copls of 
 
 wills and 
 
 title depends, should accompany the abstract. private 
 
 A statement of the evidence which the vendor is able to And by 
 
 _ - . . • ii statement 
 
 produce in support of the title may conveniently accom- of evidence. 
 pany the abstract ; this, however, is not often attended to. 
 
 Cases not unfrequently occur of complicated titles, in Astocon- 
 
 ^ *' . suiting 
 
 which the soUcitor who prepares the abstract will be jus- counsel ^^^ 
 
 tified in laying it before counsel on behalf of his own client ; ^^Jj^JJ^ f *■ 
 this remark applies particularly to heavy mortgage trans- 
 actions, in which considerable expense to the mortgagor 
 
 (c) Minchin v. Vance, 2 S. Atk. {d) Vide infra. 
 
 Conv. 386, b. (e) Sug. 445.
 
 148 
 
 THE ABSTRACT. 
 
 Chap. VIII. 
 
 How to be 
 copied. 
 
 Effect of 
 non-de- 
 livery of ab- 
 stract, on 
 imrcliaser's 
 liability 
 under the 
 contract. 
 
 Non-dc- 
 livcry liow 
 to be taken 
 advantage 
 of. 
 
 Suggested 
 course of 
 proceeding 
 by pur- 
 chaser. 
 
 may frequently be saved by tlie delivery in the fii'st 
 instance of a perfect and weU-verified abstract. 
 
 An abstract may be wi'itten so illegibly, or upon paper 
 of such an inconvenient size or substance, as to justify the 
 purchaser's solicitor or counsel in declining to receive 
 
 it(/). 
 
 The non-delivery of a perfect {g) abstract on the day 
 named, discharges the pm'chaser from any conditions bind- 
 ing him to make objections, &c., \^dthin a specified time after 
 dehvery {h) ; and, at Law, reheves him altogether from 
 the contract (i) : in Equity, however, the purchaser will be 
 bound if either he neglect to apply for the abstract within a 
 reasonable time before the day fixed for its delivery' (y) , or 
 if, upon its being subsequently tendered, he receive it -with- 
 out objection (A-) : but the wilful neglect on the part of a 
 vendor to prepare the abstract within proper time, when 
 pressed by the purcliaser to do so, will, even m Equity, 
 entitle the pm-chaser to avoid the contract so soon as the 
 time fixed for completion is elapsed (/) : where the pur- 
 chaser's solicitor intends to rely upon the non-delivery of 
 the abstract upon the day named, or (if no day have been 
 named) withm a reasonable time before the day fixed for 
 completion, he should dechne to receive it ; or, if forwarded 
 to him imder circumstances which gave no opportvmity for 
 its rejection, he should at once return it, and without read- 
 ing it {m) . 
 
 Where it is important to the purchaser to complete (if 
 at all) at or about the time fixed for completion, and the 
 abstract, ha\dng been called for, is delivered so late as to 
 
 (/) See Sug. 431. 
 
 (^r) Vide supra, ^. 131. 
 
 {h) Southhy V. Hutt, 2 Myl. & C. 
 211. 
 
 (i) Sug. 289 ; Berry v. Young, 2 
 Esp. 640, n. 
 
 (j) Guest V. Homfray, 5 Ves. 818, 
 
 823 ; Jones v. Price, 3 Anst. 924. 
 
 {k) Sug. 290 ; Smith v. Burnam, 
 2 Anst. 527. 
 
 (0 Sug. 290 ; Seton v. Slade, 7 
 Ves. 2fi5. 
 
 {m) See 7 Ves. 278.
 
 THE ABSTRACT. 
 
 147 
 
 render it doubtfal whether this can be accomplished, the da p, vii i. 
 most expedient course woukl appear to be, to retm'n it 
 unread ; offering, however, to receive it again, without 
 prejudice to the pm-chaser's right to annul the con- 
 tract, if, on investigating the title, it should be found 
 impossible to complete at (or within some short specified 
 period after) the time originally fixed for completion. 
 
 (5.) As to the examination and perusal of the abstract. 
 
 The pmxhaser's soUcitor is entitled, if he please, to ™|;!'"*° 
 compare the abstract with the deeds before investigating ^^^^^ bel'' 
 the title, and the vendor (assuming that there is a binding ^^JS^noi 
 contract) must pay the costs if the title prove bad {n) ; but 
 unless the abstract be apparently defective, it is better to 
 defer doing so until couusers opinion (if taken) is obtained 
 upon it (o) . 
 
 A purchaser's sohcitor, it is conceived, is prima facie ^^/j^^""- 
 legally justified in incurring the expense of comisel's ^j'l^Jeoiou 
 opinion upon the abstract ; in London, perhaps, the ma- purchaser. 
 jority of titles (except those of the simplest description) 
 are submitted to counsel; in the country, the practice 
 mchnes considerably the other way: it may be here re- 
 marked that the decisions of the various Comis of Law 
 and Equity have a retrospective effect upon titles ; so that, 
 in estimating the value of a favoui-able opinion taken a few 
 years previously, allowance must be made for the possibility 
 of the title ha'sing been since rendered unmarketable, pos- 
 sibly unsafe, by some intermediate and miexpected exposi- 
 tion of the law. The abstract, when submitted to counsel, 
 should, of com-se, be accompanied by a copy of the agree- 
 ment and conditions of sale (if any) . 
 
 It is presumed that every person who habitually Astope- 
 
 (») Hodges v. Earl of Litchfield, 1 {o) Sug. 437. 
 
 Bing. N. C. 499. 
 
 l2
 
 148 THE ABSTRACT. 
 
 Chap. Till, pgj^ges abstracts keeps some memoranda of their contents ; 
 
 stracfs.^ " an abstract book is desu-able, not only as an assistance in 
 the perusal^ but also for the purposes of reference on future 
 occasions. 
 
 mTd^of^pe- Su' E. Sugden recommends that an abstract should be 
 
 '"''''■ perused at a single sitting {p) : this, although desirable, is 
 
 often impracticable: it is suggested, that the most con- 
 venient plan of penisal, (especially for those whose ex- 
 perience is limited) is as foUows; %iz., immediately upon 
 perusing, and thoroughly understanding, an abstracted 
 document, to enter it, by its date and parties, in the 
 abstract book, with as concise a statement as possible of its 
 effect, and a memorandum of any peculiarity which may 
 appear in its contents, or of any deficiency in the usual 
 statements as to execution, registration, indorsement of 
 receipts, &c. ; and then, in the margin of the abstract book, 
 to make all those queries and requisitions which would pro- 
 perly be made if the instrument in question were the 
 tenniaation of the title, except such as the early date of 
 the instrument, or other circumstances, may render evi- 
 dently unnecessary : for instance, an estate tail has been 
 created ; — the query will be, " how has this been barred ?" 
 a man acquires within a recent period an estate in fee, — 
 the query ^vill be, " is any widow dowable ?" the estate is 
 charged with an annuity, — the query will be, ^'is this a 
 subsisting charge ?" a death or descent is stated, — the 
 marginal note will be, " produce the usual eridence :" a 
 deed is not registered, — the marginal note will be, " must 
 be registered at the vendor's expense :" in aU probability, 
 on advancing fiu'ther in the abstract, most of the queries 
 will be satisfactorily answered, and many of the requisitions 
 will be found to be mmecessary ; and, whenever this is the 
 case, the pen may be passed Ughtly tlirough the marginal 
 
 (p) Sug. 438.
 
 THE ABSTRACT. 149 
 
 note, not so as to render it illegible, but merely to show Chap. viii. 
 
 that it is unimportant, and the nimiber of the subsequent 
 
 page which supplies the information may be added by way 
 
 of reference ; by adopting this course, or some modification 
 
 of it, an interruption in the perusal of the abstract is 
 
 rendered comparatively unimportant ; a very short reference 
 
 to the abstract book is sufficient to show how matters 
 
 stood at the time of the interruption; and when the 
 
 perusal is finished, such of the marginal notes as have not 
 
 been crossed out will furnish safe materials for the opinion. 
 
 The acceptance of a title, of course, is no waiver of ob- Acceptance 
 jections which are not disclosed by the abstract {g) ; nor, ?o°wifaur 
 is a cHent bound by his counsel's acceptance of a defective ®-''*^'^'^^- 
 title, even although the defect appear upon the abstract (r) : 
 if, however, coimsel waive a requisition, and the pur- 
 chaser adopt his opinion and deal with the vendor on that 
 view, he cannot afterwards repudiate it (s) . 
 
 If a solicitor be concerned for both parties, although of ^,?^^f^ '" 
 
 course bound to see that the purchaser does not buy with notVe diL 
 
 a defective title, or buy that which is in fact his own, he is culut in- 
 
 not at liberty to disclose defects in the vendor's title of take ad- 
 vantage 
 which the purchaser might himself take advantage : and a thereof. ^ 
 
 sohcitor acting in contravention of the rule has been held 
 
 hable in an action for damages (t) . 
 
 (6.) As to the verification of the abstract. 
 
 Assuming that an apparently good title is deduced by verification 
 
 the abstract, the next matter for consideration is, the evi- denMmay" 
 
 dence which a purchaser may require in support of it; e required 
 
 (f/) Att.-Gen. v. Sitwell, 1 Y. & («) Alexander v. Crosby, 1 Jo. & 
 
 C. 570 ; Ward v. Trathen, 14 Sim. L. 666. 
 82 ; 8 Jur. 303. {t) Taylor v. Blacklow, 3 Bing. 
 
 (r) See Deverell v. Lord Bolton, N. C. 235. 
 18 Ves. 505.
 
 150 
 
 THE ABSTRACT. 
 
 Chap. Vni. 
 
 in proof of 
 documents 
 and facts. 
 
 As to proof 
 of private 
 Acts. 
 
 Of awards 
 under In- 
 closure 
 Acts. 
 
 Of copyhold 
 assurances. 
 
 and this subject naturally divides itself into two heads ; ^iz., 
 firstj what e^ddence may be required of the existence and 
 genuineness of abstracted documents ; and, secondly, what 
 evidence may be required of other matters of fact. 
 
 A private Act of Parhament is sufficiently proved by the 
 printed copy, if printed by the Queen's printer; and a 
 recent Statute renders it unnecesssary to prove that the 
 copy pm'porting to be, was in fact, so printed (^^) ; nor was 
 such proof previously necessary as respects private Acts 
 which contained the usual clause making printed copies 
 evidence : in default of such e\=idence, an Act should be 
 proved by a copy examined with the original {v) . 
 
 An aAvard vmder an Inclosure Act is proved by a copy, 
 or extract, signed by the proper officer of the Com-t, if the 
 enrolment have been made in one of the Com'ts at West- 
 minster ; or by the Clerk of the peace for the County, or 
 his deputy, if the inrolment have been made vnth the 
 Clerk of the peace [iv] . 
 
 Copyhold assurances are proved by the copies of Com-t 
 Roll signed by the stcAvard ; and it appears that, in strict- 
 ness, evidence may be requii'cd of the steward's hand- 
 writing, except, perhaps, where he is dead, and the docu- 
 ment is above thirty years old and comes from the proper 
 custody (.r) : such a requisition, however, when even mo- 
 dern copies come from the proper custody, is not usual in 
 practice, unless there are special grounds for suspicion : 
 copies authenticated by the steward are evidence, although 
 they are not the copies originally delivered to the te- 
 nant (^/) ; and so also are mere examined copies {z) : the 
 
 0«) 8 & 9 Vict. 0. 113, s. 3. 
 
 (v) 1 Jarm. Conv. by S. 169 : as 
 to proof of old private Act, which 
 has been omitted from the Parliament 
 Roll, see Doe v. Brydges, 7 Sc. N. R. 
 338. 
 
 (w) See 41 Geo. III. c. 109, s. 
 
 35 ; 3 & 4 Will. IV. c. 87, s. 2. 
 
 (x) 1 Scriv. on Cop. 497 ; Wynne 
 V. Tyrwhitt, 4 Barn. & Aid. 376. 
 
 (y) Breeze v. Hawker, 14 Sim. 
 350. 
 
 {z) See Boe v. Freeman, 12 Mee. 
 & W. 844 ; and examined copies, not
 
 THE ABSTRACT. 151 
 
 purchaser may, it is conceived^ in the absence of special chap. viii. 
 agreement, generally compel the vendor (at his own ex- 
 pense) to verify his abstract by the production of authen- 
 ticated or examined copies, in cases where the originals are 
 lost, even although the steward will allow the purchaser to 
 inspect the Com-t Rolls [a] ; probably, however, the rule 
 might be different when, as may often happen, the vendor^s 
 solicitor, by being himself the steward, or otherwise, is 
 enabled to produce the original Rolls at the proper place 
 for verification of the abstract, and can prove the loss or 
 destruction of the original copies, so as to avoid any diffi- 
 culty wliich may be raised by the doctrine of Whitbread v. 
 Jordan {b) . If the vendor be thus obliged to procm-e 
 fresh copies for the pui'pose of verification, they will 
 (unless he retain, or sell to another person, an estate of 
 greater value held under the same title) belong to the 
 purchaser [c) . If a surrender have been by attorney, the 
 power of attorney must be produced, and e\ddence must 
 be given of the principal having been alive at the time of 
 its being acted on {d) ; and where the power was not given 
 for valuable consideration, inquiry should be made whether 
 it was revoked prior to its apparent exercise : the state- 
 ment of a power of attorney on the Court Rolls is se- 
 condary evidence of the original, if the latter cannot be 
 found (e). 
 
 Deeds abstracted must be proved by the production of of deeds. 
 the originals, if not lost or destroyed (/) ; the attesting 
 witnesses (if alive), may, perhaps, in strictness be required 
 to prove the due execution (^), unless the deed is thirty 
 
 signed by the Steward, do not require Car. & P. 112. 
 
 Stamps : S. C. (/) As to mutilation of deeds, and 
 
 (a) Scriv. 493. defects in the Stamps, &c., vide 
 
 (b) 1 Y. & C. Ex. .303. infra, p. 161. 
 
 (e) Scriv. 494 ; Sug. 476. (^r) Laythoarp v. Bryant, 1 Bing. 
 
 {d) Sug. 442. N. C. 421. 
 
 (e) Doe d. Counsell v. Caperton, 9
 
 152 THE ABSTRACT. 
 
 Chap. VIII. years old and comes from the proper custody {h) ; but this, 
 where a modern deed comes from such custody (i) , is never 
 urged in practice except upon special ground {j) : when 
 a deed has been executed by attorney, the same requisi- 
 tions and inquiry should be made as in the case of a sur- 
 render by attorney {k) : where the loss or destruction of a 
 deed can be proved (/), secondary evidence may be given 
 of its contents ; but proof must also be given of its due 
 execution and delivery [m) ; an attested copy, however, 
 taken and kept for 110 years in a public office, of a deed 
 which could not be found, was admitted by Lord Hard- 
 wicke as sufficient e\idence of the original; and he inti- 
 mated that, under the special circumstances, a plain copy 
 would have been admissible {n) : so, in a recent Peerage 
 case, the House of Lords admitted as evidence an attested 
 copy of a settlement dated in 1693, produced from the 
 proper custody, and according to which possession of the 
 estates had gone for many years (o) . Examined copies of 
 deeds required by Law to be enrolled, are, it appears, suf- 
 ficient evidence of the originals ; but, where the enrolment 
 is not compulsory, a copy is evidence only as against the 
 parties on whose acknowledgment enrolment was made, 
 and their representatives {p) : and the non-production of 
 
 {h) 2 Pbill. on Ev, 203 ; Man v. dor : V. and P. 463. 
 Ricketts, 7 Beav. 93. (k) Supra, 151. 
 
 (i) I. e., a place where it may rea- (I) As to what evidence of loss is 
 
 sonably be expected to be found, sufficient, see Hart v. Hart, 1 Ha 
 
 although not the most proper place 1 ; Green v. Bailey, 15 Sim. 542. 
 of custody : Croughton v. Blake, 12 (m) Bryant v. Busk, 4 Russ. J 
 
 Mee. & W. 205 ; Doe v. Phillips, 8 Southby v. Hutt, 2 Myl. & Cr. 207 
 
 Q. B. 158. and see Doe v. Brydges, 7 Sco.N. R 
 
 ij) 1 Jarm. Conv. by S. 179. 339. 
 Sir E. Sugden seems to think that it (w) Harvey v. Philips, 2 Atk. 541 
 
 is sufficient, in the absence of special (o) Fitzwalter Peerage, 10 CI. & 
 
 circumstances, on the sale of free- Fin. 952. 
 
 holds, to prove the due execution of {p) 1 Jarm. Conv. by S. 170. 
 
 the conveyance of the fee to the ven-
 
 THE ABSTRACT. ^ ^'^ 
 
 the original should be accounted for [q). The recital of a ^p^ZIH' 
 
 • Recitals of 
 
 deed is evidence of its existence as against all parties -when evi- 
 dence. 
 executing the deed containing the recital, and those claim- 
 ing under them, but is no evidence of its contents or effect 
 beyond what its name and natui'C necessarily imply, unless 
 proof be given of its loss or destruction (r) : an examined 
 copy of the memorial of a deed registered in a Register 
 County is secondary evidence of the deed as against the 
 parties thereto, and all persons claiming under them («), 
 but probably not as against strangers {t) . 
 
 In a case in Ireland, by a settlement executed in 1745, 
 estates were limited in strict settlement, with a power of 
 revocation reserved to the settlor ; this power was stated to 
 have been exercised by a will dated in 1761, but of which 
 neither the original nor any copy could be produced ; the 
 estates were re-settled in 1763 by a deed which recited 
 the power of revocation and exercise of the power by the 
 will, and possession had ever since gone under this deed : 
 under these circumstances, Sugden, C, held the recital to 
 be sufficient evidence of the contents and execution of the 
 ■will ill) . 
 
 The same estates were limited in strict settlement in 
 1788 ; in Februaiy, 1814, the tenant for hfe and first tenant 
 in tail entered into articles of agreement to bar the entail 
 and re-settle the estates to certain specified uses, mth a 
 power of revocation ; neither the original nor any copy of 
 the articles could be produced, although search had been 
 
 (y) But the enrolment, or an ex- (r) Burt. Comp. 478, et seq. 
 
 amined copy of the enrolment, of any {s) Wollaston v. Hakewill, 3 Man, 
 
 deed executed under the provisions & Gr. 297 ; Doe v. Clifford, 2 Car. 
 
 of the Acts relating to the Duchy of & K. 448. 
 
 Cornwall, is sufficient proof of the (0 Doe v. Clifford, ubi supra : but 
 
 contents and due execution of the see Collins v. Maule, 8 Car. & P. 
 
 original, although its non-production 502. 
 
 be not accounted for; see 7 & 8 {u) Alexander v. Crosby, 1 J. & 
 
 Vict. c. 65, s. 34. L. 660.
 
 154 
 
 THE ABSTRACT. 
 
 Chiip. VIII. 
 
 Lease for a 
 year proved 
 by recital. 
 
 Renewed 
 Ecclesias- 
 tical lease. 
 
 Fines and 
 Recoveries. 
 
 made for them ; they were, however, recited in the deed 
 making the tenant to the praecipe which was dated March 
 1814; in 1815, upon the marriage of the tenant in tail, 
 the power of revocation was exercised, and the estates 
 were re-settled, and had since been enjoyed accordingly : 
 Sugden, C, after remarking that the articles appeared to 
 have been voluntary, and that the settlement was for con- 
 sideration, held that, mider the special circumstances of 
 the case, the recital was sufficient evidence of the contents 
 of the articles {v) . 
 
 Probably, in the above case the decision might have 
 been different, if, instead of mere articles of agreement, 
 the missing instrument had been one which affected the 
 legal estate. 
 
 The recital or mention of a lease for a year in any con- 
 veyance executed before the 15th May, 1841, is sufficient 
 evidence of the execution of such lease ; without proof of 
 its loss [w) : and in any renewed Ecclesiastical lease granted 
 since the 21st June, 1836, (unless in pursuance of a cove- 
 nant or agreement entered into before the 1st of March, 
 1836,) the recital of the old lease, and of the deaths, &c. 
 of the cestuis que vie, is conclusive evidence thereof {of) . 
 
 A Fine should be proved by the chirograph, or an ex- 
 emplification under the seal (y) of the Court, or a copy 
 examined with the original roll and proved by the oath of 
 the examiner {z) : mere office extracts, although often 
 relied on, and generally received by conveyancers, are not 
 evidence («). 
 
 A Recovery is proved by an exemplification or an exa- 
 mined copy {b) . 
 
 (v) Alexander v. Croshy, 1 J. & 
 L. 666. 
 
 {w) 4 & 5 Vict. c. 21, 8. 2. 
 
 [x) 6 Will. IV. c. 20, 88. 2 & 9. 
 
 {y) The loss of the seal is imma- 
 terial, if the document come from the 
 
 proper custody ; Mayor of Beverley 
 V. Craven, 2 Moo. & R. 140. 
 
 {z) Burt. Comp. pi. 487 ; Doe v. 
 Ross, 7 Mee. & W. 102. 
 
 (fl) Buller's N. P. 227. 
 
 {p) Burt. Comp. pi. 490.
 
 THE ABSTRACT. 155 
 
 Where an estate has been purchased and held for twenty cha p. viii. 
 years or upwards under a title which depends upon a reco- under °t'a- 
 very which has not been enrolled, the deed duly making 
 the tenant to the prsecipCj and leading the uses of the 
 recovery, is sufficient evidence thereof, as in favour of the 
 purchaser and all parties claiming under him (c) . 
 
 The 3 & 4 Will. IV. c. 74, s. 13, provides for the change 
 of custody of the Records of Fines and Recoveries levied 
 and suffered at Westminster, Lancaster, and Durham; 
 and makes extracts and copies, supphed after such change 
 of custody, as available in evidence as they would have 
 been if supplied in the usual way before the passing of the 
 Act ; and, by the 5 Vict. c. 3.2, provision is made for the 
 eiu-olment, in the office of the Registrar of the Court of 
 Common Pleas at Westminster, of the proceedings in 
 Fines and Recoveries levied and suffered in the Courts of 
 Great Session in Wales, and the Court of Great Session in 
 Cheshire, and for remedying in certain cases defects in the 
 original Records {d) ; and by the 11 & 12 Vict. c. 70, evi- 
 dence of Fines at Westminster having been levied with 
 Proclamations is rendered unnecessary. 
 
 A grant from the Crown is regularly proved by an ex- Q^ant from 
 emplification, or certified copy ; but if the original be lost, Grown. 
 and the vendor's sohcitor ascertain and inform the pur- 
 chaser where the grant is enrolled, the latter cannot, it 
 appears, require a copy, but must examine the enrolment 
 at his own expense (e). 
 
 Proceedings in the Courts of Law and Equity are regu- |^gP™t Law 
 larly proved by exempHfications under the seals of the E°q*{iify. 
 Courts, or authenticated by the signature of the Judge, 
 (in cases where the Court has no seal (/) ;) and proof of 
 
 (c) 14 Geo. II. c. 20, s. 4. (e) Sug. 450. 
 
 {d) See Doe v. Price, 16 Mee. & (/) Alves v. Bunbury, 4 Camp.. 
 
 W. 603. 28.
 
 156 
 
 THE ABSTRACT. 
 
 Chap. VIII. 
 
 And in 
 Bankruptcy 
 and Insol- 
 vency. 
 
 As to the 
 eurolment 
 of jn-oceed- 
 ings in 
 Bankrupt- 
 cy. 
 
 I'roof of by 
 olfice copies. 
 
 As to cer- 
 tilled copies 
 of Records 
 under 1 & 2 
 Vict. c. 94. 
 
 Proof of 
 Will. 
 
 the seal or signature is rendered unnecessary by the 8 & 9 
 Vict. c. 113. 
 
 Proceedings in Bankruptcy and Insolvency are proved 
 by copies certified in manner directed by the several Acts ; 
 see as to Insolvency, 53 Geo. III. c. 102, s. 24; 7 Geo. IV. 
 c. 57, s. 76; 1 & 2 Vict. c. 110, s. 105 ; 5 & 6 Vict. c. 
 116, s. 11 ; 7 & 8 Vict. c. 96, s. 37 : and as to Banki'uptcy, 
 6 Geo. IV. c. 16, s. 97; 1 & 2 WiU. IV. c. 56, s. 29, and 
 12 & 13 Vict. c. 106, ss. 232 et seq. ; proof of the seals 
 and signatui'es is rendered unnecessaiy by the 8 & 9 Vict. 
 c. 113. 
 
 The fiat, (or, if the case be under the recent Act {g), the 
 Petition,) adjudication, and certificate of appointment of 
 assignees, if not enrolled, ought to be entered on record by 
 the vendor, and at his expense; Mr. Jarman considers 
 that this is necessary although the bankrupt will join in 
 the conveyance {h) ; Sir E. Sugden's opinion is the other 
 way ; and also, that such a requisition cannot be insisted 
 on if it be too late to upset the fiat {i) . 
 
 Office copies, {i. e. copies made by an officer of a Court 
 under its authority,) although not strictly evidence, except 
 in the causes or matters to which they belong, are received 
 as evidence by conveyancers. 
 
 And we may here remark, that by the 1 & 2 Vict. c. 94, 
 the Records of the Courts of Chancery, Exchequer, Queen^s 
 Bench, and Common Pleas, and of the aboHshed Courts in 
 Wales, Chester, Durham, and Isle of Ely, are committed 
 to the custody of the Master of the Rolls ; and, by sections 
 12 and 13, certified copies of such Records under the seal 
 of the Record Office, are made evidence equally with the 
 originals. 
 
 The probate, or (if that be lost) an official copy, is 
 
 {g) 12 & 13 Vict. c. 106. (A) 1 Jarm. Conv. by S. 97. 
 
 (j) Sug. 672.
 
 THE ABSTRACT. 157 
 
 usually received by conveyancers as sufficient evidence of c^iap. viii. 
 a wiW, whether relating to real or personal estate (j) ; 
 although the probate has been held to be in strictness 
 inadmissible^ even as secondary evidence^ in a question of 
 title to freehold [j) or copyhold (A:) property : however, in 
 recent Peerage cases, the copy of a will produced from the 
 Prerogative Office has been received in evidence, upon the 
 absence of the original from the Office being accounted 
 for (/) ; the Probate Act Book of the Ecclesiastical Court 
 is e\ddence of the appointment of executors (m) ; and an 
 official extract from such book is often received in practice, 
 where (as in the case of tracing a title to a chattel real 
 held in trust) there is Httle chance of the will containing 
 a specific bequest of the term which may have been as- 
 sented to by the executor [n) : where, however, a title has 
 to be shown to a beneficial chattel interest, the risk of 
 there having been such a bequest and consent renders it 
 necessary to examine the entire will ; and it is conceived 
 that the purchaser may, in either case, require production 
 of the probate or an office copy. A will thirty years old, 
 produced from the proper custody, proves itself; and the 
 thirty years are to be computed from the date of the will 
 and not of the death (o) . 
 
 {j) 4 Jarm. Conv. by S. 178. 767; see, however, the Netterville 
 
 (Jc) Scriv. on Copyhold, 499 ; Jer- Peerage, 2 Dow. & CI. .342, where 
 
 voise V. Duke of Northumberland, 1 Lord Eldon held, that proof must he 
 
 Jac. & W. 570 : but see Archer v. given of the actual lessor destruction 
 
 Slater, 10 Sim. 624; 11 Sim. 507. of the original. 
 And see, as to the proof of a Will, (m) Cox v. Allingham, Jac. 514. 
 
 the original of which is abroad or has (w) The clause disposing of trust 
 
 been lost, Pullan v. Rawlins, i Beav. estates is generally so worded as to 
 
 142, and notes of cases subjoined; exclude chattels real — besides which 
 
 and Rand v. Macmahon, 12 Sim. the devisees in trust are usually the 
 
 553. executors. 
 
 (/) Fitzioalter Peerage, 10 CI. & (o) Man v. Ricketts, 7 Beav. 93. 
 
 Fin. 952 ; Braye Peerage, 6 CI. & Fin.
 
 15iB 
 
 THE ABSTRACT. 
 
 Chap. VIII. 
 
 In deducing 
 title to 
 chattel in- 
 terests Pro- 
 bate must 
 be seen to 
 liave been 
 granted by 
 proper 
 Court. 
 
 Will need 
 not be 
 proved in 
 equity. 
 
 Documents 
 not part of 
 the title 
 niU!<t some- 
 times be 
 produced as 
 negative 
 evidence. 
 
 In examining the title to a chattel interest, care should 
 be taken to see that probate has been granted by a Court 
 ha\ing jurisdiction : it appears, that where an executor 
 takes out Prerogative Probate, and dies leading an executor 
 who proves in a Diocesan Court, the title of the second 
 executor, as a representative of the original testator, is too 
 doubtful to be forced upon a purchaser [p] . 
 
 Upon a sale by a devisee of a freehold estate, the piu'- 
 chaser cannot (</), except under special cu-cumstances (r), 
 require the will to be proved in equity against the heir-at- 
 law. 
 
 It may sometimes happen that a purchaser can require 
 the production of an instrument although it forms no 
 part of the title, and although he cannot claim an 
 attested copy on completion ; e. g., where property is 
 vested in trustees, in trust to sell, with power to give 
 receipts, and the trusts of the purchase-money are de- 
 clared by a settlement referred to in the conveyance, it is 
 generally considered that a pui'chaser can require the pro- 
 duction of the settlement for the purpose of seeing that 
 it contains nothing inconsistent with the power to give 
 receipts, nor any other matter affecting the title, but that 
 he is not entitled to any attested copy or covenant for pro- 
 duction ; and the fact of his not being entitled to such 
 covenant or copy, negatives, it is conceived, the right of 
 any subsequent pm-chaser to require the production of the 
 settlement [s) : it must, however, be noticed, that in a 
 case of Cooper v. Emery {t), upon a sale by a party claiming 
 under the heir-at-law of a deceased owner who left a will. 
 Sir L. Shadivell, V. C, is reported to have held that the 
 pui'chaser was entitled to inspect the will, but could not 
 
 {p) Williams v. Bland, 2 Coll. 
 575. 
 
 (;•) Grove v. Bastard, 2 Ph. G19. 
 
 (.s) 2 Ha. 260. 
 
 (f) Cited, 1 Hayes, Conv. 57;{.
 
 THE ABSTRACT. 159 
 
 insist upon a covenant for its production ; tlius^ apparently, ^bap. vin. 
 deciding^ that lie was bound to accept a title without the 
 ordinary means of proving its validity on a resale. 
 
 In many cases, however, where the possession has been i^'^prootor 
 consistent ^nth the prima facie title, presumption may ilow fir°*^' 
 supply deficiencies in proof of the existence, or due execu- prcliimp- ^ 
 tion, of material instruments {u) : the principle in the case General 
 of deeds, (and which, in general, seems equally applicable ^^^^' 
 to other instruments operating inter vivos,) being tiiis, viz., 
 that where there has been long enjoyment of any right 
 wliich could have had no lawful origin except by deed, 
 there, in favoiu' of such enjoyment, all necessary deeds may 
 be presumed, if tliere be nothing to negative such presump- 
 tion [v) : for instance, a gi-ant from the Crown of an Ad- ^on*"™'^' 
 vowson (excepted in a former grant midcr general words) firowV.'^"™ 
 has been presumed as against a pm'chaser, after an un- 
 interrupted possession e\ddenced by title deeds for 133 
 years and three presentations' (w) ; so, a reconveyance of vJ'"*^n'*eof 
 the legal estate from trustees has been presumed, the pro- ^^^^^ estate. 
 perty ha^dng for 110 years been dealt M-ith without re- 
 ference to its remaining outstanding, although the enjoy- 
 ment was consistent with the supposition of such being 
 the case (.r) : so, where copyholds were demised to trus- of copyhold 
 
 ^ ' ' ^'' surrender. 
 
 tees, upon trust to pay testatoi*'s debts, funeral expenses, 
 two annuities, and a legacy, and then to convey the pre- 
 mises to T. AY.; and T. W. was admitted in 1771, and a 
 party claiming under him accepted an enfranchisement in 
 1791, the validity of wliich was considered to depend upon 
 
 (m) See Chalmer v. Bradley, 1 cases collected in Read v. Brookman, 
 
 Jac. & W. 63. 3 Durn. & E. 151. 
 
 {v) Lyon v. Reed, 13 Mee. & W. {w) Gibson v. Clark, 1 Jac. & W. 
 
 285, 303 ; approved in Creayh v. 159. 
 
 Blood, 3 J. & L. 133 : and see (.r) Hillary v. Waller, 12 Ves. 
 
 Monck V. Huskisson, 1 Sim. 285 ; 239 ; and see Emery v. Grocock, 6 
 
 yitt. -Gen. V. Fishmongers' Company, Madd. 54; and Noel v. Bewley, 3 
 
 5 Myl. & Cr. see p. 25 ; and see early Sim. 103.
 
 160 THE ABSTRACT. 
 
 Chap, viii. t}ig regularity of T. W.'s admittance,, a prior surrender by 
 the trustees to tlie use of T. W. was presumed as between 
 of^^ayinent vendor and purchaser (y) ; so, payment of a mortgage debt, 
 conveyance. ^^^ ^ reconveyance of the legal estate, have been presumed 
 after an interval of eighty years, the mortgage not being 
 subsequently mentioned in the title deeds, and the mort- 
 gage deeds having for tAventy-five years been in the pos- 
 session of the vendor and his ancestors, during Avhich period 
 no claim, it was alleged, had been made for principal or 
 Ofsurren- interest (^r) : so, after forty years' possession of copyholds 
 ^^^- under a will, a surrender to the use of the Avill was 
 
 Ofenfran- presumed in an early case (a) : so, the enfranchisement of 
 
 chisement. *■ ^ \ j ' ^ 
 
 a copyhold has, after an enjoyment of 160 years, been pre- 
 of mesne sumcd cvcu agaiust the Crown (b) : so, in the general, it 
 
 assignments ° \ / ■> a ' 
 
 of Terms. ^y^ -\qq presumed that mesne assignments of attendant 
 
 terms have been regularly made (c). 
 Of grant of §0, the sTant of an easement will be presumed after 
 
 easement. ' ^ r 
 
 twenty years' enjoyment {6) ; but, to raise such presump- 
 tion, it is necessary to show, not only enjoyment, but that 
 the party to whom the grant is attributed had power to 
 make it (e). 
 
 (y) Wilson V. Allen, 1 Jac. & W. deprived the doctrine of much of its 
 
 614. practical importance : it must, how- 
 
 (z) Cooke V. Soltau, 2 Sim. & St. ever, be remembered, that the Act is 
 
 154 ; but the lapse of 46 years from not of universal application, supra, 
 
 the death of a Testator, and of 39 p. 137 ; and that where it applies, a 
 
 years from the last notice of legacies vendor must still show in whom old 
 
 charged by his Will, has been held terms, supposed to have been de- 
 
 insufficient to warrant a presumption stroyed by the Act, were vested on 
 
 of their payment : see Shields v. the day when it came into operation. 
 
 Rice, 3 Jut. 950. and that they were then attendant on 
 
 (a) Lyford v. Coward, 1 Vern. 195. the inheritance ; so that the doctrine 
 
 {b) Roe V. Ireland, 11 East, 280. above referred to, of presuming the 
 
 (c) Earl V. Barter, 2 W. Bla. existence of mesne assignments, is 
 
 1228. As to presuming the sur- still of practical moment. 
 
 render of satisfied terms for years, {d) See Daru'in v. Upton, cited 3 
 
 see Sug. Appendix, 26 ; and Garr«/Y/ Durn. & E. 159; and later cases 
 
 V, Tuck, 13 Jur. 871, C. P. The cited in 4 Jarm. Conv. 151. 
 
 late Act of 8 & 9 Vict. c. 112, has {e) Darker v. Richardson. 1 B. &
 
 THE ABSTRACT. 161 
 
 So, the formalities of a deed are readily presumed; for Chap, viii. 
 instance, sealing and delivery will be presumed from proof maiitfes'of 
 
 deeds 
 
 of signing, and the whole will (if the deed comes from 
 proper custody) be presumed after 30 years without any 
 proof at all (/) ; or within that time from proof of a de- 
 ceased subscribing witness's hand^vl•iting {g) ; so, in a mo- 
 dern case, the House of Lords held that a parchment NotwUh- 
 
 ' J- standing 
 
 writing, purporting to be the first skin of an Indenture ™"t»iat'<"»' 
 consisting originally of two or more skins, and severed by 
 a sharp instrument, but which came from the proper cus- 
 tody, was properly received in evidence in ejectment ; and 
 that the mutilation of a deed forms an objection rather to 
 the value than to the admissibility of the e^^dence [h) : so, ^y^*^""^ '°^ 
 livery of seisin will be presumed after twenty years' con- 
 sistent possession (?) ; so it will be presumed that persons ^ent of'in- 
 who have executed an award under the general Inclosure commis- 
 Act were regularly appointed and took the necessary 
 oaths (j) ; so, it will be presumed that an instrument, duly ^^^'j^^'^^ 
 executed and which is lost, Avas also duly stamped {k), gt^'ampedf 
 unless the particular circumstances of the case forbid such 
 a conclusion ; as where the instniment has been fraudu- 
 lently destroyed by the party chargeable thereon, and it 
 can be shown to have been unstamped when it came into 
 his possession (/) ; so also that stamps, the amount of 
 which is obhterated, were of the risrht amount (m) : but P^t not of 
 
 ' o \ / ' forms re- 
 
 the Courts will not presume that forms have been com- 2,aw oii*^ 
 
 Aid. 579; as to the statutory title (h) Lord Trimlestoum v. Kemmis, 
 
 which may be acquired under the 9 CI. & Fin. 773, 775. 
 
 recent Acts, and which is independent {i) Rees \. Lloyd, Wight. 123. 
 
 of the title which may be acquired (j) Casamajor v. Strode, 5 Sim. 
 
 under the ordinary doctrine of pre- 87, 98 ; 2 Myl. & K. 708. 
 
 sumption {Welcome v. Upton, 5 Mee. {k) Hart v. Hart, 1 Ha. 1. 
 
 & W. 398; Dewhirst v. Wrigley, 1 {l) Smith v. Henley, 1 Ph. 391 ; 
 
 C. P. Cooper, 329), vide infra. and see Blair v. Ormond, 1 De G. 
 
 (/) As to loss of a seal, vide supra, & S. 428. 
 p. 154. (rw) Doe v. Coombs, 6 Jur. 930, 
 
 {g) Gresley on Ev. 482. Q. B. 
 
 M
 
 1G2 
 
 THE ABSTRACT. 
 
 Chap. VIII. 
 
 grounds of 
 general po- 
 licy. 
 
 General 
 rule of pre- 
 sumption 
 between 
 vendor and 
 purchaser. 
 
 Evidence of 
 matters of 
 fact. 
 
 As to what 
 facts the 
 purchaser 
 can require 
 to be 
 proved. 
 
 plied with, w hich the Legislature, upon grounds of general 
 policy, has made essential to the validity of an instrument; 
 as, for instance, the enrolment under the Statute of Cha- 
 ritable Uses of the conveyance of an estate to trustees for 
 a charity [n) . 
 
 And it seems that, as a general rule between vendor 
 and pirrchaser, the latter must admit, as presumptions, all 
 matters which, in a Court of Law, the Judge would 
 clearly direct the Jmy to presume ; but not matters as to 
 which the Judge would leave it to the Jury to pronounce 
 upon the effect of the e^adence (o) . 
 
 As respects e^'idence upon matters of fact, (other than 
 documentary facts,) it may, it is conceived, be laid down 
 as a general rule, that a purchaser can, in strictness, re- 
 quire e^ddence of all facts material to the title from the 
 date at which its regular deduction commences, whether 
 such facts arc to be used as positive or negative proofs; 
 that is, of all facts whose existence must be either proved 
 or assumed in order to establish affinnatively the vendor's 
 title, e. g., the heirship of a vendor who claims by descent ; 
 and of all facts whose existence must be either proved or 
 assumed in order to establish such title merely by dis- 
 placing the kno^\ai or presumptive title of others ; e. g., the 
 failure, determination, or release, of some prior estate or 
 incumbrance whose existence is either known or may be 
 presumed as between vendor and pui'chaser : so, also, he 
 may require a satisfactory explanation of matters which 
 tend to impeach the validity of the abstracted instru- 
 ments (7;) . 
 
 (n) Doe V. Waterton, 3 Barn. & 
 Aid. 149; Wright v. Smythies, 10 
 East, 409. 
 
 (0) Emery v. Grocock, 6 Madd. 
 54 ; Hillary v. Waller, 1 2 Ves. see 
 p. 270 ; see Baldwin v. Peach, 1 Y. 
 
 & C, Ex. 453, which however was 
 not a case between vendor and pur- 
 chaser. 
 
 (jw) See Hobson v. Bell, .3 Jur. 
 190 : a case of erasures.
 
 THE ABSTRACT. 163 
 
 But, as a general rule, a purchaser carmot compel the Chap^iii. 
 vendor to procure evidence for the purpose of negativing ^tlS 
 mere possibilities, although he may require him to answer, req^^ed it 
 to the best of his knowledge, any relevant question on the veudors 
 subject, and to fin'msh all evidence in his possession or or power, 
 
 '■ but vendor 
 
 power; e.a., where a power has been created, and there "'"stjnie 
 
 ^ "^ ••■ ' can, answer 
 
 is no trace of its subsequent execution, the pm-chaser, questions"'' 
 although he can require the vendor and his solicitors to 
 state whether to theii* knowledge or behef the poMcr was 
 ever exercised, and may, perhaps, compel the vendor to 
 make a statutory declaration upon the point, cannot, it is 
 conceived, call for such a declaration by any other person ; 
 neither can he require the vendor to search for judgments 
 or other incumbrances ; so, neither, wlierc the title com- 
 mences wdth a conveyance by a person who conveys as 
 heir at law, can the pm-chaser require any other evidence 
 of the ancestor's intestacy than such (if any) as is in the 
 vendor's possession [q) ; so, where a vendor is or has been 
 married, the purchaser should inquire whether any settle- 
 ment was executed on his marriage, and, if this were the 
 case, may requii-e to see the settlement if in the vendor's 
 possession or power ; but if the vendor cannot produce it 
 or a copy, the purchaser, it is conceived, must rest con- 
 tent Avith his assurance or statutory declaration that it did 
 not affect the property in question, although, as a matter 
 of prudence, he should, of course, make inquu'ies of the 
 wife's family on the subject : in fact, tlie general rule 
 would seem to be, that, where a prima facie title is shown, 
 the purchaser can require no evidence, not in the vendor's 
 possession or power, tending to negative any matter the 
 existence of which may not be presumed either from the 
 contents or nature of the abstracted documents or by the 
 ordinary rules of laAV or equity. 
 
 (y) Sug. 486. 
 
 M %
 
 164 
 
 THE ABSTRACT, 
 
 Chap. VIII. 
 
 But vendor 
 sliowing a 
 prima facie 
 title need 
 not answer 
 mere gene- 
 ral fishing 
 questions ; 
 
 and need 
 not give ex- 
 planations 
 in respect of 
 an adverse 
 notice which 
 has not been 
 acted on ; 
 
 but has 
 under spe- 
 cial circum- 
 stances been 
 required to 
 prove in 
 equity a 
 will already 
 established 
 by a verdict 
 at law. 
 
 And it seems that^ where a prima facie title is shown, 
 the purchaser cannot require from the vendor a general 
 explanation of circumstances wliich the purchaser may 
 consider to be of a doubtful character, but must confine 
 himself to questions directed to the particular defect which 
 he apprehends ; where, for instance, a tenant for life with 
 power of appointment exercised such power in favour of 
 his eldest child, and the father and child then concur- 
 red in mortgaging the property, (a transaction which is 
 prima facie valid under the authority of M' Queen v. Far- 
 quhar (r) , ) upon a suit for specific performance, and an 
 examination of the vendor upon interrogatories, an inter- 
 rogatory as to the existence of an underhand agreement 
 that the child should join in the mortgage was not 
 excepted to by his counsel, and appears to have been con- 
 sidered unobjectionable by the Court ; but a general inter- 
 rogatory as to " what was his motive or object in making 
 the appointment^' was held to be inadmissible {s) . 
 
 And where an appointment had been made under similar 
 cu'cumstances in favoui* of an eldest child Avho joined with 
 the parents in mortgaging the estate, and upon the mort- 
 gagee attempting a sale one of the younger children gave 
 notice to the piu'chaser not to complete, stating that the 
 appointment was a fraud upon the power, but not alleging 
 any fact in support of this assertion, and did not follow up 
 the notice by any proceeding, it was held, that a good 
 title was shown, and that the notice did not obhge the 
 vendor to render any further explanations {f) . 
 
 Where, however, a will had been executed in favoiu- of 
 {inter alios) the medical man and solicitor of the testator, 
 and the heir at law disputed the will and brought an eject- 
 ment, but a verdict was given for the defendants, it was, 
 nevertheless, held by Lord Cottenham, that a purchaser 
 
 (r) 11 Ves. 467. 
 
 (s) Pearse v. Pearse, 1 De G. & 
 
 S. 12, 16, & 17. 
 
 (i) Green v. Pulsford, 2 Beav. 70.
 
 THE ABSTRACT. 165 
 
 could require the de^'isees to file a bill to establish the will chap, viii. 
 
 against the heir {u) . 
 
 "* It has also been held_, that the purchaser cannot require ^e^g^^°ot 
 
 the vendor to disclose confidential communications made confldemiai 
 
 by him to his solicitors or counsel, or cases laid before tions. 
 
 counsel respecting the property, although the same were 
 
 made and prepared merely on behalf of the vendor, and 
 
 not dm'ing a suit, or during a dispute or after the threat of 
 
 a suit (v). 
 
 Where the title is derived through an heir who took ^„^^f '^,^^.^® 
 possession upon the ground of the assumed invalidity of negatTve ** 
 
 his ancestor's will, which professed to deal with the estate, heirs prima 
 
 . , 1 • jf 1 •^^ • /f<-''C title. 
 
 a purchaser may requn'e the" production oi the will or evi- 
 dence of its contents {w) : so, on a sal^ by a devisee or 
 party claiming under him, the pmxhaser may require the 
 production of any subsequent a^II or codicil, or evidence of 
 its contents (x) : what the rule may be in cases where a 
 will is known to have existed, but there is nothing to 
 indicate that it purported to affect the property in ques- 
 tion, seems to be more doubtful ; the purchaser would, no 
 doubt, be entitled to see cither the original or the best evi- 
 dence of its contents which the vendor had the means of 
 supplying (y) ; but if none such could be procured, and, 
 after making inquiries on the subject, no special grounds 
 for supposing the estate to be afi^ected by the will were 
 found to exist, the purchaser, it is conceived, would be 
 obliged to take the title {z) . 
 
 And it is the universal practice, where a descent has ^^^^^/^j^ 
 occurred within a recent period, to require proof of the poof of 
 Ancestor's intestacy as respects the property offered for '" ^* ^*'^' 
 
 (u) Grove v. Bastard, 12 Jur. (j?) See, and consider, //owarM v. 
 
 385 ; 2 Ph. 619. Smith, 6 Sim. 161. 
 
 (») Pearse v. Pearse, 1 De G. & {y) See Cooper v. Emery, Hayes 
 
 S. 12. on Conv. 573, 3rd ed. 
 
 (w) Stevens v. Guppy, 2 Sim. & {z) See the remarks of V. C. 
 
 St. 439. Wigram, 2 Ha. 260.
 
 16G 
 
 THE ABSTRACT. 
 
 Chap. VIII. 
 
 purchaser 
 cannot 
 require 
 copies of do- 
 cuments 
 produced as 
 neRative 
 evidence. 
 
 Want of 
 proof of ma- 
 terial facts 
 may be 
 supplied by 
 presump- 
 tion. 
 
 Presump- 
 tion of 
 identity 
 of parcels. 
 
 sale, even although no trace of a will appears on the title ; 
 how far this can in strictness be msisted on, (except as 
 respects endence which the vendor may have in his own 
 possession or power,) is perhaps doubtful; the length of 
 time which may be considered sufficient to render such 
 CA-idence unimportant must depend upon the state of the 
 particular title : where an estate has been repeatedly sold 
 or mortgaged, an intenal of thii'ty or forty years is 
 generally considered satisfactory. 
 
 And a purchaser is not entitled to copies of any instru- 
 ments which are produced merely to negative a possibility, 
 and which he could not have compelled the vendor to pro- 
 duce if they had not been in his possession. 
 
 The unsupported statutory declaration of the vendor as 
 to a matter of fact material to the title, and peculiarly 
 within his own knowledge, is not such e\idence thereof 
 as a purchaser is bound to accept («) . 
 
 The Avant of evidence of matters of fact, (other than 
 documentary,) as well as of the existence of documents 
 confernng a title, may, however, be supplied by presump- 
 tion ; and the rule laid down in Emery v, Grocock (b), as 
 to a purchaser being boimd to presume whatever a Judge 
 at Law would cleai'ly direct a jury to presume, applies (it is 
 conceived) generally, although not universally (c), to ques- 
 tions of matters of fact between vendor and purchaser (d). 
 
 Thus, where, in 1801, an allotment under an Inclo.sure 
 Act was made to A. in lieu of four acres of common field 
 land, the Court, in 1847, assumed, in the absence of evi- 
 dence to the contrarj'^, that the four acres formed part of 
 five acres and a half of common land comprised in a deed 
 dated in 1 784 (e) ; but the vendor was held bound to make 
 
 (a) Hobson v. Bell, 2 Beav. 17. 
 {b) Supra, p. 162; 6 Madd. 54. 
 (c) See Sug. 444. 
 (</) See Lapham v. Pike, Rolls, 
 
 1831 ; cited in Atkinson on Market- 
 able Titles, 397. 
 
 (e) Major v. Ward, 5 Ha. 604.
 
 THE ABSTRACT. 167 
 
 inquiries ou the subject^ and to produce tlie best evidence chap. vni. 
 in his po\Aer of the five acres and a half having formed 
 the only commonable land belonging to the allottee (/) . 
 
 So^ also^ where a person, whose name and description o/.i^entity 
 
 ••• -^ ^ ofindivi- 
 
 correspond ^Yiih those of a person previously named in the '^"*^*- 
 title, deals with the property in a manner consistent with 
 the supposition of the two being identical, such identity 
 must, in the absence of any reasonable groimds for 
 suspicion, be assumed by a pm-chaser; this doctrine 
 seems to be supported by a decision in the case of the 
 Braye Barony {g), where it was held sufficient to identify 
 A. [described in the ancient record, as of B.] with a per- 
 son named A. in the pedigree, to sIioav aliunde that the 
 latter held land in B. 
 
 Seisin may be presumed from facts which tend to show of seisin, 
 that the ancestor or testator acted as if he were the owner 
 of the premises; e.g., the production of leases Avhich he 
 has granted, and which have been followed by possession 
 or payment of rent (h), or of a grant of an annuity by a 
 person in possession, and which states that A. B. is the 
 legal owner of the fee [i) ; or the production of receipts for 
 rent given to persons who are proved aliunde, {e. g., by the 
 production of land-tax assessments, entries in parochial 
 rate-books, &c.,) to have been in the occupation of the pre- 
 mises, or by the declarations of such occupiers that they 
 held of the party in question : but mere personal occupa- 
 tion, although sufficient to raise a presumption of title in 
 
 (/) S. C, 12 Jut. 476. As to grants; Duke of Beaufort \. Mayor 
 
 the identity of lands of Ecclesiastical of Swansea, 3 Exch. R. 413. 
 
 and Collegiate Corporations, see 2 & {g) Cited Hub. on Ev. 465. 
 
 3 Will. IV. c. 80 ; of Enfranchised (A) See Clarkson v, TVoodhouse, 5 
 
 copyholds, see 4 & 5 Vict. c. 35, s. Durn. & E. 412 ; White v. Lisle, 4 
 
 21; and of lands charged with tithe Madd. 214; Welcome v. Upton, 6 
 
 commutation rent-charge, see 1 Vict. Mee. & W. 536. 
 
 c. 69, s. 9. Evidence of modern {i) Doe v. Coulthred, 7 Ad. & EL 
 
 usage is admissible upon the ques- 235. 
 tion as to what passed under ancient
 
 1C8 
 
 THE ABSTRACT. 
 
 Chap. VIII. ejectment (/), does not appear to have that effect as 
 between vendor and purchaser [k] . 
 
 Strips of waste lying beside an ancient highway or a 
 river are, together with the soil to the middle of the way 
 or river, presumed to belong to the owner of the adjoining 
 inclosed lands (/) : this presumption however seems to 
 arise only as between such owner and the lord of the 
 manor; and does not apply as between parties deriAdng 
 title through different conveyances from a former owner 
 of both the inclosed and waste land (m) ; and, even as 
 against the Lord of the Manor, the presumption is re- 
 butted by the circumstance of the strip communicating 
 with a common or other large piece of waste (n) ; or by 
 the fact that other adjoining strips, similarly circum- 
 stanced, are held adversely to the lando^Tier (o) . 
 
 And seisin being once proved, or presumed, will be pre- 
 sumed to have continued until the contrary is shown {p). 
 
 Intestacy, also, is a fact which, strictly speaking, does 
 not admit of proof, but is merely matter of presumption ; 
 letters of administration are, in the absence of special cir- 
 cumstances, received by conveyancers as raising a sufficient 
 presumption of intestacy; so, a will or probate of a will 
 not affecting the estate in question nor putting the heir to 
 his election, is received for the like purpose. 
 
 So, also, it will be presumed that persons who have 
 acted in official capacities were duly appointed thereto (q) . 
 Of person So, it is conccivcd, that the statutory presumption that 
 
 Of continu- 
 ance of 
 seisin. 
 
 Qfin testacy. 
 
 Of official 
 appoint- 
 ments. 
 
 (j) Doe V. Pen/old, 8 Car. & P. 
 536. 
 
 (k) See 13 Ves. 122 ; Hub. on Ev. 
 131. 
 
 (/) 1 Jarm. Conv. by S. 79, and 
 cases there cited ; and, in particular, 
 Lord Tenterden's judgment in Steel 
 V. Prickett, 2 Stark. 463. 
 
 (jn) White V. Hill, 6 Q. B. 487. 
 
 (m) Grose v. West, 7 Taunt. 39. 
 
 (o) Doe V. Hampson, 4 C. B. 
 267. 
 
 {p) Cockman v. Farrer, Sir T 
 Jones, 182. 
 
 (g) See, as to Inclosure Commis- 
 sioners, Casamajor v. Strode, 5 Sim. 
 87, 98; 2 Myl. & K. 708; as to 
 Churchwardens, Ganvill v.- Utting, 9 
 Jur. 1081, Ex.
 
 THE ABSTRACT. 169 
 
 tlie person last entitled to land was tlie purchaser, and the ^^^_?:Z.^'^* 
 stock of descent under the late Inheritance Act, would hold h^aving^been 
 good as between vendor and purchaser (r) ; it is observed chaser and 
 
 1 -n /r • 1 stock of 
 
 by Mr. Hubback, in his very valuable and elaborate work descent. 
 upon evidence {s), that the presumption cannot safely be 
 relied on by the conveyancer, because it might, after com- 
 pletion, be shown in litigating the title that such owner 
 did not purchase but inherited the land, and that the 
 vendor, though the heu^ of the immediate, was not the 
 heir of the more remote ancestor ; this, no doubt, is true ; 
 but in every case of presumption there is a like risk of the 
 conclusion being shown to be unfounded : the question is, 
 not whether the purchaser may not require the vendor to 
 make inquuies, and, if possible, procui-e evidence on the 
 subject ; for to this, as in the allotment case (/), he would, 
 no doubt, be entitled (m) ; but whether, if such inquiries 
 prove unavailing, the statutory presumption can be got rid 
 of : the question is one of no very general importance, for 
 it can only arise in cases where the commencement of the 
 title is evidenced merely by possession and acts of owner- 
 ship ; and, even then, if forty years have elapsed since the 
 death, any adverse claim must in all ordinary cases have 
 been barred by the Statute of Limitations. 
 
 Thus also, (to come to matters of pedigree,) it is a ^q^^^^P" 
 general presumption of law that a child born in wedlock, ped^ig^ee- 
 even a day after the marriage {v), is the child of the hus- cyofchud" 
 band; and this, although the parties have separated by wedlock. 
 voluntary agreement (w), and the wife be living in adul- 
 tery {x) : but the presumption does not arise in the case of 
 
 (r) See 3 & 4 Will. IV. c. 106, Margaret, 1 Salk. 123. 
 s. 2. {x) Bury v. Phillpot, 2 Myl. & 
 
 (s) Page 121. K. 349 ; Morris v. Davies, 5 CI. & 
 
 {t) Major V. Ward, 5 Ha. 604 ; F. 163 ; Hargrave v. Hargrave, 9 
 
 supra, p. 166. Beav. 555; The Queen v. The In- 
 
 (m) Sug. 550. habitants of Mansfield, 1 Ad. & E. 
 
 {v) See Co. Litt. 244. a. N. S. 444. 
 
 {w) Parish of St. George v. St.
 
 170 THE ABSTRACT. 
 
 Chap. VIII. a child bom after an interval, exceeding the usual period 
 of gestation, since the date of a divorce a mensd et thoro {y) ; 
 or, it is imagined, since the commencement of the suit in 
 
 "butted. the Ecclesiastical Coui-t ; the ordinary presumption is not 
 to be rebutted by circumstances which create only doubt 
 and suspicion; but it maybe wholly removed by proper 
 and sufficient evidence, showing that the husband was, 1st, 
 incompetent ; 2ndly, entirely absent at the period during 
 which the child must in the course of natm-e have been 
 begotten, or 3rdly, only present imder such circumstances 
 as afford clear and satisfactory proof that there was no 
 sexual intercoui'se {z) ; and it also seems that where the 
 interview between the husband and wife has not been such 
 as to raise an irresistible presumption of the fact of sexual 
 intercoui-se, the subsequent conduct {a) of the parties may 
 be referred to for the pm-pose of estabhshing the fact of 
 non-intercoui'se ; e. g., the circumstance that the wife who 
 was living in adultery concealed the birth of the child, that 
 the husband acted up to his death as if no such child were 
 in existence, and that the adulterer aided in concealing the 
 birth and subsequently reared and educated the child and 
 left it all his property by his will {b) : the old doctrine of 
 quatuor maria has been long exploded (c) . 
 
 (y) Parish of St. George v. St. 282, 383 ; and see 5 CI. & Fin. p. 
 
 Margaret, 1 Salk, 123. 221 ; but see, also, Hargrove v. Har- 
 
 (z) Per Lord Langdale, in Har- grave, 2 Car. & Kir. 701. 
 grave v. Hargrave, 9 Beav. 555. (b) Morris v. Davies, 5 CI. & Fin. 
 His Lordship puts another case, viz., 163 ; Saye and Sele Barony, 1 H. 
 that of " the entire absence of tbe L. C. 507 ; and see Bury v. Philpot, 
 husband, so as to have no intercourse 2 Myl. & K. 349 ; Clarke v. May- 
 ox communication of any kind with nard, 6 Mad. 364. 
 the mother : " but this seems to be (c) See Pendrell v. Pendrell, 2 
 an unnecessary extension of what is Stra. 925 ; and see, on the general 
 above stated as the second propo- subject, Banbury Peerage Case, 1 
 gijion. Sim. & St. 153 ; Morris v. Davies, 
 
 (a) But the evidence and declara- 5 CI. & Fin. 262 ; Hub. on Ev, 
 
 tions of either the wife or husband p. 393 et seq. ; Saye and Sele Ba- 
 
 are inadmissible ; see Hub. on Ev. rony, 1 H. L. C. 507.
 
 THE ABSTRACT. 171 
 
 So, where evidence of marriage cannot be procured, tlie Chap. viii. 
 deficiency may be supplied by presumptions arising either tion of^'' 
 from cohabitation preceded by the usual preliminaries of ** '*^^' 
 marriage, or by the conduct and behaviom' of the parties 
 diu'ing cohabitation and by the general reputation of the 
 fact of marriage ; for instance, in the cases of the Ros- 
 common Earldom and Stafford Barony [d), the execution 
 of marriage articles, and the grant of a Hoyal license to 
 the intended husband to marry his brother's widow, were 
 respectively admitted as raising a presumption that the 
 subsequent cohabitations had been preceded by marriage ; 
 so, in the case of the Saye and Sele Barony (e), the fact of 
 the cohabiting parties having \dsited with families of re- 
 spectability was successfully relied on as raising a pre- 
 sumption of marriage ; so, in Lo7^d Ochiltree's case (/) , 
 the baptism of a child as if legitimate was held to raise a 
 like presumption : but where, as in Scotland, mere consent 
 will constitute marriage, cohabitation, if in the beginning 
 illicit, will continue to bear that character, unless it be 
 clearly changed by the parties {(/) . 
 
 Decisions, on such points, in Peerage claims, are, it may 
 be remarked, of higher authority between vendor and pur- 
 chaser than similar decisions, even by the House of Lords, 
 in adverse claims to property; inasmuch as, the claimant 
 of a Peerage, like a vendor, is required to show not merely 
 a better title relatively to any other, but to show that the 
 title is absolutely and exclusively in himself {h) . 
 
 So, the mere factum of marriage being proved, the Law Presump- 
 
 ' '' 7 . . tionof 
 
 will raise every possible presumption in favour of the exist- death : 
 ence of circumstances essential to its validity (^) . 
 
 {d) Cited in Hub. on Ev. p. 257 ; Hub. on Ev. 249. 
 and see, in ejectment, Doe v. Graze- (g) Lapsley v. Grierson, 1 H. L. 
 
 brook, 4 Ad. & El. N. S, 406. C. 498, 506. 
 
 (e) Cited in Hub. on Ev. p. 247. {h) See Hub. on Ev. 63. 
 
 (/) [A Scotch Peerage case,] (/) Piers v. P?«-s, 2 H. L. C. 331.
 
 172 
 
 THE ABSTRACT. 
 
 Chap. VIII. 
 
 as between 
 vendor and 
 purchaser : 
 
 as between 
 adverse 
 claimants 
 to property. 
 
 As between vendor and purchaser^ no presumption of 
 death arises from the mere fact of a person having been 
 unheard of for seven years {j) ; nor can any precise period 
 be fixed upon which will raise such a presumption; but every 
 case must depend upon its own particular circumstances ; 
 for instance^ in a case Hke that of the President steam 
 vessel, never heard of after setting out to cross an open 
 ocean like the Atlantic, the Courts would probably at the 
 end of seven years presume the death of all parties on 
 board, even as between vendor and purchaser {k) ; while 
 they might hesitate, even after a veiy much longer period, 
 to come to the same conclusion, between vendor and pur- 
 chaser, in the case of a vessel supposed to have been lost 
 in navigating an ocean thickly studded with islands, like 
 the Pacific. 
 
 There have been many decisions upon the above point 
 as between adverse claimants to property ; for instance, 
 the mere absence beyond seas of a mortgagor for thkty 
 years without being heard of, was, in an old case, held suf- 
 ficient to entitle the heir to redeem (/) ; so, as between 
 parties claiming under a will, the death of the legatee has 
 been presumed from absence in America without tidings 
 or reply made to advertisements for twenty-two years {m) ; 
 so, in the recent case of Cuthbert v. Furrier {n), where a 
 fond was set apart to answer an annuity to a native woman 
 in India, of whom nothing had been heard since 1815, 
 Lord Cottenham, in 1837, ordered payment of the pi-incipal 
 to the party entitled subject to the annuity, without re- 
 quiring any security to refund (o) ; so, in Bowleij v. Win- 
 field {p), (an administration suit,) V. C. Shadwell presumed 
 
 {j) Hub. on Ev. 179. 
 
 {k) See Sillick v. Booth, 1 Y 
 C. C. C. 117. 
 
 (/) Masten v. Cookson, 2 Eq. Ca 
 Abr. 414. 
 
 (m) Rust \. Baker, 8 Sim. 443. 
 & {n) 2 Ph. 199. 
 
 (o) 2 Ph. see p. 200. 
 {p) 14 Sim. 277 ; and see Watson 
 V. England, 8 Jur. 1062 ; 14 Sim. 28.
 
 THE ABSTRACT. 173 
 
 the death of a legatee who, when of the age of seventeen, chap viir. 
 had deserted his ship at one of the Sandwich Islands, and 
 had not been heard of for twelve years : and in a modern 
 case his Honour ordered payment out of Court of a sum 
 of money to the administrators of a person who had gone to 
 America and had not been heard of for seven years {q) . 
 
 As respects the time of death, the presumption, in cases f^l^^lf^^ 
 of adverse claims to property, is, that the absent party death!^ 
 died at some time within the first seven years after he was 
 last heard of; but there seems to be no settled rule of 
 presumption as to the particular time at which death 
 occm'red (r) ; this may be presumed fi'om circumstances ; 
 e. g., the fact of the party when last heard of being in a 
 bad state of health, and having arranged to return to his 
 friends in six months [s], or the state of weather suc- 
 ceeding the departure from port of a ship which is never 
 afterwards heard of (/) ; in Dowley v. Winfield [u], the 
 Coiu't, in the absence of any special circumstances, pre- 
 sumed that the legatee, who had left his ship in the spring 
 of 1832, died before the death of the testator, which 
 occurred in September, 1833 ; and the legatee's share was 
 paid over to other parties on their giving security to re- 
 fund : in Cuthbert v. Furrier [v) the Court ordered the 
 entire accumulations of the annuity, from the time when 
 the annuitant was last heard of, to be paid over to the 
 party entitled subject to the annuity, on his giving his 
 bond to refund. 
 
 So, also, on an adverse claim to property, the Court will, yon*as"to' 
 from general circumstances, draw its own conclusions upon Imp!^*''^" 
 
 {q) Dunsmure v. Boulderson, 5 Jur. 117. 
 
 958. Cm) 14 Sim. 277. 
 
 (r) iJoe V. A'lP/jeara, 5 B. & Ad. 86. («) 2 Ph. 199, supra; and see 
 
 (s) Webster v. Birchmore, 13 Ves. Grissall v. Stelfox, 9 Jur. 890, V, C. 
 
 362, K. B. ; Wilcock v. Purchase, 9 Jur, 
 
 (/) SilUck V. Booth, 1 Y. & C. C. C. 891 , V. C. E.
 
 174 
 
 THE ABSTRACT. 
 
 Chap. VIII. 
 
 Kules upon, 
 as between 
 adverse 
 claimants, 
 how far 
 applicable 
 as between 
 vendor and 
 purchaser. 
 
 Presump- 
 tion of 
 failure of 
 ifsue. 
 
 the question of survivorship between parties who are sup- 
 posed to have perished at about the same time (??) . / 
 
 Such presumptions^ however, would not necessarily be 
 made as been vendor and purchaser {tlv) ; and the above cases 
 must be considered as guides, rather than as authorities, 
 for the conveyancer ; in the case of Doivley v. Winfield, in 
 particular, the presumption, not only of the time but even 
 of the fact of death, (admitting its propriety for the pur- 
 pose of enabling the Court to distribute testamentary 
 assets,) would e^idently be of an extreme character if 
 made upon a question of title ; the mere fact of a young 
 sailor, who deserted his ship in the Sandmch Islands, not 
 being heard of for twelve years, can scarcely, as a matter 
 of common sense, be considered to raise a stronger pre- 
 sumption of his death, than would the lapse of an equal 
 interval of time in the case of any other person of the 
 same age respecting whose existence no inquiry whatever 
 had been made : in such cases the Court may be supposed 
 to be (perhaps insensibly) influenced not only by a sup- 
 position that the party may be dead, but by the feeling 
 that, if alive, he will probably never return to claim the 
 property : it has, moreover, been obser^' ed in a recent case, 
 by the same learned Judge who decided Dowley v. Win- 
 field, that the old presumption of death from absence, 
 is, owing to the increased facilities of travelling, becoming 
 daily more untenable {x) . 
 
 Failure of issue is a negative fact of which no evidence, 
 strictly speaking, is capable of being given ; all that can 
 be done is to prove facts which raise a presumption of the 
 want of issue; this proof, according to IMr. Hubback [y), 
 
 (») SilKck V. Booth, 1 Y. & C. C. C. 
 121 ; see Lapsley v. Grierson, 1 H. L. 
 C. 498 ; see, with reference to the 
 question in the well-known case of 
 General Sfanwix, (Fearne's Posthu- 
 mous Works,) Sattertkivaite \. Powell, 
 
 1 Curt. 705. 
 
 {w) See Sug. 444. 
 
 {■v) See Watson v. England, 14 
 Sim. 28 ; see Hemming v. Spiers, 15 
 Sim. 550. 
 
 (y) P. 203.
 
 THE ABSTRACT. 175 
 
 may consist "either of the testimonj of living witnesses Chap- viii. ^ 
 having the means of knowledge {z), the declarations of ^ 
 
 deceased relatives^ or family reputation otherwise establish- 
 ed/' and which appears to extend to indirect or circum- 
 stantial declarations {a), and^ (in conveyancing practice,,) 
 to include declarations or affidavits by persons acquainted \ 
 with although not actually members of the family {b) ; "or ^ 
 of facts or circumstances irreconcileable with or opposed 
 to the hypothesis that there are any legitimate descendants 
 of the supposed ancestor;" such as facts which tend to 
 show the celibacy of the party (c)^ the non-mention of issue 
 in wills {d) and other documents in which issue, if existing, 
 would naturally be noticed, and the devolution of dignities 
 or property upon the assumption of the want of issue. 
 
 Many cases have occurred in which the Cornet of Chan- Presump- 
 
 '' tion against 
 
 eery has paid out of Com't money the title to which ^l^iyj"™,!;'*^ 
 depended upon the presumption that females of advanced ^^^^ '^*"®- 
 age were incapable of having issue [e) ; fifty-five appears 
 to have been the earliest age at which such a presumption" 
 has been acted on, the female being unmarried, and the 
 parties receiving the money being required to enter into 
 their recognizances to refund in the event of her marrying 
 and having issue : in a late case (/), where the woman was 
 fifty-eight and unmarried, the V. C. Shadwell ordered pay- 
 ment without requiring any I'ecognizance ; we are not 
 aware of any reported case in which a title dependent on 
 
 (z) As to which see the late case {d) Hungate v. Gaseoyne, 2 Ph. 
 
 of Hemming v. Spiers, 15 Sim. 550 (a 25. 
 
 case between vendor and purchaser) ; (e) See Leng v. Hodges, Jac. 585 ; 
 
 and the cases upon Peerage Claims Brotcn v. Pringle, 4 Ha. 124, and 
 
 cited Hub. on Ev. p. 204. earlier cases there cited : see the 
 
 (o) See cases on Peerage Claims, judgment in Brandon v. Woodthorpe, 
 
 cited Hub. on Ev. p. 205. 10 Beav. 463, where the practice 
 
 (6) Ibid. 230. was admitted, although from other 
 
 (c) See Hemming v. Spiers, 15 circumstances payment was refused. 
 
 Sim. 550. (/) Miles v. Knight, 12 Jur. 666.
 
 176 
 
 THE ABSTRACT. 
 
 Chap. VIII. 
 
 Births 
 marriages, 
 and deaths ; 
 proved by 
 extracts 
 from paro- 
 ohial and 
 General 
 Registers. 
 
 such a presumption has been forced upon a purchaser, 
 although, upon general principles, it seems that such a 
 course would, if necessary, be adopted ; it being a moral, 
 and not a mathematical certainty, of a good title, which a 
 purchaser can require from a vendor [g) : the Courts do 
 not appear to have ever acted upon a similar presumption 
 in the case of a male, and there are obvious reasons why 
 the doctrine shoiUd not be so extended. 
 
 The ordinary evidence of the facts of birth, mari'iage, 
 and death (A), consists of certified extracts from the Paro- 
 chial Registers, or from the general Register, established 
 by the 6 & 7 Will. IV. c. 86, and amended by the 1 Vict. 
 c. 22 : and by declarations as to the identity of the parties ; 
 the Parochial Registers are not, as a general rule, evidence 
 of the time or order of birth [i), although they may go far 
 to enable the practitioner to form an opinion upon these 
 points; nor do they seem to be evidence of the time of 
 death, except so far as by showing that it must have occurred 
 before the date of the bm'ial, of which they seem to be 
 evidence {j) ; and they are evidence of the time as well as 
 of the fact of marriage [k) . Under the 6 & 7 Will. IV. 
 c. 86, the birth or death, and not the baptism or bm-ial, is 
 the subject of registration; the date forms part of the 
 entry required by the Act, and certified copies of the 
 entries are to be received as evidence of the birth, death, 
 or marriage, to wliich the same relate (/) : it may, however, 
 be doubted whether a purchaser could be compelled to 
 accept a certificate of death as evidence of the fact, unless 
 some sufficient reason were given for the non-production 
 of the certificate of burial (m) : extracts from non-parochial 
 
 {g) 2 Atk. 19 ; see 12 Ves. 252. 
 
 (Ji) As to recital of death of cestui 
 que vie in renewed Ecclesiastical Lease 
 being evidence, vide supra, 154. 
 
 (0 See 1 Moo. & Rob. 389. 
 
 U) Hub. on Ev. 184. 
 (k) Doe V. Barnes, 1 Moo. & Rob. 
 386. 
 
 (0 Sect. 38. 
 
 {ni) See AH, -Gen. v. Culverivell,
 
 THE ABSTRACT. 177 
 
 registers liave long been received by conveyancers as evi- chap. viii. 
 dence ; and by the 3 & 4 Vict. c. 92, the non-parochial 
 registers deposited under the provisions of that Act {n), 
 and certified extracts therefrom [o), are made e\ddence in 
 the Courts of Law and Equity. 
 
 In the absence of evidence of the above description, Howother- 
 
 ■I. •' wise proved, 
 
 resort is necessarily had to evidence of a less formal rationt&c; 
 character; such as declarations by members of the fa- / 
 
 mily {j}), whether such declarations be made expressly X 
 
 for the purpose of evidence, or consist of recitals in deeds ' 
 
 or wills, statements in pleadings in Chancery, &c. Such 
 evidence is inadmissible in Com't during the lifetime of the 
 parties ; but, in conveyancing, statutory declarations form 
 the only available means of preserving the testimony of 
 living witnesses, and, after their deaths, become admissible 
 in Court ; and where such declaration by relations cannot 
 be procured, conveyancers act upon similar declarations 
 made by strangers who have been acquainted with the 
 family, although such declarations are inadmissible in 
 Court [q), unless made contraiy to the proprietory or 
 pecuniary (/•) interest of the declarant : so, statements of books'i" 
 pedigree contained in letters, or entries in books, whether 
 
 R. cited in Hub. on Ev. 769 ; and {n) For a list of which see Hub. 
 
 Leach v. Leach, V. C. K. B., 8 Jur. on Ev. p. 772. 
 
 211 ; but see Parkinson v. Francis, (o) See sects. 11 and 13. 
 
 15 Sim. 160. In Tomlins V.Tom litis, (p) See the remarks of Lord Lang. 
 
 3 Jur. 167, the V. C. of England dale, upon the value to be attributed 
 
 decided that the Certificate of a Bis- to traditionary evidence in Pedigree 
 
 trict Registrar is not evidence under cases, in Johns/on v. Todd, 5 Beav. 
 
 the Act : in the later case of Trail v. 597. 
 
 Kibblewhite, 10 Jur. 107, the same (q) /oA»wom v. Zawsow, 2 Bing. 86 ; 
 
 learned Judge is stated to have acted Crease v. Barrett, 1 Cr. M. & R. 928 ; 
 
 upon such a certificate; but his at- Casey v. O'Shaunessy, 7 Jur. 1140, 
 
 tention does not seem to have been P. C. 
 
 directed to the distinction between a (r) See Sussex Peerage case, 1 1 
 
 District Registrar's, and the Regis- CI. & Fin. 85, 112; Lloyd v. Wait, 
 
 trar General's certificate. 1 Ph. 61. 
 
 N
 
 178 THE ABSTRACT. 
 
 Chap. VIII. religious or otherwise {s), are admissible in Courts if the 
 handwriting be proved to be that of a deceased member of 
 
 gree^*^*^' ^^^ family {t) : so also^ old statements of pedigree are held 
 admissible^ on account of then' pubhc exposm-e to and re- 
 cognition by the family, even although they cannot be 
 distinctly attributed to any particular member of it : e. g., 
 
 inscriptions, monumental inscriptions i^u), a mm'al inscription in the 
 Parish Church iv), coffin plates {iv), inscriptions upon the 
 walls of the mansion house {x), pedigrees hung up in the 
 mansion {y), or preserved in the family hbrary {z), entries 
 in a family BiblCj or, it would appear, in any other book 
 which had been treated by the family as being in the 
 natm'e of a family registev («) ; so, also, a pedigree pre- 
 sented by a third person to a member of the family, and 
 recognised by him, is admissible in proof of the relation- 
 ship of persons therein described as living, and who might 
 be presumed to be personally known to him, even although 
 the general pedigree be inadmissible by reason of its pur- 
 porting to be collected from registers, wills, &c., and 
 history {b) : but a case for the opinion of counsel seems to 
 be inadmissible, as being generally drawn by the soKcitor 
 and not by the party himself, and being often framed with 
 
 (s) See Herbert v. Tuckal, Sir T. (w) Hub. on Ev. 693. 
 
 Raym. 84 ; Berkeley Peerage case, {x) Camoys Barony, 6 CI. & Fin. 
 
 4 Camp. 418 ; Slane Peerage case, 801. 
 
 5 CI. & Fin. 24 ; Tracy Peerage, 10 (y) See 1 Myl. & Cr. 356. 
 
 CI. & Fin. 154. {z) Camoys Barony, 6 CI. & Fin. 
 
 {t) As to proof of which, see The 802 ; and see Davies v. Lowndes, 7 
 
 Fitzwalter Peerage, 10 CI. & Fin. Sco. N. R, 141. 
 193 ; Tracy Peerage, 10 CI. & Fin. (a) See 2 Russ. & Myl. 162 
 
 154. Hood V. Beauchamp, 8 Sim. 26 
 
 (m) See Peerage Cases, cited Hub. Slane Peerage case, 5 CI. & Fin. 24 
 
 on Ev. 688 ; and see 10 CI. & Fin. Berkeley Peerage case, 4 Camp. 418 
 154. {b) Davies v. Lowndes, 7 Sco 
 
 (») Slaney v. Wade, 1 Myl. & Cr. N. R. 141, 214. 
 338. 
 
 I
 
 THE ABSTRACT. 179 
 
 a Adew to drive tlie opposite party to a reference^ or for chap. viir. 
 otlier purposes [c] . 
 
 And it seems probable that such e\idence is admissible whether 
 
 ■■■ admissible 
 
 to prove not only the facts of birth, marriage, and death, j.oulte'ra'i^ 
 
 but also such collateral inatters, e. g., the local derivation '"^"^'■*- 
 of the family, as tend to show the identity of the parties [d) . 
 
 All such e\-idence is ffenerally inadmissible if made Suchdecia- 
 
 o J rations must 
 
 dm-ing existing (e), or with a view to anticipated (/) litiga- "^"te tvfw 
 tion or controversy involving the point in question; it extmtoT 
 seems, however, that the mere fact of the declarant having 
 a distinct object in view in making his declaration, e.g., the 
 prevention of disputes in a family, will not render the de- 
 claration inadmissible, although such object can only be 
 gained by using the declaration in e^ddence [g) : and, in a 
 peerage case cited by INIr. Hubback [h], a pedigree trans- 
 mitted by a father to his son Avith a ^aew to induce him to 
 make a claim to the peerage, which, however, never was 
 made, was held admissible as evidence in favour of a party 
 claiming through an elder branch of the family. 
 
 Whether the mere existence of that state of facts which 
 may lead to a controversy is a lis mota within the above 
 rule, is doubtful (i) : the modern authorities seem to be 
 opposed to such a doctrine; it was held in Slaney v. 
 Wade [j] that a copy of an ancient miu'al inscription was 
 not rendered inadmissible in CAidence by reason of its 
 having been made at the time when it was known that, on 
 
 (c) Slane Peerage, 5 CI. & Fin. 40. Slaney v. Wade, 1 Myl. & Cr. 338. 
 
 {d) See Shields v. Boucher, 1 De {h) Airth Earldom, Hub. on Ev. 
 
 G. & S. 40, and cases there cited ; 668. 
 
 and Doe v. Davies, 11 Jur. 607, 10 (/) See Davies v. Lowndes, 7 Sco. 
 
 Q. B. 314 ; Lloyd v. Wait, 1 Ph. 61. N. R. 198, 214 ; and Walker v. Earl 
 
 (e) 6 Ir. Eq. R. 348 ; see Taylor Beauchamp, and other cases there 
 
 on Ev. 412. referred to ; Slaney v. Wade, 1 Myl. 
 
 (/) Slane Peerage, 5 CI. & Fin. & Cr. 338 ; Monckton v. Alt. -Gen. 
 
 23. 2 Russ. & Myl. 147 ; Reilly v. Fitz- 
 
 {g) See 2 Russ. & Myl. 164 ; gerald, 6 Ir. Eq. R. 335. 
 Berkeley Peerage Case, 4 Camp. 418; {j) 1 Myl. & Cr. 338. 
 
 N 2
 
 180 
 
 THE ABSTRACT. 
 
 Chap. VIII. 
 
 Declaration 
 by party in 
 the lilce 
 interest 
 admissible. 
 
 Recitals, 
 when evi- 
 dence of 
 pedigree. 
 
 Land tax — 
 redemption 
 of, how 
 proved. 
 
 the death of a tenant for life of the family estates^ questions 
 would possibly arise as to who was entitled under a limita- 
 tion in a will to the testator's right heirs. 
 
 And a declaration is not rendered inadmissible in evi- 
 dence by reason of the declarant, and the party relying on 
 his declaration, having been in the same situation with 
 respect to the matter in question (k) . 
 
 And, as against third parties, recitals in a deed are not 
 evidence unless the deed was executed by some disin- 
 terested member of the family (Z) : in a case where a con- 
 veyance by parties claiming as heiresses of the bodies of 
 two female joint-tenants in tail recited their pedigree, this 
 recital of their title by the then vendors was held to be no 
 e\idence against a subsequent purchaser, although the 
 deed was thirty years old; there being nothing to show 
 that the previous possession had been consistent with the 
 pedigree (???) : but, in an ejectment case, where a person 
 entitled in remainder joined with the tenant for life (who 
 was her relation), in selHng the property, and the con- 
 veyance recited that she was the daughter of J. D., and 
 the conveyance was executed by the tenant for life, the 
 recital Avas held by the Court of Queen's Bench to be 
 evidence of the fact, " no dispute having existed, and the 
 parties having done that which they had a right to do if 
 members of the family" {n) . 
 
 Land tax, if not noticed in the agreement, is presumed 
 to be a charge on the property : if stated to be redeemed, 
 its redemption must be shown by the certificate of the 
 Commissioners, the receipt of the Cashier of the Bank of 
 England, and memorandum of registration (o) . 
 
 (k) Monckton v. Att.- Gen. 2 Russ. 
 & Mj'l. 157; Doed.Tilmanv. Tarver, 
 1 Ry. & Mo. 141 ; Doe v. Davies, 11 
 Juv. 607; 10 Q. B. 314. 
 
 (/) Slaney v. Wade, 1 Myl. & Cr. 
 338 ; but see the judgment of the 
 
 V. C. contra, 7 Sim. 614. 
 
 (m) Fortv. Clarke, 1 Russ. 601. 
 
 (n) Doe V. Davies, 11 Jur. 607 ; 
 10 Q. B. 314. 
 
 (o) See 42 Geo. III. c. 116, s. 38. 
 As to the right of a remainderman to
 
 THE ABSTRACT. 181 
 
 Titlie_, also, is a burden the existence of whicli is pre- ^hap. viii. 
 sumed in the absence of agreement : the Law upon the '^"'^^^• 
 subject is rapidly becoming less important under the pro- 
 visions of the Tithe Commutation Act {p) : the Commis- ^olT^f"*^" 
 sioners acting mider which have power, in making their l^tf^""*^ 
 award {g), to decide aU questions as to the existence of 
 any modus, or composition real or prescriptive, or cus- 
 tomary payment, or any claim of exemption from or non- 
 HabiHty to payment of tithes (r) ; and their decision, SmSon- 
 unless reversed on an appeal brought within three ca- siveTno"* 
 lendar months after its being notified in writing to the ^^^^^^^' 
 parties interested, or theii- agents {s), is binding and con- 
 chisive ; and no further time will be allowed by reason of 
 the benefice becoming vacant, after the commencement, 
 but before the expiration of the three months {t) ; there are 
 exceptions of tithes of fish and fishing, and of mineral 
 tithes, of payments instead of tithes in the City of London, 
 and of permanent rent charges payable in any City or 
 Town by custom or any local Act of Parhament (w) ; but, 
 with these exceptions, all questions as to the existence or 
 amount of liabilities of this description will eventually 
 depend, and do abeady as respects a great part of the 
 country depend, upon the Commissioners' award {v) for the 
 particular district. 
 
 pay off the representatives of a tenant (q) And which, if purporting to be 
 
 for life who redeemed the land tax out sealed with the seal of the Commis- 
 
 of his own money, see Cousens v. sioners, is made evidence by s. 2 of 
 
 Harris, 12 Jur. 835. As to merger 6 & 7 Will. IV. c. 71. 
 of redeemed land tax, see Blundell v. (r) 6 & 7 Will. IV. c. 71, s. 45 ; 
 
 Stanley, 13 Jur. 998. and see 5 & 6 Vict. c. 54, s. 10. 
 
 {]}) 6 & 7 Will. IV. c. 71 ; and see (s) Sect. 46. 
 
 supplementary Acts, 7 Will. IV, & {t) Homfray v. Scroope, 13 Jur. 
 
 1 Vict. c. 69 ; 1 & 2 Vict. c. 64 ; 2 623. 
 & 3 Vict. c. 62 ; 3 & 4 Vict. c. 15 ; (m) Sect. 90. 
 
 5 Vict. c. 7 ; 5 & 6 Vict, c, 54 ; 9 (z>) 6 & 7 Will. IV. c. 71, ss. 52 
 
 6 10 Vict. c. 73 ; 10 & 11 Vict. c. and 66; and see 2 & 3 Vict. c. 62, 
 104. s. 8.
 
 182 
 
 THE ABSTRACT. 
 
 Chap. Vlir. 
 
 Composi- 
 tion, modus, 
 or exemp- 
 tion, liow 
 proved. 
 
 Proof of, 
 how far 
 facilitated 
 by 2 &3 
 Will. IV. c. 
 100. 
 
 As respects tliose localities in wliich tlie tithe has not 
 yet been commuted^ it may be sufficient to state shortly^ 
 that a composition real can be established only by direct 
 or presumptive proof of its creation by deed before the 13 
 Ehz. {iv) ; and that^ before the passing of the 2 & 3 Will. 
 IV. c. lOOj a modus could be estabhshed only by similar 
 proof of its constant pajonent from the time of legal me- 
 mory [x) ; and that^ to prove an exemption from tithe, it 
 was necessary to show that the land had belonged to one 
 of the greater monasteries, and was held by such monas- 
 tery discharged from tithe at the time of its dissolution {y) . 
 By the 2 & 3 WiU. IV. c. 100 {z), a modus («) or exemption 
 may be absolutely established as against the Crown or 
 Duchy of Cornwall, or any lay person (not being a corpo- 
 ration sole), or any corporation aggregate, whether spiritual 
 or temporal, by proof of payment of the modus, or enjoy- 
 ment of the land free from tithe, during 60 years next 
 before the time of the demand, and as against any corpo- 
 ration sole, by proof of such payment or enjoyment diu'ing 
 two successive incumbencies, (or sixty years, whichever 
 shall be the longer period,) and three years after the ap- 
 pointment and institution or induction of a third incum- 
 bent (b) ; but the act does not extend to cases where the 
 modus or enjoyment can be referred to an agreement in 
 writing; and in cases where, at the date of the Act, the 
 
 («') See Estcourt v. Kingscote, 4 
 Madd. 140 ; Dent v. Rob, 1 Y. & C. 
 Ex. 1. 
 
 {x) See 1 Mac. & G. 2G1. 
 
 (y) 1 Hare, 203 ; and see 1 Mac. 
 & G. 261 ; and Barnes \. Stuart, 1 
 Y. & C. Ex. 119. 
 
 {z) Amended by 4 & 5 Will. IV. 
 c. 83. 
 
 (a) A custom for the Lord of a 
 Manor to receive a tenth of all tithe- 
 able matters in the manor, and to 
 pay a yearly sum to the rector in lieu 
 
 of tithe, is not within the Statute ; 
 see Knight v. Marquis of IVaterford, 
 15 Mee. & W. 419 ; see 11 CI. & 
 F, 653. 
 
 (l) Sect. 1 ; see, as to evidence 
 under this section, Stamford {Earl of) 
 V. Dunbar, 9 Jur. 165 ; the shorter 
 period of thirty years allowed by the 
 Act, during which there is only a 
 prima facie and not an absolute 
 claim, does not appear to be material 
 as between vendor and purchaser ; 
 see s. 6 of Act.
 
 THE ABSTRACT. 183 
 
 tithes were in lease by deed^ or subject to a temporary Chap, viii. 
 composition in writing, a period of three years is allowed 
 to the tithe owner after the determination of the term of 
 demise or composition (c) ; and the time during which the 
 lands are held by the tithe owner are excluded from the 
 period of computation {d) . It has, after opposite judicial de- 
 cisions (e), been recently decided by Lord Cottenham, Q., in 
 conformity with the opinions of eight of the twelve Judges, 
 that in order to bring land within the operation of the above 
 Act for the piu'pose of claiming an exemption from tithe, it 
 is not necessary to prove its original capacity for exemp- 
 tion, by showing that it belonged to one of the greater 
 monasteries (/) : the Act, it may be observed, does not 
 prevent a party from pleading a modus from time imme- 
 morial and pro\ing it by the same evidence as he might 
 have done before the statute [g). 
 
 The 3 & 4 Will. IV. c. 27, s. 2, which enacts that no 
 person shall bring an action to recover any land, (which '''^*^®^\^^"' 
 by section 1 includes tithes, unless belonging to a spiritual £j^^a«ons. 
 or eleemosjmary corporation sole,) but witliin twenty years 
 next after the right accrued, has been held by the Com't of 
 Exchequer not to prevent the tithe owner from recovering 
 tithes as chattels from the occupier, although none have 
 been set out for twenty years ; but to be confined to cases 
 where there are two parties claiming adverse estates in 
 the tithes (A). 
 
 Defects in the early title, or in the evidence thereof, are Defects in 
 
 -^ title, when 
 
 occasionally rendered immaterial by the 2 & 3 Wul. IV. c. supplied by 
 
 '' '' Prescription 
 
 71, and 3 & 4 Will. IV. c. 74. ^^^^^^, 
 
 Limitations. 
 
 (c) Sect. 4. {g) Stamford {Earl of) v.BuniaVf 
 
 {d) Sect 5. 9 Jur. 165. 
 
 (e) See Salkeld v. Johnston, 1 Ha. (h) Dean and Chajjter of Ely v. 
 
 196; S. C, 2 C. B. 749 ; and Fel- Cash, 15 Mee. & W. 617 ; but see 
 
 lows V. Clay, 4 Q. B. 313. Dean and Chapter of Ely v. Bliss, 5 
 
 (/) Salkeld v. Johnston, 1 Mac. & Beav. 574. 
 G. 242.
 
 184 THE ABSTRACT, 
 
 Chap. VIII. Under tlie former (commonly known as Lord Ten- 
 
 Prelcrrptfon tcrden's) Act, a claim to light becomes absolute and 
 
 Act to g t. |j^(jgfgj^gji3Jg Q^^Qj. twenty years^ uninterrupted enjoyment^, 
 
 unless sucb enjoyment be shown to have been by virtue of 
 
 some consent or agreement expressly made or given for 
 
 tliat purpose by deed or writing ; and local customs to the 
 
 contrary are expressly rendered inoperative (i) . 
 
 To rights of Claims of right of way^ water^ watercourse {j), or any 
 
 way and "^tini •/</■• i-i 
 
 other ease- other eascmeut, (except ught.) become prima facie valid 
 
 inents ex- ^ \ x a / 
 
 cept light, ^f^gj, twenty years' uninterrupted enjoyment^ and cannot 
 be defeated by mere proof of such enjoyment having com- 
 menced at any prior period ; but^ imtil forty years' unin- 
 terrupted enjoATnent, they remain liable to be defeated in 
 any other way in which they might have been defeated 
 before the passmg of the Act ; e. g., " by proof of a grant, 
 or of a licence, written or parol, for a limited period, com- 
 prising the whole or part of the twenty years, or of the 
 absence or ignorance of the parties interested in opposing 
 the claim, and their agents dmnng the whole time that it 
 was exercised" [k) : after forty years' uninterrupted enjoy- 
 ment they become absolute and indefeasible, unless proof 
 be given of such enjojTnent having' been under some con- 
 sent or agreement expressly given or made for that purpose 
 by deed or writing (/) ; after the end of the twenty years, 
 and before the end of the forty, a grant may still be pre- 
 
 {i) Sailers' Company v. Jay, 3 Ad. natural watercourses, see Lamb v. 
 
 & E., N. S. 109. Newliygin, 1 Car. & K. 549 ; the 
 
 {J) The same law seems to be ge- presumption is, that each riparian 
 
 nerally applicable to natural and arti- proprietor has a right to fish the 
 
 ficial watercourses ; Mayor v. Chad- stream in front of his own land : 
 
 wick, 3 Per, & Dav. 367 ; 11 Ad. & see, on the general subject, the au- 
 
 E. 571 ; unless the latter be made thorities cited in the judgment in 
 
 for particular and temporary pur- Wood v. Waud, ubi supra. 
 
 poses : see, as to mining adits, Ark- {k) Per Parke, B., 1 C. M. & R. 
 
 wrlyht V. Gell, 5 Mee. & W. 203; 219. 
 
 and see also Wood v. Waud, 3 Exch. (/) Sect. 2. 
 R. 748 ; as to rights of fishing in
 
 THE ABSTRACT. 185 
 
 sumed by a jury {m), notwithstanding that the enjoyment Chap, viii. 
 is shown to have originated in an agreement by parol or 
 writing not under seal (») . 
 
 Claims of rights of common and other profits a prendre (o) , To rights of 
 
 ■^ -' ^ ^ •' common, *;c. 
 
 become prima facie vahd after thirty years' uninterrupted 
 enjoyment, and cannot be defeated by mere proof of such 
 enjoyment having commenced at any prior period; but, 
 until sixty years' uninterrupted enjoyment, they remain 
 liable to be defeated in any other way in which they might 
 have been defeated before the passing of the Act (p) ; after 
 sixty years' uninterrupted enjoyment they become absolute 
 and indefeasible, unless proof be given of such enjoyment 
 ha\dng been under some consent or agreement expressly 
 made or given for that pm-pose by deed or writing (q) . 
 
 From what has been previously said, it would appear Period for 
 that the period for which a vendor, in order to show a title session must 
 
 be proved 
 
 under the Act, must prove uninterrupted enjoyment, is as j," titie''"*'^ 
 follows : %dz., twenty years in the case of lights ; forty 
 years in the case of ways, waters, watercourses, and other 
 easements (except hghts) ; and sixty years in the case of 
 rights of common and other profits a prendre : but, in the 
 second class of cases, where the land or water which is 
 sought to be affected by the easement has, during the 
 period of enjoyment, been held for life, or for any term 
 
 (m) See 1 C. M. & R. 222. tion ; but an exclusive right to any 
 (?«) Dewhurst v. Wrigley, 1 C. P. particular stratum of mineral is a 
 Coop. 329. right to land, and must so be claimed, 
 (o) Liberty for grantee, his heirs whether the mine be open or un- 
 and assigns with servants or other- opened {Wilkinson v. Proud, 11 M, 
 wise, to enter upon lands, and there & W. 33). Whether the right to 
 to hawk, hunt, fish, and fowl, held to the sole and several herbage and pas- 
 be such; {Wickham v. Hawker, 7 turage of land is within the Act seems 
 M. & W. 63 ;) and see authorities doubtful ; see Welcome v. Upton, 5 
 there cited. A right to dig coal, or M. & W. 398, 403. 
 other minerals {Paddock v. Forrester, {p) Supra, n. {k). 
 3 Man. & Gr. 903) on another man's (g) Sect. 1. See Welcome v. in- 
 land, may be claimed by prescrip- ton, 5 M. & W. 398.
 
 186 
 
 THE ABSTRACT. 
 
 Chap. VIII. exceeding three years^ the reversioner, notwithstanding the 
 expiration of the forty years, has a period of three years 
 from the determination of the particular estate in which to 
 resist the claim (r) ; so that unless, (as can seldom he the 
 case,) the vendor can show the title to the land or water, 
 he cannot, hy CAddence of enjojinent, make a good title to 
 the easement (s) ; and enjoyment which gives no title as 
 against the reversioner, gives no title as against the owner 
 of the particular estate [t) . As respects the easement of 
 light, however, the case seems to be different ; there beiag 
 no similar reservation in the statute of the rights of rever- 
 sioners. 
 
 In all the above cases, (except that of a claim to light,) the 
 enjoyment must have been uninterrupted [u], " as of right," 
 and must have been subsisting withm, at most, a year 
 before the commencement of the action ia which it is 
 rehed on {v) : the claim, therefore, may be defeated by 
 shomng that, for the whole or a part of a period rehed on, 
 the enjoyment was by parol Hcence, or Avas exercised by 
 stealth or without the knowledge of the parties interested 
 in opposing the claim (w), or that the party exercising it 
 was himself, during fill or any part of such period, entitled 
 to the possession of the property sought to be affected (.r) : 
 and in cases falling under sections 1, 4, and 7 of the Act, 
 
 Enjoyment 
 must have 
 been unin- 
 terrupted 
 and as of 
 right. 
 
 (r) Sect. 8. 
 
 (s) See BHffht v. Walker, 1 C. M. 
 & R. 219. 
 
 it) S. C. ; and note, that as respects 
 the prima facie title which is gained 
 by a thirty or twenty years' posses- 
 sion, under sects. 1 and 2 of the Act, 
 the time during which there may have 
 been any disability, or a subsisting 
 life estate, is altogether excluded by 
 sect. 7. 
 
 (u) Onlcy V. Gardiner, 4 M. & 
 W. 500. 
 
 {v) See Parker v. Mitchell, 11 A. 
 
 & E. 788 ; and Flight v. Thomas, 8 
 CI. & Fin. 231, 
 
 (w) See Bright v. Walker, 2 C. 
 M. & R. 219 ; Tickle v. Brmm, 4 
 Ad. & E. 369 ; Partridge v. Scott, 3 
 M. & W. 220. 
 
 (x) Onley v. Gardiner, 4 M. & W. 
 500 ; Clayton v. Corby, 2 Ad. & E. 
 N. S. 813; Clay v. Shackeray, 2 Moo. 
 & R. 244. As to the non-extinguish- 
 ment of a necessary easement by unity 
 of seisin, see Pheysey v. Vicary, 1 6 M. 
 & W. 484.
 
 THE ABSTRACT. 187 
 
 an enjoyment^ as of riglit^ may be proved, by showing Chap, viii. 
 enjoyment for several periods, amormting together to the 
 statutory time ; and that diu'ing the entire intervals 
 between such periods, and between the last of them and 
 the action, (if such interval intervened,) the estate sought 
 to be aJ0Pected was in the hands of a tenant for life or for 
 years exceeding three years (y) . 
 
 But, as respects the easement of light, the mere fact of Except in 
 
 cases of 
 
 uninterrupted enjoyment for twenty years, otherwise than I'ght. 
 by consent given by deed or writing, confers an absolute 
 title ; the enjoyment need not be as of right ; so that proof 
 of a parol licence is immaterial {z) ; nor does the existence 
 of disabilities or particular estates make any difference : it 
 has, however, been recently determined by the Court of 
 Exchequer, that the enjoyment of the access of light must 
 have been in the character of an easement, distinct from the 
 enjoyment of the land sought to be affected; so that sixty 
 years^ enjoyment of lights looking out upon a garden which 
 the owners of the house had held during that period, as 
 tenants from year to year, was held insufl&cient to confer 
 a title (a) . 
 
 By interruption, it may be observed, is meant an adverse interrup- 
 
 '' i- ^ -^ ' tion— what 
 
 obstruction, and not a mere discontinuance of user (6) ; ''^*^- 
 but the question, whether a discontinuance was volmitary 
 or otherwise, is one for a jury (c) ; so that, as between 
 vendor and purchaser, it would seem to be necessary to 
 give evidence of (so near as may be) continuous user. It 
 has been recently decided by the House of Lords {d), con- 
 firming the decisions of the Courts of Queen's Bench and 
 
 (//) Clayton v. Corly, 2 Ad. & E. R. 5.52. 
 
 N. S. 813. {b) Carr v. Foster, 3 Ad. & E., 
 
 (s) Mayor, Sfc. of London v. Pew- N. S. 581. 
 
 tere7-s' Company, 2 Moo. & R. 409 ; (c) S. C. 
 
 Flight V. Thomas, 11 Ad. & E. G88, {d) Flight v. Thomas, 8 CI. & Fin. 
 
 see p. 695. 231. 
 
 («) Harbidge V.Warwick, Z Exch.
 
 188 THE ABSTRACT. 
 
 Chap. VIII. Exchequer Chamber^ that, under the 4th section of the 
 Statute, which provides tliat no act shall be deemed an 
 interruption unless submitted to or acquiesced in for one 
 year, a party who has uninterruptedly enjoyed or used the 
 easement or right for any period exceeding one year short 
 of the term which woidd be sufficient to confer a statutory 
 title, can, upon being disturbed in his enjoyment or user 
 at any time within the last year of the statutory term, at 
 once claim the benefit of the statute, 
 statute of By the 3 & 4 Will. IV. c. 27, the time within which 
 .^ & 4 Will. ' proceedings can be commenced, at Law or in Equity [e) , 
 for the recovery of any land (/), (which expression 
 includes all corporeal hereditaments, and also tithes [g), 
 except tithes belonging to a spiritual or eleemosy- 
 nary corporation sole,) and any share, estate, or interest 
 therein, or of any 7'ent, (which includes heriots, and all 
 services and suits for which a distress may be made, and 
 all annuities and periodical sums of money charged upon 
 or payable out of any land, except moduses or composi- 
 tions belonging to a spu'itual or eleemosynary corporation 
 All actions, golc (A),) is restricted to a period of twenty years (i), or, in 
 wUMnar*^ casc of coutinuous disabihties [j), forty years, from the 
 
 (e) Filing of bill, not service of nant ; Dean and Chapter of Ely v. 
 
 subpoena, is the commencement of Cash, 15M. &W. 617; butseeZJeare 
 
 suit ; Co2)pin v. Gray, 1 Y. & C. C. C. and Chapter of Ely v. Bliss, 5 Beav. 
 
 205 ; Morris v. Ellis, 7 Jur. 413 ; 574. 
 
 Purcell V. Blennerhassett, 3 J. & L. (h) But not rent reserved on a 
 
 24; but see Att.-Gen. v. Hall, 11 demise, as between tenant and rever- 
 
 Pri. 760: as to suit commenced sioner ; Grant Y.Ellis, 9 M. & W. 
 
 and then abandoned, see Bampton v. 113. 
 Birchall, 5 Beav. 67, and see Rocke (/) Sects. 2 and 24. 
 
 V. Cooke, 12 Jur. 5. {j) See sects. 16, 17, 18, and 19. 
 
 (y) Or title deeds ; see Dean and The 19th sect., which provides that 
 
 Chapter of Wells v. Doddington, 2 Scotland, Ireland, and the adjacent 
 
 Coll. 73. islands are not to be considered 
 
 (cf) I. e., as between parties claim- beyond seas, applies to cases of resi- 
 
 ing adverse estates therein, but not dence in Ireland, &c., before the 
 
 as between tithe-owner and terre-te- passing of the Act, if the controversy
 
 THE ABSTRACT. 189 
 
 time at wliicli the right to proceed for the recovery of such Chap, yiii. 
 
 land or rent first accrued to the plaintiff, or to the party yel'rVfrom 
 
 thi'ough whom he claims (k) . right to *sue. 
 
 The 3rd section of the Act fixes the time at which, in Right when 
 
 deemed to 
 
 certam specified cases, the right shall be deemed to have ^^Y^ ^<=7"4- 
 
 6(1 in ccrtuin. 
 
 accrued ; these cases, however, are put merely by way of ^^^®^* 
 illustration^ and not with the view of hmiting the opera- 
 tion of the 2nd section (/) ; the general principle seems to G&aerai 
 he, that when a party has been in possession or receipt of 
 the profits of the land, or in receipt of rent, the right 
 accrued at the time when he last held such possession or 
 received such profits or rent {m) ; while in the case of a 
 party who has never had such possession or receipt, the 
 right accrued at the time when he first became entitled 
 (whether by descent, alienation, falling in of a remainder 
 or reversion, forfeitm-e, devise {n), or otherwise) to enter 
 into such possession or receipt. A mortgagee may, 
 ho^^ever, recover the mortgaged land at any time vdthin 
 twenty years after the last payment of principal or inter- 
 est, notwithstanding twenty years or upwards may have 
 elapsed since his right to enter accrued under the mort- 
 gage deed (o). 
 
 And as against an administrator time runs from the ^rdldml'as 
 death of the intestate (yj) . 
 
 from death. 
 
 do not arise until after the passing there is no provision for quiet enjoy- 
 
 of it : E.v parte Hasell, 3 Y. & C. ment by the mortgagor, until default 
 
 617- in payment; Doe d. Roylance v. 
 
 {k) See sect. 1 ; and Doe v. Ed- Lkjhffoot, 8 M. & W. 553 : as to 
 
 monds, 6 M. & W. 295. whether the moxtgAgee's primd facie 
 
 (l) See James v. Salter. 4 Sco. absolute title by twenty years' posses- 
 
 168. sion is defeated by his having kept 
 
 (»i) Oiven V. De Beauvoir, 1 6 M. & accounts of the rents received by him, 
 
 U . 547. and otherwise treated and considered 
 
 in) See James v. Salter, 4 Scott, himself as mortgagee, see Baker v. 
 
 168, 180. IVatton, 14 Sim. 426. As to the 
 
 (o) See 7 Will. IV. & 1 Vict. c. case of an annuitant, see Searle v. 
 
 28. In default of payment, time Colt, 1 Y. & C. C. C. 36. 
 
 runs from date of mortgage deed, if (7^) Sect. 6.
 
 190 
 
 THE ABSTRACT. 
 
 Chap. VIII. 
 
 Express 
 trust — right 
 accrues at 
 date of con- 
 veyance to 
 a purchaser . 
 
 Charities, 
 whether 
 within the 
 Act. 
 
 Fraud 
 
 Tenancy at 
 will. 
 
 And^ in tlie case of an express trust [q], the right does 
 not accrue until a conveyance has been made to a pur- 
 chaser for valuable consideration^ and then only as against 
 such purchaser and persons claiming under him (r) ; 
 whether or no a charitable trust is within this provision^ 
 or whether, as formerly, time is no bar when the pur- 
 chaser has notice, seems to be doubtful [s] : the provision 
 does not seem to apply to a mere voluntary trust for 
 payment of debts when the creditors are not in fact cestuis 
 que trust, so as to be entitled to enforce the trusts {t) : in 
 cases of fraud, time does not begin to run mitil the fraud 
 was, or with reasonable diligence might have been, dis- 
 covered (m) ; but this is not to affect a bond fide pur- 
 chaser for valuable consideration without notice of, or 
 reason to believe in, the commission of the fraud. 
 
 The 7th section enacts, that the right of a person 
 entitled subject to a tenancy at will is to be deemed to 
 
 {q) See Francis v. Graver, 5 Ha. 
 39 ; The Commissioners of Dona- 
 tions V. Wybrants, 2 J. & Lat. 182 ; 
 Hughes v. Kelly, 2 Con. & L. 223 ; 
 Blair v. Nugent, 3 J. & Lat. 661 ; 
 Ward V. Arch, 12 Sim. 472 ; and 
 Gough V. Bull, 12 Jur. 859 : as to 
 difference between a charge and a 
 trust for payment of a sum of money- 
 out of real estate. Purchaser's lia- 
 bility for purchase-money is not an 
 express trust : Toft v. Stephenson, 7 
 Ha. 1 ; a constructive trust may be 
 barred by long acquiescence ; Ex 
 parte Hasell, 3 Y. & C. 617. 
 
 (r) Sect. 25 ; Alt. -Gen. v. Flint, 
 4 Ha. 147. 
 
 {s) See 4 Ha. 153—155 ; and see, 
 Att.-Gen. v. Kerr, 2 Beav. 420; 
 Att.-Gen. v. Brettingham, 3 Beav, 
 91 ; in neither of which cases was the 
 statute relied on ; and see, 1 Dru. & 
 W. 288, where Sugoen, C, was of 
 
 opinion that the Act did not extend 
 to charities ; and see, 2 Dru. & W. 
 69 ; but in The Commissioners of 
 Charitable Donations v. Wybrants, 2 
 J. & Lat. 182, the same learned 
 judge held, although the opinion was 
 extrajudicial, that charitable trusts 
 were within the Act. 
 
 {t) Evans v. Bagwell, 2 Con. & L. 
 612 ; and query, whether the 25th 
 section applies to cases which fall 
 within the 40th and 42nd sections ; 
 Ibid. p. 618. 
 
 (ii) Sect. 26, and Lewis v. Tho- 
 mas, 3 Ha. 26. In the case of a 
 firm, it has been held that the fraud 
 of one member prevents time, under 
 the 3 & 4 Will. IV. c. 42, from 
 running in favour of his co-partners, 
 although innocent of, and deriving 
 no benefit from, the fraud : Blair v. 
 Bromley, 2 Ph. 354.
 
 THE ABSTRACT. 191 
 
 have first accrued, either at the determination of such chap. viii. 
 tenancy, or at the expiration of one year next after the 
 commencement of such tenancy, at wliich time such 
 tenancy shall be deemed to have determined ; but it pro- Mortgagor 
 
 '' •' ■•■ and cestui 
 
 vides that no mortgagor or cestui que trust shall be deemed *"^ ^''"*^" 
 to be a tenant at will within the meaning of this clause to 
 his mortgagee or trustee {v) . In cases of express trust, a 
 cestui que trust whose possession is consistent with the trust 
 is, for general pui'poses, tenant at will to his trustee {tv), 
 and the object of the above provision seems to have 
 been, to preserve the legal estate of the trustee, which, 
 under the old law, was secured by the necessity that pos- 
 session should be adverse in order to take away the right 
 of entry : however, in a recent case of Doe d. Jacobs v. Phil- 
 dps [x), the Com-t of Queen's Bench seem to have considered 
 the trustee of a] term was barred by the possession of his 
 cestui que trust : the opinions expressed upon this point 
 were, however, extra-judicial ; for, admitting the cestui que 
 trust to have been tenant at will, the trustee before bringing 
 the action should have determined the tenancy by notice, 
 which he had not done {y) : but the Coui't of Common 
 Pleas has since {z) refused to follow the dicta in Doe v. 
 Phillips. Where the tenancy determined before the pass- 
 ing of the Act, the right of entry is to be considered as 
 ha\Tng accrued at the time of such determination (a) ; 
 
 (w) A purchaser let into possession (z) Garrard v. Tuck, 13 Jur. 87 i ; 
 
 before completion is prima facie and see Young v. Lord Waterpark, 
 
 a tenant at will within this clause; 10 Jur. 1, L. C. 
 
 Doed. Stanway v. Ruck, 4 Man. & G. (a) Doe v. Thompson, 6 Ad. & E. 
 
 30. 721 ; Doe d. Evans v- Page, 5 Q. 
 
 (w) See 1 Jarm. Conv. by S. 28 ; B. 767 ; 1 Dav. & M. 601 ; Doe v. 
 
 Sug. 610. Bold, 11 Q. B. 127; as to what 
 
 (r) 10 Q. B. 130. amounts to a determination of a te- 
 
 (y) As to what conduct amounts nancy at will, see Doe d. Bennett \. 
 
 to an admission of a subsisting te- Turner, 7 M. & W. 226 ; S. C. 9 
 
 nancy at will, see Doe d. Groves v. M. & W. 643 ; Doe d. Goody v. 
 
 Groves, 10 Q. B. 486. Carter, 9 Q. B. 863.
 
 192 
 
 THE ABSTRACT. 
 
 Chap. VIII. 
 
 Tenancy 
 from year to 
 year. 
 
 Right of 
 action saved 
 by acknow- 
 ledgment of 
 title ; 
 
 or receipt of 
 rent or 
 services. 
 
 Possession 
 
 but where tlie tenancy was subsisting when tlie Act came 
 into operation, the right is barred by the lapse of twenty 
 years from the end of one year after the commencement 
 of the tenancy {b) . 
 
 The right of a person entitled subject to a tenancy from 
 year to year or other period, without any lease in writing, 
 is to be deemed to have accrued at the end of the first year 
 or other period, or last receipt of rent, which shall last 
 happen (c) . It has been held, that the performance of a 
 ser\'ice for which distress might have been made, e. g., 
 sweeping the church and tolling the bell, amounts to pay- 
 ment of rent within the meaning of this section [d) . 
 
 The acknowledgment in writing of title, given to the 
 person entitled or his agent by the person in the actual 
 possession or receipt of the profits of the land or receipt of 
 the rent, is equivalent to such possession or receipt by the 
 person so entitled (e) : as between the landlord and tenant 
 the receipt of rent is equivalent to the receipt of the profits 
 of land (/) ; but the performance of a service for which no 
 distress can be made, e. g., keeping up a grindstone on the 
 land for the use of the parties beneficially iaterested {g), 
 does not prevent the Statute from running in favour of the 
 occupiers. 
 
 The possession, &c., of one coparcener, joint-tenant, or 
 
 (S) Doe d. Dayman v. Moore, 9 
 Q. B. 555 ; Doe d. Goody v. Carter, 
 9 Q. B. 8G3. 
 
 (c) Sect. 8. 
 
 {d) Doe d. Edney v. Benham, 7 
 Q. B. 976; as to the 8th section 
 being retrospective, see Doe d. Jukes 
 V. Sumner, 14 M. & W, 39. 
 
 (e) Sect. 14. See, as to what is a 
 sufficient acknowledgment. Doe v. 
 Edmonds, 6 M. & W. 295 ; Triclock 
 V. Robey, 12 Sim. 402 ; Holland v. 
 Clark, 1 Y. & C. C. C. 151 ; Furs- 
 don V. Clogg, 10 M. & W. 572 ; In- 
 
 corporated Society v. Richards, 1 
 Dru. & W. 258 ; Leu-is v. Thomas, 
 3 Ha. 26, 34 ; Lucas v. Dennison, 
 13 Sim. 584. Acknowledgment by 
 trustee, in trust to sell for payment 
 of debts and subject thereto in trust 
 for A., or by his agent, is sufficient : 
 Lord St. John v. Boughton, 9 Sim. 
 219 ; and see Blair v. Nugent, 3 J. 
 & L. 674. 
 
 (/) Sect. 35. 
 
 {g) Doe d. Robinson v. Hinde, 2 
 Moo. & R. 441.
 
 THE ABSTRACT. 193 
 
 tenant in common^ is not to be considered as the posses- chap . yiii. 
 sion, &c., of any other (A) ; nor is the possession, &c., of owne^dws' 
 the younger brother, or other relation of an heir, to be righrof 
 considered the possession, &c., of such heir [i) . 
 
 The right of a remainderman or reversioner accrues Estates in 
 
 " remainder, 
 
 when his estate falls into possession {j) ; and this, although ^m^^egins 
 he may have waived a previous forfeiture {k) ; and although, aglh^st. 
 in the case of a reversioner, he, or the person through 
 whom he claims, may have been in possession previously to 
 the creation of the particular estate (/) : but where the same 
 person who is entitled to the particular estate, is also entitled 
 to the immediate beneficial reversion, time will run against 
 both estates even although there may be no merger (?m). 
 "VMiere rent amounting to 20^. per annum or upwards, 
 reserved by a lease in writing, is received by a wrongful 
 claimant, no fresh right accrues to the reversioner upon 
 the determination of the lease [n) ; but, in order to bar the 
 reversioner, there must be actual receipt of the rent by a 
 wrongful claimant ; its mere retention by the tenant is 
 immaterial (o) : the existence of a lease containing general 
 words sufficient to comprise the property in question, but 
 which was not intended to comprise it, and has not been 
 acted on as respects such property, would not, it appears, 
 prevent the Statute fi-om running [p) : and where the 
 
 (A) Sect. 12: this clause is retro- (?i) Sect. 9 : this provision is retro- 
 spective : see CuUey v. Doe d. Tayler- spective ; see Boe d. Angell v. Angell, 
 son, 3 Per. & Dav. 539 ; 11 Ad. & E. 9 Q. B. 328 ; see this case, also, p. 
 1008 ; Doe d. Holt v. Hori^ocks, 1 355, as to the construction of the 
 C&t^L.hd^; Doe d. Daniel V.Wood- word "rent" throughout the 9th 
 roffe, 13 Jur. 1013, H. L. sect. 
 
 (i) Sect. 13. (o) Doe d. Davy v. Oxenham, 7 M. 
 
 (j) Sect. 3 : see DuA-e of Leeds -v. & W. 131 ; Chadu-ickv. Broadicood, 
 
 Earl Amherst, 2 Ph. 125. 3 Beav. 308 ; see, however. Ex parte 
 
 {k) Sect. 4. Jones, 4 Y. & C. 466 : as to rents of 
 
 (l) Sect. 5 ; and see Doe d. Curzon mines reserved in specie, see Denys 
 
 v. Edmonds, 6 M. & W. 295. v. Slmckburgh, 4 Y. & C. 42. 
 
 (m) Doe d. Hall v. Moulsdale, 16 {p) See Dean and Chapter of Ely 
 
 M. & W. 689. V. Bliss, 5 Beav. 574. 
 
 O
 
 194 THE ABSTRACT. 
 
 Chap. viTi. right of a person to an estate in possession is barred, the 
 riglit of such person, and of all parties claiming under him, 
 to any future estate, is also barred, unless the land or rent 
 is in the mean time recovered by some person claiming in 
 right of some intervening estate (q) : where there was a 
 limitation to husband and wife for theii' joint lives, with 
 remainder to the heirs of the husband, who became bank- 
 rupt, the last limitation was held to be a future estate 
 within the meaning of this section ; and the possession of 
 the land by the sur\iving wife, although taken without 
 legal proceedings, saved the right of the assignee of the 
 husband (r) . 
 
 Married When a mamed woman and her husband ioin in a 
 
 woman, <> 
 
 when bar- conveyance of her estate by an assurance which for want 
 of a Fine or Statutory Acknowledgment is not binding on 
 her, time ^vill begin to run against her and her heirs only 
 from the death of the husband, (if tenant by the cm^tesy,) 
 or from her death in his hfetime (if they have no inherit- 
 able issue (s)) ; but where there is no conveyance binding 
 on the husband, but a mere abandonment of possession by 
 husband and \die, it has been held that time will run 
 against her from the date of such abandonment {t) . 
 Remainders By the 21st scctiou it is enacted, "That when the right 
 tl\\lrT^^^ of a Tenant in Tail of any land or rent to make an entry 
 
 barred when t , x i • i.- i_ i-i 
 
 estate tail or clistrcss, OT to brmg an action to recover the same, 
 shall have been barred by reason of the same not having 
 been made or brought within the period hereinbefore 
 limited, which shall be applicable in such case, no such 
 entry, distress, or action shall be made or brought by any 
 person claiming anj^ estate, interest, or right which such 
 
 {q) Sect. 20 ; and see Doe d. (s) Jumpson v. Piicfters, 13 Sim. 
 
 Hall V. Moulsdale, 16 M. & W. 689 327 ; see Sug. C31 ; and Neesom \. 
 
 —698. Clarkson, 2 Ha. 163. 
 
 (r) Doe d. Johnson v. Liversedge, (f) Doe v. Bramston, 3 Ad. & E. 
 
 11 M. & W. 517. 63. 

 
 THE ABSTRACT. 195 
 
 Tenant in Tail might lawfully have barred :" and the 22nd Chap.vii i. 
 seetion_, in effect, pro-sddes that time which has commenced JgSns'tThe 
 running against a deceased Tenant in Tail, shall be counted andWe''' 
 as against persons claiming in respect of any estate, &c., 
 which he " might lawfully have barred." 
 
 The expresssion in each of these two sections " might i^"tan must 
 lawfully have barred/' seems to require personal legal ^suIji^lT 
 capacity on the part of the tenant in tail to bar the re- 
 mainders ; from which this singular result would seem to 
 follow, viz., suppose the right of a tenant in tail to accrue 
 in possession when he is one year old, and that he attains 
 twenty-one and dies the next day under no personal 
 incapacity, the Statute would run against remaindermen 
 as from the time when his right first accrued ; but suppose 
 him to die just before attaining twenty-one, or to attain 
 twenty-one an idiot or Imiatic, and so to continue until his 
 death, in such a case it would seem that remaindermen 
 would be in no way affected by the above sections of the 
 Act. This construction, if it be a correct one, must, in 
 many cases where land has been brought into settlement, 
 materially interfere with the beneficial operation of the 
 Statute upon titles. 
 
 The 23rd section has been a good deal discussed in the ^2^3^^^^" 
 profession : according to Sir E. Sugden its effect is, " that {jfe'^siSfpie. 
 where a tenant in tail executes a deed enrolled under the 
 3 & 4 Will. IV. c. 74, which for want of the consent of the 
 Protector operates only to create a base fee, under which 
 possession is obtained, the title will become good against 
 those in remainder at the end of twenty years from the 
 period when the tenant in tail, or his issue, could, without 
 the consent of any third person, have barred the remain- 
 ders over under the 3 & 4 Will. IV. c. 74'' [u) ; but it is not- 
 clear that the section has not a retrospective' operation {v). 
 
 (m) Sug. 632. (w) See 1 Jarm. Conv. by S. 32. 
 
 o2
 
 196 
 
 THE ABSTRACT. 
 
 Chap.Vin. 
 
 Equity of 
 redemption, 
 when to be 
 barred. 
 
 Acknow- 
 ledgment. 
 
 If mortgra- 
 gee is enti- 
 tled to pos- 
 session as 
 being inter- 
 ested in 
 equity of 
 redemption, 
 time does 
 not run. 
 
 Here^ it may be observed^ tbe same question arises as to 
 tlie necessity for personal legal capacity on tbe part of tbe 
 tenant in tail or bis issue to execute a disentailing convey- 
 ance^ as well as tbe nonexistence of a protector_, at tbe 
 time wben tbe statute is to begin to run. 
 
 And in tbe opinion of Sir* E. Sugden, base fees wbicb 
 were created before tbe passing of tbe 3 & 4 Will. IV. c. 27, 
 axe, as a general rule rendered unassailable by tbe 36tb 
 section of tbe Act {w) . 
 
 Tbe rigbt of a mortgagor to redeem [x] is to be barred 
 at tbe end of twenty years from tbe mortgagee taking pos- 
 session, or last gi^'ing a written acknowledgment of title ; 
 tbe acknowledgment must be given to tbe mortgagor or 
 some person claiming bis estate, or tbe agent of sucb mort- 
 gagor or person; and tbe section bas been beld to be 
 retrospective ; so tbat wbere, before tbe Act, a mortgage 
 bad been twice transferred, as sucb, by deeds to wbich tbe 
 mortgagor was no party, and no acknowledgment of tbe 
 equity of redemption bad been given to bim for seventeen 
 years before tbe passing of tbe Act, tbese years were 
 counted against bim upon bis subsequently fibng a bill to 
 redeem (y) : an acknowledgment given to one of several 
 mortgagors, or representatives of a mortgagor, operates in 
 favour of all; but an acknowledgment by one of several 
 mortgagees, or representatives of a mortgagee, does not 
 affect tbe proportionate interests of tbe otbers [z) : if a 
 mortgagee wbile in possession is bimself entitled to sucb 
 possession in respect of a bfe or otber bmited interest in, 
 or as a tenant in common of, tbe equity of redemption, 
 tbe period for t\ liicb be is so entitled will not be counted 
 against tbe parties entitled, in remainder, or togetber -v^-itb 
 him, to tbe equity of redemption {a) . 
 
 (w) Sug. 634. (z) Sect. 28. 
 
 (j?) See sect. 28. (a) Raffety \.King, 1 Keen, 601 ; 
 
 (y) Batchelor v. Middleton, 6 Ha. Tull v. Owen, 4 Y. & C. 201 ; Hyde 
 
 75. V. Dallaway, 2 Ha. 528 ; 2 Ph. 303.
 
 THE ABSTRACT, 197 
 
 No spiritual eleemosynary corporation sole is to recover chap. vni. 
 any lands or rents but within two successive incumbencies Jdfbra^ctfoT, 
 and six years^ or sixty years, (wliicbever be tbe longer ritual or^'" 
 
 • -I \ n 1 • 1*^ 1 • eleemosy- 
 
 period.) from the time when the rig-ht accrued (b) . nary corpo- 
 
 ■^ ^ ^ . ration sole. 
 
 No advowson is to be recovered, or right of presenta- Forrecovery 
 
 p , , . -, . , . of advowson 
 
 tion eniorced, but within thi'ee successive adverse m- or right of 
 
 presenta- 
 
 cumbencies, or sixty years, (whichever be the longer pe- ^^°^- 
 riod,) reckoning therein incumbencies by lapse but not 
 incumbencies after promotions to Bishoprics (c) ; and a 
 patron claiming in respect of an estate in remainder on an 
 estate tail, is, for the purposes of the statutory bar, to be 
 considered as claiming thi'ough the person entitled to such 
 estate tail (d) : successive adverse incumbencies extending 
 over one hundi'cd years form an absolute bar, unless the 
 benefice has been since enjoyed under a rightful presenta- 
 tion ; and in calculating this period a presentation adverse 
 to the owner of a particular estate is considered adverse 
 to remaindermen (e). 
 
 No money charged upon, or payable out of any land or For reco- 
 
 very of 
 
 rent, nor any legacy (/), is to be recovered but within money 
 
 charged on 
 
 twenty years next after a present right to receive the ^^°^- 
 same (g) shall have accrued to some person capable of 
 giving a discharge for or release of the same ; unless there 
 has been some interim pajTnent in respect of principal or 
 interest, or acknowledgment of right given in writing [h) ; 
 
 (b) Sect. 29. a verified copy of the entry in the 
 
 (c) Sects. 30 and 31. Stamp Office book, of payment of 
 {d) Sect. 32. the duty on a legacy, is evidence of 
 
 (e) See sect. 33. payment of the legacy ; Harrison v. 
 
 (f) Which includes a residue or Borwell, 10 Sim. 380. 
 
 share of a residue ; see Christian v. {g) See Faulkner v. Daniel, 3 Ha. 
 
 Devereux, 12 Sim. 264 ; see also 212. Legatees, whose legacies are 
 
 Phillipo V. Munnings, 2 Myl. & C. charged on land subject to prior 
 
 309 ; Sheppard v. Duke, 9 Sim. 567 ; charges, held not to be affected by 
 
 Prior V. Horniblow, 2 Y. & C. Ex, lapse of time while any prior charge 
 
 200 ; Adams v. Barry, 2 Coll. 290. subsisted. 
 Under the 36 Geo. III. c. 52, s. 27, (A) Sect. 40.
 
 198 
 
 THE ABSTRACT. 
 
 "What suits 
 are consi- 
 dered to be 
 such. 
 
 Chap. VIII. from the above period must be excluded tlie time (if auy) 
 during which the person entitled to the charge has been 
 also entitled to the possession of the land or rent {i) : and 
 where a term was vested in trustees^ in trust to raise por- 
 tions for younger children^ and subject thereto the estate 
 was limited in strict settlement^ it was held by Lord 
 Lt/ndhurst, C, that the possession of the estate by the par- 
 ties in reversion was consistent with the trust, and that 
 the statutory bar did not apply {j) . 
 
 It has been held that a foreclosure suit is a suit for 
 the recovery of money charged upon land, within the 40th 
 section [k] : so, also, is a vendor's suit for the recovery of 
 his unpaid purchase-money (/) : it seems probable that the 
 statutory bar would not apply, where the bill was filed 
 before, although no decree was made until after, the passing 
 of the Act (m) . 
 
 Arrears of dower {n), rent, or interest, are not recover- 
 able for more than six years (o), unless a prior incum- 
 brancer has been in possession within one year before the 
 commencement of the proceedings for the recovery of such 
 arrears, in which case they may be recovered for the whole 
 period of such possession (jj) ; that is, if the prior incum- 
 brance affect the estate or interest upon which the subse- 
 quent incumbrance is a charge {q). It was held by Sir 
 /. Wigram, V. C, that if the interest on a mortgage debt 
 is secm'ed by bond or covenant, arrears for twenty years 
 
 For reco- 
 very of 
 periodical 
 payments 
 
 (i) Burrell v. Lord Egremont, 7 
 Beav. 205. 
 
 {j) Young v. Lord Waterpark, 13 
 Sim. 204 ; S. C. on appeal, 10 Jur. 1. 
 
 (k) See Dearman v. Wyche, 9 Sim. 
 570 ; and Du Vigier v. Lee, 2 Ha. 
 334 ; but see contra, Wrixon v. Vise, 
 2 C. & L. 138. 
 
 (I) Toft V. Stepkemon, 7 Ha. 1. 
 
 (m) Ravenscroftv.Fristg,lCo\\. 16. 
 
 (n) Bamford v. Bamford, 5 Ha. 
 203. 
 
 (o) Sects. 41 and 42 ; Francis v. 
 Groxer, 5 Ha. 39 ; the expression 
 "rent," includes a fee-farm rent; 
 Humfrey v. Gery, 7 C. B. 567. 
 
 {p') Sect. 42. 
 
 {q) Vincent v. Goring, 1 J. & L. 
 697.
 
 THE ABSTRACT. 199 
 
 can be recovered as against the mortgaged estate (r) ; but dap, viii. 
 this decision_, wliicli was opposed to tbe opinion of Sir E. 
 Sugden {s), has been overruled {t) : the position of the 
 grantee of an annuity charged on land, which has been 
 duly paidj where the grantor has retained possession of 
 the estate without acknowledgment of title, for a period 
 exceeding the statutory limit, seems to be doubtful [u) . 
 
 It has been decided, in Ireland, by Sugden, C, that a fo^^J^X^^ 
 purchaser under a decree of the Court can be compelled to tuie'ckj' end- 
 accept a title depending upon adverse possession, verified, tuteo°Limi- 
 like any other fact, in the Master's Office {v) ; and the 
 general principle would probably be maintained by the 
 English Com^ts in a suit for specific performance. Its 
 beneficial application, as between vendors and purchasers, 
 is, however, in the case particularly of missing instruments, 
 materially affected by the difficulty which exists of deter- 
 mining the time when the right of action may have accrued 
 to the supposed adverse claimants : for instance, where 
 forty years have elapsed since the death intestate of a for- 
 mer OAvner seised in fee simple in possession, the statute 
 may be safely relied on as against the claim of any latent 
 heir, as his right of action must have accrued at the death : 
 but if the intestacy itself be in dispute, and there is reason 
 to apprehend the existence of a will whose contents are 
 unknown, here the statute is e\idently a very slight pro- 
 tection ; as limitations may have been created imder which 
 a right of action may exist for an indefinite period. 
 
 (r) Du Vigier v. Lee, 2 Ha. 326. binding as against the cestui que 
 
 is) Harrisson v. Duignan, 2 Dru. use : Francis v. Grover, 5 Ha. 39. 
 & W. 295 ; Hughes v. Kelly, 3 Dru. {v) Scott v. Nixon, 3 Dru. & W 
 
 & W. 482. 388 : the verification was merely by 
 
 (t)- Hu7iter \. NockoMs, I 'Mac. &. affidavit; but the Court expressly 
 
 G. 640 ; Humfrey v. Gery, 7 C. B. stated that the purchaser might, had 
 
 567. he pleased, have insisted on a regu- 
 
 (m) See Searle v. Colt, 1 Y. & C. lar examination of witnesses : see p 
 
 C. C. 36 : payment by executors and 402. 
 trustees in possessicn has been held
 
 200 
 
 THE ABSTRACT. 
 
 Chap. VIII. 
 
 Possession 
 under the 
 Act.barsthe 
 right, and 
 not the re- 
 medy only. 
 
 Adverse 
 possession 
 as against 
 the Crown. 
 
 Possession for a time exceeding the statutory limit, bars 
 not only tlie remedy, but also the right of the original 
 owner {w) : the eflfect of the Act being to make a Parlia- 
 mentary Conveyance of the land to the person in posses- 
 sion, after the statutory period has elapsed (a?) ; but pos- 
 session, in order to transfer a valid title to any particular 
 indi\idual, must have been either by the same person, or 
 by several persons claiming one from another : e. (/., if 
 twenty persons, unconnected with each other, had been in 
 possession, each for one year consecutively, for twenty 
 years, it would be impossible to say to which of the twenty 
 persons the Act had transferred the title (y) . Rent pay- 
 able out of land is extinguished by its nonpayment during 
 the statutory period ; and time runs from the last actual 
 receipt [z). 
 
 As to the title which may be acquired as against the 
 Crown, and the Crown's Grantees, by adverse possession, 
 it may be sufficient to refer to the Acts of 21 Jac. I. c. 14, 
 and 9 Geo. III. c. 16 (a). The Acts of 2 & 3 Will. IV. c. 
 71, and c. 100, seem to be binding on the Crown {b). 
 
 (w) See s. 34 : Scott v. Nixon, 3 
 Dm. & W. 388 ; Burroughs v. 
 M'Creiffkt, 1 J. & L. 290. 
 
 (x) Per Parke, B., 14 M. & W. 
 42. 
 
 (y) Doe d. Carter v. Barnard, 
 13 Jur. 915 ; see judgment. 
 
 (z) Oiven V. De Beauvoir, 16 M. 
 & W. 547. As to the right of a 
 
 lessor, at the expiration of the term, 
 to encroachments made by the tenant 
 during the tenancy, see Doe d. Lloyd 
 V. Jones, 15 M. & W. 580, and 
 cases cited. 
 
 (fl) And see 1 Jarm. Conv. by S. 
 52 ; and Doe v. Roberts, 13 M. & 
 W. 520. 
 
 (6) See s. 1.
 
 201 
 
 CHAPTER IX. c^^^P-^^- 
 
 AS TO THE PRODUCTION AND EXAMINATION OF THE DEEDS. 
 
 1. As to the place and time for, and expenses of, produc- 
 tion of the deeds. 
 
 2. Production of — tnay be compelled by whom. 
 
 3. Non-production of — hoiv far important. 
 
 4i. Examination of — matters to be observed in. 
 
 (1.) The vendor may produce the deeds (a) for the pur- Deeds 
 
 where to be 
 
 pose of verification^ either at his own known residence {b), produced. 
 
 or upon or in the immediate vicinity of the estate (c) , or in 
 
 London id ) ; and the purchaser in such cases pays for the Expenses of 
 
 ^ ■' ' ^ ^ «' inspection. 
 
 necessary journeys of his sohcitor; if the deeds are in 
 London, a country soHcitor must employ a town agent to 
 examine them_, and cannot charge for a journey for that 
 pm'pose; unless his client, (knowing the practice of the 
 profession to be the other way,) requests him to undertake 
 it (e) : but a solicitor need not employ an agent in a 
 country town to examine deeds, but may send a clerk (/). 
 And, where all the deeds cannot be produced at one of i^^^ra 
 
 ■' -i expenses 
 
 the usual places for production, the additional expenses of on"pro-"^°* 
 journeys thereby rendered necessary are borne by the unusual '^ 
 
 vendor {g) ; where the conditions of sale reserve to the 
 
 (a) As to the right, as hetween the K. 566 ; Horlock v. Smith, 2 Myl. & 
 
 parties to a settlement, to the custody Cr. 523 ; hi re Tryon, 7 Beav. 496. 
 
 of the title deeds of the settled estate, (/) See Hughes v. Wynne, 8 Sim. 
 
 see Reece v. Trye, 1 De G. & S. 273, 85. 
 
 n. (a). (g) S. C, Sug. 448: qucere, whe- 
 
 {b) Sug. 448. ther the vendor can set off against 
 
 (c) 1 Jarm. Conv. by S. 99. the expenses of such journeys, the 
 
 id) Sug. 448. travelling expenses which the pur- 
 
 (e) Alsop V. Lord Oxford, 1 M. & chaser would have incurred had the 
 
 place.
 
 202 PRODUCTION AND EXAMINATION OF THE DEEDS. 
 
 Chap. IX. vendor tlie option of producing tlie deeds at any one of 
 
 piace.*^" several specified places^ lie must give to the purchaser 
 
 reasonable notice of the place selected for the purpose {h) ; 
 
 duoibie'oniy if he have only a covenant for production, the purchaser 
 
 nant for niay, it secms, require him to produce them, or at least to 
 
 production. i i • c • i -\ • 
 
 send his own professional adviser for the purpose of en- 
 forcing production ; as it might be refused to the pur- 
 
 crown ^"^""^ chaser's agent (i) . In the case of a grant from the Crown, 
 it is sufficient if the vendor's soHcitor inform the pur- 
 
 on'recOTd"*^ chascr wlicrc it may be seen {k) ; but the vendor must 
 produce office copies or extracts of proved wills and records, 
 and cannot require the purchaser to examine the originals 
 at the pubhc oflfices (/). 
 
 t^on Irfdteds ^^^^ pui'chaser may, as we have abeady shoAvn, examine 
 
 perusti of t^ic dccds befoTC laying the title before counsel ; and if 
 the title prove bad, may recover the expenses from the 
 vendor [m) ; but, in order to do this, he must prove the 
 existence of a valid contract for sale («) . 
 
 (2.) Production of deeds — may be compelled, by whom. 
 As to who Where an estate is held in undi\dded shares, the owner 
 
 may compel 
 
 ofd'eeds"" ^^ ^^^' sliarc may, in Equity, compel the owner of any 
 
 of und?vTded other share who holds the deeds to produce them for the 
 
 * '''"^' satisfaction of a purchaser (o). 
 Of estate So, wlicrc cstatcs are held in severalty under separate 
 
 ht-Id under _ J i 
 
 several titlcs Created bv a single instrument, — as in the case of a 
 
 titles creat- » o j 
 
 fnst^i^ent^ Settlement, exchange, or partition Qo), — the owner for the 
 
 deeds been produced upon the estate, Bing. N. C. 499. 
 
 or at the vendor's residence. (>j) Gosbell v. Archer, 4 Nev. & 
 
 {h) Rippingall v. Lloyd, 2 Nev. & M. 485. 
 
 M. 410. (o) See 2 Mer. 490 ; Sug. 468. 
 
 (e) S. C, 419. {p) Lord Banbury v. Briscoe, 2 
 
 {k) Sug. 450. Ch. Ca.42; Sug. 467; and see 5A ore 
 
 (/) Sug. 449 ; but as to furnishing v. Collett, G. Coop. 234 ; and Aft.- 
 
 copies on completion, vide infra, Ch. Gen. v. Lambe, 3 Y. & C. 162 ; 5. C 
 
 XIII. at the Rolls, 12 Jur. 386. 
 (m) Hodges v. Lord Litchfield, 1
 
 PRODUCTION AND EXAMINATION OF THE DEEDS. 203 
 
 time being of any one sncli estate, or, it is conceived, of chap, ix. 
 any part of it, may enforce production of such instrument. 
 
 So, where a portion of an estate has been sold by the ^"^jojfi^®J"yi- 
 owner, who retains the deeds, the purchaser can^ it ap- ^^*^a^^- 
 pears^ in Equity {q), enforce their production upon a re- 
 sale (r) ; unless there was an understanding to the con- 
 trary ; which would probably be implied from the cii'cum- 
 stance of the title not being required upon the original 
 sale. 
 
 Where an estate is in settlement, it appears that a con- contingent 
 tingent remainderman cannot enforce the production of ma" cannot 
 the deeds for the pui'pose of effecting a sale or mort- 
 gage [s) ; nor, as a general rule, can a A^ested remainder- whether 
 man compel their production except under special circum- 21an"can"do 
 stances ; the more remote the remainder the stronger ^^' 
 doubtless must be the case made for production ; the 
 existence of lineal relationship between the tenant in pos- 
 session and the remainderman would increase the diffi- 
 culty ; for the circumstance of the transaction being dis- 
 approved of by the ancestor (especially if he were the 
 settlor it) ) would go far to show its impropriety ; and the 
 Court would refuse to aid a party who was seeking to do 
 himself an injury (?/) : even^ however, as between father 
 and son, the Court_, it is conceived, might be so satisfied of 
 the prudence and propriety of the particular arrangement 
 as to depart from the general rule [iv] : the strongest case 
 in favour of the general right to production would seem 
 to be that of a remainder in fee immediately expectant 
 on an estate for life^ with no relationship existing between 
 the parties ; wliere_, it may be conjectured, the remainder- 
 
 ed) But not at Law; Sug. 472. («) See Shaw v. Shaiv, 12 Pri. 
 
 (r) Fain v. Ayers, 2 Sim. & St. 167. 
 
 5-33. (w) See Lord tempter v. Lwd 
 
 (s) Noel\. Ward, 1 Mad. 322. Pumfret, 1 Dick. 238. 
 (0 See Sug. 470.
 
 204 
 
 PRODUCTION AND EXAMINATION OF THE DEEDS. 
 
 Chap. IX. 
 
 Kemainder- 
 man under 
 a purchase- 
 deed. 
 
 Mortgagee 
 need not 
 produce 
 deeds until 
 paid off; 
 
 unless he 
 claim under 
 party who 
 himself is 
 liable to 
 produce 
 them. 
 
 Solicitor's 
 lien. 
 
 man could enforce production for the purpose of a sale or 
 mortgage, unless, fi'om liis youth, or other special circum- 
 stances, the Court were satisfied it would best serve his 
 interests by rejecting the application. 
 
 And, it is conceived, that where, as sometimes happens, 
 A. and B. jointly purchase property, taking the convey- 
 ance so as to give to B. merely an estate in remainder, B. 
 has a general right to the production of the muniments of 
 title. 
 
 A mortgagee is not, in general, bound to produce the 
 deeds until he is paid oS{x), even although the devisee 
 of the mortgaged estate may be ignorant of all particulars 
 relating to the security (?/) ; since, however, a person can 
 give no right which he does not himself possess, the mort- 
 gagee of a person who would be liable to produce the 
 deeds must himself produce them at the suit of those per- 
 sons who could compel their production as against the 
 mortgagor {z) ; but he would not be justified in so pro- 
 ducing them except with the consent of the latter, or 
 under an order of the Court [a). So, the solicitor of a 
 mortgagee has no lien upon the deeds, as against the 
 mortgagor, to an amount exceeding what is due on the 
 security [b] . If the solicitor of the mortgagor induce the 
 soHcitor of the mortgagee to part with the deeds, by a 
 
 (ic) See Sparke v. Montriou, 1 
 Y. & C. 103 ; Addison v. Walker, 4 
 Y. & C. 447 ; Greenwood v. Roth- 
 well, 7 Beav. 291 ; Banner v. Lord 
 Portarlington, 15 Sim. 380. Lord 
 Kenyon is said to have advised a 
 mortgagee to put his deeds into a 
 box, and sit upon it, until the money 
 was put into his hands ; see 1 Y. & C. 
 107. 
 
 (y) Browne v. Lockhart, 10 Sim. 
 421 ; see Crisp v. Platel, 8 Beav. 
 62. 
 
 (c) Balls V. Margrave, 4 Beav. 119; 
 
 and see Hercy v. Ferrers, ib. 97 ; 
 see also a singular case of Muston 
 v. Bradshaw, 10 Jur. 402 ; 15 Sim. 
 192 ; where it was held that a pur- 
 chaser could not make the vendor's 
 wife a defendant to a suit for specific 
 performance, on the ground of her 
 having possessed herself of the deeds. 
 
 (a) Lambert v. Rogers, 2 Mer. 
 490. 
 
 {b) HoUis v. Claridge, 4 Taunt- 
 807 ; see Wakefield v. Newbon, 6 
 Q. B. 276 ; and Rider v. Jones, 2 Y. 
 & C. C. C. 329.
 
 of deeds. 
 
 • PRODUCTION AND EXAMINATION OF THE DEEDS. 205 
 
 verbal undertaking to pay a sum claimed to be due for Chap. ix. 
 costs^ such undertaking will be enforced summarily upon 
 motion [c). 
 
 A mortgagee who consents to a sale by the Court, must Mortgagee 
 
 ° '^ .; ^ consenting 
 
 bring the deeds into the Master's office in the usual court^'must 
 way {d), and it is conceived, that, in an ordinary case, a deedsf^ 
 mortgagee who has countenanced a morta:as:or in sellinor Case of 
 
 o D & t5"^ ^" ov^iiijj.^ mortgagee 
 
 under the expectation of his concurrence, would not be fng'slue b^' 
 
 allowed to stop the sale by refusing to produce the deeds '"°'''^^^^'^''- 
 before actual payment. 
 
 A mortgagee who has, even althousrh insane, de- Liability of 
 
 " " o J mortgagee 
 
 stroyed (e), or has negHgently lost (/) the muniments of dTstructton 
 title, will, it seems, be compelled to replace such as can be 
 replaced; and as respects originals which cannot be re- 
 placed, will be required either to give an indemnity or to 
 make compensation for the damage thereby done to the 
 estate ; but a mortgagee taking the same care of the deeds 
 forming his security as he took of his own, ought not, it 
 would seem, to be severely dealt with if they are acci- 
 dentally lost {ff). 
 
 (3.) Non-production of deeds — how far important. 
 The non-production of the deeds is material, not importance 
 
 ^ •' ot non-pro- 
 
 only as it deprives the purchaser of the usual means of deeds"""*^ 
 verifying the title deduced upon the abstract, but as 
 inducing a suspicion that they may have been deposited 
 by way of equitable mortgage ; it has even been held, on ^^^y affect 
 
 . purchaser 
 
 a sale of a public-house m London, that their non-produc- "^^^^ '!o*'<=e 
 tion amounted to notice to a mortgagee of such a deposit "^^p"*'*- 
 
 (c) In re Gee, 2 Dowl. & L. 997. (/) Lord Midleton v. Eliot, \b Sim. 
 
 (d) Livesey v. Harding, 1 Beav. 531. 
 
 343. {g) Woodman v. Higgins, 14 Jur. 
 
 (e) Hornby v. Matcham, 16 Sim. 84fi, V. C. K. B. 
 325.
 
 206 PRODUCTION AND EXAMINATION OF THE DEEDS. • 
 
 Chap. IX. -y^ritli the brewers wlio supplied the house {h) ; this deci- 
 sion has been disapproved of (i) ; and has been thought to 
 depend upon the presumed notoriety of the practice of 
 London publicans so to deposit their deeds, and upon the 
 fact of the mortgagee having been aware that the publican 
 was indebted to the brewers : in fact the Court thought 
 that there was wilful blindness, the security having been 
 taken for the re-payment, not of a cotemporaneous ad- 
 vance, but of a sum abeady due {j) : however, in a very 
 recent case, it was held by Sir L. Shadwell, V. C, that the 
 omission to ask for the deeds was sufficient to postpone a 
 mortgagee who took a conveyance of the legal estate by 
 way of security for a pre-existing debt, although it did not 
 appear that he was aware of the mortgagor being indebted 
 to the prior incumbrancer {k) . 
 
 (4.) Examination of deeds — matters to be observed in. 
 Points to be In the examination of the abstract Avitli the docu- 
 
 attended to 
 
 in-'^'ab^ract inGuts, the most scrupulous carc is requisite on the part of 
 deeds. ^ the sohcitor ; the object of the examination is to ascertain, 
 1st, that what has been abstracted is correctly abstracted ; 
 2nd, that what is omitted is clearly immaterial ; 3rd, that 
 the documents are perfect, as respects execution, attesta- 
 tion, indorsed receipts, registration, stamps, &c. ; and 
 4th, that there are no indorsed notices, nor any circum- 
 stances attending the mode of execution, attestation, &c., 
 &c., calculated to excite suspicion (/) : anything out of the 
 ordinary course — such as the unusual position of the 
 
 (/<) Whitbread v. Jordan, 1 Y. & Sim. 547 ; 13 Jur. 316; where it 
 
 C. 303. appears that the security was for 
 
 (e) See 4 Y. & C. 563 ; Sug. 1054. money previously due. 
 
 {j) 1 Ph. 255. {I) See Kennedy v. Green, 3 Myl. 
 
 {k) Worfhingfon v. Morgan, 16 & K. 699.
 
 . PRODUCTION AND EXAMINATION OF THE DEEDS. 207 
 
 indorsed receipt ini), — slioidd be made the subject of Chap, ix. 
 inquiry; every part of every document ought to be read 
 through; notice of an incumbrance is equally notice 
 whether contained in one or in another part of a deed {n) : 
 perhaps few of the most important duties of a soUcitor are 
 so frequently performed in a perfunctory manner. 
 
 {m) See Kennedy v. Green, 3 Myl. (») See Smith v, Capron, 7 Ha. 
 
 &K. 699. 189.
 
 208 
 
 Chap. X. 
 
 CHAPTER X. 
 
 AS TO MATTERS ARISING BETWEEN DELIVERY OF ABSTRACT 
 AND PREPARATION OF CONVEYANCE. 
 
 Time es- 
 sential at 
 Law, 
 
 but not in 
 Equity, 
 unless by 
 express 
 agreement 
 or under 
 special cir- 
 cumstances. 
 
 1 . Time when essential at Law and in Equity. 
 
 2. Objections to title — negotiations upon and waiver of — 
 when possession taken amounts to waiver. 
 
 3. General rights and liabilities of purchaser in posses- 
 sion. 
 
 4. Vendor in possession — alteration of property by — may 
 avoid contract. 
 
 5. As to entry and possession by Railway Companies be- 
 fore completion. 
 
 (1.) At Law^ the time fixed for completion is of the essence 
 of the contract ; and the purchaser may recover his deposit 
 unless the vendor can deduce and verify a marketable title 
 and give a conveyance at the time agreed on (a) ; if no 
 time be fixed, a reasonable time must be allowed {b) ; and 
 it has been held that a condition that the purchase-money 
 shall be paid on a certain day, does not amount to a stipu- 
 lation that the title shall be made out on or before that 
 day(c). 
 
 In Equity, however, although unreasonable delay will of 
 itself conclude either party, the mere fact of the time fixed 
 for completion having expired is no defence to a suit for 
 specific performance ; except where time has been made 
 of the essence of the contract by express agreement ; or 
 
 (a) Sug. 284. (5) Sansomw. Rhodes, 8 Sco. 544. 
 
 (c) S. C. ; sed queer e *
 
 ABSTRACT AND PREPARATION OF CONVEYANCE. 209 
 
 where^ from the circumstances of the case^ such must chap. x. 
 clearly have been the intention of the parties {d). 
 
 For instance^ on an agreement, by a tenant at will of a ^ndor"^ 
 public house, for the sale of the possession, trade, and binty^'y'^" 
 goodwill, at a fixed sum, and of the stock and fiu-niture at properfy ; 
 a valuation, possession to be taken and the money paid on 
 a given day, the delay of a single day on the part of the 
 purchaser in having the valuation completed, and in taking 
 possession and paying the purchase-money was held to 
 relieve the vendor from the contract ; inasmuch as he 
 incurred fresh liabilities by retaining the premises, and the 
 stock in the mean time varied (e) . 
 
 So, the fluctuating value of the property may alone or property 
 
 ® r ir J J isoffluctu- 
 
 show that time was to be of the essence of the contract ; ^**"g ^^^"^ ' 
 as upon an agreement for the sale of foreign stock (/), or 
 of a reversion, (which may become an estate in possession 
 during the delay, and the sale of which generally evidences 
 immediate want of money {g),) or of a life annuity, or life terminable 
 estate, which may determine by the death of the cestui que <^^^'^'''*'=ter; 
 vie {h). 
 
 So, where the purchaser evidently requires the property ^''^^i^^' 
 for some immediate purpose {i) . once7^'* ** 
 
 So, where the vendors, (although beneficially inter- or where 
 
 •" J \ o J the vendors 
 
 ested,) are a fluctuating body, (as in the case of a Dean atLgbody!" 
 and Chapter,) where delay may give the purchase-money 
 to persons other than those who signed the contract {j) . 
 
 And the tendency of modern decisions has been to hold ^s°ons" wfd 
 persons concerned in contracts relating to land, bound, as tfme'^*^*^'^ 
 
 material. 
 
 {(t) See Sug. 305. (/() See Withy v. Cottle, Turn. & 
 
 (e) Coslake v. Till, 1 Russ. 376. R. 78. 
 
 {f) Duloret v. Rothschild, 1 Sim. (i) Wright v. Hoivard, 1 Sim. & 
 
 & St. 590. St. 190 ; Parker v. Frith, ib. 199. 
 
 {g) See Newman v. Rogers, 4 Bro. (7) Carter v. Dean of Ely, 7 Sim. 
 
 C. C. 391. 211.
 
 210 
 
 MATTERS BETWEEN DELIVERY OF 
 
 Chap. X. 
 
 Purchase- 
 money being 
 required to 
 discharge in- 
 cumbrances, 
 a material 
 fact. 
 
 But private 
 unexpressed 
 motives for 
 purchase 
 immaterial. 
 
 Effect of, if 
 subsequent- 
 ly communi- 
 cated. 
 
 Undertak- 
 ing to 
 deliver 
 possession, 
 not binding 
 in equity. 
 
 But wilful 
 delay con- 
 cludes in 
 Equity, 
 
 either 
 
 vendor, 
 
 in other contracts, to regard time as material; and this 
 principle lias been applied witli the gi-eater strictness 
 where the property was connected with trade {k) . 
 
 So, the circumstance of the purchase -money being 
 evidently required for payment of incumbrances, is mate- 
 rial; especially if the rate of interest which they bear 
 exceed that which the purchaser is to pay during delay (/) . 
 But the private motives which may have induced a 
 party to enter into a contract, unless expressed in the 
 agreement, or such as might be anticipated from the 
 general apparent circumstances of the case, do not make 
 time essential; e. g., the unexpressed intention to reside 
 immediately upon the estate [m) ; where, however, the 
 motive is of material importance — as in the case of the 
 intention to reside — although not disclosed in the con- 
 tract, it would, it appears, be sufficient to bind the vendor 
 to the time named in the contract, if communicated at or 
 within a reasonable period after its execution {n) . 
 
 Nor is a mere undertaking that possession shall be 
 delivered on a certain day, "of itself binding in Equity (o) . 
 
 In all the above cases the delay may be supposed to 
 have arisen from the state of the title, or other^^ise 
 without any wilful or gross neglect by the party in de- 
 fault : gross or Avilfol neglect, however, by either party, 
 will, in any case, entitle the other party to avoid the 
 contract in Equity; e. g., where the vendor, although 
 urged by the purchaser to make out his title, takes no 
 steps to do so, the pm-chaser immediately upon the expira- 
 
 (/t) Per Wigram, V. C, in Walker 
 V. Jeffreys, 1 Ha. 348 ; and see 
 Seaton v. Mapp, 2 Coll. 556. 
 
 (Z) Popham v. Eyre, Lofft, 786 ; 
 Sug. 292. 
 
 {m) See BoeJim v. Wood, 1 Jac. & 
 
 W. 422. 
 
 (n) See 7 Ves. 279 ; and Nokes v. 
 Lord Kilmory, 1 De G. & S. 444. 
 
 (oj See Boehm v Wood, 1 Jac. &" 
 W. 419.
 
 ABSTRACT AND PREPARATION OF CONVEYANCE, 211 
 
 tion of tlie time fixed for completion may rescind the ^^'^p- ^- 
 agreement {p)r 
 
 So, a purchaser who takes no steps to enforce the chaser" 
 contract within a reasonable time, will be left to his 
 remedies at Law ; and the tendency of modern decisions is ^^^^{^^ 
 to diminish the time allowed to either party for enforcing ^°^^^- 
 his rights under the contract {q) . 
 
 Where time is not of the essence of the contract, and Title at 
 
 hearing 
 
 the delay originates in the state of the title, it is sufficient, sufficient in 
 
 •' ^ •' -^ equity, 
 
 upon a bill for specific performance being filed by the not'^eLen^'' 
 
 vendor, if a good title be shown at the date of the de- *"* ' 
 cree (r) . 
 
 And, at Law, where no time is fixed for completion and As to the 
 
 ' ' ^ rule at law. 
 
 the purchaser does not require the title to be produced, 
 and none is produced before an action has been com- 
 menced by the vendor, it is sutficient if the latter perfect 
 his title at any time before the triar(5) ; but if a title be 
 produced, and prove defective or be not properly verified, 
 and a fortiori, if the vendor, on being required to produce 
 a title, altogether neglect to do so, the production of a 
 perfect title before trial is insufficient [t) . 
 
 But although time may not originally have been of the Time not 
 
 o ./ o ./ originally 
 
 essence of the contract, either party may, by proper notice, n^ay"b<f ' 
 
 bind the other to complete within a reasonable specified notice, ^ 
 period [u] . 
 
 The notice should, at least as a matter of precaution, be ^no^ ™"'* 
 
 in writing, and should allow a reasonable time for comple- peHod!' 
 
 tion ; what time can be so considered, must greatly de- rgasonabfe 
 
 pend upon the circumstances of the particular case ; three p^"° " 
 days^ notice by a vendor would be too short {v) ; so, a 
 
 (jo) Lloi/d V. Collett, 4 Bro. C. C. 184. 
 469. (0 Vide infra, Ch. XVII. 
 
 (g) Vide infra, Ch.XVllL; 6 Ea. \u) Stewart v. Smith, 6 Ha. 
 
 213. 223, n. 
 
 (r) Ibid. {v) Sug. 306; See Reynolds v. Nel- 
 
 (s) Thomson v. Miles, 1 Esp. Ca. son, 6 Mad. 18. 
 
 p 2
 
 212 
 
 MATTERS BETWEEN DELIVERY OF 
 
 Chap. X. 
 
 Vendor 
 giving 
 notice need 
 not return 
 deposit. 
 
 Purchaser 
 giving 
 notice need 
 not sue for 
 deposit. 
 
 But pur- 
 chaser can- 
 not deter- 
 mine con- 
 tract witli- 
 out previous 
 notice. 
 
 Time for 
 performing 
 contract 
 held to 
 remain at 
 option of 
 purchasers. 
 
 week's notice by a purchaser, within which time the 
 vendor was reqiured to prove a disputed legitimacy, was 
 held too short {lo) ; two months' notice by a purchaser, 
 within which time the vendor was required to remove an 
 objection to the title depending upon a defective execution 
 of a power, appears to have been considered sufficient in a 
 recent case; which was, however, decided upon another 
 point {x) : in another recent case, where a delay of two 
 months had occurred in prociu'ing the execution of the 
 conveyance by certain parties, a ten days' notice by the 
 purchaser was considered sufficient [y] . 
 
 It is not, as a general rule, essential to the binding 
 effect of a vendor's notice, that he should, at the expu-a- 
 tion of it, retm-n or tender the deposit [z) ; nor, on the 
 other hand, where the pui'chaser's notice has expired, is he 
 bound to bring an action for his deposit (a) . 
 
 But a pm-chaser cannot determme the contract without 
 due prenous notice {b) ; although notice even of immediate 
 determination woiild, it is conceived, be so far material as 
 that it would more strongly impose upon the vendor the 
 necessity of using expedition in proceeding to enforce the 
 contract ; and the same principles would, it is conceived, 
 apply to notices by a vendor. 
 
 Where a Railway Company had power at any time 
 within seven years to take land for the pm-poses of the 
 undertaking, and agreed to pm-chase land and to pay 
 interest upon the purchase-money from the day they 
 should commence their works on the land until the pur- 
 chase-money should be paid, it was held that the vendor 
 could not enforce specific performance ; the Company not 
 
 (w) King v. Wilson, 6 Beav. 124. 
 {x) Soxdhcomb v. Bisfioj) of Exeter, 
 11 Jur. 727; 6 Ha. 213. 
 
 (y) Benson v. Lamb, 9 Beav. 502. 
 (z) Sug. 306. 
 
 (a) Southcomb v. Bishop of Exeter, 
 11 Jur. 727; 6 Ha. 213. 
 
 {b) Taylor v. Brown, 2 Beav. 181; 
 Wood V. Machu, 5 Ha. 158.
 
 ABSTRACT AND PREPARATION OF CONVEYANCE. 213 
 
 having commenced their works, and the seven years ^^'^p- ^- 
 limited by the Act remaining unexpired (c) . 
 
 And time, although of the essence of the contract by T'me, 
 
 ■* ^ '' although 
 
 original agreement, or made imperative in Equity by sub- ^|y"be*^' 
 sequent notice, may be enlarged or waived, by subsequent ^aivldf ^^ 
 agreement, or the acts of the parties. 
 
 Thus, if a purchaser proceed in the purchase after the ^|g^f p'"?' 
 expiration of the time fixed by the contract {d), or limited ^"te'^e'^xpira- 
 
 11. .• -i J. J. • / \ tionoftime; 
 
 by his notice, it amounts to waiver (e) . 
 
 So, where a purchaser made no demand of the pos- '"^Yg^^o 
 session of the piu'chased premises until a quarter before ge^gJon JJfitii 
 twelve at night on the day fixed for completion — part of mom'ent. 
 the property consisting of cottages let to weekly tenants — 
 this was hekl, at Law, to be a waiver of the condition as 
 to time (/). 
 
 But at Law, time, if fixed by an insti'ument under seal, f^^^^^l ^^ 
 cannot be enlarged by an instrument not under seal {g) ; ^^^' 
 so, if fixed by a -smtten agreement not under seal, it can- 
 not be enlarged by word of mouth (A) . 
 
 A conditional written waiver by a purchaser of his pre- Ser!°°^' 
 ■v-ious notice of abandonment, will be construed strictly 
 against the vendor (i) . 
 
 And where the conditions pro\-ide for delivery of the Jl^^J°J^f 
 abstract at a certain time, the purchaser waives them in ^^j^ygj^n 
 Equity by receiAing the abstract after that time ; or even, recdvm/it 
 
 " - , , . . ., i. • • after time ; 
 
 it would seem, by perusing it unnecessarily, or retaining 
 it, if delivered under circumstances which prevent its 
 immediate rejection (j) . 
 
 (c) Bodington v. Great Western 503. 
 
 Railway Comjiany, 13 Jur. 144. (^r) Rippengallv. Lloyd, 2 Nev. & 
 
 {d) Boyes v. Liddell, 6 Jur. 725. M. 410. 
 
 (e) King v. Wilson, 6 Beav. 124 ; {h) Stou-ell v. Robinson, 3 Bing. 
 
 and see Ex parte Gardner, 4 Y. & C. N. C. 928. 
 
 503. (0 See Stewart v. Smith, 6 Ha. 
 
 (/) Palmer v. Temple, 1 Per. & 222, n. 
 
 Dav. 379 ; see p. 381 ; 9 Ad. & El. {j) See Seton v. Shde, 7 Ves. 278.
 
 214 
 
 MATTERS BETWEEN DELIVERY OF 
 
 Chap. X. 
 
 or by not 
 asking for it. 
 
 Sufrgested 
 extension of 
 the rule. 
 
 Time waived 
 liy not 
 objecting to 
 certain or 
 higlily pro- 
 bable delay 
 in comple- 
 tion. 
 
 Effect of 
 
 protest in 
 such cases 
 — suggested 
 mode of 
 proceeding. 
 
 And a condition for delivery of the abstract on a certain 
 day, is waived in Equity by a purchaser who does not ask 
 for it within a reasonable time before the day fixed for its 
 delivery {k) ; the same rule would,, no doubt, apply to the 
 production of evidence, &c. ; and it is conceived that a 
 waiver of time as respects matters, (such as the delivery of 
 the abstract, &c.,) which must necessarily precede com- 
 pletion by a considerable period, would, in general, amount 
 to a waiver of the time (if any) fixed for completion. 
 
 So, a stipulation that time shall be of the essence of the 
 contract, is waived by a pm-chaser who receives, and 
 retains without objection, an abstract upon the face of 
 which it appears that a title cannot be made within the 
 time fixed for completion (/) ; or who, without an objec- 
 tion on that specific ground, proceeds with the pm'chase 
 under a knowledge that there is no reasonable probabihty 
 of the title being perfected in time for completion; as 
 when it depends upon the result of a hostile chancery 
 suit (m) . 
 
 It seems doubtful whether a mere protest against the 
 delay \nll save the benefit of the stipulation {n) ; it is con- 
 ceived, that until the expu^ation of the time limited for 
 completion, a pm-chaser may safely, and is indeed bound 
 to, proceed in the matter so long as a reasonable possi- 
 bihty exists of the title being perfected in time ; taking 
 care, nevertheless, to protest in wi-iting against the delay, 
 and to give notice of his intention to insist on his strict 
 rights. So soon as the time has expired, or so soon as it 
 previously becomes certain that the title cannot be per- 
 fected in time, he should take no fm'ther steps in the 
 matter, but should in writing rescind the contract ; and 
 then, if inclined to give the vendor the opportunity of 
 
 (k) Jones y. Price, 3 Anst. 924. 
 (I) See Hipivell v. Knight, 1 Y. & 
 C. 401, 419. 
 
 (w) Pinke v. Curteis, 4 Bro. C. C. 
 332. 
 
 (rt) See Sug. 300.
 
 ABSTRACT AND PREPARATION OF CONVEYANCE. 215 
 
 completing within a reasonable period_, all subsequent ^^^p- ^- 
 communications should be expressed to be Avithout pre- 
 judice to the notice of rescinding, and should take the 
 shape of mere negotiations for a fresh agreement. 
 
 It may be observed, that even in a contract for or con- "Month" ^ 
 
 .' ' meansprima 
 
 nected with the sale of land, the term month means prima ■^^onth.'""^'^ 
 facie a lunar month; although it may be construed a 
 calendar month, if, from the context, or from the sur- 
 rounding circumstances at the time of making the con- 
 tract, such appeal's to have been the intention of the 
 parties (o). 
 
 (2.) Objections to title ; — negotiations upon and waiver of; — 
 when possession taken amounts to ivaiver. 
 
 We have already ( ») adverted to the effect which nego- Effect of 
 
 " ^-^ ' ° negotiations 
 
 tiations upon the title may have upon the vendor's rights ^||°"n^°"'to 
 under the ordinary conditions limiting a time for taking o'^Je<=tio°*- 
 objections, and gi^dng him the power to rescind the 
 contract. 
 
 It may be observed, that a solicitor purchasing from his ^°|4^,^*jfg^^ 
 client, cannot insist upon any objections to the title which ^^^'J^fto title 
 he — or his then partner in the case of a firm — considered acceVted for 
 unimportant when acting for the client upon his original 
 purchase [q). 
 
 Care should be taken not to make frivolous or unneces- ^fv"ofous°ob- 
 sary objections or requisitions ; objections clearly frivolous, req^s'itio^ns'; 
 made and persisted in, would certainly indispose, even if 
 they did not prevent (r), a Com-t of Eqviity from enforcing 
 the contract at the suit of the purchaser : it perhaps sel- 
 dom happens, upon the perusal of a long abstract, that 
 
 (o) Lang v. Gale, 1 Mau. & S. 11 1 ; 1 Y. & C. Ex. 401. 
 
 Sim2)son v. Margitson, 11 Q. B. 23; {jj) Supra, 72. 
 
 and see Sir E. Sugden's remarks, V. (y) Beevor v. Simpson, Taml. 69. 
 
 and P. 283, on Hipwell v. Knight, (r) Sug. 291.
 
 216 MATTERS BETWEEN DELIVERY OF 
 
 Chap- X- either solicitor or counsel confines liiS requisitions witMn 
 the strict limits of his client's rights ; but it is of import- 
 ance that no untenable requisition should be persisted in ; 
 for instance^ where a purchaser had required unnecessary 
 evidence, and had in consequence been refused that to 
 which he was really entitled, he was not allowed his costs, 
 although he obtained a decree for specific performance {s) : 
 we may here refer to a modern case, where, when a piu-- 
 chaser from a mortgagee alleged that the latter was unable 
 to deUver possession, and insisted on the concurrence of 
 the mortgagor, although the mortgagee offered to dehver 
 possession, it was held, in a suit for specific performance, 
 that the mortgagee Avas entitled to a decree with costs if 
 then able to deliver possession, and the Court refused to 
 inquire whether, when his offer to dehver possession was 
 not accepted, he was able to perform it {t) . 
 
 or of with- And, on the other hand, a piu'chaser should be careful 
 
 holding ob- •' ^ 
 
 whether ft''" ^^^ *« hold back important objections or requisitions; if 
 ?v™iTer!'*° he knowingly do so, the question may arise whether he 
 As to costs i^as not imphedly waived them (u) : and where a pui'- 
 
 incurred by xr ^ \ / ' 
 
 beforeVatai chascr puts a vcudor to expenses in compljdng with requi- 
 objection. gi^ious, &c., and then takes and insists on a fatal objection, 
 which he originally had the means of discovering, it seems 
 probable that if a bill were filed by the vendor for specific 
 performance and dismissed, the Court would not dismiss it 
 with costs, without allowing to the vendor, by way of set- 
 off, the expenses so incurred by him {v) ; although it does 
 not appear that he could otherwise recover them (tv) . 
 Purchaser's ^Ye havc already considered (x) what expressions will 
 
 prima tacie *' 
 
 eo^d title negative the purchaser's prima facie right to a marketable 
 
 (.?) Neivall V. Smith, 1 Jac. & W. 407. 
 
 263. {v) See and consider Deverell v. 
 
 (t) Allen V, Marti7i, 5 Jur. 239, R. Lord Bolton, 18 Ves. 505, 514, 515. 
 
 (m) See Sir E. Sugden's remarks («') See Sug. 428. 
 
 on Magennis v. Fallon, V. and P. (r) Supra, p. 66 et seq.
 
 ABSTRACT AND PREPARATION OF CONVEYANCE. 217 
 
 title; he will, however, be bound, not only by express ^'"'^p- ^- 
 stipulation, but also by a clear notice of the state of the 
 title, given to him before entering into the agreement (y) . 
 
 But a pm-chaser may, after the contract, either expressly ^^{^^l 
 or impliedly, waive, either wholly or in part, his right 
 (whether it be absolute or qvialified) to a marketable title, 
 or to the usual evidences thereof. 
 
 "We have seen that a pm-chaser is not bound by his Purchaser 
 
 ^ *' not bound 
 
 counsel's approval of the title {z) ; if, however, counsel ^^^I'^^y^ 
 waive a requisition or objection, and the purchaser adopt 3esshe 
 his opinion and deal with the vendor on that view, he can- ^ "^p ^ ' • 
 not afterwards repudiate it (a) . Where a purchaser, having Effect of 
 
 ^ ^ ' _ acceptance 
 
 taken several objections, expresses himself willing to ac- ^y^jg^f^to 
 cept the title upon a specified objection being removed, requSon. 
 this waiver of the other objections is merely conditional 
 upon the removal of the specified objection; so that, if 
 such objection be not removed and a bill be filed against 
 him for specific performance, he is entitled to a general 
 reference as to title {b) . Acceptance of the title, as ab- 
 stracted, is not a waiver of the purchaser's right to have 
 the abstract verified (c) : nor will the Court imply a waiver 
 of any objection which is not clearly raised by the contents 
 of the abstract {d) ; nor does a purchaser, by waiving his 
 right to an abstract, necessarily waive objections to the 
 title which are otherwise known to him (e) . 
 
 And waiver need not be express; it may be implied, betopiiMr^ 
 either from letters or mere acts of the party. 
 
 For instance, where a pm'chaser who had been let into ^e^in^etter 
 
 , , , for non- 
 
 possession — ^but which, as it was according to the contract, payment of 
 
 (y) OgiMe v. Foljambe, 3 Mer. & K. 255. 
 64. (c) Soufhbi/ V. Huff, 2 Myl. & Cr. 
 
 (z) Deverell v. Lord Bolton, 18 217. 
 Ves. 505. {d) BlacMow v. Laws, 2 Ha. 47. 
 
 (a) Alexander v. Crosby, 1 Jones (e) Sidebotham v. Barrington, 3 
 
 & Lat. 666. Jur. 947. 
 
 (A) Lesturgeon v. Martin, 3 Myl.
 
 218 
 
 MATTERS BETWEEN DELIVERY OF 
 
 Chap. X. 
 
 purchase- 
 mouey. 
 
 From pay- 
 ment for, 
 and dealing 
 wth, pro- 
 perty. 
 
 Preparation 
 or approval 
 of convey- 
 ance, when 
 a veaiver. 
 
 Attempt to 
 resell, no 
 waiver:— to 
 resell part, 
 etfect of. 
 
 does not appear to be very material — and wlio tad re- 
 tained the abstract for a considerable period without 
 objection^ and had altered and let the premises^ wrote a 
 letter to his solicitor for the purpose of its being com- 
 municated to the vendor, and therein expressed his 
 'Wexation at the delay which had happened about pay- 
 ment/' and his gratification " at the liberality and patience 
 shown " to him^ this was held to amoimt to an admission 
 that the title was approved (/) : and the same decision 
 was come to in a later case, where a purchaser took pos- 
 session under the contract, paid part and gave secui'ity for 
 the residue of the purchase-money, and mortgaged her 
 interest under the contract {g) . 
 
 The preparation of the conveyance, cannot, in general, 
 be much relied on as evidence of waiver (A) ; where, how- 
 ever, in the case of a lease, the lessee, without previously 
 requiring a title to be shown, approved of a di'aft lease 
 furnished by the lessor, and took possession under the 
 contract, he was held to have waived all objections to the 
 title {i) : so, where a purchaser of a leasehold house, after 
 transmission to him of the original lease, prepared a draft 
 assignment, and made various objections as to repairs and 
 other matters, but did not require the production of the 
 lessor's title, the Cornet seems to have considered that he 
 had waived its production (j) . 
 
 An attempted resale of the property, is, in general, 
 immaterial ; except that the actual or attempted resale of 
 merely a portion of the estate, may, as between the 
 original vendor and purchaser, show that the latter did 
 not consider such portion material to the enjoyment of the 
 residue {k). 
 
 (f) Margravine of Anxpach v. 
 Noel, 1 Madd. 310. 
 
 {g) Haydon v. Bell, I Beav. 337. 
 {h) See Sug. 402. 
 
 ((■) Warren v. Richardson, You. 1. 
 {j) Clive V. Beaumont, 1 De G. & 
 S. 397 ; Smith v. Cajjron, 7 Ha. 191. 
 (A) Seel Madd. 170.
 
 ABSTRACT AND PREPARATION OF CONVEYANCE. 219 
 
 Possession of the property by the purchaser is the fact ^^^''p- ^- 
 most frequently relied on as fm-nishing evidence of waiver how far to' 
 
 . J be relied on 
 
 of objections to the title ; its importance^ however, depends as evidence 
 upon the circumstances attending its acquisition and 
 retention. 
 
 The strongest case against the purchaser, is, where he JoJfJSfona 
 forcibly, or without the consent of the vendor, takes pos- ■^^^'^'^'■• 
 session : forcibly taking possession, was held in an early 
 case to amount to a waiver of an objection for want of 
 title to an important part of the estate (/) . 
 
 Possession, however, if taken in accordance with the Possession 
 
 ■* •' taken under 
 
 clear intention of the parties as CAddenced by the terms ^"'^^'■fg^;^^.'' 
 and subject-matter of the contract (m), or with the consent walier?'"*' 
 of the vendor {n), is not in itself, as a general rule, any 
 Avaiver of the purchaser's right to a good title, or of any 
 pending negotiations upon the title : where, however, the except^ 
 purchaser was, upon his own apphcation, let into posses- ^j^nces!"™" 
 sion, this was held to be a waiver of an objection (viz., a 
 right of sporting over the property) which appeared upon 
 the face of the abstract delivered three months previously, 
 but had not been made the subject of remark by the pur- 
 chaser or his solicitor (o) : it is material here to observe, 
 first, that the purchaser's general requisitions upon the 
 title appear {p) to have been made prior to the apphcation 
 for possession ; and secondly, that the objection was of a 
 permanent character, and not probably capable of removal ; 
 the case may, perhaps, be held to show, that the accept- amounTto 
 
 r, • , i • T 1 • X? waiver of 
 
 ance of possession amounts to an implied waiver oi any objections, 
 
 which are 
 
 known obiection, which the purchaser knows, or may irremovaiie, 
 
 •I ^ ^ or have not 
 
 reasonably beheve, cannot be removed ; or has not formed been in- 
 
 (0 Cakrafi \. Roebuck, I Yes.jnn. 59. 
 
 221. (o) Burnelly. Brown, I Jac. & W. 
 
 {in) Stevens v. Guppy, 3 Russ. 168. 
 
 171. {p) See 1 Jac. & W. 171. 
 
 (») Burroughs v. Oakley, 3 Sw.
 
 220 
 
 Chap. X. 
 
 eluded in 
 previous 
 requisitions. 
 Granting 
 lease equi- 
 valent to 
 possession. 
 
 MATTERS BETWEEN DELIVERY OF 
 
 part of his pre\ious requisitions upon the title^ (supposing 
 any requisitions to have been ah'eacly made) . 
 
 The grant of a lease by the pm-chaser to a tenant in pos- 
 session is equivalent to taking possession [g) . 
 
 Purchaser 
 in possession 
 may gene- 
 rally act as 
 owner, 
 without 
 thereby 
 waiving 
 title. 
 
 As by 
 
 altering 
 
 property. 
 
 "Whether 
 universally 
 
 80, 
 
 (3.) As to the ffeneral rights and liabilities of a pur- 
 chaser in possession. 
 
 It appears to be clear that a purchaser, when in the 
 authorized possession of the estate, Haay, to a certain 
 extent, act as owner without thereby accepting the title ; 
 he may take a fall of underwood in due course (r) ; so, in 
 the case of a timber estate, a fall of timber would, it is 
 conceived, be no necessary acceptance of the title, although 
 it might be restrained at the suit of the vendor upon the 
 ground of its diminishing his secm-ity for the purchase- 
 money [s) ; nor does it appear that any act of manage- 
 ment of the estate in a due course of husbandry, or in a 
 fair exercise of the supposed right of ownership (t), would 
 be of importance ; thus it has been held by V. C. K. Bruce 
 that, upon a purchase of four acres of land, stubbing up an 
 osier bed of nine perches, levelling the land, and filling up 
 a pond, did not amount to a waiver of title (u) . 
 
 In fact. Sir E. Sugden states without qualification [v), 
 that '' acts of ownership after an authorized possession are 
 of no importance;" the reported cases, however, scarcely 
 seem to support so wide a proposition ; and it is, perhaps, 
 hardly maintainable upon principle [w) : if the purchaser 
 of a house and pleasure-ground, let into possession pending 
 the investigation of the title, were to fell all the orna- 
 
 {q) Ex parte Sidebotham, 1 Mont. 
 & Ayr. 655. 
 {r) 3 Sw. 170. 
 (s) Supra, p. 118. 
 (0 1 You. 506. 
 
 (m) Osborne v. Harvey, 1 Y. & C. 
 C. C. 116. 
 
 (») V. and P. 401. 
 
 («') See Donotmn v. Fricker, Jac. 
 165 ; infra., p. 223.
 
 ABSTRACT AND PREPARATION OF CONVEYANCE. 221 
 
 mental timber, he might, it is conjectured, find a difficulty ^ihap. x. 
 in getting rid of his bargain upon the ground of the title 
 being not strictly marketable. 
 
 At any rate, it appears that a distinction must be made alte? dilco*' 
 between important acts of ownership committed pre- deftctL 
 viously to, and those committed after, the discovery of a 
 serious objection to the title {x) ; for acts which materially 
 affect the property are justifiable only under the pur- 
 chaser's belief that he is in fact the owner. 
 
 And where a pm^chaser, who had been long in possession ^^* o°se*s- 
 of the property, and had taken frivolous objections to the fu°aUo*^diif-" 
 title, refused to receive any further explanations, and yet title, held 
 
 ,., ., Ill 1 11^° accept- 
 
 retamed possession, he was held to have accepted the ance. 
 title (y). 
 
 And an act wliich amounts to a waiver of the piu*- ^fJn^ot°ai- 
 
 chaser's right to reject a defective title, is not necessarily a ^t^Jomifeu!'^ 
 waiver of his right to compensation for the defect (z) . 
 
 So^ acts by a purchaser in possession, which might ^q^^^^^' 
 
 otherwise have been considered as a waiver of objections Mnlt^ant^e- 
 
 to the title to a portion of the estate, were held to be title. 
 modified by his continuing to ask for the title (a) . 
 
 A pm'chaser mav (b), and as a matter of prudence Purchaser 
 
 -^ " ^ ' ■' '■ rejecting 
 
 should, decline to take possession while the title is in g'ggtg'^^^ '^^ 
 
 dispute, except under a special agreement ; for, if he take ^mpensa- 
 
 possession and then reject the title, he may be ejected by moneys ex- 
 pended, 
 the vendor, and cannot at Law claim any allowance for 
 
 improvements or repairs ; nor wiU Equity afford him any 
 
 rehef unless there has been fraud on the part of the 
 
 vendor (c) : upon taking possession, he becomes, in the 
 
 {x) Dixon V. Astley, 1 Mer. 135; («) See 1 Madd. 170. 
 
 See 1 You. 507. {b) Forteblow v. Shirley, 2 Sw. 
 
 (y) See Hall v. Laver, 3 Y. & C. 223. 
 
 196. (c) Sug. 1029; Niclosonv.Words- 
 
 (z) See Calcraft v. Roebuck, 1 worth, 2 Sw. 365. 
 Ves. jun. 221.
 
 222 
 
 MATTERS BETWEEN DELIVERY OF 
 
 Chap. X. 
 
 What allow- 
 ances made 
 wlien ven- 
 dor has to 
 sue in 
 Equity 
 
 for repairs, 
 improve- 
 ments, &c. ; 
 
 but pur- 
 cha^^er not 
 liable for 
 use and 
 occupation, 
 if title bad, 
 
 until it is 
 rejected. 
 
 absence of any special agreement [d), tenant at will to tlie 
 vendor [e) ; whose right to recover possession by eject- 
 ment will be subject to the 7th section of the 3 & 4 Will. 
 IV. c. 2 (/). ^Tien a pm-chaser in possession under the 
 contract is advised to rescind the contract, and assert a 
 paramount title to the property, he is not bound to give 
 up possession before asserting such paramount title by 
 making a formal entry {g) . 
 
 If the contract be rescinded in Equity, even on the 
 ground of fraud in the pm'chaser {h), the Court will, in 
 general, direct an allowance to be made to the pui'chaser 
 for substantial improvements and repairs {i) ; this allow- 
 ance however, when the sale is set aside at the suit of 
 the purchaser, will not extend to improvements, or even 
 repairs — except such as are essential to the preservation of 
 the property (j) — made subsequently to the discovery of 
 the matter on which he grounds his right to relief, nor to 
 a greater extent than is specifically prayed by the bill {k) . 
 
 On the other hand, it has been recently decided, that, 
 where the title proves defective, an action for use and 
 occupation will not lie against the purchaser for the time 
 during which he has been in possession under the con- 
 tract [l] : but if, after the contract is clearly abandoned, 
 he retain possession, he will be liable in respect of such 
 subsequent occupation (m) : where a purchaser retained 
 possession for eight years, without payment, and refused 
 
 (d) Saunders v. Musgrave, 6 B. & 
 C. 524. 
 
 (e) Doe V. Caper ton, 9 Car. & P. 
 112 ; Doe v. Chamberlaine, 5 Mee. & 
 W. 14. 
 
 (/) Doe V. J?oc^, 4 Man. & Gr. 30. 
 
 {g) Southcomb v. Bishop of Exeter, 
 6 Ha. 213. 
 
 {h) See Donovan v. Fricker, Jac. 
 165. 
 
 {i) Sug. 1028. 
 
 (i) Sug. 279. 
 
 {k) See Edivards v. M^Leay, 2 Sw. 
 282. 
 
 (Z) Winterbottom v. Ingham, 7 Q. 
 B. 611 ; and see Hearne v. Tomlin, 
 1 Pea. N. P. C. 253 ; Kirtland v. 
 Pounsett, 2 Taunt. 145. 
 
 {m) Howard v. Shaw, 8 Mee. & 
 W. 118.
 
 ABSTRACT AND PREPARATION OF CONVEYANCE. 223 
 
 either to accept tlie vendor's defective title or to abandon Chap, x. 
 the agreement, and upon a bill being filed by the vendor 
 and the Master reporting against the title, still refused to 
 accept it, he was ordered to account for the rents and pro- 
 fits and to pay the costs of the suit (w) . 
 
 Where C, a sub-purchaser from B., entered into posses- Purchaser 
 
 T • n wrongfully 
 
 sion, and then, pending a suit for specific performance by B. induced to 
 against A. (the original vendor), was induced by A. to give {J^l'^'n^a'inl 
 up possession under a mistake of facts, it was held that, occupation'* 
 upon a decree being made for specific performance of the t^acus""" 
 contract between A. and B., and a conveyance being 
 executed by A,, C. could maintain use and occupation 
 against him, for the time during which he had resumed 
 possession (o). 
 
 Where a contract was rescinded upon the around of Purchaser 
 
 ^ <-' compelled 
 
 fraud in the purchaser, the latter was compelled to rein- prJinisI'^^ 
 state a private house which he had converted into a had'^ai-'^^ 
 shop {p) : the fraud is not noticed by Sir E, Sugden in 
 stating the case {q) ; and if, as may therefore be supposed 
 to be his opinion, this was not the ground of the decision, 
 the decision seems to be an authority for this very reason- 
 able proposition, viz. : that alterations by the purchaser, whether, if 
 although not in themselves a waiver of title, will vet de- ment ■«»- 
 
 <-• } J possible.pur- 
 
 prive him of the aid of a Com't of Equity in rescinding the ^UTeZm- 
 contract, if they are such as change the nature or cha- keep the 
 racter of the property, and do not admit of reinstatement. 
 
 (4.) Vendor in possession, by altering property avoids 
 the contract. 
 
 And, on the other hand, any alteration of the subject- Material 
 matter of the contract by the vendor, in any particular of property 
 
 (w) Kingv. King, 1 Myl. & K. 442. (p) Donovan v. FricJcer, Jac, 165. 
 
 (o) Hull V. Vaughan, 6 Pri. 157 ; {q) Sug. 279. 
 
 and see 7 Q. B. 617.
 
 224 
 
 MATTERS BETWEEN DELIVERY OP 
 
 Chap. X. 
 
 by vendor 
 may avoid 
 contract ; 
 
 e.g. fall of 
 
 ornamental 
 
 timber. 
 
 Alterations 
 in value of 
 estate, or 
 failure of 
 considera- 
 tion. 
 
 which does not admit of compensation or reinstatement, 
 as the fall of ornamental timber {r), will entitle the pur- 
 chaser to abandon the contract. 
 
 And in a case between vendor and purchaser, the Court, 
 it is conceived, would consider whether the timber de- 
 stroyed were in fact, or might reasonably be considered, 
 ornamental ; and would not — as in cases between tenant 
 for life and remainderman — only regard as ornamental, 
 timber which was planted or left for ornament [s) . 
 
 We {t) have already considered the relative rights of the 
 vendor and purchaser in the several events of the estate in- 
 creasing or diminishing in value, or of the failure of the 
 consideration for, or subject-matter of, the contract, before 
 conveyance. 
 
 As to entry 
 u])on, and 
 taking pos- 
 session of, 
 lands by 
 Railway 
 Companies, 
 &c. before 
 completion 
 of purchase. 
 
 (5.) As to entry and possession by Railway Companies 
 before completion. 
 
 By the clauses of the Lands Clauses Consolidation Act, 
 1845, which relate to the entry upon lands by the pro- 
 moters of the undertaking [u), it is, in effect, provided, 
 that the promoters shall not, without the consent of the 
 owners and occupiers, enter {v) upon any land, (except for 
 the purpose of making sm'veys and other similar purposes 
 specified in the act,) until they have paid or deposited the 
 purchase-money or compensation for the same : if, how- 
 ever, before the amount of purchase-money or com- 
 pensation has been determined by agreement, award. 
 
 (r) Maggennis v. Fallon, 2 Moll. 
 588. 
 
 (s) See 2 Moll. 588. 
 
 (t) Supra, p. 116 et seq. 
 
 (m) Sect. 84 to 92. 
 
 (v) This extends to a subterraneous 
 entry ; see Ramsden v. Manchester 
 Railway Company, 5 Rail. Ca. 552 ; 
 
 in a late case the Court refused an 
 injunction, when the entry had been 
 merely for surveying and setting out 
 the line, and the company were no 
 longer in possession : Fooks v. Wilts, 
 Somerset, and Weymouth Railway 
 Company, 5 Ha. 199.
 
 ABSTRACT AND PREPARATION OF CONVEYANCE. 225 
 
 or a verdict^ tliey are desirous of entering, they are ena- '^''^p- ^- 
 bled to do so, upon making such deposit and giving 
 such bond by vray of security as are specified in the 
 85th section of the act : this secimty must be for the 
 vahie of all the land comprised in the notice of pur- 
 chase given by the promoters under the 18th section, 
 although the proposed entry be upon only a part of such 
 land {w) ; no prior notice to the landowner of the inten- 
 tion of the promoters appears to be necessary (.y) : the de- 
 posit is to remain as a security for the performance of the 
 bond, and is to be applied imder the dii-ection of the 
 Court of Chancery {y) ; and it will not be paid to the com- 
 pany T\dtliout notice to the landowner, although the pur- 
 chase may have been completed by agreement, and the 
 purchase-money paid {z) ; he does not, however, seem to 
 have any lien upon it for his costs payable by the pro- 
 moters (a) . Any wilful entry by the promoters, without 
 consent and before payment or deposit, is made the subject 
 of a 10/. penalty : and the retention of possession after con- 
 viction in such penalty renders them liable to a penalty of 
 25/. per diem (6) : but the penalties are not incui-red by 
 
 {w) BarJcer v. North Staffordshire the compensation required by the Act, 
 
 Railway Comjjantj, 2 De G. & S. 55 ; (see s. 114) : but held that he bad 
 
 and as to the form of the bond, see .S.C. no jurisdiction to restrain the Com- 
 
 and Po!/nderv. Great Northern Rail- pany from keeping possession cf the 
 
 way Company, 2 Ph. 330 ; Langham premises. 
 
 V. same Co»2/;a?iy, 1 De G. & S. 486; [x) Bridges v. Wilts, Somerset, 
 
 and Iloskiiis v. Phillips, 5 Rail. Ca. and Weymouth Railway Comjmny, 
 
 5G0; 3 Exch. 168 ; and, generally on 11 Jur. 315. 
 
 the construction of the 85th section, (y) Sect. 87. 
 
 Willey V. Sonth-Eastern Railway (~) Ex parte South Wales Railway 
 
 Company, G Rail. Ca. 100. \\\Ran- Company, 6 Rail. Ca. 151. 
 
 hin V. East and West India Docks (a) Ev parte Stevens, 2 Ph. 772. 
 
 CowT/^ffwy, 14 Jur. 7, Lord Langdale, (i) Sect. S9 ; see Hutchinson v. 
 
 upon tlie application of mortgagees, Manchester Railway Company, 15 
 
 restrained the Company from prose- Mee. & W. 314 ; and Hutchinson v. 
 
 cuting their works until they had East Lancashire Railway Compariy, 
 
 paid or tendered to the mortgagees 3 Rail. Ca. 748. 
 
 Q
 
 226 ABSTRACT AND COXVEYAXCE. 
 
 ^^^P - ^- an entry after pajnnent or deposit made to or in favoiu' of 
 pai-ties wlio were believed to be but -were not actually 
 entitled (c) : in case of an unlawful refusal by tbe land- 
 owners or occupiers to give up possession or permit an 
 entry^ tbe promoters of tbe undertaking can claim tbe 
 assistance of tbe sberiff (d) : and a landowner wbo bas by 
 bis silence and conduct encouraged a company to carry on 
 tbeir works^ upon tbe supposition tbat tbey were entitled 
 to enter and take tbe land in question^ and wbo subse- 
 quently disputes tbe teinns of tbe contract, is not entitled 
 to an interlocutory injunction to restrain tbem from so 
 entering (e). 
 
 (c) See last note. BirmiiifjhamRailirai/ Company, 5My\. 
 
 {d) Sect. 91. & Cr. 784. 
 
 (e) Greenhalgh v. Manchester and 
 
 I
 
 227 
 
 CHAPTER XI. 
 
 AS TO SEARCHES FOR AND INQUIRIES RESPECTING INCUM- 
 BRANCES. 
 
 1. WJiat inquiries should be made of vendor's solicitors; 
 and of supposed incumbrancers, trustees, and tenants. 
 
 2. What searches should be made for incumbrances, — 
 laiv respecting judgments, ^c. 
 
 3. Time for making searches and inquiries. 
 
 (1.) It appears to be a desirable, altliougli it is not, per- inquiry as 
 
 to incum- 
 
 haps, a very usual course, to inquire of the vendor's so- brances, 
 
 ^ " ^ should be 
 
 licitors, (as part of the general requisitions on the title,) ™n*^o°.s 
 whether they are aware of any judgment or other incum- ^o^'^'*"""^^ 
 brance affecting the property, or other matter not noticed 
 in the abstract and aflPecting the vendor's ability to make 
 a marketable title («) : such an inquiry may often save 
 much useless expense, and. a favoiu'able reply not only 
 adds to the security wliich the purchaser will derive from 
 the searches of his own professional advisers, but will also 
 remove any doubt as to his right to be paid for the pre- 
 paration of the conveyance, if such searches disclose in- 
 cumbrances which cannot be got in : the inquiry shoidd 
 specify any matter the existence of which is specially ap- 
 prehended; and when there is reason to suspect the supposed in. 
 existence of any particular incumbrances, an application cers.'''^" 
 should be made to the supposed incumbrancers ; the motive 
 
 (a) It may also be expedient to in- no other title : see Mr. Christie's evi- 
 quire whether the property is held dence before the Registration Com- 
 under the title abstracted, and under missioners ; 1st Report. 
 
 q2
 
 228 
 
 SEARCHES FOR INCUMBRANCES^ ETC. 
 
 Chip. XI. 
 
 Whether in- 
 cumbrai-cer 
 need com- 
 municate 
 his claim to 
 intended 
 purchaser. 
 
 Inquiry 
 should bo 
 made of 
 
 trustees ; 
 
 for the application sliould,, of com-se, be stated^ and tlie 
 parties applied to will be bound by tlieir replies {b) ; it does 
 not, however, appear that an incumbrancer need answer 
 any inquiry respecting the particulars of his security, unless 
 the applicant is entitled and offers to redeem him (c) . 
 
 And an incumbrancer, it is said, need not voluntarily 
 commimicate the existence of liis claim to a person whom 
 he knows to be about purchasing the estate {d) ; this, 
 however, it is conceived, only holds good in cases where 
 there is no reason to suppose that the vendor is about to 
 commit the fraud of selling the estate as unincmnbered ; 
 if, with knowledge of such a fraud being in progress, the 
 incumbrancer were to conceal his claim. Equity, it ap- 
 pears, woidd interfere to prevent his setting up his right 
 against the pm-chaser ; and infancy, or covertm-e, would be 
 no excuse (e) : a fortiori, woidd he be postponed in Equity, 
 if a party to the fraud, or facilitating or encom-aging its 
 commission (/) : and, inasmuch as no prudent person buys 
 an equity of redemption without communicating with a 
 known incumbrancer, it may be conjectured, that if a 
 mortgagee, being aware that the purchase was about to be 
 concluded on a certain day, and having received no inquiry 
 from the purchaser on the subject of the charge, were to 
 allovf him to complete in ignorance of its existence, the 
 Courts would be disposed, on slight additional grounds, to 
 treat such an incumljrancer as an accomplice of the vendor. 
 If the interest about to be purchased be merely equi- 
 table, inquiry as to incumbrances shoidd, (as a matter of 
 prudence,) be made of the trustees or other parties in 
 whom the legal estate is vested, and notice given to them 
 
 [h) Ibhottson V. Rhodes, 2 Vern. 
 554 ; vide supra, p. 42. 
 
 (c) See But/den v. Bignold, 2 Y. & 
 C. C. C. 390. 
 
 {d) Osborn v. Lea, 9 Mod. 96 ; 
 see p. 97. 
 
 (e) Savage v. Foster, 9 Mod. 3G ; 
 Clare v. Earl of Bedford, 13 Vin. 
 Abr. 536. 
 
 (/) Berrisfordv. Milward, 2 Atk. 
 49.
 
 SEARCHES POR INCUMBRANCES,, ETC. 229 
 
 of completion : it does not^ however^ appear that a pur- C'ha p. xi. 
 chaser's rights, (in the case of equitable estates in land,) grve''prfo"°* 
 are affected by his omitting to make such inquiry, or give o7rc"r^^ 
 such notice [g) ; and the inquiry, if unnecessary, need not, 
 it is conceited, be answered : trustees are often unAvillinsf Liability of 
 
 * trustee 
 
 to answer such questions, on account of a case {h) where a ^^^^^ j^. 
 trustee, who (through forgetfidness as he subsequently al- ^°'"'"^*'°°- 
 leged) denied the existence of a charge of which he had 
 notice, was held liable to the piu'chaser ; it appears, however, 
 that he told the purchaser "positively and distinctly^^ [i) 
 that the vendor was absolutely entitled, that he had " an 
 undoubted right" to assign the property {k) ; and, probably 
 a less positive reply, one, for instance, merely denying the 
 present recollection of any notice, would not involve a 
 trustee in similar liability. 
 
 And as notice of a tenancy is notice of the tenant's J^nantl'*^ 
 equities (/) it is a proper precaution, where the property is 
 not in hand, to inquire of the occupying tenants as to the 
 extent and natui'e of their interests (m) ; it appears, however, 
 that notice of a tenancy is not necessarily notice of the 
 tenant's equities as between vendor and piu'chaser [n] ; 
 nor is the doctrine above referred to likely to be ex- 
 tended (o) ; nor need inquiries be made of a person who 
 has recently held but has relinquished possession (^;) . 
 
 (2.) What searches should be made for incumbrances ; — 
 Law respecting judgments, ^c. 
 
 A solicitor is said to be liable to his client for any loss ^]^^'/q7 °^ 
 which may be occasioned by his omission to make any one omitting to 
 
 ((/) Jones V. Jones, 8 Sim. 633 ; 249. 
 
 Wiltshire v. Rabbits, 14 Sim. 7G ; (>«) 1 Jarm. Conv. by S. 119. 
 
 Wilmot V. Pike, 5 Ha. 14. («) Nelthorpe v. Holgate, 1 Coll. 
 
 (h) Burroives v. Lock, 10 Ves. 203. 
 
 470, (o) 1 Ha. 62 ; but see Penny v. 
 
 (j) Ibid, p. 476. Watts, 1 Mac. & G. 150. 
 
 (A) Ibid. p. 475. ip) Miles v. Laiujley, 1 Russ. & 
 
 (/) Daniels v. Davidson, 16 Ves. M. 39.
 
 230 
 
 SEARCHES FOR INCUMBRANCES, ETC. 
 
 Chap. XI. 
 
 search for 
 incum. 
 brances, &c. 
 
 As to 
 searching 
 for judg- 
 luents — 
 general law 
 respecting. 
 
 As respects 
 purchasers, 
 &c., with- 
 out notice, 
 law remains 
 as before 
 1 & 2 Vict. 
 c. 110. 
 
 But want of 
 notice 
 cannot be 
 relied on 
 in practice. 
 
 of tlie numerous searches wliicli may by possibility dis- 
 close matter affecting tlie title [q) ; unless, however, 
 special circumstances render such a course expedient, it is 
 not usual for conveyancing counsel to direct a search for 
 more than judgments, crown debts and accountantships, 
 and lis pendens, and also a general search in the County 
 Register (if any), and in the Manorial Court Rolls, (if the 
 property is copyhold ;) and it may be doubted whether a 
 solicitor would be liable for an omission which is sanc- 
 tioned by general practice : at any rate, it is conceived, 
 that where the title is laid before counsel, who advises a 
 search for certain specified incumbrances, the solicitor need 
 not make a more extensive search unless aware of some 
 particular reason for so doing. 
 
 Of these searches, the most generally important is that 
 for judgments ; to understand the necessity for which, it 
 wiU be necessary to consider briefly the old law, as it 
 existed prior to the 1 & 2 Vict. c. 110, and the alterations 
 Avhich have been introduced by that statute. 
 
 And here it may be proper to observe, that as against 
 purchasers or mortgagees who advance their money 
 without notice of subsisting judgments, the 1 & 2 Vict. 
 c. 110, is rendered a dead letter by the subsequent Act of 
 2 & 3 Vict. c. 11, (except, perhaps, as respects judgments 
 ill the Palatinate Courts :) so that, as respects such piu'- 
 chasers and mortgagees, the Law as it existed before the 
 passing of the former Act, is, with the above exception, 
 alone important ; nor does registration under that Act 
 amomit to notice (r) : at the same time it is inexpedient 
 to rely upon any presumed ^aut of notice [s), (especially 
 where the same solicitor acts for both parties ;) and the 
 propriety of a search by an intended pui'chaser or mort- 
 
 (^q) 1 Jarm. Conv. 104. viz. : that if judgments exist, and are 
 
 (r) See and consider 2 & 3 Vict. discovered by a sub-purchaser upon a 
 
 c. 11, s. 5. re-sale, it may be impossible to satisfy 
 
 (.y) For this, among other reasons, him of the original want of notice. 
 
 ti
 
 SEARCHES FOR INCUMBRANCES^ ETC. 231 
 
 gagee, niay, practically, be considered cliiefly with refer- ciiap. xi. 
 ence to the extended effect of judgments under the new law. 
 
 Upon an elegit, under the old law, the judgment Judgments 
 creditor might take in execution a moiety, (or under two la^j'- wbat 
 judgments of tlie same term an entirety,) of the following ^fi^cted. 
 property of his debtor {t) ; \dz., freeholds, land held in 
 ancient demesne, rent-charges, estates granted by the 
 Crown for the maintenance of dignities, impropriate tithes, 
 and terms of years, including, (probably,) leases of copy- 
 liokls granted by license of the lord, or, (it is conceived,) 
 under a special custom ; and this, whether the same respec- 
 tively were held in severalty, coparcenery, or in common. 
 
 The right affected reversions, estates held by a hus- 
 band during covertui'e or by the curtesy, estates tail 
 during the life of tenant in tail, and estates held in 
 joint-tenancy dm'ing the life of the joint-tenant. 
 
 And, as to terms of years, either the moiety might be 
 extended upon a single writ, or the entirety might be sold 
 as part of the debtor's chattels. 
 
 And, under the Statute of Frauds, the legal rights of 
 the creditor were extended to estates of which a trustee 
 Avas seised simply in trust for the debtor at the time of 
 execution sued {u) ; this provision, it mil be observed, does 
 not affect trusts of terms for years, nor has it been held to 
 affect equities of redemption, or any equitable estate in 
 Avhich the debtor has not the sole beneficial interest {v) . 
 
 But advowsons in gross, glebe, rents-seek, and copy- ^7^*^*^''^^ 
 holds (except as respects leases thereof) are not extendible ^^^^*- 
 under the old law ; nor are the lands of a tenant in tail, 
 or joint-tenant, so extendible, except for his life (w). 
 
 And it seems doubtful whether the exemption of copy- 
 holds extended to customary freeholds {ai) . 
 
 (0 Prid. on J. 7, 8, 9. (w) Idid. 8. 
 
 (m) Ibid. 15, (x) See Scrir. on Copyholds, 570. 
 
 (v) Ibid. 18.
 
 232 
 
 SEARCHES FOR INCUMBRANCES^ ETC. 
 
 Chap. XI. 
 
 Dockcti! g 
 was neces- 
 sary as 
 against 
 purchase's. 
 
 r.iit pur- 
 chaser was 
 bound in 
 Equity by 
 notice of 
 undocketed 
 judgment. 
 
 Equity aid- 
 ed ju'lgment 
 creditor 
 against 
 equitable 
 estates. 
 
 Judgment, 
 how affected 
 by bank- 
 ruptcy. 
 
 rurehaser 
 williout 
 notice pro- 
 tected by 
 legal estate. 
 
 Nor^ as against piircliasers {y), was a term for rears 
 bound, until the Tvrit ^^■as delivered to tlie slieriff {z) . 
 
 And in order that a judgment might be binding as against 
 purchasers or mortgagees, it had to be docketed under the 
 Act of William and ]Mary ; and, (if intended to affect land 
 in a Eegister County,) entered in the local register («) . 
 
 The omission to docket or register, was, however, im- 
 material in Equity, if a purchaser or mortgagee advanced 
 his money with actual notice, (either to himself or his 
 agent,) of the judgment [b) . 
 
 And Equity would assist a judgment creditor to the 
 partial equitable interest of his debtor, in those cases in 
 which he vrould have been entitled to execution under the 
 Statute of Frauds in case the debtor had owned the entire 
 beneficial interest (c) ; but he was obliged to sue out an 
 ele(/it before filing his bill {d) . 
 
 But the judgment creditor acquired no preference in 
 bauki'uptcy, unless execution had been sued before the 
 issuing of the fiat or commission (e) . 
 
 It followed, from what has been above stated, that a 
 pui'chaser who, before execution sued (/), got in an out- 
 standing legal estate, (even a mere satisfied term,) or 
 prociu'cd a declaration of trust in his favour by the 
 trustee, or who, (as in the case of a mortgagee purchasing 
 the equity of redemption,) was himself seised or possessed 
 of the legal estate, was protected from judgments of which 
 he had no notice {^) at the time of his piu'chase; but of 
 course, where the outstanding estate "was less than the fee 
 
 (y) Sedaliter, as against the debt- 
 or's personal representatives ; Ran- 
 ken V. Harwood, 5 Ha, 215. 
 
 (z) Prid. on J. 13. 
 
 (a) Ibid. 47, 49. 
 
 lb) Ibid. 51 ; Sug. 661. 
 
 (c) Prid. on J. 25. 
 
 (rf) Neate v. Duke of Marlborough , 
 
 3 My I. & C. 407 ; Smith v. Hurst, 
 1 Coll. 705. 
 
 (e) 6 Geo. IV. c. 16, s. lOS ; see 
 now 12 & 13 Vict. c. 106,8.184: and 
 see Coote on Mortgages, 3rd ed. 68. 
 
 (/) Sug. 659. 
 
 {(/) Tnnstall v. T7-appes, 3 Sim. 
 28G, 299.
 
 SEARCHES FOR INCUMBRANCES^ ETC. 233 
 
 simple, it Avas no protection against subsisting judgments ^^^p- ^^- 
 of a date prior to its creation ; and the want of notice was 
 essential in Equity. 
 
 But the exercise of a power of appointment defeated a u^^gl?"^'^!!^.,. 
 judgment entered up subsequently to the creation of the men^t^'not " 
 power_, and notice in this case was immaterial {h), for the jlidlments, 
 
 „ 11 T • 1 •! 1 • notwith- 
 
 iuda-ment only affected the estate umited until and ni standing 
 
 •' ° •'^ notice. 
 
 default of appointment. 
 
 A judgment entered up against the vendor, subsequently P^|^^ei[t 
 to the contract but before conveyance, was immaterial in contract. 
 Equity {i), except that it formed a lien upon such part (if 
 any) of the pui'chase-money as remained unpaid {k) : and 
 an ejectment against a purchaser in possession, by a cre- 
 ditor who had sued out an elegit on such a judgment, 
 y/OLild be restrained by injmiction (/) : so, also, a trust for 
 sale, if well created, Avas not affected by subsequent judg- 
 ments ; nor, if the trustee had power to give receipts, were 
 the judgment creditors necessary parties to the convey- 
 ance {m) : nor was it material that the sale was not by the 
 trustees, but by the Court {n) ; and the same, it is con- 
 ceived, is the rule under the new law. 
 
 By the 11th section of the 1 & 2 A'ict. c. 110, (as mo- grremi 
 dified by the 2 & 3 Vict. c. 11, and 3 & 4 Vict. c. 82,) a credi'tor 
 
 , -11 Tii-i- under new 
 
 judgment, duly registered, entitles the creditor to take m law. 
 execution, except as against purchasers or mortgagees who 
 became such before the 1st day of October, 1838, and 
 also purchasers and mortgagees without notice (o), an 
 entii-ety of ''all such lands, tenements, rectories, tithes, 
 rents, and hereditaments, including lands and heredita- 
 ments of copyhold or customary teniu-e, as the person 
 
 (h) 3 Sim. 300 ; Eaton v. Sanxter, N. S., Ch. 8. 
 6 Sim. 517; Skeeles v. Shearly, 3 (w) Lodge v. Lyseley, 4 Sim. 70. 
 
 Myl. & C. 112. («) Alexander v. Crosby, 1 J. & 
 
 (0 Sug. G53. L. 672. 
 
 (A) PriJ. on J. 21. (o) 2 & 3 Vict. c. 11, s. 5. 
 
 (0 Brunlon v. Kcol-, 14 L. J.,
 
 234 SEARCHES FOR INCUMBRANCES, ETC. 
 
 Chap. XI. against whom execution is so sued, or any person in trust 
 for him, shall have been seised, or possessed, at the time 
 of entering up [p) the said judgment, or at any time af- 
 terwards ; or over which such person shall, at the time of 
 entering up such judgment or at any time afterwards, have 
 any disposing power, which he might, ^vithout the assent 
 of any other person, exercise for his own benefit.^' 
 
 Under these provisions, it will be observed that, under 
 an elegit, the creditor can take the entii'ety (instead of a 
 mere moiety) of the property; and this right extends to 
 copyholds, estates subject to a general power of appoint- 
 ment, and, (probably,) terms for years and simple trusts 
 thereof [q) ; and that, as respects legal terms for years (r) 
 and equitable estates generally, the judgment is now 
 binding from the time of its being entered up, instead of, 
 as formerly, from the date of execution. 
 
 It is also observable, that the estate of a joint-tenant is 
 extendible as against a svuniving joint-tenant, and not, as 
 formerly, merely for the life of the debtor. 
 
 It also seems probable, that the judgment creditor of a 
 tenant in tail, (where there is a protector,) can take the 
 land ill execution as against the issue in tail ; and that the 
 judgment creditor of a tenant in tail, (where there is no 
 protector,) can take the land in execution, not only as 
 against the issue in tail, but also as against remaindermen. 
 
 It does not, however, appear, that the creditor acquires 
 any remedy at Law against equitable estates, except in 
 
 {p) That is, the day on which G. 233 ; Newton v. Grand Junction 
 
 judgment is originally signed in the Railiimy Company, 16 Mee. & W. 
 
 Master's book, not the day on which 142 ; but see Peirce v. Derry, 4 Q. 
 
 the roll is carried in and the judg- B. 635. 
 
 ment is entered of record ; and this, (q) Prid. on J. 68; Sug. 607; 
 
 although the original entry in the see however Coote on Mortgages, 3rd 
 
 Master'sbookbe subsequentlyamend- ed. 44. 
 
 ed on a revision of the taxation of (r) Sug. 667. 
 costs : Fisher v. Dudding, 3 Man. &
 
 SEARCHES FOR INCUMBRANCES, ETC. 235 
 
 cases of simple trusts iii favom- of the debtor ; e. g., it is i^^^f^i^L 
 conceived that an equity of redemption cannot be taken in 
 execution {s), but that land held simply in trust for the 
 debtor at the date of the judgment can be taken in execu- 
 tion_, notmthstanding intermediate alienation, (vmless to an 
 alienee for valuable consideration and without notice) . 
 
 And by the 13th section of the 1 & 2 Vict. c. 110, (as ^^^^t^ 
 modified by the two later Acts,) a registered judgment is cr^uof ° 
 
 ' • 1 J -J.! i. i.- under new 
 
 (except as agamst purchasers or mortgagees without notice, law. 
 or who became such before 1st October, 1838,) made to 
 '' operate as a charge upon all lands, tenements, rectories, 
 advowsons, tithes, rents, and hereditaments (including 
 lands and hereditaments of copyhold or customary tenure) 
 of or to wliich such person shall at the time of entering up 
 such judgment, or at any time afterwards, be seised, pos- 
 sessed, or entitled for any estate or interest whatever, at 
 law or in equity, whether in possession, reversion, re- 
 mainder, or expectancy, or over which such person shall at 
 the time of entering up such judgment or at any time after- 
 wards, have any disposing power which he might without 
 the assent of any other person exercise for his own benefit, 
 and shall be binding as against the person against whom 
 judgment shall be so entered up, and against aU persons 
 claiming under him after such judgment, and shall also be 
 binding as against the issue of liis body and all other per- 
 sons whom he might without the assent of any other person 
 cut oft' and debar from any remainder, reversion, or other 
 interest in or out of any of the said lands, tenements, rec- 
 tories, advowsons, tithes, rents, and hereditaments; and 
 that every judgment creditor shall have such and the same 
 remedies in a Court of Equity against the hereditaments so 
 charged by \irtue of the Act, or any part thereof, as he 
 Avould be entitled to in case the person against whom such 
 
 (s) Sug. 665.
 
 236 SEARCHES FOR INCUMBRANCES^ ETC. 
 
 Chap. XI. judgment shall liave been so entered up had po^-er to 
 charge the same hereditaments and had by Avriting under 
 his hand agreed to charge the same^ Tvith the amount of 
 such judgment debt and interest thereon : Provided that 
 no judgment creditor shall be entitled to proceed in Equity 
 to obtain the benefit of such charge until after the expira- 
 tion of one year from the time of entering up such judg- 
 ment" {t). 
 
 These provisions leave no doubt as to the rights in Equity 
 of a judgment creditor of a tenant in tail. 
 Judgment, go, in casc of baukruptcv, the iudgment creditor "would 
 
 how now ^ X ., -> J o 
 
 blnkr"p&- ^^^™^ under the 13th sect, of the Act, to have all the rights 
 of an equitable mortgagee, provided that the judgment was 
 entered up twelve months before the issuing of the fiat {u) : 
 in the case of a judgment entered up under a warrant of 
 attorney, and of the subsequent insolvency of the debtor, 
 the judgment creditor's security is not affected by the 
 61st section of the Act {iv). 
 
 The recent Bankruptcy Law Consolidation Act (.2?) avoids 
 warrants of attorney to confess judgment in any personal 
 action and being for or in respect of, wholly or in part, an 
 antecedent debt or money demand and everj^ cognovit ac- 
 tionem or consent to a judge's order for judgment in any 
 action commenced by collusion with the bankrupt or not ad- 
 versely, or pm'porting to be given in an action, but having 
 been in fact given before the commencement of any action 
 against him, in cases where the same respectively are given 
 on or after the 11th October, 1849, and within two months 
 before filing the petition in bankruptcy and the bankrupt 
 at the time of giving the same is imable to meet his en- 
 
 (0 See Smith v, Htirst, 1 Coll. lest on v. Morton, 1 Dru. & W. 195, 
 
 705. As to the form of decree which and 12 & 13 Vict. c. 106, s. 184. 
 
 may be obtained by a judgment ere- (c) Ilotham v. Somerville, 9 Beav. 
 
 ditor, see Carton v. Farlar, 8 Beav. 63. 
 
 525. (x) Sect. 135 ; and see ss. 136, 
 
 (m) Sect, 13 of Act ; and see Rol- 137.
 
 SEARCHES rOPv INCUilBHAXCESj ETC. 237 
 
 gagements; wlietlier tliey be given in contemplation of <^hap. xi. 
 bankrnptcy or not. 
 
 The recent important case of TVhitivorfh v. Gaugam h/) Judgment 
 
 "'. ^"^^ creditor 
 
 seems to show that the statements in the text books that a postponed 
 
 to cestin que 
 
 jndgment under the new law operates as a specific charge pHorequita- 
 upon the debtor's lands, must be received with very serious blancer™ 
 qualification, if in fact the expression be any longer appli- 
 cable : this case established the following principle : viz., 
 that where a debtor has merely a modified or qualified 
 interest in the lands, as where he holds them wholly or in 
 part as a trustee or subject to any previous incumbrance 
 whether legal or merely equitable, the judgment must be 
 considered as the statutory equivalent to his written agree- 
 ment to charge, not the lands themselves, but merely that 
 which he may rightfully charge, viz., his beneficial interest 
 (if any) in them ; so that the judgment creditor, although 
 he subsequently acquii'e the legal estate, is postponed to a 
 cestui que trust, or a prior equitable incumbrancer who 
 advanced his money upon the security of the specific 
 property. 
 
 In the recent case of Harris v. Davison (z) , Sir L. Shad- ^{»'V^ ^• 
 
 \ ''•' Davison. 
 
 well, V. C, with reference to the 13th section of the 1 & 2 
 Vict. c. 110, said, that he '^'' could not conceive any set of 
 words better adapted to describe every possible interest in 
 lands of every possible description; they are as compre- 
 hensive as possible, and include lands of every tenure, 
 except, perhaps, lands held in ancient demesne ; " he then 
 decided that a registered judgment operated as a charge 
 upon the beneficial interest of the debtor (the grantee of a 
 personal annuity) under a trust for sale of leaseholds for 
 better securing the payment of the said annuity : this deci- '{"'^.fjjl®"* 
 sion (which seems to involve the necessity of a search for ^iiai-ge on 
 
 {y) 1 Phil. 728 ; and see New- Langton v. Horton, 1 Ha. 549, 560. 
 lands V. Paynter, 4 Mjl. & Cr. 408 ; {z) 15 Sim. 128.
 
 238 
 
 SEARCHES FOR INCUMBRANCES^ ETC. 
 
 Chap. XI. 
 
 mortgage 
 debt. 
 
 Is a charge 
 on annuity- 
 issuing out 
 of land. 
 
 And pro- 
 bably on 
 legacy 
 charged on 
 land. 
 
 So, on 
 unpaid pur- 
 chase- 
 money, 
 
 and on sur- 
 plus pro- 
 ceeds of sale 
 by mort- 
 gagee. 
 
 Certain de- 
 crees and 
 orders have 
 the effect of 
 judgments. 
 
 Remedies 
 under new 
 
 judgments against a mortgagee upon taking a transfer of 
 or paying off tlie mortgage debt) has^ it is understood^ been 
 to a considerable extent disregarded in practice by conA-ey- 
 ancers («). 
 
 But an annuity given by a will^ and charged upon, or 
 issuing out of land, is an interest in land within the Sta- 
 tute (6) ; so that a search for judgments against such an 
 annuitant mil be necessary, if his annuity is to be released 
 or dealt with. 
 
 The same, it is conceived, must be the ride as to a legacy 
 charged upon land. 
 
 A judgment entered up against the vendor after a con- 
 tract for sale, is, as formerly, an equitable charge upon the 
 unpaid piu'chase-money ; although execution cannot be 
 levied upon it (c) ; and so, upon a sale by a mortgagee, 
 the surplus proceeds of sale are charged by judgments 
 entered up against the mortgagor subsequently to the 
 mortgage id). 
 
 By the 18th section of 1 & 2 Yict. c. 110, decrees and 
 orders of Courts of Equity, and all rules of Courts of com- 
 mon law, and all orders of the Lord Chancellor, or of the 
 Com't of Ile\iew (while it existed) in matters of bank- 
 ruptcy (e), and all orders of the Lord Chancellor in matters 
 of lunacy, whereby any sum of money, or any costs, charges, 
 or expenses, shall be payable to any person, are to have the 
 effect of judgments. 
 
 And bv the 19th and 21st sections of the same Act, in 
 
 (a) See Mr. Christie's evidence 
 before the Registration Commission- 
 ers, 1st Report ; but see also Clare 
 V. Wood, 4 Ha. 81 ; Coote on Mort- 
 gages, 3rd ed. 44 : the general and 
 safer practice appears to be to make 
 the search. 
 
 {b) Younghusband v. Gisbome, 1 
 
 De G. & S. 209. 
 
 (c) Brown v. Perrott, 4 Beav. 
 585. 
 
 (d) Robinson v. Hedger, 13 Jur. 
 846 ; 14 Jur. 784, V. C. E. 
 
 (e) And see now 12 & 13 Vict. c. 
 106. ss. 123, 248.
 
 SEAllCHES FOR INCUMBRANCES^ ETC. 239 
 
 order that any judgment^ decree, order, or rule, may be- c'lap . xi. 
 come operative under the Act as against pui'chasers, mort- Ifpon regls^ 
 gagees, or creditors, a memorandum thereof must be left 
 for registration (/) with the Senior Master of the Common 
 Pleas at Westminster; or, (in the case of a judgment 
 obtained in the Courts of Lancaster or Durham,) with the 
 prothonotary, or deputy prothonotary, or other appointed 
 officer of such Com-ts respectively ; and by the 2 & 3 Vict, 
 c. 11, the old dockets were closed, and judgments then 
 docketed were not to ajftect lands, &c., as against pur- 
 chasers, mortgagees, or creditors, after the 1st August, 1841, 
 until a memorandum thereof was left for registration at 
 Westminster under the 1 & 2 Yict. c. 110; and as respects 
 judgments registered at Westminster, afresh memorandum 
 was required to be left for registration every five years [g) ; 
 so that in no case need a search at Westminster extend 
 back for more than five years; but the search for the five 
 years preceding the purchase should be made, not onh^ as 
 against the present vendor, but also against former owners, 
 although more than five years may have elapsed since they 
 parted with the property. 
 
 It may be here observed, that where a iudo-ment is Neglect to 
 
 '' ' JO re-register 
 
 re-registered after the expiration of more than five years years— ^^^ 
 from the date of the last registration, there seems to be ^ ^^^^ ' 
 nothing in the Act to affect its vahdity, except as against 
 pm'chasers or mortgagees claiming under an instrument 
 executed between the expiration of such period of five 
 years and the subsequent registration. 
 
 No provision seems to be made for the fresh registration Fresh legis- 
 
 ^ " tration of 
 
 of judgments, &c., in the Palatinate Courts of Lancaster |n'^aia«-^ 
 and Dm-ham ; the 4th section of the 2 & 3 Yict. c. 11, clearly fvUetheTnl- 
 
 cessary. 
 
 (./) Notwithftanding these are the received the memorandum were to 
 
 words of the Act, it may be doubted omit to register it. 
 whether the judgment would bind {(j) See ss. 1, 2, and 4, of 2 & 3 
 
 purchasers, &c., if the officer having Vict. c. 11.
 
 240 
 
 SEARCHES FOR INCUMBRANCES^ ETC. 
 
 Chap. XI. 
 
 What 
 searches 
 should be 
 made in 
 purchasing 
 estates in 
 Counties 
 Palatine. 
 
 .Tu'l.s;inents 
 in I'iildti- 
 uate Courts, 
 ■whether 
 binding on 
 purchasers 
 witliout 
 notice. 
 
 Purchaser 
 with notice 
 of unregis- 
 tered judg- 
 ment, liow 
 far liable. 
 
 (as it appears) referring merely to tliose judgments, &c., 
 whicli must be originally registered Avitli the senior Master 
 of tlie Court of Common Pleas at Westminster : therefore, 
 upon a pm'chase of lands in one of the Counties Palatine, 
 the search in the local index should, it is conceived, he 
 carried back as far as "svas usual under the old practice ; 
 riz., in ordinary cases, ten years from the date of the 
 search, or ten years from the earliest registered judgment, 
 if any -were met with ; and, since lands in a Coimty 
 Palatine may be extended on a judgment obtained in one 
 of the superior Courts at Westminster, it will also be 
 proper to search the Register at Westminster (/«) , 
 
 And there seem to be grounds for contending that 
 judgments registered in the Palatinate Courts have their 
 full effect under the 1 & 2 Vict. c. 110, even as against 
 purchasers and mortgagees -oithout notice ; inasmuch as 
 the v.'oi'ds '' as aforesaid," in the 5th section of the 3 & 3 
 Vict. c. 11, seem to identify the judgments, decrees, &c., 
 mentioned in that section, with those mentioned in the 
 preceding section ; and those, as before observed, appear 
 to be such only as are required to be registered Mith the 
 senior IMaster of the Common Pleas at Westminster : and 
 a similar question seems to arise as to the applicabilit}'^ of 
 the 2nd section of the 3 & 4 Vict. c. 82, to Palatinate 
 Judgments. 
 
 A purchaser with notice of an unregistered jvidgment is 
 protected [i) from the additional remedies of the judgment 
 creditor under the 1 & 2 Vict. c. 110; and, since the old 
 dockets are closed, he is equally safe from any remedy 
 which under the old law depended upon docketing ; but it 
 is conceived to be doubtful whether a purchaser with 
 notice of an unregistered judgment is not still bound in 
 Equity to the same extent as he would have been bound 
 
 {h) Prid. on J. 110. 
 
 (J) 3 & 4 Vict. c. 82 ; 9?/,«re, as to Palatinate Judgments. Videsujn'a.
 
 SEARCHES FOR INCUMBRANCES, ETC. 241 
 
 under the old law by notice of an undocketed judgment ; Chap. xi 
 for instance, whether, if purchasing from an owner in fee 
 simple, he would not be liable in Equity to have a moiety 
 of the land subjected to the claim of a creditor of whose 
 unregistered judgment he had notice at the time of ad- 
 vancing his money ; although if purchasing mider a power 
 of appointment, he might altogether disregard unregistered 
 judgments against the vendor of a date subseqvient to the 
 creation of the power; inasmuch as, under the old law, 
 the exercise of the power defeated such judgments as well 
 in Equity as at Law : it has even been made a question 
 whether a purchaser may not at Law be bound by a judg- 
 ment neither docketed nor registered in the same way as 
 he would have been bound by it before the Act of William 
 and jNIary {k) : but the point does not seem to be one of 
 real difficulty (/) . 
 
 It appears however to be the opinion of Sir E. Sugden docifeTed''' 
 that where a judgment has been once docketed under the gi^tereti.'^or 
 old Acts, but has not been registered under the 1 & 2 but, not re- 
 
 gistered 
 
 Vict. c. 110, or where a iudgment having been registered presumed to 
 
 ' JO OS) be satisfied. 
 
 under that Act has not been re-registered at the end of 
 five years, under the 2 & 3 Vict. c. 11, a purchaser for 
 value, although aware of its previous docketing or regis- 
 tration, may presume that it has been satisfied [m) . 
 
 Except in the case of copyholds {n), search should be dibts'and 
 made at the Common Pleas for debts and accountantships shfpi!"**"** 
 to the Crown ; and the search must not be confined to the . ^^Q. J/C*Jr 
 last five years, as fresh registration of these habilities is 
 not required ; and as the 8th section of 2 & 3 Vict. c. 11, 
 is not retrospective (o), it will still, for some time to come, 
 
 {Jc) Coote on Mortgages, 50. & Wal. 542 ; Hickson v. C'ollis, 1 J. & 
 
 (0 Sug. 667. L. 94. 
 
 (m) Beere v. Head, 3 J. & L. (n) Aldrich v. Cooper, 8 Ves. 394 ; 
 
 340; and see Bedford v. Forbes, 1 Scriv. on Cop. 88. 
 
 Car. & K. 33 (Cresswell) ; and upon {o) Sug. 673. 
 the Irish Acts, Knor v. Kelly, 1 D. 
 
 R
 
 242 
 
 SEARCHES FOR INCUMBRANCES, ETC. 
 
 ^''»P ^^ be often expedient to ascertain (if possible) by searclies at 
 the Excliequer office, and among the Receiver-General's 
 bonds at the Tax office (p), that no such liability was 
 subsisting before the 4th June, 1839, when the 2 & 3 Vict, 
 c. 1 1, came into operation. The claim of the Crown, it may 
 be obsened, extends to ecjuities of redemption ; and is not 
 defeated by the execution of a power of appointment (y), 
 or the assignment of a tenn already held in trust for the 
 debtor or accountant (r) ; and the lands of an accountant 
 are liable for moneys which become due from him even 
 subsequently to alienation (.v). 
 
 Litptndfna. It is, as a general rule, proper to search the llogistcr at 
 Westminster for lis jhikIchs ; this search need not go 
 further back than five years. 
 
 When the property is copyhold, the Court Rolls (/) 
 should be searched for incumbrances, &c., not appcsiring 
 on the abstract ; so, where the property lies in a district 
 sjibject to the Register Acts, viz. Middlesex, Yorkshire, 
 Kiugston-upon-llull, and the Bedford Level, searches 
 shoidd be made in the local regirfters : these searches 
 should be extended over the whole period covered by the 
 abstract : eoj)yholds, however, are excepted out of the 
 Register Acts of Yorkshire, Middlesex, and Kingston- 
 upon-Hull [u) ; but it is doubtful whether the exception 
 extends to leases of copyhold estates {w). 
 
 and^™"^!*^^ lu uianv cascs, it may be proper to search the Com'ts 
 
 Courts. ®^ Bankruptcy and Insolvency ; purchasers Mithout notice 
 
 Court Rolls 
 and local 
 n-gluters. 
 
 {})) 1 Jarm. Conv. by S. 112. 
 
 (y) Prid. on J. 1.^4 ; Reg. v. Ellis, 
 19 L. J., N. S. 77, Exch. 
 
 (r) Sug. 673. 
 
 (*) Sug. G74 : as to who are liable 
 as ancountants, see 13 Eliz. c. 4 ; and 
 Prid. on J. 159, et scq. 
 
 (0 But the purchaser before ad- 
 mittance appears to have no right of 
 
 inspection : Scriv. on Cop. 493, 4(h 
 ed. : the tenant, or any person claim- 
 ing an interest under the Court Rolls, 
 can compel inspection by mandamus, 
 iliid. 532, and cases cited : see Ex 
 jinrte Cooke, 5 Dow. & L. 413. 
 
 (m) Scriv. on Cop. 1113. 
 
 (w) Sug. 980,
 
 SEARCHES FOR INCUMBRANCES, ETC. 243 
 
 were protected by the 2 & 3 Vict. c. 11, s. 12, ;md 2 & 3 c»'»p- xt- 
 Vict. c. 29, Ji^aiust acts of bankruptcy upon wliicli no fiat 
 had actually issued, the provisions of these Statutes are 
 repealed but in effect re-enacted by the recent Consolida- 
 tion Act (x) ; and notice of an ai-t of ])ankruptcy is im- 
 material, if twelve months have elapsed without a fiat 
 issuing or a petition for adjmlication in bankruptcy being 
 filed tlicreupon {i/). 
 
 Sir E. Siifff/eii says, that it is "the duty of the pur- An'mitu*. 
 chaser's solicitor to search for annuities" (r) ; Mr. Jurman, 
 on the contrary, states that " in ordinary c.iscs the search 
 can scarcely be recommended" {a) ; the general practice is 
 l)L'Heved to accord with the latter opinion. 
 
 We may here remark that the principle of general 
 charges u])on property is strongly disapproved of by the 
 present Registration Commissioners (/>) ; and that the law 
 upon the subject will not improbably be submitted to the 
 further consideration of the Legislature. 
 
 Where the estate has been entailed, or has l)elonged to .^t^Xaiui 
 married women, it niay be i)roper, in special cases, to u^dgm^nt* 
 search for inroUed deeds and acknowledgments mider the worucn"* 
 3 ic 1 Will. I\ . c. 71 ; but such a search, it is conceived, 
 is not usual in jjracticc, unless there is reason to suspect 
 the existence of suppressed documents. 
 
 (3.) Time for muk'tny searches (uul i//(jNiries. 
 
 Whatever searches and incpiiries are deemed necessary, ^c'*'^^v*'h|n 
 should, of course, be brought down to a point as close as ^° ^^ """'^" 
 possible to the time fixed for completion : some practi- 
 tioners make the search immediately after obtaining an 
 opinion upon the abstract, and a supplemental search 
 
 (t) Sect. 133. {:) Sug. 677. 
 
 (y) 5 & 6 Vict. c. 122, 9. 7; 12 & (a) 1 Jarni. Conv. by S. 118. 
 
 13 Vict. c. lOfi, ss. 88, I'.U. (*) See the Ist Report. 
 
 r2
 
 244 SEARCHES FOR INCUMBRANCES, ETC. 
 
 Ch ap. XI. immediately before completion; but the more ordinary 
 course, it is conceived, is to make but one search, and 
 that immediately before completion. 
 
 Unneces- 'S^q may here remark, that a solicitor wiU not be allowed 
 
 sary costs of •' ' 
 
 upon taxation, even as between solicitor and cHent, the 
 costs of searches directed by counsel, but which have, to 
 the knowledge of the solicitor, been rendered unnecessary 
 by subsequent events (c). 
 
 (c) Langford v. Mahony, 3 J. & L. 97. 
 
 not allowed.
 
 24r 
 
 CHAPTER XII. chap.xn. 
 
 Purchaser 
 
 prepares 
 
 conveyance. 
 
 AS TO THE PREPARATION OF THE CONVEYANCE. 
 
 1 . General matters relating to, and to the form of. 
 
 2. As to the parties. 
 
 3. The recitals. 
 
 4. The consideration — words of conveyance — and parcels. 
 
 5. The covenants. 
 
 6. The draft and engrossment. 
 
 (1.) Upon a sale in consideration of a gross sum, the pur- 
 chaser, having accepted the title, is bound to prepare the 
 conveyance, and tender it for execution to the vendor [a) ; 
 and reason seems to favour the same rule even where the 
 consideration is a rent- charge, although the practice in 
 such cases appears to be unsettled {b) . 
 
 A custom in a manor, that the steward shall prepare all custom, that 
 surrenders for a reasonable fee, appears to be valid (c) . prepare aii 
 
 surrenders, 
 
 Even if a contract for purchase of an equitable in- is valid. 
 
 / 7\ , 1 Conveyance 
 
 terest can m itself amount to a conveyance id) the pur- of equitable 
 
 , interest. 
 
 chaser is entitled to a formal assurance, if such appears 
 by the contract to be necessary in order to carry the in- 
 tention of the parties into effect (e) . 
 
 As we have already seen (/), the preparation of the Preparation 
 
 («) Sug. 263. * (d) But see, as to this, supra, p. 
 
 (6) 9 Jarm. Conv. by S. 518. 115. 
 
 (e) Eex' v. Rigge, 2 B. & Al. 550 ; (e) Fenner v. Hepburn, 2 Y. & 
 
 Reg. V. Bishopstoke (Lord of Manor C. C. C. 159. 
 
 of), 8 Dowl. P. C. 608. (/) Supra, p. 218.
 
 246 PREPARATION OF CONVEYANCE. 
 
 C hap. XII . conveyance is not^ necessarily, a waiver of objections to 
 
 ance'iKfac- or requisitions upon the title. / 
 
 cep^anceo j^ -^^^ been held, tbat a purchaser cannot compel the 
 
 purchaser vcudor to get in an outstanding equitable interest by a deed 
 
 outstanding distiuct from the general conveyance (g) ; it is, however, 
 
 andincum- conccivcd, that this doctrine must be applied with hesi- 
 
 brances to 
 
 be got in by tatiou {h) ; and that, subject to the question of expense (^), 
 ^^^^- a purchaser may generally object to have his conveyance 
 
 incumbered Avith matter arising from the comphcated state 
 of the title {k) : indeed it may often, especially when the 
 property is hkely to be much sub-di\dded, be most de- 
 sirable to avoid any reference upon the conveyance to a 
 voluminous although apparently satisfactory earlier title. 
 
 May re- So, it is conccived, that (subiect to the question of ex- 
 
 quire con- . 
 
 fi™^twnof pense) a purchaser may insist on keeping off the face of 
 
 parate'd^e^ed, t^s Conveyance any matter which, although agreed to be 
 *"" *^' waived as an objection, yet tends to throw a doubt upon 
 
 the title; or any collateral matter which may hereafter 
 embarrass the proof of the title : if, for instance, trustees 
 Avere to sell under circumstances not necessarily appearing 
 upon the face of the conveyance, but amounting to a 
 breach of trust, and the cestuis que trust agreed to con- 
 firm the sale, the purchaser might, it is conceived, insist 
 upon taking this confirmation by a separate deed; for to 
 include it in the conveyance would oblige him upon a 
 resale to prove who were the parties beneficially interested, 
 and might give rise to questions which would have been 
 wholly immaterial to a sub-pm'chaser AA-ithout notice of the 
 breach of trust. 
 ^" ary^mat- It may, in fact, be laid down as a general rule in pre- 
 parties to be paring convcyanccs, that not only should all objectionable 
 
 (^r) Reeves \. Gill, 1 Beav. 375. {k) See Jones v, Lewis, 11 Jur. 
 
 {h) Sug. 690. 511 ; and 1 De G. & S. 245 ; stated 
 
 (?) As to which", vide infra, Ch. infra. 
 XIII.
 
 PREPARATION OF CONVEYANCE. 247 
 
 or doubtful matter be kept off the title, but that nothing Chap^xi r. 
 should be brought on to it the introduction of which is not veyan^?°"' 
 evidently necessary or expedient; in proportion as addi- 
 tional matter is introduced into a deed, and additional per- 
 sons are made parties to it, the chances of some error or 
 ambiguity existing in it are increased. 
 
 So, a purchaser from a tenant in tail, may, it is sub- ^ied^to b?^ 
 mitted, insist upon the property being disentailed by a ^"ilctfrom 
 separate deed; and may reasonably object to any unne- *=°"^*'y^°'=®- 
 cessary exposure of his title in a public office. 
 
 The Lands Clauses Consolidation Act, 1845, and the statutory 
 
 forms of 
 
 earlier Railway and other similar Acts, contain statutory ^^j^^^y^ 
 forms of conveyance to the several Companies; but the eligible!' 
 use of these forms, in preference to the ordinary instru- 
 ments of assurance, is not obligatory, or usual; nor does it 
 appear to be expedient (/) . 
 
 The same remarks apply, and with greater force, to l^or^par- 
 certain short forms authorized by Acts passed in the Ibrmror^ 
 Session of 1845 (m) ; such enactments are either unneces- 
 sary or mischievous; — unnecessary, if the parliamentary 
 form would, if unauthorized by Parliament, merely express 
 in fewer words the meaning of the forms in ordinary use ; 
 and mischievous, if an unnatural and secondary meaning is 
 given by Statute to words which sxe prima facie clear and 
 intelligible ; for the effect is, to increase the difficulty of 
 legal documents to the unprofessional reader : for instance, 
 a lessee who has, in the usual way, covenanted not "to 
 carry on any trade or business" upon the demised pre- 
 mises, may feel a reasonable and saving doubt whether he 
 is safe in using them for a school {n) ; but, unless more 
 addicted than is customary to the perusal of Acts of Parlia- 
 ment, he probably will scarcely suspect that such an occu- 
 
 (/)Frend&Ware's Rail. Conv. 133. (n) See Doe d. Bish v. Keeling, 1 
 
 (m) See 8 & 9 Vict. c. 119 ; and, M. & Sel. 95. 
 as to Leases, c. 124.
 
 248 
 
 PREPARATION OF CONVEYANCE. 
 
 Chap. XI r. 
 
 Incum- 
 brances, 
 upon a sale 
 in lots to 
 be got in by 
 separate 
 deed. 
 
 Incum- 
 
 braucea 
 kept on foot 
 for purcha- 
 ser's benefit 
 jhould be 
 assifrned to 
 trustee, or 
 declaration 
 of trust 
 should be 
 taken. 
 
 Distinct 
 estates or 
 matters 
 should be 
 dealt with 
 iiy separate 
 deeds. 
 
 As to Act 
 for mort- 
 gage of satis- 
 fied terms ; 
 —to what it 
 applies. 
 
 Dot V. 
 Price. 
 
 pation is forbidden by an engagement, not to " use pre- 
 mises as a shop ;" which is, nevertheless, the statutory 
 equivalent to the ordinary covenant (o) . 
 
 Upon a sale in lots of an estate subject to an incum- 
 brance which is to be paid off out of the purchase-money, 
 much expense may be saved by taking a release to the 
 vendor, instead of making the incumbrancer concur in the 
 several conveyances ; and this, when the parties are on 
 good terms, is usually acceded to ; although it might, 
 probably, be resisted, either by a purchaser, or by the 
 incumbrancer. 
 
 Where, as is often desirable, a subsisting incumbrance is 
 to be kept on foot for the purchaser, a mere declaration of 
 intention should not be relied on, but the sum itself, and 
 also the term for years, if there be one for securing it, 
 should be assigned to a trustee for the piu'chaser : or a 
 declaration of trust should be executed by the incum- 
 brancer (j9), and the legal owner of the term. 
 
 And it may be remarked, that it is generally inex- 
 pedient, and, eventually, false economy, to comprise several 
 distinct estates or matters in a single deed. 
 
 As a general rule, the assignment of satisfied terms is 
 rendered unnecessary or impracticable by the Act of 8 
 & 9 Vict. c. 112 : the Act, however, does not appear to 
 extend to copyholds, or customary freeholds (g) ; and it 
 seems doubtful whether either the 1st or 2nd section extends 
 to any hereditaments other than " land " technically so 
 called {r). 
 
 Where, before the passing of the Act, A., who although 
 not in fact, vet believed himself to be, the owner of a 
 
 (o) See 2nd schedule to 8 & 9 
 Vict. c. 124. 
 
 {p) Medley v. Norton, 14 Sim. 
 226, 229 ; Watts v. Symes, 16 Sim. 
 640 ; see, on the same subject, Coote 
 
 on Mortgages, 3rd ed. 394 ; 9 Jarm. 
 Conv. by S. 213, 214. 
 
 (y) See Dav. Concise Conv. Prec. 
 3rd ed. 79. 
 
 (>•) Ibid. 75, 79.
 
 Doe V. 
 Jones. 
 
 PREPARATION OF CONVEYANCE. 249 
 
 freehold estate, mortgaged it to B., and an old term for c hap, xii. 
 years was at the same time assigned to a trustee, in trust 
 for B. and to attend the inheritance, it was held, that this 
 term could not, after the 31st December, 1845, be used in 
 ejectment on behalf of a person claiming the estate by a 
 title paramount to that of A., although it might, if 
 requisite, have been used as a defence by B. {s). 
 
 In a later case, where, before the passing of the Act, a 
 term was declared to be held in trust for securing a mort- 
 gage debt, (part of which was money for securing which 
 the term had been originally created, and the entirety of 
 which was secured by, as was supposed, a mortgage of the 
 reversion in fee,) and subject thereto in trust for A. and 
 B., who were supposed to be entitled to the equity of 
 redemption in fee, but the reversion in fee, expectant on 
 the term^ was in fact vested in X. under a prior concealed 
 conveyance, and in 1847 A. paid off the mortgage, and 
 subsequently brought an ejectment against X. on the 
 demise of the trustee of the term, the Court of Queen's 
 Bench intimated a doubt whether the payment of the sum 
 due on the original security, by a person supposed to be 
 but who was not in fact the owner of the equity of 
 redemption, rendered the term a satisfied term within the 
 2nd section of the Act : and held that, at any rate, the 
 term had not become attendant on the inheritance, either 
 by express declaration — there having been no such decla- 
 ration — or by construction of Law, — for the trust was 
 expressly declared to be for A. and B., who had not the 
 inheritance, although they were supposed to be entitled 
 thereto when the declaration of trust was executed, — and 
 that the term was therefore still in existence [t). This 
 decision, and the accompanying dictum, which, if correct, 
 
 (.s) Doe V. Price, 16 M. & W. (/) Doe d. Clay v. Jones, 13 Jur. 
 
 603; and see Doe v. Morihdale, ibid. 824. 
 689.
 
 250 
 
 PREPARATION OF CONVEYANCE. 
 
 ciiap- xii. would materially restrict the operation of the 1st section, 
 and go far to reduce the 2nd section of the Act to a dead 
 letter, are not understood to have met with general 
 approbation, or to have materially affected the practice 
 of conveyancers. 
 
 Who must 
 be parties to 
 conveyance. 
 
 Judgment 
 creditors 
 who might 
 
 £roceed at 
 law, al- 
 though 
 they would 
 be re- 
 strained in 
 Equity. 
 
 Stipulation 
 that unne- 
 cessary par- 
 ties shall 
 concur, is 
 binding. 
 
 Purchaser 
 from mort- 
 gagee, under 
 power of 
 sale, cannot 
 require con- 
 currence 
 of mort- 
 gagor. 
 
 As to 
 making 
 bankrupt a 
 party on 
 sale of his 
 estate. 
 
 (2.) As to the parties. 
 
 All persons whose concmTcnce is necessary in order to 
 give to the purchaser the full benefit of the contract, must, 
 of com^se, be parties to and execute the conveyance. 
 
 And if the title be such that judgment creditors could at 
 Law take the property in execution, this alone will entitle 
 the purchaser to require their concurrence ; even although 
 Equity might by injunction restrain the exercise of their 
 legal right {u) . 
 
 And where it is a term of the contract that certain speci- 
 fied persons shall concur, the vendor cannot decline to 
 procure their concurrence on the ground that they are in 
 fact unnecessary parties {v) . 
 
 Upon a sale by a mortgagee under a valid power of sale 
 duly exercised, the purchaser cannot require the concur- 
 rence of the mortgagor {w) ; although by the mortgage 
 deed the latter agreed to join in any sale, if required {x) . 
 
 Upon the sale of a bankrupt's estate, he is usually made 
 to convey and covenant for title (^/) : his covenants, however, 
 are obviously of little value ; and it would seem that he 
 cannot be compelled to execute the conveyance [z] : but 
 the Com't of Bankruptcy is empowered («) upon the appli- 
 cation of the assignees, or of the purchaser, if the bankrupt 
 
 (m) Craddock v. Piper, 14 Sim. 
 310. 
 
 (?') Benson v. Lamb, 9 Beav. 502. 
 
 iw) Clay V. Sharpe, Sug. 523 ; 
 Allen V. Martin, 5 Jur. 239, R. 
 
 {x) Corder v. Morgan, 18 Ves. 
 
 344. 
 
 (y) Sug. 706. 
 
 {z) 3 Dav. Conv. 413. 
 
 (a) See 12 & 13 Vict. c. 106, s. 
 148 ; and 6 Geo. IV. c. 16, s. 78.
 
 PREPAllATION 0¥ CONVEYANCE. 251 
 
 shall not try the validity of the adjudication, or if there Ch ap, xii. 
 shall have been a verdict at Law establishing its validity, to 
 order the bankrupt to join in the conveyance ; and if he 
 do not execute it within the time directed by the order, 
 then he, and all persons claiming under him, will be stopped 
 from objecting to such conveyance ; and all estate, right, 
 or title, which he had in the property, ^iU be as effectually 
 barred as if such conveyance had been actually executed by 
 liim : the order would appear to be of com"se if he do not 
 dispute the validity of the adjudication {b) . It seems doubt- 
 ful whether a purchaser can, in ordinary cases require the 
 assignees to procure such an order unless he can throw a 
 doubt upon the validity of the adjudication : if he himself 
 apply for it, the costs would seem to be in the discretion of 
 the Com't (c) . 
 
 As respects dower, in cases fallinsr under the new law, oowress, 
 
 ^ ° ' when to be 
 
 the concurrence of the wife is, of course, unnecessary ; the ™^'^*' * 
 
 conveyance by the husband alone being a sufficient bar : 
 
 in cases falling under the old law, it has been held that Assignment 
 
 *-' -' of term, 
 
 the pm^chaser coidd not insist on the wife^s concmTcnce if purchaser 
 
 he coidd obtain an assignment of a legal term for years J!Ji" as*^!' Lr. 
 
 created previously to the right of dower attaching upon the 
 
 estate, and of sufficient dm-ation {d) ; inasmuch as, if the 
 
 wife proceeded for her dower at Law, she could recover it 
 
 only with a cesset executio during the term, and Equity 
 
 Avould not remove the bar (e) : this, however, does not seem 
 
 to be a satisfactory reason for the doctrine ; as not only 
 
 was the purchaser obliged to incur the expense of keeping 
 
 the term on foot, but he would have had to pay at least his 
 
 own costs at Law in the event of the dowress availing her- 
 
 (b) Ex parte Bradstoek, 1 Mon. {d) Sug. 541; Mole \. Smith, 3 z,c. 
 D. & De G. 118. 490 ; Maundrell v. Manndrell, 7 Ves. 
 
 (c) See note to 9 Jarm. Conv. by 567 ; 10 Ves. 246. 
 S. 261, {e) Sug. 541.
 
 252 
 
 PREPARATION OF CONVEYANCE. 
 
 Chap. xn. self of her legal remedy (/) : and it would appear that a 
 purchaser can at any rate require the vendor to ascertain, 
 if practicable, whether or no a liability to dower exists, and 
 is not bound to be satisfied with a reply that if such lia- 
 bihty exist he may protect himself by means of a term [g) . 
 It has been recently decided, by V. C. K. Bruce, that an 
 old term for years which upon a pui-chase prior to the 1st 
 January, 1846, (when the 8 & 9 Vict. c. 112 {h) came into 
 operation,) was duly assigned to a trustee for the purchaser, 
 is a sufficient protection to a sub -purchaser, purchasing on 
 or after the 1st January, 1846, against the dower of the 
 wife of the original vendor (i) ; but such a term, it is con- 
 ceived, would be no protection to the sub-purchaser against 
 any claim to dower by the wife of such first purchaser ; 
 supposing him to have been seised in fee on the 1st January, 
 1846. AVhere a jointure is relied on in bar of dower, the 
 vendor, it would seem, must produce a satisfactory title to 
 the jointure land {k) . 
 
 Jointure. 
 
 Recitals to 
 be used 
 with what 
 object. 
 
 (3.) As to the recitals. 
 
 A difference exists among conveyancers as to the 
 legitimate use of recitals: some practitioners employing 
 such only as will give an insight into the interests and 
 objects of the parties to the deed, sufficient to render the 
 subsequent parts clear and inteUigible ; while others intro- 
 duce matter which although clearly irrelevant, e. g., the 
 recital of the probate of a vnVi of real estate, or of the 
 places of burials, marriages, and baptisms, &c., is yet cal- 
 culated to save trouble upon future investigations of the 
 title : it is submitted, that, as a general rule, no recital 
 
 (/) See Mr. Jarman's note, 1 
 Jarm. Conv. by S. 508. 
 
 (//) Major V. Ward, 12 Jur. 473, 
 
 V. c. w. 
 
 (//) Rendering the assignment of 
 satisfied terms unnecessary. 
 
 («■) Bass V. IVellsted, 12 Jur. 347. 
 {k) Sug. 542.
 
 PREPARATION OF CONVEYANCE. 
 
 253 
 
 should be admitted Avhich has not a logical connection *^^^p-^''"- 
 with some operative part of the draft_, and that the piu'pose 
 of the other class of recitals may be well answered by a 
 memorandum indorsed on the deed, and signed by the 
 parties conversant with the facts. 
 
 So, in disentailing deeds, whose statutory effect is inde- ]^^^il^^l ;„ 
 pendent, not only of the motives, but even of the expressed assurancSf 
 intention of the parties (m), recitals seem to be in general 
 useless, and therefore inexpedient ; especially, since the 
 enrolment of these conveyances in a public office is open 
 to all the objections, and is attended by few of the benefits, 
 incident to registration of titles under the protective 
 Statutes : a simple conveyance by A. of a specified estate, 
 or of all the lands held by him as tenant in tail under a 
 specified settlement or in a specified locahty, and the 
 mere consent of B. as protector, either generally or under 
 the hmitations of any specified instrument, are quite as 
 eff'ective, and in the general as intelligible, as they would 
 be if preceded by the most elaborate statement of the pre- 
 vious title, or of the motives which induce the parties to 
 do that which, when done, takes effect without any regard 
 to motive. 
 
 In a late case, a question was raised and not decided, ^[le^whl-^ 
 whether, when a purchase-deed contained a recital of the chlsir"'" 
 
 1 . • i 1 J. estopped 
 
 vendor's title, the purchaser upon bemg e\acted was not tiiereby. 
 estopped from questioning the accuracy of such recital in 
 an action on the covenants for title {n) : the contrary 
 appears however to have been decided in a later case (o) 
 where the Coiirt held that where a recital is intended to 
 be the statement of one party only, the estoppel is confined 
 to that party; and the intention is to be gathered from 
 construing the instrument. 
 
 (m) See 3 & 4 Will. IV. c. 74, 310. 
 s. 21. ' (o) Stronffhill v. Buck, 15 L. T., 
 
 (n) Young v. Raincock, 7 C. B. 22, Q. B. ; 14 Jur. 741.
 
 254 
 
 PREPARATION OF CONVEYANCE. 
 
 Chap. Xir. 
 
 Whether 
 
 written 
 
 agreement 
 
 sliould be 
 
 recited in 
 
 subsequent 
 
 deed 
 
 Recitals of 
 objections 
 in deed of 
 confirma- 
 tion. 
 
 Where a deed is executed pursuant to a written agree- 
 mentj it is generally inexpedient to recite that agreement^ 
 and so bring it upon the title^ unless it be material to the 
 full operation or validity of the deed ; as in the case of a 
 post-nuptial settlement^ where it is generally proper to 
 recite prior articles, in order to show that the settlement 
 is not voluntary. 
 
 Where a person executes a deed for the purpose of 
 removing objections to the title, and the deed merely 
 mentions their existence, without specifying them or show- 
 ing that objections have been withheld from him, and he 
 asks no questions, he will, as between himself and the pur- 
 chaser, be bound, although in fact unaware of their real 
 nature {p) : and it is presumed, that a person executing 
 such a general confirmation, even although in fact de- 
 ceived as to the real natm^e of the objections, would be 
 bound, if the purchaser had no notice of the deception : a 
 general confirmation would appear to be the most ehgible 
 for the pui'chaser ; but the party confirming should insist 
 on the particular objections being specified, and should in 
 terms confine his confirmation to their removal. 
 
 (4.) As to the consideration — words of conveyance — 
 and parcels. 
 
 considera- Carc must be taken in preparing the deed to state truly 
 
 tion— tobe . . . 
 
 truly stated. ^]^g consideration paid by the purchaser, and upon which 
 ad valorem duty will have to be paid ; as the omission to 
 do so, although it will not affect the sufficiency of the 
 stamp or the validity of the deed (q), will expose the par- 
 ties who prepare the deed to severe penalties, and the 
 vendor to an action by the purchaser for the return of the 
 
 Duty pay- uncxpresscd consideration (r) ; where fixtures, standing 
 
 {j}) 8 Ves. 431. 
 
 (§') Tilsley on Stamps, 1st ed. 
 
 2.'i0. 
 
 (r) See 48 Geo. III. c. 149, ss. 22
 
 PREPARATION OF CONVEYANCE. 255 
 
 timber, or any other parts of the inheritance are taken at C hap, xi i. 
 a vahiation, its amount must be included in the considera- turls?tim^" 
 tion ; but moveable chattels which pass by delivery may be j^^\^ g',,g^. 
 handed over, and receipts may be given for them and for by defive"/. 
 their price; if, however, they be for any reason assigned 
 by deed, the ad valorem duty attaches, and their price 
 must be stated ; and it would appear from a recent case fa^e-lts*^ 
 that the recital in a deed of such sale and delivery (which 
 has been very frequent in practice) renders the duty pay- 
 able, unless the articles are of such a kind as would come 
 under the description of goods, Avares, or merchandize {s) . 
 Upon the purchase of an equity of redemption the mort- 
 gage debt is subject to duty, and its existence must there- 
 fore appear upon the face of the deed [t] ; where freeholds ^^^t of°"" 
 or leaseholds are pui'chased together with copyholds, at an tkn^ on^" 
 entire price, it is necessary, for the purposes of the Stamp copyiioids 
 
 and otlier 
 
 Act (m), to apportion the price between the copyholds and pioperty. 
 the other property [t) ; and this may be done so as to 
 reduce the duty to a minimum, without any regard to the 
 actual relative values of the estates ; so, Avhere estates are 
 purchased by two or more at an entire sum, and the pur- 
 chasers take separate conveyances, or where estates of dif- 
 ferent tenures or held under different titles are purchased 
 at an entire sum, but are conveyed to the purchaser sepa- 
 rately by separate instruments, the purchase-money may, 
 for the purpose of diminishing the duty, be apportioned on 
 the face of the conveyances without regard to the actual 
 value of the estates, or (in the case of there being several 
 
 to 26; 55 Geo. III. c. 184, s. 8; agreement for the lease; see Jti.- 
 
 Gingell v. Purkins, 19 L. J., N. S. Gen. v. Brown, 3 Exch. 662. 
 
 Exch. 129. See also 13 & 14 Vict. (.9) Horsfall v. Hey, 2 Exch. 778. 
 
 c. 97, s, 10, remitting penalties in- {t) 55 Geo. III. c. 184, Sched. 
 
 curred prior to the 20th March, 1850, title " Conveyance." 
 
 in respect to the omission from leases (m) Inasmuch as tlie duty upon 
 
 of the compensation paid by the lessee the copyholds is charged on the sur- 
 
 to the party who held the original render.
 
 256 
 
 PREPARATION OF CONVEYANCE. 
 
 Sale in con- 
 sideration of 
 transfer of 
 stock or 
 grant of 
 annuity. 
 
 Chap. XII. purchasers) to the pecuniary arrangements between the 
 parties : but under the new scale of duties only a very 
 trifling saving can be thus effected. 
 
 And where before the 11th October, 1850 {w), the con- 
 sideration was the actual transfer of a sum of stock, or the 
 grant of an annuity or rent-charge of uncertain duration, 
 as no ad valorem duty was payable, no penal liabiHty was 
 incurred by omitting to state, or by misstating the con- 
 sideration : and this seems to be still the case as respects 
 the grant of the annuity or rent-charge ; but under the 
 late Act, where the consideration consists wholly or in 
 part of any stock or security, the value thereof is to 
 be considered as purchase-money, and to be stated in the 
 conveyance; and is to be ascertained as follows, viz., in 
 the case of stock in any of the pubhc funds, or any 
 Government debentm'e or stock of the Bank of England 
 or Bank of Ireland, or any debenture or stock of any cor- 
 poration, company, society, or persons or person, payable 
 only at the will of the debtor, according to the average 
 selling price thereof respectively, on the day or on either 
 of the ten days preceding the date of the conveyance, or if 
 no sale shall have taken place within such ten days then 
 according to the average selling price thereof on the day 
 of the last preceding sale ; and in the case of a mortgage, 
 judgment, or bond, or a debenture, the amount whereof 
 shall be recoverable by the holder, or any other security 
 whatsoever, whether payable in money or otherwise, then 
 according to the sum due thereon for both principal and 
 interest [x). 
 
 Compen- Jq the casc of a conveyance under the Lands Clauses 
 
 (w) This date should be inserted, 
 supra, p. 109, instead of 10th Oct. 
 
 {x) Schedule to 13 & 14 Vict. c. 
 97 ; quiBre, whether either this or the 
 general Stamp Act provides for the 
 case of a conveyance in satisfaction 
 
 of a simple-contract debt already bond 
 fide due to the purchaser .' See, 
 however, Gingell v. Purkhis, 19 L. J., 
 N. S. Exch. 129. As to the amount 
 of duty, see next Chapter.
 
 PREPARATION OF CONVEYANCE. 
 
 257 
 
 Consolidation Act^ or any Act of Parliament containing 
 similar provisions, care should, of course, be taken, that 
 the sum expressed to be j)aid as the consideration for the 
 purchase of land, does not include money paid merely by 
 way of compensation for damage to adjacent property ; 
 as the latter amotmt is not subject to duty. 
 
 Except in the case of a feoftment (a mode of conveyance 
 which is seldom adopted except on sales by a Corporation) 
 it has become unusual to insert the operative words of con- 
 veyance in the past as well as in the present tense {y) . 
 
 The reference to the Statute which rendered a lease for 
 a year unnecessary, although still of frequent occiu'rence, 
 is rendered useless by the subsequent enactment, that all 
 corporeal tenements and hereditaments shall, as regards 
 the conveyance of the immediate freehold thereof, be held 
 to lie in grant as well as in livery {z) . 
 
 It is still the general practice, even when the purchaser 
 has no wife to whom he was married before the late Dower 
 Act came into operation, to convey the estate, if freehold 
 
 (y) Freehold lands in possession 
 in the Australian Colonies are, it is 
 understood, generally conveyed by 
 feoffment. As to real property in 
 the East Indies, see Freeman v. Fair- 
 lie, 1 Moore's Ind. App. 305 ; and 
 Gardiner v. Fell, 1 J. & W. 22. 
 Except in Calcutta, and those loca- 
 lities where land has been acquired 
 and subsequently sold by the Indian 
 Government, there does not appear 
 to be any real estate which can be 
 considered as held in fee simple ; the 
 ordinary English conveyances are, 
 however, generally adopted in trans- 
 actions between Europeans ; of 
 course, in preparing in England a 
 conveyance of land in India, treated 
 as freehold, the recent Acts would 
 not enable the draftsman to dis- 
 pense with a lease for a year; as to the 
 
 forms of conveyance in the North 
 American Colonies, and West India 
 Islands, see Appendix to Burton's 
 Compendium, and 2 Jarm. Conv. by 
 S. 398 et seq. Our Courts will 
 ajiply the general law of this country 
 (being abstractedly just, and not ex- 
 clusively founded oa any peculiar 
 or technical rule) to questions relat- 
 ing to land in a colony where a dif- 
 ferent system of jurisprudence pre- 
 vails, unless it is shown or suggested 
 that the Laws of the Colony are dif- 
 ferent on the point in question : Ben- 
 tincJc V. Willink, 2 Ha. 1. As to 
 the assurance of customary freeholds, 
 see the late case of Graham v. Jack- 
 sou, 6 Q,. B. 811, and authorities 
 there cited. 
 
 (2) 8 & 9 Vict. c. lOG, s. 2. 
 
 Chap. XII. 
 
 sation mo- 
 ney on sale 
 to Railway- 
 Company. 
 
 Operative 
 words used 
 ouly ill pre- 
 sent tense. 
 
 Reference 
 to Act dis- 
 pensing 
 with lease 
 for year un- 
 necessary. 
 
 Dower uses 
 —whether 
 to be in- 
 serted. 
 
 As to forms 
 of convey- 
 ance in the 
 Colonies.
 
 358 
 
 PREPARATION OF CONVEYANCE. 
 
 Chap. Xir. 
 
 Parcels, 
 liow to be 
 described. 
 
 Mines, &c., 
 if pur- 
 chased by- 
 Railway or 
 Waterworks 
 Company 
 must be 
 specified. 
 
 of inheritance, to tlie ordinary uses to bar dower, in order 
 to avoid the necessity, on future sales, of proving the non- 
 existence of any such wife ; where, however, the draftsman 
 is aware that no such wife exists, it seems to be sufficient 
 to recite the fact ; the purchaser himself should, if prac- 
 ticable, be the releasee or feoifee to uses. 
 
 In describing the parcels, a description by reference to 
 a schedule, or to a schedule and map, has become as usual 
 as it is convenient (a) . It has been held that the steward 
 of a manor may insist upon a surrender containing a sub- 
 stantive description of the tenements, and may object to h 
 mere reference to the description in a former surrender {b) . 
 
 In a conveyance to a Eailway or Waterworks Company, 
 if within the provisions of the recent Consolidation Acts, 
 care must be taken to specify the mines and minerals, if 
 intended to be included; for, unless actually specified, 
 they will not pass (c) . 
 
 Covenants 
 for title. 
 
 Solicitor's 
 liability in 
 respect 
 thereof. 
 
 (5.) As to the covenants. 
 
 The covenants for title are that part of the draft upon 
 which disputes and questions of difficulty most frequently 
 arise ; they are of considerable, although, perhaps, to a 
 purchaser, of rather over-estimated importance; to the 
 solicitor they are important, inasmuch as he will be re- 
 sponsible to his client for permitting him unknowingly to 
 enter into improper covenants (d) ; or for not secui^ing to 
 him those to which he is entitled from the other party. 
 
 (a) See, as to the effect of a vari- 
 ance between a schedule to a convey- 
 ance and an indorsed map, Llewellyn 
 V. Ectrl of Jersey, 11 M. & W. 183 ; 
 and, as to the schedule and map re- 
 stricting the description in the body 
 of the deed, Barton v. Dawes, 19 
 L. J. 302. See, too, the 1st Report 
 of the present Registration Commis- 
 
 sioners, recommending maps as the 
 basis of a General Register. 
 
 (i) The Queen v. Lo7-d of the 
 Manor of Bisliop^ s Stoke, 8 Dowl. P. 
 C. G08. 
 
 ((?) See 8 & 9 Vict. c. 20, s. 77 ; 
 10 & 11 Vict. c. 17, s. 18. 
 
 (d) Stannard v. Utlitiiorne, 10 
 Bing. 491.
 
 PREPARATION OF CONVEYANCE. 259 
 
 A vendor, if the absolute l)eneficial owner, enters into Chapjtii. 
 the usual covenants that he has good right to appoint and nints cn^*^' 
 release, assign, or surrender (as the case may be, according by absolute 
 
 . beneficial 
 
 as the estate is freehold, leasehold, or copyhold), tor quiet owner. 
 enjoyment, free from incumbrances, and for further assu- 
 rance (e). 
 
 It is usual to insert in a conveyance by appointment a ^Jyg^j,\\\™'^^ 
 covenant that the power was well created and is subsisting; oi^'jj^e^/"' 
 and in an assignment of leaseholds, a covenant that the 
 lease was a vahd demise and that the term is subsisting ; 
 but these covenants are, in effect, comprised in the cove- 
 nants for right to appoint and for right to assign; and 
 consequently are often omitted : the vendor of leaseholds 
 also covenants that the rent has been paid up to the last 
 day of payment, and that all other the lessee's covenants 
 have been performed up to the date of the assignment. 
 
 The covenants of such a vendor, if he have acquired the Jc^fillf'' 
 estate by purchase for money or other valuable consider- extend" ' 
 ation, are extended to the acts of himself (/) and parties 
 claiming under him ; it is conceived, that marriage is for 
 this, as it is for other purposes, a valuable consideration, 
 even as in favour of collaterals [g) ; but, in practice, it is 
 usual for a vendor claiming under a marriage settlement 
 to covenant against the acts of the settlor and his repre- 
 sentatives [h) . 
 
 It appears to have been formerly held that the Court of ^jflference 
 Chancery would not compel a vendor to enter into cove- {^o'lTvey-'' 
 nants extending back further than the acts of the last rule ot the 
 owner (i) ; but where such owner himself acquired the 
 estate otherwise than by purchase, the "universal and 
 settled practice of conveyancers" (A) is, to make the cove- 
 
 (e) See Church v. Brown, 15 Ves. 698. 
 263 264. (^0 9 Jarra. Conv. by S. 375. 
 
 (/) Sug. 702. («) Loyd v. Griffith, 3 Atk. 268. 
 
 {(j) Davenport v. Binhopp, 1 Ph. {k) Sug. 704. 
 
 S 2
 
 260 
 
 PREPARATION OF CONVEYANCE. 
 
 Chap. XII. 
 
 Owner co- 
 venants, on 
 sale by 
 Court or by 
 Trustees. 
 
 As to land- 
 owners' 
 covenants 
 on sale to 
 Railway 
 Company. 
 
 Liability of 
 tenants for 
 life to 
 covenant. 
 
 nants extend to the acts of all prior owners up to and in- 
 clusive of the last purchaser : and the Courts would pro- 
 bably at the present day be incHned to sanction such 
 practice by decision. 
 
 The owner of an estate sold by order of the Court, or by 
 his own trustee for sale, enters into the same covenants as 
 if he himself were selling (/) . 
 
 It appears to be the general notion that landowners 
 agreeing to sell land to Railway and other similar com- 
 panies must enter into the usual covenants for title ; the 
 liabihty can hardly be questioned in respect of land which 
 the Company has no power to take compulsorily ; such as 
 land required for extraordinary purposes (m) ; but as re- 
 spects land which the Company has power to take com- 
 pulsorily, the landowner's contract, although apparently 
 voluntary, is scarcely so in fact ; and his liability to enter 
 into covenants may be considered doubtful in principle, 
 and not supported by any satisfactory authority; for in 
 " Re the London Bridge Act," {n) there was the important 
 fact — although not noticed in the judgment — of the ena- 
 bling Act having been obtained by the vendors pursuant 
 to an agreement with the purchaser : it is, however, be- 
 lieved to be the general practice for such owners to cove- 
 nant; and the practice would probably, if necessary, be 
 supported by decision. As respects landowners who have 
 entered into no agreement, but as against whom the en- 
 tire proceedings of the Company have been compulsory, it 
 is conceived that they are not bound, and do not in ordi- 
 nary practice consent, to enter into any covenant (o) . 
 
 It has been recently decided by Sii- L. Shadwell, V. C, 
 that the first and second tenants for life of a settled estate, 
 selling under a private Act of Parliament which they thera- 
 
 (/) Sug. 703. 
 
 (m) 8 & 9 Vict. c. IS, ss. 12 and 
 
 13. 
 
 (n) Cited infra . 
 
 (o) Frend & Ware's Rail. Con v. 
 136.
 
 PREPARATION OF CONVEYANCE. 261 
 
 selves^ pursuant to an agreement with the purchaser, had Chap, xii. 
 obtained for the purpose, were bound to enter into the 
 usual covenants for title ; the Court assuming that upon a 
 sale under a power with the consent of the tenant for life 
 his obligation so to covenant was a matter of course [p) . 
 
 In the above case the statutory vendors were tenants for Jctrtireh- 
 life under a will, and the covenants for title were extended shouw" * 
 to acts of their testator ; the question, whether they were 
 properly so extended, does not appear to have been much 
 considered ; and it is submitted, that, although a tenant 
 for life or other owner of a particular estate may be required 
 so to covenant in respect of his own beneficial interest, yet 
 that, as respects the reversion, (in which he has no bene- 
 ficial interest) his covenants should be confined to the acts 
 of himself and parties claiming under him ; considering the 
 present frequency of such sales the point is one of some 
 practical importance. 
 
 Upon a sale, by husband and vrife, of the wife's unsettled oa^sX,"by 
 freehold or copyhold estate, the husband, since he either and wife, of 
 does or may receive the purchase -money, covenants for title estate. 
 as upon the sale of his own estate : and if there be any 
 doubt as to the fact of marriage, the woman should herself 
 enter into usual covenants, and it is submitted that a pur- 
 chaser might require their introduction. 
 
 As a general rule, fiduciary vendors only covenant that ^^ot'^not 
 they have done no act to prevent their selling, or to in- ownfrs','*' 
 cimiber the property {q) ; a covenant for further assm-ance only against 
 would seem to be a reasonable addition, and is often at- brances. 
 tempted to be introduced ; but it is settled that trustees 
 cannot, as defendants, be compelled to enter into it (r) : it 
 has, however, been held, that the heir at law and assignees 
 
 i^p) Re London Bridge Ads, 13 ris, ] V. & B. 8. 
 Sim. 176, 179. (»•) Worley v. Frampton, 5 Ha. 
 
 {q) 11 Ves. 345; Staines v. Mor- 560.
 
 262 PREPARATION OF CONVEYANCE. 
 
 Chap. XII. in bankruptcy of an intended lessor are bound, to the 
 extent of tbeir interests in the property, to enter into 
 special covenants which the intended lessor had contracted 
 to enter into {s) ; and the decision would apparently apply 
 to the case of an agreement for sale and for special cove- 
 
 tiier^uni"-"^ uauts bv tlic vciidor : the cases seem to show, that where 
 mere trustees, &c., have themselves entered into the con- 
 tract, or where the contract of the party whom they re- 
 present is sought to be enforced against them, the rule 
 against their entering into any covenants other than the 
 covenant against incumbrances, &c., is invariable ; but that 
 it is not settled whether, if they themselves come into 
 equit}^ to enforce the contract of the party whom they 
 represent, they must not covenant for fiu'ther assurance. 
 
 brancer An incumbrancer who releases the estate, whether 
 
 voluntaril}^ or in consideration of payment, only covenants 
 that he has done no act to encumber. 
 
 no°cove?" '^^^ A piu'cliascr from the Crown can require no covenants 
 for title (/). 
 
 by pTrtres^ Upou a Side by trustees under a will, for general pur- 
 
 in purchase- poscs, or by oixlcr of thc Court, the purchaser is not 
 
 money. 
 
 entitled to any covenant but that against incumbrances ; 
 except (in the case of a will) where the purposes to which 
 the purchase-money is primarily applicable have since been 
 satisfied, so that the substantial owners are in fact ascer- 
 tainable; in practice, however, it is usual in any case 
 to insert covenants by the parties who are beneficially 
 entitled in any considerable amount to the residue of the 
 purchase-money {v). 
 against Ally coveiiant intended to pro"vide for a defect in title 
 
 known 
 
 defect. which appears on the face of the conveyance, should be so 
 
 expressed; if the defect can be kept off' the face of the 
 
 (.v) P(/f/e V. Broom, 3 Beav. 36. (f) Siig. 705. 
 
 (/') Sug. 704 cf seq.
 
 PKEPAHATION UI' CONVEYANCE. 263 
 
 conveyance (which is generally the case) the covenant chap. xii. 
 should be entered into by a separate instrument iiv), 
 which should refer to the defect ; or there should be an 
 agreement signed by the covenantor admitting the exist- 
 ence of the defect^ and stating that the same is intended 
 to be included in the covenant {x) . 
 
 So, a covenant for production of title deeds, if it extend ^o^™""'' 
 to documents not noticed in the conveyance, should, as a deeds!" " 
 general rule, be entered into by a separate deed; the 
 question to be considered is, whether any document cove- 
 nanted to be produced is of such a character as to make it 
 desirable that it should, so soon as practicable, be taken 
 off the title. 
 
 A purchaser is entitled to a valid covenant for the pro- J||!|',f^„';'"''^ 
 duction, and probably for the right to take copies {y), of 
 such documents of title as are not delivered over to 
 him (r) ; commencing with such as are necessary to show 
 a marketable title («), and excepting such copies of Court 
 Roll and inroUed deeds, (if inroUed under any Act which 
 makes the inrolment evidence,) as are not in the posses- 
 sion or power of the vendor (6) ; in the absence of agree- 
 ment, he is not bound (c), (except upon a sale by assignees 
 of a bankrupt {d),) and, perhaps, cannot be advised, to assent 
 to the introduction of the ordinary proviso for determining 
 the vendor's liability upon his seUing the residue of the 
 property and procui^ing a substituted covenant to be 
 entered into by the person who Avill upon such sale become 
 the holder of the deeds ; but on a sale by fiduciary ven- 
 
 (w) Sug. 702. (6) S. C. 
 
 (x) Vide infra, Ch. XIV, (c) Sug. 478. 
 
 (y) Sug. 479. {d) Ea; parte Stuart, 2 Rose, 2\b, 
 
 (z) Barclmj v. Raine, 1 Sim. & L. C. ; where the Court statetl, gene- 
 
 Stu. 449. rally, that the assignees' covenant 
 
 («) Dare v. Tucker, G Ves. 4G0 ; should be confined to the time of 
 
 Coojjer V. Emery, 1 Ph. 388. their continuance as assignees.
 
 264 PREPARATION OF CONVEYANCE. 
 
 Chap, xii. jjQj.g [^ jg usual to insert such a pro\iso (e), and its inser- 
 tion should be stipulated for on their behalf. 
 To what do- J3ut the riffht to a covenant for production is, as a 
 
 cumeiits It ° ^ 
 
 exteuds. general mle, confined to those documents which affirma- 
 tively evidence the vendor's title (/), and does not extend 
 to those which are required to negative mere possibilities ; 
 it appears, in fact, to have been decided by Sii' L. Shadwell, 
 V. C. {g), that a purchaser from an heir at law, whose 
 ancestor left a will not affecting the property, can require 
 no covenant for its production ; this decision seems, how- 
 ever, to conflict in principle with that in a case (A), Avhere 
 a purchaser from an heir under similar circumstances, 
 was, upon selling again, held bound to produce the will if 
 in existence for the inspection of the sub-purchasers. 
 
 In order that the covenants for production may run 
 with the land in respect of which the deeds are retained, it 
 is necessary that the covenantor should be seised of the 
 legal estate in such land (i) : this however is a point not 
 often attended to ; and if a purchaser has a right to insist 
 upon it, such right Avould seem to involve the additional 
 right of requii'ing the title to such other land; a pur- 
 chaser it is conceived, could scarcely be ad\dsed to press 
 the point, 
 vlndo^s'^*'™ '^^^ vendor's covenants, if the estate be freehold, should 
 shouw'be be entered into with the grantee, releasee, or feoffee to 
 into. uses (if any) : if the estate be copyhold, it appears to be 
 
 the preferable practice, instead of taking a covenant to 
 surrender with covenants for title and production in the 
 same deed, to let the surrender precede the execution of 
 the deed containing the covenant for title and production ; 
 
 (e) 5 Dav. Conv. 595. (/<) Stevens v. Guppy, 2 Sim. & 
 
 {f) Including of course deeds of Stu. 439. 
 
 covenant for production entered into {i) Sug. 479, 731 ; even then, the 
 
 by prior vendors ; Sug. 478. result is not free from doubt; vide 
 
 {g) Cooper v. Emery, cited in infra, Ch. XIV. 
 Hayes on Conv. 573, 3rd ed.
 
 PREPARATION OF CONVEYANCE. 265 
 
 as^ if the former course be adopted^ it is not clear that the Chap, xii. 
 covenants will run with the bond {k) . 
 
 On the other hand the vendor may, in certain cases, re- ^"ei^antl^ 
 quire covenants on his own account; for it may be laid dor'!^^'^ 
 down as a general rule, that whenever he is personally sub- 
 ject to habilities, either in respect of the estate, or for the 
 performance of which the estate stands as a security, the 
 purchaser, in taking the estate, must undertake the liabili- 
 ties, and covenant to indemnify the vendor against them. 
 
 For instance, on the sale of an equity of redemption the on pur- 
 
 ■' 1 J r chase of 
 
 purchaser must covenant to pay the mortgage debt and demption'^^" 
 future interest (/) . 
 
 So, on the sale of leaseholds, either by the orisrinal oriease- 
 
 ... holds, 
 
 lessee or by an assignee who has entered into a similar 
 covenant with a prior owner, the purchaser must cove- 
 nant to pay the rent and perform the covenants con- 
 tained in the lease, and to indemnify the vendor against 
 the same (m). 
 
 The same rule would, it is conceived, apply to the sale 
 of freehold land subject to quit-rent which the vendor is 
 mider a personal liabihty to pay : so, where a vendor of gu^ecfto*^' 
 freeholds had, on his own purchase, covenanted to observe covl'nantV'^ 
 the covenants entered into by a former owner, and which which ven" 
 prohibited building upon the land, he was held to be en- 
 titled to a similar covenant from a purchaser who bought 
 with notice of the restriction, and filed a biQ for specific 
 performance (»). 
 
 Upon the same principle, when the vendor has cove- fjon^f"^"''" 
 nanted with a former purchaser for the production of the *^^®***' 
 deeds, a purchaser of the residue of the estate, if he take 
 
 {k) 3 Dav. Conv. 306; 9 Jarm. Beav. 112; Cochrane \. Rolinson,\\ 
 
 Conv. by S. 188. Sim. 378. 
 
 (Z) Ibid. (n) Mojchay v. Inderwick, 1 De 
 
 {m) Staines v. Morris, 1 V. & B. G. & S. 708. 
 8 ; and see Close v. Wilberforce, 1
 
 266 
 
 PREPARATION OF CONVEYANCE. 
 
 Chap. XII. 
 
 Agreement 
 against 
 using land 
 in specified 
 manner — 
 perform- 
 ance of, liow 
 to be se- 
 cured in 
 conveyance. 
 
 Vendor of 
 minerals, 
 entitled to 
 Ijouer to 
 enter and 
 ascertain 
 state of 
 workings. 
 
 Purchaser 
 in considera- 
 tion of an- 
 nuity, cove- 
 nants lor 
 payment. 
 
 Purchaser 
 when bound 
 in Equiiy 
 by cove- 
 nants, 
 although he 
 do not exe- 
 cute. 
 
 the deeds^ must covenant for their production to the first 
 purchaser (o). 
 
 ^Vliere the contract for sale was that the conveyance 
 should be made subject to certain specified stipulations as 
 to the mode of building upon the land^ and also to "a 
 covenant on the part of the purchaser^ his heirs and as- 
 signs^ and proper provisions for seciu'mg the due observ- 
 ance and performance thereof/' it was held that the con- 
 veyance should contain_, not only the covenant, but also a 
 power for the vendor or his representatives to enter and 
 remove any buildings erected in breach of such covenant,, 
 and to retain possession until payment of the consequent 
 expenses ; but that he Avas not entitled to have a term for 
 years, or a rent charge, hmited to a trustee by way of 
 secui'ity for the performance of the covenant (p) . 
 
 Under an agreement to purchase the minerals under 
 a given surface, the price to be payable by instalments, and 
 the payments to be accelerated if more than a given quan- 
 tity of minerals be gotten from time to time, the vendor is 
 entitled to a covenant in the conveyance, reserving to him 
 a right of entry for the purpose of ascertaining the state 
 of the workings (g) . 
 
 Under an agreement to purchase land in consideration 
 of a life annuity, "to be charged on the land," the vendor 
 is entitled to, not only the charge, but also, the purchaser's 
 covenant for payment (r) , 
 
 And a purchaser who accepts the benefit of the con- 
 veyance, will be bound in Equity by the covenants on his 
 part therein contained, although he do not execute it {s) . 
 
 (o) Vide infra, ch. xiii. 
 (7;) Ex parte Ralph, 1 De Gcy, 
 219 ; see the form given, p. 228. 
 (y) Blakesley v. Whieldon, 1 Ha. 
 
 176. 
 
 (r) Bower v. Cooj)er, 2 Ila. 408. 
 (*) JJ'ilLson V. Leonard, 3 Beav. 
 37:3.
 
 PREPARATION OF CONVEYANCE. 267 
 
 Chap. XII. 
 
 (6.) As to the draft and engrossment. 
 
 Wlien the draft has been approved, any alteration made j^ dnfit °"^ 
 in it shonld be communicated to the other party before communi- 
 
 . . cated. 
 
 engrossment [t] ; where the alterations merely consist in 
 omissions of passages introduced by such other party, or 
 can other\nse be easily pointed out, it is submitted, that 
 the opposite solicitor (who must be presumed to have re- 
 tained a copy of the draft) would not be entitled to a 
 general re-perusal; this is a question Avhich sometimes 
 arises in those exceptive cases where the purchaser has to 
 pay the vendor's expenses. 
 
 The engrossment is made by and at the expense of the ^"^j*^^" 
 purchaser ; the ordinary practice, as to the position of the 
 indorsed receipt and attestation clauses, should be adhered 
 to; as a departure therefrom may give rise to questions 
 with future purchasers {u) . 
 
 The engrossment is the property of the purchaser; pi;',!^^,^^;!," 
 when executed the vendor has a hen upon it for unpaid 
 purchase-money {w), but his attorney has no lien on it for 
 costs (a?) . 
 
 Where the engrossment was executed by the vendors, fjfff tulif 
 but the purchase went off in consequence of other ma- rt'scindeiL*' 
 terial parties refusing to execute, and the vendors made 
 no claim to it as a deed, the purchaser was held entitled 
 at Law to recover it from their attorney, they being 
 allowed to cancel it (y) ; this decision, however, as observed 
 by Sir E. Sugden, " depended upon the instrument having 
 been imperfectly executed, and upon the sellers not in- 
 terposing to claim any interest in if' {z) : and where the 
 
 {t) 1 V. & B. 15. J. 49.3. 
 
 (m) Kennedi/ -v. Green, 3 Myl. & (.(/) Esdaile v. Oseuhani, 3 B. & 
 
 K. 699. C. 225. 
 
 («•) Sug. 694. {z) Sug. 695. 
 
 {x) Oxenham v. Esdaile, 2 Y. &
 
 268 PREPARATION OF CONVEYANCE. 
 
 Chap. XII. deed has been executed so as to vest the legal estate in 
 the purchaser, there would seem to be a difficulty in hold- 
 ing that he could claim to retain it upon the contract 
 going off, even although he were willing to execute a re- 
 conveyance.
 
 269 
 
 CHAPTER XIII. - ^'^^P- ^"^- 
 
 AS TO MATTERS RELATING TO THE COMPLETION OF 
 THE PURCHASE. 
 
 1. 77^6 execution of the conveyance : — by married wo- 
 men, ^c. — conveyance of trust estates under the Trustee 
 Act, 1850. 
 
 2. As to the discharge of incumbrances. 
 
 3. As to purchaser's liability to see to application of pur- 
 chase money. 
 
 4. As to the amount payable in respect of purchase money 
 —how increased or diminished. 
 
 5. To ivhom and hoiv the purchase money should be paid. 
 
 6. As to purchaser' s right to deeds, attested copies, ^c. 
 
 7. As to matters necessary to inswe the full effect of 
 executed conveyance ; — registration, inrolment, ^c. 
 
 8. As to stamps. 
 
 9. As to costs. 
 
 (1.) The vendor must in person conA-ey (a), or, as respects Vendor 
 
 ^ ./ \ / -- -' jT must convey 
 
 copyholds, surrender (b) tlie property ; the purchaser need '" person. 
 not rely upon a power of attorney : and any assurance of 
 a married woman's interest in real estate, executed under 
 a power of attorney, seems to be inoperative {c) . 
 
 Where, on the sale of freeholds, a married woman joins ofTreehoWs^ 
 in respect of her estate or interest not settled to her sepa- woman"'^'^ 
 rate appointment or use, her acknowledgment of the deed kLowiedged 
 
 (a) 2 Ves. 681. (c) Graham v. Jackson, G Q. B. 
 
 {b) Mitchell. Nnale, 2 Ves. 079 ; 811. 
 Noel V. Weston, 6 Mad. 50.
 
 270 
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 
 
 Chap. XIII. 
 
 under .3 & 4 
 Will. IV. c. 
 74. 
 
 Acknow- 
 ledgment by 
 whom to be 
 taken. 
 
 Special 
 Commis- 
 sioners ap- 
 pointed, 
 niinc pro 
 tunc. 
 
 Certificate 
 of acknow- 
 ledgment to 
 be made, 
 verified and 
 filed. 
 
 under the 3 & 4 Will. IV. c. 74, is an essential part of the 
 conveyance {d) ; and the purchase money should not be 
 paid until such acknowledgment be perfected. 
 
 The acknowledgment is to be made before one of the 
 judges of the superior Coiu'ts at Westminster, or a Master 
 in Chancery, or two of the perpetual Commissioners ap- 
 pointed under the Act [e], or — where by reason of resi- 
 dence beyond seas, or ill health, or any other sufficient 
 cause, the married woman shall be prevented from so ac- 
 knowledging the deed — before special commissioners to be 
 appointed by the Com't of Common Pleas (/) . AVhere a 
 commission had issued to persons supposed to be near a 
 particular locality up the country in India, and, in conse- 
 quence of their removal, the acknowledgment was taken 
 before strangers, the Court, under the special circiun- 
 stances, allowed the commission to be amended by insert- 
 ing their names [g) : when the Christian name of the 
 woman was unknown, a commission issued with the name 
 in blank ; but the Court observed, that more than ordinary 
 care must be taken to verify the party by affida\it {h) . 
 
 The person or persons taking the acknowledgment must 
 sign a memorandum and certificate (i), in the forms pre- 
 scribed by the 84th section of the Act ; the certificate, 
 with an affidavit {k) verifpng the same, is then to be filed 
 in the Common Pleas; and thereupon the deed will, as 
 respects the married woman, take effect from the time of 
 acknowledgment [l] ; when the certificate and affidavit arc 
 
 {d) Billing v. Webb, 1 De G & S. 
 716; Lassence v. llerney, I Mac. & 
 G. 572. 
 
 (e) Sect. 79. 
 
 (/) Sect. 83. 
 
 {g) In re Stubbs, 5 Sc. N. R. 327. 
 
 (A) In re Apperton or Atherton, 1 
 C. B. 447 ; 3 Dow. & L. 26. 
 
 if) A description of the woman in 
 
 the certificate, as " Mary the reputed 
 wife of A. B., otherwise Mary S., 
 spinster," has been held to be suffi- 
 cient ; Ex jiorte Francis, 5 C. B. 498. 
 
 {k) Which maybe on either paper 
 or parchment : E,v jjarte Carr, 5 C. 
 B. 496 ; see In re Foster, 7 C. B. 
 124. 
 
 (0 Sects. 85 and 86.
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 271 
 
 inconsistent with each other, the Court will not allow them ^^^^p- ^"^- 
 to be filed (m) ; and therefore, of course, will not permit a 
 certificate to he so amended as to make it vary from or 
 alter the sense of the affida\dt (?i) . 
 
 The General Rules published by the Com-t of Com- ^f/^f^^' 
 mon Pleas in Hilary Term, 1834, pro^dde, that in case TmnTi834. 
 of an acknowledgment before Commissioners, one, at 
 least, of such Commissioners shall be a person who is 
 not interested in the transaction, or concerned therein 
 as attorney, solicitor, or agent, or clerk to any attor- 
 ney, sohcitor, or agent so interested or concerned : and examTnl- 
 the Commissioners are to inquii'e of the married woman, m'!<,"r'ied 
 separately from her husband and from the attorney or 
 solicitor employed in the transaction, whether any pro- 
 vision is to be made for her in hen of the interest 
 which she gives up (o) ; and, if so, are to satisfy them- 
 selves before taking the acknowledgment that such pro- 
 vision has been made by some deed or writing pro- 
 duced to them, or, if not made, then they are to require 
 its terms to be reduced into writing, and verify the same 
 by their signatures ; and the affidaAit {p) (which may be 
 made by one of the Commissioners, although he be the 
 solicitor employed in the transaction ((7),) is to be in the 
 form annexed to such General Rules. 
 
 The Court will allow the Acknowledgment to be taken itdgXTit 
 in consideration of a sum of money actually paid to the ration of ''' 
 married woman, if the sum so paid be too small (e. g., to married 
 40/.) to form the subject of a settlement (r) : and the allowed. 
 
 (m) In re Dixon, 4 C. B. 631. woman, In re Harper, 6 Man. & G. 
 
 (n) In re Millard, 5 C. B. 753 ; 732. 
 E.v parte Witty, 9 Dow. P. C. 838; {p) The Affidavit must speak posi- 
 
 see, as to interlineations, &c., in the tively to the fact of her having at- 
 
 affidavit, /« re Worthinffton, b C.B. tained majority: In re Coverley, 8 
 
 511 ; In re Fagan, ibid. 436. Scott, 147. 
 
 (o) See, as to taking an Acknow- {q) In re Scholefield, 3 Scott, G57. 
 
 ledgment from a deaf aad dumb (r) E.v parte Wehl)er,b C^.\T).
 
 272 
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 
 
 Chap. XIII. 
 
 As to the 
 Affidavit 
 where ac- 
 know- 
 ledgment 
 is taken 
 abroad. 
 
 Mode of 
 assuring 
 married 
 woman's in- 
 terest in 
 copyholds. 
 
 usual inquiry as to a provision is unnecessary on a com- 
 pulsory sale to a Public Company (.9) . 
 
 When an Acknowledgment is taken abroad, the Court 
 will not dispense vrith an Affidavit of verification sv/orn 
 and authenticated according to the local Law, unless it be 
 distinctly shown that great inconvenience would result 
 from a strict adherence to the ordinary rule {t) : upon this 
 principle, the Coui't has received an Affidavit sworn before 
 a British Consul, upon evidence either that he was, accord- 
 ing to the Lex loci, competent to administer an oath {u), 
 or that there was no local authority within reach who 
 possessed such a power {v) : so, also, it has received, under 
 similar circumstances. Affidavits sworn before the " Pro- 
 visional British Consul at the Society Isles" {w), the 
 '^Minister of the British Chapel at Moscow" (,r), and a 
 ''political agent up the country in India" {y) ; but has 
 refused to receive an Affidavit sworn before the British 
 Minister at Florence, it not appearing that there was 
 no local authority competent to take the Affidavit {z) . 
 
 Upon a sale of copyholds, a siuTcnder to the use of the 
 purchaser, by the copyholder's wife, with his consent, after 
 she has been privately examined, will bar her right to free- 
 bench, if any exist by special custom ; although, at the 
 date of the surrender, the purchaser has no legal estate in 
 the premises (a) . Upon the sale of her copyhold property, 
 if she have the legal estate, the conveyance must be by 
 
 (s) In re Foster, 7 C. B. 120. 
 
 (0 In re Craivford, 4 C. B. 626 ; 
 and see In re Eady, 6 Dow. P. C. 
 615; In re Pearsall, 9 Dow. P. C. 
 46; Ex parte Shaw, ibid. S39 ; In re 
 Schiff, 1 Dow. & L. 911 ; Ex parte 
 Way, ibid. 950 ; In re Street, 2 C. B. 
 364. 
 
 (m) In re Barber, 4 Dow. P. C. 
 640, does not seem to be an autho- 
 rity for the general power of a Con- 
 
 sul, see Ex parte HutcJdnson, 5 C. B. 
 499. 
 
 {v) Davy v. Maltwood, 2 Man. & 
 G. 424 ; Ex parte Daly, 9 Dow. P. 
 C. 380. 
 
 (w>) In re Darling, 2 C. B. 347. 
 
 (x) In re Pickcrsgill, 6 Man. & 
 G. 250. 
 
 {tj) In re Stubbs, 5 Scott, N. R. 32". 
 
 (r) In re Dumany, 7 C. B. 119. 
 
 {a) See Wood v.Lambirth, 1 Ph. 8,
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 273 
 
 surrender : if lier estate be merely equitable, a surrender chap. xiii. 
 by her and her husband, after she has been privately 
 examined, is binding as if her estate were legal {b) ; or her 
 equitable estate will pass by a mere deed acknowledged 
 under the Act (c) . 
 
 So, also, an acknowledged deed will pass a married ^^'^"^^"ggj 
 woman's reversionary interest in the proceeds of sale of ^errever- 
 real estate subject to a trust for sale but remaining un- terest^m"' 
 sold (c?) ; or in money subject to an absolute trust for sale of real 
 
 estate, or iu 
 
 investment m land (e) . money sub- 
 
 ject to bein- 
 
 We have seen that an assignment, merely by the hus- j|^f g'^j^^e 
 band, of her legal terms for years, is sufficient : but that, As to her 
 
 ' ° , .? -> ' ' Terms for 
 
 as respects her equitable chattels real, it is prudent to years. 
 require that she shall join in and acknowledge the assign- 
 ment (/) : and when the husband purports to convey, for 
 the continuance of the coverture, his wife's freeholds, a 
 like precaution seems to be requisite if the legal estate 
 be outstanding, or in reversion expectant on a term of 
 years created for a limited purpose {(/) . 
 
 By the 91st section of the Act, it is provided, that if a Concurrence 
 
 _ _ of Husband, 
 
 husband shall, in consequence of his being a lunatic, idiot, when dis- 
 
 -^ ^ o ' ' pensedwith. 
 
 or of unsound mind, and whether he shall have been found 
 such by inquisition or not, or shall from any other cause, 
 be incapable of executing a deed or making a surrender of 
 lands held by copy of court roll, or if his residence shall 
 not be known, or he shall be in prison, or shall be living 
 apart from his \nfe, either by mutual consent or by sen- 
 tence of divorce, or in consequence of being transported 
 beyond the seas, or from any other cause whatsoever, it 
 shall be lawful for the Court of Common Pleas at West- 
 minster, by an Order to be made in a summary way upon 
 
 (b) 3 & 4 Will. IV. c. 74, s. 90. (/) Stipra, p. 5. 
 
 (c) Sect. 77. (ff) Hanson v. Keating, 4 Ha. 1 ; 
 
 (d) See Mai/ v. Roper, 4 Sim. 360; Newenlwm v. Pemberton, 1 De G. & 
 1 Jarm. on Wills, 537, n. S. 644. 
 
 (e) 3 & 4 Will. IV. c. 74, s. 77.
 
 274 MATTERS RELATING TO COMPLETION OF PURCHASE. 
 
 Chap. XIII. ^}jg application of the wife, and upon such evidence as to 
 the Court shall seem meet, to dispense with the con- 
 currence of the husband in any case in which his con- 
 currence is required by the Act or otherwise; and all 
 deeds, &c. by the wife, pursuant to such order, are to be 
 executed, &c. by her as if a feme sole ; and when executed, 
 &c. shall, but without prejudice to the husband's rights as 
 then existing independently of the Act, be as good and 
 valid as they would have been if he had concurred : but 
 the provision is not to extend to cases in which the Lord 
 Chancellor, or other the persons intrusted with the Great 
 Seal, or the Court of Chancery, shall be Protector of a 
 Settlement in lieu of the husband. This clause has been 
 held to extend to copyholds, over-riding the 77th section (A) . 
 The order has been made in cases where the husband, 
 having committed an act of bankruptcy, has absconded 
 and gone abroad, and has not since been heard of (i) ; so, 
 where, although not a lunatic (/), he was in a state of 
 complete imbecility {k) ; so Avhere he was living apart from 
 his wife, and refused to concur in conveying property 
 vested in her as a trustee (/) ; or in conveying her own 
 property, unless part of the purchase-money Avere paid to 
 him {m) : but the Court has refused an order in cases 
 of, what appeared to be, his mere temporary absence from 
 the country; as where the wife's affidavit stated that he 
 had gone to New Zealand, and, when last heard of, 
 
 (A) Ex parte Shirley, 5 Bing.N. C. {k) In re Woodall, 3 C. B. 639. 
 
 226. (0 In re Mirfin, 4 Man. & G. 655. 
 
 (i) Ex parte Gill, 1 Bing. N. C. (»<) In re Woodcock, 1 C. B. 437. 
 
 168 ; Ex parte Stone, 9 Dow. P. C. For form of order enabling wife to 
 
 843 ; the affidavit must be made by convey her own estate, see Ex parte 
 
 the wife herself; In re Bruce, Z Scott, Duffill, 6 Scott, N. R. 30 ; but the 
 
 N. R. 592 ; 9 Dow. P. C. 840; In Court will not sanction any particular 
 
 re Williams, ibid. 72. form of conveyance, but will only 
 
 {j) As to what evidence of existing give a general authority to convey : 
 
 Lunacy is sufficient, see In re Tur- In re Woodall, 3 C. B. 639. 
 ner, 3 C. B. 166.
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 275 
 
 was employed in a Government Aessel, and that she chap. xiii. 
 beheved that he never intended to return (w) ; so, when 
 it stated, that the husband, a seaman, had gone abroad 
 and that she had not heard of him for many years and 
 beheved him dead, no sufficient grounds for sucli behef 
 being stated (o) . 
 
 And the disposing power of a married woman under the 4^om'an'\nay 
 above Act, is, by the 8 & 9 Vict. c. 106, extended to con- iedged°dled 
 
 , , . ., . ^ • 1 i? convey con- 
 
 tingent and otlier similar interests, and to rights ot entry ; tingent in- 
 
 *=> J n ^ terests, and 
 
 and she is also thereby enabled to disclaim, by deed, exe- "J'^j^^^'^^®" 
 cuted and acknowledged under the 3 & 4 Will. IV. c. 74, 
 any estate or interest in tenements or hereditaments in 
 England, of any tenure {p) . 
 
 An assignment of leaseholds, or any other chattel inter- ^|nm«it or 
 est in real estate, by one of several executors or adminis- years by 
 
 Executors 
 
 trators, is valid (q) : so, also, is an assignment by an exe- or Adminis- 
 cutor who dies before probate ; but the will must event- 
 ually be proved ; as the probate copy is the only evidence 
 of the appointment of the executor [r) : but an assignment 
 by a person assuming to act as administrator, and who 
 subsequently obtains letters of administration, is void (s) . 
 
 By the Lands Clauses Consohdation Act, if, upon the p^X^tersof 
 deposit in the Bank of the purchase money or compensa- ^^^der- 
 tion agreed or awarded to be paid in respect of lands pur- certain 
 
 cases to con- 
 
 chased or taken by the promoters of the undertaking, the vey to thenv 
 
 •' -^ " selves upon 
 
 owners or statutory owners fail to convey the land upon ^'jl^^^jgl^y^tW 
 request, the promoters are authorized to execute a deed- *''*^ owners. 
 poll, which will have all the effect of a conveyance by the 
 
 (n) Ed: parte Gilmore, 3 C. B. further evidence. 
 
 967 ; and see In re Smith, 16 L. J., (7;) See sections 6 and 7 of the 
 
 N. S., C. P. 168. Act. 
 
 (0) Ex parte Taylor, 7 C. B. 1. {q) Simpson v. Gut teridffe, I Madd. 
 
 Of course the order was applied for 609. 
 
 as a means of avoiding the necessity (r) Brazier v. Hudson, 8 Sim. 67- 
 
 of proving the death as a matter of (.v) Wms. on Executors, 3rd ed. 
 
 title, and it was eventually made, on 312. 
 
 T 2
 
 276 
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 
 
 Chap. XIII. 
 
 Trustee 
 bound to 
 convey at 
 request of 
 cestui que 
 trust. 
 
 But only by 
 the de.scrip- 
 tion under 
 which he 
 himself took 
 the estate. 
 
 Mortgagee 
 not bound to 
 convey be- 
 fore time 
 fixed for 
 redemption. 
 
 Assignee in 
 Bankruptcy 
 not con- 
 sulted as to 
 sale, held 
 entitled to a 
 reference as 
 to its pro- 
 priety. 
 
 owners or statutory owners {t) : similar powers are also 
 conferred upon the promoters of the undertaking, in the 
 several events of the owners {u) refusing to convey, or fail- 
 ing to make a title, or not being discoverable {iv) . 
 
 T\Tiere a trustee of an outstanding legal estate refuses in 
 a plain case to convey at the request of a party entitled to 
 a conveyance, he will, if a bill be filed against him, be 
 fixed with costs {x) ; and where a party has accepted a trust, 
 he cannot, it is conceived, justify his refusal to convey on the 
 ground that no estate is in fact vested in him. A trustee, 
 however, when required to convey the estate on the ground 
 of the trusts ha\ing terminated, is entitled to clear and 
 satisfactory e^-idence of such being the fact {y) . And he 
 cannot be required from time to time to divest himself of 
 different parcels of the trust estate, or to convey by other 
 words and descriptions than those by which the conveyance 
 was made to himself (r), and the same is the rule in the 
 case of a mortgagee [z) . 
 
 And a mortgagee cannot be compelled to reconvey 
 before the time fixed for redemption, although he be ten- 
 dered his principal with interest up to that time (a). 
 
 Where a dormant assignee in bankruptcy had not been 
 consulted as to the sale of part of the estate, and had rea- 
 sonable cause to doubt whether it Avould be beneficial, it 
 was held, that he could not be compelled to execute the 
 conveyance, AA-ithout a pre^-ious reference as to the pro- 
 priety of the sale {b) . 
 
 (/) See sect. 75. 
 
 (m') Qucere whether this includes 
 Statutory owners. See Frend and 
 Ware's Rail. Conv. 83, n. 
 
 {w) See sects. 76, 77. See, on the 
 construction of a clause in a private 
 Act, similar to the 76th section, Doe 
 V. Manchester, Bury, and Rosseiidale 
 Railway Company, 9 Jur. 949. 
 
 (x) Willis V. Iliscox, 4 Myl. & Cr. 
 
 197 ; Hampshire v. Bradley, 2 Coll. 
 31. 
 
 (y) Ilolford v. Phipps, 3 Beav. 
 434. 
 
 (z) Goodson v. Ellisson, 3 Russ. 
 594. 
 
 (a) Brotvn v. Cole, 14 Sim. 427. 
 
 (b) Ex parte Underhill, 3 Men. & 
 A. 660.
 
 MATTERS RELATING TO COMPLETION OF PURCHASE, 277 
 
 In many cases a conveyance of the legal estate^ which ciiap.xiii. 
 
 could not otherwise have been procm-ed without suit, of "eg'iU*''^'^^ 
 
 might, prior to the 1st November, 1850, have been ob- trustees, 
 
 &c. for- 
 
 tamed under the provisions of the 1 Will. IV. c. 60, (com- m^riy pro- 
 
 '- ' ^ curable 
 
 monly known as Sii' E. Sugden's Act), the 4 & 5 Will. IV. "vvni.iv. 
 
 c. 23, and the 1 & 2 Vict. c. 69. These Acts (c) have '■ '^°; , 
 
 ^ ' repealed by 
 
 been repealed, and their principal provisions have been re- tee'^^gt"^*" 
 
 enacted, along with considerable additions, by the 13 & ^^^^" 
 
 14 Vict. c. 60, (cited as the Trustee Act, 1850). By this ^Sfchthe 
 
 Act (d), the Lord Chancellor sitting in lunacy (as respects i^'^thl''"'^' 
 
 matters within that jm'isdiction), the Comt of Chancery, cases of 
 and the local Courts of Lancaster and Diuiiam (as respects 
 lands within the palatinate jurisdictions {e),) are respect- 
 ively enabled in the several cases of; 
 
 A lunatic, or person of unsound mind, or infant, being a Lunatic 
 
 or Infant 
 
 seised or possessed of any land upon any trust or by way being a 
 
 of mortgage (/), or entitled to any contingent right in any "mortgagee; 
 lands upon any trust, or by way of mortgage {g) ; 
 
 Or of any person, solely or jointly with any other per- orofatrus- 
 
 son or persons, seised or possessed of any lands upon any ^ictkin or'** 
 
 trust, or entitled to a contingent right in any lands upon ibund;^^ 
 any trust, being out of the jurisdiction, or not to be 
 found {h) ; 
 
 Or of its being uncertain which of several persons jointly ^gj^^'^^. 
 
 seised or possessed of any lands upon any trust, was the wbich^of 
 
 survivor (i) ; trult^es 
 
 Or, (where one or more person or persons shall have survivor; 
 
 been seised or possessed of any lands upon any trust,) of being un- 
 
 certaiu 
 
 (c) As to the effect of which, see "trustee," "lunatic," "person of whetherlast 
 
 ,,,,.,,, trustee 
 
 Hill on Trustees, 275, e^ sej'. ; and unsound mind, "devisee, and be living or 
 
 Coote on Mortgages, 3rd ed. 359, et " mortgagee." ^^ ' 
 seq. ; and Sag. 225. (e) Sect. 21. 
 
 (rf) See sect. 1 for the extended (y) Sects. 3 and 7. 
 
 meaning given throughout the Act to [g) Sects. 4 and 8. 
 
 the expressions "lands," "seised," (A) Sects. 9 to 12. 
 
 " possessed," " contingent right," (i) Sect. 13. 
 
 "convey,'' "conveyance," "trust,"
 
 378 
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 
 
 Chap. XIII. 
 
 or of trustee 
 dying witli- 
 out an heir ; 
 
 or of con- 
 tingent 
 riglit being 
 claimable 
 by unborn 
 trustee ; 
 
 or of trus- 
 tee refusing 
 to convey, 
 &c. ; 
 
 make a 
 vesting or 
 releasing 
 order, which 
 is to operate 
 as an as- 
 surance. 
 
 And may, 
 under cer- 
 tain circum- 
 stances, 
 make a vest- 
 ing order in 
 respect of 
 mortgaged 
 lands in 
 cases of 
 
 its not being known wlietlier the trustee last known to 
 have been seised or possessed be living or dead {k) ; 
 
 Or of any person seised of any lands upon any trust 
 having died intestate as to such lands without an heir, or 
 having died and its not being known who is Ids heir or 
 devisee (Z) ; 
 
 Or of lands being subject to a contingent right in an 
 unborn person or class of persons, who, upon coming into 
 existence would, in respect thereof, become seised or pos- 
 sessed of such lands upon any trust (m) ; 
 
 Or of a person jointly or solely seised or possessed of 
 any lands upon any trust, or entitled to a contingent right 
 in any lands upon any trust, being required, by a person 
 entitled to a conveyance, assignment, or release of the 
 same respectively, or his agent, to convey, release, or as- 
 sign the same, but declining in writing so to do, or refusing 
 or neglecting so to do, for the space of twenty-eight days 
 next after a proper instrument of assurance shall have 
 been tendered to him by any person entitled to reqiure the 
 same, or his agent (w) ; to make an order vesting such 
 lands in such person or persons in such manner and for 
 such estate, or releasing the lands subject to such contin- 
 gent right therefrom, or disposing of the same, as the 
 Court shall direct ; and the order is in itself to operate as 
 an assurance. 
 
 And where any mortgagee shall have died without hav- 
 ing entered into the possession, or into the receipt of the 
 rents and profits (o) of the mortgaged lands, and the money 
 due in respect of the mortgage shall have been paid to a 
 person entitled to receive the same, or such last-mentioned 
 person shall consent to an order for the re-conveyance of 
 
 (k) Sect. 14. 
 
 (0 Sect. 15. 
 
 (m) Sect. 16. 
 
 (w) Sects. 17 and 18. 
 
 (o) Sect. 19. These words will, it 
 is conceived, materially affect the 
 utility of the clause.
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 279 
 
 such landsj the Court may make an order vestmg such Chap, xin. 
 lands in such person or persons^ in such manner^ and for 
 such estate as the Court shall du-ect^ in case — 
 
 An heir or devisee of such mortgagee shall be out of heir or 
 
 cIgvIsbg 
 
 the iurisdiction. or cannot be found : b«i"g out of 
 
 jurisdiction 
 
 Or an heir or devisee of such mortgagee shall, upon a foun^j}.*"^*^ 
 demand by a person entitled to require a conveyance of or refusing 
 
 •^ _ '■ ■'to convey ; 
 
 such lands, or his agent, have stated in writing that he will 
 
 not convey the same, or shall not convey the same, for the 
 
 space of twenty-eight days next after a proper deed for 
 
 conveying such lands shall have been tendered to him by a 
 
 person entitled as aforesaid, or his agent ; 
 
 Or it shall be uncertain which of several devisees of or of sur- 
 vivor of 
 such mortgagee was the sur^dvor : several de- 
 
 c' o •' visees benig 
 
 Or it shall be uncertain as to the smnivor of scAeral "" o'nts"' 
 
 devisees of such mortgagee, or as to the heir of such cenifiu"^' 
 
 mortgagee, whether he be living or dead ; heir or sur- 
 
 viving de- 
 Or such mortgagee shall have died intestate as to such ^isee be 
 
 ° ° ahve ; 
 
 lands, and without an heir, or shall have died, and it shall or of no heir 
 
 or devisee 
 
 not be known who is his heir or dcAdsee : existing, or 
 
 being 
 
 And the order is itself to have the effect of an assur- known. 
 ance. 
 
 And the Court may, in every case, instead of making a coiu-t may 
 
 . "^ . , appoint a 
 
 vesting or releasing order, appoint a person to make a person to 
 conveyance, assignment, release, or disposition of the ^^^jfj^^"^ 
 lands or contingent interest; which, when duly made, is ojder!^ 
 to have the effect of a vesting or releasing order [p). 
 
 As respects copyhold or customary lands, a vesting as to copy- 
 order, if made with the consent of the lord or lady 
 of the manor, is sufficient to pass the lands without sur- 
 render or admittance ; and where the Com-t appoints 
 a person to convey such lands, such person may do all 
 acts and execute all instruments for the piu'pose of com- 
 
 (p) Sect. 20.
 
 280 
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 
 
 Chap. XIII. 
 
 Court may 
 declare 
 what parties 
 are trustees 
 oflands 
 comprised 
 in any suit 
 for speciflc 
 perform- 
 ance, &c. ; 
 
 parties seek- 
 ing orders 
 may go at 
 once before 
 the Master, 
 or proceed 
 by petition. 
 
 Certain 
 allegations 
 made evi- 
 dence of 
 facts 
 alleged, if 
 
 pleting tlie assurance [q), and which are to be effective 
 accordingly. 
 
 And Avhere any decree shall be made by any Court of 
 Equity for the specific performance of a contract concern- 
 ing any lands, or for the partition or exchange of any 
 lands, or generally when any decree shall be made for the 
 conveyance or assignment of any lands, either in cases 
 arising out of the doctrine of election or otherwise, such 
 Court may declare that any of the parties to the suit are 
 trustees of such lands, or any part thereof, within the 
 meaning of the Act ; or may declare, concerning the 
 interests of unborn persons who might claim under any 
 party to such suit, or under the will or voluntary settle- 
 ment of any person deceased who was during his lifetime 
 a party to the contract or transactions concerning which 
 such decree is made, that such interests of unborn per- 
 sons are the interests of persons who upon coming into 
 existence would be trustees within the meaning of the 
 Act ; and thereupon the estates, rights, and interests of such 
 persons, born or unborn, may be dealt vrith by order under 
 the Act (r) . 
 
 And the Act enables parties either to go before the 
 Master in the first instance, and upon obtaining his cer- 
 tificate of the material facts, and of liis opinion that they 
 are entitled to a specified order, to apply by motion for 
 such order {s) ; or to proceed by petition in the same way 
 as has been customary under the 1 Will. IV. c. 60 {t) . 
 
 And the Act prorides iu), that whenever an order shall 
 be made for the purpose of conveying or assigning any 
 lands, or of releasing or disposing of any contingent right. 
 
 (?) Sect. 28. 
 
 (/•) Sect. 30. 
 
 (.s) Sects. 38 and 39 : even in the 
 case of Lunacy the reference is to 
 a Master in Chancer]/. Ilcadlam's 
 Trustee Act, 1850, s. 38. 
 
 {t) Ibid. p. 51, n. (o) ; see ss. 40, 
 41, and 42 of Act. 
 
 {u) Sect. 44 : these provisions as 
 to evidence do not seem to apfily to 
 orders by the Palatinate Courts.
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 281 
 
 and shall be founded on an allegation of the personal Chap, xiir 
 incapacity of a trustee or mortgagee, or on an allegation thereon!* ^ 
 that a trustee or the heir or devisee of a mortgagee is out 
 of the jurisdiction, or cannot be found, or that it is uncer- 
 tain which of several trustees or which of several devisees 
 of a mortgagee Avas the survivor, or whether the last 
 trustee or the heir or last sui'viving devisee of a mortgagee 
 be li^dng or dead, or on an allegation that any trustee 
 or mortgagee has died intestate without an heir, or has 
 died and it is not knoAvn who is his heir or devisee, then in 
 any of such cases the fact of an order being made upon 
 such an allegation shall be conclusive evidence of the 
 matter so alleged, in any Court of Law or Equity upon 
 any question as to the legal validity of the order ; but this 
 is not to prevent the Court from directing a re-conveyance, 
 &c., if the order is shown to have been improperly ob- 
 tained. 
 
 And a subsequent section {iv) re-enacts the 3rd and 5th of°rust'and 
 sections of 4 & 5 Will. IV. c. 23, preventing the escheat f^^t^'' 
 of property held upon trust or mortgage. 
 
 The words trust and trustee, as defined in the inter- interests of 
 
 ' vendor, how 
 
 pretation clause of the Act, would include the case of ol' iMh'^^'^ 
 a vendor who had entered into a valid and subsisting underlet. 
 contract for sale, or his representatives ; but the 30th 
 section {w) seems to show that it is not intended that a 
 vendor's interests shall be dealt with under the Act unless 
 there has been a decree for specific performance, or an 
 express declaration of trust. 
 
 (2.) As to the discharge of incumbrances. 
 
 Until the conveyance is executed by all necessary par- y^l^^^^^^ i^. 
 ties, the vendor remains liable in respect of all defects in and defect 
 title : he must, for instance, refund the purchase money, if conveyance 
 
 executed ; 
 
 («;) Sect. 46. (.i) Cited supra, p. 280.
 
 282 
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 
 
 Chap. XIII. 
 
 and (in case 
 of a married 
 woman) 
 acknow- 
 ledged. 
 
 Retention of 
 incum- 
 brances out 
 of unpaid 
 purchase- 
 money after 
 conveyance 
 executed. 
 
 Incum- 
 brances 
 must be 
 paid off or 
 released. 
 
 the purchaser having paid it, even although having taken 
 possession, be evicted by an adverse claimant (y) ; so, if 
 incumbrances be discovered, he must discharge them, or 
 the purchaser himself may pay them oiF out of the unpaid 
 purchase money (if any) {z) : but the latter cannot retain 
 any part of it as an indemnity against a contingent charge 
 against which he has agreed to accept the vendor's cove- 
 nant {a) . 
 
 It is conceived that, for the pui'pose of the above rules, 
 mere execution of the conveyance by a mamed woman is 
 insufficient, for she has still a locus pmnitentice ; and that, 
 until acknowledgment by her, the vendor's liability to dis- 
 charge incumbrances, or make good defects in title, con- 
 tinues to subsist ; but this liability, it is conceived, does 
 not subsist between acknowledgment and the filing of the 
 certificate. 
 
 And, in some cases, a purchaser may, even after the 
 conveyance is executed, retain, out of impaid purchase 
 money, the amount of incumbrances which then come to 
 his knowledge {b). 
 
 All incumbrances which would afi'ect the property in 
 the hands of the purchaser, must, of course, be released, or 
 paid off" by the vendor, or out of the purchase money ; and 
 a person, to whom the vendor has, for valuable considera- 
 tion and without notice of any particular incumbrance, as- 
 signed the unpaid pui'chase money, takes subject to the 
 piu'chaser's right so to apply the same [c) ; we have 
 seen {d) that judgments entered up against the vendor 
 subsequently to the contract are a lien upon the amount 
 remaining unpaid. 
 
 (y) Cripps v. Reade, 6 D. & E. 
 606 ; Johnson v. Johnson, 3 Bos. & 
 P. 162 ; Sug. 680. 
 
 {z) Sug. 679. 
 
 (fl) Vane v. Lord Barnard (a case 
 
 of a mai'riage settlement), Gilb. Eq. 
 R. 6. 
 
 (A) Vide infra, Chapter XIV. 
 
 (c) Lacey v. Ingle, 2 Phil. 413. 
 
 {d) Supra, p. 119 and 233.
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 283 
 
 Where a puisne incumbrancer contracted for the pur- ci^ap. xiii. 
 chase of the estate free from incumbrances^, and took pos- pik-'ation'^of 
 session, but did not pay his purchase moneV;, and after- money by 
 
 ^ " ^ ^ purchaser of 
 
 wards bought in a prior incumbrance, it was held that he equity of 
 
 or -" redemption 
 
 must, as in favour of the vendor's representatives, be con- g"oP°^*®^" 
 sidered to have applied the purchase money, on the day on 
 which he took possession, towards satisfaction of the in- 
 cumbrances, according to their priorities (e) . 
 
 The Lands Clauses Consolidation Act, 1845, contains ^/£m-^ 
 clauses which enable promoters of undertakings to dispense uaderthe 
 with the concurrence of incumbrancers who refuse to re- 1845; " '^ ' 
 ceive their money, or to release, or who cannot make out 
 a satisfactory title (/) ; and also provisions appHcable to 
 cases where only a portion of the lands subject to the in- 
 cumbrance is required for the purposes of the undertaking. 
 
 (3.) As to purchaser's liahiUty to see to application 
 of trust purchase money. 
 
 The law as to the liability of a purchaser from trustees As to 
 
 '' '■ liability of 
 
 to see to the apphcation of his purchase money cannot be gj,'^'\f^f/. 
 considered as settled; the following remarks are made to'aVpiica''- 
 with hesitation, but under the belief that the general prin- chase- 
 ciples here attempted to be laid down, will, upon examina 
 tion, be found to consist with the modern authorities [g] . 
 
 It is submitted that, in every case, the question is simply j^'^eutL'Jf of 
 one of intention on the part of the author of the trust ; and ^he't^L? 
 that the trustees' power to give receipts depends solely 
 upon the degree of confidence which he has, either ex- 
 pressly or impliedly, reposed in them. 
 
 This intention may, as before observed, be either ex- ^Vressedor 
 pressed or implied ; expressed, as where the will or trust- 
 
 (e) Greenwood v. Taylor, 14 Sim. {g) See an article in the Jurist, 
 
 505. vol. 11, part 2, p. 126, advocating 
 
 (/) Seesect.lOS.ejfse^r.; and 115 conclusions different frona those which 
 
 et seq. are here contended for. 
 
 tion of pur- 
 chase- 
 money. 
 
 implied.
 
 284 
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 
 
 Chap. XIII. 
 
 Matters 
 posterior to 
 the creation 
 of the ttusi 
 neither take 
 away — 
 
 nor confer 
 a power to 
 give good 
 discharges. 
 
 Wliat cir- 
 cura-'itances 
 attending 
 the trust 
 confer such 
 81 power by 
 implication 
 —trusts 
 being for 
 payment of 
 debts; 
 
 or in favour 
 of una.scer- 
 tained or in- 
 competent 
 cestui que 
 trust ; 
 
 deed contains a clause which in terms empowers the trus- 
 tees to give valid discharges for the purchase money ; im- 
 phed, as where the trusts are of such a natui'c as that a 
 contrary intention cannot reasonably be attributed to the 
 author of the trust. 
 
 And if this intention be expressed, or can be implied, 
 the trustees, upon a sale apparently in pursuance of the 
 trust, have, under all circumstances, a power to give re- 
 ceipts. Of course, it may be shown that the sale is iu fact 
 a breach of trust ; but then the objection is to the sale 
 itself, and is not a question of application of pui'chase 
 money. 
 
 And, on the other hand, where this intention is not 
 expressed and cannot be implied, the mere fact that the 
 parties beneficially interested at the time of sale are infants, 
 or unascertained, or any other similar circumstance, will 
 not enable the trustees to give a valid discharge ; but the 
 purchaser must see to the application of the money. 
 
 For instance, — (to consider first the question of implied 
 intention, and what sufficiently indicates it,) — where the 
 trust is for payment of debts generally, or for payment of 
 debts generally and of legacies or annuities, the trus- 
 tees take by implication a power to give discharges ; for 
 no purchaser, upon a sale during the existence of debts, 
 could be expected to take an account of them [h) : so, 
 where the trust is for payment to a person or persons who 
 may be unascertained, or under age, or subject to any other 
 incapacity or inabihty to receive the pm'chase money, and 
 a sale during the existence of such uncertainty, minority, 
 incapacity, or inabihty, seems contemplated by the author 
 of the trust ; for, if the trustees cannot receive the money, 
 there would, upon a sale imder such circumstances, be no 
 
 (/() Johnson v. Kennett, 3 Myi. & 
 K. 624 ; Eland v. Eland, 4 M. & C. 
 
 420; Forbes v. Peacock, 1 Ph. 717; 
 Page v. Adam, 4 Beav. 269, 283.
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 285 
 
 hand to receive it (i) : so^ where the money " is to be Chap, xiii. 
 applied upon trusts which require time and discretion^' {k), ttae^and"^^ 
 for no purchaser could be expected to involve himself there- ^j. ^j^^^.^ 
 in : so, where the money is to be invested, it is sufficient if ^eTe^m-*' ^° 
 the purchaser see that this is done and that a declaration 
 of trust is executed (/) . 
 
 So, executors can grive good dischar^-es for the pui-chase- so, exe- 
 
 •' no or cutors can 
 
 money of chattels real, although specificallj^ bequeathed (/7^) ; discharges. 
 for an appointment of an executor, is, in effect, a bequest 
 to him of the personalty in trust to sell for the payment of 
 general debts : and the same rule seems to apply to cases 
 where executors take, either expressly or by implication, a 
 power to sell freeholds or copyholds, and the proceeds of 
 sale are to be apphed by them in a mixed fund with the 
 residuary personal estate («) . 
 
 But, on the other hand, where the trusts are for payment i^ what 
 
 ■' ' ■■■ •' cases no 
 
 of the purchase-money, or some definite part of it, to some l^impVi7a!^ 
 ascertained person or persons, whose incapacity or inability 
 to receive the same at the time of sale does not appear to 
 be contemplated by the author of the trust, there is no 
 sufficient indication of an intention that the trustees shall 
 give good discharges ; and the piu'chaser is therefore bound 
 to see to the application of the whole or part (as the case 
 may be) of the piu'chase-money. 
 
 For instance, where the trust (as respects the whole or T^^ere trust 
 
 •* ^ i isfor definite 
 
 some definite portion of the pm-chase-money) is to pay ^0'^™^°-* 
 
 scheduled or specified debts (0), or legacies only {p), or to competent 
 
 diA^de it between two or more adults {q), in all these and ^ 
 similar cases, as nothing seems to be contemplated which 
 
 (e) Soirarsbi/ v. Laci/, 4 Madd. (/) Sug. 838. 
 
 142 ; Lavender v. Stanton, 6 Madd. (m) See Wms. on Executors, 743. 
 
 46 ; Balfoicr v. Wetland, 16 Ves. (n) Tylden v. Hyde, 2 Sim. & St. 
 
 151 ; Breedon v. Breedon, 1 Russ. & 238 ; Jones v. Price, 11 Sim. 557. 
 
 M. 413. (o) Sug. 834. 
 
 {k) Sug. 836 ; citing Doran v. (jw) 3 Myl. & K. 630. 
 
 Wiltshire, 3 Sw. 699. (?) 12 Sim. 546.
 
 286 
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 
 
 Chap. XIII. 
 
 Subsequent 
 events im- 
 material ; 
 
 in cases 
 where power 
 to give re- 
 ceipts is 
 expressed 
 or implied ; 
 
 modern 
 authorities. 
 
 would impose upon a piu'chaser any greater hardship than 
 that of paying the whole, or a definite part (as the case 
 may be), of his purchase-money, to A. the beneficial^ rather 
 than to B. the legal owner of the property, no intention 
 can be imphed of reheving the pm'chaser from his prima 
 facie obligation of seeing that his money reaches the hand 
 substantially entitled to it. 
 
 And it appears to be consistent with authority to say, 
 that the power, or want of power, (as the case may be,) to 
 give valid discharges, being dependent upon intention as 
 e^idenced in the instrument declaring the trust, is un- 
 affected by any subsequent matter or event. 
 
 This doctrine is, (it is beUeved,) generally admitted in 
 cases Avhere the intention is e\ddenced by an express power 
 to give receipts ; and, (it is submitted,) the resvdt cannot 
 be affected by the circumstance of the intention being evi- 
 denced by one rather than another set of expressions. 
 
 Nor are authorities wanting in support of this vicAV ; for 
 instance, where the trusts were for payment of debts, and 
 for other purposes also requiring a sale, the non-existence 
 of debts at the time of sale, although disclosed to the pur- 
 chaser, has been held immaterial (r) ; so, where the trust 
 was to sell and pay the debts of such creditors as should 
 execute the deed witliin a specified period, it was held, that, 
 upon a sale after the expiration of that period, and although 
 the creditors were then ascertained, the receipt of the trus- 
 tees alone was a good discharge : Sir JV. Grant observed, 
 " according to the frame of the deed the purchasers were, 
 or were not, liable to see to the application of the money ; 
 and their liabiHty could not depend upon any subsequent 
 event " (s) . 
 
 (r) Paffe v. Adam, 4 Beav. 269 
 Johnson w.Kennett, 3 Myl. & K. 624 
 Eland v. Eland, 4 Myl. & Cr, 420 
 Forbes v. Peacock, 1 Ph. 717 ; and 
 
 see Rep. note, 722. 
 
 (.?) Balfour v. Welland, 16 Ves. 
 151, 15(i,
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 287 
 
 This last decision, it is conceived^ goes tlie full lengtli of ^}^^p- ^m- 
 the rule contended for; in Page \.Adam[t), Johnson v. ^^yowr^v."" 
 Kennet {n), and Eland v. Eland {iv), the rule was but par- 
 tially recognised, inasmuch as (they being cases upon wills) 
 it was only decided that the existence of debts at the death 
 of the testator was sufficient ; nor did the judgment even 
 in Forbes v. Peacock {x) go any fui'ther ; in fact^ in all 
 these cases, it was sufficient, for the pui'pose of deciding 
 the question before the Court, to hold that the existence 
 of debts at the death would sustain the poAver ; it appears, 
 however, from the reporter's note to the last case, that 
 Lord Lyndhurst recognises what is here contended for as 
 the true principle ; viz. that the question is one of construc- 
 tion or intention ; and it is, of course, evident that in con- 
 sidering a will upon a question of this nature, it must be 
 held to speak from the date of its execution. 
 
 So, if the tnist were for immediate sale, and to divide Attaipment 
 
 ^ ^01 majority 
 
 the proceeds among infants, and a sale were not to take ^JJuUque 
 place imtil some, or even all, of the infants attained majority, materiau 
 it IS submitted, that the power oi the trustees to give re- 
 ceipts would not be affected : the attainment of majoiity 
 by the infants would be precisely the same, in principle, as 
 the execution of the deed by the creditors in Balfour v. 
 Welland {y) ; until, however, the law is more settled, it 
 would, in such a case, be prudent to obtain, if possible, the 
 concui'rence of the adult cestui que trust. 
 
 And, on the other hand, if the intention to confide such Sequent*"'' 
 a power to the trustees be not evidenced by the instrument f Jr*^^uch a" 
 creating the trust, subsequent events will not confer it on 
 them ; if, for instance, the trust be to sell and divide the 
 proceeds between A. and B., and they so deal with their 
 interests as to vest the beneficial estate in infants, or to 
 
 (0 4 Beav. 269. {x) 1 Ph. 717. 
 
 (m) 3 Myl. & K. 624. (y) 16 Ves. 151. 
 
 (w) 4 Myl. & Cr. 420.
 
 288 MATTERS RELATING TO COMPLETION OF PURCHASE. 
 
 Chap. XIII. jjiake it the subject of contingent riglitSj so tliat a valid 
 discharge by tbemseh'es or parties claiming under them 
 becomes impracticable, this, it is conceived, would clearly 
 not enlarge the powers of the trustees. 
 
 Distinction ^^^ cascs whcrc, as in Forbes v. Peacock (z), the trustees 
 
 between the ' ^ '' 
 
 IndThoseTn ^^^^ power to Sell for several purposes, and notice to the 
 tiie'purposes purcliascr of the non-existence of that particular purpose, the 
 being satis- Contemplated existence of which alone indicated an inten- 
 
 fled, the sale 
 
 is a breach tiou to coufcr a powcr to givc rcccipts, is held to be imma- 
 terial, must be carefully distinguished from cases where a 
 purchaser has notice that the sole purpose of the trust is 
 satisfied : in the one case the only question is, whether the 
 trustees can give a good discharge for the money ; and it 
 has been held, and, (it is submitted,) properly held, that 
 the confidence of the author of the trust is to be consi- 
 dered, not as varying, or temporary, but uniform, and co- 
 extensive with the duration of the trust ; but, in the other 
 case, the trust for sale no longer exists : so that if, va. Forbes 
 v. P-eacock, the payment of debts had been the only object 
 for which a sale was authorized, the purchaser, having 
 implied notice that the debts were paid, would have also 
 had notice that the sale itself was a breach of trust (a) . 
 saieby^'^'^ So if, ill dealing with an executor, the purchaser know 
 to^purchaser that all the pui^poscs, for the performance of which the 
 confers no '^ Law cmpowcrs him to sell, have been already answered {b), 
 or that he is selling for his own private benefit, the sale 
 will be impeachable in Equity [c) : so, if a trustee sell to 
 pay his own debts, and the purchaser be aware that such 
 is the case {d) : but the mere fact of a beneficial devisee and 
 
 {z) 1 Ph. 717. part 2, p. 126. 
 
 («) 1 Ph. 721 ; Watkins v. Cheek, (b) Ewer v. Corbet, 2 P. Wms. 
 
 2 Sim. & St. 199 ; 4 Myl. & Cr. 148, 
 
 427. The distinction here suggested (c) Sug. 854 ; Wms. on Exors. 
 
 does not appear to be recognised in 745 et seq,, and cases there cited : 
 
 the comments of a learned writer Chambers v, Howell, 12 J nr. 905. 
 
 upon Forbes v. Peacock, in 11 Jurist, (d) See Eland v. Eland, 4 Myl. & 
 
 title.
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 289 
 
 executor, who has an estate subject to a charge of debts, Chap, xiii. 
 selling it as his own, is no e^ddence of an intended breach 
 of trust ; for he is in truth the owner, subject to the charge, 
 and it is his duty to satisfy the debts, which the sale may 
 be the very means of enabling him to do (e) . 
 
 Somewhat similar in principle is the distinction between between"" 
 cases where the trustee is to sell, and apply the pro- andcases'in 
 ceeds in making good a deficiency in the personal es- object of 
 
 ® ® . "^ ^ . . the sale i8 to 
 
 tate to answer debts and legacies, and those in which provide for 
 
 ° deficiency in 
 
 he is only authorized to sell in the event of the per- Pgt^°g*^'^^ 
 sonal estate so pro^dng deficient; in neither case is there 
 any difiiculty as to payment of the purchase-money 
 to the trustee, for no pm-chaser can be expected to in- 
 volve himself in the administration of the estate; and 
 even in the second of the two cases, if there be a mere 
 trust for sale, and a good title can, independently of its 
 exercise, be made to the legal estate, a purchaser will, it 
 appears, be protected from the necessity of ascertaining 
 the existence of a deficiency, although the trust instrument 
 do not (as it should do) contain a declaration to that ef- 
 fect (/) ; but if there be a mere power of sale, the title to 
 the legal estate will depend upon the occm'rence of the 
 specified event [g] ; and the trustees^ receipt clause will be 
 inefiective, unless it be so worded as in terms to enlarge 
 the power (h) . 
 
 And where a testator devised estates A. and B., upon 
 trust, if any debts remained unpaid, to sell first A., and 
 then (if necessary) B., it was held that while estate A. 
 remained unsold a good title could not be made to B,, 
 
 Cr. 427 ; and see Braithwaite v. 335 ; Culpepper v. Aston or Austin, 
 
 Britain, 1 Keen, 206. 2 Ch. Ca. 115, 221 ; Sug. 847. 
 
 (e) Eland v. Eland, 4 Myl. & Cr. {h) See Sug. 848. See a case of 
 
 428 ; and see Higyins v. Shaw, 2 Dru. Lord Rendlesham v. Meux, 14 Sim. 
 
 & War. 356. 249 ; where the opinion of the tius- 
 
 (/) Sug. 847. tees was in terms made the test of 
 
 ((/) See Dike v. Ricks, Cro. Car. the necessity for a sale. 
 
 U
 
 290 
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 
 
 Chap. XIII. 
 
 On death of 
 Vendor \iut- 
 cliase- 
 money is 
 payable to 
 his Executor 
 and not to 
 his Devisee 
 in trust. 
 
 Surviving 
 Trustees 
 when able 
 to sell and 
 receive pur- 
 chase- 
 money. 
 
 Payment to 
 
 trustees, 
 some of 
 whom are 
 not duly ap- 
 pointed, 
 whether 
 valid. 
 
 All Trus- 
 tees must 
 join in re- 
 ceipt. 
 
 7 & 8 Vict. 
 C. 76. 
 
 without clear evidence being adduced that the proceeds of 
 A. would be insufficient for the purposes of the trust (i). 
 
 Where a testator himself contracted to sell the estate, 
 the pm-chase-money must be paid to his executor, and the 
 ordinaiy receipt clause in the Will does not enable his 
 trustees to give a discharge for it, although the estate be 
 de^dsed to them in trust to complete the contract {k) . 
 
 It has recently been held, that where the instrument 
 creating the trust directs that any vacancy in the trust 
 shall be filled up ^"ithin a specified period, which direction 
 is not complied mth, the sund^dng trustees can never- 
 theless sell and give a good discharge for the purchase- 
 money under the usual receipt clause (/) : but this doctrine 
 should perhaps be cautiously acted on. It has also been 
 held, that payment of money to three persons, nominally 
 trustees, but only one of whom was competent to receive 
 it, and a joint and several receipt given by the three, suf- 
 ficiently discharged the pui'chaser (m) ; this also, it is con- 
 ceived, is a doctrine open to observation ; it is clear that 
 the efi*ect of such a mode of payment might often be to 
 bring the money under the sole eventual control of per- 
 sons who had no right whatever to deal with it. 
 
 In the case of several trustees, all who have not dis- 
 claimed must join in the receipt {n) . 
 
 And we may here refer to the repealed (o) Act of 7 & 8 
 Vict. c. 76 ; under which, from the 1st January to the 30th 
 September, 1845, inclusive, the bond fide pajonent to and 
 receipt of any person to whom any money was payable 
 upon any express or implied trust or for any limited pur- 
 pose, were an eff'ectual discharge to the person paying the 
 same. 
 
 {i) Pierce v. Scott, 1 Y. & C. Ex. 
 257. 
 
 (/r) Eaton v. Sanjcter, 5 Sim. 517. 
 
 (Z) Warhurton v, Sandys, 14 Sim. 
 G22. 
 
 (m) Miller v. Priddon, 18 L. J., 
 N. S., Ch. 226, V. C. E. 
 
 (n) See Sug. 849, and cases cited. 
 {o) See 8 & 9 Vict. c. 106, s. 1.
 
 MATTERS RELATING TO COMPLETION OF PURCHASE; 291 
 
 A power for trustees to lend the trust-money upon chap. xiii. 
 mortgage appears to carry with it a power to give suf- lenTon^ 
 ficient discharges to the borrowers of the money [p) . implies 
 
 power to 
 
 As respects moneys charged upon the estate by the giyere- 
 
 author of the trust, there is a difference between charges as to appli- 
 cation of 
 the satisfaction of which by means of a sale appears to be purchase- 
 
 '' '- '- money in 
 
 contemplated, and those for which the estate seems in- PhL'ees'^dis- 
 tended to be a continuing security {q) . tween "he^ 
 
 If, for instance, a legacy be charged upon the estate and g^g^^^g^^ 
 made payable at a future period, (as where it is given to est'at^Ti'^'^ 
 an infant and made payable, at twenty-one,) and there be b^ a co^n- ° 
 nothing to show that the author of the trust intended the security for 
 
 legacy ; 
 
 property to be sold before the arrival of the time for pay- 
 ment and discharge of the legacy, no sale can in the in- 
 terval be safely effected, except subject to the legacy (r) ; 
 the same remarks apply to a life annuity charged upon the °^ ^"'^"''^y ' 
 estate (s), which in fact stands on precisely the same rea- 
 soning, for a life annuity is merely a series of contingent 
 legacies, payable at stated intervals and without interest : 
 in all these cases the apparent intention of the charge is, 
 that the estate shall remain a security for the money : in 
 the case of portions for children it seems doubtful whether 
 the estate can, except under special powers in the settle- 
 ment, be discharged from any sums which have not be- 
 come absolutely vested (/) . 
 
 If, on the other hand, the moneys charged be made ^h'^re^an 
 payable at the time appointed for sale, the charge seems sa\"seems 
 to be merely equivalent to a trust for payment out of the tempiated. 
 proceeds of sale ; in fact, as respects debts, a charge of debtT*^ 
 them upon the estate is held to amount to a trust for 
 
 (p) Wood V. Harman, 5 Madd. (s) Elliot v. Merryman, Barnart'. 
 
 368 ; and see Sug. 848. Ch. R. 82. 
 
 {q) See, on a similar point, Mills (t) S/ippparrl v. TTHlson, 4 H>i.3'd2 ; 
 
 V. Osborne, 7 Sim. 30. but see, contra, Gillibrand v. Goold, 
 
 (r) Dickeaaon \. Dickenson, 3 Bro. 5 Sim. 149; and Leech v. Leech, 2 
 
 C. C. 19. Dru. & W. 563. 
 
 U2
 
 292 
 
 Chap. XIII. 
 
 to trust for 
 sale to pay. 
 
 But Statutes 
 making real 
 estate assets 
 for payment 
 do not 
 amount to a 
 charge of 
 debts. 
 
 Receipt 
 under usual 
 powers of 
 attorney on 
 mortgage of 
 a fund 
 charged on 
 land, wlie- 
 ther a good 
 discharge in 
 equity. 
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 
 
 sale (y) : so, as we have already seen {w), wlieu the charge 
 is subject to a prior trust for payment of debts or other 
 general purposes, a purchaser is unaffected thereby (cv) . 
 
 The power possessed by creditors upon taking proper 
 proceedings for that purpose, of obtaining payment of their 
 debts out of the descended or devised real estate in the 
 hands of the heir or devisee [y) , may be defeated by a prior 
 alienation for valuable consideration ; and in the hands of 
 the alienee the land is discharged, although the heir or de- 
 visee remains personally liable to the extent of the value 
 of land alienated (z) ; therefore, since the land itself is 
 free, the existence of debts does not relieve a purchaser 
 from the devisee from the necessity of seeing to the pay- 
 ment of legacies, &c. («) : while, on the other hand, a pur- 
 chaser, either from the heir or devisee, is not bound to see 
 to the payment of either specialty or simple-contract 
 debts {b). 
 
 It seems doubtful, when a sum charged upon an estate 
 is assigned by way of mortgage, with the usual power of 
 attorney to receive and give discharges, whether, upon the 
 estate itself being sold, and the sum being paid off out of 
 the proceeds of sale, the assignee can, as against incum- 
 brancers on the equity of redemption of the sum, give a 
 good discharge for the same in Equity under the power of 
 attorney ; especially if the deed contain a power to sell the 
 security, and the usual clause expressly making his receipts 
 a good discharge in Equity, in respect of the proceeds of 
 any sale under the power (c) . 
 
 (») Sfiaw V. Borrer, 1 Keen, 559 j 
 Ball V. Harris, 4 Myl. & Cr. 264 ; 
 Gosling v. Carter, 1 Coll. 644. 
 
 {vi) Supra, p, 284. 
 
 {x) Page v. Adam, 4 Beav. 269. 
 
 (y) 3 & 4 W. & M. c. 14; 47 
 Geo. III. c. 74, sess. 2 ; 3 & 4 Will. 
 IV. c. 104. 
 
 (z) Richardson v. Horton, 7 Beav. 
 
 19.'i; Spackman v, Timhrell, 8 Sim. 
 253 ; see Pimm \. Insall, 1 Mac. & 
 G. 449. 
 
 («) Horn V. Horn, 2 Sim. & St. 
 4 48; Ball v. Harris, 4 Myl. & Cr. 
 261, 2(i8. 
 
 {b) Sug. 834. 
 
 (c) Brasier \. Hudson, 9 Sim. 1.
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 293 
 
 Chap. XIII. 
 
 (4.) As to the amount payable in respect of purchase- 
 money ; — hoiv increased or diminished. 
 
 The aniomit to be paid in respect of the pm-chase-monev in^ease or 
 
 '-'-'■ J diminution 
 
 may in the several ways hereinafter noticed be increased money'''''''*'" 
 or diminished. 
 
 The most ordinary mode of increase is by the accrual of increased 
 
 •'by interest ; 
 
 niterest ; as respects whicli, it will be convenient to con- ~of^i. " 
 sider, first those cases where there is no special agreement ""^"*" 
 as to interest ; premising that, in such cases, interest, when 
 payable, is payable at Law after such rate, not exceeding 
 5/. per cent., as may be allowed by the Jury [d) ; and in 
 Equity (as a general rule) after the rate of 4/. per cent, (e) 
 per annum. 
 
 If, then, a time be fixed for completion of the contract. Payable 
 
 11 111 from time 
 
 and there be delay attributable to the pui'chaser, he must fi-^ed for 
 
 " •*■ •' completion 
 
 from that time pay interest upon his purchase-money, al- j-e^t^'with 
 though it has been Ipng idle and appropriated to the pui-- i'"^'"*'^'^^^'"- 
 chase (/), and although he has not had possession of the 
 estate, Avhich (as in the case of a house bought for a resi- 
 dence) has therefore been unproductive; but any actual 
 profits arising from it he will be entitled to [y) . 
 
 If, on the other hand, (a time being fixed for com- From what 
 
 time pay- 
 
 pletion,) there be delay attributable to the vendor, the f^s\Vwfth*^ 
 pm-chaser, if he has or might prudently have been in actual ^'^"'^°''- 
 possession or in receipt of the rents and profits of the estate, 
 must pay interest, unless and until his money has been 
 appropriated to the purchase and lying idle, and notice of 
 such being the case has been given k) the vendor [h) ; but 
 it appears that, (if out of possession,) he will not be charged 
 Avith interest until such time as he might prudently have 
 
 {d) 3 & 4 "Will. IV. c. 42, s. 28. {g) Supra, p. 116. 
 
 . (e) Sug. 816. {h) Powell v. Martyr, 8 Ves. 146 ; 
 
 (/) Sug. 793. Sug. 794.
 
 294 
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 
 
 Chap. XIII. 
 
 Whether, 
 until title is 
 shown, pur- 
 chaser may 
 appropriate 
 his money 
 and claim 
 exemption 
 from in- 
 terest. 
 
 Interest 
 payable by 
 purchaser in 
 possession 
 notwith- 
 standing 
 ambiguity 
 in contract. 
 
 taken possession : i. e., until a good title was shown (i) : 
 and although he may, if he please, in the interim, pay 
 interest and take the rents and profits from the time fixed 
 for completion, (making the vendor account, not only for 
 what he actually has, but for what he might, without wil- 
 ful default, have received), (k) he is not bound to do so 
 where the interest exceeds the rents and profits (/) . 
 
 And, on the other hand, it has been held that a pur- 
 chaser, if out of possession, is not justified in laying aside 
 his purchase-money, and rendering it wholly or in part 
 unproductive, until the time when a good title is shown 
 by the vendor ; and that, if he do so, it will be at his own 
 risk and loss (m) : this doctrine hoAvever seems open to ob- 
 servation (w). 
 
 And the cases seem to sIioav, that when a purchaser is 
 in actual possession or receipt of the rents and profits, he 
 must pay interest upon his purchase-money (unless lying 
 idle with notice of the fact to the vendor) from the time 
 fixed for completion, even although the vendor delay to 
 show a good title, and the contract do not in terms make 
 the purchase-money payable until a good title is shown; 
 for instance, where parties already in possession agreed to 
 purchase land, the purchase-money to be paid on the 25th 
 of March next " on a good and vahd title being made and 
 executed," and a title was not made until many years after- 
 ward, but they continued in possession, and did not appro- 
 priate the purchase-money, they were held liable to pay 
 interest from the above date (o) . 
 
 {{) Forteblmv v. Shirleff, 2 Sw. 
 223, cited ; Binks v. Lord Rokehij, 2 
 Sw. 222 ; Jones v. Mudd, 4 Russ. 
 118; Monk v. Huskisson, 4 Russ. 
 121. 
 
 {k) Acland v. Gaisford, 2 Madd. 
 28 ; Wilson v. Clapham, 1 Jac. & W. 
 36. 
 
 (/) Esdaile v. Stephenson, 1 Sim. & 
 St. 123 ; Jones v. Mudd, 4 Russ. 
 118, 123. 
 
 (m) De Visme v. De Visme, 13 Jur. 
 1037; 1 Mac. & G. 336, stated 
 infra. 
 
 (n) Vide infra, 302. 
 
 (o) J ft. 'Gen. V. C/irisf Church, 13
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 295 
 
 If no time be fixed for completion, the purchaser pays Chap, xiii. 
 
 interest upon his purchase-money, (unless lying idle with fixed fw '^ 
 
 notice of the fact to the vendor,) from, (it is conceived,) inleresuT' 
 
 the date of the contract, if the purchaser be then in pos- from pos- 
 
 „ , . „ - session 
 
 session, &c. {p) ; or, if he be not then in possession, from taken or 
 the time of his taking possession {q) ; or from the time at 
 which he might prudently have taken possession (r) ; i. e., 
 the time when a good title was shewn. 
 
 And a purchaser taking possession subsequently to the Payment 
 
 contract, cannot, by giving up possession, escape his Ha- evaded by 
 
 bility even to subsequent interest {s). possession. 
 
 Upon the purchase of a reversion, the mere wasting of ^jlftfjui^r ' 
 
 the particular estate by lapse of time appears to be, (for saifof re- 
 
 the purpose of the above rules,) equivalent to possession by Iquu^aient 
 
 ,1 1 /,^ toposses- 
 
 tne purchaser [t) . siou. 
 
 Interest upon the purchase-money of timber taken at a interest 
 
 ■^ -^ "^ upon valua- 
 
 valuation is payable only from the date of the valuation {H) ; tjfj^ber from 
 this, however, it is conceived, can only apply to timber pa'y^abfe.'^^ 
 which had not attained maturity at the date of the contract ; 
 the reason for the rule being, that the augmented value of Growing 
 
 "' ^ timber. 
 
 the timber by growth is included in the valuation, and is 
 an equivalent to interest ; upon which Sir E, Sugden 
 remarks, " but this, which was a good reason during the 
 war, will not, in aU times, justify the withholding of inter- 
 Sim. 214 ; Fliidyei' v. Cocker, 12 Brooke, 3 CI. & Fin. 4 ; and Brooke 
 Ves. 25. V. Champernoivne, 4 CI. & Fin. 589 ; 
 
 ( jw) Ex parte Manning, 2 P. Wms. where the vendors' prima facie right 
 410. to interest was excluded by the terms 
 
 {q) Fludyer v. Cocker, and Alt.- of the contract : and see Lewis v. 
 Gen. V. Christ Church, ubi supra. Tucker, 5 Jur. 1105, V. C. W. ; but 
 
 (r) 2 Sw. 226 ; and see Portman see also Enraght \. Fitzgerald, 2 
 V. Mill, 3 Jur, 356. Dru. & W. 43, where interest seems 
 
 (.s) See last note. to have been allowed only from the 
 
 (J) Ex parte Manning, ubi supra ; time when a good title could have 
 Owen V. Davies, 1 "Ves. 82 ; Davy v. been made. 
 
 Barber, 2 Atk. 489, 490 ; Trefusis (u) See Waldron v. Forester, cited 
 
 V. Lord Clinton, 2 Sim. 359 ; Sug Sug. 799. 
 793 — 805 ; and see Champernowne v.
 
 296 
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 
 
 Chap. XIII. 
 
 Principle 
 which 
 Bhould de- 
 termine the 
 liability. 
 
 Timber 
 arrived at 
 maturity. 
 
 Interest 
 upon valua- 
 tion of fix- 
 tures— occu- 
 pation rent 
 in respect 
 of; 
 
 est. Many cases have occurred, in which the augmented 
 value by growth, between the time of entering into the 
 contract and the completion of it, has not been equal to 
 the depreciation in the market price of the timber during 
 the same period." 
 
 It is, very deferentially, submitted that the above remark 
 is scarcely pertinent to the principle upon which the rule 
 may be supported ; nz., that there is an increase, (not in 
 the market price,) but in the actual quantity or quality of 
 the subject-matter of the contract : the case, in effect, is 
 this ; the vendor agrees to sell the timber as existmg at the 
 time of contract, plus its future increase up to the date of 
 the valuation, upon being paid the then estimated value of 
 such timber and increase ; he takes the chance of a rise or 
 fall in the market value of timber as a commodity ; and a 
 fall, can, it is submitted, no more justify him in requiring 
 interest prior to the valuation, [i. e., in effect an increase of 
 pm'chase-money,) than an unexpected rise would warrant 
 the purchaser in claiming a reduction of the purchase- 
 money, upon the ground of its being of larger amount than 
 he had anticipated. 
 
 Nor does it appear that, in the case of timber which has 
 arrived at maturity, interest ought, as a general rule, to 
 be paid prior to the valuation; for there has been no 
 increase, nor any advantage to the purchaser : the case 
 might, however, probably be different, if he had been the 
 cause of, or consenting to, the delay in the valuation ; or 
 if, the chief value of the timber consisting in its orna- 
 mental character, he had been in possession of the estate. 
 
 The case of fixtures, agreed to be taken at a valuation, 
 seems to be the converse of that of growing timber ; they 
 being a deteriorating property. Where they are of large 
 value, the purchaser, if let into possession before the valua- 
 tion, ought, it is conceived, to jiay an occupation rent up 
 to the date of the valuation ; the case seems to be, con-
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 297 
 
 versely within the principle of Dyer v. Har grave {w), where Chap, xiii. 
 it was decided that wheu^ upon the sale of leaseholds, the rJaseboMs. 
 vendor retains possession after the time fixed for comple- 
 tion, he must pay an occupation rent to the purchaser, and 
 receive interest upon the purchase-money. 
 
 But where, upon a sale of the lease of a public house vendors re- 
 taining pos- 
 and the stock in trade, the purchaser wrongfully refused to session of 
 
 ' '■ o ^ trade pre- 
 
 perform the contract, and the vendors retained possession ^Jt'heid* 
 and carried on the business, the purchaser was compelled Jccupat^lon 
 to pay interest on his purchase-money, and also all smns 
 which the vendors had laid out for rent, taxes, and other 
 necessary outgoings, with interest ; and was not allowed 
 to charge the vendors with an occupation rent [x). It 
 may be observed of this case, that the vendors could not 
 have discontinued the business without incurring the risk 
 of the property being seriously depreciated Avhile the com- 
 pletion of the contract yet remained uncertain : but it was, 
 nevertheless, held on appeal, that they carried it on at their 
 own risk, (and, it is presumed, for their own benefit,) 
 subject to their liabihty to account to the purchaser for so 
 much of the stock included in the contract as they had 
 actually disposed of. 
 
 The cases do not seem to define satisfactorily what is a what a suf- 
 ficient ap- 
 
 sufficient appropriation of money by the purchaser to propriation 
 J^-'- •■■ •/ ./ J. Qf purchase- 
 
 relieve him from the liability to interest : in Winter v. ^^n^y to^^ 
 
 Blades [y], the purchaser, upon entering into the contract, fnt«:est!°™ 
 paid into his general account at his banker^s a sum less than 
 the purchase-money, but which, together with his existing 
 balance, exceeded the purchase -money ; and until comple- 
 tion his balance was never less than the purchase-money, 
 except for a period of thi-ee days ; and the Court discharged 
 him from payment of interest, in respect of the difference 
 between his average balance for the period between the 
 
 (w) 10 Ves. 510. (x) Dakin v. Cope, 2 Russ. 176. 
 
 (y) 2 Sim. & St. 393.
 
 298 
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 
 
 Chap. XIII. 
 
 Actual bond 
 fide appro- 
 priation re- 
 quisite. 
 
 Payment 
 into liank 
 at call. 
 
 Purchaser 
 acceding to 
 delay can- 
 not after- 
 wards ap- 
 propriate 
 purchase- 
 money. 
 
 Express 
 agreement 
 to pay in- 
 terest— 
 elTect of. 
 
 date of his notice to the purchaser and completion, and his 
 average balance for three years immediately preceding the 
 contract: thus estabhshing, (apparently,) two principles; 
 viz., first, that appropriation of a part of the purchase- 
 money relieves the purchaser from payment of interest pro 
 tanto ; and secondly, that payment into liis general banking 
 accoimt is an appropriation : the latter (if not the former) 
 of which, seems to be disapproved of by Sir E. Sugden {z) ; 
 and both appear to be questionable. ^ 
 
 Sir E. Sugden observes, " If the money was not actually 
 and bond fide appropriated for the purchase, or the pur- 
 chaser derived the least advantage from it, or in any way 
 made use of it, the Court would compel him to pay in- 
 terest ;" if, therefore, the purchaser pay the money into a 
 Bank at which he has an account, it is at least prudent to 
 make the payment to a separate account ; in many of the 
 Joint-stock Banks interest, at a low rate, is allowed upon 
 sums deposited ; and it is conceived, that, in such a case, 
 if the money were payable at call or upon short notice, 
 the purchaser upon giving the usual notice to the vendor 
 would escape liability in respect of the difference of in- 
 terest. 
 
 When it appears that some considerable time must 
 elapse before the title can be perfected, and the pur- 
 chaser agrees to take possession and pay interest, he can- 
 not, (unless there be great and unexpected delay,) by sub- 
 sequently appropriating the purchase-money and gi\ing 
 notice, escape his Hability to interest [a) . 
 
 The Law upon the general subject seems in its appli- 
 cation to cases where there is a special condition as to 
 interest, to be in an unsettled state : it has been held, that 
 a general agreement by the pm'chaser to pay interest 
 during delayin completion will bind him during delay caused 
 
 {z) Sug. 795 ; and see Macdonncll \ . Harding, 7 Sim. 178. 
 {a) Dickinson v. Heron, Sug. 797.
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 299 
 
 by the vendor {b) : this decision^ however, is disapproved of ^^ap. xii i. 
 by Sir E. Sugden [c)-, and two subsequent cases (</), in 
 which it was decided that agreements to pay interest 
 during delay caused by " any unforeseen or unavoidable " unavoid- 
 obstacles/' or "any unavoidable obstacle," *did not apply obstacle.- 
 to delays in making out the title, seem seriously to affect 
 its authority : where, however, the agreement was to pay 
 interest during delay arising from "any cause whatever "Any cause 
 except the wilful (e) default of the vendor" (/), or, simply, fuf default " 
 "from any cause whatever" [g], (an expression not so 
 strong against the purchaser as the former one, inasmuch 
 as, the particular exception of "wilful default" increased 
 the stringency of the first part of the sentence,) it was 
 held, that interest was payable during delays occasioned 
 by the state of the title; but, in the latter case (A), 
 the order was made without prejudice to any applica- 
 tion by the purchaser for compensation : and a differ- ^aki'"ng^^*"' 
 ent decision was come to, when the expression was, "if '^'^*''^"'^- 
 from any cause whatever the purchase-money shall not be 
 paid on, &c., the purchaser making default shall pay inter- 
 est" [i) ; and, of course, a condition containing the words 
 " any cause whatever," even without anything to quahfy 
 their effect, would not authorize wilful delay on the part 
 of the vendor {k) : in a very recent case, where the ex- faul^J^S'ln'*'"' 
 pression, upon a sale by the Court, was, " if the purchaser ^ym"nt." 
 shall fail in making such payments at the time and in 
 
 (J) Esdaile v. Stephenson, 1 Sim. Sug. 807. 
 & St. 122 ; see Matson v. Swift, 5 (g) Greenwood v. Churchill, 8 
 
 Jur. 645, R. Beav. 413. 
 
 (c) Sug. 807. (k) S. C. 
 
 (d) Monk V. Huskisson, 4 Russ. {i) Defining v. Henderson, 1 De 
 121, n. ; Birch v. Podmore, Sug. G. &S. 689; and see, at Law, Perry 
 807. V. Smith, 1 Car. & M. 554 ; stated 
 
 (e) As to what is wilful default, see supra, p. 59. 
 
 Elliott V. Turner, 477 ; Ex parte (k) See Paton v. Rogers, G Madd. 
 
 Bradshaw, 16 Sim. 174. 256. 
 
 if) Orendon v. Lord Falmouth,
 
 300 MATTERS RELATING TO COMPLETION OF PURCHASE. 
 
 Chap. XIII. manner aforesaid, then and in such case, from whatever 
 ^Dd rS.^' cause the delay may have arisen/' interest to be paid at 5/. 
 2)er cent., and no abstract was delivered until after the time 
 fixed for completion, and the supplemental abstracts, 
 showing a good title, were not dehvered, although repeat- 
 edly applied for, until eighteen months after the time fixed 
 for completion, and the purchaser at the commencement 
 of the delay paid the purchase-money into a bank at a low 
 rate of interest, and gave notice thereof to the Vendors, and 
 that he should require compensation, and then, upon the 
 title being cleared up, obtained an order for a conveyance 
 and for payment of his purchase-money into Court Avithout 
 prejudice to his right (if any) to compensation, and the 
 purchase was accordingly completed, a petition for com- 
 pensation in respect of the loss of interest was dismissed 
 by Sir /. Wigram, V. C, with costs, upon the ground of the 
 purchaser ha\dng completed the contract ; but it seems to 
 have been admitted that, while the contract remained in- 
 complete, he might have obtained relief, or might pro- 
 bably have abandoned the contract (/) : and the decision 
 of the V. C. was reversed by Lord Cottenham on appeal ; 
 liis Lordship holding, either that interest did not begin to 
 run until the delivery of an abstract sho"sving a good title, 
 or that, if the condition bound the purchaser to pay in- 
 terim interest, he was entitled to compensation for the non- 
 performance by the vendor of his part of the contract (m) . 
 But, in the same case, when, it haAong been decided that 
 the right to interest on the one hand, and to the income 
 of the estate on the other, was not to commence until a 
 good title was abstracted, the purchaser applied for com- 
 pensation in respect of his money having been compara- 
 tively unproductive in the interim, (it having, as before 
 
 (I) De Visme v. De Visme, 13 Jur. 336 ; and see Skelton v. Robertson, 
 205. 14 Jur, 323, R. 
 
 (>rt) 5. C. ou appeal, 1 Mac. & G.
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 301 
 
 stated^ been paid into a bank at a low rate of interest upon ^'^"p-^-"- 
 notice to the vendors^) his Lordship held that the claim 
 could not be sustained. His Lordship observed — '^^My 
 opinion is, that, the vendors being in default, the delay- 
 having been occasioned by their not performing their part 
 of the contract, are not to exact from the purchaser the 
 payment of interest until the time they showed a good 
 title on their abstract. The effect of that is to postpone 
 tlie day agreed on for the completion of the contract until 
 the time when the vendors put themselves right, and 
 showed their title to be good on the abstract. The result, 
 therefore, is, until that time there would be no demand to 
 be made by the vendors for the payment, and therefore 
 the interest, which was to stand in the place of that pay- 
 ment, had not commenced to rim : it did run when they 
 showed a good title, and not before. The purchaser is to 
 have compensation for the loss and injmy which he sus- 
 tained by the non-performance of the contract by the ven- 
 dors ; but the vendors are not, therefore, to make com- 
 pensation for any loss not arising out of their contract ; 
 that default on the part of the vendors not making it 
 necessary or proper for the purchaser to lay his money by 
 and make it unproductive, for the pm'pose of throwing the 
 loss of that miproductiveness on the vendors. I think it 
 is carrying the principle out strictly, to postpone the time 
 for papng the purchase-money till the time a good title 
 was shown. The vendors would be entitled to the rents 
 and profits up to that time, and the purchaser's hability to 
 pay interest would commence from that time, and the 
 Master must inquire when that time was" (n). 
 
 This decision, it is very deferentially submitted, leaves 
 the law on this subject in an unsatisfactory state, and will 
 probably lead to future litigation : it may be admitted 
 that when a pm'chaser has agreed to pay interest and take 
 
 {n) 1 Mac. & G. 353.
 
 302 
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 
 
 Chap. XIII. ij^Q profits from a specified day, notwithstanding delay 
 arising from any cause Avhatever, there Avould be much 
 hardship (at least in cases where personal possession of the 
 property is essential to its due enjoyment) in holding this 
 agreement to extend to a delay in showing such a title as 
 would justify a prudent purchaser in accepting possession 
 and so receiving the equivalent for his interest ; but if, on 
 the groimd of liardship, the strict words of the agreement 
 (which are sufficiently large in terms, and are notoriously 
 intended in practice, to extend to delays in making out 
 the title) may be disregarded, surely, on the like principle, 
 the purchaser (who may possibly have called in money 
 upon the faith of the vendor's agreement to complete on a 
 certain day) ought to be allowed to appropriate and re- 
 invest it in such a manner as that it may produce some 
 income and yet be ready when required, and to throw the 
 loss of interest on the vendor ; in the particular case the 
 purchaser seems to have been left in no better position 
 than that in wliicli he was placed by the decision of the 
 Vice-Chancellor. 
 
 And it is conceived that if a vendor abstract a good 
 title but be unable at once to verify it, the time for the 
 commencement of interest must be postponed until such 
 title be satisfactorily verified ; so, if an imperfect title be 
 abstracted, or insufficient evidence be given of an ap- 
 parently perfect title, interest, it is conceived, must com- 
 mence from the time when the purchaser agreed to accept 
 the imperfect title or insufficient evidence : it is evident 
 that the practical apphcation of the rules laid down in, 
 and deducible from, De Visme v. De Visme, must in many 
 cases be a matter of very considerable difficulty. 
 
 An agTeement which reserves to the vendor the rents 
 and profits of the estate until actual completion, precludes 
 any claim to interest on the purchase-money (o) . 
 
 {o) Brooke v. Champernowne, 4 CI. & Fin. 589. 
 
 Vendor's 
 right, to 
 interest ex 
 eluded by 
 agreement 
 to take 
 rent and 
 lirofits.
 
 MATTERS RELATING TO CO:\IPLETION OF PURCHASE. 303 
 
 The vendor may, occasionally, claim nn increase of pur- cihap. xii i. 
 chase-money, upon the ground of an excess in the actual purchase-^ 
 
 „' , , 1 • T • 1 money in 
 
 quantity oi the estate over that stated in the particulars. respect of 
 
 excess in 
 
 By the 5 Geo. IV. c. 74, ss. 1 and 2, the pole or perch quantity. 
 is to contain in lensrth five standard yards and a half: the tity- 
 
 " ' statutory 
 
 rood, 1210 standard yards; and the acre, 4840 standard ^^cre. 
 yards, being 160 square poles : and, by the 15th section, 
 after the 1st May, 1825, "all contracts, bargains, sales, 
 and deahngs which shall be made or had within any part 
 of the United Kingdom, for any work to be done, or for 
 any goods, wares, merchandise, or other thing to be sold, 
 dehvered, done, or agreed for by weight or measure, where 
 no special agreement shall be made to the contrary, shall 
 be deemed, taken, and construed to be had and made 
 according to the standard weights and measui'es ascer- 
 tained by the Act; and in all cases where any special 
 agi'eement shall be made, -^Adth reference to any weight or 
 measui'e established by local custom, the ratio or pro- 
 portion which every such local weight or measm^e shall 
 bear to any of the said standard weights or measures, shall 
 be expressed, declared, and specified in such agreement, or 
 otherwise such agreement shall be null and void." 
 
 Local Mea- 
 sures 
 abolished. 
 
 The 5 & 6 Will. IV. c. 63, s. 6, enacts " that the mea- 3^,^, 
 
 sure called the Winchester bushel and the lineal measure 
 called the Scotch ell, and all local and customary measures 
 shall be abolished." 
 
 Before the passing of these Acts considerable diversity ^"riat^n7 
 existed in the size of the acre; in some places (as in '"tbeAcrc. 
 Chesliire) the customary acre contained nearly two sta- 
 tutory acres ; while, occasionally, the variation was nearly 
 as much the other way {p) : the applicabihty of the 15th 
 section of the Act of Geo. IV. to contracts for sale of land 
 is not altogether clear (q) ; but, it is conceived, that, under 
 the later Act, any quantities mentioned either in a con- 
 
 (p) Porhnany. Mill, 2 Russ.b70. (q) Sug. 376.
 
 304 
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 
 
 Chap. XIII. tract or a conveyance would be referred to the standard 
 measurement, without regard to any local custom (unless 
 expressly referred to) (r) . 
 
 Where there is no express agreement on the subject, 
 and the contract in general terms includes property which 
 it was not proposed to sell, Equity Avould not enforce it 
 against the vendor, without at least giving Mm compen- 
 sation {s) ; but we are not aware of any case establisliing 
 his general right to additional pm^chase-money, merely 
 because the estate exceeds the quantity stated in the par- 
 ticulars ; since, however, if it were sold professedly by the 
 acre, the excess, if taken, must, it is conceived, clearly be 
 paid for, it seems to foUow, from the doctrine laid down in 
 Hill V. Buckley (t), (^dz., that where the quantity is stated 
 the price must be considered as fixed with reference 
 thereto) that if called upon to fulfil the contract, he might, 
 independently of agreement, claim compensation : but the 
 general understanding and practice seem to be the other 
 way. 
 
 And even where there is a condition for compensation 
 to the vendor, his rights, in any given case, seem far from 
 clear : as is obsei*ved in a recent work on conveyancing (u), 
 " It must indeed be a very strong case of mistake for a 
 vendor (who has full means of ascertaining, with the 
 utmost accuracy, what he intends to sell) to succeed in 
 obtaining compensation, or, in other words, an increase of 
 his purchase-money, for an alleged mistake he has himself 
 made : " in a case [w) where fields described as " fourteen 
 acres more or less," were sold for 973/., mider an order of 
 the Court, and with the usual condition as to misdescrip- 
 
 Vendor'8 
 riglit to 
 compensa- 
 tion is 
 generally 
 question- 
 able. 
 
 Alleged 
 under-value 
 from mea- 
 surement 
 being given 
 in custom- 
 
 (>■) And see Portman v. Mill, 2 
 Russ. 570. 
 
 (s) See Att.- Gen. v. Sitwell, 1 You- 
 & C , Ex. 559 ; Marquis Townshend 
 V. Stangroom, 6 Ves. 328 ; see Tyler 
 V. Beversham, Rep. t. Finch, 80 ; 
 
 Alvaiiley v. Kinnaird, 2 Mac. & G. 1. 
 
 (0 17 Ves. 394, 401. 
 
 (m) Davidson, vol. iii. p. 34. 
 
 (w) Price v. North, 2 Y. & C, Ex. 
 620.
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 305 
 
 tion, a petition stating that the fields in fact contained Chap^xin. 
 twenty-seven statutory acres (the acres mentioned in the ofyrulfoiy 
 particulars being intended for customar}^ acres) and that comp7n"a- 
 the real value was 1600/., and praying that the purchaser 
 might pay the difference or that the property might be 
 resold, was dismissed with costs ; the decision however was 
 chiefly on the ground of delay, four years having elapsed 
 since the sale; this case may, perhaps, be considered to 
 differ in principle from cases where there is a misstatement 
 of quantity incapable of being explained by the difference 
 between statutory and customary measurement ; for, pos- 
 sibly, the purchasers at the sale might have bid under the 
 full impression that the fourteen acres were in fact custo- 
 mary acres, and this was alleged to have really happened ; 
 Sir Edward Sugden's remark [x] upon the case is, " that 
 no doubt it would be difficult in such a case to make 
 a bo7id fide purchaser buy an estate twice as large as that 
 for which he had contracted, and pay double the amount 
 of the purchase-money for it:^^ and it may, perhaps, be Difficulty of 
 doubted whether, in any ordinary case, a purchaser could "^^ivf ' 
 be compelled under such conditions to pay a sum mate- a purdfase" 
 rially exceeding the contemplated amount of purchase- 
 money ; such an unexpected liability might, it is obvious, 
 be often productive of the most oppressive and ruinous 
 consequences : in the above case the Court seems to have 
 considered that had any relief been granted, it must have 
 consisted in avoiding the sale altogether. 
 
 As to the right to compensation in respect of variations variations 
 
 in quality of 
 
 in the quality of the estate, — there does not appear to be estate- no 
 
 >■ '' ' -i J- allowance 
 
 any case in which a vendor has obtained an increase of favour 'of 
 purchase-money upon the gromid of the character of the ^®'^'^**''- 
 property being better than he had himself described it. 
 
 On the other hand, the purchase-money is liable to be Purchase- 
 
 (.r) Sug. 372.
 
 306 MATTERS RELATING TO COMPLETION OF PURCHASE. 
 
 Chap. XIII. diminislied by deductions, either in respect of proceeds of 
 
 Slsh'er tlie estate received, or which ought to have been received 
 
 by the vendor, and which belong to the pui'chaser ; or in 
 
 respect of mere deteriorations to the estate ; or of original 
 
 defects in the estate. 
 
 By proceeds ^s to deductions of thc first description ; — We have 
 
 of estate 
 
 whichmight already seen that the entire inheritance belongs to the 
 recdv^edby purchascT ft'om the date of the contract (y), but that the 
 vendor. p^.Q^ts or iucome belong to him only from the time fixed 
 for completion ; if, therefore, timber be blown down {z) , 
 or felled, or stone or minerals be quarried or worked after 
 the date of the contract, the proceeds must be accounted 
 for at completion : so, the vendor must account for such 
 rents and profits as he has, or might, but for his vrilful 
 default (a), have received, from the time appointed for 
 completion up to such time as the purchaser has, or might 
 safely have, taken possession [b) : and in one case, where 
 many years^ delay had occm-red by the default of the ven- 
 dor who had received part of the purchase-money and 
 retained possession of the estate, he was charged with 
 interest at 4/. per cent, upon a proportionate part of the 
 rents (c). 
 By amount As to dcductious of the sccond description ; — The ven- 
 
 of deteriora- 
 tions to (^[qj. fi'om the date of the contract holds the estate in trust 
 
 estate, 
 
 fauu^of foi' the purchaser, subject to payment of the purchase- 
 ven or. moncy ; with a right until the time fixed for completion to 
 receive the interim profits ; if, therefore, by his wilful 
 acts id), or mere neghgence, he permit the property to 
 deteriorate, — as by allowing hedges and fences to get out 
 of repau", or the land to remain uncultivated (e), or by an 
 
 (y) Supra, p. 116. (b) Vide supra, p. 294. 
 
 (z) I/jid. (c) Burton v. Todd, 1 Swanst. 
 
 (a) Acland v. Gaisford, 2 Madd. 255. 
 
 28 ; Wilson v. Clapham, 1 Jac. & (d) 3 Madd. 395. 
 
 W. 36. (e) Foster v. Deacon, 3 Madd. 394.
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 307 
 
 improper course of liusbandiT {f), or by ejecting tenants, Chap. xiii. 
 or acting so impro^idently as to occasion their loss [g), — 
 the purchaser is entitled to an allowance : and^ of coui-se, 
 deterioration may be of such a natiu'e, or to such an 
 extent, as to reheve him from the contract {h) ; and the 
 vendor must answer for deteriorations occasioned by the 
 conduct of his tenant, even although the lease has ex- 
 pu-ed (^) : but not for deteriorations after the time fixed 
 for completion, if the title shown were such that the pur- 
 chaser ought to have taken possession [j) . 
 
 So, also, compensation may be due to the purchaser out Abatement 
 
 . . .in purchase- 
 
 of the purchase-monev in respect of ori":inal detects in the money in 
 
 ^ " . . respect of 
 
 estate, either as respects its quantity, or quahty, or the ^^^1^°^^^ 
 extent of the vendor^s interest therein; it may be con- ^*'**^- 
 Aenient here to consider those questions which relate 
 merely either to the quantity or quality of the estate; 
 reserAdng for sepai-ate discussion, under the head of spe- 
 cific performance, those questions Avhich are in fact ques- 
 tions of title {k) . 
 
 The purchaser will be entitled to compensation for a Abatement 
 
 allowed for 
 
 deficiency in quantity, even although the estate be not deficiency 
 
 1 *• •" ^ although 
 
 sold professedly by measurement (/) ; and although, of p*ofe°s°ediy 
 com*se, he could not claim compensation if it appeared Icre.*^^^^^ 
 that he contracted with a knowledge of the deficiency. Knowledge 
 
 of dcficiGiicy 
 
 such knowledge will not be assumed from the fact of his not readily 
 
 _ _ attributed 
 
 being intimately acquainted ^vith the estate (//?), or even *^ pur- 
 being the occupying tenant («) ; nor is the right to com- 
 pensation precluded by a condition that he shall not object 
 to complete his piu'chase if the quantity should turn out 
 
 (/) Lord V. Stephens, 1 Y. & C. 332. 
 Exch. 222. (A) Vide infra, Ch. XVIII. 
 
 (g) Harford v. Furrier, 1 Madd. (/) Hill v. Buckley, 17 Ves. 394, 
 
 532. 401 ; Kiiig v. Jnison, 6 Beav. 124. 
 
 (/O Vide infra, Ch. XVIII. (»«) See Shackleton v. SutcUffe, 1 
 
 (0 3 Madd. 395. De G. & S. 609. 
 
 {j) Minchin v. Nance, 4 Beav. («) King v. Wikon, 6 Beav. 124. 
 
 x2
 
 308 
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 
 
 Chap. XIII. 
 
 As to the 
 effect of the 
 expressions 
 "by esti- 
 mation," 
 " more or 
 less," &c., 
 being added 
 to state- 
 ment of 
 quantity. 
 
 What de- 
 ficiency 
 they will 
 cover. 
 
 Semhle— 
 only de- 
 ficiencies in 
 the frac- 
 tional parts 
 of the acre, 
 when the 
 description 
 particu- 
 larizes frac- 
 tional parts. 
 
 Purchaser's 
 right con- 
 fined to 
 compen- 
 sation. 
 
 less than that stated in the particulars (o) ; nor by acts 
 which amount to a waiver of objections to the title (jo). 
 
 The above rule^ where the estate is professedly bought 
 by the acre^ or (which is the same thing) {q) where the 
 quantity is stated and there is nothing to rebut the ordi- 
 nary presumption of price ha\dng been fixed with reference 
 to quantity, ^aay, it is conceived, be strictly enforced 
 where no words are introduced to qualify the statement as 
 to quantity ; the quahfying expressions, " by estimation/' 
 and, " be the same more or less," are, however, in very 
 general use; and the cases do not seem to define their 
 precise effect : they have been held to cover a deficiency of 
 upwards of five out of forty-one acres (r) ; but not of 100 
 out of 349 acres {s) ; so, in a case of Gell v, Watson [t), 
 similar expressions were not allowed to cover a deficiency 
 of two acres in two closes forming part of a much larger 
 estate, the quantity of the two closes being stated to be 
 [according to a specified plan) 8 a. 1 r. 4 p. 
 
 And where land is described thus particularly, by 
 stating not only the acres but also the roods, or roods and 
 poles, these qualifying expressions cannot, perhaps, be 
 held to provide for more than inaccuracies in the roods or 
 poles [u) ; and, of coui'se, a vendor cannot, in any case, 
 rely upon such expressions, if he fraudulently misstate the 
 quantity [v). 
 
 The purchaser's right is strictly to compensation, and 
 not necessarily to an abatement of pui'chase-money pro- 
 portionate to the surface deficiency : thus, where, upon 
 the sale of woodlands, the value of the timber was cor- 
 rectly stated, but the land was represented to contain 
 
 (o) Frost V. Breiver, 3 Jur. 1G5. 
 
 (p) Calcraft v. Roebuck, 1 Ves. 
 jun, 221. 
 
 {q) 17 Ves. 401. 
 
 (r) Winch v. Winchester, 1 Ves. 
 & B. 375. 
 
 (s) Portman v. Mill, 2 Russ. 570. 
 (0 Sug. 372, 
 
 (m) 17 Ves. 401 ; 9 Jarm. Conv. 
 by S. 37. 
 
 {v) 1 Ves. & B. 377; Sug. 371.
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 309 
 
 more by twenty-six acres tlian tlie actual quantity, lie was ^^^p- ^^^^- 
 allowed, as compensation, the estimated value of twenty- 
 six acres of woodland minus the wood [iv) : the case is Ac^fncyon 
 valuable as illustrating a principle, but, as a decision woods. 
 between parties, its justice may be thought questionable : 
 for it is clear that in purchasing woodland (unless there be 
 no growing timber), the value of the estate depends, not 
 only upon the present worth of the timber and of the 
 land apart from it, but upon the two taken together, with 
 reference to the relative situations of the trees being such 
 as to afford them sufficient nourishment and full space to 
 arrive at maturity. 
 
 As respects the quality of the estate, — A purchaser, it Abatement 
 
 ■•■ 1 » ■> 3. ■'in purchase- 
 
 appears, may claim compensation in respect of any defi- ™speJt'of 
 ciency which " admits of a certain estimation^^ [x] ; for fn quality 
 instance, he may claim it for dilapidations of a house dauned, 
 
 when. 
 
 described as "in good repair" {y), or for the want of cul- 
 tivation of land described as being in " a high state of cul- 
 tivation" {z), but not for that which does not admit of a 
 pecuniary equivalent ; for instance, it is doubtful whether 
 compensation could be claimed in respect of the land lying 
 dispersed, instead of within a ring fence, as described {a) ; 
 although such a variation might be sufficient to avoid the 
 sale : and he cannot claim compensation in respect of a 
 misdescription knoAvn to him when he entered into the 
 contract {b). 
 
 (ill) Hill V. Buckley, 17 Ves. 394. [z) Dyer v. Hargrave, ubi supra, 
 
 (w) 10 Ves. 508. (a) S. C; Fewster v. Turner, 6 
 
 (y) Dyer v. Hargrave, 10 Ves. Jur. 144. 
 
 505 ; Grant v. Munt, G. Coop. 173. (b) See last note.
 
 310 MATTERS RELATING TO COMPLETION OF PURCHASE. 
 
 Chap. XIII. 
 
 (5.) To whom and how purchase-money should be paid. 
 Agent or The agent (c) or solicitor id) of the vendor, cannot, with- 
 
 solicitorof t> \ I \ i ' ' 
 
 authorized °^* special authority, receive and give a discharge for the 
 ricdvepur- purchasc-money j and the usual indorsed receipt is in 
 m<fney. Equity no conclusive evidence of payment (e) ; the money, 
 S^lhouid therefore, should in strictness be paid to the vendor, or upon 
 * ^'^' ■ his wi'itten authority ; and^ in the case of a fiduciary vendor, 
 care should be taken that the proposed mode of payment does 
 not involve a breach of trust ; e. g., it is a breach of trust 
 for trustees for sale to authorize their solicitor to receive 
 the purchase-money (/) : and of course it cannot, except 
 under a special power in the instrument creating the trust, 
 be safely paid to fewer than the entire body of trustees {g) : 
 when an agent is empowered to receive it, there must 
 be a bond fide payment ; for instance, it cannot be set off 
 against a private debt due from him to the pui'chaser (//), 
 unless the vendor, being indebted to the agent, have 
 authorized him not merely to receive, but to pay himself 
 out of the purchase-money (i) ; so, if an agent be autho- 
 rized to receive the money according to the contract, and 
 it be paid to him in anticipation of the time therein 
 named, the purchaser is liable for its due appHcation [k) : 
 if a check be given for it, and, by reason of an uninten- 
 tional non-compliance with the Stamp Act be so drawn 
 that no action could be maintained upon it, and the bankers 
 
 (c) Supra, Y). 9>&. Exch. 414; Hartley v. Cassan, 11 
 
 (d) Sug. 851. Jur. 1088, Exch. ; as to how the loss 
 
 (e) Winter v. Lord Anson,?! Russ. of money, by the fraud of a person 
 488 ; infra, Ch. XIV. acting as agent for both parties, is to 
 
 (_/) See Ghost v. Waller, 9 Beav. be borne, see Vandaleur v. Blagrave, 
 
 497. 6 Beav. 565; on appeal, 11 Jur. 
 
 ig) Hall V. Franck, 11 Beav. 519; 935 ; Young v. Guy, 8 Beav. 147. 
 ct vide supra, p. 264. (Jc) Parnther v. Gaitskell, 13 East, 
 
 {h) Youngs. White, 7 Beav. 506. 432; Cotman v. Orton, 5 Jur. 142, 
 
 (j) Barker V. Greenwood, 2 Y. & C. C.
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 311 
 
 upon whom it is drawn fail befoi'C payment^ or if, (supposing Chap, xiii. 
 it to be valid and to be presented within a reasonable 
 time J the bankers upon recei-^dng it Avith instructions to 
 transmit the amount to London, on the same day, and 
 before the usual hour for closing business, stop payment, 
 the loss falls on the purchaser (/). 
 
 Upon a sale in Bankruptcy, the purchase-money must B"n^}^'° 
 be paid to the Official Assignee, unless the Court shall ''"i^**^^- 
 othervi-ise direct [m) . 
 
 Where A., in ignorance of the purchaser being an un- ^'?°°*' , 
 
 ■' ° ^ " third party 
 
 certificated bankrupt, advanced part of the purchase- parfofthl 
 money and paid it direct to the vendor, and the con- mol^eyfas 
 veyance was handed over to him immediately after its chaser's as- 
 
 signees in 
 
 execution, he was held to have a vahd hen upon the pro- Bank- 
 
 _ ^ ruptcy. 
 
 perty ; although the purchaser at the same time signed a 
 memorandum stating that he had deposited the deed with 
 A. as a secui'ity for the advance («) . 
 
 Upon a sale by a mere statutory owner, under the Payment of 
 
 -■- •' ./ ' consiflera- 
 
 Lands Clauses Consohdation Act, 1845, the entire pm-- ^~°,"^y 
 chase and compensation moneys, if amounting to 200/., owners"to°'^^ 
 must be paid into the bank, or (if under 200/. but exceed- compames, 
 
 &c. 
 
 ing 20/.), into the bank or to trustees, and be applied in 
 manner directed by the 69th and following sections of the 
 Act ; and no part thereof can be safely paid to such statu- 
 tory owner (o), and the above provisions extend to moneys 
 agreed to be paid to him for assenting to or not opposing 
 
 (/) Bond V. Warden, 1 Coll. 583. to sect. 74 of Act, see Ex parte Ward, 
 
 (m) 12 & 13 Vict. c. 106, s. 39. 2 De G. & S. 4. Purchase money of 
 
 (n) Meux v. Smith, 11 Sim. 411 ; lands of a municipal corporation may 
 
 which see, as to the usual mode of be applied in redeeming incumbrances 
 
 payment for public houses. Bond upon any other lands of the saire 
 
 fide payments by purchaser, after his corporation ; Ex parte Corporation 
 
 secret act of bankruptcy but before of Camlridge, 6 Ha. 30 ; an order 
 
 petition, are protected by 12 & 13 for the re-investment of part of the 
 
 Vict. c. 106, s. 138. money in land may go on to direct 
 
 (o) As to apportionment, between that the balance, if less than 20/., be 
 
 lessee and reversioner, of purchase paid to the tenant for life ; Re Lord 
 
 money paid into Courtwith reference Egremcni, 12 Jnr. 618.
 
 813 
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 
 
 Chap. XIII. 
 
 Prima facie 
 right 
 
 thereto of 
 parties in 
 possession 
 of the land. 
 
 What affi- 
 davit ne- 
 cessary on 
 
 Petition for 
 pnyment 
 out of 
 Court. 
 
 the passing of the bill authorizing the taking of the lands ; 
 but the Court of Chancery or the Trustees^ as the case 
 may be^ may allot to him a portion of the sum so paid^ as 
 a compensation for personal injury^ inconvenience or an- 
 noyance {p) . 
 
 Where a Railway Act provided that where any question 
 should arise upon the Act touching the title to any lands, 
 &c., " the parties who should have been in possession or 
 receipt of the rents or profits of such lands at the time of 
 such purchase," kc, should be deemed to have been law- 
 fully entitled, &c., according to such possession until the 
 contrary should be sho^vn to the satisfaction of the Court/' 
 and the capital and income of the funds, &c., representing 
 the purchase-money were to be paid and applied accord- 
 ingly, it was held that the party in possession, but whose 
 title was objected to by the Company, was entitled to have 
 the money paid out of Com't on his own affidavit of 
 title {q) : the 79th section of the Lands Clauses Con- 
 solidation Act, 1845, contains provisions of a similar 
 nature, but with variations of expression which might pro- 
 bably induce the Court to refuse to follow a precedent evi- 
 dently open to serious objections. 
 
 In all petitions under Acts of Parliament for sale of 
 property for public purposes, when the purchase-money is 
 directed by the Act to be paid into Court, the petitioners 
 claiming to be entitled to the money so paid in, must, 
 in addition to the usual affidavit verifying their title, make 
 oath that they believe they have a good title, and are not 
 aware of any right in any other person, or of any claim 
 made by any other person, to the sum mentioned in the 
 petition or any part thereof (y) ; and an affidavit to this 
 
 (p) Sect. 73 ; see In re the Duke 
 of Marlborough' s estates, 13 Jur. "38. 
 
 {q) Ex parte Grainge, re Great 
 JVestern Railwag Acts, 3 Y. & C. 
 62, and see cases cited, p. G6. 
 
 (»•) Letter of Lord Chanceller to 
 Senior Registrar, dated 12th Febru- 
 ary, 1842 ; see 16 L. J., N. S., Ch. 
 
 72.
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 313 
 
 effect will not be dispensed -witli^ althougli the petitioner chap. xiii. 
 be aged and infirm, and tlie Company have contracted 
 with him, accepted his title and consented to the prayer of 
 the petition (s) : where a person entitled to an aliquot 
 share of a sura of money so brought into Coiu't petitions 
 for payment of his share, he need not give notice to the 
 parties entitled to the other shares (t) ; nor, where an 
 order has been made for the payment of the interest to a 
 single woman, need the Company be served with a peti- 
 tion for its payment to her and her husband on her mar- 
 riage {i(). 
 
 The Com-t has refused to sanction the investment of of rehn^st'-^ 
 money so paid into Coiu't in the purchase of an equity of thereof win 
 
 \}G sanc- 
 
 redemption, or of land the title to which has not been tionedby 
 
 ^ ^ Court. 
 
 approved by the Master (iv) : and has refused to interfere 
 with the Master's decision who reported generally against 
 the propriety of an investment on mortgage {a?) : an in- 
 vestment in land of a different tenure from that which 
 produced the fund is generally improper, but has been 
 allowed under special circumstances {y) ; where the fund 
 has arisen fi'om land belonging to an ecclesiastical cor- 
 poration sole, the income has been ordered to be paid 
 to the petitioning incumbent, so long as he remained in- 
 cumbent, and afterwards to the inciunbent for the time 
 being [z). 
 
 (s) Ex parte Hollick, 16 L. J., N. {x) Ex parte Francklyn, 1 De G. 
 
 S., Ch. 71. & S. 528. 
 
 {f) In re the Midland Counties {y) In re Cannes estate, 19 L. J., 
 
 Railway Company, 11 Jur. 1095, R. Ch. 376, V. C. K. B. 
 
 (li) Ex parte Hordern, 2 De G. & {z) In re tfie Archbisfiop ofCanter- 
 
 S. 263. bury, 1 De G. & S. 3fi5 ; vide infra as 
 
 (w) Ex parte Craven, 17 L. J., to costs; and see In re the Bucking- 
 
 N. S., Ch. 215, V. C. hamshire Railways, 5 Rail. Ca. 702.
 
 314 
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 
 
 Chap. XIII. 
 
 Purchaser's 
 right to 
 delivery of 
 muniments 
 of title. 
 
 Where he 
 purchases 
 only part of 
 the estate. 
 
 Vendor 
 having 
 covenanted 
 to proiluce 
 deeds to 
 other par- 
 ties not 
 therefore 
 entitled to 
 retain them. 
 
 Sale under 
 a settle- 
 ment. 
 
 (6.) As to purchaser's right to deeds, attested copies, S^c. 
 
 The pui'cliaser^ upon completion^ is entitled (subject to the 
 exceptions hereinafter noticed) to all deeds and other muni- 
 ments of title^ however ancient, which are in the possession 
 or power of the vendor (o) : and it is conceived that the 
 vendor, (unless he retain property held under a common 
 title,) has in general no right to keep copies of any 
 documents other than those which subject him to some 
 future personal liability. 
 
 Where, however, the purchaser does not buy all the 
 estate, but a part either remains in the vendor or is sold 
 to another purchaser, the practice (in the absence of 
 agreement) is, for the holder of the largest portion to take 
 the deeds and covenant for their production : but the fact 
 of the vendor lia^ang already covenanted for production to 
 a former purchaser, will not, in the opinion of Sir E. 
 Sugden [b], justify him in refusing to deliver the deeds, if 
 the second purchaser will allow notice of the covenant to 
 appear in or upon his conveyance, and will covenant to 
 perform the prior covenant : this covenant by the second 
 purchaser would, of course, be entered into with the first 
 purchaser, if the vendor's covenant was made determinable 
 upon his procuring, or the first purchaser will accept, 
 such a substituted covenant ; or otherwise with the vendor 
 himself, and would then take the shape of a covenant to 
 produce the deeds, &c., and to indemnify him against 
 liability under the former covenant. 
 
 Wliere property is sold under a trust for sale in a 
 settlement, which goes on to declare trusts of the purchase 
 money (whether the same is to continue money or to be 
 reinvested in real estate), it is conceived, that the existence 
 
 (a) Sug. 454; 1 Jarm. Conv. by S. W. 393. 
 63; Austin v. Croome, 1 Car. & M. (b) Sug. 456. 
 
 653 ; Smith v. Chichesfer, 2 Dm. &
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 315 
 
 of the trusts gives no right to the trustees to retain the chap, xiii. 
 settlement ; but the purchaser must covenant to produce 
 it^ even although he buy the entire property : in order to 
 avoid this difficulty, it is usual^ where an absolute con- 
 version is intended, to settle the money by a deed distinct 
 from that containing the trust for sale : or, perhaps, the J^gP^ltf,"*^ 
 proper rule in cases of several sales under a settlement completion 
 may be, that, unless the trustees retain a sufficient part of uustL 
 the estate to warrant its retention, it should be deposited 
 for the benefit of all parties until performance of the 
 trusts, and then delivered to the largest purchaser upon 
 his entering into covenants for its production : the right to 
 the deed considered as an instrument creating terminable 
 trusts, may, perhaps, be considered as governed by a 
 case {b) in which, upon the purchase of a part of an estate Deposit of 
 hi lease, the Court thought that the counterpart of the I'^lfl^^"^ 
 lease ought to be deposited for the benefit of all parties. version. 
 Where a mortgagee of distinct properties belonsrinsr to Liability of 
 
 . •, ^ ^ i. r ?3 o mortgagee 
 
 distinct mortgagors transfers the mortgao-e debts bv one 'settling 
 
 o o o o .; several 
 
 deed without their consent, he will have to pay for the by°afiTg?e 
 necessary attested copies of the deed which he has thus ^^^^' 
 made common to the several titles, and of the necessary 
 covenants for its production (c) . 
 
 And the purchaser, it appears {d), has no right either to Purcha 
 the custody, or to a copy, or to a covenant for the pro- to deeds 
 
 . . used as ne- 
 
 duction, of instruments produced merely as negative evi- ?«'i^e 
 
 *■ ./ o evidence. 
 
 dence to satisfy him that they contain nothing affecting 
 the title (e) . 
 
 If the deeds themselves are not delivered, the purchaser purchaser's 
 (in the absence of stipulation) may require attested copies testeV"'**" 
 at the vendor's expense (/). It has been observed by originals 
 
 aser 
 not entitled 
 
 not given 
 up. 
 
 {b) Shore v. Collett, G. Coop. 234. (e) Sug. 458. 
 
 (c) Capper v. Terrington, 1 Coll. (/) Dare v. Tucker, 6 Ves. 460 ; 
 
 103. Boughton v. Jewell, 15 Ves. 170; 
 
 {d) Vide siipro, pp. 158, 166. Berty t. Young, 2 Esp. 640.
 
 316 MATTERS RELATING TO COMPLETION OF PURCHASE. 
 
 Chap. XIII. Lord Elclon, that purcliasers set an undue value upon these 
 copies ; that, except as between the parties themselves, 
 they are waste paper upon an ejectment [g) : nevertheless 
 they are, it is conceived, of considerable practical import- 
 ance, if the property is likely to be resold ; for the 
 ordinary condition, making them e\idence without pro- 
 duction of the originals, seldom prejudices a sale ; whereas 
 the absence both of originals and attested copies might 
 often cause a serious deficiency in price. 
 
 Restriction The right, however, seems to be confined to such docu- 
 
 upon such " 
 
 right. ments as are necessary to make out a marketable title (A) : 
 
 nor does it seem to extend to copies of Court Roll, or 
 deeds enrolled under Statutes which require enrolment (^) , 
 or, in Sir E. Sugden's opinion, to " deeds enrolled for safe 
 custody in a Coui't of Record," or "wills registered and 
 accessible " [k) ; but the practice in this respect does not 
 appear to be settled (/). If, however, the vendor is in 
 possession of attested copies of enrolled deeds, &c., the 
 purchaser can claim them, unless larger property, held by 
 the same title, is retained by the vendor or sold to another 
 purchaser (m). 
 
 Purchaser And tlic purchascr, as respects deeds of which he 
 
 also entitled i. ' x 
 
 for'^^ro-"'"^'^ can claim attested copies at the vendor's expense, is also 
 o"ig/°ais°^ entitled (at the like expense) to a covenant for the pro- 
 duction of the originals, and also to a covenant for the 
 production of such copies of Com-t Roll, and instruments 
 on record as are in the vendor^ s possession or power (w) ; 
 but the expenses of futui-e production are borne by the 
 purchaser (o). 
 Absence of And it must be remembered, that although the pur- 
 
 {g) 6 Ves. 460. (/) 9 Jarm. Conv. by S. 10. 
 
 (/^) Bare v. Tucker, 6 Ves. 460; {m) Sug. 47G. 
 
 Cooper V. Emery, 1 Phill. 388. (w) Berry v. Young, 2 Esp. 640, 
 
 (i) See Cooper \. Emery, ubisvpr a; n. ; Cooper v. Emery, 1 Phill. 388. 
 Campbell \. Campbell, Sug. 475. {o) Berry v. Young, itbi supra. 
 
 {k) See Sug. 476.
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 317 
 
 chaser cannot require the production of original copies of Chap.xiii. 
 Court Roll, or enrolled deeds, &c., if not in the possession couh roii 
 or power of the vendor, he yet may, and should in all whlrtpro- 
 ordinary cases, inquire into the reason of their non-pro- cannot be 
 
 , . . enforced 
 
 auction ; that is, if their date and character warrant the ^^^'^^^ ''" 
 
 explainid. 
 
 supposition that they may be denied with an improper 
 motive : for in the well known case of Whitbread v. ^vuithread 
 
 V. Jordan. 
 
 Jordan (o), the omission of a mortgagee to make inquiry 
 on the subject was, under the particular cu'cumstances, 
 attributed to wilful blindness [j)) ; and a similar decision 
 has been pronounced by Su' L. ShadweU, V. C, in a very 
 recent case [q). 
 
 (7.) As to matters necessary to insure the full effect of the 
 executed conveyance. — Registration, enrolment, 5)T. 
 
 If the property be subject to the operation of any of the ^°°u^7{^"*''^ 
 local Registration Acts, a memorial of the conveyance ffoclTni- 
 should be registered as soon as practicable after execution ; fny)|^ ^' 
 the register ha\dng (as before observed) been searched as 
 closely as possible before completion ; when dealing with 
 respectable parties this rule as to immediate registration is 
 often not very strictly attended to, but any departure from 
 it is at the peril of the solicitor : by delay the pm'chaser is importance 
 exposed to the risk not only of a subsequent fraudulent tratiolK^'^" 
 sale or mortgage by the vendor, (which may generally be 
 considered merely nominal,) but also of prior unregistered 
 incumbrancers (r), whose claims may perhaps be unknown 
 even to the vendor, acquiring priority by registration be- 
 tween the execution and registration of the conveyance. 
 
 The exceptions in the Acts are of copyhold estates, te^.'^,^tV";e 
 leases at a rack-rent, and leases not exceeding twenty-one I'^'^m' the 
 
 (o) I Y. & C. 303. Sim. 547. 
 
 (jw) 1 Phill. 255 ; and see a note (r) As in Martinez v. Cooper, 2 
 
 on the subject in 4 Y. & C. 564. Russ. 198. 
 {q) Worthington v. Morgan, 16
 
 318 
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 
 
 Chap. XIII. 
 
 Registra- 
 tion Acts. 
 
 Copyholds. 
 
 Leases at 
 raclv-rent — 
 to what tlie 
 exception of 
 extends. 
 
 Whether to 
 building or 
 repairing 
 leases. 
 
 Leases for 
 twenty-one 
 years or 
 under. 
 
 London not 
 affected by 
 registration 
 act. 
 
 Registra- 
 tion of 
 assignment 
 of money 
 charged on 
 land, whe- 
 ther ne- 
 cessary. 
 
 years where the actual possession and occupation go along 
 with the lease. 
 
 The exception of copyholds is not considered in practice 
 to extend to such leases as would require registration if the 
 estate were freehold {s) ; and Mr. Rigge recommends the 
 registration of all such deeds affecting this description of 
 property as are not usually recorded by the Steward of the 
 Manor (/) . 
 
 The exception of the greatest practical importance is 
 that of leases at rack rent ; Sir E. Sugclen considers it to 
 be the better opinion that the assignment of a lease held 
 at what was originally a rack rent need not be registered 
 in respect of its having become a valuable property ; 
 perhaps^ however^ this is a doctrine which should be cau- 
 tiously received in practice {v) : a lease which contains any 
 engagement on the part of the lessee to build upon or 
 otherwise improve the property^ cannot^ it is conceived^ be 
 considered as a lease at a rack rent within the meaning of 
 the exception^ although the rent may be reserved from the 
 date of the lease^ and may exceed what would be the 
 annual value of the property if let for any other purpose. 
 
 Of the third exception it need only be observed^ that the 
 words "possession and occupation" are in the conjunc- 
 tive (w) ; so tliat^ in order to avoid registration^ the pur- 
 chaser must not only buy the present interest in the lease^ 
 but must actually become the occupier of the premises. 
 
 The Middlesex Act has no operation within the City of 
 London {x). 
 
 It appears^ that a deed assigning a legacy or other sum 
 of money charged upon land, but not purporting to deal 
 with the land itself, does not require registration [y] ; but 
 
 (s) Sug. 980. 
 
 (0 I^'ggfi on Registration, 88, n. 
 
 iv) Rigge, ubi supra. 
 
 (w) Rigge, ubi supra. 
 
 {x) Sug. 982. 
 
 (y) Malcolm v. Charlesworlh, 1 
 Keen, 63 ; see p. 73.
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 319 
 
 registration is not rendered unnecessary by the circum- dap, xii r. 
 
 stance of the conveyance operating as an appointment pur- appolut-^ 
 
 suant to a j)ower in a registered instrument {z). requisite. 
 
 Conveyances of lands taken under the provisions of the convey-^ 
 
 Lands Clauses Consolidation Act^ 1845^ are, it is believed, to be' 
 
 -,.,,, . , registered. 
 
 in practice registered in the local registers, the same as 
 ordinary purchases ; and this seems the proper course. 
 
 Upon purchasinsr from a devisee the will should be wiiion 
 
 i J^ o purcliase 
 
 registered; and unless this has been or can be done y™^.'^'^" 
 within the period allowed by the Act it is by no means 
 clear that a good title can be made without the concur- 
 rence of the heir (a) . 
 
 As to the contents of the memorial which are required *j^™n'^''^^^ 
 by the Legislature, see Sir E. Sugden's work, p. 972 [b) . *^'^**- 
 In recent practice, however, a somewhat fuller statement 
 of the contents and effect of the deed is required at the 
 registration offices, where forms are supplied for the 
 guidance of the public : the registrars, it appears, may 
 be required to register a lithographed memorial (c) . 
 
 The memorial itself may be executed either by the ven- Attestation 
 dor or pui'chaser, or either of their heirs, executors, admi- 
 nistrators, guardians, or trustees ; but one of the two 
 attesting witnesses to the memorial should be a witness 
 who attested the execution of the deed by (it is said) a 
 granting party [d] ; where the attesting witnesses are dead, 
 re-execution of the deed in the presence of a witness for 
 the purpose of registration is useless (e) . 
 
 {£) Scrafton v. Quincey, 2 Ves. Q. B. ; Reg. v. The Middlesex Regis- 
 
 sen. 413. trars, 7 Q. B. 156. 
 
 (a) See an article in 14 Jur. pt. 2, {d) Sug. 970; and it was so de- 
 p. 267 ; but see also Sug. 967. cided in Jack v. Armstrong, Hud. & 
 
 (b) 11th ed.; and see Reg. v. B. 727, 732 ; but see 9 Jarm. Conv. 
 Middlesex Registrars, 15 L. T. 159, by S. 683, contending that it is suf- 
 where the memorial was held insuf- ficient if the witness attested the exe- 
 ficient : the stamp under the late Act cation of the deed by either party. 
 
 is reduced to 2*. 6^. (e) Essex v. Baugh, 1 Y. & C. C. 
 
 (c) Exparte Ivemey, 9 Jur. 371, C. 620.
 
 320 
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 
 
 Chap. XIII. 
 
 "Where deed 
 operates as 
 a convey- 
 ance of 
 several 
 shares or 
 estates. 
 
 Registra- 
 t on under 
 Bedford 
 Level Act. 
 
 Conveyance 
 to charity 
 Trustee, as 
 apparent 
 beneficial 
 owner, must 
 be enrolled 
 under the 
 Mortmain 
 Act. 
 
 And it may perhaps deserve consideration whether the 
 above doctrine^ (which was first advanced by Sir E. Sud- 
 den,) does not admit of extension ; his observation, (which 
 gave rise to the decision in Essex v. Baugh [f],) is as 
 follows, ''One of the Avitnesses'^ {i.e. to the memorial) 
 " must be a witness to the execution of the deed ; and this 
 must be understood to mean, not merely the execution by 
 an unnecessary party, as the grantee, but the execution by 
 the party from whom the estate moves ;" now where the 
 estate is conveyed by several owners, say A., B., and C, 
 each seised of an undivided share, and whose execution of 
 the conveyance is attested by dififerent witnesses, a memo- 
 rial, attested only by the witness who attested A.^s execu- 
 tion of the deed, is evidently not attested by any witness 
 to the execution of the deed considered as a conveyance of 
 the shares of B. and C, such shares possibly constituting 
 the bulk of the estate: this will, perhaps, appear more 
 obvious if we suppose a purchaser to take by a single deed 
 a conveyance of several distinct estates from several own- 
 ers : it would seem to be prudent in all such cases to have 
 the memorial attested by a witness or witnesses to the 
 execution of the deed by all the several owners {g) . 
 
 As respects lands situate in the Bedford Level, it ap- 
 pears that conveyances omitted to be registered under the 
 Bedford Level Act (A) are nevertheless valid for all pur- 
 poses except for entitling the grantees to the privileges 
 conferred by the Act on the owners of lands within the 
 Level, and for the other purposes of the Act (i) . 
 
 Where a conveyance was made to a purchaser appa- 
 rently as the beneficial owner, but the pui'chase-money 
 was in fact part of a charitable fund, and the nominal 
 purchaser by a subsequent deed in execution of a power 
 
 (/") Ubi supra. 
 
 (ff) But see 9 Jarm. Conv. by S. 
 683. 
 
 (h) 15 Car. IT. c. 17. 
 
 (0 TVUlis V. Brown, 10 Sim. 127-
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 321 
 
 reserved by the conveyance^ settled the property in favour chap.xiii. 
 of the Charity, it was held that both the conveyance and. 
 the subsequent settlement required to be enrolled in Chan- 
 cery under the Statute of Charitable Uses {k) . 
 
 Where the vendor is tenant in tail, it is essential to the ?" sale by 
 
 ^ tenant in 
 
 validity of the deed, as against the issue in tail and remain- entaTnng 
 dermen, that it should be enrolled in Chancery within six enrolled.^ 
 calendar months after its execution by the vendor (/) ; but 
 if so enrolled it takes effect from the time of execution (m) ; 
 except as against persons claiming for valuable considera- 
 tion under a prior enrolled deed (although subsequently 
 executed) and without express notice of the voidable estate 
 created by the prior assurance [n] ; the eni'olment may be 
 made by either vendor or purchaser. 
 
 If there be a protector of the settlement, and his con- prot|"to°* 
 sent to the assurance be given by a separate deed, the con- 
 sent-deed must be executed on or before the day on which 
 the assurance is made by the tenant in tail, and must be 
 enrolled in Chancery either at or before the time when the 
 assurance is so enrolled (o) . 
 
 A legal tenant in tail of lands held by copy of Court Roll on^"^ie"br 
 may bar the entail by surrender ; and an equitable tenant eqliltaWe 
 in tail may bar the entail either by surrender or by tail of 
 
 copyholds : 
 
 deed [p) ; if the assui'ance be by deed, the same must, what entries 
 
 (k) 9 Geo. II. c. 36 ; Att.-Gen. v. to a charity of land already in nQort- 
 
 Gardner, 2 De G. & S. 102 ; Att.- main do not seem to require enrol- 
 
 Gen. V. Munro, 2 De G. & S. 122; ment, Att.-Gen. v. Glyn, 12 Sim. 
 
 quaere, as to the effect on the deed, of 84 ; Walker v. Richardson, 2 Mee. 
 
 the death of any subscriber within & W. 882. 
 
 twelve months after its execution? (/) 3 & 4 Will. IV. c. 74, s. 41. 
 
 see Price v. Hathaway, 6 Madd. (rw) Cattell v. Corrall, 4 Y. & C. 
 
 304 ; 2 De G. & S. 116 ; and see, as 228. 
 
 to the attestation, Doe v. Monro, 12 {n) See sects. 38 and 74. 
 
 Mee. & W. 845 ; as to the effect of (o) 3 & 4 Will. IV. c. 74, ss. 42 
 
 non-enrolment, see Att.-Gen. v. and 46. 
 
 Ward, 6 Ha. 477, 482 ; assurances {p) Sect. 50. 
 
 Y
 
 322 
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 
 
 Chap. XIII. 
 
 and enrol- 
 ments ne- 
 cessary. 
 
 Consent of 
 Protector 
 to barring 
 entail in 
 copyholds. 
 
 Must be by 
 deed if 
 equitable 
 Tenant in 
 Tail dis- 
 entail by 
 deed. 
 
 within six calendar months after execution^ be entered on 
 the Court Rolls of the Manor [q) ; the consent of the pro- 
 tector (if any) may be given by deed^ (whether the estate 
 be legal or equitable,) or personally to the person taking 
 the surrender (in those cases where the tenant in tail sur- 
 renders) (/•). 
 
 If the tenant in tail convey by surrender, and the pro- 
 tector consent by deed, such deed must be executed and 
 produced to the Lord of the Manor, his Steward, or Ste- 
 ward's deputy, at or pre\Tious to the surrender; and he is to 
 indorse thereon an acknowledgment (which is made prima 
 facie e^ddence of the fact) of the deed having been so pro- 
 duced ; and is to enter the deed and indorsement on the 
 Court Rolls ; and then to indorse a memorandum of such 
 entry upon the deed [s) . 
 
 If the consent of the protector be not given by deed, it 
 must be given to the person taking the surrender by the 
 tenant in tail : and e^ddence of such consent is to be pre- 
 served on the Court Roll, in manner provided in the 52nd 
 section of the Act, 
 
 Where the equitable tenant in tail himself assures by 
 deed, the consent of the protector must be given by deed ; 
 and if given by a deed distinct from the principal assurance 
 such deed must be executed on or before the day of the 
 execution of such assurance by the tenant in tail; and 
 must be entered on the Court Rolls {f) : and an assurance 
 by deed, by an equitable tenant in tail, is to be void 
 against any person claiming for valuable consideration 
 
 {q) See sect. 53. 
 
 (r) See sects. 51, 52. 
 
 (*) Sect. 51. 
 
 (t) The Act does not say that the 
 deed of consent must be entered on 
 the Court Rolls at or before the time 
 when the principal assurance is so 
 
 entered ; but such, it is conceived, is 
 the intention, and it would be at least 
 prudent so to enter it. The 53rd 
 section of the Act does not seem to 
 apply to customary freeholds ; Jieg. 
 V. Lord of the Manor of Ingleton, 8 
 Dowl. P. C. 693.
 
 MATTERS RELATING TO COMPLETION OF PURCHASE, 323 
 
 under any subsequent assurance^ — (which would inchide a chap. xiii. 
 surrender^) — duly entered on the Court Rolls before the 
 entry thereon of such deed of assurance {u) . 
 
 We have already referred (iv) to the necessity for the ^^gnientby 
 
 acknowledgment of conveyances by married women ; and women 
 
 to the extended power conferred upon them by a recent tmcate. 
 statute (^) . 
 
 By the 89th section of the 4 & 5 Vict. c. 35, it is enacted p^S^ 
 
 '' that after the 31st day of December, 1841, every Sur- mediate 
 
 entry on 
 
 render and Deed of SiuTcnder which the Lord shall be court roiis 
 
 ofCopyhpltl 
 
 compellable to accept or shall accept, and also every Will assurances. 
 and Codicil a Copy of which respectively shall be delivered 
 to the Lord of the Manor by which the Lands affected by 
 such Surrender, Deed of Surrender, Will and Codicil are 
 parcel, or to his Steward, or the Deputy of such Steward, 
 either at any Court holden for such Manor at which there 
 shall not be any Homage assembled, or out of Court, and 
 also every Grant and Admission by the Lord of any Manor, 
 or his Steward, or the Deputy of such Steward, pursuant 
 to this Act, shall be forth^vith entered on the Court Rolls 
 of the Manor by such Lord, or Steward, or Deputy ; and 
 every Entry made on the Court Rolls of any Manor pur- 
 suant to this present Clause shall for all Purposes whatso- 
 ever be deemed and taken to be an Entry made in pur- 
 suance of a Presentment made at a Court holden for such 
 INIanor by the Homage assembled thereat ; and the Ste- 
 ward, or his Deputy, shall be entitled to the same Fees and 
 other Charges for making such Entry on the Court Rolls 
 as he would have been entitled to in respect of such Entry 
 in case the same had been made in pursuance of a Present- 
 
 (m) Sect. 53. Sir Edward Sugden V. and P. 597. 
 considers it probable that notice would (w) Supra, p. 267, ei seq, 
 
 not be held in Equity to supply the (x) 8 & 9 Vict. c. 106. 
 
 want of entry on the Court Rolls ; 
 
 y3
 
 324 
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 
 
 Chap. XIII. ment made at a Cornet holden for sucli ]\Iauor by tlie 
 Homage assembled tbereat.^^ 
 
 The 6tli section of the 8 & 9 Vict. c. 106, appears to 
 extend to contingent interests in copyholds (which pre- 
 viously to the passing of that Act were incapable of ahena- 
 tion) [y) ; and it is of com'se desu-able, although not essential, 
 that the deed of disposition should be entered upon the 
 Court Rolls. 
 
 "V\Tiere lands of copyhold or customary tenure are taken 
 
 Conveyance 
 of contin- 
 gent inter- 
 est in copy- 
 holds under 
 late Act. 
 
 Assurance 
 of copyliolds 
 
 taken under under thc Lauds Clauses Consohdation Act, 1845, the con- 
 
 the Lands 
 
 Clauses 
 
 Consoli- 
 
 ^sl^^o^be' upon the Court RoUs ; and upon payment to him of such 
 
 entered on 
 the Court 
 Rolls. 
 
 veyance is to be entered by the Steward of the Manor 
 
 fees as would be due to him on the surrender of the same 
 lands to the use of a purchaser, he is bound to make such 
 em'olment ; and the conveyance, when so enrolled, is to 
 have the effect in respect of such lands as if the same were 
 of freehold tenure {z) ; but, until the same are enfi-an- 
 chised (a), they are to continue subject to the accustomed 
 fines, rents, heriots, and services. It has been held that, 
 under this provision, the Steward cannot claim the fee 
 which would be due to him on the admittance of a pur- 
 chaser {b). 
 
 Where the estate is not situate in a Register County, 
 
 and the title deeds are retained by the Vendor, it is 
 
 prudent to indorse a memorandum of the conveyance upon 
 
 the leading document of title ; that is upon the document 
 
 title-deed if whicli hc would liavc to producc in proof of his title were 
 
 remaining ,. . . 
 
 with the he to attempt to make any disposition ot the estate incon- 
 
 vendor. 
 
 sistent with the rights of the purchaser. 
 
 Expediency 
 (if land not 
 in Register 
 County) of 
 indorsing 
 notice of 
 the con- 
 veyance on 
 leading 
 
 (y) Scriven on Copyholds, 135. 
 As to the purchaser's power of com- 
 pelling admittance by mandamus, see 
 ibid. 525 ; admittance may now be 
 granted out of Court and out of the 
 manor, 4 & 5 Vict. c. 35, s. 88. 
 
 (z) Sect. 95. 
 
 (a) See sects. 95, 96. 
 
 {b) Cooper v. Norfolk Railway 
 Company, 3 Exch. 546 ; 6 Rail. Ca. 
 94.
 
 MATTERS RELATING TO COMPLETION OF PURCHASE, 325 
 
 Such, a memorandum need only specify the date of, and chap. xiii. 
 parties to^ the conveyance^ and particularize the property noTice"^ 
 comprised in it ; it is, of course, important to the vendor, 
 that this should be expressed in definite terms ; for, if the 
 memorandum were so worded as to leave any doubt as to 
 the precise amount of property comprised in the convey- 
 ance, the production of such conveyance would be neces- 
 sary upon any future dealing with the residue of the 
 estate. 
 
 And, as we have already seen, upon the completion of Propriety of 
 the purchase of an equitable interest in real estate, it is Trustees on 
 prudent to give notice of the transaction to the owners of equitable ° 
 the legal estate ; but, as a general rule, a purchaser's pri- 
 ority is not affected by his gi^ang or omitting to give such 
 notice (c) ; however, upon the purchase of an equity of importance 
 redemption, such notice to the mortgagee who has the mo'tgagee 
 
 i •' DO on inirchase 
 
 legal estate is material, inasmuch as any further advances redem'pt^ion. 
 which he may make to the mortgagor upon the secm^ity of 
 the equity of redemption, in ignorance of the sale, will be 
 valid as against the purchaser (d) ; but the mortgagee 
 could not so tack a judgment debt (e) . 
 
 (8.) As to the stamps. 
 It is also necessary that the conveyance should be duly stamps; 
 
 *' "^ •' deed not 
 
 stamped : the want of a proper stamp, does not, however, ^l^^^^i 
 affect its vahdity, but merely renders it inadmissible in 
 evidence (/) . 
 
 A deed not stamped, or insufficiently stamped, at the Deed may 
 time of execution, might, until recently, be stamped at ^^t^^n— 
 any subsequent period upon payment of the duty and a p®"^^*^- 
 
 (c) Supra, p. 229. (e) Simmons v. Pettit, 8 Jur. 209 ; 
 
 {(l) Goddard v. Complin, 1 Ch. and see Whitworth v. Gaugain, Cr. 
 
 Ca. 119 ; Blackston v. Moreland, 2 & Ph. 325. 
 
 Ch. Ca. 20 ; Wrightson v. Hudson, 2 (/) Tilsley on Stamps, lsted.308. 
 Eq. Ca. Abr. 609, pi. 7.
 
 326 MATTERS RELATING TO COMPLETION OF PURCHASE. 
 
 Chap. XIII. penalty {g) ; and, if brought to be stamped within twelve 
 months after execution^ the commissioners were empowered 
 to remit all or any part of the penalty [h) ; but after the 
 expiration of that time they had no such discretion {i) : 
 under the late Act [k] a deed may still be stamped after 
 execution on payment of a penalty of 10/. and the unpaid 
 duty, and if svich duty exceed 10/., then, by way of further 
 penalty, interest at 5/. per cent, on its amount, calculated 
 from the first execution of the instrument ; but the sum pay- 
 able for interest is not to exceed the amount of such unpaid 
 duty ; payment of the penalty, duty, and interest is to be 
 denoted by an appropriate stamp ; and the Commissioners 
 retain the power of remitting the penalty within twelve 
 calendar months after the execution of the deed. 
 rtut'-^^"* As we have already seen (/), the amount of ad valorem 
 de"pmd9°'' duty is determined solely by the consideration appearing 
 consider*. ou the facc of the conveyance ; and a misstatement of the 
 consideration neither avoids the deed nor affects its admis- 
 sibility in evidence (m) ; although it may be made the 
 subject of severe penalties, and, where the full purchase or 
 consideration money is not truly stated, the purchaser, or 
 his representatives, may recover from the vendor or his 
 representatives so much of it as is not so stated (n) . 
 on what'*^' ^^^ ^^ Valorem duty is payable in respect of any money 
 consideration (o) directly or indirectly paid or secured or 
 agreed to be paid, or of a debt due to the purchaser and 
 charged on the property, (which would include a registered 
 
 (jg) 37 Geo. III. c. 136, s. 2. see 14 Jur. pt. 2, 382. 
 
 {h) 44 Geo. III. c. 98, s. 24. {I) Supra, p. 254. 
 
 (0 Tilsley, 304. (m) Tilsley, 250. 
 
 (k) 13 & 14 Vict. c. 97, s. 12. (w) Vide supra, p. 254 ; 48 Geo. 
 
 Mr. Tilsley states that these provi- III. c. 149, s. 24 ; Gingell v. Purkins, 
 
 feions apply to instruments executed 19 L. J., N. S., Exch. 129. 
 
 before the passing of the Act (see (o) And as to stock, securities, &c. 
 
 Tilsley's New Stamp Act, 6) ; but under the new Act, vide supra, p. 
 
 this seems to be at least doubtful ; 256. 
 
 consider- 
 ation.
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 327 
 
 judgment debt)^ or of a debt due to any other person or Chap, xiii. 
 other sum of money which will remain a charge upon the 
 property in the hands of the purchaser (jo) ; a conveyance 
 in discharge of a bo7id fide existing debt not charged upon 
 the property hardly seems to come within the provisions of 
 the Acts^ but in practice it is usual in such a case to affix 
 the ad valorem stamp [q] : where timber^ fixtures, or any ^"n^of*^^* 
 other parts of the inheritance, are valued separately, the t™es!&c.^" 
 amount of valuation must be stated as part of the con- 
 sideration ; and the duty is payable upon all moneys ^o^^Jygab- 
 which are agreed to be paid in all events and whose |gr"e^d^tobe 
 amount can be ascertained, although the payments may though pay- 
 
 - . able iu 
 
 be deferred, and may in part take the name oi interest ; future, or 
 
 ' ^ X described as 
 
 for instance, where the consideration is the payment of an interest. 
 annuity for an absolute term of years, the duty is (it is 
 conceived) payable on the gross amount of the several 
 payments (>') ; so, where the consideration is the grant of 
 an annuity commencing from a day prior to the date of 
 the conveyance, ad valorem duty must, it is conceived, be 
 paid upon a proportionate part of the annuity up to the 
 date of the conveyance ; so, where the purchase-money is 
 made payable by instalments, with interest upon the 
 balance from time to time up to the dates of the several 
 instalments, the duty is payable as well upon such interest 
 as upon the principal [s) . 
 
 But where the amount is incapable of being ascertained, j^fg^^n^'nu^^y, 
 (as where the consideration is a hfe annuity (/),) no ad transferred. 
 valorem duty would seem to be payable ; and the same was 
 until recently the case when the consideration consisted of 
 
 {p) See 48 Geo. III. c. 149, s. 22, (s) See, and consider, Beef e v. Bid- 
 
 and 55 Geo. III. c. 184, schedule, good, 7 B. & C. 453 ; see Lord 
 
 tit. Conveyance. Hatherton v. Bradburne, 13 Sim. 
 
 {q) And see Gingell v. Purkins, 599 ; and see now the Schedule to 13 
 
 19 L. J., N. S., Exch. 129. & 14 Vict. c. 97, tit. Conveyance. 
 
 if) See, and consider, Chillingworth {t) Blandy v. Herbert, 9 B. & C. 
 
 V. CMllingworth, 8 Sim. 404. 396,
 
 328 
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 
 
 Chap. Xin. 
 
 Purchase- 
 money may 
 after con- 
 tract be 
 reduced to 
 lessen duty. 
 
 Duty not 
 payable on 
 money paid 
 as part of 
 family ar- 
 rangement. 
 
 Is payable 
 on money 
 paid by 
 Lessee to 
 party 
 holding 
 agreement 
 for Lease. 
 
 Duties pay- 
 able under 
 13 & U Vict. 
 c. 97. 
 
 stock; but this, as vre have seen [u], has been altered by 
 the late Act. 
 
 And the vendor might and may, if he please, bond fide 
 accept a less sum than the amount originally agreed to be 
 paid, although the reduction be little more than nominal, 
 and the sole object be to avoid a higher duty (tr). 
 
 And no duty is payable ia respect of a sum not paid 
 to, or for the benefit of, the person -who conveys, or directs 
 the conveyance of, the estate (j') ; but paid to, or settled 
 upon, other parties, as part of a family arrangement (y) . 
 
 It has recently been decided, that where a person 
 having an agreement for a lease sells his interest, and 
 procures the lessor to grant the lease direct to the pur- 
 chaser, and himself joins in the lease as a directing 
 partv, the purchase-money is hable to duty, and must be 
 set forth as the consideration on the face of the lease [z) . 
 
 The following scale of duties is payable imder the late 
 Act (fl) ; viz., -Nvhere the purchase-money does not exceed 
 25/., a duty of 2s. 6d. ; where it exceeds 25/. and does not 
 exceed 300/., a duty of 2*. 6c?. for every entire sum of 25/. 
 and for any fi-actional part of such sum ; where it exceeds 
 300/. and does not exceed 600/., a duty of 5*. for every 
 entire sum of 50/. and for any fractional part of such sum ; 
 and where it exceeds 600/., a duty of 10*. for every entire 
 sum of 100/. and for any fractional part of such sum : 
 and by the same Act the lease for a year stamp, and 
 
 («) Supra, p. 236. 
 
 (tr) Shepherd v. Hall, 3 Camp. 
 180 ; Sag. 698 ; Tilsley, 253. 
 
 (t) 4 B. & C. 246; and, as to 
 general exemptions from stamp duty, 
 see Tilsley, 759, ef seq. 
 
 (y) Derm d. Manifold v. Diamond, 
 4 B. & C. 243 ; Massy v. Nanney, 3 
 Bing. N. C. 478 ; and. In re Kerrey 
 Glazier, cited in Tilsley, 246. 
 
 (z) Alt. -Gen. v. Brovm, 3 Exch. 
 
 662 ; see indemnity clause, 13 & 14 
 Vict. c. 97, s. 10, in respect of penal- 
 ties incuiTed under this doctrine, 
 prior to 20th March, 1850. 
 
 {a) According to Mr. Tilsley, the 
 old scale of duties is payable on 
 deeds executed before, although not 
 stamped until on or after, the 11th 
 October, 1850 (Tilsley's New Stamp 
 Act, 3), serf qu. ; see 14 Jur. part 2, 
 382.
 
 MATTERS RELATING TO COMPLETION' OF PURCHASE. 329 
 
 the corresponding additional duty payable on a feoffment caap. xni. 
 
 or bargain and sale are abolished {b) ; and instead of the 
 
 old progressive duty, every entire number of 1080 words 
 
 after the first 1080 words is charged with the amount of 
 
 the ad valorem duty (if pot exceeding 105.), or, if such ad 
 
 valorem duty exceed 10*., or if the deed be not liable to 
 
 ad valorem duty, then with a progressive duty of 10*. 
 
 And the Act empowers the Commissioners, on payment ^nefmay 
 of a fee of 10.?., to state what in their opinion is the the^^per 
 proper amount of duty; and if the same has already been duty. 
 or is then paid, to stamp the deed with a stamp denoting, 
 and which is to be evidence, that the full amount of duty 
 has been paid; and an appeal from their decision hes to 
 the Court of Exchequer (c) . 
 
 And {d) where any lands or other propeiiy shall have c^^^^^ces 
 been actually and bond fide contracted to be sold prior to Ifo^m mf*^ 
 the 20th !March, 1850, by any contract or agreement in du^° 
 writing duly stamped, or shall have been actually and 
 bond fide sold under the decree of any Court made prior to 
 the said 20th March, and shall be conveyed to the pur- 
 chaser or any other person by his direction after the 10th 
 October (e) and before or on the 31st March, 1851, the 
 conveyance is to be exempt from any ad valorem duty of a 
 gi'eater amount than would have been payable under the 
 old law ; but the grounds of exemption ai-e to be proved 
 to the satisfaction of the Commissioners, and a certificate 
 of the matter so proved is to be wi'itten on the deed, and 
 signed by them, some or one of them. 
 
 Where the conveyances to several joint-purchasers are ^a^i^°'^ 
 comprised in the same deed, duty is payable upon the ^e'vinc'^fo" 
 aggregate of the several purchase -moneys (/) . chasere^ 
 
 (b) Sects. 6 and 7, omitted. 
 
 (c) Sects. 14 and 15. (/) See lit Schedule to 55 Geo. 
 
 (d) Sect. 16. III. c. 184, tit. Convevance. 
 
 (e) 1850 seems to be accidentally
 
 330 
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 
 
 Chap. XIII. 
 
 In case of 
 sub-sales— 
 sub-pur- 
 chasers 
 aloue con- 
 sidered the 
 purchasers. 
 
 On single 
 conveyance 
 of separate 
 estates to 
 sole pur- 
 chaser. 
 
 None on 
 deed of con- 
 firmation. 
 
 Is payable 
 on the 
 principal 
 assurance. 
 
 Denoting 
 Stamp. 
 
 Copies of 
 Court Roll 
 procured to 
 be stamped 
 by Steward 
 of Manor. 
 
 Upon a sub-sale by a purchaser wbo has not obtained 
 a conveyance, such purchaser and his sub-purchasers are 
 considered the vendor and purchasers within the meaning 
 of the Stamp Acts ; and the duty payable upon the con- 
 veyances to the sub-purchasers • (although the original 
 vendor join therein) is determined solely by the amount 
 paid by such sub-purchasers ; and if the original vendor 
 do not join in the conveyance to the sub-piu'chasers, and 
 the same is duly stamped, no ad valorem duty is payable 
 upon any subsequent conveyance by him of the legal 
 estate [g). 
 
 And where a purchaser takes, by the same deed, con- 
 veyances, from several vendors, of properties separately 
 contracted for, duty is payable upon the aggregate of the 
 pm'chase-moneys {h) . 
 
 A deed executed by way of confirmation of a prenous 
 deed purporting to be a conveyance and which has paid 
 the ad valorem duty, is not itself liable to such duty, 
 although the former deed was inoperative (i) . 
 
 Where there are several assiu'ances, the ad valorem duty 
 is payable on the principal assurance ; and what is to be 
 deemed such in certain specified cases is defined by the 
 Acts : and where in any other case it is doubtfrd which 
 assurance shall be considered the principal, the parties 
 may determine for themselves which is to be so con- 
 sidered; and the other instruments may (if required) be 
 impressed Avith stamps denoting payment of the duty {k) . 
 
 Upon the sale of copyholds, the Steward must, within 
 four calendar months after the date of any surrender or 
 admittance, deliver out the usual copy of Court Roll duly 
 stamped ; but he may insist on payment of his fees and the 
 
 {g) See note (/). 
 
 (A) Ibid. 
 
 (i) Doe d. Priest 
 
 V. Weston, 2 
 
 Q. B. 249. 
 
 {k) See note (/).
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 
 
 331 
 
 stamp duty before accepting the siirrender or granting 
 the admittance (/) . 
 
 Where persons ha-vdng separate estates or interests in 
 the property join in the conveyance, only one set of stamps 
 is necessary [m] : however, in a recent case {n), where five 
 tenants in common of copyholds contracted to sell at 
 an entii'e price, the Court of Queen's Bench determined 
 that, although only one stamp was payable upon the 
 surrender, the purchaser must be admitted separately to 
 each of the five estates in common, and that a separate 
 stamp was payable for each admittance. 
 
 And it is pro^dded, by the 55 Geo. III. c. 184 (o), that 
 " where any deed or instrument operating as a conveyance 
 shall operate also as a conveyance of any other than the 
 propert}^ sold, by way of settlement or for any other pm'- 
 pose, or shall also contain any other matter or thing 
 besides what shall be incident to the sale and conveyance 
 of the property or relate to the title thereto, the same 
 shall be charged with such fm'ther duty as any separate 
 deed containing the other matter would have been charge- 
 able with, exclusive of the progressive duty.^' 
 
 Thus, where the conveyance operates also as a mortgage, 
 the double duty is payable; however, in a very recent 
 case {p), where a purchaser of a copyhold estate from par- 
 ties entitled thereto as equitable tenants in common, 
 agreed with a thii'd party for a loan upon a mortgage 
 of the estate in order to enable him to complete the pur- 
 chase, and the conveyance and mortgage were efi'ected by 
 the vendors sui-rendering the estate to the use of the 
 mortgagee, and subject thereto to the use of the pur- 
 
 Chap. XIII. 
 
 Conveyance 
 by several 
 owners, 
 what 
 
 stamps are 
 necessai-y. 
 
 Further 
 duty when 
 deed has a 
 double oper- 
 ation. 
 
 As on a 
 conveyance 
 and mort- 
 
 (/) 48 Geo. III. c. 149, ss. 33 and 
 34. 
 
 (m) Sug. 698. 
 
 (n) The Queen v. Eton College, 8 
 Q. B. 526. 
 
 (o) See Schedule, tit. Conveyance ; 
 see, too, Schedule to 13 & 14 Vict. 
 0. 97, tit. Settlement. 
 
 (p) Ruxhbrook v. Hood, 5 C. B. 
 131 ; 11 Jur. 931.
 
 332 
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 
 
 Chap. XIII. 
 
 But on a 
 conveyance 
 to uses di- 
 rected by 
 purchaser. 
 
 Matters 
 ■which do 
 not involve 
 additional 
 duty. 
 
 Deed 
 stamp un- 
 necessary 
 although ad 
 valorem 
 duty under 
 
 Indorsed 
 receipts, &c., 
 Cfiuiit as 
 part of deed. 
 
 chascTj (whicli surrenders^ it is presumed^ bore the proper 
 ad valorem stamps^) a cotemporaiy deed^ by wMcb the 
 vendors to the extent of their respective shares entered 
 into covenants for title with the pui'chaser and also sepa- 
 rately with the mortgagee^ and which contained the usual 
 covenant by the purchaser with the mortgagee for payment 
 of principal and interest, and to insui^e against fire_, and a 
 power of sale, was held to be sufficiently stamped with a 
 single deed stamp and followers ; the case, of course, was 
 not within the above clause of the 55 Geo. III., but it Avas 
 contended that it was a multifarious deed, and fell Avithin 
 the general pro\isions of the 12 Anne, sess. 2, c. 9, s. 24 [q) ; 
 but a contrary doctrine was laid done very broadly by the 
 Com't (r) . 
 
 Sir E. Sugden (citing Mr. Coventry) remarks that the 
 clause above cited from the 55 Geo. III. c. 184, ^^does not 
 seem to affect a conveyance of the property sold to such 
 uses as the piu'chaser may choose to direct" {s) . 
 
 And a covenant to produce title deeds, or an assignment 
 of a term in trust to attend, does not involve the payment 
 of additional duty it) ; nor is it payable in respect of an 
 agreement for a lease of the property to the vendor being 
 included in the conveyance, such agreement being con- 
 sidered as forming part of the contract [u] . 
 
 And a deed stamp is not necessary by reason of the ad 
 valorem duty being less than the amomit of a deed 
 stamp (w). 
 
 In counting a deed for the purpose of ascertaining the 
 amount of progressive duty, the schedules (if any), and 
 indorsed receipt, and indorsed attestation (x), are included; 
 
 (q) See Tilsley, 357. 
 (»•) 11 Jur. 932 ; see the observa. 
 tions of Maule, J., and Wilde, C. J. 
 (s) Sug. 699. 
 (t) Sug. 699 ; Wolseley v. Cox, 2 
 
 Ad. & EL, N. S., 321. 
 
 (?«) Doe V. Phillipps,\\ Ad. & El. 
 796. 
 
 {w) Sug. 700. 
 
 f.r) Sug. 699.
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 333 
 
 as are also the words and figiu'cs contained in any indorsed ciiap. xiii. 
 or annexed map or plan referred to in the deed ; but not 
 of a plan neither indorsed nor annexed but only referred 
 to (y) ; and it is by the late Act declared {z), retrospectively 
 and prospectively, that progressive duty does not attach in 
 respect of the contents of any deed or instrument liable to 
 stamp duty and duly stamped, and which may be or may 
 have been put or indorsed upon or annexed to the prin- 
 cipal instrument, or in any manner incorporated with or 
 referred to in or by the same. 
 
 An instrument bearing stamps of sufficient amount but stamrs of 
 improper denominations, is sufficiently stamped unless they fmproper^'^'^ 
 have been specially appropriated to some other description ^0?)° when 
 of instrument (a) ; under this pro\ision the lease for a year 
 stamp upon a conveyance or mortgage may often be appHed 
 to make good a deficiency in the progressive duty, upon 
 the ground of the freehold having been in reversion, by 
 reason either of an outstanding term for years or of a sub- 
 sisting tenancy. 
 
 We have seen (b) that, in the absence of evidence to the Presump- 
 
 ^ tion in 
 
 contrary, the Courts will presume that a conveyance which fns°i."n^ents 
 was duly executed was also duly stamped. ^um"pld"'^ 
 
 As to whether fresh stamps become necessary by reason Fresh 
 
 •^ *^ stamps not 
 
 of alterations in the instrument, the general rule appears fecessary if 
 
 ■' '-' i^r instrument 
 
 to be (c), ^'^that where by reason of an alteration made in ^wlei* 
 it, an instrument becomes a new one, a fresh stamp is *' 
 requisite," but not in any other case : it has been held 
 that where the only conveying party to a marriage settle- 
 ment had executed it, and then, upon the objection of 
 other parties, a clause was struck out, and the deed was re- 
 executed by the conveying party, the execution was only 
 
 (y) 1 Jarm. Conv. by S. 726. (b) Supra, p. 161. 
 
 (z) 13 & 14 Vict. c. 97, s. 11. (c) See Tilsley, 366. 
 
 (a) See 55 Geo, III. c. 184, s. 10.
 
 334 MATTERS RELATING TO COMPLETION OF PURCHASE. 
 
 Chap, XIII. 1)1 fieri, and no new stamp was necessary {d) ; and it 
 appears that^ where only some of the parties to a deed have 
 executed it^ the filling up of blanks, or even making altera- 
 tions which solely affect the interests of the parties who 
 have not executed, will not involve the payment of ad- 
 ditional duty (e) : but this woidd not extend to a sub- 
 stitution of the name of a sub-purchaser, in place of that 
 of the original purchaser, after the conveyance had been 
 executed by the vendor (/) . 
 
 (9.) As to the costs. 
 Costs of The purchaser (in the absence of any express agree- 
 
 conveyance . . 
 
 are borne mcut) prepares, and pays for the preparation of, his con- 
 chaser: vevaucc {g) ] but the costs of perusal and execution by all 
 
 of execution * . . 
 
 by vendor, necessary conveying parties fall on the vendor (A) ; includ- 
 ing, it is conceived, the costs of all matters essential to 
 the validity of the deed as a perfect conveyance ; e. g., the 
 C acknowledgment by married women and the filing of the 
 certificate of acknowledgment, and the enrolment of a dis- 
 entailing deed and deed of consent by the protector upon 
 a sale by a tenant in tail ; but a purchaser always pays for 
 the registration of his conveyance, as an unregistered deed 
 is valid except as against adverse claimants under a regis- 
 tered instrument. 
 
 Where a testator having devised an estate in strict 
 settlement contracted to sell part and died before convey- 
 ance, the costs of the necessary suit for obtaining a couA^ey- 
 ance under the 1 "Will. IV. c. 60, s. 17, were directed to 
 be paid out of the vendor's estate [i) ; so where a vendor 
 
 (d) Jones v. Jones, 1 Cro. & M. Gr. 674. 
 
 721. (ff) Sug. 692. 
 
 (e) See Tilsley, 374, and cases {h) Ibid. 
 
 cited. («') Farrar v. Earl of Winterton, 
 
 (f) London and Brighton Railway 4 Y. & C. 472. 
 Company v. Fairclough, 2 Man. &
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 335 
 
 died intestate before couA^eyance lea\dng an infant lieir^ dap, xiir. 
 the costs of the necessary suit^ and of the conveyance 
 being settled by the Master^ were ordered by Sir L. Shad- 
 ivell, V. C, to be paid out of the pui'chase-money {k) ; but 
 in a later case^ where the death occuiTcd within two 
 months after the contract, V. C. Knight Bruce refused to 
 give costs, and suggested that there must have been some 
 default on the part of the vendor in the case last referred 
 to (/) : but where at the date of the contract the legal 
 estate is in an infant the expenses of having the conveyance 
 settled by the Master must be borne by the vendor, 
 although the pui'chaser bought with notice of the state of 
 the title (m) . 
 
 A purchaser of copyholds pays the fine on admittance, ^"opyhokis 
 and the Steward's fees both on the smTcnder and admit- su/rerder 
 tance (w) ; but, of coiu'se, the vendor pays the private ex- mittance; 
 penses of both himself and the other necessary parties to 
 the suiTender ; an agreement to sm'render and assure the 
 estate at his own costs and charges will not render him 
 liable to the fine payable upon admittance (o) . 
 
 And if the vendor must himself be admitted and pay a pays^for'^hfs 
 fine before sm-rendering, he of course bears these addi- ta^e^^™'* 
 
 ,•1 / V necessary. 
 
 tional expenses (7^). 
 
 Where an allotment under an Inclosure Act had been fe^Tnld- 
 made generally in respect of the landowner's several copy- SJ"not-'^ ^° 
 hold tenements, and the custom of the manor was to pay under seve- 
 
 . , ^ , . . , . . ral titles. 
 
 the same fee on admission to part as on admission to the 
 whole of a tenement, the Steward upon the subsequent 
 admittance of a purchaser to part of the allotment was 
 
 {k) Midland Counties Railway Com- (n) Briiry y. Man, 1 Atk. 95, n., 
 
 pany Y. Westcomb, 11 Sim. 57. Saunders' ed. ; Scriven on Copyholds, 
 
 (0 Hanson v. Lake, 2 Y. & C. C. 317. 
 
 C. 328. (o) Graham v. Sime, 1 East, 632. 
 
 (w) Browne v. Lake, 15 L. J., N. {p) See Brury v. Man, 1 Atk. 
 
 S., Ch. 34. 95, n., Saunders' ed.
 
 336 
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 
 
 Chap. XIII. 
 
 Costs of 
 lease. 
 
 Of convey- 
 ance in 
 considera- 
 tion of rent- 
 charge. 
 
 Purchasers 
 pay vend- 
 ors' costs on 
 sale under 
 Lands 
 Clauses Act, 
 
 held to be entitled to as many fees as the allottee had 
 tenements at the time of the Inclosm'e (q) . 
 
 Upon the grant of a lease the well-known practice is, for 
 the lessor's solicitor to prepare the lease, and for the lessee 
 to pay both his own and the lessor's expenses ; where land 
 is sold in consideration of a rent-charge the assurance par- 
 takes of the natures of a conveyance and a lease ; upon 
 this ground it is suggested in a work of considerable repu- 
 tation (r) that the costs should be equally divided between 
 the parties; if the vendor require a counterpart of the 
 deed, he may, it is conceived, be fairly asked to pay for 
 the counterpart, but (with this exception) it seems difficult 
 to understand why the circumstance of his sustaining a 
 mixed character of vendor and lessor should be a reason 
 for his paying a proportion of costs which neither vendor 
 nor lessor singly is ever liable to pay. 
 
 Upon a sale imder the Lands Clauses Consolidation Act, 
 1845 [s], the purchasers must pay to the vendors all their 
 costs of the conveyance and the costs of making out and 
 proving their title {t) ; such costs (if the parties differ) to 
 be taxed by the Master; the vendors have no lien for 
 the amount of such costs upon moneys deposited under 
 the 85th section of the Act (m), and it seems doubtful 
 whether, under the provisions of the above section or 
 of the 80th section, the vendors can recover their costs of 
 or prior to the contract iw) . 
 
 (y) Evans v. Upsher, 16 Mee. & 
 W. 675. 
 
 (r) Jarm. Conv. by S. 518. 
 
 (s) See sects. 82 and 83. 
 
 {() Costs of the " contracts, sales, 
 and conveyances," held, under a pri- 
 vate act, to include costs of making 
 out the title ; In re London and 
 Greenwich Railway Company, 3 Ha. 
 22. 
 
 (m) In re London and South West- 
 
 ern Railway Company, 16 Sim. 165 ; 
 Ex parte Great Northern Railway 
 Company, 16 Sim. 171. 
 
 (w) See, however, Ex parte Ste- 
 vens, 12 Jur. 238 ; as to vrhether 
 these costs include the costs of getting 
 the legal estate out of the infant heir 
 or devisees of the vendor, see Mid- 
 land Counties Railway Company v. 
 Westcomb, 11 Sim. 57; Hanson v. 
 Lake, 2 Y. & C. C. C. 328 ; Eastern
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 
 
 .13/ 
 
 Court. 
 
 The purchasers from mere statutory owners uuder the cfia p. xm. 
 ahoA^e Act are also liable to pay the costs of the purchase r".inve'/thig 
 or taking of the lands^ or which shall hare been incurred money, and 
 
 for payiTiL'nl. 
 
 Ill consequence thereof {x) , other than such costs as are ^.^j,*^®^" "'" 
 otherwise provided for by the Act^ and the costs of the 
 interim and permanent investment (y) of the monej's de- 
 posited (z), and of the necessary applications to the Court 
 for such investment^ and for payment of the income^ and 
 for payment out of Court of the principal (upon any person 
 becoming absolutely entitled thereto) (a) ; but those cases 
 are excepted where the moneys are so deposited by reason 
 of the wilful refusal of the party entitled thereto to receive 
 the same, or to convey or release the lands, or by reason of 
 the wilful neglect of any party to make out a good title to 
 the land required (b) ; nor does the liability extend to such 
 
 Counties Railwtiy Comimny v. Tuff- parte Crober, 13 Jur. 481, V. C. E. 
 
 nell, 3 Rail. Ca. 133 ; as to pay- 
 ment, out of the fund in Court, of 
 such costs as the purchasers under a 
 private act are not liable to pay, see 
 Ex parte Pasmore, Ex parte Long- 
 field, and Ex parte Towgood; Re 
 London Bridge Acts, 1 Y. & C. Ex. 
 75, 79, and 588 ; and see In re The 
 Bishop ofSaUshiinj, 16 L. T. 122. 
 
 (.r) Sect. 80. This has been held 
 to include the costs of a reference in 
 lunacy as to the propriety of the sale; 
 In re Taylor, 1 Mac. & G. 210 ; and 
 to have a retrospective effect, where 
 old companies are amalgamated under 
 an Act embodying the general Act : 
 E.r parte Eton College, 16 L. T. 121. 
 
 (y) Including the broker's com- 
 mission on the purchase of stock for 
 interim investment ; E.v parte Corpo- 
 ration of Trinity House, 3 Ha. 95 ; 
 costs of interim investment are not 
 given against the company under pri- 
 vate acts, which contain no express 
 »>rovision on the subject ; Ex parte 
 Cooke, 7 Jur. 6.-!9, V. C. E. ; Ex 
 
 (z) See 69th and 8Gth sections of 
 the Act : " wilful" refusal or neglect 
 means, that which arises from mere 
 will or caprice, and not from an exer- 
 cise of reason; Ex parte Bradshaw, 
 16 Sim. 174 ; see, however, Elliott 
 V. Turner, 13 Sim. 477, 485. Where 
 a private act omitted to provide for 
 the costs consequent on payment of 
 the money into Court by reason of 
 tlie title being doubtful, the Court 
 refused to throw such costs on a i)ub- 
 lic body purchasing under the Act : 
 Ex parte Angell; Re Trinity House 
 Lighthouse Act, 4 Y. & C. 496. 
 
 {a) See, as to the costs of such 
 applications under private acts, Ex 
 l)arte Marshall, 1 Ph. 560 ; Ex parte 
 Molyneux, 2 Coll. 273, and cases 
 there cited ; Ex parte Gore Langton, 
 11 Jur, 686 ; Ex parte Thoroton, 12 
 Jur. 130; Ex parte Crober, 13 Jur. 
 481 ; Ex parte Slater's Devisees, b 
 Rail. Ca. 700 ; Ex parte the Recfot 
 of Loughton, 14 Jur. 102. 
 
 (b) See note (.:). 
 
 Z
 
 338 MATTERS RELATING TO COMPLETION OT PURCHASE. 
 
 Chap. XIII. costs as are occasioned by litigation between adverse 
 claimants (c) . The costs of applying the money in paying 
 off incumbrances affecting other parts of the settled estates 
 do not appear to be pro^dded for by the Act {d) . Wliere 
 the money deposited by a Railway Company, amounting 
 to 644/., was appbed (together with other money, making 
 in the whole 1000/.) in the purchase of lands, the Company 
 were still held liable to pay all the costs (e) ; this decision, 
 however,''seems open to remark ; as observed by the Com- 
 pany's Counsel, ''This is not the expenditure of a few 
 pounds more; but here is an expenditm-e of a much 
 larger sum for the benefit of the Vicar. Where is the 
 Court to stop ? Would it make us pay the expense of a 
 purchase for 10,000/. ?" (/) : and in a later case Sir James 
 Knight Bruce, V. C, under similar circumstances, in or- 
 dering the Company to pay the costs, directed that the 
 same should not be increased by reason of the purchase- 
 what limit mouey exceeding thc amount in Coiu't (^) . Of course the 
 
 ^to liability. "■ p • ■ • 
 
 Act only pro"\ddes for such costs ot re-mvestment as, m 
 the absence of agreement, "would strictly fall upon the 
 statutory vendors as between themselves and the parties 
 from whom they buy for the purpose of re-investment [h) ; 
 and, except under special circumstances, under the Lands 
 Clauses Consolidation Act, 1845, only the costs of one re- 
 
 (c) Sect. 80; see Ex paric Palmer, (/) And see Er ;;ffr/e Tetley, 4 
 
 13 Jur. 781 ; and Hore v. Smith, Rail. Ca. 55; see, also, Ex parte 
 
 14 Jur. 55 ; Ex parte Smith, 6 Rail. Newton, 4 Y. & C. 518, where extra 
 Ca. 150 ; 5. C, 19 L. J., N. S., Ch. costs occasioned by the peculiarity of 
 55_ the contract, and which were notcon- 
 
 (d) See, upon similar clauses in sidered payable by the company, 
 private acts, Ex parte the Earl of were directed to be paid out of the 
 Hardwicke, 12 Jur. 508; In re fund in Court. 
 
 Yeates, 12 Jur. 279 ; Ex parte Traf- (g) Re Branmer's Eat ate, 14 Jur. 
 
 ford, 2 Y. & C. Ex. 522 ; Ex parte 236. 
 
 Northwick, 1 Y. & C. Ex. 166. {h) Jones v. Leu-is, 1 De G. & S. 
 
 (e) See Ex parte Hodge, 16 Sim. 245, and 11 Jur. 511 ; and see Ex 
 159 ; Ex parte Lord Palmerston, 4 7;fl'r^e Middle Clnyton Trust, 16 L. T. 
 Rail. Ca. 57, n. 123.
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 339 
 
 investment in land are allowed; although the general ^^E^i!': 
 rule seems to he different under the older Acts (i) . 
 
 But general expressions referring to costs to be in- ^xpr'e'^s'ioii^ 
 
 curred in consequence of the sale, or the proposal for "nt to throw 
 
 costs of r^- 
 
 the sale, or the taking of the land, whether occurring investment 
 
 " on pnr- 
 
 in an Act of Parliament or a private agreement {k), chasers. 
 will not throw upon the purchasers the costs of re- 
 investment. 
 
 The purchaser, it appears, may generally {I), although b'eaJ-saddi 
 not universally (m), require the vendor to get in, at his expenses 
 
 . -, J wlien estate 
 
 own expense, outstandnig estates or incumbrances, by deeds is incum 
 
 ^ ° _ * bered, &o. 
 
 distinct from the conveyance; or, if that course be not 
 adopted, he may at least require him to bear the increased 
 expense occasioned by the concurrence of trustees and in- 
 cumbrancers in the conveyance. When an estate was sub- 
 ject to incumbrances, which, to save expense, were got in 
 by separate deeds, and paid off out of the purchase-money, 
 the Court considered that the purchaser should have in- 
 sisted upon the vendor preparing the deeds, and furnishing 
 an abstract of them, (delaying the execution of them, it is 
 presumed, until such abstract was approved and the en- 
 grossed deeds themselves were examined by the purchaser) ; 
 and that the latter, having laid the drafts of these deeds 
 
 (i) See Ex parte Boxmoor Tntn. where it was held (reversing the deci- 
 
 fees, 3 Rail. Ca. 513; /w re St. Ka- sion of V.C.K.B.) that the vendors 
 
 therine Dock Compani/, ibid. 514 ; In were entitled to an unlimited number 
 
 re Merchant Tailors' Com2)any and of re-investments, unless made vexa- 
 
 London Bridge Act, 10 Beav. 485, tiously, or in an unreasonable exercise 
 
 where the costs of a fourth and last of the direction to invest : and the 
 
 re-investment were allowed, the ba- reasoning of the Court would seem 
 
 lance sought to be invested being to apply to cases within the Lands 
 
 only 63/. : Ex parte the Rector of Clauses Act. 
 
 Lovghton, 14 Jur. 102, where the {k) See In re London Bridge Acts, 
 
 amount of the second investment was 13 Sim. 180. 
 
 only 6/.,partofabalanceof 20/.9s.5f/., (0 Bug. fiOO ; Jones v. Letris, 1 De 
 
 and the Court directed the balance to G. & S. 245 ; 11 Jur. 511. 
 be paid to the purchaser, and fixed (m) Reeves v. Gill, 1 Beav. 375 ; 
 
 the company with the costs : and see and see note to 9 Jarm. Conv. by S. 
 
 Jones V. Lnr/s, 2 Mac. & G. 163, 30. 
 
 Z2
 
 Vict. c. 73. 
 
 340 MATTERS RELATING TO COMPLETION OF PURCHASE. 
 
 C hap. XI iL ijefore Counsel to peruse and settle on liis behalf, could 
 not throw the expenses upon parties who were liable to 
 pay his costs properly incui'red {n) . 
 
 But not if xf, however, a purchaser keep incumbrances on foot for 
 
 purchaser •' ' ^ '■ 
 
 branci"*15r' ^^^ o^u protcctiou, he cannot, it is conceived, throw upon 
 prot^'tion. the vcudor the costs of the necessarj^ assignment, whether 
 the same be effected by the principal conveyance or by a 
 collateral deed. 
 
 If a solicitor, without special instructions, prepare the 
 
 conveyance dirring the existence of a knoAvn impediment 
 
 to completion upon which the matter eventually goes off, 
 
 he cannot claim the costs of the conveyance (o) . 
 
 Taxation of ^jjf| ^g ni^y hcrc refer to the 6 & 7 Vict. c. 73, 
 
 convey an c- -^ .»•">- j 
 
 mfdlrf&i by which a solicitor's bill of costs, although composed 
 entirely of conveyancing charges, may be referred for tax- 
 ation upon petition presented either to the Lord Chan- 
 cellor or the Master of the Rolls ; the order upon a pe- 
 tition presented within twelve months after delivery but 
 before payment of the bill is of course (jj) ; although part 
 of the items be covered by a special agreement [q), or 
 although the application be made by a third party hable 
 to pay (/•) ; and may be made by the Vice -Chancellor {s) . 
 Under special circumstances [t], the bill may be referred 
 at any time within, but not after, twelve months after 
 payment (v) : such special circumstances are usually pres- 
 
 (w) Jones V. Lewis, uhi supra. (r) In re Bracey, 8 Beav. 338. 
 
 (o) Potts V. Button, 8 Beav. 493. (.s) See In re Carew, 8 Beav. 128 ; 
 
 (;;) See In re Gaitskell, 1 Phil. In re Howard, ih. 424. 
 
 576 ; and In re Pender, 2 Phil. 73 ; (0 As to which see In re Drake, 8 
 
 want of signature by the solicitor is Beav. 123 ; In re Wells, ib. 416 ; In 
 
 immaterial on an application by the re Bennett, ib. 467 ; In re Jones, ib. 
 
 client for taxation, S. C, ib. 69 ; as 479 ; In re Fyson, 9 Beav. 117 ; In 
 
 ^o the principle on which a bill will re Colquhun, ib. 146; In re Carrie, 
 
 will be taxed, see Cooper v. Ewart, ib. 602 ; In re Neate, 10 Beav. 181 ; 
 
 2 Phil. 362 ; In re Smith, 9 Beav. In re Drew, 10 Beav. 368 ; In re 
 
 182, Bagshawe, 2 De G. & S. 205. 
 
 {q) In re Eyre, 2 Phil. 367. (»•) See sect. 41 ; In re Massey, S
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 341 
 
 surCj as when immediate payment is required at a time Chap, xiii. 
 when delay in completing the business would seriously 
 inconvenience the client {iv) ; and secondly, error or over- 
 charge in the hills. The overcharges may be such as of 
 themselves to afford evidence of fraud, and then very 
 slight if any evidence of pressure is necessary to induce an 
 order for taxation {x) ; but mere overcharge, although a 
 necessary ingredient, is in itself insufficient (?/), even al- 
 though the bill was paid under protest [z) . Mere re- 
 tention of the amount of the bill out of moneys in the 
 hands of the sohcitor does not amount to payment, unless 
 there is also a settlement of account («) : nor does a settle- 
 ment by way of compromise, if effected under pressure, 
 oust the jm'isdiction ip) : the Court, hoAvever, upon a 
 petition under the Act can only ascertain by the ordinary 
 rules of practice the amount payable, and cannot deter- 
 mine whether, prior to the business being done, any special 
 agreement existed as to the manner in which the costs 
 were to be charged, or the mode by which the amount 
 should be ascertained [c] . Under the 38th section, the 
 
 Beav. 458 ; Re Harper andJones, 10 8 Beav. 237. 
 
 Beav. 284, 290 ; but the Court under (r) In re Stirke, ubi mtpra, and 
 its general jurisdiction will enforce In re Welchman, 11 Beav. 319 ; In 
 with costs a solicitor's undertaking to re Harrison, 11 Beav. 57 ; as to the 
 deliver his bill, although more than meaning of the words " under pro- 
 twelve months have elapsed since test," see 8 Beav. 462. 
 payment, it having been paid on the (a) See hire Catilin, 8 Beav. 121 ; 
 faith of such undertaking ; In re Fol- In re Bignold, 9 Beav. 270 ; and as 
 jambe, 9 Beav. 402. to payment by a promissory note, see 
 
 {xv) See Ex parte Wilkinson, 2 Sayer v. Wagstaff, ^ Beav. 415 ; In 
 
 Coll. 92 ; In re Tryon, 7 Beav. 496 ; re Currie, 9 Beav. 602 ; see also Re 
 
 see also In re Jones, 8 Beav. 479; Harper a7id Jones, 10 Beav. 284. 
 In re Harrison, 11 Beav. 57. {b) In re Stephen, 2 Phil. 562; 
 
 {x) In re Harding, 10 Beav. 250, see In re Whitcombe, 8 Beav. 140. 
 252; In re Sladden, 10 Beav. 488; (e) In re Rhodes, %'2,ea.\.22\; see 
 
 In re Welchman, 11 Beav. 319. 2 Ph. 575 ; and see In re Thompson, 
 
 (y) In re Stirke, 11 Beav. .304; 8 Beav, 237; In re Beale, 11 Beav. 
 
 specific items of overcharge must be (iOO. 
 alleged and proved, In re Thompson,
 
 342 MATTERS RELATING TO COMPLETION OF PURCHASE. 
 
 Chap, xiii. j.jgjj^ Qf referring the bill is given^ not only to tlie imme- 
 diate client, but also to any persons who, as between them- 
 selves and such chent, may be liable to payment ; but, in 
 such a case, the bill must be taxed as between the sohcitor 
 and his immediate client [d) ; so that if a purchaser has 
 agreed to pay the vendor's costs, the vendor's sohcitor, upon 
 taxation on the petition of the purchaser, will be allowed 
 costs properly incurred as between himself and the vendor, 
 although they may have been improperly incurred as be- 
 tween the vendor and the purchaser : so also, as in an 
 ordinary case, special circumstances must be proved if the 
 bill has been paid, although the payment were by the 
 immediate chent (e) ; and the lapse of twelve months since 
 payment precludes taxation under the Act (/) ; and a bill 
 cannot be taxed at the instance of a person who, under no 
 previous liability, voluntarily pays it [g) . A bill when de- 
 livered is prima facie binding on the solicitor for the pur- 
 poses of taxation, and he is not entitled, as of course, either 
 on the one hand to reduce the demand [h),ov, on the other, 
 to increase the rate of chai'ges (i) ; but he may obtain leave 
 to carry in an additional bill of items accidentally omit- 
 ted {k) . It has been recently held that under this Act a 
 country solicitor can procure the taxation of the charges 
 of his town agent (/) : but it does not authorize the tax- 
 ation of the fees of the steward of a manor, (avIio is a so- 
 licitor,) in respect of matters in which he acts only as a 
 steward (m). 
 
 {d) See In re Jones, 8 Beav. 479 ; {h) In re Carven, 8 Beav. 436. 
 
 In re Fyson, 9 Beav. 117; In re (i) S. C, and In re Wells, ib.Al6; 
 
 Bignold, 9 Beav. 269 : In re Har- In re Walters, 9 Beav. 299. 
 rison, 10 Beav. 57. {k) In re Walters, ubi supra. 
 
 (e) In re Bennett, 8 Beav. 467. (0 Smith v. Dimes, 13 Jur. Exch. 
 
 (/) //* re Doimes, 5 Beav. 425 ; 518. 
 In re Massey, 8 Beav. 458. {m) Allen v. Aldridye, 5 Beav. 
 
 (f/) Re Becke and Floiver, b Beav. 401. 
 406,
 
 MATTERS RELATING TO COMPLETION OF PURCHASE. 343 
 
 And the Court may, under its general jurisdiction, order Chap, xiii. 
 
 taxation of a bill consisting wholly or in part of convey- ordered"" 
 
 ancing costs, if the solicitor refuse to deliver up deeds and raijurisdic- 
 
 papers in his possession except upon payment oi the citor claim 
 
 Lastlv, under this head, we may remark, that the 8 & 9 Costs of 
 
 " ^ ' •/ conveyance 
 
 Vict. c. 119 (o), enacts that in taxing any bill for preparing JJ,'? J'^^ f^g® 
 and executing any deed under that Act, it shall be lawful ^oi^fy^^tb 
 for the taxing officer, and he is thereby required, in gkm?iabour, 
 estimating the proper sum to be charged for such transac- sibiuty. 
 tion to consider not the length of such deed, but only the 
 skill and labour employed and responsibihty incurred in 
 the preparation thereof : an enactment which in principle 
 is unexceptionable, but in theory throws a most heavy 
 responsibility upon the Taxing Masters : it is, however, 
 believed that their duties under the Act have practically 
 been hitherto far from onerous. 
 
 (m) In re Murray, 1 Russ. 519 ; (o) As to which, vide supra, p. 
 
 In re Rice, 2 Keen, 181. 247.
 
 344 
 
 C'^p- ^^^' CHAPTER XIY. 
 
 AS TO THE EFFECT OF THE CONVEYANCE ON THE RELATIVE 
 RIGHTS OF VENDOR AND PURCHASER. 
 
 1. Vendor's Hen on estate for unpaid jiurchase-money . 
 
 2. Whether he has any remedy if estate has been sold at 
 undervalue : or more has been conveyed than loas intended. 
 
 3. His right of pre-emption under Lands Clauses Con- 
 solidation Act, 1845. 
 
 4. His remedies at Law and in Equity on purchaser's 
 covenants. 
 
 5. Purchaser's remedies on vendor's covenants. 
 
 6. His remedy in Equity under special circumstances if 
 title defective. 
 
 7. His right to pay off incumbrances out of purchase- 
 money. 
 
 8. His remedy in Equity if he buy his oum estate, ^c ; — 
 or if lands are omitted from conveyance — and as to further 
 assurance in Equity and by Statute. 
 
 9. As to his general rights and liabilities under the 
 conveyance, 
 
 (1.) The conveyance, if purporting to comprise "all the 
 estate and interest" of a conveying party in the property, 
 will not be restricted in its operation by the circumstance 
 of his having concurred therein in any particular and 
 specified character («) . 
 vtndor has jj^ {\^q absencc, howevcr, of an express agreement, and 
 
 a Ilea on -> -" i o ^ 
 
 impak/'^'^ of those circumstances from which the Court can imply an 
 (fl) Dreio V. Earl of Norbuty, 3 Jo. & L;it. 267.
 
 RIGHTS OF VENDOR AND PURCHASER. 345 
 
 iutention to tlie contrary, the vendor, notwithstanding the chap. xiv. 
 execution of the conveyance which contains the ahove ^"0*1167^^ 
 expressions and acknowledges payment of the purchase- 
 money and bears an indorsed receipt for the amount, and 
 notwithstanding dehvery of possession to the purchaser, 
 retains an equitable lien {b) upon the estate, whatever may 
 be its tenure, for all or such part of the purchase-money 
 as in fact remains unpaid (c) : and such lien is vahd ^'^^ '^ ^^''^ 
 
 ■■■ ^ ' as against 
 
 against volunteers, creditors, (whether claiming under a ^^^°^- 
 composition deed or in Bankruptcy) {d), and sub -purchasers 
 with notice, claiming under the first purchaser (e) : and a 
 sub -purchaser, even without notice, is postponed unless he 
 has the legal estate (/), or (in the opinion of Sir E. 
 Sugden) {g) the deeds : it has even been held, in a recent 
 case, that a sub-purchaser or mortgagee acquiring the 
 legal estate, but neglecting to ask for the deeds, is to be 
 postponed to the original vendor who holds them as a 
 security for his unpaid pm-chase-money {h) . 
 
 If, however, the vendor, having conveyed the estate to Does not 
 
 ., protect title 
 
 the purchaser, retain the title deeds, the latter can recover deeds at 
 them at Law, notwithstanding that the purchase -money be 
 unpaid, unless the conveyance has been executed as an 
 escrow, to be delivered on payment of the money [i) . 
 
 The lien is not in the nature of an "express trust'^ is not in 
 
 {b) As to the distinction between (c) 15 Ves. 337, 341. 
 
 the vendor's lien and the right of (f) See Mac/creth \. Symmo7is,lb 
 
 stoppage in transitu on a sale of per- Ves. 329. 
 
 sonal chattels ; see M'Ewan v. Stnith, {g) Sug. 881; but see Manning. 
 
 2 H. L. C. 309. ford v. Toleman, 1 Coll. 670 et qu. 
 
 (c) See Winter v. Lord Anson, 3 (A) Worthington v. Morgan, 16 
 Russ. 488 ; and see the judgment in Sim. 547. 
 
 Mackreth v. Symmons, 15 Ves. 336, (i) Goode v. Burton, 11 Jur. 851, 
 
 where the earlier cases are cited. in which see the remarks made by 
 
 (d) See Fawell v. Heelis, Amb. the Court upon Mr. Justice Holroyd's 
 724 ; Blackburn v. Gregson, 1 Bro. dictum in Esdaile v. Oxenham, 3 B, 
 C. C. 420 ; Boivles v. Rogers, cited & C. 229. 
 
 6 Ves. 95.
 
 346 
 
 EFFECT OF CONVEYANCE ON RELATIVE 
 
 Chap. XIV. 
 
 nature of an 
 
 express 
 
 trust. 
 
 Is assign- 
 able by 
 parol. 
 
 Marshalling 
 for lieu. 
 
 Is lost by 
 taking in 
 dependent 
 security. 
 
 But not by 
 
 taking note, 
 bill, or bond; 
 
 within the 25th sect, of the 3 & 4 Will. IV. c. 27 ; and is 
 therefore barred by the 40th sect, after twenty years from 
 the day fixed for payment ; there ha\ing been no interim 
 payment nor \mtten acknowledgment of title {k) . 
 
 It would appear to be assignable by parol {l), but the 
 assignee will take subject to any prior equitable incum- 
 brances created by the vendor {m) . 
 
 And it appears to be the result of the modem au- 
 thorities {n) that where the vendor's claim is satisfied out 
 of the personal estate of a deceased purchaser. Equity will, 
 by marshalling the purchased estate and the personal 
 estate, give the benefit of the vendor's lien to simple-con- 
 tract creditors and legatees of the purchaser, if he have 
 died intestate as respects the purchased estate; and to 
 simple- contract creditors, but not to legatees, if the estate 
 be demised. 
 
 When the vendor takes an independent security for 
 payment, this will, as a general (o) but not universal 
 i-ule (jj), amount to an abandonment of the lien; as when 
 he takes a security upon stock (g), or a mortgage of 
 another estate (r) ; so, taking a mortgage of part of the 
 sold estate is an abandonment of his hen as respects the 
 residue (s) ; and taking a mortgage upon the estate for a 
 part only of the unpaid purchase-money, is an abandon- 
 ment of the Hen for the balance (/) . 
 
 But he wiU not be held to have abandoned his lien from 
 the sole fact of his taking any document which merely 
 evidences, or faciUtates the enforcement of, his claim 
 
 {k) Toft V. Stephenson, 7 Ha. 1. 
 
 {I) Dryden v. Frost, 3 Myl. & Cr. 
 670. 
 
 (m) Lacerj v. Ingle, 2 Ph. 313; 
 and see Mangles v. Bixon, 1 Mac. & 
 G. 437. 
 
 («) See Sug. 878, and cases cited. 
 
 21. 
 
 (o) Sug. 862. 
 {p) 15 Ves. 348. 
 
 (q) Nairn \. Prowse, 6 Ves. 752. 
 
 (r) See 6 Ves. 760. 
 
 {s) Capper v. Spottiswoode, Taml. 
 I. 
 
 {t) Bond V. Ke9it, 2 Vern. 281.
 
 RIGHTS OF VENDOR AND PURCHASER. 347 
 
 against the purchaser ; e. g. & promissory note, or bill of chap. xiv. 
 exchanore. or bond {u) : nor is it material that the money although 
 
 ° ^ ' •' payment 
 
 is to remain unpaid for a specified period,, e. g. the life of dlfe^ed" ^^ 
 the vendor (v) . 
 
 And as promissory notes and bills of exchange are con- parui's^oin 
 sidered merely as a mode of payment (w) , it seems that if u^T'^ ^^ 
 a third person join in them as surety, this will not affect 
 the lien {x) . 
 
 Whether the Hen would be affected by taking a bond or "^^^^^^r; 
 
 •J o affected by 
 
 covenant from a third person, appears to be undecided (y) ; fngfn bond. 
 but probably such would be the case [z). 
 
 Where the sale Avas expressed to be made in considera- .^^^t^®'" 
 
 ^ lostifcon- 
 
 tion of the pui'chaser's subsequent covenant to pay an Ixp^esl'iy^ii 
 annuity and a gross sum of 3000/. in the event of his own tfon^'o/'^'' 
 marriage, there was held to be no lien upon the estate for 
 the 3000/. (a) : upon this decision it may be remarked, 
 that the nature of the consideration, and the fact of a 
 covenant being taken, furnished strong arguments in 
 favour of an intention to abandon the lien as respects the 
 3000/. ; for the existence of a lien for a gross sum, the befng^ay- 
 payment of which might remain contingent during the life fncaicSiaWe 
 of the purchaser, and which depended upon an event the gency." 
 probabilities of which were not matters of calculation and 
 which could not have been guarded against by any scheme 
 of insui'ance, would have left the estate in his hand inalien- 
 able except at a most serious sacrifice. 
 
 So, where a daughter, on the eve of marriage, sold to Orifcon- 
 
 •' o .J o .» veyance be 
 
 her father her reversion of an estate, and the conveyance conJfderL'" 
 was expressed to be in consideration of the sum of 3000/. bond" ^ 
 secured to her upon the terms mentioned in a bond of 
 
 (m) Winter v. Lord Anson, 3 Russ. Lef. 132, 136 ; Grant v. Mills, 2 Ves. 
 
 488, 490. & B. 306. 
 
 {v) S. C. (y) 2 Ves. & B. 309. 
 
 (w) 15 Ves. 349; see Teed v. (z) Cood v. Cood, 10 Price, 109; 
 
 Carruihers, 2 Y. & C. C. C. 31. Sug. 860. 
 
 (x) Hmjhes v. Kearney, 1 Sch. & («) Clarke v. Royle, 3 Sim. 499.
 
 348 
 
 EFFECT OF CONVEYANCE ON RELATIVE 
 
 Chap. XIV. 
 
 Whether 
 a fleeted by 
 mere fact of 
 conveyance 
 being in 
 considera- 
 tion of a 
 covenant or 
 bond; 
 
 or if bond be 
 for securing 
 purchase- 
 money upon 
 an incal- 
 culable con- 
 tingency. 
 
 Bond for 
 securing 
 payment on 
 calculable 
 contin- 
 gency, lien 
 not affected : 
 semble. 
 
 Lien for 
 annuity con- 
 sideration, 
 is not af- 
 fected by 
 bond ; 
 
 even date_, and the indorsed receipt was for " a bond for 
 the sum of 3000/.^ being the full consideration within 
 expressed to be given •/' the bond being in fact for securing 
 to her an annuity of 100/. dui'ing the joint lives of herself, 
 her husband and father, and for payment of a sum of 
 3000/. in certain contingencies depending upon lives and 
 the existence of issue, and subject to a proA^so avoiding 
 the bond (as regarded the 3000/.) in the event of the father 
 by deed or will making a certain specified provision for his 
 daughter or her husband, it was held that no lien upon the 
 estate was intended to or did exist {b) . 
 
 The last two decisions, it is submitted, hardly establish 
 that the lien would be discharged by the mere fact of the 
 conveyance being expressed to be made in consideration of 
 a bond or covenant for payment of a gross sum in all 
 events ; the sum being in fact so made payable ; indeed, 
 Parrott v. Sweetland appears to have been considered 
 rather as a case of family arrangement than an ordinary 
 transaction between vendor and purchaser {c) ; and Clarke 
 V. Royle partook of the same character ; they may, how- 
 ever, it is conceived, induce a doulrt whether Winter v. 
 Lord Anson {d) would be an authority for the existence of 
 the hen where a vendor takes a bond for a future con- 
 sideration payable upon incalculable contingencies. 
 
 If, however, the consideration be payable upon a cal- 
 culable contingency, it appears that taking a bond or 
 covenant for its payment would not affect the lien ; this 
 conclusion seems to be warranted by those cases upon sales 
 in consideration of an annuity next adverted to. 
 
 The authorities seem to show, that, in the absence 
 of special circumstances, a vendor who sells in consider- 
 ation of even a life annuity, retains a lien upon the estate, 
 although he take a bond or covenant for payment ; this 
 
 {0) Parrolt v. Sweetland, 3 Myl. 
 & K. 655. 
 
 (c) See 3 Myl. & K. 66i. 
 {d) 3 Russ. 488.
 
 RIGHTS OF VENDOR AND PURCHASER. 349 
 
 was decided in Tardijfe v. Scnighan [e] ; a case wliicli, Chap, xiv. 
 although doubts have been entertained respecting it (/), 
 is considered bj Sir E. Sucjden to be an authority (g) ; 
 and his opinion has been recently followed by Sir James 
 Wigram, V. C, (Ji), who, however, in some degree grounded 
 his decision upon the cii'cumstance of the purchaser having 
 covenanted \nt\\ the vendor to uphold the property. 
 
 Wliere, however, an equity of redemption was sold in except 
 
 '- " J- under spe- 
 
 consideration of two annuities, which were granted and gJaLclf.^Tr 
 covenanted to be paid by a deed of even date with the gr^uedby 
 conveyance, and the conveyance was expressed to be made deid"^^ 
 by the mortgagor and mortgagee in consideration of the 
 annuities having been so granted, and of the mortgage 
 debt haAdng been paid by the purchaser, it was held, that 
 the circumstance of the separate deed being/ taken as a 
 security for the annuities, and the statement of the con- 
 sideration in the conveyance, endenced an intention that 
 there should be no lien upon the estate {i) . 
 
 So, where a reversion was sold in consideration of whether 
 
 affected hj 
 
 immediate life annuities, which were secured by bond, ^"aie'^of '^** 
 it was considered by Lord Eldon, that the nature of the ■■^^^'■*'<'"- 
 estate, and the fact of a bond being taken, showed that the 
 parties did not intend the lien to subsist; the annuities 
 might all determine before the reversion fell into pos- 
 session ; and this, coupled with the fact of the purchaser 
 taking the bond, showed that he did not intend the lien 
 on the reversion to subsist [k) ; but the decision is disap- 
 proved of by Sir E. Sugden (/) . 
 
 (e) Cited I Bro. C. C. 423. Ves. 351. 
 
 (/) See 15 Ves. 352; 3 Sim. 502; (Z) Sug. 889, and note, that the 
 
 but see 13 Sim. 412. same objection to the existence of the 
 
 {g) Sug. 870. lien existed in Parrott v. Sweetland, 
 
 (A) Matthew \. Bowler, 6 Ha. 110. ubi supra, which was a case of a sale 
 
 («') Buckland v. Pocknell, 13 Sim. of a reversion in consideration of an 
 
 406. annuity and a gross sum. 
 {k) See Mackreth v. Symmnns, 15
 
 350 
 
 EFFECT OF CONA'EYANCE ON RELATIVE 
 
 Chap. XIV. 
 
 Lien may 
 subsist as to 
 only part of 
 unpaid 
 money. 
 
 Presumable 
 intention 
 either way 
 may be 
 rebutted. 
 
 Lien, how 
 lost as 
 asrainst 
 third parties. 
 
 None im- 
 plied in 
 favour of 
 di.'squalitied 
 parties. 
 
 And it ^vas decided, in the same case, by Lord Eldon, 
 that the natm'c of the transaction may show that the lien 
 is to subsist as to part of the unpaid purchase-money, but 
 not as to the residue. 
 
 And as taking a substantive and independent security 
 destroys the lien, not by \irtue of any technical rule but 
 merely by indicating the intention of the vendor, the lien 
 may, notrvithstanding the security, be preserved, either by 
 express agreement, or by any expressions negativing the 
 presumable intention to abandon it ; e. g., a stipulation 
 that the estate shall not be sold until the money is paid, 
 or with the consent of the vendor and the surety (m) : and, 
 on the other hand, the intention to abandon the lien 
 in cases where only a note or bond is taken, may be 
 evidenced by a parol express agreement [n) or by any 
 expressions inconsistent with its continuance ; e. g., expres- 
 sions referring to a resale of the property before the time 
 fixed for pa^Tuent of the amount due to the vendor (o) . 
 
 Where a vendor joined in a deed by which the pur- 
 chaser mortgaged the estate to a third party who advanced 
 part of the purchase-money, he, of course, was held to 
 have, as against such mortgagee, no lien for the unpaid 
 balance {p) : so, where, upon a puixhase by trustees, the 
 vendor, knowing the money to be trast money, signed the 
 usual indorsed receipt, but allowed part of it to remain in 
 the hands of one of the trustees without the knowledge of 
 his co-trustees, or cestuis que trust, he was held to have no 
 lien on the estate {q). 
 
 And no lien will be assumed in favour of parties who 
 are, by law, disqualified from holding such an interest in 
 real estate ir). 
 
 (m) Elliot V. Edwards, 3 Bos. & 
 P. 181. 
 
 (n) 1 Sim. & St. 44.5. 
 
 (o) See Ej- parte Parkex, 1 Cj.fi 
 J. 228. 
 
 {p) Good V. Pollard. 9 Pri. 544. 
 iq) White \. Wakefield, 1 ^\fD.A(i\. 
 (r) Harrinon v. Southcote, 2 Ves. 
 339, 393 ; and see 15 Ves. 337.
 
 RIGHTS OF VENDOR AND PURCHASER. 351 
 
 A vendor's lien can only be enforced by suit in Equity ; c hap. xiv. 
 
 and he cannot, at the same time, sue in Equity, and bring ^u^ta'bkf ^ 
 
 an action at Law upon any bond or other security T^hich lannotat 
 
 he may have taken for payment of the monev ; but if he law and ia 
 
 jy -I ■ , , " equity. 
 
 rail m one remedy he may resort to the other {s) . 
 
 "\Miere the vendor conveys the estate to the purchaser, {fona^aimt 
 and takes a reconveyance, by way of mortgage, for securing ]u"dgmen[-' 
 payment of part of the purchase-money, his lien appears to "Ln pur- 
 render the existence of judgments against the purchaser money 
 
 -^ remains on 
 
 immaterial. mortgage. 
 
 A vendor, ha\-ing given the usual release in the body of no°5^^m^?or 
 the conveyance for the purchase-money, cannot bring an "atldtn'ter- 
 action for interest which has been omitted to be paid 
 through an error of calculation (/) . 
 
 (2.) Whether the vendor has any remedy if estate has been 
 sold at an undervalue ; — or more has been conveyed than 
 teas intended. 
 
 The vendor, after convevance, has no remedv, if the ^'o*"^" , 
 
 ' <■ ' » ^ respect of 
 
 property prove to be, either as respects quantity or quality-, ^ Ix^em^r 
 more valuable than was imagined ; for instance, where the pripmy''"' 
 residue of a lease, of which twenty years were in fact 
 unexpired, was sold under the impression that only eight 
 years were to run, and the price was fixed on that sup- 
 position, the vendors, although trustees, were held bound 
 by the conveyance : Lord Cottenham, in affirming the 
 decree of V. C. K. Bruce dismissing the vendors' bill, 
 observed, " Suppose a party proposed to seU a farm, 
 describing it as ' all my farm of 200 acres,^ and the price 
 was fixed on that supposition; but it afterwards turned 
 out to be 250 acres, could he afterwards come and ask for 
 a reconveyance of the farm or payment of the difference ? 
 
 (s) Barker v. Sniarlr, 3 Beav. 64. 
 
 (i) Harding v. Ambler, 3 Mee. & W. 279.
 
 352 EFFECT OF CONVEYANCE ON RELATIVE 
 
 Chap. XIV. Clearly not ; the only equity being that the thing tmns 
 out more valuable than either of the parties supposed. 
 And whether the additional value consists in a longer term 
 or larger acreage is immaterial" (w). 
 
 extent of iiis Nor^ whcrc scveral persons have joined in conveying an 
 
 therein. estate to a purchaser for a full consideration,, can one of 
 them be afterwards heard to say that he was under a mis- 
 apprehension as to the extent of his interest in the pro- 
 perty {v). 
 
 Aiiter,i{ g^^^ ^j^g abovc cascs must be distinguished from those 
 
 property not ° 
 
 be^deau*^° whcrc the coiiveyancCj by mistake, comprises more than 
 veyed* "^"'^ either party intended to deal with (w) ; as if, upon a con- 
 tract for sale of farm A., the conveyance were by mistake 
 to include lands parcel of farm B. ; the difference between 
 the cases is this, viz., that in the latter the parties never 
 intended to deal with the property which Avas conveyed; 
 while, in the former {x), " the vendors did intend to sell all 
 their remaining interest in the lease, but by their OA\n 
 mistake they misdescribed wliat that interest was {y) :" so, 
 in the case put by Lord Cottenham, the vendor would 
 really intend to sell the entire farm, and the only mistake 
 would be as to the quantity. "We may here remark, that, 
 at Law, evidence cannot be received to contradict the 
 conveyance by showing that property, which would jjrimd 
 
 (u) Okill V. Jf 'hit taker, 2 Pliiil. coulJ be raised, since the woman as- 
 
 338. signed the property not qua ^ feme 
 
 (») Maiden v. Merick or Menil, 2 covert, but as being, in regard 
 
 Atk. 8 ; Marshall v. Collet f, 1 Y. & thereto, a feme sole, in contemplation 
 
 C. 232; and see also Stitrge v. Starr, of a Court of Equity. 
 
 2 Myl.& K. 19o,wherea woman, wlio (w) Tyler v. Beversham, Rep. t. 
 
 had a life interest settled to her sepa- Finch, 80; see Beaumont v. Bram- 
 
 rate use, joined with her supposed lius- ley, Turn. & R. 41; Marquess v. 
 
 band (who was in fact married to Marctiioness of Ereter,Z My\. St Cr. 
 
 another woman) in assigning it to a 321 ; Mortimer v. Shortall, 2 Dru. ik 
 
 purchaser, and was held bound by the VV. 363. 
 
 assignment : as to which it is difficult (.j) Okill v. WJiittaker, ubi supra. 
 
 to understand how any fair question {y) 2 Phil. 341.
 
 RIGHTS OF VENDOR AND PURCHASER. 353 
 
 facie pass under general words^ was not intended to be chap. xiv. 
 included in tlie purchase [z). 
 
 If, however, the vendor in fixing the price have al- l^^'fixing"^*"^ 
 together relied upon information furnished to him by the purchate^r's" 
 purchaser, and such information turn out to have been (even 
 unintentionally) materially incorrect, this, it appears, may 
 entitle the vendor, even after conveyance, to have the con- 
 tract set aside [a). 
 
 And the same relief has been afforded, where a pur- Orifpur- 
 
 •' '^ chase were 
 
 chaser knowingly obtained, for an inadequate consideration, vliue'lvom 
 a conveyance from a vendor in humble circumstances and Jant^ot ifis° 
 ignorant of his rights [b), and, in other cases, where ad- whose 
 
 - « 1 T distress has 
 
 vantage has been taken of the vendor's distress to procure been taken 
 
 _ _ '■ advantage 
 
 an unfair bargain (c) . And in a case where a person, who <^*- 
 well knew the value of the property, obtained from a 
 young man, a common sailor, lately come ashore and 
 much pressed for money, an estate for a grossly inadequate 
 price, the Coui't, even as against the devisees of the pur- 
 chaser, appointed a receiver before the hearing {d) . 
 
 It was laid down by Lord Lanqdale in a recent case (e), General 
 
 •' •^ ^ / ' rule as to 
 
 that a man who is in distress may nevertheless contract ; <^>stress. 
 and if, being in distress, he procure other persons to con- 
 sent to an agreement which he would not himself have 
 requested or consented to if he had not been in distress, 
 and afterwards successfully m^ges and obtains the per- 
 formance of that agreement, and, after that, acquiesces 
 for a length of time in the performance, without any notice 
 
 {z) Doe d. Norton v. Webster, 4 417 ; Gordon v. Crawford, and other 
 
 Per. & Dav. 270. cases, cited Sug. 313. 
 
 (a) Carpmael v. Powis, 11 Jur. (d) Stilwell v. Wilkins, Jac. 280; 
 
 158; 10 Beav. 36. see Fatmer v. Farmer, 1 H. L. C. 
 
 (*) Evans v. Llewellyn, 2 Bro. C. 724, where the vendor was deaf and 
 
 C. 150 ; see Groves v. Perkins, 6 dumb, but under the circumstances 
 
 Sim. .')76 ; and Sturge v. Sturge^ 14 relief was refused. 
 Jur. R. 159. {e) Knight v, Marjoribanks, 11 
 
 (c) See Wood v. Abrey, 3 Madd. Beav. ; see p. 349. 
 
 A A
 
 354 
 
 EFFECT OF CONVEYANCE ON RELATIVE 
 
 Chap. XIV. 
 
 Inadequacy 
 of considera- 
 tion no 
 general 
 reason for 
 setting aside 
 conveyance. 
 
 Uncertain 
 amount of 
 purchase- 
 money. 
 
 Distinction 
 in cases of 
 reversionary 
 interests. 
 
 Otmspro- 
 bandiUee on 
 purchaser. 
 
 What inter- 
 ests are 
 considered 
 reversionary 
 
 of dissatisfaction or complaint, he is not entitled to set 
 aside the transaction on the mere ground of his poverty or 
 distress, in the absence of any deception or fraud proved 
 to have been practised on him. 
 
 We shall hereafter see (/) that, upon the purchase of an 
 estate in possession, mere inadequacy of consideration, 
 unless shown to be the result of fraud, surprise, misrepre- 
 sentation, or improper concealment on the part of the 
 purchaser, will be no defence even to a suit for specific 
 performance, unless the inadequacy be so great as in itself 
 to furnish c'vidence of fraud (g) ; and a stronger case than 
 what would suffice as a defence to a suit for specific per- 
 fonnance, would be necessary to enable the vendor to 
 rescind the contract after conveyance {h) . 
 
 A distinction has been made between cases where the 
 consideration was for a stated sum, and for an uncertain 
 amount, e. g., a life annuity ; but it seems doubtful whe- 
 ther this is sustainable {i) . 
 
 But there is a well recognised distinction between sales 
 of estates in possession and estates in reversion; and on 
 sales of the latter description, if effected by private con- 
 tract, mere inadequacy of consideration will enable the 
 Court to decree a reconveyance ; and the onus pi'obandi 
 does not, as in ordinary cases, rest with the plaintiff 
 seeking to impeach the sale, but with the defendant [k) . 
 
 And this relief ^vdll be afforded where a small part of 
 the property is in possession and the bulk is rever- 
 
 (/) Infra, Ch. XVIII. 
 
 (g) See Rice v. Gordon, 11 Beav. 
 265. 
 
 (A) See Sug. 312, 314 ; Vigers v. 
 Pike, 8 CI. & Fin. 645 ; Playford v. 
 Playford, 4 Ha. 546 ; Bellamy v. 
 Sabine, 2 Ph. 425 ; Wilde \. Gibson, 
 1 H. L. C. 617. Lord Eldon seems 
 to have entertained a different opi- 
 
 nion, see Coles v. Trecothick, 9 Ves. 
 234. 
 
 (0 Vide infra, Ch. XVIII. 
 
 {k) See Coles v. Trecothick, 9 Ves. 
 246 ; Gowland v. Be Faria, 17 Ves. 
 see p. 24 ; Hincksman v. Smith, 3 
 Russ. 433; Kendall v. Beckett, 2 
 Russ. & Myl. see p. 90 ; Jddis v. 
 Campbell, 1 Beav. see p. 262.
 
 RIGHTS OF VENDOR AND PURCHASER. 355 
 
 sionary (/) ; but not where the tenant for life concurs with Chap, xiv. 
 the immediate reversioner, so that the sale is, in effect, of rule.'" * '^ 
 an estate in possession (ni) ; nor where the sale is made by 
 a vendor entitled to what is, substantially, an estate m 
 possession, and to the ultimate reversion, subject only to 
 an intervening life estate (w) ; nor where the contract is 
 entered into between a tenant and the person entitled to 
 the reversion and to the rents during the term (o) ; and 
 relief will be more sparingly afforded where the reversion 
 is subject to an almost incalculal)le contingency, as where 
 it is expectant on the death, without issue, of a tenant for 
 life aged sixty-three and unmarried {p) ; although the 
 existence of such a contingency is no absolute protection 
 to a purchaser at an undervalue {q) . 
 
 And the relief is afforded, as well to the mere owners of toVendo'7s^" 
 reversionaiy interests (r), as to heirs dealing with their asweiiasto 
 
 • • n expectant 
 
 expectancies; although an extraordinary protection is ai- heirs 
 forded to the latter class of vendors {s) . 
 
 And where a person bought a reversion at a gross under- ^^'^'g^ as 
 value from an heir in distressed circumstances, and resold pu?ihfse" 
 it at a large profit to a sub-purchaser who had full notice notwith- 
 
 ..,„, ,, . ,. •^^ • standing 
 
 01 the original fraud, and the reversioner, being still m voluntary 
 
 _ confirma- 
 
 distress, ioined in and confirmed the resale, but nothing tionbyre- 
 
 •' «< 7 o versioner. 
 
 was paid or secured to him as a consideration for such 
 concurrence, the transaction was set aside as against the 
 
 (/) Lord Portmore v. Taylor, 4 5 Myl. & Cr. 270 ; Boothby v. 
 
 Sim. 182. Boothby, 1 Mac. & G. 604 ; Wood- 
 
 (m) Wood V. Mrey, 3 Madd. 417; roffe v. Allen, 1 H. & J. 73 ; father 
 
 see Cooke v. Burtchaell, 2 Dru. & W. and son, when dealing with a third 
 
 165 ; and Sibbering v. Earl of Bal- person, need not be represented by 
 
 Carres, 14 Jur. 753, V. C. K. B. separate solicitors, S. C. ; Cooke v. 
 
 (n) IVardle v. Carter; 7 Sim. 490. Burtchaell, 2 Dru. & W. 165. 
 
 (o) Scott V. Dunbar, 1 Moll. 459. (r) Bawtree v. Watson, 3 Myl. & 
 
 {p) Baker v. Bent, 1 Russ. & K. 339 ; Davies v. Cooper, 5 Myl. & 
 
 Myl. 224 ; and see Whichcote v. Cr. 270 ; Edwards v. Browne, 2 Coll. 
 
 Bramston, cited 4 Sim. 202. 100; see Sewell v. Walker, 12 Jar. 
 
 {q) See Sug. 325 ; Addis v. Camp- 1041. 
 bell, 4 Beav. 401 ; Davies v. Cooper, (*) Sug. 314. 
 
 A a2
 
 356 
 
 j;ffect of conveyance on helative 
 
 Chap. XIV. 
 
 What cir- 
 cumstances 
 will deprive 
 the heir of 
 his special 
 protection- 
 rules laid 
 down in 
 King v. 
 Hanikt. 
 
 Sir. E. Sug- 
 den'g com- 
 ments there- 
 
 sub-purcliaser, on repayment of the price paid on tlie first 
 purchase (/) . 
 
 It was laid down by the Com't in deciding a modern 
 case [u), First, that this extraordinary protection must be 
 withdrawn from the heir, "if it shall appear that the trans- 
 action was known to the father or other person standing 
 in loco parentis, the person, for example, from whom the 
 spes successionis was entertained, or after whom the re- 
 versionary interest was to become vested in possession, — 
 even although such parent or other person took no active 
 part in the negotiation, provided the transaction was not 
 opposed by him, and so carried through in spite of him. 
 Secondly, that if the heir flies off from the transaction, 
 and becomes opposed to him with whom he has been deal- 
 ing, and repudiates the whole bargain, he must not, in any 
 respect, act upon it so as to alter the situation of the other 
 party, or his property ; at least that if he does so, the proof 
 lies upon him of showing that he did so under the con- 
 tinmng pressure of the same distress Avhicli gave rise to 
 the original dealing." 
 
 The first of these propositions is criticized by Sir E. 
 Sugden, who observes that the equity is that of the son {v), 
 not of the parent; and in a late case [w] a purchase was 
 set aside upon the ground of inadequacy, the tenant for 
 life being herself the pm-chaser : as to the second of the 
 above propositions. Sir E. Sugden remarks, that without 
 the concluding quahfication it could not safely be acted 
 upon {x). 
 
 {t) Addis v.Ca7V2Jhell,i Beav.401; 
 but the case would be different if the 
 sub-purchaser had no notice of the 
 original fraud, even although he might 
 not have acquired the legal estate ; 
 see Nagle v. Baylor, 3 Dru. & W. 
 
 (m) King v. Hamlet, 2 Myl. & K. 
 see p. 473. 
 
 {y) Sug. 31fi. 
 
 (w) Edwards v. Browne, 2 Coll. 
 100 ; and see Play ford v. Plaijford, 4 
 Ha. 546. 
 
 60; see too Sibbering v. Earl of (x) Sug. 316. As to transactions 
 Balcarres, 14 Jur. 753, V. C. K. B. in the nature of family arrangements
 
 RIGHTS OF VENDOR ANP PURCHASER. 357 
 
 The question of adequacy of consideration must be Chap, xi v. 
 determined with reference to circumstances as existing at ^dIkS'"^ 
 the date of the contract, and not to subsequent events [y) : determined. 
 it was formerly held {z) sufficient to avoid the transaction, 
 that the price paid was not the estimated value according 
 to the tables used by actuaries ; but subsequent decisions 
 and authorities seem to have established the more reason- 
 able doctrine, that the market value, (which is generally 
 about two-thirds of the estimated value [a),) is alone to be 
 regarded [b) : and, on a bond fide sale by aviction, its result 
 is considered in itself to fix the market value (c). In a 
 late case, where the market value appeared to have been 
 rather better than 1900/., and the price paid was 1700/., 
 the Comi; held, that the inadequacy was sufficient to 
 entitle the vendor to relief {d) . 
 
 It was held in a modern case, that where goods are sold pric""7 '"'^ 
 to a person in distressed circumstances by a tradesman, bou-rhtto 
 
 ■,, ,, ,, ,., . resell and so 
 
 w^lio knows that they are bought merely "s^ith a Aaew to raise momy 
 
 supported. 
 
 raise money by selling them again, and they are charged 
 at fair and reasonable prices, and the pm'chaser, by way of 
 security for the price, mortgages liis reversionary interests 
 as expectant heir, the Court will not set aside the securi- 
 
 between father (tenant for life) and (z) S. C. ; and see Peacock v. 
 
 son (tenant in tail), see Bellamy v. Evans, 16 Ves. 512. 
 
 Sabine, 2 Ph. 425 ; Lord Aldborough » (a) See Potts v. Curtis, You. 543, 
 
 V. Trye, 7 CI. & Fin. 436 ; Cooke v. (d) Lord Aldborough v. Trye, 7 CI. 
 
 Burtchaell, 2 Dru. & W. 165 ; see & Fin. 436; Hincksman v. Smith, 3 
 
 also, as to family arrangements gene- Russ. see p. 435 ; Headen v. Rosher, 
 
 rally, Farmer v. Farmer, 1 H. L. C. 1 M'CIel. & Y. 89 ; Potts v. Curtis, 
 
 724 ; and Persse v. Persse, 7 CI. & You. 543 ; Wardle v. Carter, 7 Sim. 
 
 Fin. 279 ; Westby v. Westby, 2 Dru. 490 ; see Sewell v. Walker, 12 Jur. 
 
 & W. 502; such arrangements are 1041. 
 
 exempt from the strict rules appli- (c) Shelly v. Nash, 3 Madd. 232; 
 
 cable to cases between ordinary ven- Focc v. Wright, 6 Madd. Ill; Lord 
 
 dors and purchasers : see a case of Aldborough v. Trye, 7 CI. & Fin. 
 
 such an arrangement being set aside, 436. 
 
 Sturge v. Sturge, 14 Jur. 159. {d) Edwards v. Browne, 2 Coll. 
 
 (y) Gowland v. De Faria, 17 Ves. 100. 
 20.
 
 358 
 
 EFFECT OF CONVEYANCE ON RELATIVE 
 
 Chap. XIV. 
 
 When sale 
 fraudulent 
 as against 
 tenant in 
 tail will be 
 set aside at 
 suit of re- 
 mainder- 
 man whom 
 he might 
 have barred. 
 
 Terms on 
 which vend- 
 or is entitled 
 to relief. 
 
 ties (e) . ' In an earlier case^ a bond, given for silks taken 
 up to sell to raise money, was allowed to stand as a 
 security only for the sum really raised (/) ; but the 
 decision turned upon the transaction being a loan at 
 usm'ious interest : the transfer of goods being a shift or 
 cloak for usury [g). 
 
 It would seem that where fraud has been practised on a 
 tenant in tail, and has been carried into effect by barring 
 the entail, and he dies without issue, and without confirm- 
 ing the transaction, the next remainderman may file a bill 
 to set it aside; but not if there were an independent 
 intention to bar the entail, and the fraud applied only 
 to some part of the transaction distinct from that 
 object {h). 
 
 When relief is given, the conveyance wiU stand as 
 a security for the principal sum and simple (but not 
 compound (i)) interest {k) ; and for moneys expended by 
 him in lasting and valuable improvements, and interest (/) ; 
 he will, of coui'se, be charged with what he has actually 
 received, and interest; and, in one case, where he had 
 received from the vendor interest on the purchase-money, 
 such payments were held to have been in reduction of the 
 principal, and he himself was charged with interest upon 
 them (m) ; and it seems doubtfril whether he will not, like 
 a mortgagee, be charged with what without wilful default 
 he might have received {n) : where inadequacy of price is 
 the sole ground for the interference of the Court, he may 
 
 (e) Kinff v. Hamlet, 2 Myl. & K. 
 456 ; 9 Bligh, CIO ; see Sir E. Sag- 
 den's remarks, Sugden's Law of Pro- 
 perty, 65 et seq. 
 
 {/) Barker v. Vansommer, 1 Bro. 
 C. C. 149. 
 
 (g) Per Lord Brougham, C, 2 
 Myl. & K. 485. 
 
 (h) See Bellainy v. Sabine, 2 Pli. 
 425. 
 
 (i) Gowland v. De Faria, 17 Ves. 
 20. 
 
 {k) S. C. 
 
 (l) Murray v. Palmer, 2 Sch. & 
 Lef. 490. 
 
 (m) S. C, ib. 488. 
 
 (k,) See Sug. 327, and the judg- 
 ment in Murray v. Palmer, 2 Sch. & 
 Lef. 489, against such liability ; but 
 see contra the decree, ib. 490.
 
 RIGHTS OF VENDOR AND PURCHASER. 359 
 
 be allowed his costs (o) : but slight additional circum- Chap, xiv. 
 stances wall induce the Court to refuse them [p) . 
 
 Andj of course^ long delay and clear [q) acquiescence on Eight to,^ 
 the part of the vendor, — (and this notwithstanding his ^^^'g'^^^^fi'Jma- 
 poverty,,) — or his advised confirmation of the purchase, *'^°' 
 will bar the right to relief (r) : and we may here remark, 
 that the statement of consideration in the conveyance 
 is not conclusive, but any additional consideration, not in- 
 consistent with the terms of the deed, may be established 
 by parol e\idence {s) . 
 
 (3.) Vendor's rights of pre-emption under Lands Clattses 
 Consolidation Act, 1845. 
 
 By the Lands Clauses Consolidation Act, 1845, the lights of 
 promoters of the undertaking authorized by the special venders' ^''^ 
 Act, are required, within the periods thereby prescribed, QauJes^" * 
 or, if no period be prescribed, within ten years after the tion Act. 
 expiration of the time thereby limited for the completion ^^spe^t^of ^ 
 of the works, to sell such lands as shall not be required for lands. 
 the purposes of the undertaking; and such superfluous 
 lands, unless they be situate in a Town (/), or be lands 
 built upon or used for building purposes, are to be first 
 offered to the person then entitled to the lands, if any, 
 from which the same were originally severed; or, if he 
 
 (o) Bawfree v. Watson, 3 Myl. & (s) Clifford v. Tun-ell, 1 Y. & C. 
 
 K. see p. 341, and earlier cases cited ; C. C. 138 ; affirmed 9 Jur. 633. 
 
 see Sug. 326. (0 The word " Town" has been 
 
 {p) Wood V. Abrey, 3 Madd. see held to mean, the space on which the 
 
 p, 424. dwelling-houses are collected so near 
 
 {q) See Gerrard v. O'Reilly, 3 Dm. each other that they may be said to 
 
 & W. 414. be continuous ; so also an open space 
 
 (r) Vide supra, pp. 25, 26 ; and see occupied as a mere accessory to the 
 
 Knight v. Marjoribanks, 1 1 Beav. convenience of a dwelling - house, 
 
 322 ; Farmer v. Farmer, 1 H. L. C. would seem to come within the term ; 
 
 724 ; Sibbering v. Earl of Balcarres, Elliot v. South Devon Railway Com- 
 
 14 Jur. 753, V. C. K. B. ;;awy, 5 Rail. Ca. 500.
 
 360 EFFECT OF CONVEYANCE ON RELATIVE 
 
 Chap. XIV. refuse^ or for six weeks neglect to signify his wish, to pur- 
 chase the same or cannot be found, then to other adjoin- 
 ino- owners ; and unless a sale be made either to such per- 
 son, or adjoining owners, or some other person, the super- 
 fluous lands remaining unsold at the expiration of such 
 period are to vest in and become the property of the own- 
 ers of the land adjoining thereto, in proportion to the 
 extent of their lands respectively adjoining the same (m) : 
 the right of pre-emption above noticed would seem not to 
 affect a contract entered into with a thii'd party for the 
 sale of superfluous land, if the offer to the parties entitled 
 to pre-emption be made and rejected before convey- 
 ance {v). 
 
 (4.) Vendo7''s remedies^ at Law and in Equity on pur- 
 chaser's covenants. 
 
 We have already seen that covenants are occasionally 
 entered into as well by the purchaser with the vendor, as 
 by the vendor with the purchaser ; and that such cove- 
 nants will, in Equity, bind a purchaser who accepts the 
 benefit of a conveyance, although he do not execute it [w). 
 Purchaser's Covcnauts entered into by purchasers are of three 
 
 covenants, 
 
 iwifipri descriptions ; first, such as relate to interests possessed or 
 acquired by the covenantee in the purchased land, in- 
 dependently of the covenant ; e. g., a covenant to pay a 
 rent-charge issuing out of the land, or to maintain a road 
 over it ; secondly, such as are not connected with any such 
 interests in the pm-chased land, but which restrict or limit 
 its mode of enjoyment by the purchaser and his repre- 
 sentatives ; e. g., a covenant that the land shall not be 
 built upon, or shall be built on only in a paiiicular 
 
 (7«) See sects. 127, 128, and 129. 455, V.C.E. 
 {v) London and Greenwich Rail- (to) Vide supra, pp. 265, 266. 
 
 ivay Company v. Goodchild, 8 Jur. 
 
 classified.
 
 RIGHTS OF VENDOR AND PURCHASER. 361 
 
 manner ; and thirdly, covenants relating to the production Chap, xiv. 
 and custody of the title deeds [x] . 
 
 As respects the first class of covenants, it appears to be g^^^t^'chfss 
 not perfectly clear [y) whether the vendor or his repre- iau(L * 
 sentatives could enforce them as against an alienee of the 
 land, even although the alienee have the estate of the 
 original covenantor ; and where this is not the case, — as 
 where in a conveyance to A. in fee, to such uses as B. shall 
 appoint, and in default of appointment to the use of B. in 
 fee, B. covenants with the vendor for payment of rent, and 
 then conveys to C. in exercise of the power of appoint- 
 ment, — no action will lie against the alienee upon the 
 covenant [z) . 
 
 As respects covenants of the second class, it appears to second class 
 
 ^ -^ -^ do not, fcm- 
 
 be extremely doubtful [a) whether they could, at Law, be ^^l'^^^^^^ 
 enforced agamst an ahenee, although the assigns be ex- agJn^t^iii- 
 pressly named in the covenant {b) : it has even been notice, 
 doubted (c) whether an ahenee Avith notice can be affected 
 in Equity by a covenant which would not bind liim at 
 Law j but the contrary doctrine seems to be warranted by 
 the earlier authorities, and has been acted upon in several 
 recent cases {d). 
 
 {x) See Third Report of Real a covenant by a lessor to build a 
 
 Property Commissioners. house on the demised land, or to 
 
 (y) Ibid. p. 53 ; but see Sug. indemnify the lessee against specified 
 
 730, where it is held that the action liabilities, will not, at Law, bind the 
 
 will lie. assignees of the reversion, if not 
 
 {z) Roach V. WadJiam, 6 East, expressly named : Doughty v. Bow- 
 289 ; and see Sug. 731, and man, (in error,) Exch. Ch., affirm- 
 further on the subject of privity of ing the judgment of the Q. B., 11 
 estate, infra, p. 364. Q. B. 444, nor, semble, even if 
 
 (a) See Third Report of Real named ; see judgment. 
 
 Prop. Com. ; 2 Myl. & K. 545 ; and (e) Keppell v. Bailey, 2 Myl. & 
 
 Ex parte Ralph, 1 De G. 219. K. 517. 
 
 {b) Sed aliter in the case of a {d) Whatman v, Gibson, 9 Sim. 
 
 demise; Spencer's case, 5 Rep. 16; 196; Mann v. Stephens, 15 Sim. 
 
 it has been recently decided that 377, affirmed on appeal, 379 ; Tulk
 
 362 
 
 EFFECT OF CONVEYANCE ON RELATIVE 
 
 Chap. XIV. 
 
 But not in 
 
 all cases. 
 
 Third class 
 —remedies 
 upon. 
 
 Covenantor 
 and his re- 
 presenta- 
 tives liable 
 on cove- 
 nants in 
 gross. 
 
 Assignee 
 
 The equitable remedy is, of course, an injunction to 
 restrain a breach of the covenant ; and this will only be 
 granted against an alienee who bought with notice of the 
 covenant ; nor will it be granted where no real damage is 
 likely to be sustained, or the circumstances which were 
 contemplated when it was entered into no longer exist : 
 for instance, the Court has refused to enforce specific per- 
 formance of a covenant against the erection of buildings, 
 where the plaintiff had himself erected buildings whose 
 effect was to destroy those very advantages which it was 
 the object of the covenant to maintain (e) . 
 
 As to covenants of the third description, viz., relating to 
 title deeds, the right to enforce them at Law against an 
 alienee seems probably (as with covenants of the first 
 kind) to depend upon his having the estate of the original 
 covenantor (/) ; but an ahenee who bought with notice of 
 the covenant would be bound in Equity to produce the 
 deeds {g) ; and it seems probable that the benefit of such 
 a covenant by a purchaser would at Law run with the 
 land retained by the vendor {h) . 
 
 And the covenantor and his representatives may be sued 
 upon covenants of any of the above kinds, although they 
 may not bind the alienees of the land (i) . 
 
 And upon a covenant simply collateral to the land — 
 
 V. Moxhay, 11 Beav. 571 ; 2 Ph. 
 774 ; and see Hemingway v. Fer- 
 nandes, 13 Sim. 228 ; Bristow v. 
 Wood, 1 Coll. 480 ; see also Schrei- 
 ber V. Creed, 10 Sim. 9 ; and see 
 Sug. 742. 
 
 (e) Buke of Bedford v. Trustees 
 of British Museum, 2 Myl. & K. 
 552. 
 
 (f) As to which, vide infra, p. 
 364, and see Sug. 481 and 483, and 
 the remarks on Barclay v. Raine, 
 
 1 Sim. & Stu. 449 ; and see 9 Jarm. 
 Conv. 98, 356. 
 
 {g) See Sug. 474 ; and as to the 
 general equitable right to production, 
 independently of any covenant, vide 
 supra, p. 202, et seq. 
 
 (h) See Mr. Jarman's note, 9 
 Jarm. Conv. by S. 356 et seq. ; and 
 Third Report of Real Prop. Com. 
 52 ; but see Sug. 713. 
 
 («') See and consider Stokes v. 
 Russell, 3 Durn. & E. 678.
 
 RIGHTS OF VENDOR AND PURCHASER. 363 
 
 e.g., to pay a sum of money — the assignee is not liable ciiap. xiv. 
 
 ,^, , , T /7\ not liable on 
 
 although expressly named \k) . covenant 
 
 , simply col- 
 
 Under the recent Bankruptcy Act [l), when the as- lateral, 
 signees of any bankrupt, who is entitled to land, under a covenante*'e. 
 
 . . r ^ '^^^ affected 
 
 conveyance to him in fee, or under an agreement tor such by bank- 
 a conveyance, subject to any perpetual yearly rent thereby 
 reserved, shall elect to take the land or the benefit of the 
 conveyance or agreement, the bankrupt is not to be liable 
 to pay any rent accruing after the issuing of the fiat or 
 filing of the petition, or to be sued in respect of any sub- 
 sequent non-observance or non-performance of the con- 
 ditions, covenants and agreements in the conveyance or 
 agreement ; and if the assignees shall decline to take the 
 land or the benefit of the conveyance or agreement he is 
 not to be liable if, within fourteen days after notice of their 
 having so declined, he shall deliver up the conveyance or 
 agreement to the person then entitled to the rent or 
 having so agreed to convey ; and if the assignees do not 
 elect on request, any person entitled to the rent or having 
 so conveyed or agreed to convey, or any person claiming 
 under him, may apply to the Court ; and the Court may 
 order them to elect, and deliver up such conveyance or 
 agreement, in case they shall decline the same, and the 
 possession of the premises ; or may make such other order 
 therein as it shall think fit. 
 
 (5.) Purchaser's remedies on vendor's covenants. 
 
 With some few special exceptions (m), a purchaser, ^JJf^^S'^f®'"'* 
 
 after the conveyance is executed by all necessary parties, deftcts^after 
 
 has no remedy at Law or in Equity in respect of any depen^^oT 
 
 defects either in the title to, or quantity, or quality of, covenants. 
 
 (k) Spencer's case, 5 Rep. 16. (l) 12 & 13 Vict. c. 106, see s. 145, 
 
 (w) Infra.
 
 3G4 
 
 EFFECT OF CONVEYANCE ON RELATIVE 
 
 Chap. XIV. 
 
 His reme- 
 dies under 
 covenants 
 for title, 
 
 are only 
 against 
 vendor and 
 his represen- 
 tatives. 
 
 Benefit of 
 covenants 
 for title 
 runs with 
 seisin, 
 
 to cestui que 
 use and his 
 alieuees. 
 
 So cove- 
 nants with 
 
 cestui que 
 use will run 
 with his 
 estate. 
 
 the estate, wMch are not covered by ttie vendor's cove- 
 nants. 
 
 And to consider first the legal rights of the purchaser 
 and his representatives under the covenants for title. 
 
 Such covenants, it may be observed, bind only the co- 
 venantor and his representatives ; and not alienees as such ; 
 it is therefore only necessary to consider who are entitled 
 to the benefit of them. 
 
 Such covenants may be enforced at Law, not only by 
 the covenantee and his representatives, but by alienees who 
 claim under the seisin vested in the original covenantee, 
 or, as it is expressed, in privity of estate {n) ; for instance, 
 if A. convey land to B. and his heirs to certain specified 
 uses, or to such uses as C. shall appoint, and covenant for 
 title with B. and his heirs, the right to sue upon the co- 
 venants will go with the seisin to the persons from time to 
 time claiming under the uses hmited by the conveyance, 
 or under any appointment by C. under his power (o) ; so, 
 if the conveyance were to B. and his heirs, to such uses as 
 C. shall appoint, and in default of appointment to the use 
 of C. in fee, and A. covenant with C. and his heirs, and C. 
 (instead of exercising his power of appointment) convey 
 the estate hmited to him in default of appointment, his 
 aUenee, it appears, can sue upon A.'s covenants {p) ; so, if 
 C, in exercise of his power, appoint the land to the use of 
 D., and covenant with him and his heirs for title, C.'s co- 
 venants can be sued upon by the alienees of D. : and in 
 the two former cases, the right to sue upon A.'s covenants, 
 and, in the last case the right to sue upon C.'s covenants, 
 will go with the land to all successive owners {g) : and the 
 
 (n) 3 Burn. & E. 402. 
 (o) See Sug. 709. 
 (jo) See Sug. 710, where the 
 point is held to be free from doubt ; 
 
 but see Third Report of Real Prop. 
 Com. 52. 
 
 (y) See Sug. 709 et seg.
 
 BIGHTS OF VENDOR AND PURCHASER. 365 
 
 heir or assignee although not named in the covenants for Chap, xiv. 
 title may nevertheless sue thereupon (r) . 
 
 But, in the case last supposed, D.'s alienee, although he be"su*ed""°'^ 
 might sue upon C.'s covenant, could not sue upon A.'s; as notdaimfng 
 he would not take the estate of A/s covenantee {s) ; so, if l^tate!'^^ "^^ 
 C, instead of appointing to the use of D., were to appoint 
 to such uses as D. shoidd appoint, D.'s appointee could 
 not sue upon C.'s covenant; for he would not take the 
 estate of C.'s covenantee. 
 
 Sir E. Suqden intimates a sort of doubt (i) whether the '^ether 
 
 '^ ^ ' there niu.-t 
 
 doctrine of privity of estate may not apply as well to co- es^tite^as^ "^ 
 venantor as to covenantee ; that is, whether, in order that TOveuTntor 
 the alienee may sue, he must not only claim the estate of nantee. 
 the covenantee, but also claim it under a conveyance or 
 appointment by the covenantor; which, in a large pro- 
 portion of conveyancing transactions, is not the case : the 
 Real Property Commissioners consider that the doubt is 
 set at rest by authority (u) ; and this conclusion, although 
 not acquiesced in by Sir E. Sugden, is usually (it is be- 
 lieved) acted on in practice. 
 
 And the benefits of the covenants will go with the i^u°Jwith^^ 
 estate of the original covenantee, although leasehold [w), copyhow °^ 
 or copyhold {x) ; nor is it clearly essential that the estate i>rivity at 
 should be actually vested in the covenantee at the date of of cotenaift 
 the covenant; it would probably be sufficient if the co- essential. 
 venants were entered into preparatory to the estate being 
 so vested, and as part of the same transaction [y] . 
 
 Where land is divided, the benefit of attendant cove- Benefit of 
 
 (r) See 2 Bac. Abr. 349. 436, and Lewis v. Campbell, 8 
 
 (s) Roach V. Wadham, 6 East, Taunt. 715. 
 289. {oc) See Riddell v. Riddell, 7 Sim. 
 
 (0 Sug. 713. 529. 
 
 (m) See Third Report, p. 52, (y) Ibid. 534, 535, and Sug. 
 
 and 9 Jarm. Conv. by S. 356; 711: the doctrine however seems 
 
 Smith's Leading Cases, 3rd ed. open to remark, and perhaps can be 
 
 30. scarcely relied on in practice ; see 3 
 
 (?/•) Noke V. Awder, Cro. Eliz. Dav. Conv. 306.
 
 366 
 
 EFFECT OF CONVEYANCE ON RELATIVE 
 
 Chap. XIV. 
 
 covenants 
 apportioned 
 with land 
 and estate. 
 
 Will run 
 with incor- 
 poreal here- 
 ditaments. 
 
 Remedy on 
 covenants in 
 conveyance 
 of equitable 
 estate. 
 
 Assignee 
 may sue in 
 name of 
 covenantee. 
 
 As to breach 
 of covenants 
 for title. 
 
 Statute of 
 Limitations 
 runs, from 
 what time. 
 
 nants will, it seems, go to each alienee in respect of the 
 portion of land taken by him (.:r) ; so, where the estate is 
 divided, as where it becomes vested in A. for life, remainder 
 to B. in fee, and the breach of covenant affects the entire 
 inheritance, the owner of each portion of the inheritance 
 can sue for damages proportioned to the extent of his 
 estate (a). 
 
 It has been decided, that covenants will run with tithes 
 the same as with land [b) ; and the better opinion seems to 
 be, that, in this respect, there is no distinction between 
 tithes and other incorporeal hereditaments (c). 
 
 Where the estate is merely equitable, there can be no 
 assignee at Law, and the covenants cannot be enforced 
 at Law by an equitable assignee ; so, if the conveyance, 
 although intended so to do, do not in fact pass any legal 
 estate, it appears that the assignee cannot sue [d] ; but in 
 either case, the assignee, although unable to sue in his own 
 name, would be entitled to sue in the name of the original 
 covenantee (e). 
 
 In considering what amounts to a breach of the several 
 usual covenants for title, it may be premised, that, as re- 
 spects the covenants for seisin in fee, (or, in the case of a 
 lease, that the lease is valid,) and for right to convey, sui'- 
 render, or assign; and also the usual trustee's covenants 
 against incumbrances ; the same, if broken at all, are ne- 
 cessaiily broken immediately upon the execution of the 
 assurance which contains them (/) ; so that the Statute of 
 Limitations immediately begins to run in favour of the 
 
 (z) See Sag. 743 ; and 9 Jarm, 
 Conv. by S. 366 ; and Twynam v. 
 Pickard, 2 B. & Aid. 105. 
 
 (a) See 9 Jarm. Conv. by S. 404 ; 
 Noble v. Cass, 2 Sim. 343. 
 
 {b) Bally v. Weill, 3 Wils. 25. 
 
 (c) See 9 Jarm. Conv. by S. 
 3C0 ; and Sug. 724. 
 
 {d) 9 Jarm. Conv. by S. 366. 
 
 (e) See Riddell v. Riddell, 7 Sim. 
 529. 
 
 (y) See Salman v. Bradshaw, 
 Cro. Jac. 304 : as to whether reci- 
 tals of the vendor's title in the con- 
 veyance can estop the purchaser, 
 vide supra, p. 233.
 
 RIGHTS OF VENDOR AND PURCHASER. 367 
 
 covenantor: whereas the usual covenants that the pur- Chap, xi v. 
 chaser shall enjoy the estate, free from incumbrances, and 
 for further assurance, can only be broken by subsequent 
 events -, and the Statute does not begin to run until there 
 is an actual breach, and then only in respect of that par- 
 ticular breach {ff) . 
 
 A covenant that the vendor is seised in fee of an estate ^^f/sS*^ 
 conveyed as freehold, is, of course, broken, if the estate be convey, iiow 
 copyhold {h) ; and a covenant that the vendor and another 
 conveying party have good right to convey, is broken, if 
 such other party, although having the estate, be under any 
 personal incapacity to transfer it {i) . 
 
 The purchaser may, if he please, bring an action im- n^"y ^uf 
 mediately on discovering the defect in title, without wait- tion.'^^^^**' 
 ing to be evicted or disturbed {k) . 
 
 The common covenant for quiet enjoyment is broken by g'/^JJfgf 
 a suit in Equity, although equitable disturbances be not and^I^r* 
 
 .„,,^ ,1 1 ,• c •ij.x' from incum- 
 
 specified (/) ; or by the obstruction ot a necessary right ot brances. 
 way {m), or a verbal notice to tenants to pay rent to the 
 adverse claimant {n) ; the covenant, if general, is not broken 
 by a wrongful claim or eviction (o), unless it be the act 
 of the covenantor himself or his heirs or executors (if 
 named) {p), in which case the wrongful act, if intended as 
 a claim to title {q), is a breach even of a covenant against 
 laAvfal disturbances (r) ; and a covenant in terms extending 
 
 {g) See 9 Jarm. Conv. by S. (m) Andreu-s v. Paradise, 8 Mod. 
 
 402. 318. 
 
 {h) Gray v. Briscoe, Noy, 142 : (w) T. Raym. 371. 
 
 the word "not" in the report is (o) See Kirby v. Hamaker, Cro. 
 
 evidently a clerical error; see con- Jan. 315 ; Dudley \. Follioit, 3 Dam. 
 
 text. & E. 584. 
 
 (t) Nash V. Aston, Sir T. Jones, {p) See 9 Jarm. Conv. by S. 376. 
 
 195, (g) See Penn v. Glover, Cro. 
 
 (k) Sug. 764. Eliz. 421 ; Morgan v. Hunt, 2 Vent. 
 
 (0 Htmt V. Danvers, T. Raym. 213 ; Lloyd v. Tomkies, 1 D. & E. 
 
 370; and see 2 Ventr. 214; Sug. 671. 
 74f,_ (r) Lloyd v. Tomkies, ubi supra.
 
 368 
 
 EFFECT OF CONVEYANCE ON RELATIVE 
 
 Meaning of 
 particular 
 expressions 
 — " acts," 
 " means," 
 
 Chap. XIV. to pretended claims {s), or a general covenant against dis- 
 turbances by specified indi^dduals {t), or by claimants in 
 general (with a specified exception) {u), is broken by a 
 wrongful disturbance : it was held in one case {lo), that 
 covenants for seisin in fee and good right to convey free 
 from incumbrances, were not broken when parties were^ at 
 the date of the conveyance, in actual possession of part of 
 the estate under leases made by a stranger under a mis- 
 take; but the decision seems to be of very doubtful au- 
 thority {x) . 
 
 The word "acts" means something done by the person 
 against whose acts the covenant is made ; and the word 
 "means" has a similar meaning, \4z., something proceed- 
 ing from the person covenanting (?/) or the person against 
 whose acts, &c., the covenant is made ; where A. procured 
 a fine to be levied to himself and his wife and his own 
 heirs, an entry by the widow was held to be a breach 
 of his covenant with a lessee for quiet enjoyment against 
 himself (A.) and all persons claiming by his "means" (z) ; 
 so, a covenant for quiet enjoyment against all persons 
 claiming " under " the covenantor, is broken by an entry 
 by his widow (a) , or by a person claiming under the exer- 
 cise by the covenantor of a power of appointment, although 
 the estate was never vested in the covenantor [b) ; but a 
 covenant for quiet enjoyment against persons claiming 
 " by, from, or under" him, seems not to extend to persons 
 claiming by title paramount in respect of his mere de- 
 fault (c), although it may be otherwise where the para- 
 
 " claiming 
 under;" 
 
 (s) Chaplain v. Southgate, 10 Mod. 
 384. 
 
 {t) Foster d. Wilson v. Mapes, 
 Cro. Eliz. 212. 
 
 (m) Woodroff V. Greenwood, Cro. 
 Eliz. 518. 
 
 (mi) Jerritt v. Weare, 3 Pri. 575. 
 
 \x) See Sug. 747. 
 
 iy) Per Cur. in Spencer v. Mar- 
 riott, 1 B. & C. 459. 
 
 (z) Butler v. Sivinerton, Cro. Jac. 
 657. 
 
 (a) Anon. Godb. 333. 
 
 (J)) Hurd V. Fletcher, Doug. 43. 
 
 (e) Stanley \. Hayes, 2 G. & Dav. 
 4 1 1 ; a case of distress for land tax
 
 RIGHTS OF VENDOR AND PURCHASER. 369 
 
 mount title is brought into operation by bis '' acts" [d) : a cha p. xiv. 
 covenant for quiet enjoyment against persons claiming "by 
 or through his default/' would, it appears, be broken by an "default;" 
 entry by parties whose title he had it in his own power to 
 bar ; — e. g., if he were tenant in tail in possession, and the 
 entry were made by remaindermen [e] ; — and such a cove- 
 nant has been held to extend to claims in respect of 
 arrears of quit rent, although they accrued due before 
 he acquired the estate (/) ; the decision, however, is dis- 
 approved of by Sir E. Sugden {g) ; but the omission by 
 the covenantor to acquire from other parties a valid title, 
 although he knew the defect, is not a " neglect or default" defalit'i""' 
 within the meaning of such a covenant (h) . 
 
 A covenant that the covenantor has not knowingly or 
 wilHngly "permitted or suffered" any act, &c., does not " Pgu^jrld*^. . 
 extend to an act by others which he was a party to 
 but had no power to prevent; e.g., a mortgage in which 
 he (as trustee to bar dower) has concurred (i) : but, of 
 course, in such a case, the covenant would have been 
 broken had it proceeded in the usual form " or been party "party or 
 
 ^ X •/ privy to. 
 
 or privy to" {k). 
 
 It seems doubtfal whether covenants for title would be ^a^„W°^^ 
 held to extend to a defect known to the purchaser at the known de- 
 time of their being entered into (/) : and it has been sug- 
 
 which the covenantor ought to have Ves. J. 544. 
 
 paid ; but see Ireland v. Bircham, 2 (/") See Hoiues v. Brushfield, 3 
 
 Sc. 207. East, 491. 
 
 (rf) See a note to 9 Jarm. Conv. {g) Sag. 750. 
 
 by S. 380, where the learned {h) See Woodhouse v. Jenkins, 9 
 
 editor, coming to a different conclu- Bing. 431. 
 
 sion, contends that for this purpose (i) Hobson v. Middleton, 6 B. & 
 
 acts and defaults are identical, as C. 295. 
 to which, query ; and see Sug. 751, (Xr) See 6 B. & C. 303. 
 
 where the decision in Stanley v. {I) See Butler's note to Co. Litt. 
 
 Hayes is approved of. 384. a. 
 
 (e) Lady Cavan v. Pulfeney, 2 
 
 B B
 
 370 
 
 EFFECT OF CONVEYANCE ON RELATIVE 
 
 Chap. XIV. gested (m) that such a defect should be particularly speci- 
 fied^ and that, unless it be apparent on the face of the 
 conveyance, the covenant should be entered into by a 
 separate instrument ; if, however, the defect be not so 
 apparent, it is conceived that a memorandum, signed by 
 the covenantor and admitting that the defect was knoA\Ti 
 and intended to be pro\Tided for by the covenants, would 
 be sufficient : for as the covenantor seeking to escape the 
 general terms of the covenant must then by e^idence 
 dehors the deed show that the covenantee had notice of 
 the defect, so the covenantee- might similarly show that 
 the defect though known was not intended to be ex- 
 cepted {n) : but the defect, if apparent on the conveyance, 
 should be specified in the covenants. 
 
 The ordinary covenant to do all " reasonable" acts for 
 further assurance, or all such acts, &c. as the purchaser 
 shall reasonably require, is not broken by a refusal to do 
 an unnecessary act (o) ; or by a refusal occasioned by the 
 act of God; e. g., the insanity {p), death, or severe illness 
 of the party whose further assurance is required (</) ; or by 
 a refusal to give a bond for quiet enjoyment (r) ; or, ac- 
 cording to the general opinion, a covenant for production 
 of title deeds [s) ; or, perhaps, to enter into fi'esh covenants 
 for title {t) . 
 
 But such covenant will be broken by a refusal to convey 
 
 Covenant 
 for further 
 assurance — 
 what acts 
 not com- 
 prised in. 
 
 What are 
 
 (m) Ihid. ; Sug. 702 ; and 9 
 Jarm. by S. 381. 
 
 (n) See 1 Sim. & Stu. 445. 
 
 (o) Warn V. Bickford, 9 Pri. 43. 
 
 (^;) Pet and Cally's ease, 1 Leon. 
 304. 
 
 (g) See Nasfi v. Jston, Sir T. 
 Jones, R. 19.5 ; and Anon. Moore, 
 124, where sickness was liehl a valid 
 reason for a married woman not 
 levying a fine, and the Court agreed 
 
 that the case would be the same, "si 
 la feme soil grosement enseint sic ut 
 ne ])oit traveller.'^ 
 
 (r) Sfayiiroyde v. Loeock, Cro. 
 Jac. 115. 
 
 (.s) See Hallett v. Middleton, 1 
 Russ. 243; Sug. 461. 
 
 (f) Coles V. Kinder, Cro. Jac. 
 571, but tlie point is not clear; see 
 Sug. 769 ; and 9 Jarm. Conv. by 
 S. 401, n.
 
 RIGHTS OF VENDOR AND PURCHASER. 371 
 
 any interest acquired in the estate, even by purchase for Chap, xiv. 
 valuable consideration (m) ; or to execute a duplicate of the ?°"^p"^®'^ 
 conveyance, if the original has been burnt {v), or [semhle) 
 handed over to a sub-purchaser of part of the estate {w) ; 
 but, m such cases the conveyance should bear an indorse- 
 ment expressing that it is a duphcate [x) . 
 
 The party called upon to execute the further assurance Time aiiow- 
 
 ^ '' ... ed to party 
 
 may claim a reasonable time in which to procm-e pro- gxecut^ ^'^ 
 fessional assistance {y) ; and, according to modern prac- gura^fce^*" 
 tice, which the Comets would doubtless recognize, a draft 
 of the proposed assurance is furnished to him, that he may 
 submit it to his legal advisers {z) . 
 
 A vendor^ s covenants for title are, as we have seen, ft,7titie!iiow 
 generally hmited to the acts of himself, his ancestors and ""estncted. 
 testators, (if he have taken the estate otherwise than by 
 purchase,) and persons claiming by, through, under or 
 in trust for him or them respectively; it, however, fre- 
 quently happens either that some of the covenants are 
 general and others limited, or that the limited covenants 
 are not consistent in their restrictions; in such cases 
 questions arise as to how far the restrictions in one cove- 
 nant affect another. 
 
 A covenant, general in terms will be so construed, SSiy^ 
 unless a contrary intention clearly appear (a) : this, how- f^tenUon. 
 ever, may be evidenced by any part of the instrument {b) . 
 
 Before considering the effect of restrictive words in the g'/tftkSow 
 covenants themselves, we may remark, that the five usual classified. 
 covenants may be divided into three classes, having dis- 
 tinct objects ; \iz., first, the covenants for seisin and right 
 to convey, which are strictly covenants for title ; secondly, 
 
 (?/) Taj/hr \. Debar, 1 Ch. Ca. (x) Ibid. 
 
 274. (y) Bennet's case, Cro. Eliz. 9. 
 
 {v) Sug. 460. [z) See Sug. 769. 
 
 (w) Napper v. Lord AlUngton, 1 (a) See Sug. 755. 
 
 Eq. Ca. Ab. 166. (6) See 2 Bos. & P. 22, 25. 
 
 B B 2
 
 372 
 
 EFFECT OF CONVEYANCE ON RELATIVE 
 
 Chap. XIV. the covenants for quiet enjoyment^ and that free from 
 incumbrances, (not a covenant that the estate is free from 
 incumbrances, but merely that there shall be no dis- 
 turbance by incumbrancers) ; and thirdly, the covenant 
 for further assurance : and that the first class may be 
 broken without there being any breach of the second 
 or third ; for the pui'chaser, although not acquiring a 
 marketable title, may be undisturbed in the possession, 
 and may never require any further assurance, or may 
 obtain what he does require : also that, if either of the 
 second class be broken (unless it be so worded as to 
 extend to wrongful distui'bances), there must have been a 
 breach of the first class : and lastly, that the covenant for 
 further assurance may be broken without there being any 
 breach of either of the other classes. 
 
 Upon this subject the foui' follo^^ing propositions are 
 laid down by Sir E. Sugden ; \Az., first, that " where re- 
 strictive words are inserted in the first of several covenants 
 ha^dng the same object, they will be construed as extend- 
 ing to all the covenants, although they are distinct " (c) ; 
 secondly, that " where the first covenant is general, a sub- 
 sequent limited covenant will not restrain the generality 
 of the preceding covenant, unless an express intention 
 to do so appear, or the covenants be inconsistent" [d) ; 
 thirdly, that " as on the one hand a subsequent limited 
 covenant does not restrain a preceding general covenant, 
 so, on the other hand, a preceding general covenant will 
 not enlarge a subsequent limited covenant " (e) ; and 
 fourthly, that " where the covenants are of divers natures, 
 and concern difi'erent things, restrictive words added to 
 one shall not control the generality of the others " (/) . 
 
 Of the above propositions, the first, if read in con- 
 
 Restrictive 
 
 ;' words, 
 effect of: 
 Sir E. Sug- 
 den's propo 
 sitions re- 
 specting ; 
 
 how far 
 
 (c) Sug. 756. 
 
 (d) lb. 759. 
 
 (e) lb. 701. 
 
 {/) Sug. 762 ; and see Young v. 
 Raincock, 7 C. B. 310 ; Crossfield v. 
 Morrison, 13 Jur. 565.
 
 RIGHTS OP VENDOll AND PURCHASER. 373 
 
 nection with the above classification of tlie covenants and Chap, xiv. 
 of their separate objects^ seems to be warranted by the abTJ!*'^'"" 
 authorities {g) : the second proposition^ (which together^ 
 or rather as connected^ with the firsts is disputed by the 
 learned Editor of Mr. Jarman's work on conveyancing) {h), 
 is^ perhaps_, hardly accurate ; for, although a prior general 
 covenant^ \n\\ not, it appears, be restrained by a subse- 
 quent limited covenant having a different object (i), yet 
 where two covenants relate to the same object, restrictive 
 words in the second may, it seems_, control the generality 
 of the first (k) : the thii'd and fourth propositions seem to 
 be unimpeachable. 
 
 And, of course, restrictive words occurring in one cove- Grammati- 
 
 ' ' " cal const ruo- 
 
 nant may extend to another, if the grammatical con- ra^ny^drter-' 
 nection of the two require, and no inconsistency would necdon*of 
 result from, such a construction (/) : " and the Court will 
 endeavour to ascertain the intention of the parties from an 
 attentive consideration of the whole deed, or construe the 
 covenants either as independent or as restrictive of each 
 other, accordmg to such apparent intention ^^ (m) . 
 
 Upon the death of a covenantee, or other person whether 
 
 ^ ' r real or per- 
 
 entitled to the benefit of covenants for title which run gentlthe'of 
 with the land, and have been broken in his Hfetime, the may"uefor 
 right of action, so far as any actual damage has been 
 
 {()) See Nervin v. Munns, 3 Lev. & P. 565 ; Saward v. Anstey, 10 J. 
 
 46 ; Bi'icninff v. Wright, 2 Bos. & B. Moo. 55 ; see also Martyn v. 
 
 P. 13; Foord v. Wilson, 2 J. B. M'-Namara, 4 Dru. & W. 411, where 
 
 Moore, 592; as controlled hy How- Sir E. Sugden, C, appears to have 
 
 ell V. Richards, 11 East, 633 ; considered that a general covenant 
 
 Stannard v. Forbes, 6 Ad. & E. 572. with A. might be cut down by re- 
 
 {h) Vol. ix. p. 383. strictive words in a covenant entered 
 
 (i) Barton v. Fitzgerald, 15 East, into upon the same subject-matter 
 
 530 ; Gainsford v. Griffith, 1 Saund. with B. upon the same instrument. 
 
 58 i. ; Smith V. Compton, 3 B. Si, Ad. (I) Broughton v. Conway, Dy. 
 
 189. 240 ; Peles v. Jervies, Dy. 240, n. ; 
 
 {k) See Nind v. Marshall, 3 J. B. and see 6 Ad. & E. 587 ; Rich v. 
 
 Moore, 703, 717; but not neces- /??'cA, Cro. Eliz. 43. 
 
 sarily, see Hesse v. Stevenson, 3 Bos. (m) 1 Saund. R. n. p. 60.
 
 374 
 
 EFFECT OF CONVEYANCE ON RELATIVE 
 
 Chap. XIV. 
 
 Customary 
 heir may sue 
 before 
 admittance, 
 
 semble. 
 
 Damages, 
 what 
 
 amount of 
 recoverable 
 where no 
 eviction. 
 
 Uhat 
 
 sustained by him, belongs to his executors or adminis- 
 trators {n) ; but, except to the extent of such actual 
 daimage, the right to sue descends with the land, if free- 
 hold or copyhold, to the heir or devisee (o) ; or, if lease- 
 hold, to the executors or administrators ; or, (if specifically 
 bequeathed), to the legatee, (after their assent to the 
 bequest) . 
 
 And the customary heir of a copyholder might, it is 
 conceived, sue upon the covenants before admittance; 
 '' being a complete tenant against all persons but the 
 Lord" (^j). 
 
 Where the title is defective, and an action is brought 
 upon the covenants before eviction, there seems to be no 
 general rule by which the amount of damages should be 
 determined ; where the purchaser has acquired an in- 
 defeasible estate, but of a less extent than that which he 
 contracted for, the amomit, (if he choose to retain the 
 estate,) would seem to be, the difference between the 
 estimated values of the two estates ; as if, for instance, the 
 land prove to be copyhold instead of freehold {q) : Sir E. 
 Sugden seems to consider (r) that where the title is de- 
 fective within the covenant, the pm-chaser, before eviction, 
 may offer to re-convey the estate and claim the entire pur- 
 chase-money ; but no authority is cited for this proposi- 
 tion : at any rate, if an action were brought before evic- 
 tion, — unaccompanied by an oflFer to re-convey, — it seems 
 that the entire value could not be recovered ; unless, per- 
 haps, the alleged breach consisted in a refusal by the de- 
 fendant to perfect the title [s). 
 
 Where there has been actual eAdction, the purchaser 
 
 (w) Lucy V. Levington, 2 Lev, 26. 
 
 (o) Kingdon v. Nottle, 1 Mau. & 
 S. 355 ; King v. Jones, 5 Taunt. 
 418. 
 
 {p) Scriv. on Cop. 290. 
 
 {q) Gray v. Briscoe, Noy, 1-12; 
 see JJ'ace v. Bickcrton, 19 L. J. 
 254, Ch. 
 
 (r) Sug. 765. 
 
 {s) See 5 Taunt. 428.
 
 RIGHTS OF VENDOR AND PURCHASER. 375 
 
 may recover interest^ under tlie name of damages^ for the Chap, xiv. 
 time dm'ing wliicli lie has been out of possession (/) : upon recovenibie 
 the same principle, he would be entitled to interest upon is eviction. 
 any charge on the estate which he had been compelled to 
 satisfy : it seems, however, to be doubtful whether he could 
 recover it for such period as he had, without reasonable 
 excuse, neglected to sue upon the covenant (v). So if he, Moneyspaid 
 
 ■' o 1 V y ^ by way ot 
 
 without communicating with the vendor, compromise an an" costs''*^' 
 adverse claim or suit, he may recover the amount paid by coverabie. 
 him, and his costs of suit as between attorney and client, 
 subject only to the right of the vendor to show, either that 
 the claim was wholly or in part unfounded, or that better 
 terms might have been procured (tv) : and it would appear 
 that, if the vendor, upon notice given to him of a suit 
 within the terms of his covenant for quiet enjoyment, 
 refuse to defend it, he could not, as against the purchaser, 
 dispute the validity of the claim (of) : it does not, however, 
 appear, that the latter could safely defend an action with- 
 out giving notice to the vendor or the party liable upon his 
 covenants (y), and obtaining his directions, if the defence 
 is apparently hopeless {z). It seems doubtful Avhether, in ^"p/nj'^din 
 any case, the purchaser could recover the expenses of meiTt^y^ 
 improvements, although stated as special damages in his 
 declaration («) ; but there may, perhaps, be a difference 
 between improvements consisting in additions to the pro- 
 perty, — e. g., expensive building erected upon the land, — 
 and mere improvements of the land itself {b) . 
 
 A certificate in bankruptcy has been held to be no Bankruptcy 
 
 (t) King v. Jones, 5 Taunt. 418; Peaks, 7 Taunt. 153. 
 see 422. {z) See Gillett -v.Rippon, 1 Mood. 
 
 {v) See Anderton and another v. & M. 406; Short v. Kalloway, 11 
 
 Arroicsmith, 2 P. & D. 408. Ad. & E. 28. 
 
 (id) Smith V. Compton, 3 B. & (a) Lewis v. Campbell, 3 J. B. 
 
 Ad. 189, and 407. Moore, 35. 
 
 {x) See Duffield v. Scott, 3 D. & {b) See 3 J. B. Moore, 52, 54, 
 
 E. 377. 57. 
 
 (y) See 3 B. & Ad. 408 ; Lewis v.
 
 376 
 
 EFFECT OF CONVEYANCE ON RELATIVE 
 
 Chap. XIV. 
 
 and certifi- 
 cate were no 
 defence to 
 action. 
 
 Formerly 
 no action of 
 covenant, 
 against 
 devisee. 
 
 Alteration 
 effected by 
 1 Will. IV. 
 c. 47. 
 
 Damages for 
 breach of 
 covenant 
 when claim- 
 able as debt 
 in adminis- 
 tration suit. 
 
 defence to an action for breach of covenants for title 
 happening before the bankruptcy, the demand not being a 
 liquidated debt (c) . 
 
 If the covenantor died before the 16th July, 1830, no 
 action for a breach of covenants for title would lie against 
 his devisee {d) ; whether the breach occurred before (e) or 
 after the decease ; but if the covenant had been for pay- 
 ment of a sum by way of liquidated damages, and " heirs^' 
 were named in the covenant, the devisee would have been 
 liable, jointly with the heir, in respect of a breach occur- 
 ring in the lifetime of the covenantor (/) ; although, if 
 there were no heir no action would lie against the dcAdsee 
 alone {g) ; the heir, if named in the covenant, is liable to 
 the amount of descended assets, whether the breach occur 
 before or after the death of the covenantor {h) . 
 
 And under the 1 Will. IV. c. 47 {k), devisees are, to the 
 extent of the devised assets, rendered liable to be sued 
 upon the covenants of then* testators, jointly with the heir 
 taking assets by descent, or solely if there be no such heir. 
 And it has been held, in a recent case (/), that damages 
 upon covenants for title, in Avhich the heir was named, for 
 breaches happening after the covenantor's decease, will, 
 even as against the devisee, be considered as "within the 
 meaning of a testamentary charge of debts; but the de- 
 visee, or (it is conceived) the heir, in an administration 
 suit, is not boimd by the result of proceedings by the 
 
 (c) Hammond v. Toulmin, 7 Durn. 
 & E. 612 ; but see now and con- 
 sider, 12 & 13 Vict. c. 106, s. 188. 
 
 {d) Wilson V. Knubley, 7 East, 128. 
 
 (e) S. C. 
 
 {/) See Jenkins v. Briant, 6 Sim. 
 603, 607. 
 
 {g) Hunting v. Sheldrake, 9 M. & 
 W. 256. 
 
 (A) See Shep. Touch. 177. 
 
 (-{•) See ss. 2, 3, 4, and 8. The 
 
 Act came into operation on the 16th 
 July, 1830. 
 
 (/) Morse v. Tucker, 5 Ha. 79 ; 
 Berminyham v. Burke, 2 J. & L. 
 099, and it appears to have been 
 held, in another recent case, that a 
 claimant for unliquidated damages 
 under a breach of covenant, may 
 himself institute a suit for the admi- 
 nistration of the covenantor's estate : 
 Burch v. Coney, 14 L. T, 114.
 
 RIGHTS OF VENDOR AND PURCHASER. 377 
 
 covenantee against the personal representatives of the dap, xiv. 
 covenantor^ but may have the question determined in an 
 action to which he is himself a party {m) : nor can interest 
 be claimed prior to the amount of damages being so 
 determined : but where devisees, having insisted on this 
 right, were imsuccessful in the action, the covenantee was 
 allowed the amount of the damages assessed upon the trial, 
 his costs of defending the ejectment upon which he had 
 been evicted, of an action brought by him against the per- 
 sonal representatives of the covenantor and by the result 
 of which the devisees had refused to be bound, of the 
 action to wliich the devisees were parties, and of the suit 
 in Equity, and also interest on the damages and costs, to 
 be computed from the time when the amount was ascer- 
 tained and judgment entered up in the action against the 
 devisees {n) . 
 
 A remainderman has no equitable claim upon damages ^o^ment of 
 recovered by the tenant for life upon breach of covenants betwein 
 for title (o), as he himself can bring an action for the iffeTnd^e- 
 
 ^ , . mainder- 
 
 injmy (if any) sustained by him as owner oi the reversion, man. 
 
 Where a bill was filed to set aside a conveyance as frau- 
 dulent, and the defendant, pendente lite, sold parts of the 
 estate and died, and a supplemental bill was filed against his 
 representatives and the purchasers, the latter, being evicted, 
 were held entitled in the suit to repayment of their pur- 
 chase-money by his representatives ; and, as against the 
 plaintiff, to an allowance for lasting repairs and substan- 
 tial improvements {p). 
 
 The rights arising under a vendor's covenants, (other ^medfes^'on 
 than covenants for title,) appear to be subject to the same Covenants 
 
 (m) Morse v. Tucker, ubi supra ; (o) Noble v. Cass, 2 Sim. 343. 
 
 and see Cox v. King, 9 Beav. 530 ; (jw) Trevelyan v. White, 1 Beav. 
 
 Norman v. Stiby, 9 Beav. 560. 588. 
 
 (n) 5 Ha. 79.
 
 378 EFFECT OF CONVEYANCE ON RELATIVE 
 
 C hap. XIV. rules as have been already considered with reference to a 
 for tltie.^'^ purchaser's covenants {q) . 
 
 (6.) Purchaser's remedy in Equity, under special circum- 
 stances, if title prove defective. 
 
 Purchaser ^ purchaser, after convevance and payment of his pur- 
 
 accepting ^ ' - '- '' ^ 
 
 tiurthrough chase-money, may obtain relief in Equity against a vendor, 
 vemiorf who, by fraudulent misrepresentation, has induced him to 
 Equi\y. ' accept a defective title (?') ; nor need he wait until evic- 
 tion, but may, at once, claim to have the contract re- 
 scinded [s) : even a fraudulent concealment, by the vendor, 
 of a material fact which the purchaser had no means 
 of discoveiing, might lead to the same result (/) . So, in a 
 modern case, where a purchaser in possession was frau- 
 dulently induced by the vendor and his solicitor, in the 
 absence of his own professional adviser, to pay the pur- 
 chase-money and execute covenants for the production of 
 title deeds, Avhile the title to part of the property was under 
 investigation with reference to a known defect, he was held 
 entitled to rescind the contract, to recover his purchase- 
 money with his costs, charges and expenses, and to have 
 the deeds of covenant delivered up to be cancelled {u). 
 So, where a vendor, seemingly from mere mistake, erro- 
 neously stated that a will, forming part of the title, had 
 
 {q) Vide supra, p. 360, and autho- Williams, ,3 J. & L. 1 ; seeJillard v. 
 
 rities cited; and see Brewster v. ^d'j^ar, 13 Jur. 1114. 
 
 Kitchin or Kidgil, Ld. Raym. (.?) G. Coop. 318 ; 2 Keen, 221. 
 
 317, 322; and 5 Mod. 369; and (0 See G. Coop. 312; Early v. 
 
 Hohnes v. Buckley, 1 Eq. Ca. Abr. Garrett, 4 M. & R. 687, 690 ; and 
 
 27 ; and the remarks on these deci- see 2 Y. & C. C. C. 577 ; and the 
 
 sions in Smith's Leading Cases, 32, judgment in Small v. Attwood, You. 
 
 et seq. 455. 
 
 (r) Edwards v. M'Lcay, G. Coop. (?<) Berry v. Armistead, 2 Keen, 
 
 308,312; 2 Swanst. 287; Berry v. 221. 
 Armistead, 2 Keen, 221 ; Roddy v.
 
 RIGHTS OF VENDOR AND PURCHASER. 379 
 
 been proved^ the piu'cliaser^ after conveyancej obtained a Chap, xiv. 
 decree that the will should be deposited with the Master, 
 and the vendor was fixed with costs (v) . 
 
 In a recent case, where a public way over the estate had far"respon°7 
 been so blocked up under a mere temporary arrangement agent. 
 that it could not be discovered by the purchaser, and the 
 vendor's solicitor, (she herself having no personal know- 
 ledge of its existence,) omitted to disclose the same, but 
 not, as the Coiu-t considered, " with any intention to do or 
 sanction anything he thought wrong," and the conditions 
 of sale required the purchaser to build a wall which in fact 
 interfered with such right of way, it was held, that this was 
 such implied fraud on the vendor as enabled the Coiu-t to 
 decree a reconveyance (w) : the bill, however, which rested 
 the purchaser's case upon the ground of personal fraud, 
 w^as, on appeal, dismissed by the Lords (a') ; they being of 
 opinion that she had no actual knowledge of the cii'cum- 
 stances, and that the agent's knowledge could not sustain 
 a charge of personal fraud against the principal ; and that 
 the plaintiff, putting his case on the groimd of personal 
 fraud, could not rest it on any other ground : and Lord ^"^t'^/jfow 
 Cottenham cited, and seemed to approve of, a case [y], represe'ml'. 
 where a lessor having informed his intended lessee, (in 
 answer to an inquiry on the point,) that no public right of 
 way existed over the estate, a bill to rescind the executed 
 lease on the ground of the ascertained existence of such 
 right of way, was dismissed, there ha\ing been no wilful 
 misrepresentation. 
 
 It may be remarked of one of the last two cases (z), that 
 the misrepresentation evidently resulted from mere care- 
 
 (») Harrison v. Coppard, 2 Cox, 605. 
 318. (y) Leyffe v. Croker, 1 B. & B. 
 
 iw) Gibson v. D'Este, 2 Y. & C. C. 506. 
 C. 542. {2) Gibson v. D'Estc, uhi supra. 
 
 (a-y Jlllde V. Gibson, 1 H. L. Ca.
 
 380 
 
 EFFECT OF CONVEYANCE ON RELATIVE 
 
 Chap. XIV. 
 
 Principal 
 bound by 
 fraud of 
 agent. 
 
 Terms on 
 which pur- 
 chaser is 
 relieved in 
 Equity 
 
 lessness in not ascertaining "svliether certain mark-stones 
 denoted tlie centre or the side of tlie way; and, of the 
 other {a), that the lessor had gi'onnds for beheving his 
 statement to be correct : in each case the misrepresenta- 
 tion, if discovered in time, woukl probably have been a 
 sufficient reason for refusing to complete the contract ; but, 
 as observed by Lord Cottenham [b), there is a marked dis- 
 tinction made by Courts of Equity between what is neces- 
 sary to resist a suit for specific performance of a contract, 
 and what is necessary to support a suit to set aside a deed 
 executed and an arrangement completed. It seems that, 
 in such cases, the principal would, as a general rule, be 
 bound by the fraud of the agent [c) ; but not by his mere 
 non-communication of his constructive knowledge, or of 
 knowledge acquii'ed by him otherwise than as agent {d) . 
 
 "WTiere a re-conveyance is decreed, the pm'chaser, it 
 appears, Avill be credited, in addition to his purchase- 
 money, not only with necessary outgoings in respect of 
 the estate, but also with the amount of repairs and im- 
 provements, if executed before the discover}- of the defect 
 in title, and if their repayment is specially prayed by the 
 bill (e) ; and, probably, of necessary repairs executed 
 during or pending litigation, if specially prayed (/) : he 
 will also be allowed his costs of the pui'chase and convey- 
 ance {g), and interest upon all these several sums at the 
 rate of 4/. [h) per cent, fi'om the times of theii' respective 
 payments or expenditure ; and will be debited with such 
 rents and profits as he has, or without wilful default (i) 
 
 (a) Leyge v. Croker, ubi supra. 
 
 {b) Vigers v. Pike, 8 CI. & Fin. 
 645. 
 
 (c) See Wilson v. Fuller, 3 Q. B. 
 68, 77 ; Sug. 274 ; 1 H. L. C. 615. 
 
 {d) Wilde V. Gibson, 1 H. L. Ca. 
 605 ; and see Alvanley v. Kinnaird, 
 2 Mac. & G. 1,6. 
 
 (e) See Edwards v. M'Leay, 2 Sw. 
 289. 
 
 (/) See Sug. 279. 
 
 (g) 2 Sw. 289. See the decree. 
 
 (/;) See 2 Y. & C. C. 581 ; 5/. 
 per cent, was formerly allowed, see 
 Jac. Ifi6. 
 
 (/) See the decrees in Gibson v.
 
 RIGHTS OF VENDOR AND PURCHASER. 381 
 
 iniglit have, received ; and with an occupation rent in chap, xiv. 
 respect of any part of the estate which has heen in his 
 own possession {k) : he would also, it is conceived, be 
 compelled to reinstate premises which he has materially 
 altered ; e. g., a piivate house converted into a shop (/) : 
 where a purchase was set aside for fraud on the part 
 of the piu'chaser, and the rents exceeded the interest 
 of the purchase-money, annual rests were directed until 
 the principal should be Hquidated [m] . 
 
 (7.) As to purchaser' s right to pay off incumbrances out 
 of the unpaid purchase-money . 
 
 money 
 
 After the conveyance has been executed, the pui'chaser ^faft"'^^ 
 
 may {n) discharge, out of any pui'chase-money which retaTn^in"*^^' 
 
 remains unpaid, (although secured,) any incumbrances out of un- 
 paid pur- 
 which either have been created by the vendor him- chase-^ 
 
 self, or are covered by his covenants for title; but not 
 
 incumbrances paramount to his title, and not covered by 
 
 his covenants (o) : and this right, it is conceived, would 
 
 not, where security has been given for the purchase-money, 
 
 prevail, as against an assignee, for valuable consideration 
 
 and without notice, and who, previously to taking the 
 
 assignment, had ascertained from the purchaser the 
 
 existence of the debt ; otherwise, no one could safely take 
 
 a transfer of a mortgage by a purchaser to a vendor for 
 
 securing part of the pm'chase-money : the case seems to 
 
 be within the principle of one where it was decided, that, 
 
 where a tenant for life with power of sale had sold an 
 
 estate, and covenanted that it was free from incumbrances, 
 
 and the money had been paid to the trustees of the settle- 
 
 D'Este, 2 Y. & C. C. C. 581 ; and (/) See Jac. 165. 
 
 Murray v. Palmer, 2 Sch. & Lcf. {m) Donovan -v. FricAer, Jac. \&5. 
 
 490 ; but see, contra, the judgment, (m) See Serjeant Maynard's case, 
 
 ibid. 489. Freem. Cb. R. 1. 
 
 (At) See 2 Y. & C. C. C. 581. (o) Thomas v. Poivell, 2 Cox, 394.
 
 382 EFFECT OF CONVEYANCE ON RELATIVE 
 
 Chap. XIV. nient and invested, the purcliaser, on discovering the 
 existence of incumbrances, had no claim upon the vendor's 
 life-interest m the money as against an annuitant, to 
 whom, for valuable consideration, and without notice of 
 the fraud committed by the vendor, the trustees of the 
 stock had, at the vendor's request, given an irrevocable 
 power of attorney to receive the dividends {p) : and Lord 
 Thurloiv, on appeal, intimated an opinion, (which however 
 was extra-judicial,) that (irrespectively of the claim of the 
 annuitant) the purchaser could not have followed the 
 money when deposited Avith the trustees ; the case is cited 
 by Sir E. Sugdeii as an authority for the proposition that, 
 notwithstanding incumbrances have been fraudulently con- 
 cealed, " the purchaser has no hen on the purchase-money 
 after it is appropriated by the vendor" [q) . 
 
 (8.) Purchaser's remedy in Equity if he buy his own 
 estate — or if lands are omitted from conveyance — and as 
 to further assurance in Equity and by Statute. 
 
 Purchaser jf i^ appear that the estate belonged to the pm^chaser, 
 
 buying his ^'- ^ 
 
 reli^ve'dfn' l^^ Can, iu Equity, recover his purchase-money, although 
 Equity. ii^QYQ ^yas no fi'aud on the part of the vendor, and although 
 
 the purchaser might have discovered his right from the 
 
 abstract of title {r) . 
 Whether so j^-^^ j^^ l^^s bccn held (s), that a purchaser who, without 
 
 II ne buy es- \ / ^ -i. 
 
 has^"^'"*"'' any fault on the part of the vendor, buys an estate which 
 
 existence. .^ ^^^^ ^^^^ ^^ existcncc, {c. g., a remainder expectant on 
 
 an estate tail which has been barred,) can obtain relief in 
 
 Equity; but the case seems to be considered by Sir E. 
 
 Sugden as of doubtful authority (/) . 
 
 Purchaser If lands shown to a purchaser are excepted in the con- 
 
 {p) Cator V. Lord Pembroke, 1 126. 
 Bro. C. C. 301. (*) Hitchcock v. Giddings, 4 Pr. 
 
 {q) Sug. 087. 135. 
 (r) Bingham v. Bingham, 1 Ves, (0 See Sug. 272.
 
 RIGHTS OF VENDOR AND PURCHASER. 383 
 
 veyance under a name by which he did not know them^ C hap. xiv . 
 he can claim them in Equity ; and by getting in an In^Equt™ 
 outstanding legal estate may hold them_, even as against a to Wm, or 
 
 accidentally 
 
 subsequent purchaser for valuable consideration and with- omitted. 
 out notice (w) ; and he could^ doubtless, enforce a convey- 
 ance of them, as against the vendor, or volunteers : he has 
 also, it would appear, the same rights as respects lands 
 accidentally omitted from the conveyance, if shown to him 
 as part of his purchase {w), or if he can prove an agree- 
 ment for their purchase sufficient within the Statute of 
 Frauds {w) : and, as a general rule, where the conveyance 
 is executed for the purpose of giving effect to and executing 
 the agreement, and by fraud, accident, or mistake, it gives 
 to the purchaser less than he is entitled to under the 
 agreement, he may call upon the Com't to rectify the de- 
 fective conveyance, and give him all that the agreement 
 comprehended ; but where the original agreement is of 
 doubtful construction, and the conveyance is definite and 
 miequivocal, it is not easy to avoid the conclusion that the 
 latter may be the best evidence of the actual agreement {y) . 
 
 So, also, he may in Equity, under the covenant for vendo^^to"^^ 
 fm-ther assurance, require the vendor to j)erfect a defective sequentiy 
 
 . acquired 
 
 title, even by conveying any interest m the estate which he interests. 
 may have subsequently acquired for valuable considera- 
 tion {z) ; and the right seems to exist independently of 
 such a covenant [a) ; and may be enforced against the 
 vendor's representatives, and parties claiming under him 
 
 (iC) Oxwick V. Brockett, 1 Eq. If tlie purchaser's bill in such a case 
 
 Ca. Abr. 355. is dismissed, and purchase-money 
 
 {w) See Cass v. Waterhouse, Prec. has been paid by him into Court, 
 
 Ch. 29. and not invested, he must pay inter- 
 
 (x) S. C. ; and see Nelson v. Nel- est upon it to the vendor, although 
 
 son, Nels. Cb. R. 7, which, however, it has been unproductive, S. C. 
 was a case between principal and (z) Taylor v. Delar, 1 Ch. Ca. 
 
 agent. 274. 
 
 (y) Per V. C. Wigrara, Hum- {a) See 3 Sim. 116; Seabourne \. 
 
 phries v. Home, 3 Ha. 277, 278. Powe/, 2 Vern. 11.
 
 384 
 
 EFFECT OF CONVEYANCE ON RELATIVE 
 
 Chap. XIV. for valuable consideration with notice [b] ; and the rule 
 seems to be the same even when he has no estate in the 
 land at the date of the conveyance : it was, however, 
 decided in an old case {c), that such an equity could not 
 be enforced against the heir, but there seems to be no 
 good ground for such a distinction, and it has been 
 judicially disapproved of by Sir E. Sugden {d) . 
 
 In Noel V. Bewley (e), a man conveyed his contingent 
 remainder in fee by way of mortgage, and covenanted for 
 further assurance ; and the remainder having been de- 
 stroyed by his mother, the tenant for life, (who was also 
 the reversioner in fee,) he was held liable in Equity to 
 perfect the security out of an interest in the estate which 
 he took under her will : so, where a man who was sup- 
 posed to have a reversion in fee, but in fact had no estate 
 in the land, executed what pui'ported to be a conveyance of 
 the same for valuable consideration, he was held liable, 
 under his covenant for further assurance, to convey the 
 estate on its subsequently coming to him as heir at law (/) : 
 the cases seem, as observed by Sir E. Sugden, C. [g), '^'^to 
 establish this, that if a man sells an estate, and the title is 
 afterwards defeated, but subsequently he acquires the same 
 lands under another title, there is an equity arising out of 
 the contract to fasten it upon the new title :" but, in apply- 
 ing this rule, the word estate must be strictly construed, 
 for e\'idently no such equity could exist where the con- 
 tract had been for the purchase professedly of a contingent 
 interest at a price fixed with a view to the contingency. 
 
 It seems probable that the purchaser could come into 
 Equity for further assurance, even if the conveyance were 
 
 Although 
 the sale 
 were of a 
 mere ex- 
 
 {b) Jennings v. Blincorne, 2 Vern. 
 609. 
 
 (c) Morse v. Faulkner, 1 Anst. II. 
 (r/) See 1 Dru. & W. 159. 
 {e) 3 Sim. 103. 
 
 (/) Smith V. Baker, 1 Y. & C. C. 
 C. 223. 
 
 {g) See Jones v. Kearney, 1 Dru. 
 & W. 159.
 
 RIGHTS OF VENDOR AND PURCHASER. 385 
 
 by a mere expectant heir professedly selling the estate in Chap, xiv. 
 
 the lifetime of his ancestor (A) . Imftfe!*'^ 
 
 A conveyance by lease and release, containing no precise j^y ^oubfi 
 
 recital of the vendor's seisin, but only a recital that he is '■®°***^- 
 " legally or equitably entitled to the property," cannot 
 operate by way of estoppel so as to pass the after-acquired 
 legal estate (?). 
 
 Where a voidable estate has, either before or after the Se''^^ 
 
 passing of the 3 & 4 Will. IV. c. 74, been created by a tenlnun^ 
 
 tenant in tail in favour of a purchaser for valuable con- flrmationof 
 
 by subse- 
 
 sideration, any subsequent assurance under the Act, (other quent assu- 
 than a lease not requiring enrolment,) whatever may be 
 its object or the extent of estate intended to be thereby 
 created, confirms the previous voidable estate to the extent 
 to which the tenant in tail alone, or the tenant in tail 
 with the consent of the protector, (if there be one, and he 
 consent to such subsequent assurance,) could confirm the 
 same under the Act : but this is not to affect any pur- 
 chaser for valuable consideration, to whom such subsequent 
 assurance may be made without express notice of the 
 previous voidable estate [k) ; so, before the Act, a Fine by 
 a tenant in tail confirmed his previous voidable convey- 
 ance (/). 
 
 (h) See Sag. 1023 ; 1 Fonb. on appeal, 8 L. J., Ch. 85 ; this case is 
 
 Eq. b. i. ch. 4, s. 2 ; Wethered v. said to be overruled by Right v. 
 
 Wethered, 2 Sim. 183 ; Harwood v. Bucknell, see 4 Dru. & W. 369, sed 
 
 Tooke, 2 Sim. 192 ; but see Carleton qu. 
 
 V. Leighton, 3 Mer. 667 ; Jones v. {k) 3 & 4 Will. IV. c. 74, s. 38 : 
 
 Roe, 3 Durn. & E. 93 ; an equitable and see as to bankruptcy of a tenant 
 
 charge upon an expected legacy was in tail who has created a voidable 
 
 recently supported in Bennett v. estate, sect. 62 of Act ; and see as to 
 
 Cooper, 9 Beav. 252. confirmation of the voidable estates 
 
 {i) Right v. Bucknell, 2 B. & Ad. of purchasers under the bankruptcy 
 
 278; and see Sag. 1018, 1023; of a tenant in tail, sects. 60, 61, and 
 
 and Lloyd v. Lloyd, 4 Dru. & W. 65 of Act; and 12 & 13 Vict. c. 
 
 354 ; sed aliter, if there be a par- 106, sect. 208. 
 
 tinular recital of title, Bensley v. {I) Lloyd v. Lloyd, 4 Dru. & W. 
 
 Burdon, 2 Sim. & St. 519 ; on 354. 
 
 C C
 
 386 EFFECT OF CONVEYANCE ON RELATIVE 
 
 Chap. XIV. 
 
 (9.) As to the general rights and liabilities of purchaser 
 under the conveyance. 
 
 ri^ht^to ^'^^ If the conveyance be executed during the existence of a 
 
 perty'in"^*^ tenancy, the purchaser of the reversion thereupon becomes 
 entitled to the accruing (w) and future rent, and may 
 recover it by action, or (after giving notice of the convey- 
 ance) by distress (n) ; but he cannot recover arrears due 
 before the conveyance (o), or subsequent rent which the 
 tenant, in ignorance of the conveyance, has paid to the 
 vendor {p) : so, it would appear, the purchaser of a part 
 only of a rent-charge, may, after conveyance, distrain for 
 his proportionate part (g) . The Act for the apportionment 
 of rents (r) does not appear to apply to the case of a 
 sale, or, as between a vendor and purchaser, to affect the 
 latter' s right to accruing rents {s) . 
 
 fofbre^aXof So, if the tenancy be under a lease by deed {t) for a tenn 
 which is subsisting at the date of the conveyance, the pur- 
 chaser of the reversion may sue upon breaches of cove- 
 nants which occurred before the conveyance [u) ; but not, 
 it would seem, if the lease be determined before the con- 
 veyance, although the tenancy continue (w) : his right to 
 sue exists although he have purchased the reversion only of 
 part of the demised premises (,r) ; but he then cannot enter 
 
 As^tore- for conditions broken (y) ; but such entry may be made 
 by the purchaser of part of the reversion of all the pre- 
 
 (m) Flight v. Bentley, 7 Sim, 149. («) See and consider Browne v. 
 
 (n) Moss V. Gallimore, Doug. Amyot, 3 Ha, 173. 
 266, although the rent was due at {t) Standen v, Christmas, 10 Q, B. 
 
 the date of the notice. 135. 
 
 (o) Flight V, Bentley, 7 Sim, see (m) Sugd, 219. 
 
 p. 151. (w) See Johnson v. St. Peter's, 
 
 (p) 4 Anne, c. 16, s. 10 ; Birch v. Hereford, 6 Nev. & M. 106, 115. 
 Wright, 1 Durn. & E. see 385. (x) Twynam v. Pickard, 2 B. & 
 
 {q) Rivis v. Watson, 5 M. & W. Aid, 106. 
 255, (y) Wright v, Burroughes, 4 D, 
 
 (?) 4 & 5 Will, IV, c, 22. & L. 438 ; see p. 448,
 
 RIGHTS OF VENDOR AND PURCHASER. 387 
 
 mises ; e. g., if a termor underlet to A., and then assign to Chap, xiv. 
 B. the original term wanting one day, B. may enter for 
 condition broken by A. [z) : and in none of the above 
 cases is it necessary that the tenant should attorn to {a), 
 or otherwise acknowledge the title of, the purchaser : 
 where the lease is by writing not under seal, the right to 
 sue upon it as a contract does not pass with the reversion, 
 and the lessor may, after conveying the reversion, sue the 
 lessee in respect of breaches of agreement, {e. g. to repair 
 the premises,) committed during the tenancy but sub- 
 sequently to the conveyance of the reversion [b] ; but the 
 assignee of the reversion may maintain assumpsit against 
 the tenant for use and occupation (c) . 
 
 And, under a recent Act, where the immediate rever- Ifnowlhe^ 
 sion on a lease is surrendered or merged, the next estate '■^^*^''*"^"' 
 is to be deemed the reversion as respects both rights and 
 liabihties {d) . 
 
 And where the purchaser is himself lessee, the execution Hgiits an'd '^ 
 of the conveyance at once determines all the covenants in lessee/ceas^/ 
 the lease which subsisted between himself and the vendor veyance. 
 as lessee and lessor (e). 
 
 It has been held, that the mere retention by the vendor, ^J^u?g '^' 
 of the actual possession of the property, subsequently to nouYabie' 
 
 . „ , -n 1 • 1 • for use and 
 
 the execution of the conveyance, will not subject him to occupation. 
 an action by the purchaser for use and occupation (/) . 
 
 We have seen {g) that, under the old law, where a wiirhow"^^ 
 testator, having entered into a contract for purchase which conveyance, 
 was not binding on the vendor, devised the estate, such 
 devise was inoperative on any interest which he subse- 
 quently acquired in the property; although a case of 
 
 (z) 5. C. (c) S. C. 
 
 {a) See 4 Anne, c. 16, sect. 9 ; (rf) 8 & Vict. c. 106, s. 9. 
 
 Doug. 269. (e) 1 Bli. 69. 
 
 (b) Bickford V. Parson, 5 C. B. (/) Tew v. Jones, 1.3 M. & W. 
 
 920; Standm v. Christmas, 10 Q. B. 12. 
 135. {y) Supra, 126. 
 
 c c 2
 
 388 EFFECT OF CONVEYANCE ON RELATIVE 
 
 Ch ap. XIV. election might, in some cases, be raised against the heir : 
 so, also, if, having contracted for an estate, he devised it, 
 and then took a conveyance in terms inconsistent with the 
 contract, the devise was thereby revoked; but that a 
 devise contained in a Will coming within the provisions of 
 the recent Act of 1 Vict. c. 26, will pass to the devisee the 
 rights of the testator, whatever they may be, under the 
 subsequent conveyance. 
 
 Conveyance ^g -^vc liavc already seen, even in the case of a mere 
 
 of equitable j ' 
 
 estate, why equitable estate, a conveyance is necessary to enable the 
 purchaser to enforce, as against thu'd parties, any equities 
 attaching to the property [h] . 
 
 Conveyance And wc may here remark, that if a bond fide sale and 
 
 with power •' . i , j 
 
 ofredemp- absolutc convcyancc are accompanied by a power reserved 
 not amort- ^^ ^^le vendor to repurchase the property, this will not 
 turn the transaction into a mortgage, if such does not 
 appear to have been the intention of the parties ; and the 
 test of such intention seems to be the existence or non- 
 existence of a debt from the original vendor in respect of 
 the sum named as the price for such repurchase : if there 
 is no debt there is no mortgage (i) . 
 
 (A) See Taskev v. Small, 3 M. & (0 See Perri/ v. Meddmvcrqft , 4 
 
 C. 70 ; per Lord Cottenham, supra, Beav. 197, affirmed, 203 ; Williams 
 p. 115, V. Owen, 5 M. & C. 303.
 
 389 
 
 CHAPTER XV. ^^^P-^v- 
 
 AS TO THE EFFECT OF THE CONVEYANCE ON THE ADVERSE 
 RIGHTS OF THIRD PARTIES. 
 
 1. Purchaser without notice, protected by legal estate 
 against prior claimants. 
 
 2. With mere equitable title, postponed to prior equitable 
 claimants. 
 
 3. How far protected against defective execution of 
 powers — against prior claimants who have encouraged 
 him to purchase — and by Statute in various cases. 
 
 4. As to priority under the Registration Acts. 
 
 5. As to notice — what it is — how it may be proved — and 
 its effect — of void or voidable estates, and fraudulent or 
 voluntary conveyances — equitable relief against purchasers 
 with notice. 
 
 6. As to contribution to paramount charges. 
 
 7. Rights of third parties after conveyance in various cases. 
 
 (1.) Where two persons have, in conscience, an equal ^^fesare 
 claim to the same property, Equity will not interfere e^t"ateirf' 
 against the one who acquires a legal right to hold it ; 
 even although his equitable title be of later date than that 
 of his opponent («) . 
 
 The execution of a conveyance vesting the legal estate in ^^jfjfj^^'" 
 a bond fide purchaser for valuable consideration, or in his f^'puV?^^" 
 trustee, will, therefore, render his title indefeasible as Ly^ln'd*'" 
 
 /» Til • 1 acquiring 
 
 against all equitable clamiants, even for valuable considera- legal estate 
 
 (a) Oxwick V. Plutner, Bac. Abr. Mortgage, E, s. 3.
 
 390 
 
 EFFECT OF CONVEYANCE ON 
 
 Chap. XV. 
 
 under the 
 conveyance, 
 
 or getting it 
 in by deed 
 subsequent 
 to convey- 
 ance, ac- 
 quires in- 
 defeasible 
 title. 
 
 Although 
 vendor had 
 no title in 
 equity. 
 
 But notice 
 of another 
 having bet- 
 ter right to 
 
 tion, of whose claims he had no notice prior to the execu- 
 tion of the conveyance {b), and actual payment of the pur- 
 chase-money (c) : and where the contract has been com- 
 pleted by a conveyance which proves defective, by reason 
 of some prior conveyance, charge, or incumbrance, the 
 purchaser may, at any subsequent period, get in any out- 
 standing legal estate, (imless held expressly in trust for an 
 adverse claimant {d),) and use it against all parties of 
 whose claims he had no notice at the time of the comple- 
 tion of his purchase (e) : where the conveyance is executed 
 and the purchase-money is secm-ed, he may come into 
 Equity to have it employed in discharge of newly dis- 
 covered incumbrances (/), if created by the vendor or 
 covered by his covenants for title {g) ; and where the con- 
 veyance has been executed, and part only of the money 
 paid, before notice, he may, it is conceived, clearly avail 
 himself of the legal estate as a security to the extent of 
 the sum so paid. 
 
 And, for the above purposes, it is immaterial that the 
 vendor has no equitable interest in the property : — a bare 
 trustee, or a vendor whose apparent equitable title depends 
 upon a forged instrument (A), can make a good title to a 
 purchaser paying his money "s^ithout notice, and then, or 
 subsequently, acquiring the legal estate. 
 
 But the legal estate will not protect a purchaser against 
 the claims of persons whose prior right to its protection 
 
 (b) Wigg v. Wigg, 1 Atk, 382, 
 384. 
 
 (c) Tourville v. Naish, 3 P. Wms. 
 307 ; (where the money being secu- 
 red by bond was held insufficient ;) 
 Jones V. Stanley, 2 Eq. Ca. Abr. 
 685, pi. 9 ; Story v. Lord Windsor, 
 2 Atk. 630 ; see Davies v. Thomas, 
 2 Y. & C. Exch. 234. 
 
 (d) Saunders v. Dehew, 2 Vera. 
 271. 
 
 (e) Stanhope v. Earl Vemey, 2 
 Ed. 81 ; and Mr. Butler's note to 
 Co. Litt. 290. b. n. ; Willoughby v. 
 Willoughby , 1 Durn. & E. 763 ; and 
 see Jones v. Smith, 1 Ha. 43 ; and 1 
 Ph. 244 ; as to the priority acquired 
 by registration, vide infra. 
 
 (/) 3 P. Wms. 307. 
 
 {g) Supra, 381. 
 
 (A) See Jones v. Powles, 3 M. & 
 K. 581.
 
 ADVERSE RIGHTS OF THIRD PARTIES. 391 
 
 was known to him before the completion of the purchase,, chap. xv. 
 even although the extent of such claims were unknown ; esta/e,V^^* 
 for instance, where A., knowing that B. had a charge on ws equities. 
 the property, accepted a mortgage of the estate, relying on 
 the mortgagor's covenants, and then got in an old ouf- 
 standing term for years, it was held, that B., having, in 
 respect of A/s notice of the first incumbrance, a preferable 
 right to require an assignment of the term, was entitled to 
 priority not only in respect of such first incumbrance, but 
 also in respect of a subsequent charge of which A. had no 
 notice at the date of his advance («) . 
 
 And it seems that a purchaser who has completed legaus^ate, 
 without notice of a prior incumbrance, may get in the trustee who 
 
 has notice of 
 
 lesral estate even from a trustee or satisfied mortgagee prior claim, 
 
 ^ " \s available. 
 
 having notice of such incumbrance, and will be entitled to 
 avail himself of its protection [k) : yet it has been doubted 
 whether the trustee or mortgagee can safely make the 
 conveyance [1) : and if the trustee have executed a decla- 
 ration of trust in favour of the incumbrancer, and the 
 purchaser have notice of such declaration at the time of 
 getting in the legal estate, he will lose the benefit of its 
 protection (m). 
 
 But it is clear that a purchaser by paying off", and getting ^^iflf^^^" 
 in a legal estate from, an unsatisfied mortgagee, may hold Tn^umbran- 
 
 „,.,,,, cer, avail- 
 
 it as affainst aU mesne incumbrances oi which he had no able against 
 
 ° subsequent 
 
 notice at the time of completion ; and this may be done j.»cumbran- 
 pendente lite, at any time before a decree to settle pri- 
 orities {n). 
 
 (i) Willoughby v. Willoughby, 1 /?ar^e Ano^^, 11 Ves. 613. 
 
 D. & E. 763. (»*) Saunders v. Dehew, 2 Vern. 
 
 {k) See Lord Hardwicke's judg- 271 ; Allen v. Knight, 5 Ha. 272, 
 
 merit in Willoughby v. Willoughby affirmed, 11 Jur. 527. 
 
 1 D. & E. 763 ; Peacock v. Burt, 13 («) Belchier v. Renforth, 5 Bro. 
 
 L. J. 35 ; and see Sugd. 786, where P. C. 292 ; and see 11 Ves. 619 : the 
 
 the point is said to be clear. general doctrine is disapproved of by 
 
 {l) See 1 D. & E. 771; and Ex the present Registration Commis-
 
 392 
 
 EFFECT OF CONVEYANCE ON 
 
 Chap. XV. 
 
 Best right to 
 call for legal 
 estate, a 
 protection 
 in Equity. 
 
 Equity will 
 not in ge- 
 neral act 
 against bond 
 fide pur- 
 chaser with- 
 out notice. 
 
 And where a purchaser, not having got in an out- 
 standing legal estate, has nevertheless the best right to 
 call for it, he will in Equity be entitled to its protection (o) . 
 
 And, as a general rule, a Court of Equity will not act 
 adversely to a bond fide purchaser who has taken what 
 purported to be a conveyance of the legal and equitable 
 estates, or^ perhaps, of such an equitable estate as appa- 
 rently gave him an absolute and indefeasible right, (either 
 inunediately, or upon payment of a subsisting incumbrance,) 
 to call for the legal estate, and has paid his pui'chase-money 
 without notice of adverse claims {p) : the rule, however, 
 has been held to be different where the adverse claimant 
 has a legal title (q) ; but this doctrine has been disap- 
 proved of, and is opposed to decisions by Svyden, C. (r). 
 However, it seems probable, notwithstanding some old 
 authorities to the contrary, that when a bond fide pur- 
 chaser subsequently resorts io fraud in order to perfect his 
 title. Equity wiU interfere for the purpose of depriving 
 him of the advantage he has thus acquired {s) . 
 
 As between 
 mere equi- 
 table claim- 
 ants, prior 
 title pre- 
 vails. 
 
 (2.) Purchaser with mere equitable title, is postponed to 
 prior equitable claimants. 
 
 Where the purchaser has neither taken a conveyance of 
 the legal estate, nor such a conveyance of the equitable 
 estate as would seem to give him an absolute and inde- 
 
 sioners, and will probably eventually 
 be destroyed by a General Registra- 
 tion Act. 
 
 (o) See Wilker v. Bodington, 2 
 Vern. 599 ; Ej:^ parte Knott, 11 Ves. 
 618 ; Bowen v. Evans, 1 Jo. & L. 
 264. 
 
 {p) See and compare Jerrard v. 
 Saunders, 2 Ves. J. 454 ; Gait v. 
 Osbaldeston, 1 Russ. 158; Head v. 
 Egerton, 3 P. Wms. 281 ; Att.-Gen. 
 V. Backhouse, 1 7 Ves. 200 ; Jackson 
 
 V. Rowe, 4 Russ. 514 ; and V. C. K. 
 B.'s judgment in Penny y. JJ'atts, 13 
 Jur. 459. 
 
 (g) See Williams v. Lambe, 3 Bro. 
 C. C. 264 ; Collins v. Archer, 1 
 Russ. & M. 284. 
 
 (r) See Payne v. Compton, 2 Y. 
 & C. 461 ; Bowen v. Evans, 1 J. & 
 L. 178, 264; Joyce v. De Moleyns, 
 2 J. & L. 3/4 ; but see Titley v. 
 Bavies, 2 Y. & C. C. C. 399. 
 
 (s) Sug. 1020.
 
 ADVERSE RIGHTS OF THIRD PARTIES. 393 
 
 feasible right to call for the legal estate, the ordinary i^^^^ 
 rule of equity, '' qui prior est tempore potior est jure,'' will, 
 it appears, be allowed to operate in favour of an adverse 
 claimant : so that where a mortgagee lent money upon a 
 conveyance of what he knew to be a mere equity of 
 redemption, it was held by Lord Thurloiv, that he must be 
 postponed to mesne incumbrancers of whom he had no 
 notice [t) ; and the decision has been several times recog- 
 nised by Lord Eldon [u) : so, also, where, in a recent case, by'delofft? 
 
 • J? • 1 bound by 
 
 bankers took an eqmtable mortgage by deposit oi title secret trust, 
 deeds of an estate which was subject to a secret trust of 
 which they had no notice, it was held, that such trust 
 must prevail against their security [w) : so, a purchaser of 
 a legacy takes subject to the liability to refund for pay- 
 ment of debts (<r) . 
 
 And it has been decided in several cases [y), that, as ^f^e^uUabie^ 
 respects equitable estates in land, the priority of a pur- land^no''* 
 
 tv 1 1 1 • • • priority 
 
 chaser or mcumbrancer is not anected by his giving or acquired by 
 
 notice to 
 
 neglecting to give notice of his purchase or security, to the °g^°^'^,°^j^jg 
 trustees, mortgagees, or other persons in whom the legal 
 estate may happen to be vested; and that the ordinary 
 rule, as to notice of assignments of choses in action, does 
 not apply. 
 
 So, where the property is subject to a concealed incum- ,^°u^i^!'®*^ 
 brance it seems that a pm'chaser of part, having merely thrown 
 
 1 1 • 1 wholly on 
 
 the eqmtable estate, may throw the entu-e charge upon a puisue e(iui- 
 
 •■■ . . table pur- 
 
 subsequent innocent purchaser of the equitable estate in chaser. 
 
 the residue {z) . 
 
 (t) Beckett V. Cordley, 1 Bro. C. {x) Jennings v. Bond, 2 J. & L. 
 
 C. 353. 720. 
 
 (m) See 1 Gi. & J. 243 ; 6 Yes. {y) Peacock v. Burt, Coote on 
 
 192; 2 Russ. 214 ; and see /&?/e.s v. Mortgages, 569; Jones v. Jones, 8 
 
 Jones, 8 Sim. 642, and see Tourville Sim. 633 ; Wiltshire v. Rabbits, 14 
 
 V. Naish, 3 P. Wms. 308. Sim. 76 ; Wilmot v. Pike, 5 Ha. 
 
 {w) Mannimjford v. Toleman, 1 14 ; Bugden v. Bignold, 2 Y. & C. 
 
 Coll. 670, and see Att.-Gen. v. Flint, C. C. 392. 
 
 4 Ha. 156. {,z) See Hartly y. O'Flaherty, h\o.
 
 394 
 
 Chap. XV. 
 
 Rule as to 
 priority how 
 far appli- 
 cable as 
 against 
 charities. 
 
 Purchaser 
 how far 
 relieved 
 against de- 
 fective exe- 
 cution of 
 powers. 
 
 Relieved 
 against in- 
 cumbran- 
 cers, &c., 
 who en- 
 courage 
 purchase of. 
 
 EFFECT OF CONVEYANCE ON 
 
 Incumbrances in favour of a Charity seem to be subject 
 to the same rules as those in favour of a private individual ; 
 except that notice to the first purchaser is said to bind sub- 
 sequent purchasers without notice (a) . 
 
 (3.) Purchaser, hoiu far protected against defective execu- 
 tion of powers ; — against prior claimants who have encou- 
 raged him to purchase ; — and by Statute in various cases. 
 
 Equity will supply the defective execution of a power, if 
 the defect consist merely in the non-observance of some 
 required formality {b) ; but not if such formality be posi- 
 tively required by the legislature (c) : nor can it supply a 
 defect which goes to the very nature of the power; as 
 where a power to appoint by will is attempted to be exe- 
 cuted by deed {d) : and the Legislature has expressly 
 excluded the interference of Equity, where a contract 
 by a tenant-in-tail is not perfected in manner required 
 by the 3 & 4 WiU. IV. c. 74 (e). 
 
 The purchaser will also be protected in Equity against 
 any person, (even an infant, or a married woman,) who, 
 having a prior interest in the property, encourages, or 
 permits him, to complete his purchase in ignorance of its 
 existence (/) : and a party guilty of misrepresentation will 
 
 & G. tem. PI. 208, 216, Averall v. 
 Wade, Llo. & G. tem. Sug. 252. 
 
 (a) East Grimsted case, Duke's 
 Charitable Uses, 640 j a mere length 
 of possession was no protection in 
 equity, before the late Statute of 
 Limitations, to a purchaser who 
 bought with notice of the charitable 
 trust, Att.-Gen. v. Christ's Hospital, 
 3 Myl. & K. 344 ; as to the effect of 
 the statute, vide supra, 190. 
 
 (6) See 2 Sug. Pow. 94, 6th ed. 
 
 (c) Sug. 1021. 
 
 {d) Reid v. Shergold, 10 Ves. 
 370 ; Archibald v. Wright, 9 Sim. 
 
 161. 
 
 (e) See sect. 47. 
 
 (/) See B^atts v. Cresswell, 2 Eq. 
 Ca. Abr. 515 ; Savage \. Foster, 9 
 Mod. 35 ; Ibbottson v. Rhodes, 2 
 Vern. 554 ; Draper v. Borlaoe, ib. 
 370 ; Berrisford v. Milward, 2 Atk, 
 49 ; Govett v. Richmond, 7 Sim. 1 ; 
 Clare v. Earl of Bedford, 13 Vin. 
 Abr. 536 ; Boyd v. Belton, 1 J. & 
 L. 730 ; Thompson v. Simpson, 2 J. 
 & J. 110; Overton v. Banister, 3 
 Hare, 503 ; Nicholson v. Hooper, 4 
 Myl. & Cr. 179; see further as to 
 infants, Stikeman v. Dawson, 1 De G.
 
 ADVERSE RIGHTS OF THIRD PARTIES. 395 
 
 probably be bound by it, although he make it in ignorance chap.xv. 
 or mistake, if he might have known the truth [g] : but a 
 mortgagee, it appears, need not answer an inquiry as to 
 the extent of his claims unless the intended purchaser be 
 entitled and oflFer to redeem him {h) ; nor need he volun- 
 tarily communicate his claim to a person whom he knows 
 to be about to purchase [i) ; unless he have reason to 
 believe that a fraud is contemplated by the vendor {k) . 
 
 The purchaser will also be protected in Equity against quint ex- 
 
 . - penditure 
 
 any person who, knowmg his own title, encourages, or on, the 
 fraudulently permits the former, in ignorance of it, to lay 
 out money in improving the property (/) ; but when a 
 party has once given a distinct notice of his claim, and the 
 purchaser subsequently lays out money, it hes on him to 
 show that the other has abandoned, or given reason to 
 beheve, that he has abandoned, his claim [m) ', nor need 
 the notice disclose the particulars of the claimant's title ; 
 nor, if the claim exceed what he is entitled to, is the party 
 in possession therefore justified in disregarding it (w) . 
 
 And it appears that the mere fact of a purchaser or gfon^toTake 
 mortgagee allowing the vendor to retain the title deeds, notlffl^cr 
 will not, in the absence of other circumstances indicative tiueaf*^*^^ 
 
 against sub- 
 
 of fraud, afi'ect his title as against subsequent purchasers sequent in- 
 
 " , cumbran- 
 
 or incumbrancers (o) : even the fact of a mortgagee having cere. 
 returned the deeds to the mortgagor, will not, in itself, 
 
 & S. 90 ; Esron v. Nicholas, ib. 118, 91, and Powell v. Thomas, 6 Hare, 
 
 supra ; Wright v. Snoive, 2 De G. & 300. 
 
 S. 321. (m) See Clare Hall v. Harding, 6 
 
 {g) See Pearson v. Morgan, 2 Bro. Hare, see 297. 
 
 C. C. 388 ; but see Sug. 1022, n. (n) S. C. ib. 273. 
 
 {h) Supra, 228. (o) See Evans v Bicknell, 6 Ves. 
 
 (?) Osborn v. Lea, 9 Mod. 97. 174; Harper v. Faulder, 4 Madd. 
 
 {k) Vide supra, p. 228. 129 ; Martinez v. Cooper, 2 Russ. 
 
 (J) See Kenney v. Browne, 3 Ridg. 198 ; Stevens v. Stevens, 2 Coll. 20 ; 
 
 P. C. 518; East India Company v. Allen v. Knight, 5 Ha. 272; af- 
 
 Vincent, 2 Atk. 83; and see Wil- firmed 11 Jur. 527 ; Farrow v. Rees, 
 
 liams V. Earl of Jersey, Cr. & Ph. 4 Beav. 21.
 
 396 
 
 IIFPECT OF CONVEYANCE ON 
 
 Chap. XV. 
 
 Assignees of 
 Insolvent, 
 not asserting 
 their rights 
 for nineteen 
 years, yet 
 not post- 
 poned in 
 Equity. 
 
 Purchaser 
 how far pro- 
 tected 
 
 against ven- 
 dor's as- 
 signees in 
 Bankruptcy 
 and Insol- 
 vency, 
 
 have this effect ( p) : and the same would^ it is conceived, 
 hold good in the case of a purchaser, if a plausible reason 
 were given for his assenting to, what would, primd facie, 
 be an unreasonable and suspicious request : in fact, mere 
 indiscretion seems insufficient to postpone a purchaser; 
 there must, for that purpose, be an intent to facilitate 
 a fraud, or a wilful indifference to a fraud which there was 
 good reason to suspect was about to be committed. 
 
 It has been even held, that the omission of the assignees 
 of an insolvent for nineteen years to sell or take possession 
 of his copyhold property, or of the copies of Court Roll, or 
 to enter their title upon the Court Rolls, whereby the in- 
 solvent is enabled to retain the property as if owner, and 
 mortgage it for value to a person without notice of the in- 
 solvency, is no sufficient ground for giving the mortgagee 
 a charge in priority to the title of the assignees [q) . 
 
 By the 12 & 13 Vict. c. 106 (r), all payments reaUy and 
 bond fide made to or by a bankrupt, and conveyances exe- 
 cuted by him before the date of the fiat, or the filing of a 
 petition for adjudication, and all contracts, dealings, and 
 transactions, by and with him really and bond fide made 
 and entered into before the date of the fiat or the filing of 
 such petition, are protected, if the other party has no 
 notice of a prior act of bankruptcy {s) : the same act {t) also 
 provides {u), that no person shall be Hable to become 
 bankrupt by reason of any act of bankruptcy committed 
 more than twelve months before the issuing of the fiat, or 
 fihng of the petition for adjudication ; and also that no 
 
 (p) See Martinez v. Cooper, and 
 Stevens v. Stevens, ubi supra. 
 
 (q) Cole V. Coles, 6 Ha. 517; 
 affirmed on appeal, see p. 524. 
 
 (r) See sect. 133 ; and see 6 Geo. 
 IV. c. 16, sect. 82. 
 
 (s) The validity of such payment, 
 if made before the late Act came into 
 operation, seems to depend upon the 
 
 provisions of the 6 Geo. IV. c. 16 ; 
 see Turquand v. Vanderplank, 10 M. 
 & W. 180, 194 ; Sug. 952. 
 
 it) Which repeals the 2 & 3 Vict, 
 c. 29, and so much of the 2 & 3 Vict, 
 c. 1 1 , as relates to Bankruptcy ; see 
 Schedule A. 
 
 (m) Sects. 88 and 134.
 
 ADVERSE RIGHTS OF THIRD PARTIES. 397 
 
 purchase from any bankrupt, bond fide, and for valuable Chap, xv. 
 consideration, where the purchaser had notice of a prior 
 act of bankruptcy, shall be impeached by reason thereof 
 unless a fiat or petition for adjudication shall have been 
 sued out or filed within twelve months after such act of 
 bankruptcy : and the Gazette is made conclusive evidence 
 of the bankruptcy, unless the bankrupt proceed to dispute 
 the fiat or petition for adjudication within twenty-one days 
 after the advertisement of the bankruptcy appears in the 
 Gazette, (if he was within the United Kingdom at the date 
 of the adjudication ;) or within three months, (if he was 
 then in any other part of Europe;) or within twelve 
 months, (if he was then in any other part of the world) [w) : 
 and no title to any real or personal property sold under 
 any bankruptcy is to be impeached by the bankrupt, or 
 any person claiming under him, in respect of any defect in 
 the fiat or petition for adjudication, or in any of the pro- 
 ceedings under the same, unless the bankrupt shall, 
 within the time allowed by the Act, have commenced 
 proceedings to dispute, dismiss, or annul the fiat, petition, 
 or adjudication, and duly prosecuted the same {x) : and 
 the Act contains provisions, protecting, in the event of 
 a fiat, petition, or adjudication, being superseded, an- 
 nulled, or dismissed, any person who may bond fide, 
 whether under compulsion or otherwise, and without 
 notice of the institution of proceedings to dispute or 
 annul such fiat, petition, or adjudication, have paid to 
 the assignees any money due to the bankrupt's estate {y) : 
 and if, before the time has elapsed within which the 
 bankrupt may dispute the bankruptcy, his assignees com- 
 mence any action or suit for any money due to his 
 
 (w) Sect. 233. purchaser, under a commission which 
 
 {x) Sect. 131. It was held in is afterwards superseded, from the 
 
 Gould V. Shoyer, 6 Bing. 738, that a claim of the assignees under a subse- 
 
 similar provision in the 6 Geo. IV. quent commission. 
 
 c. 16 (see s. 87), did not protect a (y) Sect. 155.
 
 398 
 
 EFFECT OF CONVEYANCE ON 
 
 Chap. XV. 
 
 or against 
 his judg 
 ment cre- 
 ditors, 
 
 estate, the debtor is authorized to pay the money into 
 Court, which payment is to be valid as against the bank- 
 rupt {z) : and where a conveyance of the bankrupt's pro- 
 perty would require to be registered, the certificate of ap- 
 pointment of assignees is to be registered : and if not so 
 registered within, (as regards Great Britain and Ireland,) 
 two months from the appointment, the same is not to 
 aflFect the title of a purchaser for valuable consideration, 
 without notice, claiming imder a deed registered prior 
 to the registration of such appointment («) : and other 
 Acts {b) contain similar provisions for the registration 
 of the certificates of appointment of assignees of insolv- 
 ents. 
 
 A conveyance to a creditor, for a valuable consideration 
 sufiiciently strong in itself to influence the debtor to make 
 it, is not " voluntary " within the meaning of the Insol- 
 vent Acts, although the consideration consists in part of a 
 pre-existing debt (c) . 
 
 We have already taken a general view of the law 
 relating to judgments, and have adverted to the 2 & 3 
 Vict. c. 11, which preserves to bond fide purchasers with- 
 out notice {d), all those means of defence which were 
 available before the passing of the 1 & 2 Vict. c. 110; 
 and to the 3 & 4 Vict. c. 82, which, in efi'ect, provides that 
 notice {d) of an unregistered judgment shall not subject a 
 purchaser to the extended remedies given to a creditor by 
 the 1 & 2 Vict. c. 110. It may be further remarked, that 
 an equitable incumbrancer or purchaser wiU, in Equity, be 
 protected against a creditor under a subsequent judgment, 
 although the latter may have acquired the legal seisin and 
 
 (z) Sect. 158 ; and see 5 & 6 
 Vict. c. 122, ss. 24 and 25. 
 
 (a) Sect. 143 ; see 1 & 2 Will. IV. 
 c. 56, s. 27. 
 
 (J) 1 & 2 Vict. c. 110, s. 46; 
 5 & 6 Vict. c. 116, s. 8. 
 
 (c) Margereson v. Saxton, 1 Y. & 
 C. Ex. 525 ; see Stuckei/ v. Drewe, 
 2 M. & K. 190. 
 
 {d) Queere, whether Palatinate 
 judgments are within the Acts ; 
 supra, p. 240.
 
 ADVERSE RIGHTS OF THIRD PARTIES. 399 
 
 possession of the land under an elegit without notice of the Chap, xv. 
 mortgage or purchase (e) : but, as we have seen, the pur- 
 chaser, after notice of the subsequent judgment, could not, 
 without the consent of the creditor, safely pay to the ven- 
 dor any part of the purchase-money which happened to 
 remain unpaid. 
 
 The 14 Geo. II. c. 20, and the 3 & 4 WiU. IV. c. 74 (/), deffln' 
 
 j_ • • • n .. . .. -n ^ Fines or 
 
 contain provisions tor giving, m certain specmed cases. Recoveries, 
 vahdity to defective Fines and Recoveries, either generally, 
 or as in favour of purchasers; and the 5 Vict. c. 32 [ff], 
 contains provisions for giving, in certain specified cases, 
 vahdity to Fines and Recoveries levied and suflFered in the 
 now abolished Courts of Great Session in Wales ; and of 
 Session in Cheshire : and the 11 & 12 Vict. c. 70, suppUes 
 the want of Proclamations, as respects Fines levied at 
 Westminster (A). And the 54 Geo. III. c. 173 (i), and ofLanf' 
 the 57 Geo. III. c. 100 {k), contain provisions for confirm- 
 ing, in certain specified cases, defective titles to land tax. 
 And by the 2 Vict. c. 1 1, purchasers are protected against ^T against 
 
 •' ^ ^ ir o lis pendens, 
 
 future obhgations to the Crown, and against any lis 
 pendens, unless the same respectively are registered as 
 directed by the Act. 
 
 (4.) As to priority under the Registration Acts. 
 
 The existing registry acts purport to render any deed, unrfgis°ered 
 affecting either the legal or equitable estate, void as against a Register 
 
 , , . . , . Counties, 
 
 purchaser or mortgagee claiming under an instrument of 
 an earlier date of registration : at Law, notwithstanding fratfon fon. 
 notice, mere priority of registration absolutely determines ilaw^buf 
 the right to the property as between parties claiming under Equity. 
 
 (e) See Whitworth v. Gaugain, 1 {i) See sect. 12. 
 
 Ph. 728, and cases there cited. (Jc) See sects, from 22 to 26 ; 
 
 (/) See sects, from 4 to 12. Doe v. Phillips, 4 Per. & Dav. 562 ; 
 
 {g) See sects. 2 and 3 ; Doe v. and see as to sales by rector for re- 
 
 Price, 16 M. & W. 603. deraption of land-tax, Doe v. Woud- 
 
 (h) Sect. 1 ; see sect. 3. ward, 1 Exch. R. 273.
 
 400 EFFECT OF CONVEYANCE ON 
 
 Chap. XY. adverse registered instruments purporting to pass the legal 
 estate (/) : but^ in Equity, registration is no protection 
 against an unregistered assurance of which the party 
 claiming under the registered instrument had notice prior 
 to the completion of his purchase or security (m) : nor 
 does registration of an equitable incumbrance prevent the 
 person who then has, or subsequently acquires, the legal 
 estate, from using it for the protection of any equitable 
 interest which he may acquire in the property without 
 notice of the registered incumbrance {n) : and a purchaser 
 advancing his money and taking a conveyance without 
 notice of a prior deed which has been imperfectly registered, 
 may, upon acquiring notice of it, register his own deed, 
 and so gain priority (o) . 
 Purchaser's With the prohablc exception of a purchaser claiming 
 ISder Re-^'^ undcr a de\isee where the will has not been registered 
 gister Acts. ^ j^j^jj ^]jg pcriod prescribed by the Acts — in wliich case it 
 seems doubtful whether a registered conveyance for value 
 by the heir will not displace the registered title of the 
 purchaser fii'om the devisee (p) ; subject, of course, to the 
 equitable doctrine of notice, — it may be laid do^n, as a 
 general rule, that a purchaser can be evicted under the 
 registration Acts, only by a person claiming under an 
 instrument executed by the party under whom the two 
 adverse titles are derived or parties taking under him by 
 
 {1} Doe V. Allsop, 5 B. & Al. 142. ing he may have notice of the prior 
 
 (m) Cheval v. Nichols, Stra. 664 ; unregistered instrument : the great 
 
 Le Neve v.Le Neve, 3 Atk. 646 ; see difficulty seems to be, to distinguish 
 
 p. 651 ; Tunstall v. Trappes, Gos- between actual notice and actual 
 
 linffs case, 3 Sim. 301 ; and see Da- fraud. 
 
 vis V. Earl of Strathmore, 16 Ves. (w) ^leeMorecockv. Dickins, A.mh. 
 
 419. The present Registration Com- 678; Bedford v. Bacchus, ib. 680, 
 
 missioners recommend (see 1st Re- cited ; Wrightson v. Hudson, 2 Eq. 
 
 port) that priority of registration Ca. Abr. 609. 
 
 shall always give priority of title to (o) Essex v. Baiigh, 1 Y. & C. C. C. 
 
 a person claiming for valuable con- 620. 
 
 sideration under an assurance ob- {p) See an article, 14 Jur. pt. 2, 
 
 tained without fraud ; notwithstand- p. 267.
 
 ADVERSE RIGHTS OF THIRD PARTIES. 401 
 
 act in Law, and registered prior to the registration of the chap. xv. 
 document which forms the root of the piu'chaser's adverse 
 title ; for instance, if A. convey first to B. who does not 
 register, and then to C. who does not register, and then C. 
 convey to D. who registers, D. acquires no title against B. 
 unless he can procure a conveyance from A. to C. to be 
 duly registered (q) ; which would, it is conceived, be 
 impracticable if A. and the witnesses attesting his execu- 
 tion of liis original conveyance to C. were dead (r) ; so, 
 where a lease is unregistered, no statutory title is ac- 
 quired against the owner of the reversion by registering an 
 assignment of the lease {s) ; but if A. (a woman), after 
 conveying to B., marry, and her husband convey the 
 estate which he takes in jure mariti to C. who registers 
 before B/s conveyance is registered, C. thereby acquires 
 priority, (as intimated by the terms of the above proposi- 
 tion) {t) : and the same rule would, it appears, prevail, if 
 A., after conveying to B., were to die intestate, and her 
 heir at law were to convey to C, who were to register 
 before any registration by B. {u). 
 
 So, if A. convey to B., who does not register, and then 
 B. convey to D., who registers merely his own conveyance, 
 and then A. convey to C, who registers, D., it is con- 
 ceived, has no title as against C. and parties claiming 
 under him ; for the registered conveyance to C. displaces 
 B.'s title imder his unregistered conveyance; and this 
 being gone the conveyance to D. goes with it : and in 
 such a case a person searching the register would have no 
 reason to suppose that the property conveyed by B. to D. 
 
 (q) Jack V. Armstrong, 1 Hud. & grantor. 
 
 Bro. 727. (*) Honeycomb v. Waldron, 2 Stra. 
 
 (r) 5. C, and Essex v. Baugh, 1 1064; and see Battersbi/ v. Rockfort, 
 
 Y. & C. C. C. 620 ; vide mpra, 319, 2 J. & L. 431. 
 
 320, as to the necessity for the me- (0 See Wariurtmi v. Loveland, 2 
 
 morial being attested by a witness to Dow. & C. 480. 
 
 the execution of the deed by the (h) See S. C. 
 
 D D
 
 402 
 
 EFFECT OF CONVEYANCE ON 
 
 Chap. XV. ]iad ever been lield by A. ; nor, as respects parties claim- 
 ing under C, would it make any difference tliat the assur- 
 ances by C. were unregistered (w). 
 
 We have ali-eady referred to the provisions in the 3 & 4 
 WiU, IV. c. 74 as to the priorities of parties claiming 
 under disentaihng assurances, both of freeholds and copy- 
 holds {x) . 
 
 Priorities 
 under Fines 
 and Reco- 
 veries Abo- 
 lition Act. 
 
 Purchaser 
 only affected 
 by actual 
 notice of 
 unregistered 
 assurance or 
 judgment. 
 
 Notice to 
 solicitor is 
 notice to 
 client. 
 
 Actual no- 
 tice, when, 
 by whom, 
 and how to 
 be given. 
 
 (5.) As to notice — what it is — hmv it may be proved — and 
 its effect — of void or voidable estates and voluntary or 
 fraudulent conveyances — equitable relief against purchaser 
 with notice. 
 
 Notice of an unregistered security must, in order to 
 affect a purchaser claiming under a registered instrument, 
 be actual notice affecting him Avith fraud [if) : so, also, 
 notice of an unregistered judgment must, it would seem, be 
 actual in order to affect a piu'chaser {z) : and actual notice 
 to the solicitor or agent in the transaction is actual notice 
 to the client or principal («) : and where the principal is 
 affected Avith personal knowledge, it is, of course, imma- 
 terial Avhether he acquired it in one or another cha- 
 racter (Z*) . 
 
 Actual notice, according to Sir E. Siigden (c), ^'must be 
 given by a party interested in the property [d), and in the 
 coLirse of the treaty for the pm'chase :" and he also cites a 
 remark made by the INIaster of the RoUs, in Jolland v. 
 Stainbridge (e), intimating a doubt whether a general 
 
 («;) See S. C. 
 
 {x) Vide smpra, p. 321, et seq. 
 
 {y) See Jolland v. Stainbridye, 3 
 Ves. 478 ; Wijatt v. Baru-ell, 19 Ves. 
 435 ; Buckley v. Lanauze, LI. & G. 
 Rep. t. PI. 327, 341. 
 
 {z) See Ttmstall v. Trapjies, Gos- 
 ling's case, 3 Sim. 301. 
 
 (a) S. C, and Le Neve v. Le Neve, 
 
 3 Atk. 646 ; and see Davis v. Earl 
 of Strathmore, 16 Ves. 419 ; Sheldon 
 V. Coj:, 2 Eden, 224. 
 
 {h) See Meuj: v. Bell, 1 Ha. 88. 
 
 {c) Sug. 1040 ; and see 1 J. & L. 
 442. 
 
 {d) See WiMgoose v. Wayland, 
 Goulds. 147. 
 
 {e) 3 Ves. ; see p. 486.
 
 ADVERSE RIGHTS OF THIRD PARTIES. 
 
 403 
 
 notice of title is sufficient, and whetlier it is not necessary Chap, xv. 
 to specify the instrument under which the claimant is 
 entitled. 
 
 Perhaps all these points should be cautiously acted on 
 in practice ( /) ; it is one thing to say that mere " flying 
 reports" {g) are not notice, and another to affirm that a 
 pm'chaser could not be affected by a deliberate and par- 
 ticular statement of an adverse claim unless made either 
 by or on behalf of the claimant ; nor does there seem to 
 be any reason why, where notice has been given to the 
 purchaser prior to the commencement of the treaty, the 
 Court should not consider whether, (as in the case of an 
 agent or soHcitor,) such notice must not have been present 
 to his mind during the treaty; of the case cited by Sir 
 E. Sugden in support of the unqualified proposition {h) it 
 may be remarked, that considering its date (^), and the 
 cautious character of the Judge, (Lord Keeper Coventry,) 
 an unwillingness to do anything which might be construed 
 into a breach of parliamentary privilege may have in- 
 fluenced the decision; which was, that a Member of the 
 House of Commons was not to be considered as affected 
 with notice of what came to his knowledge as Parliamen- 
 tary business within the walls of the House. 
 
 So, the doctrine hinted at in Jolland v. Stainbridge 
 seems to be at variance with a later case where it was held 
 that a purchaser, ha\dng notice that A. had a judgment or 
 warrant of attorney affecting the estate, was bound in 
 Equity, although the incumbrance was in fact a mort- 
 gage {k) ; so, a general recital in a deed that there were 
 mortgages on the estate, has l)een held, by Lord Langdale, 
 
 (/) See, as to the first and third, Charitable Uses, 640. 
 Butcher v. Stapely, 1 Vern. 363 ; (i) A. D. 1633. 
 
 and Fry v. Porter, 1 Mod. 311. {k) Taylor v. Baker, 5 Pri. 306 ; 
 
 {g) Goulds. 147. and see 1 Ha. 58. 
 
 {h) East Grimsted case, Duke's 
 
 D D 2
 
 404 EFFECT OF CONVEYANCE ON 
 
 Chap . XV. ^Q amount to notice of a mortgage not specified in such 
 
 deed(/). 
 Purchaser, It seems probablc that a purchaser, having notice of an 
 
 whether af- ^ . 
 
 noUce of cxccutory instrument, — [e.g., marriage articles,) — of doubt- 
 of doubtfir fnl meaning, would, as a general rule, be bound to take 
 ins rumen . ^^^^^^ ^^ |.|^g constructiou which would be put upon it by 
 a Court of Equity ; and must, therefore, see, that any in- 
 strument which may have been executed in pursuance 
 thereof, and which is material to the title, has been 
 framed in accordance with such construction (m) : but, 
 where a long period has elapsed since the sale, the Court 
 may decline to fix upon a purchaser a difficult construc- 
 tion of a doubtful instrument, although it might have 
 granted relief as between the parties thereto if there had 
 been no sale (w). 
 uotlce-^^''^ Constructive notice, (which, in its general eflPects, is 
 nature o . similar to actual notice (o) , ) has been defined to be, 
 " evidence of notice, the presumptions of which are so 
 violent that the Court will not allow even of its being con- 
 troverted" [p) : this, perhaps, scarcely conveys a satis- 
 factory notion of the nature of the doctrine ; the reported 
 decisions upon which, it is submitted, clearly show, that 
 constructive notice is often held to exist in the absence of 
 any idea by the Court of the existence of actual personal 
 knowledge ; if, for instance, a purchaser, having notice of 
 a deed as being one which affects the property, is induced 
 to rely upon the vendor's representation as to its contents, 
 the Court will hold him bound by those contents, even 
 although it were satisfactorily shown from the natiu'c of the 
 transaction that he placed implicit and bond fide confidence 
 
 (/) Farrow v. Rees, 4 Beav. 18 ; (n) Thompson v. Simpson, 1 Dru. 
 
 and see Lacey v. Ingle, 2 Ph. 413 ; & War. 459. 
 
 Gibson v. Ingo, 6 Ha. 124. (o) Sheldon v. Couc, Amb. 626. 
 
 (m) See Sug. 1060 ; Davies v. (p) 2 Anstr. 438 ; and see Sug- 
 
 Davies, 4 Beav. 54. 1041.
 
 ADVERSE RIGHTS OF THIRD PARTIES. 405 
 
 in the good faith of the vendor [q] ; so, in Jackson v. ^'"'P' ^^- 
 Rowe{r), Sir John Leach says, "although he, (the pur- 
 chaser), may, in fact, have been ignorant of the settlement, 
 yet, in Equity, he must be fixed with all the knowledge 
 which it was reasonable he should acquire" : constructive 
 notice may, perhaps, be rather considered to consist in 
 those circumstances under which the Court concludes, 
 either that the party, (personally or through his agent,) 
 has fraudulently abstained from acquiring actual notice, 
 or has been guilty of such negligence in not availing him- 
 self of the means of acquiring it, as, if permitted, might 
 be a cloak to fraud, and which, therefore, the common 
 interests of society require should, in its consequences, 
 be treated as equivalent to actual notice: what degree 
 of negligence is sufficient for this purpose remains to be 
 considered. 
 
 In a recent case, before V. C. Wiqram, it was asserted Prot.ositions 
 
 ■' a ' - of W Kjriim, 
 
 by the Court, that the cases in which constructive notice ^- ^- '"* ^"^ 
 has been established resolve themselves into two classes ; 
 first, cases in which the party charged has had actual 
 notice that the property in dispute was, in fact, charged, 
 incumbered, or in some way afi'ected ; and the Court has, 
 thereupon, bound him with constructive notice of facts and 
 instruments to a knowledge of which he would have been 
 led by an inquiry after the charge, incumbrance, or other 
 circumstance affecting the property, of which he had actual 
 notice ; and, secondly, cases in which the Court has been 
 satisfied, from the evidence before it, that the party 
 charged had designedly abstained from inquiry, for the 
 very purpose of avoiding notice {s) : and, in a later case, 
 the V. C, with reference to his previous judgment, re- 
 pudiates the notion, (which had been attributed to him,) 
 " that there may not be a degree of negligence so gross 
 that a Court of Equity may treat it as evidence of fraud — 
 
 (y) See 1 Phill. 253. {s) Jonps v. SmiUt, 1 Ha.; see 
 
 (/•) 2 Sim. & St. 475. p. 55. 
 
 constructive 
 notice.
 
 406 EFFECT OF CONVEYANCE ON 
 
 Chap. XV. impute a fraudulent motive to it — and visit it with the con- 
 sequences of fraud, although (morally speaking) the pai-ty 
 charged may be perfectly innocent" ; and fm-ther remarks, 
 " Negligence, as I understand the temi, supposes a dis- 
 regard of some fact knoTm to the pm'chaser, which at 
 least indicated the existence of that fact, notice of which 
 the Court imputes to the puixhaser'' {t) . 
 
 orextension The propositious of the V. C. seem, however, scarcely to 
 provide for those cases in which a pm'chaser is affected 
 with constructive notice, not through his personal know- 
 
 Hgence ma ^^dgc of any fact leading him to actual notice, but by his 
 
 effect of neglect of the usual and recognised means for acquiring 
 such knowledge or notice ; for instance, a public Act of 
 Parliament is notice to all the world {ii) ; so is a lis 
 pendens {w), if registered under the Act of 2 Vict. c. 
 11 (^), or a deed or will registered in a register county or 
 entered on Court Rolls (if the purchaser search over the 
 period within which the instrument is registered (y) or the 
 entiy is made) ; or a judgment entered at the Common 
 Pleas, if the purchaser search the register; so, if a pur- 
 chaser, without any fraudulent intention, (the absence of 
 which might be evidenced by his pajnnent of a full price 
 for the property), were to accept a conveyance without any 
 previous investigation of title, relying on the mere assur- 
 ance of the vendor that he was absolute owner, he would, 
 nevertheless, be held to have constructive notice of any 
 
 {t) West V. Reid, 2 Hare, 257, Dixow, 5 Jarm. Conv. by S. 493 ; but 
 
 259. see Jennbitjs v. Bond, 2 J. & L. 720, et 
 
 (u) Sug. 1044; although it be a quare. An administration suit is a ^/.v 
 
 local Act, Barraud v. Archer, 2 Sim. pendens as respects estates sold under 
 
 433; S. C, 2 Russ. Sc Myl. 751. the decree; Drew v. Earl of Nor - 
 
 Q«tfr<?, as to a private Act made pub- ^«/"y, 3 J. & L. 267; iiling of the 
 
 lie ; Sug. 2ibi supra. bill, and not service of the subpoena, 
 
 {w) Ibid. is the commencement of a //*• jjendens, 
 
 {x) See sect. 7. But it is said to -S. C. 
 be only notice of what is charged on {y) Hodgson v. Dean, 2 Sim. & St. 
 
 the bill, and not of equities which may 221; see, as to the extent to which 
 
 possibly arise out of the matters in a memorial is notice, Rochard v. Fuf- 
 
 (lUestiou in the suit ; see Sfialcross v. fon, 1 J. & L. 413.
 
 ADVERSE RIGHTS OF THIRD PARTIES. 407 
 
 defect appearing on the title (z) ; although he could be Chap- xv. 
 scarcely said to have actual notice of any fact indicating 
 the existence of such defect. 
 
 To consider, however, the cases falling within the rules .^"''s^^f j^ 
 
 laid down by V. C. Wigram, and which, with the above ^anfeuhn- 
 
 exceptions, seem to comprise the authorities on the sub- strumcnt 
 
 , tTTi • f i 1-1 1 li^lfl to have 
 
 lect : it has been held, that notice oi a postnuptial and notice of 
 
 •^ _ connected 
 
 apparently voluntary settlement is constructive notice of f^*'**,;"^*^ 
 the antenuptial agreement on which it is founded (a) ; that ^^'^'^t^- 
 actual notice to a purchaser, of an instrument as one af- 
 fecting the estate, is constructive notice of all instruments 
 to which an examination of the first would have led him ip) ; 
 even although such prior instilments are not actually 
 recited, but there is only a recital that the property is sub- 
 ject to limitations which in fact correspond with the limita- 
 tions thereby created (c) ; so, a recital that the property 
 was held upon such trusts for the use of A., B. and C. (par- 
 ties to the conveyance) " for such estates in possession, re- 
 version, or remainder as they became entitled to after the 
 death of D." was held to be notice oi prior trusts in favom- 
 of other parties which would have been discovered by an 
 examination of the instrument creating the trusts which 
 were referred to in the recital [d) ; so, notice of an equit- 
 able claim, as affecting an unspecified portion of the pro- 
 
 {£) See Lord Lyndhurst's remarks mas, 2 Y. & C. 234 ; (where however 
 
 on Jackson v. Uvwe, in 1 Phil. 255 ; it was also held that notice of a 
 
 and see to the same effect Sir J. Wi- prior conveyance and of the then 
 
 gram's remarks in Neesom v. Clark- vendor's title was notice of his 
 
 son, 2 Ha. 173, and West v. Reid, lien for unpaid purchase-money, on 
 
 2 Ha. 260. which point the decision cannot it 
 
 (a) Ferrars v. Cherry, 2 Vern. would seem be supported ; see Sug. 
 384 ; as to the authority of the case, 879) ; and Butler v. Lord Portarling- 
 which has been questioned, see Mr. ton, 1 Dru. & War. 20 ; and see cases 
 Raithby's note, 3rd ed. cited, sujjra, n. (z). 
 
 (b) Coppin V. Fcrnyhouyh, 2 Bro. (c) Neesom v. Clarkson, 2 Hare, 
 C. C. 291; Biscos. Earl of Banbury, 163 ; see p. 165. 
 
 1 Ca. in Chan. 287, 291 ; Tanner v. {d) Malpns v. Jckland, 3 Russ. 
 
 Florence, lb. 259, 260; Davies v. Tito- 273.
 
 408 EFFECT OF CONVEYANCE ON 
 
 Chap. XV. perty, is notice of the claim as in fact affecting the en- 
 tirety (e). 
 
 So, notice of the land being in the occupation of a per- 
 son other than the vendor, has been held to be notice of 
 the occupier's equities (/) ; even of an agreement for the 
 sale to him of the fee simple (g) ; but tliis has always been 
 considered an extreme case (h) and the doctrine of it has 
 not been extended. 
 
 So, notice of the legal estate being outstanding, is notice 
 
 of the trusts on which it is held (i) ; and notice that the 
 
 title deeds are in the possession of a third party, is notice 
 
 of any charge he has upon the property {k) ; so, notice that 
 
 the title is a mortgage title, seems to be notice of any 
 
 deahngs by the mortgagee with the mortgagor which may 
 
 have kept alive the equity of redemption (/) . 
 
 he"id t'o have ^o, where a person, entitled only for life, represented 
 
 factsVhicii that she was sesied in fee, and conveyed as if so seised, a 
 
 have " person claiming mider her for valuable consideration was 
 
 known. ^ ° 
 
 held to be affected with notice, the settlement being the 
 only document under which she coidd claim the estate (w?) ; 
 and, as observed by Lord Lyndhurst {n), no one could find 
 fault vrith that decision ; for either the party did or he did 
 not investigate the title ; if he did not, he w^as guilty of 
 great negligence ; if he did, he must have seen that the 
 party conveying to him had only a life estate : so a les- 
 
 (e) Att.-Gen. v. Flint, 4 Ha. 147 
 
 (/) Allen V. Anthony, 1 Mer. 2S2 
 Taylor v. Stihbert, 2 Yes. jun, 437 
 440; Hiem v. Mill, 13 Ves. 120 
 Meux V. Maltby, 2 Sw. 281. 
 
 {g) Daniels v. Davison, 16 Ves 
 249; 17 Ves. 433, and Douglas v 
 Whitterwronge, 16 Ves. 254, cited. 
 
 {h) Per V. C. Wigram, 1 Ha. 62 
 and see 2 Russ. & M, 629, and Sug 
 
 (^) Hiern v. Mill, 1 3 Ves. ; see p. 
 122 ; Dryden v. Frost, 3 Myl. & Cr. 
 670; and see 1 Ha. 61; Worthing- 
 ton V. Morgan, 16 Sim. 547; see 
 Sug. 1055. 
 
 (/) See Hansard v. Hardy, 18 Ves.; 
 see p. 462. 
 
 (w) Jackson v. Roive, 2 Sim. & St. 
 472 and 475 ; and see Roddy v. JVil- 
 Hams, 3 J. & L. 1. 
 
 1053; hut see also Penny V. Watts,! (n) 1 Phil. 255; and see V. C. 
 
 Mae. & G. 150. Wigram's remarks in Ncesoin v. 
 
 (0 Anon. Freem. Ch. Rep. 137. Clarkson, 2 Ila. 173.
 
 ADVERSE RIGHTS OF THIRD PARTIES. 409 
 
 see (o), or a sub-lessee {p), lias notice of the title of the c^ap- ^"^ 
 immediate, and, (in the case of a sub-lessee), original 
 lessor; so, a person has been held to be affected with 
 notice of a fi-aud affecting a deed, and which the un- 
 usual manner in which it was executed ought to have sug- 
 gested to his solicitor (5-) ; so, where a purchaser had notice 
 of another person having a judgment or warrant of attorney 
 affecting the estate, and refrained from making any inquiry, 
 he was held bound, although the incumbrance was in fact 
 a mortgage (r) ; and, as a general rule, if a person knows 
 that another has or claims an interest in the property for 
 which he is dealing, he is bound to inquu'e what that 
 interest is, and if he omit to do so, he will be bound, 
 although the notice was inaccurate as to the particulars or 
 extent of such interest [s) : so, a purchaser, having notice 
 that a legatee had released the executrix from a legacy, 
 and that, in lieu thereof, the latter had by will devised a 
 freehold estate to such legatee, was held to have notice of 
 such devise being pursuant to a written agreement between 
 the parties {t) : so {u), a mortgagee not inquiring for the 
 deeds was postponed to a prior equitable incumbrancer, 
 upon the ground {iv) of his having pui'posely abstained 
 from making inquiry, the mortgage being for secm-ing a 
 pre-existing debt; that, in short, there was wilful blind- 
 ness : and it has been held, in a late case, that the mere 
 omission to ask for the deeds is sufficient to postpone a 
 mortgagee, to the equitable lien of the actual holder {a:') . 
 
 But, on the other hand, a private Act of Parliament, or ^hich'a 
 
 (0) Att.-Gen V. BackhouJie,\1 Yes. (s) See Gibson \. Int/o, 6 Ha. 124. 
 
 293 ; Butler v. Lord Portarlington, (t) Penny v. Watts, 1 Mac. & G. 
 
 1 Dru. & W. 20. 150, 158. 
 
 {p) Steedman \. Poole, 6 Ha. 193; {u) Whitbread v. Jordan, 1 Y. & 
 
 and see Cosser v. Collinge, 3 Myl. & C. 303. 
 
 K. 283. (w) 1 Phil. 255. 
 
 {q) Kennedy v. Green, 3 Myl. & (,i) IVorthington v. Morgan, 16 
 
 K. 699. Sim. 547. 
 
 (»•) Taylor v. Baker, 5 Pri. 306.
 
 410 EFFECT OF CONVEYANCE ON 
 
 Chap. XV. a private Act made public {y), is not;, in itself, notice to a 
 n^^a'fRcTci'r purchaser ; nor is registration of a deed, &c. in a County 
 Register {z), nor registration of a judgment at the Common 
 Pleas {a), nor the entry of a document on tlie Court Rolls 
 of a Manor (/>), notice, unless he make a search extending 
 over a period comprising the entry in the Register or 
 Com-t RoUs, (as the case may be) : nor is a Commission of 
 Bankruptcy in itself notice {c), nor a Decree in a Court of 
 Equity {d), nor a lis pendens, unless registered at the Com- 
 mon Pleas (e) : although in all these cases the purchaser 
 has the means of acquiring notice. 
 
 So, notice of a past tenancy is no notice of the tenant^s 
 equitable interests (/) ; nor is a purchaser from a deriva- 
 tive lessee affected with constructive notice of the contents 
 of the original lease (r/) ; nor, although a purchaser of a 
 lease is bound to know from whom the lessor derived his 
 title, is he affected with notice of all the circumstances 
 under which he so derived it (h) : nor, where a sale by 
 fiduciary vendors is apparently regular, need a purchaser 
 inquire into collateral questions — such as the mode in 
 which the sale has been conducted (i), — although he will be 
 affected with notice of a breach of trust clearly deducible 
 from facts appearing on the face of the assui'ance {k) ; nor 
 is notice of a tenancy constructive notice of the lessor's 
 title (/) ; nor, where the vendor is himself the tenant, and 
 has acknowledged payment of the purchase-money both in 
 
 (y) 3 Bos. & P. 578; Sug. 1044. (/) Miles v. Langleij, 1 Russ. & 
 
 {z) Hodgson v. Dean, 2 Sim. & St. M. 39. 
 
 221 ; affirmed, see Sug. 1048. {g) See Hanbury v. Litchfield, 2 
 
 (a) See and consider 2 & 3 Vict. Myl. & K. 633, and 1 Ha. 62. 
 
 c. 11, s. 5. {h) All.-Gcn.\. Backhous'c,l7 Ves. 
 
 (b) Bnyden v. Bignold, 2 Y. & C. 293. 
 
 C. C. 377. (0 See Borell v. Dann, 2 Ha. 440. 
 
 (c) See Hilchcox v. Sedgwick, on 450. 
 
 appeal, Sug. 1051. {k) See Jit. -Gen. v. Pargctcr, 6 
 
 {d) Sug. 104 7. Beav. 150. 
 
 {e) 2 <Sc 3 Vict. c. 11, s. 7. (/) Sug. 1056.
 
 ADVERSE RIGHTS OF THIRD PARTIES. 411 
 
 the body of the conveyance and by the usual indorsed re- ^'"^p- xv- 
 ceipt, is the tenancy notice of his hen for any part thereof 
 which may in fact remain impaid {in) ; nor will a dona fide 
 purchaser, otherwise without notice, be affected by the 
 mere circumstance of the vendor having- been out of pos- 
 session for many years («) : nor does the mere absence of 
 the title deeds seem in itself to be notice of the interest of 
 the person holding them (o) : although it may be otherwise 
 if their absence is not explained or accounted for (p) : nor 
 does notice of the preparation of a di'aft seem in itself to 
 be notice of the executed deed [q) . 
 
 So, probably, the mere fact of attesting the execution 
 of a deed will not fix the witness with notice of its 
 contents (;•) ; nor, where a pm'chaser is informed of the 
 existence of an instrument which may, but does not neces- 
 sarily, aflPect the property, and he is assui'ed that the 
 instrument does not afiect that property, but relates to 
 other property, and he, acting faMy and honestly, believes 
 such statement, and it tiu'us ovit that he is misled, and 
 that the instrument does relate to the property, will he be 
 fixed with a notice of its contents (s) : nor will a purchaser 
 be affected by an ambiguous recital (/) ; or by circum- 
 stances mducing merely a suspicion of fraud {u) ; or by 
 the usual trusts of a term assigned to attend the inherit- 
 ance {iv), where no reference is made to any particvdar 
 instrument or coui'se of limitations : so, notice of there 
 
 (>m) See White v. Wakefield, 7 (?) See Cuthay v. Sydenham, 2 
 
 Sim. 401. Bro. C. C. 391. 
 
 {n) See Oxwick v. Plumer, Bac. (r) See Sug. 1060, and cased cited. 
 
 Abr. Mortgage, E, s. 3 ; and see 1 {s) See Jones v. Smith, ] Phil. 
 
 Ha. 63. 244, 253; and see West v. Reid, 2 
 
 (o) Pluml) V. Fluitt, 2 Anstr. 432 ; Ha. 260. 
 
 Evans v. Bicknell, 6 Ves. 174 ; and {t) Kenney v. Broivne, 3 Ridg. 
 
 see I Ha. 63, and 5 Ha. 279. P. C. 512 ; and see 2 Ha. 175. 
 
 i'p) Worthiufjlon v. Morgan, 16 (m) Sug. 1058; M' Queen \. Far- 
 
 Sim. 547; see Dry den v. Frost, 3 quhar, 11 Ves. 467. 
 
 Myl. & Cr. 670. (w) Sug. 1058.
 
 412 
 
 EFFECT OF CONVEYANCE ON 
 
 Chap. XV. 
 
 Purcliaser 
 not bound 
 to use ex- 
 cessive 
 caution. 
 
 Notice to 
 cf>unsel, 
 solicitor or 
 iijjent is 
 notice to 
 purchaser. 
 
 being a change in the solicitors who are professionally 
 to represent a particular interest^ is not, in itself, notice of 
 a change in the oi.vTiership of such interest {x) . 
 
 In a modern case, where the legatee of a legacy charged 
 on land, assigned it for value, and then, without the con- 
 currence of the assignee, joined in mortgaging the estates 
 first to A. and then to B., the latter mortgage being 
 expressed to be, '^ subject to prior incumbrances," but 
 B. had no notice of the assignment of the legacy, and 
 the mortgagors did not appear to have intended to include 
 it among '' prior incmnbrances," B. was held to have 
 priority of the assignee {y) . 
 
 And it appears that, as a general rule, the mere omission 
 to make those inquiries which a prudent, cautious, and 
 wary person would ordinarily make, is not, in itself, suf- 
 ficient to fix a bond fide purchaser with notice of what 
 he might have ascertained by making such inquiry {z) : 
 the fact of the conveyance being in consideration of a pre- 
 existmg debt, would, of course, induce a doubt whether 
 the purchaser were acting bond fide ; but the Courts seem 
 generally disinclined to extend the doctrine of constructive 
 notice («). 
 
 The purchaser, (although an infant purchasing under 
 the sanction of a Com*t of Equity {b),) is bound by notice 
 to his counsel {c), solicitor, or agent {d), or, perhaps, trus- 
 tee (e), if acquii'cd either in the same transaction, or in a 
 prior transaction but under circumstances which satisfy 
 the Court that the notice must have been recollected (/) : 
 
 (s) West V. Reid, 2 Ha. 249. 
 
 (y) Greemvood v. Churchill, 6 
 Beav. 314. 
 
 (z) See 1 Phil. 257. 
 
 (a) See 1 Phil. 254 ; 1 J. & L. 
 441 ; Sug. 1054 ; but see Worthhig- 
 fon\.Mori/an, 16 Sim. 547, and Pciinj/ 
 V. Walls, 1 Mac. & G. 150. 
 
 (b) Toulmin v. Steere, ?> Mer. 210. 
 
 (c) Sheldon v. Cojc, Amb. fi24. 
 
 (d) Toulmin v. Steere, ubi supra. 
 
 (e) Wise v. Wise, 2 J. & L. 403. 
 (y) Ilargreaves v. Rothwell, 1 
 
 Keen, 154 ; Brothers v. Bence, Fitz. 
 118 ; Perkins v. Bradley, 1 Ha. 219 
 (in which two cases the solicitor was
 
 ADVERSE RIGHTS OF THIRD PARTIES. 413 
 
 the presumption against such recollection would, no doubt, ^'ai^xv^ 
 be stronger in the case of counsel than of a solicitor [g] ; 
 and, even as respects a solicitor, there seems to be a diffi- 
 culty in holding that a purchaser, employing one who has 
 not acted for the vendor, can be affected by notice acquired 
 by him previous to retainer {h) . 
 
 And, as a general rule, the purchaser is equally affected Although 
 
 ' c3 -' i J. ./ sohcitor, 
 
 with notice although the solicitor, &c., be also employed ^,°- ■^^em- 
 by the vendor {i), or be himself the vendor {k) ; it was op\!!i'i?mseU' 
 decided by Lord Brougham, in opposition to the opinion 
 of Sir J. Leach, that a chent is not to be affected with 
 notice of a prior fraud committed by his sohcitor, which 
 the latter would, of course, conceal (/) ; this decision may, 
 perhaps, be thought to be inconsistent with others, in 
 which it has been held, that a mortgagee, employing the 
 mortgagor as his counsel or solicitor, is affected with 
 notice of a prior, and, as against the client-mortgagee, — 
 which is sufficient to bring the case within Lord Brough- 
 am's reasoning, — -fraudulent incumbrance created by such 
 mortgagor (m) : notice to a town or country agent would, 
 in general, be notice to the principal sohcitor {n) ; but, pro- 
 bably, the mere fact of the purchaser's sohcitor allowing, 
 (from motives of private friendship,) the vendor's solicitor 
 to transact, for his own benefit, the principal part of the 
 business which is usually done by the former, would not be 
 sufficient to constitute an agency (o) . 
 
 his own client in the later transac- (k) See Sheldon v. Cox, Amb, 624 ; 
 
 tion) ; Fuller v. Bennett, 2 Ha. 394 ; Dryden v. Frost, ubi supra. 
 
 and see Tylee v. Welb, 6 Beav. 552. {I) Kennedy v. Green, 3 Myl. & K. 
 
 {g) See 5 Jarm. Conv. by S. 490. 699. 
 
 {h) See Fuller v. Bennett, 2 Ha. {m) Sheldon v. Cox, Amb. 624 ; 
 
 394, 404, and Lord Cottenham's Marjoribanks v. Hovenden, 6 Ir. Eq. 
 
 remark as to Mr. Wightwick's evi- Rep. 238 ; but see Kendall v. Hulls, 
 
 dence in Wilde v. Gibson, 1 H. L. C. II Jur. 864, 
 
 624. (h) See and consider Norris v. Le 
 
 (J) Le Neve v. Le Neve, 3 Atk. ; Neve, 3 Atk. 37 ; Sug. 1041. 
 
 see p. 648 ; Dryden v. Frost, 3 M. (o) See Kendall v. Hulls, 11 Jur. 
 
 & C. 670. 864.
 
 414 
 
 EFFECT OF CONVEYANCE ON 
 
 Chap. XV. YoY the purpose of fixing a purchaser with notice, the evi- 
 confldentiai dcncc of his counscl, solicitor (jo), or (probably) certificated 
 
 communi- . . n • ^ 
 
 cations, no- convcyanccr [q) , respecting confidential (r) professional com- 
 be proved munications, is inadmissible ; and the rule includes the 
 clerk of the professional adviser {s), and the agent em- 
 ployed by the solicitor [t) ; but not (it would appear) an 
 unprofessional agent employed by the purchaser him- 
 self (?<), unless he be used merely as the medium of com- 
 munication with the professional ad\dser [w) : and the pri- 
 vilege extends to communications made by an mipro- 
 fessional agent to the professional adviser {x) ; but the 
 rule does not include a solicitor whom the pm'chaser con- 
 sults, not professionally, but as a friend, agent, or stew- 
 ard {y) ; nor a person whom he consults as, and sup- 
 posing him to be, a solicitor, but who is not so in fact [z] ; 
 nor, where the same solicitor is employed by both parties, 
 does it extend to communications which the purchaser 
 makes to him as solicitor for the vendor {a) ; nor to com- 
 munications made to the solicitor from collateral quar- 
 ters (b) ; but it extends to all communications which take 
 place between the purchaser and his solicitor (as such) 
 with reference to the purchase (c), and to documents 
 
 (p) See ParJchurst v. Lowten, 2 
 Sw. 194. 
 
 (y) See Cromack v. Heathcote, 2 
 Bro. & Bing. 4 ; Gresley on Ev. 380, 
 2nd ed. 
 
 (r) Walsh v. Trevanion, 15 Sim. 
 577. 
 
 (.s) Taylor v. Forstpr, 2 C. & P. 
 195. 
 
 {t) Steele v. Stewart, 1 Ph. 471. 
 
 (?/) Kerr v. Gillesjrie, 7 Beav. 572; 
 and see 1 Ph. 693. 
 
 (w) Reid V. Lanr/lois, 1 Mac. & G. 
 027. 
 
 (x) Carpmael V. Fowls, 1 Ph. (587. 
 
 {y) See Wilson w.Rastall, A Hm-n. 
 & E. 753, 759 ; Greenlavi v. King, 1 
 
 Beav. 137 ; and see BlenMnsopp v. 
 Blenkinsopp, 10 Beav. 277 ; reversed 
 on further evidence, 2 Phil. 007. 
 (2) Fountain v. Young, 6 Esp. 113. 
 
 (a) See Perry v. Smith, 9 M. & 
 W. 681. 
 
 (b) Sawyer v. Birchmore, 3 Myl. 
 & K. 572. A map of the estate which 
 the owner leaves with his solicitor for 
 the purpose of effecting a sale is not 
 jirivileged ; Doe d. Marriott v. Lord 
 Hertford, 13 Jur. 632. 
 
 (c) See Carpmael v. Fowls, 1 Ph. 
 092 ; Herring v. Clohery, 1 Ph. 91 ; 
 Jones V. Pugli, 1 Ph. 90 ; as to forms 
 of the demurrer, see Wahh v. Tre- 
 vanion, 15 Sim. 577.
 
 ADVERSE RIGHTS OF THIRD PARTIES. 415 
 
 belonging to the purchaser which he leaves with his ^apxv. 
 solicitor {d) ; nor does the pri\ilege cease by reason of the 
 professional adviser acquii-ing a personal interest in the 
 property to the title of which the confidential communica- 
 tion related (e) . 
 
 And it appears that even the purchaser himself will not, purciYiL 
 if a suit be instituted against him, be bound to produce topSct 
 letters written, or cases stated for the opinion of counsel, opinions. 
 either by himself or his solicitor, with a view either to that 
 suit or even to a suit with third parties, if respecting the 
 same matter and invohdng the same question to which 
 such letters and cases relate ; nor, a fortiori, the opinions 
 obtained on such letters and cases (/) ; and, according to 
 recent decisions, the same privilege seems to exist in 
 favour of cases laid before comisel with reference to a 
 known defect in title, although not with any view to 
 threatened litigation [g) : but, of course, an opinion which 
 in effect was taken for the joint benefit of the party seeking 
 and the party refusing production is not protected [h) . 
 
 As to the effect of notice when established : — It may be Effect of 
 
 *' notice. 
 
 laid down, as a general rule, that a pm'chaser with notice, 
 is, in Equity, " bound to the same extent, and in the same 
 manner as the person was of whom he purchased (i) :" for 
 
 (d) Sug. 1062; but where land Ha. 122; Reeee v. Trt/e, 9 Beav. 
 was recovered in ejectment, the soli- 316; Penruddoc/c v. Hammond, II 
 citor of the defendant was held bound Beav. 59, 61 ; but see Beadon v. Kinr/, 
 in equity to state to whom he had on 13 Jur. 550, V. C. E. ; as to cases of 
 behalf of his client delivered the title fraud, see Folleii v. Jeferies, 13 Jur. 
 deeds; Banner \. Jackson, 1 De G. 465; on appeal, 972; Reynell v. 
 & S. 472. Sprye, II Beav. 618; the mere con- 
 
 (e) Chant v. Brown, 7 Ha. 79. nection of the documents with the 
 (/) Holmes v. Baddeley, I Ph. Acts impeached by the bill is no 
 
 476; and see earlier cases there ground for their production, 5. C. on 
 
 cited. appeal. 
 
 {g) See Pearse v. Pearse, I De G. {h) Reynell v. Sprye, 10 Beav. 51. 
 
 & S. 12 ; Herring v. Clobery, 1 Ph. (i) Sug. 1031 ; Taylor v, Stibbert, 
 
 91 ; Holmes v. Baddeley, ib. 476 ; 2 Ves. jun. 439. 
 Lord Wahingham v. Goodricke, 3
 
 416 EFFECT OF CONVEYANCE ON 
 
 Chap . XV. instance^ he will be bound by a trust, or incumbrance, or 
 
 by any agreement respecting the estate of which he has 
 
 notice and which would have bound the estate in the 
 
 hands of the vendor {k) . 
 
 ^°^l%^^ The consideration of how far the purchaser is boimd by 
 
 IZites^ notice of an executory or executed agreement, which is, 
 
 &c., how far either wholly or in part, void or voidable, gives rise to 
 
 questions of greater difficulty. 
 Purchaser Where A., seised in fee, in consideration of his son's 
 
 from tenant ' ' 
 
 remaind"-- marriage settled the estate on himself for life, with 
 boumi to remainder to his son for Hfe, with the usual limitations in 
 
 give effect . . ., • i l i • 
 
 to agree- strict Settlement on his son s issue, with remainder to him- 
 
 ment by the 
 
 '^^•"nt of "^ self (A.) in fee : and with power for A. to lease, and with 
 rized^iease : ^^^ ^^^ ^^ ^^^^ ^^^^ cstatc ; and A. agreed to grant a lease 
 ^^' ^"' exceeding the power ; and then A. and the son, sold the 
 estate, the purchaser, who had notice of the agreement, 
 was compelled to perform it at the suit of the intended 
 lessee (/) ; Lord Roslyn thought that A/s agreement 
 bound the estate except as against the son and other 
 remaindermen claiming under the settlement, and that the 
 sale took the estate out of the settlement and left it 
 indefeasibly impressed with the agreement (m). Lord 
 Redesdale has expressed an opinion that the purchaser, 
 except to the extent of A/s life estate and remainder in 
 fee, ought not to have been bound (%) : Sir E. Sugden 
 seems to consider (o) that the decision can be supported 
 on the ground that the purchaser was bound to indemnify 
 the vendor against his liabihty to damages under the 
 contract, and refers to a case [p] where a copyholder 
 having granted a lease renewable with the Lord's licence. 
 
 {k) See Dowell v. Dnv, 1 Y. & C. {n) See 2 Scho. & Lef. 599, and 
 
 C. C. 345. Harrisson v. Duignan, 2 Dru. & War. 
 
 (/) Taylor v. Stihbert, 2 Ves. jun, 304. 
 
 437. (o) Sug. 1033. 
 
 {m) See p. 442. {p) Lufkin v. Nunn, 11 Ves. 170.
 
 ADVERSE RIGHTS OF THIRD PARTIES. 417 
 
 and the Lord lia^dng, in the name of a trustee^ purchased Chap, xv. 
 the copyhohl interest with notice of the lease^ and having 
 refused to renew^ a bill was filed by the lessee for specific 
 performance^ and Lord Eldon dii'ected a case to be sub- 
 mitted to the Common Pleas as to whether damages 
 could be recovered by the lessee upon the lessor's cove- 
 nantSj and upon receiving an opinion in the negative 
 dismissed the bill ; this, however, can scarcely be con- 
 sidered a decision : and it may be doubted whether the 
 vendor's right to an indemnity (supposing it to exist) can 
 give to the lessee a better hold upon the estate than he 
 originally possessed. 
 
 And it has been held that a purchaser who buys buysex^^"^ 
 
 prGssIv" sub* 
 
 expressly subiect to a partial interest which has no jecttonon- 
 
 r <> <> r existent or 
 
 existence {q) or is voidable {r), cannot dispute the right of ]^^^'f^^? 
 the party in whose favour the reservation is made ; and it thereby 
 has even been held in Ireland {s) that where an estate is 
 sold subject to void or voidable leases the vendor may set 
 them aside for his own benefit, upon securing to the pur- 
 chaser the payment of the rents and performance of the 
 covenants ; but the point is treated as doubtful by Sir E. 
 Sugden {t) ; although, he judicially admits that '' if a man 
 buys an estate subject to an incumbrance, and it turns out 
 that it is not a valid incumbrance, yet he may so buy it 
 as not to leave him the power to impeach it" (u) . 
 
 (q) Prettyman's case, cited in Wal- 12 Jur. 443. 
 
 ton V. Earl Stanford, 2 Vern. 279 ; (r) See Neild's case, cited 1 Moll. 
 
 but the rule seems to be otherwise at 453 ; and see Leader v. Aheanie, 2 
 
 law, see Doe v. Archer, 1 Bos. & P. Con. & L. 534. 
 
 531 ; so where a mortgage to A. falsely (s) Maguire v, Armstrong, 2 B. & 
 
 recited an equitable charge in favour B. 538, 548. 
 
 of B. and such charge was subse- (^) Sug. 1034. 
 
 quently created by the owner of the («) LI. & G. tem. Sug. 215, 216; 
 
 equity of redemption, it was held that Woody. Marquis of Londonderry, 10 
 
 A. must stand as first incumbrancer ; Beav. 465. 
 Frazer v. Jones, 5 Ha. 475 ; affirmed, 
 
 E E
 
 418 EFFECT OF CONVEYANCE ON 
 
 Chap. XV. In the case last referred to (tv) where the vendors 
 attempted to set aside leases for their own benefit without 
 the consent of the purchaser of the reversion, Sugden, C, 
 held that they had no such equity, and could not impeach 
 the leases unless they could also impeach the sale of the 
 reversion {x) : this decision was reversed by Plimket, C. ; 
 he considered Maguire v. Armstrong an authority, and as 
 founded on the clearest principles of common sense; he 
 however went on to observe [y), that " the pui'chaser had a 
 right to be secured in his rents by proper covenants in any 
 new leases ; this was done in Maguire v. Armstrong ;" thus 
 admitting the right of the purchaser to have as good a 
 security as he had under the original leases; — and not 
 adverting to the impossibility of determining the relative 
 values of covenants by the lessees and covenants by the 
 vendors (~) : now Maguire v. Armstrong seems to be no au- 
 thority for disregarding this difference, for the Court there 
 appears (a) to have recognized the purchaser's right to have 
 as good a security as he before had for the rents and cove- 
 nants, and to have founded its decision upon the assumption 
 (which seems to have been acquiesced in by the plaintiff) 
 that, in the particular case before the Court, the covenants 
 of the defendant might be considered equivalent to the 
 covenants of the lessees. An appeal to the Lords from 
 Lord Plunketfs decision went off upon another point [b) . 
 
 But it seems clear on principle, that if a vendor possess 
 any such right, the substituted security for the rent and 
 
 (w) Muskerry v. Chinnery, LI. & tees of W. P. is or is not an equi- 
 
 G. tem. Sug. 185. valent for the original covenant by 
 
 («■) LI. & G. tem. Sug. 219. W. P.," per V. C. Shadwel), 16 Sim. 
 
 (y) LI. & G. tem. PI. 196. 390 ; and see Ridgway v. Gray, 1 
 
 {z) " I apprehend that this Court Mac. & G. 109. 
 
 can never enter into the question («) See 2 B. & B. 548. 
 
 whether the covenant which binds (i) See Sheehy v. Muskerry, 7 CI. 
 
 the assets of the executors and trus- & Fin. 1 .
 
 ADVERSE RIGHTS OF THTRD PARTIES. 419 
 
 covenants should be given to the purchaser before the chap. xv. 
 commencement of litigation against the tenants, and 
 should be binding whatever may be its result : for, " the 
 very litigation might unsettle and ruin the tenant and 
 after all prove unsuccessful" (c). 
 
 ^^ Where the consent of a person is essential to the ffTa'ild sub- 
 validity of a lease agreed to be granted, and he himself ment°may^' 
 purchases the inheritance with full notice, vet he Avill not mine lease 
 
 of ease- 
 be bound by it" id) : but where land subiect to a lease of ment as 
 
 *' ^ ' "^ against pur- 
 
 a way leave at a reserved rent determinable by the lessee, rent re°erv- 
 was sold apart from the rent, and the pm*chaser of the ^^ ^'^ ^^^^^' 
 land agreed with the lessee to determine the lease, and 
 entered into a different one, in order to defeat the right of 
 the purchaser of the rent, the latter was held entitled to 
 have it made good out of the new contract (e) . 
 
 It was held, in a recent case, where a person, having Purchaser 
 
 ' ' . of estate iu 
 
 mortgaged in fee, demised the property without the con- ^{Jgn^^li" 
 currence of the mortgagee, that a purchaser of the fee sim- voidaWe*' 
 pie, who by one deed took a conveyance of the legal estate 
 from the mortgagee and of the equity of redemption from 
 the representative of the mortgagor, was not estopped at 
 Law, although he received rent from the tenant ; but 
 might eject him after the expiration of the usual notice to 
 quit(/). 
 
 Notice of a conveyance which comes within the provi- ^"J;^'^^,"^^ 
 sions of the 27 EHz. c. 4, as bemg made for the purpose of anclsf&c, 
 defrauding purchasers [g), or as reserving a power of '"^"^'^t^"" 
 
 (c) Per Sugden, C, LI, & G. tem. veyance, and the want of title had 
 
 Sug. 218. not appeared on the face of the lease; 
 
 {d) Sug. 1032, citing Lufkin v. see Right d. Jefferys v. Bucknell, 2 
 
 Niinn, 11 Ves, 170. B. & Ad. 278. 
 
 (e) Wood V. Marquis of London- (g) Equitable mortgagee by de- 
 
 derry, 10 Beav. 465. posit with memorandum of agree- 
 
 (y) Doe d. Lord Downe v. Thomp- ment for a legal mortgage is a pur- 
 
 .90H,9 Q. B. R. 1037 ; he would have chaser within the Act; Lister v. 
 
 been estopped had the mortgagor got Turner, 5 Ha. 281 ; Ede v. Knotvles, 
 
 in the legal estate prior to the con- 2 Y. & C. C. C. 172. 
 
 E E 2
 
 420 EFFECT OF CONVEYANCE ON 
 
 Chap. XV. revocation to tlie grantor (/<), is immaterial; and the pur- 
 chaser's title will be good at Law and in Equity. 
 What are so j^ jg settled that a mere voluntaiy conveyance (unless 
 
 consiuereu. " 
 
 it be in favour of a charity) {i), is fraudulent within the 
 meaning of the Statute ; e. g., a conveyance in trust for 
 creditors who ai-e not parties to the arrangement {k), or a 
 post-nuptial settlement upon the settlor's wife, husband, or 
 family [I), unless made in pui'suance of a binding [m) ante- 
 nuptial agi'cement {n), or of a further portion {p), or of an 
 agreement to pay a further portion which is afterwards 
 paid {p), or of the wife relinquishing her interests under 
 an existing settlement {q), or her jointure or dower if) (if 
 married before the late Act came into operation) ; and in 
 separation deeds the covenant usually entered into by the 
 tnistees to indemnify the husband against her debts, will 
 as against creditors {s), and also, it is conceived, as against 
 subsequent pui'chasers, support any fiu'ther settlement he 
 may make upon her : so, if a post-nuptial settlement be 
 made with the aid of another person Avhose concurrence is 
 
 (Ji) See sect. 5. 454 ; Randall v. Morgan, 12 Ves. 
 
 (i) Alt. -Gen. v. Corporation of 74 ; Ex parte Hall, 1 Ves. & B. 
 
 Netvcastle, 5 Beav. 307; 12 CI. & 112; see Battersl/ee \. Farrington, 1 
 
 Fin. 402. Sw. 106. 
 
 (k) Leech v. Leech, 1 Ch. Ca. 249 ; (o) Brown v. Jones, 1 Atk., see 
 
 Walwyn v. Cmitts, 3 Mer. 707 ; 3 p. 190. 
 
 Sim. 14 ; Acton v. Woodgate, 2 Myl. ( jw) S. C. 
 
 & K. 492 ; Garrard v. Lord Lau- (g) Ball v. Bnmford, Prec. in Ch. 
 
 derdale, 3 Sim. 1 ; Wilding v. Rich- 113 ; Parker v. Carter, 4 Ha. 409. 
 
 ards, 1 Coll. 655 ; Smith v. Keating, (r) See Sug. 936. 
 
 6 C. B. 136 ; Simmonds v. Palles, 2 (*) See Worrall v. Jacob, 3 Mer. 
 
 J, & L. 489 ; but see Langton v. 256 ; but the introduction of such a 
 
 Tracy, 2 Ch. R. 16, and Sug. 929. covenant is not, as has been often 
 
 (l) Evelyn v. Templar, 2 Bro. C. C. supposed, essential, but any other 
 
 148; Doe V. iZoe, 6 Sco. 525 ; Currie good consideration will be equally 
 
 V. Nind, 1 Myl. & C. 17, a case of effective; see Framptony. Framjiton, 
 
 copyholds settled by a married woman 4 Beav. 294; Wilson v. Wilson, \\ 
 
 during coverture. Sim. 405, affirmed in D. P. 12 Jur. 
 
 (ni) See 12 Ves. 74. 467. 
 (h) Gripn v. Stanhope, Cro. Jac.
 
 ADVERSE RIGHTS OF THIRD PARTIES, 4,21 
 
 essential to its fall validity — as in the case of a settlement ^ap.jcv^ 
 by tenant for life and tenant in tail in remainder — this will^ 
 as a general rule, take from the instrument its voluntary 
 character {t) . 
 
 Marriage is in itself a sufficient consideration for an sufficient* 
 antenuptial settlement upon the husband, wife, or issue (m) ; tion fo"*^" 
 which, as against the settlor, or the heirs of the settlor, is 
 good as in favour of collaterals (v) : but how far hmitations whether 
 
 ° ^ ' hmitations 
 
 in favour of collaterals can be supported as against subse- |.aig°^r''^'^' 
 quent bond fide purchasers for value, appears to be still ^''''^' 
 doubtful. 
 
 Unnecessary difficulty appears to have been thrown over 
 the cases upon the subject, by a confusion between the 
 contract and the consideration for the contract : the com- 
 mon form of objection is, that collaterals are ''not within 
 the consideration of the marriage" {iv) : now this expres- 
 sion is, it is submitted, scarcely accurate : if A. agreed with 
 B. to pay him 10,000/., in consideration of his conveying 
 his estate to the use of A. for life with remainders over in 
 favour of strangers, and the money were paid, and the 
 conveyance executed accordingly, a question might arise, 
 whether the remaindermen took beneficially or in trust 
 for A., but subsequent purchasers from B. could hardly 
 contend that the hmitations in the settlement, ultra A.'s 
 life estate, were void upon the ground of the remainder- 
 men not being " within the consideration of the 10,000/." 
 In the case of a marriage settlement, the important ques- 
 tions seem to be, first, whether the collaterals were within 
 the contract? and secondly, whether (if so) there was a 
 sufficient consideration for such a contract ? 
 
 Upon the first question, (considered merely as one of ^^.f^g'"'" 
 
 (t) Myddleton v. Lord Kenyan, 2 190. 
 Ves. J. 391 ; see 410, and cases cited {v) Davenport v. Bishopp, 1 Ph. 
 
 in Doe v. Rolfe, 8 Ad. & E., see p. 698 ; S. C, 2 Y. & C. C. C. 451 ; 
 
 659; but see also tliat case, infra, 42'S. in which see the earlier cases cited. 
 
 («) See Brown v. Jones, 1 Atk. («') 18 Ves. 92.
 
 422 
 
 EFFECT OF CONVEYANCE ON 
 
 Chap. XV. 
 
 should be 
 considered 
 within the 
 marriage 
 contract — 
 when. 
 
 if within 
 the con- 
 tract, mar- 
 riage forms 
 a sutlicieut 
 considera- 
 tion to sup- 
 port them, 
 setnble. 
 
 principle,) it is submitted, tliat where tlie limitations over 
 are in favour of tlie collateral relations or connections, not 
 of the settlor, but of the other contracting party, (whether 
 M^ife or husband,) the settlement itself may be considered 
 prima facie e\ddence of such other party having stipiilated 
 for their insertion : so, where, on a settlement of the 
 intended wife's estate, the limitations over are in favour of 
 her own collateral relations, in derogation from the hus- 
 band's marital right by sLirA^vorship, (in case of person- 
 alty,) or as tenant by the cm'tesy, (in case of realty :) 
 where, in any case, other than that last referred to, the 
 limitations over are in favour of the collateral relations 
 or connections of the settlor, such presumption cannot so 
 readily arise ; but it might be proved that the other party 
 stipulated for their insertion : if such a stipulation cannot 
 be presumed or proved, the limitations must, it is con- 
 ceived, be considered voluntary, and void as against a sub- 
 sequent bond fide purchaser. 
 
 Nor do the reported cases (of) where limitations in a mar- 
 riage settlement in favour of collaterals have been held in- 
 valid, appear to be inconsistent -with the above suggestions. 
 
 As to the second point — If upon marriage the husband's 
 estate were settled upon the wife, giving her an absolute 
 power of sale and control over the purchase-money, 
 effectually excluding him from any futui'e participation 
 therein and without seeming to him the indirect advantage 
 of a permanent provision for her, the marriage, it is con- 
 ceived, would clearly be a sufficient consideration for such 
 a settlement ; although she might at once sell the estate 
 and hand over the purchase-money to her own relations : 
 and, if so, upon what principle can it be contended that 
 the marriage would not equally have been a sufficient con- 
 sideration for anv Hmitations in favour of such relations. 
 
 (,i) See Osgood v. Strode, 2 P. 
 Wms. 245 ; Johnson v. Leyard, 3 
 Madd. 283 ; Cotferell \. Homer, 13 
 
 Sim. 50G ; Slucpoole v. Stacpuolc, 2 
 Cou. & L. 48y.
 
 ADVERSE RIGHTS OF THIRD PARTIES. 
 
 423 
 
 which mighty upon her stipulation, have been introduced chap. x v. 
 into the settlement ? The case of a woman marrying, and 
 stipulating for a provision in favour of parents, or others, 
 who had previously been dependent on her exertions for 
 support, may suggest the hardships which might result 
 from maintaining a contrary doctrine. The impossibility 
 of restoring the consideration by replacing either party in 
 his or her original status, is, in itself, a sufficient reason 
 why full effect should be given to any arrangements which 
 were considered to form the equivalent, or part of the 
 equivalent to such consideration {y) . 
 
 And where the settlement is made by a party other than ta"tionsTup- 
 the husband and wife, — as where, on the marriage of a necessary 
 
 concurrence 
 
 tenant in tail, the tenant for life in possession concurs m of third 
 
 •' -^ person in 
 
 barring the entail and re-settling the estate, — the validity ^^l^^tt"*^' 
 of limitations in favour of other branches of the family,' or 
 (it is conceived) of strangers, seems to be unquestionable {z) : 
 so, even the mother of the husband releasing the lands 
 from an annuity, and accepting a substituted security for 
 its payment, has been held a sufficient consideration for 
 limitations in favour of her younger children (a) . A 
 settlement, not on marriage, by tenant for life and tenant 
 in tail, was, under special circumstances, held void as 
 against a purchaser in a modern case {b) ; but the de- 
 cision seems to be disapproved of by Sir E. Suffden (c) . 
 
 And hmitations to collaterals, which precede a limita- cecUni'ifmi. 
 tion in favour of issue of the marriage, will, it seems, be is^sue of 
 
 ,..,,. , V ., marriage. 
 
 vahd {d) : so, the remoteness of a limitation (e), or its 
 
 (y) See Jenkins v. Keymes or Strode, 2 P. Wms., see p. 256 ; and 
 
 Keijmis, 1 Lev. 237 ; where it was held Pulvertoft v. Pulvertoft, 18 Ves. 92. 
 
 that the wife's marriage portion was a (a) Roe v. Mitton, 2 Wils. 356. 
 
 sufficient consideration for limitations {h) Doe v. Rolfe, 8 Ad. & E. 650. 
 
 to the issue of the husband by a (c) Sug. 935. 
 
 second marriage. (d) Clayton v. Earl Winton, 3 
 
 {z) See Jenkins v. Keijmes or Madd. 302, n. ; and see Sug. 934. 
 
 Keymis, 1 Lev. 150, 237 ; Osgood v. (e) 2 P. Wms. 255.
 
 24 
 
 EFFECT OF CONVEYANCE ON 
 
 Chap. XV. 
 
 Settlement 
 by widow, 
 valid. 
 
 Considera- 
 tion not 
 expressed 
 may be 
 proved. 
 
 Settlement 
 may be 
 supported 
 by matter ex 
 post J act o. 
 
 Whether 
 heir or de- 
 visee can sot 
 aside volun- 
 tary or frau- 
 dulent deed. 
 
 l)eiug subsequent to a vested estate tail (/), may perhaps 
 be sufficient to sustain it. 
 
 And a settlement by a widow, before her second mar- 
 riage, upon her children by a deceased husband, is not 
 fraudulent within the Act ; even although they are them- 
 selves married and have issue [g] . 
 
 A settlement or conveyance, apparently volimtary, may 
 be supported by any evidence, (consistent with its terms,) 
 which proves that it was in fact made for good considera- 
 tion (//) : so, although originally voluntary, it may be made 
 good by subsequent matter ; e.g., the marriage of the party 
 claiming under it beneficially (i) — even although its exist- 
 ence be not shown to have been considered in the marriage 
 treaty {k), — or by a sale, for consideration, by the volim- 
 tary grantee (/) ; or, probably, (in the case of a creditors' 
 deed,) by the fact of creditors having, upon the faith of it, 
 refrained to enforce their remedies against the debtor (w) . 
 
 A settlement " really fraudident or fraudulently kept on 
 foot" [n), would seem to be void as against a bond fide 
 purchaser even from the heir or devisee of the settlor (o) : 
 but a mere voluntary deed cannot, it would appear, be 
 avoided by a sale by the heir (y>) : and, of coui'se, it 
 will not be avoided by a subsequent conveyance apparently 
 made for value but in fact voluntary {q) . 
 
 Atk. 
 2 P. 
 
 Tod. 
 Tar- 
 
 (/) See Sug. 932. 
 
 (//) A^ew.itead v. Searlcs, 1 
 2(>5 ; and see Khir/ v. Cotton, 
 Wms. 674. 
 
 (A) See Sug. 938 ; Pott v. 
 huntei', 2 Coll. 76 ; Clifford v, 
 rell, I Y. & C. C. C. 138. 
 
 ( j) Kirk V. Clark, Prec. in Ch. 275 ; 
 East India Company v. Clavel, 2 Eci. 
 Ca. Abr. 52, and other cases cited ; 
 5 Bac. Abr. tit. Fraud, C. ; Johnson 
 V. Legard, Turn. & Russ. 294. 
 
 (k) See Broun v. Carter, 5 Ves. 
 8f)2, see p. 876. 
 
 (/) Prodgers v. Langham, 1 Kid. 
 see 134 ; George v. Milbanke, 9 Ves. 
 190. 
 
 (>«) See Acton v. Woodgaie, L Myl. 
 & K. 492 ; and see also Ilinde v. 
 Blake, 3 Beav. 234 ; and Kinran v. 
 Daniel, 5 Ha. 493 ; and a very recent 
 case of Harland v. Binks, 14 Jur. 
 979, Q. B. 
 
 («) Sug. 928. 
 
 (o) Burrel's case, 6 Rep. 72. 
 
 (p) Parker v. Carter, 4 Ha. 409. 
 
 (q) Roberts v, Williams, 4 Ha. 
 130.
 
 ADVERSE RIGHTS OF THIRD PARTIES. 425 
 
 The 5th sect, of 27 Eliz. c. 4, seems to comprise all settle- ti»ap- ^y- 
 meutSj although made for valuable cousideratiou {r), which w1thlJow°er* 
 reserve what is, either expressly or virtually, a power of re- tion7frau- 
 vocatiou to the settlor ; e. y., an unlimited power to charge 
 by way of mortgage {s) ; or a power to revoke on payment 
 of 10s. if), or with the consent of a person nominated by 
 the settlor (m) : but a power to charge a reasonable spe- 
 cified sum {p\ or to revoke upon terms which are fau'ly 
 calcidated to preserve the substantial rights of the parties 
 interested under the limitations {x), seems to be miob- 
 jcctionable : and Sir £. Sugden expresses an opinion {y), 
 that where a settlement made for valuable considera- 
 tion contains a power of revocation which is afterwards 
 released for valuable consideration, a purchaser, bupng 
 subsequently to such release, would be postponed to the 
 settlement : probably the residt might be the same al- 
 though there were no consideration for the release, if the 
 purchaser had notice of it : but a secret release will not 
 affect a purchaser [z) . 
 
 Nor will a pui'chaser be affected by notice of an equit- ruithascr 
 
 r J T. vv-itli notice, 
 
 able claim, if he pui'chase from a vendor who himself vemiof ^™™ 
 bought bond fide without notice (a). It has been held tIce,*pro°" 
 that, in the case of a charitable trust, want of notice, in 
 order to be effectual, must have existed on the part of 
 the first piu'chaser who held adversely to the trust; 
 and that, if he bought with notice, the want of notice in 
 any subsequent purchaser is immaterial {h) . This is a 
 doctrine which the Courts would probably be unwilling to 
 
 (r) See Sug. 942. (y) Ibid. 943. 
 
 («) Tarback V. Marbury, 2 Vern. (2) /jw/tocA v. TAorae, Moore, 615. 
 
 510. (rt) See Brandlyn v. Ord, 1 Atk. 
 
 {t) See Griffin v. Stanhope, Cro. b'! I, and Lowther \. Carlton, 2 Atk. 
 
 Jac. 455. 242 ; Sweet v. Southcote, 2 Bro. C. C. 
 
 (m) Twi/ne's case, 3 Rep. 82 b. 66. 
 
 («•) Jenkim v. Keymes or Keymis, (b) See East Grimsted case, Duke's 
 
 1 Lev. 150. Ch. Uses, 640, A. D. 1633. 
 
 (x) See Sug. 942,
 
 426 
 
 EFFECT OF CONA'EYANCE ON 
 
 Chap. XV. 
 
 Settlements 
 to defraud 
 creditor, 
 void under 
 13 Kliz. c. 5. 
 
 On what 
 terms pur- 
 chaser is 
 evicted in 
 Equity. 
 
 countenance. If trust-property which has been impro- 
 perly sold finds its way back to the trustee, it becomes re- 
 impressed with the trust, notwithstanding any want of 
 notice on the part of intervening purchasers (c) . 
 
 By the 13th EHz. c. 5, (made perpetual by the 29th 
 Ehz. c. 5), conveyances made of fraud, to the intent to 
 delay, liinder, or defraud creditors, are declared to be void : 
 but the Act is not to extend to conveyances made upon 
 good consideration and bond fide to persons without notice 
 of the intended fraud [d) . A conveyance can, it appears, 
 be set aside as fraudulent against creditors only at the 
 instance of a person who was a creditor at the time ; 
 though, when it shall have been set aside, subsequent 
 creditors may be let in {e). 
 
 Where a pui'chaser for value is evicted in Equity, under 
 a prior title, he will be credited with all moneys expended 
 by him in necessary repairs or pennanent improvements, 
 (except improvements made after he has discovered the 
 defect of title) (/) ; and will be debited with the rents 
 which he has received : but, unless guilty of actual fraud 
 or purchasing with notice of an infant's title {g), the ac- 
 count will not extend to such rents as, without his neglect 
 or default, he might have received (/<) : nor will he be con- 
 clusively bound by his admissions in his answers as to 
 receipts {i) ; nor will annual rests be directed, unless a spe- 
 cial case for that form of decree be made on the plead- 
 ings [k] ; and the decree should contain a direction for 
 
 (e) Kennedy v. Daly, 1 Sch. & 
 Lef. ; see p. 379. 
 
 {d) Sect. 6 ; see Wood v. Dixie, 7 
 Q. B. 892 ; and see, on the general 
 construction of the statute, Ticyne's 
 case, 3 Rep. 80 ; 1 Smith's Leading 
 Cases, 1, and cases cited in note, and 
 the late case of Skarf v. Soulby, 1 
 Mac. & G. 364, and cases cited. 
 
 (e) Per V. C. K. B., Ede v. Kiiowles, 
 
 2 Y. &C. C. C. 178. 
 
 {/) See Kenney v. Brotone, 3 Ridg. 
 P. C. 518 ; Clare Hall v. Harding, 6 
 Ha. 273. 
 
 {y) Blomfield v. Eyre, 8 Beav. 250. 
 
 (/i) Howell V. Hoivcll, 2 Myl. & Cr, 
 478. 
 
 (0 s. c. 
 
 {k) Neesom v. Clarkson, 4 Ha. 97 ; 
 see Donovan v. Fricker, Jac. 165.
 
 ADVERSE RIGHTS OF THIRD PARTIES. 427 
 
 just allowances (/) . In a recent case, wliere a man com- c'lap. xv. 
 pletecl the piu'chase of and paid for an estate which his 
 ^vife had contracted for before marriage, and then sold it 
 without her concurrence, the purchasers upon beiug e^dcted 
 by the -wife's heir after the husband's death were allowed 
 a lien on the estate for the pui'chase-money paid by the 
 husband and for moneys expended in lasting improvements 
 from the date of his purchase, with interest ; but, accept- 
 ing this rehef, they were treated as mortgagees in posses- 
 sion, and debited with rents received, or which might but 
 for wilful default have been received, during the like pe- 
 riod (m). 
 
 If the estate 
 
 Where the purchase is of the estate of an initmt, the belonged 
 
 to 
 
 iufaut. 
 
 purchaser may, it seems, be treated as a bailiff, and be 
 
 charged with interest on his balances, and with such rents 
 
 as he might have received but for wilful default (n) . 
 
 Where land vested in trustees upon an express trust is Linlitadons 
 
 sold by them in breach of trust, the conveyance to the run on con- 
 veyance by 
 purchaser sets the Statute of Limitations running as trustees. 
 
 against the cestuis que trust (o) ; but, as we have already 
 
 seen (j!>), a much shorter time than the statutory limit will 
 
 liar a cestui que trust who, without reasonable excuse, 
 
 knowLQgly neglects to prosecute his claim to the property. 
 
 In cases of concealed fraud the Statute does not begin to 
 
 run until the fraud is or might be discovered [q) . 
 
 (Z) Howell V. Howell, 2 Myl. & Cr. fits being carried back to the date of 
 
 478. Syke's purchase ? 
 
 (/«) See Neesom v. Clar/cson, 2 Ha. (u) Blomjield v. Eyre, 8 Beav. 250 ; 
 
 176; 4 Ha. 97; quare whether an and see Wi/llie v. Ellice, 6 Ha. 505. 
 allowance should not have been made (o) 3 & 4 Will. IV. c. 27, s. 25. 
 
 for interest upou the difference be- {]>) Supra, p. 25. 
 
 tvveenClarksou's and Syke's purchase- (y) See sect. 26. 
 
 money, the account of rents and pro-
 
 438 
 
 EFFECT OF CONVEYANCE ON 
 
 Chap. XV. 
 
 Contribu- 
 tion by pur- 
 chasers to 
 paramount 
 charge. 
 
 (6.) As to contribution to paramount charges. 
 Where an estate subject to a paramount charge becomes 
 divided amongst several bond fide purchasers, it becomes a 
 matter of some difficulty to determine the proportions in 
 which they are to bear it as between themselves. The 
 authorities on the subject will be fomid stated in fall in a 
 learned note by the Editor of Mr. Jarman's work on Con- 
 veyancing (r), and seem to lead to the following conclu- 
 sions, viz. 
 
 If two estates, X. and Y., are subject to a common 
 charge, and estate X. be sold to A., A. will, as against the 
 vendor and his representatives, have a prima facie equity, 
 in the absence of express agreement, and whether or no 
 he had notice of the charge, to throw it on estate Y. in 
 exoneration of estate X. («) . 
 
 If, then, estate Y. be subsequently sold to B. with 
 notice of the charge and of the prior sale of X. to A., B. 
 piu-chases with notice of A.'s equity, and the entire charge 
 must rest upon Y. {t). 
 
 If B., at the time of his purchase, have notice of the 
 charge as affecting Y., but be not led to suppose that 
 estate X. is also subject to it, or if he purchase without 
 notice of the charge, and A. purchased with notice of the 
 charge as affecting Y,, in either of these cases, it is con- 
 ceived, B.'s equity is inferior to A.^s, and the entire charge 
 must rest upon Y. 
 
 If B. pm'chase ^\ath notice of the charge as affecting Y., 
 and with no notice of the sale to A., and be led to sup- 
 pose that X. is subject to the charge, or if both purchase 
 without notice of the charge, B.'s equity would appear in 
 either case to be equal in degree to A.'s; so that, either 
 
 (r) Vol. IX. pp. 127 et seq. 
 
 (.v) The marginal note to Barnes 
 V. Racstcr, I Y. & C. C. C. 401, is 
 incorrect ; the first mortgage in that 
 
 case was of only one estate, see p. 
 403. 
 
 {() See and consider Ilamillou v. 
 Ruyse, 2 Sch. & Lef. 315, 328.
 
 ADVERSE RIGHTS OF THIRD PARTIES. 429 
 
 party, by taking a transfer of tlie charge and the seen- ^''"p- ^'^^- 
 rities, (supposing them to be sucli as to give the incum- 
 brancer a claim at law against the two estates,) would, 
 it is conceived, be able to throw the charge exclusively 
 upon the other {u) ; so, the incumbrancer liimself, if able 
 to proceed at Law against the estates, might proceed 
 against the two in such proportions, or against such one 
 only, as he saw fit ; and the purchasers, if they had the 
 legal estate, (as might happen in the case of the incum- 
 brance being a rent-charge,) would have no remedy as 
 between themselves ; but if their estates were equitable, or 
 if the incumbrancer were obliged to, or did in fact, resort 
 to a Com-t of Equity for payment of his claim, then, the 
 equities being equal, A.'s would prevail as being prior in 
 date. 
 
 (7.) As to the rights of third parties after conveyance 
 
 in various cases. 
 The Lands Clauses Consolidation Act, 1845, contains Provision in 
 
 , . , , - Lands 
 
 provisions which enable the promoters of an imdertakinff, clauses con- 
 
 '- 0-' sohdation 
 
 upon the discovery at any time of the existence of any out- tonnncu^^e 
 
 standing estates or interests, to piu'chase the same com- omiued'to' 
 
 pulsorily (w), ^l^l^. 
 
 In a recent case, where an estate was devised to A Estate sold 
 
 for full 
 
 subject to the payment of a legacy,— which was held to J^fy^ctmb.^ 
 charge only the estate and not A. personally,— and A. ihaVgV' 
 sold the estate to B. with notice of the legacy, but without bothTarties, 
 any reduction of piu'chase-money being made in respect posed to be 
 
 - . ./ o 1 invalid, in- 
 
 thereot, (the parties having determined that the charge h™noXfm 
 was, upon technical grounds, inoperative,) it was held that vfncTor for 
 the legatee could not treat A. as a trustee in respect of so money.'"" 
 
 («) See Titlei/ v. Davies, 2 Y. & of copyholds according to a form pre- 
 
 C. C.C. 399; and see Sober v. Kemp, scribed in a private Act, see Grand 
 
 6 Ha. 155, Junction Canal Company v. Dimes, 
 
 (w) See 8 Vict. c. 18, s. 124, e( 15 Sim. 402. 
 !eg ; as to the effect of a conveyance
 
 430 
 
 EFFECT OF CONVEYANCE ON 
 
 Chap. XV. 
 
 Effect of 
 conveyance 
 of equity of 
 redemption 
 to mortga- 
 gee. 
 
 Mortgagee 
 
 selling after 
 
 foreclosure 
 
 cannot 
 
 resort to 
 
 collateral 
 
 securities. 
 
 Purchaser 
 from mort- 
 gagee under 
 power of 
 sale, bound 
 by agree- 
 ment with 
 mortgagor 
 to allow him 
 to redeem. 
 
 Conveyance 
 deterniiues 
 parol li- 
 cence. 
 
 Purchaser 
 of part of 
 rent-charge 
 may dis- 
 train. 
 
 Purchaser 
 when liable 
 fornuisance. 
 
 much of tlie purchase-money as would answer the 
 legacy (s). 
 
 Where a mortgagee piirchases and takes a conveyance 
 of the equity of redemption^ he thereby lets in all sub- 
 sequent incumbrances of which he had notice (y) . 
 
 If a mortgagee^ after foreclosure, faii'ly sell the estate 
 for less than the amoimt due to him, he cannot aftervA'ards 
 recover from the mortgagor, upon his collateral personal 
 security, the amount remaining vmsatisfied {z) . 
 
 A person who having contracted Anth a mortgagee for 
 the piu'chase of the property under his power of sale, 
 entered into a subsequent agreement with the mortgagor 
 to allow him to redeem, and then took a conveyance of 
 the property, has been held bound by such agreement {a) . 
 
 The conveyance, we may remark, puts an end to a parol 
 licence from the vendor to a stranger, to enjoy an ease- 
 ment over the estate ; and if he afterwards enter on the 
 land, his ignorance of the sale Mill be no defence to an 
 action of trespass at the suit of the purchaser {b) . 
 
 It would appear that if, upon the purchase of a rent- 
 charge, the same be conveyed to several piu'chasers, each 
 may distrain upon the tenant before attornment {c) . 
 
 In Rex V. Pedly [d) it was laid down by Littledale, J., 
 that if a man pm*chase premises with a nuisance upon them, 
 though there be a demise for a term at the time of the 
 
 (x) Jillard v. Edgar, 13 Jur. 1114; 
 and see Kent v. Neivman, on appeal, 
 ibid. 1115 ; reported on hearing at 
 the Rolls, 1 Mar. 241. 
 
 (y) Greswold v. Marsham, 2 Ch. 
 Ca. 170; Brown v. Stead, 5 Sim. 
 535 ; and see Toulmin v. Steere, 3 
 Mer. 210 ; Smith v. Phillips, 1 Keen, 
 694 : qucBre, whether the same would 
 be the effect of a mere contract for 
 purchase ; see Watts v. Symes, 16 
 Sim. 640, and also the third point 
 
 decided in Mocatta v. Murgatroyd, 1 
 P. Wms. 393. 
 
 (r) Lockhart v. Hardy, 9 Beav. 
 349. 
 
 (a) Orme v. Wright, 3 Jur. 19. 
 
 {b) Wallis V. Harrison, 4 M. & W. 
 538. 
 
 (c) Rivis V. Watson, 5 M. & W. 
 255, 
 
 {d) 1 Ad. & E. see 827; and 
 see Rosewell v. Prior, 2 Salk. 460.
 
 ADVERSE RIGHTS OF THIRD PARTIES. 431 
 
 purchase, so that he has no opportunity of removing the chap. xv. 
 nuisance, yet by purchasing the reversion he makes himsehf 
 liable for the nuisance. But if, after the reversion is pur- 
 chased the nuisance is erected by the occupier, the rever- 
 sioner incui's no liability. Yet if there were only a tenancy 
 from year to year, or any short period and the landlord 
 chose to renew the tenancy after the tenant had erected the 
 nuisance, that would make the landlord liable. He is not 
 to let the land with a nuisance upon it. But in a late 
 case (e) the Coui-t of C. P. held that — although a man may 
 be liable for demising premises when the nuisance exists, 
 or for relettmg them after their user has created a 
 nuisance, or for not doing that which he had undertaken 
 to do and which would have prevented the nuisance — 
 yet he is not responsible for the act of his tenant in 
 creating a nuisance by the manner in which he uses the 
 premises — they being such as may or may not become a 
 nuisance. 
 
 (e) Rich V. Basterfield, 4 C. B. 783, 805.
 
 432 
 
 Chap. XVI. 
 
 CHAPTER XVI. 
 
 AS TO THE RIGHTS, UNDER THE CONVEYANCE, OF JOINT 
 PURCHASERS, AND PERSONS OTHER THAN THE NOMINAL 
 PURCHASERS. 
 
 Purchasers 
 joint-ten- 
 ants at Law, 
 when so in 
 Equity. 
 
 Not if they 
 contribute 
 unequally 
 to purchase- 
 money ; 
 
 1. As to joint purchasers. 
 
 2. As to purchasers in name of nominal purchaser. 
 
 (1 .) A CONVEYANCE of land to two or more persons, with- 
 out words indicating that tliey are to take as tenants in 
 common, constitutes, at Law, a joint-tenancy (a) ; and the 
 rule is the same in Equity, if they advance the money in 
 equal proportions {U), and do not purchase as partners, or 
 for the purposes of trade or speculation. 
 
 If, however, two purchase, and one advance more of the 
 purchase-money than the other, there will, in Equity, be 
 no survivorship, although there are no words indicating a 
 tenancy in common (c) ; but they will, in the absence of 
 any stipulation to the contrary, be interested in proportion 
 to their shares of the purchase-money. In Lake v. Gib- 
 son {d), the proposition is qualified by the expression, "if 
 the proportions of the money are not equal, and this 
 appears on the deed itself," and the dictum is thus cited 
 by Sir E. Sugden (e) : but the rule is laid down by Lord 
 Hardwicke without qualification (/). It is, however, con- 
 ceived, that the inequality in the sums advanced, must, to 
 
 («) Co. Litt. 180.b. 
 lb) Sug. 901. 
 
 (c) Riffden v. ValUer, 2 Ves. sen. 
 252, 258; S. C, 3 Atk. 731, 735. 
 
 (d) 1 Eq. Ca. Ab. 291. 
 
 (e) Sug. 902. 
 
 (/) 2 Ves. sen. 258 ; 3 Atk. 735.
 
 RIGHTS UNDER CONVEYANCE, OF JOINT PURCHASERS^ ETC. 
 
 433 
 
 or purchase 
 for the pur- 
 pose of 
 trade or 
 speculation ; 
 
 or, being 
 joint-te- 
 nants, sub- 
 sequently 
 agree to 
 hold pro- 
 perty as if 
 in trade. 
 
 have this effect, be in accordance with the original or some Chap. xvi. 
 subsequent express agreement between the parties; and 
 not be the mere result of any temporary pecuniary ar- 
 rangement at the time of the completion of the pur- 
 chase {g). 
 
 So, where land is conveyed to partners as joint-tenants 
 for the purposes of trade, there is no survivorship in 
 Equity [h) ; so, also, if it be conveyed to piu-chasers, not 
 otherwise in partnership, as joint-tenants, but for the piu*- 
 pose of a joint adventm'e or speculation [i) ; "the purchase 
 of the land being made to the intent that they shall 
 become partners in the improvement; it being only the 
 substratum for an adventm^e in the profits of which it was 
 intended they should be concerned" {k) . 
 
 So, if joint-tenants subsequently contract to deal with 
 the property as if in trade, the Court will receive e^idence 
 of such a contract ; and will hold that there is no survivor- 
 ship (/). 
 
 And where partners purchased land out of partnership 
 profits, and let it, but brought the profits into the partner- 
 ship accounts, it was held that there was no survivorship ; 
 although the conveyance was to them as joint-tenants {m) . 
 
 And, in the case of a joint-purchase, if one joint-tenant 
 
 {g) See Wood v. Birch, Sug. 90-'). Ha. 315. As to the relative rights of 
 
 his real and personal representatives, 
 the following is stated by Mr. Bisset 
 to be the clear result of the cases : 
 viz. " that in the absence of a specific 
 agreement to the contrary, real estate 
 purchased with partnership funds for 
 partnership purposes, is converted 
 out and out into personal estate, and 
 therefore goes to the personal repre- 
 sentative, and not to the heir of a 
 deceased partner ; but that real estate 
 purchased with partnership property, 
 but not for partnership purposes, is 
 not converted into personalty." Bis- 
 set on Partnership, 56. 
 F P 
 
 Joint-te- 
 nant has lien 
 
 {h) Morris v. Barrett, 3 Y. & J. 
 384 ; Elliot v. Brown, 3 Sw. 489 ; 
 Houghton v. Houghton, 11 Sim. 491. 
 
 (?) Lake V. Craddock, 3 P. Wms. 
 158; Lyster v. Dollmid, 1 Ves. jun. 
 431 ; Dale v. Hamilton, 5 Ha. 369 ; 
 2 Ph. 266. 
 
 (/t) Per Lord Eldon, 9 Ves. 597. 
 
 {I) Jeffereys v. Small, 1 Vern. 21 7 ; 
 see 5 Ha. 384. 
 
 {m) Morris v. Barrett, 3 Y. & J. 
 384. The share of a deceased partner 
 in the freehold or copyhold estates of 
 the partnership, is not liable to pro- 
 bate duty ; Custance v. Bradshaw, 4
 
 434 RIGHTS UNDER CONVEYANCE, 
 
 Chap. XVI. lay out money in repairs or improvements {n), — which may 
 for ex^*^ be either necessary, or sanctioned by the other joint-te- 
 repai>sr&c., nants — or, in the case of renewable leaseholds, advance 
 
 and renewal n ^ n i/\ii t 
 
 fines. money lor the expense oi a renewal (o), he has a hen upon 
 
 the estate for the amount : but if one purchaser advance 
 more than his share of the purchase-money, he acquires no 
 lien on the estate ; nor, it would appear, has he any re- 
 medy except a suit for contribution (jt). 
 
 Any advan- Aud, whcrc purcliascrs staud in the relation of partners, 
 
 tasje secured 
 
 bypurciia.s- ^nv advautasre secured bv one, — e. q., the renewal of a 
 
 er standing •' ^ ^ i ii ' 
 
 enures 'io'^'^' Icasc (r/), or an abatement of incumbrances charged on the 
 copartners.'* property (r), — enures to the benefit of the others. 
 purchastby ^^ ^^^ \^vA is bouglit as a speculation — e. g., under an 
 speculation, agreement between the partners that it shall be laid out, 
 mus"con- allotted, and sold for building purposes — no partner can 
 
 form to . . . • r» 1 p 
 
 agreement, cuforcc a partition or sale in contravention of the terms oi 
 such agreement (.?) : if, however, the management of the 
 concern be entrusted to certain partners, ^\ho refuse to 
 execute the duty they have undertaken, the Court will, 
 upon a suit being instituted by another partner, take on 
 itself, so far as it can, to put him in the situation in which 
 he would have been had the trusts been properly per- 
 formed (/). 
 "^';°",^*'^'t Where, upon an agTcement for a joint-purchase, the con- 
 names'of all vcyaiice is taken in the names of some but not all of the iu- 
 ers^, trust^'** teudcd purchascrs, the interests of the others may be esta- 
 proved'^by blislied by any svibsequent writing signed by the fiduciary 
 
 any subsc- i i • i i i i 
 
 quent writ- partners, and which acknowledges or proves the existence 
 
 (n) Lake v. Gibson, 1 Eq. Ca. Abr. (r) See Carter v. Home, I Eq. 
 
 291. Ca. Abr. 7, which according to the 
 
 (o) See Hamilton\ ■ Denny, 1 Ball report was a mere case of a joint- 
 
 & B. 199. purchase; and see 1 Mac. & G. 300. 
 
 {p) See Wood v. Birch, Sug. 90.'). (.v) Peck v. Cardwell, 2 Beav. 137; 
 
 {q) Featherstonhavgh v. Femrick, and see Dale \. Hamilton, 2 Ph. 266. 
 
 17 Ves. 298 ; Clegg v. Fisltwick, 1 (/) See 2 Ph. 27fi. 
 Mac. & G. 294.
 
 OF JOINT PURCHASERS, ETC. 435 
 
 of the trust {uj ; and this, although the agreement be that Cha p, xvi . 
 the one pui'chaser shall find the money, and the other con- b"y^nominli 
 tribute his skill in purchasing and subsequently allotting p"'"''''''^^'''- 
 and selling the land (iv) : it seems, however, to be the 
 better opinion (.2?) , that the mere fact of one of two parties 
 in treaty for an estate desisting therefrom under a parol 
 agreement that the other shall complete for their joint 
 benefit, is not such a part performance as takes the case 
 out of the Statute of Frauds ; and that, in the absence of 
 any subsequent written admission of the trust, the ag- 
 grieved party, unless he can establish a resulting trust, by 
 proof of his having paid or contributed to the purchase- 
 money, has no remedy. There is this distinction be- 
 tween agreements and declarations of trust ; in the one, it 
 is the agreement itself, which is the origin of the interest, 
 that must be in w riting : in the case of a declaration of 
 trust, which is only the recognition of a pre-existing 
 interest, it is the evidence and recognition, and not the 
 origin of the transaction which must be in wi'iting [y) : 
 and, of course, it is not necessary that the party seeking to 
 enforce the declaration of trust, shoidd himself have been 
 a party to it {z). 
 
 (2.) As to purchases in the name of a nominal purchaser. 
 Where, upon a purchase, either by one or several, the So, ifconsi- 
 
 . . deration has 
 
 conveyance is taken in the names of strangers ; or where, ^fu^rP^i^^/ 
 in the case of a joint-purchase, the conveyance is taken in pu^irafers, 
 the names of some, but not all, of the purchasers who pay a res^uuing ^ 
 for the estate («), there will, — subject to the exceptions out writing. 
 
 (m) Forster v. Hale, 3 Ves. 696 ; 275 ; See Donohoe v. Cmirahi/, 2 J. 
 
 S. C, 5 Ves. 308. & L. 688. 
 
 (w) Dale V. Hamilton, 2 Ph. 26G. (z) 2 Ph. 275. 
 
 (,i) Sng. 907. («) Jfrai/ v. Sfeele, 2 Ves. & B. 
 
 (ij) Per Lord Cottenham, 2 Ph. 388. 
 
 F F 2
 
 436 RIGHTS UNDER CONVEYANCE, 
 
 Chap. XVI. subsequently noticed, and subject, of course, to any express 
 stipulation (even by parol) on the point (6), — be a result- 
 ing trust in favour of tlie otlier parties wlio have paid or 
 helped to pay the consideration-money : and this, whatever 
 may be the tenure of the estate, or the mode in which the 
 property is conveyed (c) ; unless the effect would be to 
 break in upon the policy of an Act of Parliament {d) : and 
 no written declaration of trust is necessary; resulting 
 trusts being expressly excluded from the operation of the 
 Statute of Frauds (e) . But, it is conceived, the mere fact 
 of the money being so paid, not in pursuance of the ori- 
 ginal agreement, but either as a matter of necessity, or by 
 \irtue of a pecuniary arrangement between the parties at 
 the time of completion, would not have this effect (/) : if, 
 for instance, A. and B, agree to purchase an estate, the 
 money as between themselves to be advanced in certain 
 specified proportions, and, at the time fixed for completion, 
 A., either through B/s temporar}^ inability to pay, or 
 merely for his convenience, advance the entire amount, 
 this, it appears, will not give A. a claim to the whole es- 
 tate {g). 
 gat1l'i™g "he ^ manorial custom that a nominal purchaser of copy- 
 resuitinV ^^ohls sliall, uotAvitlistanding the doctrine of resulting trusts, 
 take beneficially unless the trust is mentioned on the Rolls 
 of the Manor, is a bad custom (A) . 
 wfifskiera"*^ For the purpose of raising a resulting trust, the mode in 
 proved%r ^ whicli the consideration has been paid may be proved by 
 dence. parol evidence, either during the life of the nominal pm'- 
 
 chaser, or, according to the weight of authority, after his 
 decease (i) ; though whether it can prevail against a direct 
 
 {I) See Lady Bellasis v. Compton, (/) See Wood v. Birch, Sug. 905. 
 
 2 Vern. 294. (g) S. C. 
 
 (c) See Dye?- v. Dyer, 2 Cox, 92, (h) See Lewis v. Lane, 2 Myl. & 
 SS- K. 449, over-ruling Edwards v. Fi- 
 
 (d) See Sug. 908. del, 3 Madd. 237. 
 
 {e) 29 Car. II. c. 3, s. 8. (?) See Sir Thomas Peechy's Case,
 
 OF JOINT PURCHASERS^ ETC. 437 
 
 lenial in his answer seems to be doubtful (k) ; and it will^ ^''^p.^Z^" 
 in any case, be received with great caution : nor can it be 
 received to prove that a person who has paid for the estate 
 with his own money, and taken a conveyance in his own 
 name, was, in fact, the agent of another (/) ; or to raise a 
 resulting trust in favour of a vendor who has conveyed the 
 estate without receiving the purchase-money; even although 
 there be parol evidence to show that the transaction was 
 really a conveyance in trust, and not a sale [m). But 
 where such evidence is received it need not be confined to 
 the direct fact of payment : for instance, evidence of the 
 poverty of the nominal purchaser has been allowed in proof 
 of the impossibihty of his having paid for the estate {n) . 
 
 And parol evidence is admissible to prove that what nfaTbr"*^^ 
 
 „ shown to be 
 
 purports to be an absolute conveyance, was, m lact, a a mortgage, 
 mortgage (o) . 
 
 As a general rule, no resulting trust arises when the con- /„"ie,^e'rei8 
 veyance is taken in the name of a child (/?), grandchild [q) trust on pur- 
 
 •^ chase in 
 
 (if the father be dead) (r), or wife [s) of a sole [t] purchaser ; nameot wfe 
 or in the names of several children, either alone (w) or asso- 
 ciated with the wife {w) : and the rule seems to include ille- 
 gitimate children, if recognised as such {w); and persons to 
 whom the purchaser has placed himself in loco parentis [y] ; 
 
 Sug. 910; Lench v. Lench, 10 Ves. {q) See Kilpin v. Kiljnn, 1 Myl. & 
 
 511, 517 ; 2 Mad. Ch. Pr. 141, 3rcl K. 520; Loijd v. Read, 1 P. Wms. 
 
 edit. 607. 
 
 (k) Sug. 909. (r) Ebrandv.Bmicer, 2 Ch.Ca.26. 
 
 (l) Bartlett v. Pickersgill, 1 Cox, (s) Glaister v. Hewer, 8 Vcs. 199. 
 
 15. {t) See Finch v. Finch, 15 Ves. 5 1 . 
 
 {m) Leman v. Whitley, 4 Russ. (m) S.C, ib. 43 ; Murless\.Frank- 
 
 423 ; Sir E. Sugden puts a qusery lin, 1 Sw. 13. 
 
 to this case, Sug. 911. (w) Back v.Jndreivs, 2 Vern. 120. 
 
 (w) Willis \. Willii; 2 Atk. 71. (.rj See Beckfordv. Beckford,LQit. 
 
 (o) Cripps V. Jee, 4 Bro. C. C. 472. 490 ; and see 1 Myl. & K. 542. 
 
 (p) Mumma v. Mumma, 2 Vern. (y) See Ebrand v. Dancer, 2 Ch. 
 
 19 ; Grey v. Grey, 2 Sw. 594 ; Sid- Ca.26 ; Currant v. Jago, 1 Col. 261 ; 
 
 moitth V. Sidmouth, 2 Beav. 447. a person may stand in loco pareiitis to
 
 438 
 
 RIGHTS UNDER CONVEYANCE, 
 
 Chap. XVI. 
 
 Although 
 the pur- 
 chaser's 
 name be 
 also insert- 
 ed; 
 
 or the nomi- 
 nees take 
 succes- 
 gively. 
 
 Presump- 
 tion in 
 favour of ad- 
 vancement 
 may be re- 
 butted by co- 
 temporaue- 
 ous acts or 
 declara- 
 tions ; 
 
 aucl adult (~) as well as infant, and male as well as female 
 children ; and to extend to purchases by a female as well 
 as by a male ancestor or quasi ancestor [a] : but not to 
 purchases in the name of a parent [b], brother {c), or other 
 remoter relative. 
 
 And, although the point was otherwise decided by Lord 
 Hardwicke {d), it seems to be the better opinion (e) that 
 the same rule will prevail, when, upon a purchase by a 
 father, the conveyance is taken in the joint names of him- 
 self and his child (/) ; so, in the case of copyholds, the 
 children take beneficially, although they are named to 
 take in succession after the father [g] ; so, on a purchase 
 by a husband in the joint names of himself and his wife, 
 the latter surviving wUl take beneficially {h) ; so, if a 
 stranger's name be also inserted, he will, it appears, take 
 as a trustee for the children or wife, (as the case may 
 be) (i). 
 
 But although, where property is purchased in the name 
 of a wife or child, the purchase is, primd facie, an advance- 
 ment, still, the relation between the parties is only evi- 
 dence of the intention of the purchaser to advance the 
 nominee : which evidence may be rebutted by other evi- 
 dence manifesting a contrary intention. That cotem- 
 
 a child living with and maintained by 
 his Father ; Powi/s v. Mayisfield, 3 
 Myl. & Cr. 359 ; Pijm v. Lockyer, .5 
 Myl. & Cr. 29. 
 
 {z) Grey v. Grey, 2 Sw. 594 ; 
 Sidmouth v. Sidmouth, 2 Beav. 456. 
 
 (a) See Loyd v. Head, 1 P. Wms. 
 607. 
 
 (b) See Grey v. Grey, 2 Sw. 598. 
 
 (c) Maddison v. Andrew, 1 Ves. 
 57, sec p. 61 ; Skeats v. Skeafs. 2 Y. 
 &C. C. C. 9. 
 
 (d) Stilenian v. Ashdown, 2 Atk. 
 477, see p. 480. 
 
 (e) See Sug. yifi. 
 
 (/) Scroope v. Scroope, 1 Ch. Ca. 
 27 ; Backv. Andrews, 2 Vern. 120. 
 
 (</) Dyer v. Dyer, 2 Cox, 92; Skeats 
 V. Skeats, 2 Y. & C. C. C. 9, over- 
 ruling Dickenson v. Shaw, 1 Wat. 
 Cop. 222. 
 
 {h) See Dummer v. Pitcher, 2 
 Myl. &K. 262; and 2 Vern. 120, 683 
 
 {i) Lampluyh v. Lamplugh, 1 P, 
 Wms. Ill ; Crabb v. Crabb, 1 Myl 
 & K. 51 1 ; and see 1 Myl. & K. 542 
 see however Skeats v. Skeats, ubi 
 supra.
 
 OF JOINT PUHCHASERSj ETC. 439 
 
 poraneous acts [k] and even cotemporaneous (/) declara- chap. x vi. 
 tions of the purchaser, may amount to such evidence, has 
 been often decided (m) ; but subsequent acts and declara- gubseq^ut 
 tions of the purchaser arc not evidence to support the ciaratLntof 
 trust : although subsequent acts and declarations of the -auterof 
 
 nominee. 
 
 nominee may be so : but, generally speaking, we are to 
 look at what was said and done at the time [n] . 
 
 Thus, where a copyholder, upon taking a purchase in ^g^eniifora- 
 his son's name, at the same Court surrendered it to the "r c^rcum- 
 use of his own will (o) ; or, taking a purchase in the joint 
 names of himself and two sons, at the same Court took a 
 license to lease for seventy years (p), it was held to be no 
 advancement. So, Avhere the purchase is made with 
 some particular object, as to sever a joint-tenancy {q). 
 But the general presumption in favour of advancement 
 cannot be negatived or qualified by transactions relating 
 to other estates (r) . 
 
 In the case of a child, it is a material circumstance that ^j^n^^^'^ent, 
 a provision has been previously made for him ; but this is wifetiier 
 far from being decisive {s). In the older cases it) it Avas 
 held that the child, if already fully advanced, could not 
 take ; but, as observed by Eyi'e, L. C. B. {u), " the father is 
 the only judge as to the question of a son's proAdsion : the 
 distinction therefore of the son being provided for or not, 
 is not very solidly taken or uniformly adhered to :" and it 
 
 {k) See Prankerd v. Prankerd, 1 [p) Swift v. Davis, % East, 354, n. 
 
 Sim. & St. 1. (q) Sug. 915, c\tmg Baylis v. New- 
 it) Or previous; see 1 Myl. & K. ton, 2 Vern. 28. 
 
 539. (r) Murless v. Franklin, 1 Sw. see 
 
 (?w) 2 Beav. 455 ; anJ see Kilpin p. 19. 
 
 V. Kitpin, 1 Myl. & K. 520, where (.v) Per Lord Brougham, 1 Myl. 
 
 the declarations were made verbally & K. 542. 
 
 to the purchaser's solicitor. (^) See Elliot v. Elliot, 2 Ch. Ca. 
 
 («) Sidmout/i V Sidmoutfi, 2 Beav. 231, A. D. 1677 ; Grey v. Grey, 2 
 
 447, see p. 455; and see 1 Myl. & Sw. 600, decided A. D. 1677; and 
 
 K. 532, and 1 Coll. 267, see Sug. 913. 
 
 (o) Prankerd V. Prankerd, I Sim. {n) See Dyer v. Dyer, 2 Cox, 'J4. 
 
 c\ St. 1.
 
 440 
 
 RIGHTS UNDER CONVEYANCE^ 
 
 By what 
 subsequent 
 acts or cir- 
 cuoistances 
 
 Chap. XVI. jjas been observed by Lord Eldon that " the presumption 
 - of advancement in favonr of a child is not to be frittered 
 away by nice refinement '^ {iv). At any rate, it appears 
 that an advancement which is {x), or which the parent 
 considers to be (y) only in part, will not rebut the pre- 
 sumption of advancement : a reversion expectant on a hfe 
 estate, is prima facie only a part advancement {z) . 
 
 A subsequent parol admission by a child that he holds 
 only as trustee, may rebut the presumption in favom* of 
 advancement {a) ; but the fact that the child, even although 
 adult, allows the parent to take and keep possession {b), is 
 insufficient ; nor is the result altered by the child actively 
 assisting the parent in taking the profits ; as, in the case of 
 a purchase of stock in the child's name, by his executing 
 a power of attorney for the father to receive the divi- 
 dends (c) ; or by money being subsequently laid out on 
 the property by the parent [d) . 
 
 But although, as already noticed, no subsequent act on 
 the part of the purchaser can afi'ect the rights of the 
 nominee, if the presumption in favour of advancement has 
 once arisen, yet a clear de\dse to another of the estate will 
 raise a case of election against the nominee (e) . 
 
 And where the father of a family has allowed money of 
 his own to be invested in the purchase of an estate, along 
 with other moneys subject to the trusts of his marriage 
 settlement, it will require veiy strong evidence of intention 
 to show that he did not intend it as an advancement (/) . 
 
 Election. 
 
 {w) See 15 Ves. 50. 
 
 (x) Grey v. Gfey, 2 Sw. 600. 
 
 (y) Rediriff tony. Redhig ton, 3 Ridg. 
 P. C. 106, seep. 191. 
 
 (z) Lamplugh v. Lamplwjh, 1 P. 
 Wms. 111. 
 
 (a) See 2 Beav. 455 ; Scaivin v. 
 Scaiiin, 1 Y. & C. C. C. 65. 
 
 (b) See Elliot v. Elliof, 2 Ch. Ca. 
 2.31 ; Grey v. Grey, 2 Sw. 600; and 
 
 see 2 Beav. 456. 
 
 (c) Sidmouth v. Sidmoutk, 2 Beav. 
 see p. 456. 
 
 (d) Mumma v. Mumma, 2 Veni. 
 19. 
 
 (e) Duminer v. Pitcher, 5 Sim. 
 35 ; 2 Myl. & K. 262. 
 
 {f) Ouseley v. Anslruther, 10 
 Beav. 462.
 
 OF JOINT PURCHASERS, ETC. 
 
 441 
 
 A purchase in the name of a child, or, it is conceived, a chap. xvi. 
 wife, whether solely or jointly with the purchaser, is not in name of 
 
 . . child or wife 
 
 within the 27 Eliz. : and it seems to be the better opmion not witiiin 
 
 the 27th or 
 
 that, except in cases of actual fraud, such a purchase is ]^^^^^'*^' 
 not within the 13 Eliz. {(/). 
 
 And even upon a purchase in the name of a stranger, P" PJ^g^o/ ^ 
 
 clear parol or other evidence is admissible to rebut the resuufng 
 
 presumption in favour of a resulting trust ; and to show be^rebiStted 
 
 that, either as respects the whole or part of the land, or evidence. 
 the interest therein, the purchaser intended the nominee 
 to take beneficially (h) . 
 
 A^liere trustees for the purchase of land, lay out the ^h^ed^wuh 
 
 trust moneys and take the conveyance in their own names, becomes 
 
 •n 11 1 • 111 impressed 
 
 the cestuis que trust, in order specifically to claim the lands, with trust. 
 must, of course, prove that they were purchased with the 
 trust moneys : this may be proved either by direct evi- ^"a^ppj^'ca"^ 
 dence, — as where trust money was paid by a trustee by a money. 
 cheque, which was next day paid over by him in part 
 payment for the estate (i), — or by mere parol evidence of 
 declarations by the trustees : but these, in the absence of 
 corroborating circumstances, will be received with great 
 caution {k) . The presumption, however, is, that a purchase 
 made by a trustee, whose duty is so to invest trust money, 
 has been made in execution of the trust {1) . And where a 
 trustee paid in trust moneys, (applicable to be invested in 
 the purchase of real estate,) and moneys of his own, to his 
 general account at his bankers', and then bought real 
 estate, and paid for it by a cheque on his bankers, the 
 Court held that such payment was made out of that part 
 
 [g) Sug. 916, 917. & K. 506, 510. 
 
 (A) See Maddison v. Andrew, 1 («) Price v. Blakemore, 6 Beav. 
 
 Ves. S. 57, 61 ; Lloyd v. SjjUlet, 2 507. 
 Atk. 148; Lane v. Dighton, Amb. {k) Sug. 919. 
 
 409 ; Benbow v. Toivmend, 1 Myl. {I) Ibid.
 
 U2 
 
 RIGHTS UNDER CONVEYANCE, OF JOINT PURCHASERS, ETC. 
 
 Chap. XVI. Q^' ^Y^Q moneys standing to the general account which it 
 was proper so to apply ; i. e., the trust moneys (m) . 
 
 And where trust moneys are, in breach of trust, invested 
 in the purchase of real estate, the cestuis que trust have the 
 option of proceeding either for the money or the estate ; 
 or for a proportionate part of the estate, if the trust fund 
 formed only a part of the consideration money (w) . 
 
 If purchase 
 be a breach 
 of trust 
 cestuis que 
 trust can 
 claim 
 money or 
 land. 
 
 (>«) Manningford v. Toleman, 1 
 Coll. G70, see p. 674. 
 
 (w.) See Att.-Gen. v. CorporatUm 
 of Newcastle, 5 Beav. 307; 12 CI. & 
 Fin. 402. As to when a purchase is 
 considered to be in performance of a 
 covenant to settle land, see Sug. 920, 
 
 and cases cited ; and also the late case 
 of Ex parte Poole re Symes, 11 Jur. 
 1005. As to merger of charges, as 
 between the real and personal repre- 
 sentatives of the incumbrancer, on 
 his purchasing the estates, see Hoody. 
 Phillips, 3 Beav. 513.
 
 443 
 
 CHAPTER XVII. ^^- ^^"l 
 
 REMEDIES AT LAW FOR BREACH OF CONTRACT. 
 
 1. Purchaser's remedies against vendor. 
 
 2. Vendor's remedies at/ainst purchaser. 
 
 3. Plaintiff how far bound to perfor?n his part of agree- 
 ment before action. 
 
 4. As to the agreement — how far affected by parol 
 evidence. 
 
 5. Production of, ivhen compelled. 
 
 6. Grounds of defence — the agreement being admitted. 
 
 7. Action, when restrained in Equity. 
 
 8. General matters relating to the action. 
 
 (1.) We have, in the preceding pages, discussed those 
 matters which have appeared most naturally to present 
 themselves for consideration, in cases where an ordinary 
 contract between vendor and purchaser is perfected in the 
 usual way by conveyance of the estate and payment of the 
 purchase-money ; without the course of events being dis- 
 tm-bed by litigation, either actual or threatened, between 
 the parties. It remains to consider the respective rights 
 and liabilities of the parties, and their representatives, 
 in cases where either party disputes the validity of the 
 contract, or, on other grounds, refuses, neglects, or is 
 unable to perform it ; and how such rights and liabiHties 
 ai'e varied, by the circumstance of the sale being made 
 under a decree or order of a Court of Equity. 
 
 Where there is default on the part of the vendor, J^p^l^l''^ 
 the pm-chaser, as a general rule, may either rescind the P"'"<=*ia''ei^
 
 444 
 
 REMEDIES AT LAW FOR BREACH OF CONTRACT. 
 
 Ch. XVIl. 
 
 right of 
 action. 
 
 Agents 
 may sue and 
 be sued, 
 when. 
 
 contract and sue for the deposit, as for money had and 
 received ; or may affirm the contract, and sue for damages 
 upon the ground of its non-performance {a) ; adding the 
 common money count in respect of the deposit (if any has 
 been paid) : but he cannot, it seems, rescind the contract 
 if the parties cannot be put in statu quo ; as where, upon 
 an agreement for a lease, the intended lessee has been 
 in possession and enjoyed part of the term [b) . 
 
 Where the contract, not being under seal, has been en- 
 tered into by an Agent, the principal may sue upon it in his 
 own name (c) ; unless the agent be specially described or 
 referred to in the contract, in terms inconsistent Avith the 
 idea of agency {d) : so, also, a purchaser, who has paid the 
 deposit through an agent, can sue for it in his own name, 
 although the fact of the agency were undisclosed (e) : and, 
 upon similar principles, it has been held that a nominal 
 agent cannot sue, without first disclosing that he is in fact 
 the principal (/) : where an agent contracts apparently on 
 his own account, an action on the contract may be brought 
 against either him or his principal (ff) : and if the con- 
 tract be under seal, the agent, although described as such, 
 appears to be personally liable (A) ; but if it be not under 
 
 (a) See Moses v. Macferlan, 2 
 Burr. 1011, and Dutch v. Warren, 
 there cited ; Farrer v. Nighfingal, 2 
 Esp. 639 ; Squire v. Tod, 1 Camp. 
 293. 
 
 (6) See Himt v. Silk, 5 East, 
 449 ; and a like decision has been 
 recently come to where possession 
 had been taken under a contract for 
 sale of the fee simple ; Blackburn v. 
 Smith, 2 Exch. R. 783 : but see, 
 contra, on the special wording of the 
 agreement, Wright v. Colls, 13 Jur. 
 1056, C. P. : but mere depreciation 
 of the property is no defence, if the 
 purchaser has not had possession : 
 Wilkinson v. Lloyd, 7 Q. B. 27. 
 
 (c) See 5 M. & Sel. 388, 391 ; 
 Higgins v. Senior, 8 Mee. & W. see 
 814 ; Humphrey v. Lucas, 2 Car. 
 & K. 152. 
 
 {d) See Humble v. Hunter, 12 
 Q. B. 310, where the agent was de- 
 scribed as " owner." 
 
 {e) Duke of Norfolk v. Worthy, 
 1 Camp. 337. 
 
 (/) Bicker ton v. Burr ell, 5 M. & 
 Sel. 383 : but see the remarks of the 
 Court in Rayner v. Grote, 15 Mee. 
 & W. 366. 
 
 {g) Higgins v. Senior, 8 Mee. & 
 W. 844 ; Jones v. Littledale, 6 Ad. 
 & E. 486. 
 
 {h) Appleton v. Binks, 5 East, 148.
 
 REMEDIES AT LAW FOR BREACH OF CONTRACT. 445 
 
 sealj the agent, describing himself as such and naming his Ch. xvir. 
 principal, is not personally liable unless he had no autho- 
 rity to make the contract, or in making it exceeded his 
 authority {i) : and even if a person, without authority, 
 contract in the name of and as agent for another, it 
 appears that he cannot be sued on the agreement, unless 
 he be shown to have been really the principal ; although 
 he may probably be liable in an action for damages for the 
 misrepresentation {k). Wliere money has been properly 
 received by an agent, the action to recover it must be 
 brought against the principal (/) : but a sum paid to an 
 agent, under protest, in respect of a wrongful claim, may, 
 it appears, be recovered from the agent (m) . 
 
 In an action for money had and received, rescinding the Phaser can 
 contract, interest upon the deposit may, under a late Act, actionVfter 
 be recovered from such time as demand of payment was contract!^ 
 made in writing giAong notice to the vendor that interest 
 would be claimed from the date of the demand until pay- 
 ment {n) ; but it does not appear to be otherwise recover- 
 able (o) . Of course, the purchaser can make no claim in 
 respect of any increase in the value of the estate ; and it 
 would seem, upon principle, to be equally clear that he 
 cannot be prejudiced by any diminution in its value; 
 although some old authorities leave the point doubtful [p] . 
 
 In an action for damages, affirming the contract, the what he 
 
 o •' ° ^ can recover 
 
 pm^chaser, if the contract be proved to have been binding Jf^amages ^^^ 
 
 (i) Downmanv. Jones, 9 J\xr. ibi, his character being rather that of 
 
 Exch. Ch. stakeholder than of a mere agent of 
 
 (k) Jenkins V. Hutchinson, 13 Jur. the vendor. 
 
 7C3 ; 18 L. J. 274, Q. B. (m) Smith v. Sleap, 12Mee. & W. 
 
 (l) Duke of Norfolk v. Worthy, 1 585. 
 
 Camp. 337, and Edden v. Read, 3 {n) See 3 & 4 Will. IV. c. 42, s. 
 
 Camp. 339 ; Bamford v. Shuttle- 28. 
 
 worth, 11 Ad. & E. 926 ; Hurley v. (o) Fruhling v. Schroeder, 2 Bing. 
 
 Baker, 16 Mee & W. 26 : but, as- N. C. 77. 
 
 we have seen {supra 82) an auctioneer (p) See Sug. 256. 
 is liable to be sued for the deposit ;
 
 446 
 
 REMEDIES AT LAW FOR BREACH OF CONTRACT. 
 
 Ch. XVII. 
 
 founded on 
 contract. 
 
 upon the vendor, can, (under special counts,) recover his 
 expenses of investigating the title [q), of searching for in- 
 cumbrances, and comparing the abstract with the deeds (r), 
 of preparing the conveyance, (if the sale go oflF by reason 
 of a concealed incumbrance) [s), and interest upon his 
 deposit {t), and upon the residue of his purchase-money, if 
 lying idle {u) ; and he may recover the deposit itself imder 
 a common money count : nor will a Court of Equity, 
 pending a suit by the vendor for specific performance, 
 grant an injunction to restrain an action for the deposit (w), 
 unless the vendor consent to its coming into Court {x) ; 
 but he cannot recover expenses incurred prior to the con- 
 tract, or the costs of a smwey (?/), or of preparing a con- 
 veyance (;:r) , (except under special circumstances,) or any 
 allowance for loss by selling out of the funds (a), or 
 for money laid out in repairs {p) or improvements (c), 
 or the diiFerence between his costs taxed as between party 
 and party and his costs as between solicitor and client 
 in an unsuccessful suit by the vendor for specific perform- 
 ance [d), or the costs of a suit by himself (the purchaser) 
 for specific performance when the biU is dismissed without 
 costs on the Master reporting against the title (e) . 
 
 (9) Including costs due, but not 
 actually paid to his solicitor, Richard- 
 son V. Chasen, 10 Q. B. 756 : and a 
 letter from the purchaser's solicitor to 
 the vendor's solicitor stating that un- 
 less certain evidence is supplied, and 
 which is not supplied, the purchase 
 must go off, does not affect the right 
 to recover such expenses; Hall v. 
 Bethj, 5 Scott, N. R. 508. 
 
 (r) Hodges v. Lord Litchfield, 1 
 Bing. N. S. 492, 
 
 (.s) Sug. 427. 
 
 (/) Hodges v. iMrd Litchfield, nbi 
 supra. 
 
 (u) Sherry v. Oke, .3 Dowl. P. C. 
 349, 3G1. 
 
 (w) Tanner v. Smith, 4 Jur. 310. 
 
 {x) S. C. Annesley v. Mnggridge, 
 1 Madd. 593. 
 
 {y) Hodges v. Lord Litchfield, uhi 
 supra. 
 
 {z) S. C. ' 
 
 {a) Flureauv. Thornhill, 2 W. Bla. 
 1078. 
 
 {b) Brett v. Ellis, Sug. Append. 
 No. 4. 
 
 (c) Worthington v. Warrington, 
 18 L. J., N. S., C. P. 350. 
 
 (d) Hodges v. Lord Litchfield., uhi 
 supra. 
 
 (e) Maiden v. Fyson, 11 Q. B. 
 292.
 
 REMEDIES AT LAW FOR BREACH OF CONTRACT. 447 
 
 As a general rule, a purchaser is only entitled to nominal Ch. xvii. 
 damages for the loss of his bargain, where the vendor, foriosswf^^ 
 through want of title or otherwise (/), is bond fide {g) un'iess under 
 unable to convey the estate [h) ; and where a piu'chaser, cumstances. 
 upon the dehvery of an abstract showing an apparently 
 good title, resold at a profit, and it subsequently appeared, 
 on comparing the abstract vnih. the deeds, that the title 
 was defective, he was not allowed the expenses of the 
 resale ; there being nothing more on the part of the 
 vendor than negligence in the preparation of the abstract, 
 and the purchaser himself being equally negligent in re- 
 selling before he had tested its accuracy (i) . If, however, 
 there be actual mala fides {k) on the part of the vendor, or 
 (it would appear,) if he sell the estate under the knowledge 
 that he is not in a position to insure a title, the case may 
 be different; e.g., Avhere A. having a mere agreement for 
 the purchase of an estate, sold it to B., who resold it at a 
 profit to C, and then the whole matter went off through a 
 want of title in the original vendor, it was held that B/s 
 claim was not to be restricted to nominal damages (/) ; it 
 does not, however, appear upon what principle the damages 
 were assessed [m) . 
 
 Upon the death of the purchaser, the right to sue in ^^j^^^^^t^^ofj. 
 respect of any damages which may have been sustained by g^ti'on^gces 
 his personal estate, — e.g., loss of interest on the deposit, repSnla- 
 or the expenses of investigating the title, — descends upon 
 his personal representative [n) ; and no action upon the 
 
 (/) See Tyrer v. King, 2 Car. & (k) S. C. 
 
 K. 149 : a case of a sale by an agent (/) Hoj)/dn,s v. Grazebrook. 6 B. & 
 
 after the estate had been sold by his C. 31 ; Robimon v. Harman, I Exch. 
 
 principal. 850; but see Bred v. Ellis, Sug. 
 
 (g) See 10 B. & C. 416, 421. Append. No. 4. 
 
 (k) Flureauv. Thornhill, ubi supra; (m) See 10 B. & C. 420; and see 
 
 and see Clare v. Maynard, 6 Ad. & Worthiaytonv. Warringlon, J3 L.J., 
 
 E. 519. N. S., C. P. .'ioO. 
 
 (?) Walker v. Moore, 10 B. & C. (») Orme v. Brouyhlon, 10 Bing. 
 
 41fi. 53.3. 
 
 F F 8 
 
 tives.
 
 448 
 
 EEMEDIES AT LAW FOR BREACH OF CONTRACT. 
 
 Ch. XVII, 
 
 Death of 
 vendor, pur- 
 chaser's 
 right of ac- 
 tion against 
 his repre- 
 fentatives. 
 
 agreement can be brought by the heir (o) : but his only 
 resource is a Suit in Equity. 
 
 Upon the death of the vendor, his personal represen- 
 tatives alone are liable to an action at law, if, as is usually 
 the case, the agreement is not under seal. 
 
 (2.) Vendor's remedies at Law against purchaser. 
 
 Right of 
 action in 
 vendor or 
 his repre- 
 Bentatives, 
 against pur- 
 chaser or 
 his represen- 
 tatives, for 
 breach of 
 contract. 
 
 Vendor 
 cannot 
 recover 
 entire 
 purchase- 
 money, if no 
 conveyance. 
 
 Purchaser 
 in posses- 
 sion, whe- 
 ther liable 
 for use and 
 occupation 
 if no title. 
 
 Upon default by the pui'chaser, the vendor, or, if he be 
 dead, his personal representatives, can sue the purchaser, 
 or, if he be dead, his personal representatives, or his real 
 representatives, if the agreement were under seal, and the 
 heirs were named therein, for damages sustained by the 
 breach of the contract [p) . 
 
 "^Miere a purchaser has been let into possession, and 
 refuses to complete, the vendor cannot, if no conveyance 
 has been executed, recover from him the whole amount of 
 the purchase-money, but only the damages actually sus- 
 tained by the breach of contract {q) ; this right of action 
 is not taken away by a stipulation that if the purchaser 
 shall fail to comply with any of the conditions the deposit 
 shall be forfeited as hquidated damages {r) . 
 
 If the purchase go off through defect of title in the 
 vendor, the purchaser, if he have been let into possession, 
 cannot be sued for use and occupation for the time during 
 which the contract was pending, although the occupation 
 have been a beneficial one (s) : in the two principal re- 
 ported cases it appears that the purchaser had paid, in 
 one case all, and in the other part, of the purchase-money ; 
 
 (o) Sug. 259. 
 
 (p) Vide supra, p. 376, as to the 
 liability of the heir and devisees upon 
 the covenant. 
 
 (q) See Laird v. Phn, 7 M. & W. 
 474. 
 
 (r) Icelj/ V. Gretc, 6 Nev. & M, 
 467. 
 
 (») Kirfland v. Poumetf, 2 Taunt. 
 145; Winterhottom v. Ingham, 7 
 Q. B. R. 611.
 
 REMEDIES AT LAW FOR BREACH OF CONTRACT. 
 
 449 
 
 but altliougli tliis was in some degree relied on in the Ch. xvii. 
 earlier^ it does not seem to have been considered material 
 in the later^ of the two decisions : but if^ after the contrrx-t 
 is clearly abandoned,, he retain possession^ he will be liable 
 in respect of such subsequent occupation (/) . But the pur- 
 chaser when let into possession^ (unless under an agree- 
 ment to quit in some specified event which has hap- 
 pened (u),) carmot be ejected without notice {iv). 
 
 (3.) Plaintiff how far bound to perform his part of the 
 agreement before action. 
 
 As a general rule^ the mutual engagements of the par- Perform- 
 
 ox ance of con- 
 
 ties will be considered dependent on each other: and tract on part 
 
 ■•• ' ofplamtiff 
 
 either must, (unless discharged therefrom by the other,) {x) necI^^aV to 
 perform his habilities before he seeks to enforce his rights acUon^*^ 
 under the contract. So that, on the one hand, the pur- 
 chaser cannot sue upon the agreement without tendering 
 the conveyance {y), and the sum, (if any,) due in respect 
 of the parchase-money and interest [z) ; — (unless the ven- 
 dor have neglected to fui'nish or verify (a) his abstract of 
 title, or have shown a bad title ib), or, by conveying away 
 the estate (c) or otherwise [d), have disabled himself from 
 completing the contract :) — and, on the other hand, it has 
 been held that the vendor, if he sue merely upon the 
 
 (0 Hmvard v. Shaw, 8 Mee. & 
 W. 118. 
 
 (ii) Doe V. Sayer, 3 Camp. 8. 
 
 (w) See 1 M. & W. 700 ; Right v. 
 Beard, 13 East, 210 ; and see Boe v. 
 Caperton, 9 Car. & P. 112; Doe v. 
 Chamberlaine, 5 Mee. & W. 14. 
 
 {x) See Jones v. BarMey, Doug. 
 659 ; Laird v. Pirn, 7 Mee. & W. 
 474 : if the agreement is by deed, the 
 discharge must also be under seal ; see 
 19 L. J.,N. S., Exch. Ch. 328. 
 
 {y) See Knight v. Crockford, 1 Esp. 
 
 190. 
 
 {z) Sug. 375. 
 
 («) See Berry v. Young, 2 Esp. 
 640, n. 
 
 (h) See Seaward v. Tl'illock, 5 
 East, 202. 
 
 (c) Lovelock v. Franklyn, 8 Q. B. 
 R. 371 ; Knight v. Crockford, 1 Esp. 
 190. 
 
 id) See Cables v. Smith, 15 M. & 
 W. 189 ; Short v. Stone, 3 Dow. & 
 L. 580 ; S. C, 8 Q. B. 358. 
 
 G G
 
 ^iSO REMEDIES AT LAW FOR BREACH OF CONTRACT. 
 
 Ch, XVII. 
 
 agreement and not upon some security wliicli iie has taken 
 for the purchase-money [e], must have executed,, or offered 
 to execute (/) J or^ according to a modern decision (^), 
 have been ready and willing to execute a conveyance in 
 the terms of the contract ; the rule^ in the absence of 
 stipulation, being, that the purchaser must prepare and 
 tender the conveyance. 
 
 But, of course, the contract may be so worded as to 
 show that the mutual stipulations were, to a certain 
 extent, independent ; it being a general rule, that if a day 
 be appointed for payment of money, or part of it, or for 
 doing any other act, and the day is to happen, or may 
 happen, before the thing which is the consideration of 
 the money, or other act, is to be performed, an action 
 may be brought for the money, or for not doing such 
 other act, before performance : for it appears that the 
 party relied on his remedy, and did not intend to make 
 the performance a condition precedent {h) : for instance, 
 where a vendor agreed that he woidd, within one month 
 from the date of the contract, or from being required so to 
 do, dcHver an abstract of title and deduce a clear title, 
 and the purchaser agreed to pay part of the pui'chase- 
 money down, and the residue on or before four years after 
 date, with interest paj^able half-yearly on certain fixed 
 days, it was held, that the vendor could sue for interest 
 which had become due, although no abstract might liaA^e 
 been delivered (?'). 
 
 (e) See Moggridge v. Jones, 14 Exch. Ch. 321 ; but see Sug. 261, 
 
 East, 486 ; Spiller v. Westlake, 2 B. where Poole v. Hill is not cited, 
 
 & Ad. 155. {h) Purdage v. Cole, 1 Wms. Saund. 
 
 (/) PJiilVqjs V. Fielding, 2 H. Bl. .320 b, n.; see 6 C. B. 114 ; Mat- 
 
 123; Laird v. Pim, 7 M. & W. lock \. Kinglake,2Vev. ^T>a.\.MZ; 
 
 474. Porcherv. Gardner, 14 Jur. 43; and 
 
 {g) Poole V. Hill, 6 M. &\V. 835, Thames Haven Com2)any v. Brymer, 
 
 841; and see Chitty on Contracts, 19 L. J., N. S., Exch. Ch. 321, 328. 
 
 lasted. 273, and Thames Haven Com^ (?) Dicker v. Jackson, 6 C. B. 103, 
 
 pany v. Brymer, 19 L. J., N. S., 114; and see Sibthorp v. Brunei, 3
 
 REMEDIES AT LAW FOR BREACH OF CONTRACT. 451 
 
 And an actual refusal by the vendor to execute the con- ch. xvii. 
 
 veyance, has been held to be no defence at Law to an vtfndwto^ 
 
 action by him upon a note or other secmity given by defJnJeto* 
 
 the purchaser for the purchase-money ( /) . It seems to be note for 
 
 ■^ ./ w/ securing 
 
 the better opinion, that, even where there is no condition purchase- 
 
 i- ' ^ money. 
 
 respecting the forfeiture of the deposit^ and the pm-chaser 
 by his own default loses his right to enforce the contract, 
 he has no right to recover his deposit, and will not acquire 
 such right by reason of the estate being subsequently sold 
 by the vendor [k). 
 
 (4.) As to the agreement ; — how affected by parol 
 evidence. 
 
 We have already considered (/) what is a sufficient ^^\ '» » 
 
 agreement within the Statute of Frauds : we may here ^"hhfthe 
 
 remark, that the doctrine acted upon in Courts of Equity frauds. °*^ 
 as to parol agreements being taken out of the Statute by 
 part performance, is not recognised by a Court of Law (m) . 
 
 The contract, as originally entered into, cannot, at Law, No parol 
 
 .../. n variation 
 
 be altered by evidence of a parol variation m favour of of contract 
 
 ^ allowed at 
 
 either plaintiff or defendant {n) . ^^'^■ 
 
 As respects the reception of parol evidence in order Parol evi- 
 
 ■^ ^ ^ dence how 
 
 to explain agreements of doubtfal or ambiguous meaning, gfyg'^^g^. 
 the following seems to be the general result of the autho- Contract" °^ 
 rities : the Courts will always, if necessary, receive evi- 
 dence to enable them to decipher, or, if written in a foreign 
 language, to interpret, the instrument; that is, to ascer- 
 tain what are the expressions, or the English equivalents to 
 
 Exch. 826 ; and, in equity, Lloi/d v. v. Temple, 1 Per. & Dav. 379. 
 Lfoi/d, 2 Myl. & Cr. 192. (/) Supra, Ch. VII. 
 
 (j) Moggridge v. Jones, 14 East, (m) Sug. 140. 
 
 486; but see the remarks of Parke, J., («) See Goss v. Lord Nugent, 5 
 
 in Spiller v. Westlake, 2 B. & Ad. B. & Ad, 58 ; Hensonv. Coope, 3 Sco. 
 
 155, 157. N. R. 48. 
 
 {k) See Sug. 41 ; but see Palmer 
 
 G g2
 
 452 REMEDIES AT LAW FOR BREACH OF CONTRACT. 
 
 Oh. XVII. ^}jg expressions, wliicli the parties have actually used : they 
 will also receive parol evidence of the meaning which local 
 custom {o), or professional or trade usage (j!;),has attached 
 to particular expressions ; so as, in fact, to ascertain what 
 is, (with reference to the particular subject-matter of the 
 contract,) theu' strict and primary meaning [q] ; — unless 
 such a construction would be inconsistent with the terms 
 of the instrument {)'), or some express provision of the 
 Legislature; for instance, local custom cannot vary the 
 statutory meaning of expressions referring to weights and 
 measures {s) ; — or to annex any customary iucidents to the 
 contract which are not expressly or impliedly excluded by 
 the terms of the written instrument {() : where construing 
 the expressions according to such strict and primary mean- 
 ins: would render them insensible with reference to ex- 
 trinsic circumstances, the Coui'ts will receive parol e\i- 
 dence of the circumstances - and situation of the parties, 
 and the state of the property at the date of the agreement, 
 for the purpose of ascertaining whether such expressions 
 have not been used in some secondary sense consistent 
 with such circumstances, &c. (?/) : and where, as respects 
 all or any part of the subject-matter of the contract i^), 
 
 (o) Smith V. \rihmi, 3 B. & Ad. (*) See Master, S:c. of St. Cross v. 
 
 728; Doe v. Benson, 4 B. & Aid. Lord Howard Be JJ'alden, QDurn. 8i 
 
 588, where evidence was admitted to E. 338. 
 
 show that by Lady day was meant old (0 irittfon v. TJ'arren, 1 M. & W. 
 
 Lady day. 466\ Sj/ers v. Jonas, 2 Exch. Ill ; 
 
 (p) Clayton v. Gregson, 4 Nev. & Spartali v. Benecke, 19 L. J., N. S., 
 
 M. 602 ; Hutchison v. Bowker, 5 C. P. 2^3. 
 
 M. & W. 535 ; and see Lewis v. («) See Eden v. Earl of Bute, 3 
 
 Marshall, 8 Sc. N. R. 477, 493; Bro. P. C. 679; Allen v. Cameron, 
 
 Sotilichos V. Kemp, 3 Exch. 105. 1 Cr. & Mee. 832 ; Simpson v. Hen- 
 
 (q) See Colpoys v. Colpoys, Jac. derson, M. & Malk. 300 ; and Shore 
 
 463; Simpson v. Maryitson, 11 Q. v. Wilson, 9 CI. & F. 355. 
 
 B. 23 ; Doe v. Langton, 2 B. & Ad. («') Longchamps v. Fawcett, Peak. 
 
 695 ; Doe v. Birch, 1 M. & W. 402; Ca. 101 ; Doe v. Burt, 1 Durn. & E. 
 
 Parker v. Gossage, 2 Cr.M. & R. 61 7. 701; Joiies v. Newman, 1 W. Bla. 60. 
 
 (r) Seel9L. J.,N. S.,C. P. 295.
 
 453 
 
 Ch. XVII. 
 
 REMEDIES AT LAW FOR BREACH OF CONTRACT. 
 
 or the identity of places, documents {x), or persons [y 
 referred to_, there is a latent ambiguity ; that is, where 
 the words of the agreement, although certain in point of 
 grammatical construction and apparently definite, are ren- 
 dered of doubtful application by circumstances which ap- 
 pear aliunde [z], or, according to a modern decision («), 
 upon the face of the agreement itself, parol evidence of jnlentro^n," 
 
 1 . • n 1 • IT ^1 i. • when ad- 
 
 the intention of the parties at the date oi the agreement is missibie. 
 admissible, in order to identify the estate, document, plan, 
 or other thing or person intended ; but such evidence is 
 not admissible in aid of a patent ambiguity ; i. e., an 
 ambiguity which is either directly suggested by the terms 
 of the instrument {b), or is occasioned by the grammatical 
 uncertainty of the expressions therein used. 
 
 (5.) Production of agreement, when compelled. 
 
 If the only executed copy of the agreement is in the ^/"^"f/^"" 
 hands of a defendant (c), or of a third party {d), either ordered. 
 party can, as of course, procure an order, before trial, for 
 its previous production for the purpose of inspection and 
 of being stamped; and where the sole uncopied original 
 was surreptitiously obtained from the plaintiff by the 
 defendant who swore that he had lost it, he was ordered to 
 produce a copy for the purpose of being stamped, and was 
 precluded from setting up the unstamped original (e) ; 
 but this has been overruled in a very recent case (/) . 
 
 {x) Hodges v. Horsfall, 1 Russ. (c) Blakey v. Porter, 1 Taunt. 
 
 & Myl. 116. 386 ; King v. King, 4 Taunt. 666 ; 
 
 (y) See Doe v. TJ'estlake, 4 B. & Hall v. Bainbridge, 3 Dowl. & L. 92. 
 
 Aid. 57. {d) Gigner x. Bayly, 5 Moore, 71. 
 
 {z) Doe V. Morgan, 1 Cr. & Mee. (e) Bousfield v. Godfrey, 5 Bing. 
 
 235. 418 ; and see, in Equity, Blair v. Or- 
 
 (a) Doe d. Gord v. Needs, 2 Mee. mond, 1 De G. & S. 428 ; Smith v. 
 
 & W. 129; and see Colpoys v. Col- Henley, 1 Phil. 391. 
 
 jioys, Jac. 464. (/) Bankin v. Hamilton, 14 Jur. 
 
 {b) See Brodie v. St. Paul, 1 Ves. 930. 
 jun. 326; and see 1 Sch. & Lef. 36.
 
 454 
 
 REMEDIES AT LAW FOR BREACH OF CONTRACT. 
 
 Ch. XVII. Wliere two original copies are retainedj one by eacli 
 party, tlie party wlio loses liis copy, cannot, at Law, 
 compel the other party to produce his copy at the trial, or 
 for the purpose of inspection; but is driven to a Bill of 
 discovery (/) : whether a Com-t of Law ^x^l\ compel its 
 production for the mere purpose of stamping, seems to be 
 doubtfiil (ff) . 
 
 Grounds of 
 defence to 
 action on 
 contract 
 duly exe- 
 cuted. 
 
 Original 
 invaliciity of 
 contract ; 
 
 or subse- 
 quent waiv- 
 
 (6.) Grounds of defence at Law, the agreement being 
 admitted. 
 
 Supposing the agreement and its breach to be prirtid 
 facie capable of proof against the defendant, he may, by 
 way of defence to the action, show, either that the agree- 
 ment was originally invaUd, or that it has since its execu- 
 tion ceased to be binding, or that satisfaction has been 
 made for its breach. 
 
 For instance, he may show that, at the time of the 
 execution of the contract, he was under some personal 
 incapacity to contract {h) ; or was under duress {i) ; or 
 was fraudulently induced to enter into it [k] ; or that 
 it was entered into for or with reference to some un- 
 lawful purpose (/). 
 
 So, admitting its original vahdity, he may show that 
 it has been since avoided by having without his concur- 
 
 (f) See Street v. Brown, 6 Taunt. 
 302. 
 
 (g) See Travis v. Collins, 2 Cro, 
 & Jer. 625 ; Neale v. Sivind, 2 Cro. 
 & Jer. 278. See Mr. Tilsley's re- 
 marks, Tils, on S. L. p. 386. 
 
 (Ji) Supra, Ch. I. 
 
 {i) Bac. Abr. tit. Duress. 
 
 {k) See Haigh v. De La Cour, 3 
 Camp. 319 ; Emanuel v. Dane, ib. 
 299; Solomon v. Turner, 1 Stark. 51; 
 Hutchimon v. Morly, 7 Scott, 341 ; 
 Cornfool v. FowJce, 6 Mee. & W. 
 358 ; actual fraud in the agent is the 
 
 same as fraud in the principal, Doe d- 
 Willis V. Martin, 4 Durn. & E. 39 ; 
 Wilson V. Fuller, 3 Q. B. 68. 
 
 (0 Bartlett v. Vinor, Carth. 252 ; 
 Langton v. Hughes, 1 M. & S. 596 ; 
 De Begnis v. Armistead, 10 Bing. 
 107 ; Gas Light Company v. Turner, 
 8 Scott, 609 ; Ritchie v. Smith, 6 C. 
 B. 462 ; and see Eiving v. Osbaldiston, 
 2 Myl. & Cr. 53 ; and note, anything 
 to which a Statute attaches a penalty 
 is unlawful, although not expressly 
 prohibited; and see Applelon v. Cam})- 
 bell, 2 Car. & P. S\7 .
 
 REMEDIES AT LAW FOR BREACH OF CONTRACT. 455 
 
 rence been altered by tbe plaintifip in a material part (m) ; Ch. xvii. 
 or by a waiver in writing duly signed by tlie plaintiff (w) 
 before the breach which is relied on in the action (o) : Sir 
 E. Sugden holds it to be the better opinion that a verbal 
 waiver of a written agreement is no defence at Law {p) ; 
 but the reported cases^ although they leave the point 
 doubtful^ seem rather to lead to a contrary conclusion [q) : 
 and the Statute of Frauds seems merely to take away the 
 remedy by action in the case of a verbal contract^ without 
 saying anything to affect the common-law right of waiving 
 by word of mouth a contract not under seal. 
 
 So, the defendant, admitting the agreement and its ^''''e^^asei 
 breachj may show that the plaintiff has executed a release 
 under seal; or has accepted something in satisfaction of tfor^*'*^'^*^' 
 the breach (r) ; or has already recovered damages in an 
 action upon the agreement (s) ; or that the action has not 
 been brought within the time allowed by the Statutes 
 of Limitation. 
 
 (7.) Action, ivJien restrained in Equity. 
 
 Equity will restrain an action at Law which is in- whence- 
 consistent with a prior decree between the parties in Equity. '" 
 a suit for specific performance [t) ; or an action by a 
 vendor whose bill for specific performance has been dis- 
 missed for want of title {u) ; but, in general, the dismissal 
 
 (m) Supra, p.. 118. (q) See Goss v. Lord Nugent, 5 
 
 (m) See Goss v. Lord Nugent, 2 'Q. Si h.A.b%,()&; Harvey w.Grahham, 
 
 Nev. & M. 28 ; Harvey v. Grabham, 6 Nev. & M. 754, 762 ; and Stead v. 
 
 6 Nev. & M. 754, 762. Dawber, 10 Ad. & El. 57, 65. 
 
 (o) Where a right of action has (r) Willoughby v. Backhouse, 2 
 
 actually arisen, this can be discharged B. & C. 821, 824 ; Baylis v. Usher, 
 
 only by a release under seal or by 4 Moo. & P. 791. 
 the acceptance of something by way (*) See 10 Bing. 538. 
 
 of satisfaction ; Willoughby v. Back- (f) Reynolds v. Nelson, 6 Madd. 
 
 house, 2 B. & Cr. 821, 824; see 290. 
 Baylis v. Usher, 4 Moo. & P. 791. (u) M'Namara y. Arthur, 2 Ball 
 
 (p) Sug. 174. &B.353.
 
 456 
 
 REMEDIES AT LAW FOR BREACH OF CONTRACT. 
 
 Oh. xvn. of the vendor's bill does not interfere with his right to 
 bring an action {w) ; nor is it necessary, although it is 
 usual^ to state in the decree that the dismissal is without 
 prejudice to the legal right {x) . So, if a plaintiff is pro- 
 ceeding at Law and in Equity for the same subject-matter, 
 Equity will require him to elect between his remedies [y] : 
 butj as we have seen, a Court of Equity will not, pending 
 a suit by the vendor for specific performance, restrain a 
 purchaser from bringing an action for the deposit {z) ; 
 except, perhaps, on the terms of the money being paid 
 into Court (a) . 
 
 Particulars 
 of claim. 
 
 Time is, at 
 Law, essen- 
 tiaL 
 
 (8.) General matters relating to the action. 
 
 In an action by the pui'chaser for non-performance of 
 the agreement, the vendor can require to be furnished 
 with a particular of all matters of fact, (but not of Law,) 
 which the plaintiff means to rely on as constituting non- 
 performance {b) ; but, if this be not obtained, the latter 
 may prove any matter amounting to a breach of the agree- 
 ment ; and is not restricted by statements which he may 
 previously have made to the vendor (c) . 
 
 At Law, time is of the essence of the contract {d) ; so 
 that the delay of a single day after the time fixed for 
 the dehvery of the abstract, or deducing and verifying a 
 marketable title, gives to the purchaser an immediate 
 right of action ; nor can time, at Law, be yaried or en- 
 larged by word of mouth (e) : and where a time is fixed 
 
 (w) Sug. 256. 
 
 (x) See 2 Ball & B. 353. 
 
 (y) Infra, p. 460. 
 
 {£) Tanner v. Smith, 4 Jur, 310, 
 Chan. 
 
 (a) S. C, Annesley v. Muggridge, 
 1 Madd. 593. 
 
 {b) See Collett v. Thompson, 3 
 Bos. & P. 246 ; Roberts \. Rowlands, 
 
 3 Mee. & W. 543. 
 
 (e) Squire v. Tod, 1 Camp. 293 ; 
 Sug. 428 ; but see Todd v. Hoggart, 
 1 Moo. & Malk. 128. 
 
 (fZ) Berry v. Young, 2 Esp. 640, n. 
 
 (e) Marshall v. Lynn, 6 Mee. & 
 W. 109 ; Stead v. Dawber, 10 Ad. & 
 El. 57.
 
 REMEDIES AT LAW FOR BREACH OP CONTRACT. 457 
 
 for completion^ and the vendor fails to deduce and verify ch- xvii. 
 a marketable title before that time, or if, no time being 
 fixed for completion, he deduces a defective title and the 
 contract is rescinded while the title remains defective, his 
 having a good title at the time of trial will be no defence 
 to the action (/) : but if no time be fixed for completion, 
 the vendor will be entitled to " a reasonable time ^^ for 
 making out his title {g) : and if, in such case, the pur- 
 chaser do not apply for the title before bringing an action, 
 it is sufficient if the vendor can make a good title at the 
 time of trial ; his having had a defective title, at the date 
 of the contract, is immaterial (A) . 
 
 Lastly, we may here remark, that a Court of Law will ^b*^eg|f^,J® 
 consider equitable, as well as legal, objections to the d'efence'at 
 title (i). 
 
 Law. 
 
 (y) See Dobell v. Hutchinson, 3 {g) Sansom v. Rhodes, 8 Sc. 544. 
 
 Ad. & El. 355 ; Bartlett v. Tuchin, {h) Thomson v. Miles, 1 Esp, 184. 
 
 6 Taunt. 259; Roper v. Coombes, 6 {i) Sug. 532, and cases cited ; and 
 
 B. & Cr. 534 ; Seaward v. Willock, see Neeves v. Burrage, 14 Jur. 177, 
 
 5 East, 198. Q. B.
 
 458 
 
 Ch. XVIII. 
 
 ^ 
 
 CHAPTER XVIII. 
 
 AS TO SPECIFIC PERFORMANCE. 
 
 1. Matters relating to the jurisdiction generally. 
 
 2. By whom specific performance may be enforced. 
 
 3. Against ivhom it may be enforced. 
 
 4. As to the parties to the suit. 
 
 5. As to the Bill. 
 
 6. As to proceeding by claim under the Orders of April, 
 1850. 
 
 7. As to hotv the plaintiff's case may be sustained in the 
 absence of a written agreement— fraud— part-performance 
 — admission by Defendant of parol agreement — parol varia- 
 tion of written agreement. 
 
 8. As to grounds of defence negativing plaintiff's right to 
 specific performance except with a variation of the original 
 agreement ; viz., fraud — mistake — surprise — misrepresenta- 
 tion — unfulfilled promise — parol variation, ^c. 
 
 9. As to grounds of defence negativing in ioto plaintiff's 
 right to specific performance ; viz., personal incapacity — 
 nature of contract, or fraud, ^c. ^c, attending its execution 
 — matters relating to the estate — title — or consideration — 
 plaintiff's conduct, ^c. after contract — election of other 
 remedy. 
 
 10. As to the proceedings in the suit ; viz., payment of 
 purchase-money into Court — reference of title and proceed- 
 ings thereon — decree for plaintiff— conveyance — decree dis- 
 missing bill. 
 
 11. As to costs. 
 
 Specific per- (1.) The onlv remedy to be obtained in Equity for tbe 
 
 formance ^ ' •!<?•£ 
 
 theouiy non-pcrformance of the contract, is a decree lor specmc
 
 AS TO SPECIFIC PERFORMANCE. 459 
 
 performance [a] : at one time there was a floating idea in Ch. xviii. 
 the profession that the Court might award compensation Equity/^ | 
 for non-performance, in the event of the primaiy relief 
 failing ; but the contrary has been settled by modern 
 decisions [b) : nor does it make any difi'erence that com- 
 pensation is sought, not against the owner of the estate, 
 but against a person who falsely assumed authority to 
 seU(c). 
 
 The Coui't of Review, (or now the Court of Bank- Bankruptcy 
 ruptcy,) cannot enforce specific performance against a force°sped- 
 purchaser who has not expressly submitted himself to the anc^, semtie. 
 Jm-isdiction {d) ; nor, perhaps, even against one who is 
 willing so to submit himself (e) . 
 
 The prmciple by which Coui'ts of Equity have professed of dama^ef 
 
 the princi- 
 
 to be guided in decreeing specific performance of a con- pie on wiiich 
 
 . _ . . specific per- 
 
 tract for purchase, is, that damages at Law may not, in the formauce is 
 particular case, afford a complete remedy (/): they will, 
 therefore, decline to interfere if the subject-matter of the 
 contract be such that both vendor and purchaser would be 
 reimbm'sed by damages ; as on an ordinary agreement for 
 the sale of Stock (y) : in the case of land, the pm'chaser's 
 right to sue can never be questioned upon this ground; 
 for the land may, to him, have "a peculiar and special 
 value" {h) : it is more difficult to imderstand why the groundof 
 Courts should entertain a suit by a vendor, who, the title 
 
 (a) Specific performance of con- overruling £.r ;;ar^e Gould, 1 G. &J. 
 
 tract for sale or purchase of Railway 231 ; Ex parte Sidehotham, 3 D. 
 
 shares will be enforced ; Duncuft v. & C. 818 ; and Ex parte Barrington, 
 
 Albrecht, 12 Sim. 189, affirmed 199; 4 D. & C. 461. 
 Shaio V. Fisher, \2 i\xr.\h2; Upine (e) See Ex parte Bennett, 10 Yes. 
 
 V, Price, 13 Jur. 295. 382. 
 
 (Jj) Todd V. Gee, 17 Ves. 273; (/) See Jdderley \. Dixon, I Sim. 
 
 Sain,^lury v. Jones, 5 Myl. & Cr. 1, & St. 610. 
 see p. 3. {g) Cud V. Rutter,\Y. 'Wins, bio ', 
 
 (e) Sain^Ijury v. Jones, 5 Myl. & Nutbroicn v. Thornton, 10 Yes. 159, 
 
 Cr. 1. 161. 
 
 (d) Ex parte Cutts, 3 Dea. 242, (A) 1 Sim. & St. 610.
 
 460 
 
 AS TO SPECIFIC PERFORMANCE. 
 
 Ch. XVIII. 
 
 mutuality of 
 remedy, 
 vendor who 
 only wants 
 his pur- 
 chase- 
 money may 
 sue in 
 Equity. 
 
 Whether 
 tlie exist- 
 ence of an 
 easier reme- 
 dy by man- 
 damus is a 
 bar. 
 
 Plaintiff 
 cannot pro- 
 ceed at 
 once at Law 
 and in 
 Equity. 
 
 Specific per- 
 formance 
 
 being accepted and there being nothing special in the 
 case, wants nothing but his purchase-money and interest, 
 which an action at Law would give him : it appears, how 
 ever, to be settled that, upon the principle of affording 
 mutual remedies, the Courts wiU entertain such a suit {i) ; 
 whether the consideration be a life annuity, or a gross 
 sum {k). 
 
 Whether the mere fact of the defendant being boimd 
 under an Act of Parliament to complete the contract, and 
 of the plaintiff having an easier remedy by Mandamus, will 
 prevent the latter from resorting, (if he please,) to a Court 
 of Equity, seems to be doubtful (/) : if, however, a plaintiff 
 proceed both at Law and in Equity for the same subject- 
 matter, he may, by order of course, be compelled to elect 
 between his action and suit (m) : and this relief has been 
 afforded where a landlord had filed a biU against his tenant 
 for specific performance of an agreement to take a lease, and 
 was also suing him for use and occupation of the premises 
 during part of the term (n) : but where the action is 
 brought for the non-performance of particular acts : — e. g., 
 to improve or repair the property — the performance of 
 which is not specifically prayed by the biU, or which are 
 acts the specific performance of which cannot be decreed, 
 and the action is brought only for such damages as were 
 sustained up to the time of its commencement, no case for 
 election seems to arise (o) . 
 
 And although the agreement may in itself vest in the 
 
 (0 Withy V. Cottle, 1 Sim. & St. 
 174 ; Adderley v. Dixon, ib. 607; 
 Clifford V. Turrell, 1 Y. & C. C. C. 
 138; see V. C. Wigram's judgment 
 in Adams v. Blackwall Railway Com- 
 pany, 13 Jur. 621. 
 
 (k) Clifford v. Turrell, ubi supra; 
 affirmed, 9 Jur. 633. 
 
 {t) See Walker v. Eastern Coun- 
 ties Railway Company, 6 Ha. 594 ; 
 
 Adams v. Blackivall Railway Com- 
 pany, 13 Jur. 620, V. C. Wigram, 
 reversed on appeal, 2 Mac. & G. 118; 
 see also Hyde v. Edwards, 13 Jur. 
 757, R. 
 
 {m) Danl. Ch. P. by H. 791, 793 ; 
 Royle V. Wynne, Cr. & Ph. 252. 
 
 (n) Ambrose v. Nott, 2 Ha. 649. 
 
 (o) See Fennings v. Humphery, 4 
 Beav. 1, 7.
 
 AS TO SPECIFIC PERFORMANCE. 461 
 
 purchaser the interest contracted for [p], jei, if it appear Ch. xviii. 
 on its face that a fiu'ther instrument is necessary to carry ^eed, au 
 out the intentions of the parties^ the Court will decree tract'may 
 
 vest estate 
 
 specific performance of the agreement in that particular {q) . in pur- 
 
 (2.) By whom specific performance will be enforced. 
 Equity will enforce specific performance of the contract Enforced in 
 
 ^ *^ 1 r Esiuity at 
 
 for sale at the suit of the purchaser himself, or of his suitotijur- 
 
 i- ' chaser, or 
 
 representatives in interest^ — such interest, it must be re- ientltivesin 
 membered_, being the right to take the estate on payment '" ^'^^^ ' 
 of the purchase-money; — e. g., his alienees by act inter 
 vivos (r), or assignees in bankruptcy {s), or committees in 
 lunacy {t), or, in case of his death, by his real or personal 
 representatives, (according to the nature of the estate con- 
 tracted for) . 
 
 So, the contract for purchase will be enforced at the orlfisreprl- 
 
 • i /• ,1 1 1 • li' 1 • j_ !_• • ' sentativesin 
 
 suit 01 the vendor himseli, or his representatives in m- interest. 
 terest ; — such interest, it must be remembered, being the 
 right to receive the pui-chase-money on a conveyance be- 
 ing given of the estate; — e.g., his alienees by act inter 
 vivos (u), or assignees in bankruptcy {iv), or committees in 
 lunacy (^), or, (in the case of death,) by his executors or 
 administrators {y) : so, if the contract have been entered 
 into by a tenant for life, in due {z) exercise of a power, 
 specific performance will, it is conceived, be decreed at the 
 suit of a remainderman {a) . 
 
 (j)) Sed vide supra, 115. (w) See 12 & 13 Vict. c. 106, ss. 
 
 {q) Fenner v. Hepburn, 2 Y. & C. 141, 142. 
 
 C. C. 159. (x) Shelf, on Lun. 564. 
 
 (r) See Nelthorpe v. Holgate, 1 {y) Roberts v. Marchant, 1 Phil. 
 
 Coll. 218. 370. 
 
 (s) See 6 Geo. IV. c. 16, s. 76 ; {z) But not otherwise, Ricketts v. 
 
 12 & 13 Vict. c. 106, s. 146. Bell, 1 De G. & S. 335. 
 
 {t) See Shelf, on Lun. 546, et {a) See Shannon v. Bradstreet, 1 
 
 seq. Sell. & Lef. 52, 65 ; Lowe v. Swift, 2 
 
 (m) See Calv. on Par., 2nd ed. 314 ; Ball & B. 529 ; 2 Sug. Pow. 6th ed. 
 
 Dan. Ch. Pr. by H., 206. p. 134 ; 1 De G. & S. 314.
 
 463 
 
 AS TO SPECIFIC PERFORMANCE. 
 
 Ch. XVIII. 
 
 Enforced 
 against 
 vendor, and 
 parties 
 claiming 
 under him 
 by subse- 
 quent title, 
 (except 
 jiurchasers 
 without no- 
 tice) ; 
 
 and against 
 l)arties 
 claiming 
 under a 
 jirior title, 
 which he 
 might have 
 displaced by 
 conveyance. 
 
 (3.) Against whom specific performance will be enforced. 
 
 Equity will enforce specific performance of tlie contract 
 for sale^ against the vendor himself, and also against^ firsts 
 persons claiming under him by a title arising subsequently 
 to the contract ; (except pm'chasers for valuable consi- 
 deration who have paid their money and taken a convey- 
 ance without notice of the original contract) : e. g., his 
 assignees in bankruptcy [b), or committees in lunacy {c), 
 or voluntary alienees {d), or judgment creditors [e], or the 
 after-taken wife or husband of the vendor [f], or the ven- 
 dor's ahenees for value, (if they purchased with notice of 
 the prior contract [g) , or have not taken a conveyance {h) ,) 
 or, (in case of his death,) against his real or personal repre- 
 sentatives, (according to the nature of the estate con- 
 tracted for) ; and secondly, persons claiming under a title 
 which, although prior to the contract and known to the 
 purchaser, might have been displaced by a conveyance by 
 the vendor : e. g., voluntary alienees [i) ; wife entitled to 
 freebench, (if, as is the case in most manors, her title 
 depends upon her husband dying seised) {k) ; dowress who 
 married since the late Dower Act came into operation (/) ; 
 and remaindermen, or cestuis que trust, in cases where the 
 
 (J) Orlebar v. Fletcher, 1 P. Wms. 
 737 ; Taylor v. Wheeler, 2 Ver. 564 ; 
 and see 2 Ves. sen. 633 ; Parker v. 
 Smith, 1 Coll. 608. 
 
 (c) Shelf, on Lun. 564 ; 1 Will, 
 IV. c. 65, s. 27. 
 
 d) See Hinton v. Hint on, 2 Ves. 
 sen. 631, 633. 
 
 (e) Brunton v. Neale, 14 L. J., 
 N. S.,L. C. 8. 
 
 (/) See 2 Ves. sen. 633. 
 g) Daniels V.Davison, 16 Ves. 249; 
 Lightfoot V. Heron, 3 You. & C. 586; 
 Cults V. Thodey, 1 Coll. 223 ; Potter 
 
 V. Sanders, 6 Ha. 1. 
 
 (h) As to which, vide supra, 392. 
 
 (0 BucMe V. Mitchell, 18 Ves. 
 100 ; Metcalfe v. Pulvertoft, 1 Ves. 
 & B. 180 ; Willatsv. Busby, 5 Beav. 
 193 : but the voluntary settlor, if he 
 contract to sell the estate, cannot 
 himself enforce specific performance ; 
 Smith V. Garland, 2 Mer. 123 ; John- 
 son V. Legard, Turn. & R. 281. 
 
 (k) Hinton v. Hinton, 2 Ves. sen. 
 631 ; Brown v. Raindle, 3 Ves. 256. 
 
 (0 3 & 4 Will. IV. c. 105, ss. 4 
 & 5.
 
 AS TO SPECIFIC PERFORMANCE. 463 
 
 Ch. XVIII. 
 
 Contract for 
 
 enforced. 
 
 vendor has contracted in due exercise of a power or pur- 
 suant to a trust {m) : subject^ nevertheless^ to these excep- 
 tions ; viz._, that the contract of a tenant in tail who dies 
 hefore executing the conveyance, does not affect the in- 
 terests of the issue in tail or remaindermen (n) ; and that 
 the contract of a trustee will not be enforced if the at- 
 tendant circumstances constituted it a breach of trust (o) . 
 
 The contract by a married woman, either with or with- ^ije'ot'mar' 
 out her husband's concurrence, for the sale of her real man-sestate, 
 
 - - . . when capa- 
 
 estate not settled to her separate use or appointment, bieofbeinj 
 (other than her chattels real,) (p) is incapable of being 
 enforced against her {q) : nor will it, although signed with 
 the husband's concm-rence and in his presence, bind any 
 interest which he may then unknowingly have, or subse- 
 quently acquire, in the property (r) : if, having a power of 
 appointment, she enter into a contract executed with the 
 formahties required by the power {s), or if, as respects 
 estate settled merely to her separate use with no restraint 
 on anticipation, she enter into such a contract as would 
 bind her if a feme sole {t), the estate, it is conceived, in 
 either case is bound, although no decree can be made 
 against her personally (m) : and even in the case of an 
 agreement in exercise of a power, the want of mere for- 
 malities, may, it seems, be supplied ; e. g., where a married 
 woman having a power to appoint by deed enters into a 
 
 (m) MortlocJc v. Buller, 10 Ves. {q) Emery v. Wase, 5 Ves. 846 
 
 315 ; Dowell v. Dew, 1 Y. & C. C. Davidson v. Gardner, Sug. 230 
 
 C. 345 ; and see cases cited, supra, Aylett v. AsMon, 1 Myl. & Cr. 105 
 
 461, n. (a). see Lassence v. Tiernei/, 1 Mac. & G. 
 
 (7i) 3 & 4 Will. IV. c. 74, s. 47 ; 572. 
 and see, as to the same being the rule (r) Aylett v. Ashton, 1 Myl. & Cr. 
 
 before the Act, Frank v. Maimvaring, 105. 
 2 Beav. 115 ; Sug. 227. (s) See Sug. 230, n. {p) ; Martin 
 
 (o) Mortlock V. Buller, 10 Ves. v. Mitchell, 2 Jac. & W. 425. 
 292 ; White v. Cuddon, 8 CI. & Fin. (if) Stead v. Nelso7i, 2 Beav. 245. 
 
 766. (u) Nantes v. Corrock, 9 Ves. 189; 
 
 {j)) As to which see next para- Aylett \. AsM on, 1 Myl. & Cr. 112; 
 
 graph. Francis v. Wiyzell, 1 Madd. 258.
 
 464 
 
 AS TO SPECIFIC PERFORMANCE. 
 
 Ch. XVIII. 
 
 Whether 
 wife surviv- 
 ing is barred 
 by lius- 
 band's con- 
 tract for Sale 
 of her 
 chattels 
 real. 
 
 Whether she 
 mav adopt 
 his contract. 
 
 Vendor's 
 contract 
 cannot be 
 enforced 
 ajiainst par- 
 ties claim- 
 ing under 
 prior abso- 
 lute title. 
 
 Purchasers 
 contract will 
 be er (breed 
 against him- 
 
 contract not under seal; specific performance may be de- 
 creed {w) ; but this^ it is conceived; would not be the case 
 where the omission went to the substance of the power, 
 or consisted in the want of formahties which were intended 
 for her protection {x) . 
 
 It does not appear to be settled {y), whether the hus- 
 band's contract to sell the term for years, (whether legal 
 or equitable,) of his wife, would bind her surviving : some 
 early authorities are in favoui- of the purchaser (r) ; but, 
 in recent decisions, so strong an inclination has been 
 shown to limit the husband and his ahenees to their strict 
 legal rights, that it may be reasonably conjectured that 
 the wife surviving would not be bound (a) . 
 
 In one case {b) a question arose, but was not decided, as 
 to whether the wife sui'^dving may adopt her husband's 
 contract for sale of her real estate. 
 
 And the vendor's contract will, of course, not be enforced 
 against persons claiming under a prior title which he him- 
 self could not have displaced by a conveyance; e.g., a 
 dowress imder the old law, or a wife seised of an estate of 
 inheritance ; nor will the contract of a tenant for life be 
 enforced against the tnistees of the reversion who are em- 
 powered but decline to sell at his request (c) . 
 
 So, the contract for purchase will be enforced against 
 the purchaser himself, his committees in lunacy {d), and 
 
 (w) See Stead v. Nelson, uli supra; 
 Dowell V. Dew, 1 Y. & C. C. C. 
 345. 
 
 (a) See Lassence v. Tierney, 1 
 Mac. & G. 551, 572. 
 
 (y) See the query of V. C. K. 
 Bruce, in Clark v. Burgh, 2 Coll. 
 226. 
 
 (z) See Stead v. Cragh, 2 Eq. Ca. 
 Ab. 37, 130 ; and Lord Eldon's re- 
 marks in Druce v. Denison, 6 Ves. 
 394. 
 
 (a) See Sturgis v. Champneys, 5 
 Myl. & Cr. 97 ; Elivyn v. Williams, 
 7 Jur. 337 ; Jshby v. Jshby, 1 Coll. 
 553 ; Newenham v. Pemberton, 1 De 
 G. & S. 644 ; Whittle v. Henning, 
 2 Ph. 731. 
 
 (b) Humjjhreys v. Ilollis, Jac. 76. 
 (o) Thomas v. Bering, 1 Keen, 
 
 729. 
 
 (d) Shelford on Lunacy, 564 
 Sug. 233.
 
 AS TO SPECIFIC PERFORMANCE. 465 
 
 real and personal representatives. If he become bankrupt, Ch. xviii. 
 Lis assignees have the option of abandoning tlie contract representa- 
 or of completing it, (paying, of course, the entire amount 
 due for purchase-money,) and the vendor may, by applica- 
 tion to the Court, compel them to make their election (e) . 
 It is however conceived, that if, (as might sometimes hap- 
 pen, e. g., in the case of house property destroyed by fire 
 after the contract,) the vendor were willing to convey the 
 estate and to prove under the bankruptcy for the purchase- 
 money, he would have a right to do so. Where the pur- 
 chaser, ha\Tag paid part of the purchase-money, becomes 
 insolvent, and his assignees, upon a bill being filed against 
 them, disclaim, the Court will declare the representatives 
 of the vendor absolutely entitled to the estate (/) . 
 
 A married woman's separate estate may be hable under ^|^j."f* 
 her contract for purchase ; but the vendor^s suit must be ^arriec/ 
 directed specifically against such separate estate, and ^^""^^ ' 
 should not seek a decree against her personally [g) . 
 
 (4.) As to the parties to the suit. 
 
 In general, it is only necessary to make those persons fj^f^'racure. 
 parties to a suit for specific performance who were parties a^onTneces- 
 to the contract {h) : for instance, a purchaser cannot join loYhesuiT 
 as co-defendants the receivers or stewards of the owners of S'.J'uoUoin 
 the estate, although they are in that capacity possessed of f|n*dant 
 
 rGCGivcr or 
 
 the title deeds delivery of which is sought by the suit (^) ; steward! 
 nor, it would seem, the wife of the vendor who has pos- 
 sessed herself of the deeds {k) ; nor a mortgagor, whose gX^^'' 
 
 (e) 12 & 13 Vict. c. 106, s. 146. (A) Humphreys v. Hollis, Jac. 75 ; 
 
 (/) Gabriel v. Sturgis, 5 Ha. 97. Wood v. White, 4 Myl. & Cr. 460. 
 
 {g) Francis v. Wigzell, 1 Madd. (i) M'Namara v. Williams, 6 Ves. 
 
 258 ; and see Otvens v. Dickenson, 143. 
 
 Cr. & Ph. 48 ; Muston v. Bradshaw, {k) Muston v. Bradshaw, 10 Jur. 
 
 10 Jur. 402,V. C.E. ; 15 Sim. 192; 402, V. C. E. ; 15 Sim. 192. 
 Gaston v. Frankum, 13 Jur. 739. 
 
 H H
 
 466 
 
 AS TO SPECIFIC PERFORMANCE. 
 
 Oh. XVIII. 
 
 adverse in- 
 terests prior 
 to the con- 
 tract. 
 
 Person in- 
 terested in 
 contract, 
 and bound 
 to join in 
 conveyance, 
 not a neces- 
 sary party 
 to vendor's 
 bill. 
 
 Persons 
 having ad- 
 verse, incon- 
 sistent, or no 
 riglits, can- 
 not join the 
 vendor as 
 CO-plaintifTs; 
 
 mortgagee^ or mortgagee's trustee^ lias entered into the 
 contract under a mortgage power of or trust for sale (/) ; 
 nor^ upon a sale by a mortgagor^ the mortgagee, nor any 
 person interested in the equity of redemption {m) ; nor a 
 person who has joined the vendor in the sale in respect of 
 other property, under conditions, as to laying out roads, 
 &c., affecting the whole estate [n) ; nor, as a general rule, 
 any person upon the ground of his claiming any adverse 
 interest which was vested in him prior to the contract (o) . 
 
 Nor need a stranger to a contract be made a party to a 
 suit on the ground of his being interested in the contract, 
 or boimd to concur in the conveyance ; as where, on the 
 sale in two lots of leaseholds held under an entire rent, it 
 was stipulated that the purchaser of each lot should be a 
 party to the assignment of the other lot, for the purpose 
 of entering into the covenants by way of indemnity usual 
 in such cases, it was held, that the purchaser of lot 2 was 
 not a necessary party to the vendor's bill for specific per- 
 formance of the j)m'chase of lot 1 {p) : so, where a land- 
 owner agreed to sell land to a Railway Company, and to 
 buy up his tenant's interest, it was held that the tenant 
 was not a necessary party to the vendor's bill for specific 
 performance and to restrain trespass by the Company (g) . 
 
 Persons having rights adverse to or inconsistent with 
 those of the vendor, or having no rights in the subject- 
 matter of the suit, ought not to be joined with him as co- 
 plaintiffs (r) : and if, being infants, they were so joined in 
 respect of adverse or inconsistent rights, the Court would 
 
 (I) Clay V. Sharpe, 18 Ves, 346, Sug. 252; but see a case of Co//e^^ v. 
 
 n. ; Corder v. Morgan, ib. 344. 
 
 (m) Tasker v. Small, 3 Myl. & Cr. 
 63. 
 
 (n) Peacock v. Penson, IJ Beav. ; 
 see p. S.'iO. 
 
 (o) Delabere v. Norwood, 3 Sw. 
 
 Hover, 1 Coll. 227. 
 
 {p) Palerson v. Long, 5 Beav. 186. 
 
 {q) Robertson v. Great Western 
 Railway Company, 10 Sim. 314, C. 
 
 (r) See Fulham v. McCarthy, 1 
 H. L. C. 703 ; Padwick v. Piatt, 11 
 
 144 ; Petre v. Buncombe, 7 Ha. 24 ; Beav. 503.
 
 AS TO SPECIFIC PERFORMANCE. 467 
 
 refuse to make a decree^ even by consent {s) : nor can Ch. xviii. 
 parties claiming sucli rights be made defendants to the 
 
 purchaser's bill (t) : but they may, it would appear, (and madTde-^^ 
 
 this seems to form an exception from the above general {semue). 
 rule,) be made defendants to the vendor's bill {v) . 
 
 However, where, at a sale by auction, it was arranged of"one^oty 
 
 that a portion of lot A. should be sold as part of lot B., it Teslary"^ 
 
 was, on a bUl beinsr filed by the purchaser of lot A. for suit in 
 
 , . respect of 
 
 specific performance according to the particulars, held, another lot. 
 that the pm'chasers of lot B. were necessary parties ; upon 
 the special ground, that the vendor ought not to remain 
 exposed to another suit by the purchaser of lot B. for 
 specific performance according to the arrangement at the 
 sale [w). 
 
 If the contract were entered into by an agent, and were be^a^p^arty^* 
 under seal, the other party may insist upon the agent under seal. 
 being included in any suit for specific performance by the 
 principal : inasmuch as the performance of the covenant 
 with the principal would be no defence to an action at law 
 by the agent {x) . 
 
 Generally, however, the contract is not under seal ; but, madeV° ^^ 
 even then, if the agency be not apparent on the contract, contract not 
 
 . 111/1 ii''«? under seal. 
 
 the nominal contractor should, (unless the plaintin can 
 prove the agency,) be made a party to the suit, as a de- 
 fendant {y), in order to bind his apparent interest (z) ; 
 and, although an action at Law might in such a case be 
 
 (s) See Wood v. White, 4 Myl. & (w) Mason v. Franklin, 1 Y. & C. 
 
 Cr. 483. C. C. 239. 
 
 (/) Tasker v. Small, 3 Myl. & Cr. (w) See Cooke v. Cooke, 2 Vern. 
 
 63. 36 ; Cope \. Parry, 2 Jac. & W. 538. 
 
 {v) See Calvert on Parties, 329 
 Evans v. Jackson, 8 Sim. 217 
 Sanders v. Richards, 2 Coll. 568 
 
 (y) See and consider Fulham v. 
 McCarthy, 1 H. L. C. 703. 
 
 {z) 1 Dan. Ch. P. by H. 205; 
 
 and see Lord Langdale's remark as Taylor v. Salmon, 4 Myl. & Cr. 134 ; 
 to the judgment creditors, in Lord and see Nelthorpe v. Holgate, 1 Coll. 
 Leigh v. Lord Ashburton, 11 Beav. 217, 218 ; where it was held that an 
 474. agent might join as co-plaintiff. 
 
 H H 3
 
 468 AS TO SPECIFIC PERFORMANCE. 
 
 ch. XVIII. maintained l)y eitlier agent or principal^ if a bill be filed, 
 
 the parties beneficially interested in the contract must be 
 
 Auctioneer, parties to the suit (a) . So, an auctioneer is frequently 
 
 wlien and ■'■ ^ j 
 
 why made a made a co-plaintiff with the vendor, upon the ground 
 
 either of his having an interest in the contract, or of his 
 
 Agent,when liabiHtv to an action for the deposit (b) . But, if the agent 
 
 an improper ■^ a \ / ^ 
 
 P^^'^y- has no interest in the contract or the subject-matter 
 
 thereof, and is under no liability in respect of the contract, 
 he is an improper party to the suit (c) . 
 
 Death of jf the vcudor die before completion, his personal repre- 
 
 vendor — i ' x 
 
 Tntmed'to sentatives, as being entitled to the purchase-money, are 
 
 chas^errand prima facic the proper plaintiffs : if the personal estate has 
 
 per°paHies°' bccn vcstcd in trustees under an order of the Court, and a 
 
 bill is filed by such trustees, the personal representative is 
 
 still a necessary party [d) ; and unless the plaintiffs have 
 
 power to convey the vendor's interest in the estate (e), the 
 
 person in whom the same is vested, or who has power to 
 
 Heir, when convcv it, must also bc made a party (/) : but if there are 
 
 an unneces- J ' r j \</ / 
 
 eary party, devisccs, or if the cxccutors are empowered to sell, the 
 heir is said to be an unnecessary party {g), as the pur- 
 chaser has no right to insist on proof of the will against 
 the heir {h) : however, in a recent case, although special 
 circumstances, tending to impeach the validity of the will, 
 were held to entitle the purchaser to this protection, it 
 does not appear to have been considered that the heir 
 should have been made a party ; but the cause stood over 
 
 (a) Small v. Afhrood, 1 Younge, (e) /. e., the estate, whether legal 
 457; the words "suit" and "con- or merely equitable, which the vendor 
 tract" in lines 10 and 11, should evi- held subject to the contract ; see Eo- 
 dently be transposed. berts v. Marchant, 1 Ha. 547. 
 
 (b) See Dan. Ch. P. by H. 205, (/) Roberts v. Marchant, 1 Ha. 
 207. 547. 
 
 (c) King of Spain v. Machado, 4 {g) See Calvert on Parties, 327. 
 Russ. 225, 240 ; Kingsley v. Young, (Ji) Colton v. Wilson, 3 P. Wms. 
 cited Daniell's Ch. P. by H. 207. 192; Bellamy v. Liversidge, Sug. 
 
 {d) See Cave v. Cork, 2 Y. & C. 404 ; and see Morrison v. Arnold, 19 
 CO. 130, 133. Yes. 673.
 
 AS TO SPECIFIC PERFORMANCE. _ 469 
 
 tliat the vendor might file a bill against him to establish Ch. xviii. 
 the will (i). If the vendor have devised the estate in 
 strict settlement^ the trustees, the persons (if any) in 
 Avhom the first estate of inheritance is vested {k), and the 
 intermediate tenants for life [1), and the owners (if as- 
 certained) of any intermediate contingent or executory 
 estates {m), must be made parties. 
 
 So, the personal representatives of the vendor, and the such 'ca°e, 
 persons who have power to convey his estate, are the parties'to'^ 
 
 ,• , T )i'n/\ purchaser's 
 
 proper parties to a purchaser s bill [n) . bin. 
 
 So, if the vendor have, by act inter vivos, assigned his ^f veTdw^ 
 
 interest mider the contract, he, or, if he be dead, liis per- ^act iuL- ^ 
 
 sonal representative, must be a party to the assignee s bill are proper 
 
 as defendant : or, if such interest be recoverable at Law, suit either 
 
 ' ^ ' against or 
 
 either as defendant or as co-plaintiff (o) ; so, if subsequently ^l^^' 
 to the contract the vendor have aliened or incumbered the 
 estate contracted for, the weight of authority seems to 
 show that the ahenees or incumbrancees, if they took with 
 notice of the contract, may be made defendants to the 
 pui'chaser's bill (p) . 
 
 When the estate is vested in trustees in trust to sell and f,!^^Xhen 
 pay the proceeds to specified persons with power to give partfes.*^'"^^ 
 receipts, the cestuis que trust are not necessary parties 
 to the suit {q) . 
 
 If the purchaser die before completion, his heir or de- purchaser - 
 
 {i) Grove V. Bastard, 2 'Ph\\\. 0,1^; 174; and see 5 Ha. bbi\Padwick 
 
 the heir appears to Lave been made a v. Piatt, 11 Beav. 503. 
 defendant in Colton v. Wilson, 3 P. {])) See Daniels v. Davison, 16 
 
 Wms. 192. Ves. 249; EcJiliff v. Baldwin, ib. 
 
 {k) Hopkins v. Hopkins, 1 Atk. 267 ; Spence v. Hogg, 1 Coll. 225 ; 
 
 590. Collett V. Hover, ib. 227 ; Potter v. 
 
 {I) Gore V. Stacjioole, 1 Dow. 18, Sanders, 6 Ha. 1 ; Dan. Ch. P. by H. 
 
 31 . 233 ; but see contra, Cutis v. Thodeg, 
 
 (m) Dan. Ch. P. by H. 263. 1 Coll. 223 ; Calv. on Part. 325. 
 
 (n) See Calv. on Part. 327. (?) Wakeman v. Duchess of Rut- 
 
 (o) See Fulham v. M' Carthy, 1 land, 3 Ves. 233 ; Binks v. Lord 
 
 H. L. C. 703, 722 ; Dan. Ch. P. by Rokeby, 2 Madd. 227. 
 H. 208 ; Ryan v. Anderson, 3 Madd.
 
 470 
 
 AS TO SPECIFIC PERFORMANCE. 
 
 Ch. XVIII. 
 
 who are 
 entitled to 
 sue vendor, 
 and who 
 are proper 
 parties to 
 suit. 
 
 Or to suit 
 by vendor. 
 
 Alienation 
 of purchas- 
 er's interest 
 by act inter 
 vivos — who 
 are proper 
 parties to 
 suit, by or 
 against 
 vendor. 
 
 Purchaser 
 not to be a 
 party if his 
 assignee has 
 been accept- 
 ed by 
 vendor. 
 
 Suit may 
 now be com- 
 menced by 
 bill or claim. 
 
 visee, (if the estate be one of inheritance,) is the party 
 entitled to sue for specific performance, making the per- 
 sonal representatives parties,, if he seek payment of the 
 purchase-money out of the personal estate (r) ; so, on a 
 bill filed by the vendor, the heir or devisee of the pur- 
 chaser is a necessary party to the suit [s) ; so, if the bill be 
 filed against the heir or de^dsee of the purchaser, the per- 
 sonal representatives must be made parties, because the 
 purchase-money is primarily payable out of the personal 
 estate {t). 
 
 If the purchaser have assigned the benefit of the con- 
 tract, the suit against the vendor for specific perform- 
 ance should, it would seem, be by the assignee {v) ; making 
 the purchaser a defendant : if, however, the purchaser 
 merely enter into an ordmary agreement for a sub -pur- 
 chase, agreeing himself to convey the estate, and not that 
 the original vendor shall convey it, such sub-purchaser is 
 not a necessary party to a suit for the performance of the 
 original contract (iv) . 
 
 And where the purchasei'^s assignee has been accepted 
 in his place by the vendor, the original purchaser should 
 not be made a party to the vendor's suit (^). 
 
 (5.) As to the Bill 
 
 A suit for specific performance may now be commenced 
 by BUI or by Claim under the orders of 22nd April 1850 ; 
 these orders [y) are not compulsory, but their practical 
 
 (r) Broome v. Monck, 10 Ves. 
 597 ; Buckmaster v. Harrop, 13 Ves. 
 456 ; vide supra, 125, 126 and n. {s), 
 ibid. 
 
 (s) Toivnsend v. Champernowne, 9 
 Pri, 130. 
 
 (0 Dan. Ch. Pr. by H. 278. 
 
 (t>) See Fulham v. McCarthy, 1 
 H. L. C. 703, 717; Padwick v 
 Piatt, 11 Beav. 503; but see Nel- 
 
 thorpe V. Holgate, 1 Col. 203 ; Mox- 
 hay V. Inderwick, 11 Jur. 837. 
 
 {w) See Anon, v. Watford, 4 Russ. 
 372. 
 
 (.r) Holden v. Hayn, 1 Mar. 47 ; 
 Hall V. Laver, 3 Y. & C. 191 ; see 
 Hemingway v. Fernandes, 13 Sim. 
 228. 
 
 (y) The effect of which is stated 
 infra, p. 473, et seq.
 
 AS TO SPECIFIC PERFORMANCE. 471 
 
 efiFect will, probably, be, to supersede to a considerable '- 
 
 extent the old form of proceeding; they do not however 
 seem to be in their present form adapted to cases involving 
 complicated and disputed matters of fact. 
 
 Assuming that the suit be commenced by Bill ; — if the ^rm°ofUie 
 bill state that the agreement was in writing, it need not ^^^^' ^ ^ 
 
 ® ^' It need not 
 
 allege signature {z) : nor that it was duly stamped {a) ; nor ^a[frVof 
 is it clearly necessary to allege that the agreement was in of wnHhig!' 
 writing, (supposing such to be the fact) {b) ; although 
 either the writing and signature, or special circumstances 
 taking the case out of the Statute of Frauds^ must be 
 proved at the hearing. 
 
 Where letters are rehed upon, they may be stated in Ji^®b!frefer-^ 
 the bill, either as constituting the agreement, or as evi- ^^^^°- 
 deuce of a parol agreement ; in the latter case, it will be 
 necessary to prove other matter sufficient to take the case 
 out of the statute (c) . 
 
 As a general rule, the bill need not state inferences or inferences 
 
 o ^ of law, whe- 
 
 results of law arising from the facts alleged : it has, how- g^^ted ^^ 
 ever, been held by V. C. K. Bruce in two recent cases, 
 that where the vendor means to rely on the purchaser's ^ife^^on 
 waiver of his prima facie right to a marketable title, he alleged;^ 
 must allege or charge such waiver ; and that it is not 
 sufficient to allege facts which, if proved, would be evi- 
 dence of waiver {d) : but, on the other hand, it is improper 
 to introduce general charges or averments of waiver, &c., 
 unsupported by a statement of the particular facts; the suppo^r*ilng 
 
 {z) Rist V. Hobson, 1 S. & S. v. Wilkes, 3 Bro. C. C. 400. 
 
 543 ; Field v. Hutchinson, 1 Beav. (c) See Birce v. Bletchley, 6 Madd. 
 
 599. 17 ; Skinner v. M'Douall, 2 De G. & 
 
 {a) 1 Dan. Ch. Pr. by H. 347. S. 265. 
 
 (i) See Spurrier v. Fitzgerald, 6 (d) Clive v. Beaumont, 1 De G. & 
 
 Ves. 548; 1 S. & S. 543 ; 1 Dan, S. 397; and Gaston v. Frankum, 13 
 
 Ch. Pr. by Yi. ZA7 ; but see Redding Jur. 739, V. C. K. B.
 
 473 
 
 AS TO SPECIFIC PERFORMANCE. 
 
 it should be 
 stated. 
 
 Prayer for 
 general 
 relief, what 
 relief can be 
 obtained 
 under. 
 
 ch. XYiii. party ought so to frame liis case upon the record^ that 
 the Court can fairly see what the case is which is to be 
 relied on (e) . 
 
 The plaintiff caimot, under the prayer for general relief, 
 obtain a decree inconsistent with either the specific case 
 made_, or the specific relief prayed by the bill (/) : for 
 instance, a vendor who, through want of title, fails to 
 obtain a decree for specific performance against a pur- 
 chaser in possession, cannot, under the prayer for general 
 relief, obtain an account of the rents and profits ; although 
 the defendant by his answer state his readiness to pay a 
 fair rent [g) : nor, where he fails in proving the agree- 
 ment alleged by his bill, can he, in general, take a decree 
 for performance of a different agreement admitted by the 
 defendant's answer (A) : nor can he, under the general 
 prayer, obtain relief which, although consistent with the 
 specific relief, is yet sustained only by allegations which 
 have been introduced merely as showing his right to the 
 specific relief [i) : and, in general, where a bill is filed 
 making a case of actual fraud, and such fraud is disproved 
 or not estabUshed, the Com't will not allow the bill to be 
 used for any secondary purpose, but will dismiss it with 
 costs [k). 
 
 (e) See Hunter v. Daniel, 4 Ha. 
 432. 
 
 (/■) See authorities cited in the 
 four next notes, and see Hiern v. 
 Mill, 13 Ves. 119; Cockerell v. 
 Dickens, 1 Mon. D. & De G. 45, 81, 
 Priv. C. 
 
 ('^r) Williams v. Shaw, 3 Russ. 
 178, n. 
 
 (h) Legal v. Miller, 2 Ves. sen. 
 
 299; but see Mortimer v. Orchard, 
 2 Ves. jun. 243 ; and Hanhury v. 
 Litchfield, 2 Myl. & K. 629; in 
 which, under special circumstances, 
 the plaintiff obtained a decree. 
 
 (?) Stevens v. Guppy, 3 Russ. 171, 
 185. 
 
 {k) Glascott V. Lang, 2 Ph. 310, 
 322 ; and see Wilde v. Gibson, 1 H. 
 L. C. G21.
 
 AS TO SPECTPIC PERFORMANCE. 473 
 
 Ch. XVIII. 
 
 (6.) As to proceeding by Claim, under the Orders of 
 April, 1850. 
 
 Under the Orders of April, 1850, any person seeking by dafm°^^ 
 
 under the 
 Orders of 
 April, 1850. 
 
 equitable relief may, wdtliout special leave of tlie Court, orders of 
 
 and instead of proceeding by bill in the usual form, file a 
 Claim in the Record and Writ Clerks' Office, in (among 
 other specified cases,) any case where the plaintiff is, or 
 claims to be, a person entitled to the specific performance 
 of an agreement for the sale or purchase of any property, 
 seeking such specific performance : such claim to be in the 
 form, and to the effect, of the form No. 8 set forth in the 
 Schedule A. to the said Orders; and the filing of such 
 claim is to have the force and effect of filing a bill (/) : and Special 
 
 o ^ ' claim. 
 
 in any case in vrhich the above form is not applicable, the 
 Com't may, upon the ex parte application of the plaintiff, 
 and upon reading the claim proposed to be filed, give 
 leave to file it (m) . 
 
 Upon filing the claim the plaintiff may sue out a writ of Emmons. 
 summons to the defendant, requiring him to cause an 
 appearance to be entered, and also requiring him, on a 
 day or time to be therein named, or on the seal or motion 
 day then next following, to show cause, if he can, why 
 such rehef as is claimed by the plaintiff should not be had ; 
 or why such order as shall be just with reference to the 
 claim should not be made {n) : the time named for show- 
 ing cause is to be fourteen days at the least after service 
 of the writ ; but, by consent of the parties, and with the 
 leave of the Com't, cause may be shown on any earlier 
 day (o) . 
 
 The only person who need be named in the writ of ^^^lotobe 
 
 {I) See Orders 1 and 2. (w) See Orders 5, 6. 
 
 (m) Order 6. (o) Order 11.
 
 474 
 
 AS TO SPECIFIC PERFORMANCE. 
 
 Ch. XVIII, 
 
 named de- 
 fendant. 
 
 Sliowing 
 cause. 
 
 Hearing 
 and order 
 thereon. 
 
 Effect of 
 order. 
 
 Court at 
 liearing may 
 direct bill to 
 be tiled. 
 
 summons^ as defendant to the suit in the first instance^ is 
 the person against whom rehef is directly prayed {p) . 
 
 At the time named in the writ for showing cause, or on 
 the seal or motion day then next following, or so soon 
 after as the case can be heard, the defendant, having pre- 
 viously appeared, is, personally or by counsel, to show 
 cause in Court, if he can, (and, if necessary, by affi- 
 davit {q), ) why such relief as is claimed by the claim 
 should not be had against him (r) . 
 
 At the time appointed for showing cause, upon the 
 motion of the plaintiff, and on hearing the claim, and what 
 may be alleged on the part of the defendant, or upon read- 
 ing a certificate of the appearance being entered by the 
 defendant, or an affidavit of the writ of summons being 
 duly served, the Covu't may, if it shall think fit, make an 
 order granting or refusing the relief claimed, or directing 
 any accounts or inquiries to be taken or made, or other 
 proceedings to be had for the purpose of ascertaining the 
 plaintift^'s title to the relief claimed : and the Court may 
 direct such (if any) persons or classes of persons as it shall 
 think necessary or fit, to be summoned or ordered to ap- 
 pear as parties to the claim, or on any proceedings before 
 the Master with reference to any accounts or inquiries 
 directed to be taken or made, or otherwise (s) . 
 
 Every order to be so made is to have the efifect of, and 
 may be enforced as, a decree or decretal order made in a 
 suit commenced by bill, and duly prosecuted to a hearing, 
 according to the previous com^se of the Court (/) . 
 
 If, upon the appHcation for any such order, or dui'ing 
 any proceedings under any such order when made, it shall 
 
 (jw) Order 8. (r) Order 12. 
 
 (q) It is understood that, in prac- (s) Order 13. 
 
 tice, the plaintiff is allowed to file (i) Order 14. 
 affidavits in reply.
 
 AS TO SPECIFIC PERFORMANCE. 475 
 
 appear to the Court that, for the purposes of justice Ch. xvm. 
 between the parties_, it is necessary or expedient that a 
 bill should be filed, the Court may direct or authorize such 
 bill to be filed, subject to such terms as to costs or other- 
 wise as may be thought proper {u) . 
 
 The orders made for granting relief in the several cases Form 
 
 order. 
 
 to which the forms set forth in Schedule A. are apphcable, 
 may, if the Court thinks fit, be in the form and to the 
 efi*ect set forth in Schedule C. as applicable to the par- 
 ticular case, with such variations as ch-cumstances may 
 require {v) . 
 
 If any of the cases enumerated in Order I., involve, or Plaintiff 
 
 ' may, under 
 
 are attended by, such special circumstances affecting either cumstinces 
 
 the estate or the personal conduct of the defendant, as to un.^^*^ ^^ 
 require special relief, the plaintiff is at liberty to seek his 
 relief by bill, as if the orders had not been made (w) . 
 
 If any suit, for any of the purposes to which the forms As to extra 
 
 set forth in Schedule A. are appHcable, shall be com- sionedby 
 
 unnecessa- 
 
 menced by bill and prosecuted to a hearing in the usual [n^j^''°bfii*^ 
 course, and, upon the hearing, it shall appear to the Court cuim!* °^ 
 that an order to the effect of the decree then made, or an 
 order equally beneficial to the plaintiff, might have been 
 obtained upon a proceeding by summons in the manner 
 authorized by the orders, the Coin-t may order the in- 
 creased costs occasioned by proceeding by bill, beyond the 
 costs which would have been sustained in proceeding by 
 summons, to be paid by the plaintiff [a:) . 
 
 It has been decided (y), that the above orders do not in what 
 
 _ ' cases orders 
 
 extend to injunction suits : and the form of claim given in ^pp'J'- 
 Schedule A. seems adapted only to cases where the plain- 
 tiff rehes on a written agreement, (the documents consti- 
 
 (m) Order 15. (^) Order 32. 
 
 (») Order 16. (y) Holden v. Chalcrafl, 14 Jur. 
 
 (iv) Order 31; that is, without in- 846. 
 curriiig any special liability to costs.
 
 476 
 
 AS TO SPECIFIC PERFORMANCE. 
 
 Ch. XVIII. 
 
 tuting whiclij must, if not admitted, be produced and proved 
 at the hearing), (y) And the 1st Order has been held not 
 to include a claim for specific performance of an agreement 
 to grant (z) or take (a) a lease ; although it may be filed by 
 special leave under the 6tli Order ; but a claim for specific 
 performance of a contract for purchase against the execu- 
 tors and devisee of the purchaser, claiming specific perform- 
 ance and costs, and in default, an administration of the 
 purchaser''s personal estate for the benefit of the plaintiff 
 and creditors generally, and that, if plaintiff should not 
 thus be fully paid, he might be declared to have a lien on 
 the estate, and that it might, if necessary, be sold, has 
 been held not to require leave {b) ; nor is leave necessary 
 where, the title having been accepted, the purchaser refuses, 
 on some collateral ground, to complete (c). V. C. K. 
 Bruce has evinced a disposition to put a wide construc- 
 tion upon the orders ; but the prevalent opinion seems to 
 be, that they are, in the present shape, adapted only to 
 clear and simple cases {d). 
 
 Written 
 agreement, 
 wlien dis- 
 pensed with, 
 
 on the 
 ground of 
 fraud . 
 
 Part per- 
 formance or 
 
 (7.) As to how the Plaintiff's case may he sustained in 
 the absence of a ivritten agreement : — fraud, — ^mrt per- 
 formance : — admission by Defendant of parol agree- 
 ment : — parol variation of written agreement. 
 
 Although, in general, there must, in order to sustain a 
 suit for specific performance, be a contract in writing 
 within the Statute of Frauds, the Courts, in certain cases, 
 decree specific performance of a parol agreement, upon 
 the ground, 1st, of fraud having been the cause of the non- 
 compliance with the requisitions of the Statute : 2ndly, of 
 
 (y) See Scargill v. Hurry, 14 Jur. 
 847 ; Marshall v. Davies, 14 Jur. 
 997, V. C. R. 
 
 [z) Keeble v. Dennish, 14 Jur. 
 847. 
 
 (a) Scargill v. Ihnrry, ib. 
 
 (b) Nottingham v. Mould, 16 L. 
 T. 122, V. C. K. B. 
 
 (c) Hemming v. Mayo, 14 Jur. 
 847. 
 
 {d) See Jackson v. Grant, Times 
 23rd Nov. 1850, 41 L. O. 71), V. C. R.
 
 AS TO SPECIFIC PERFORMANCE. 477 
 
 the parol agreement lia^dng been in part performed^ or Ch.xviii. 
 Srdlv, of its existence being: admitted by tlie defendant (e) . defendant's 
 
 " ■^ ° t! \ / admission. 
 
 1st. If by fraud the defendant has prevented a com- Fraud takes 
 
 • 1 1 ... p -, 1 • -Ti the case out 
 
 phance ^ath the requisitions of the statute^ this will not of the sta- 
 avail him_, but the plaintiff will be entitled to relief on 
 proving the fraud and the parol contract (/). 
 
 2ndly^ As to acts of part performance sufficient to take form^fce- 
 a case out of the Statute of Frauds. — It is^ in general^ of rresuffident 
 the essence of such an act^ that the Court shall^ by reason case out of 
 
 statute. 
 
 of the act itself, without knowing whether there was an 
 agreement or not, find the parties unequivocally in a 
 position different from that which, according to their legal 
 rights, they would be in if there were no contract {ff) ; for 
 instance, delivery of possession is a sufficient part per- 
 formance on the part of the vendor to sustain his suit 
 against the purchaser (A) ; and acceptance of possession is 
 a sufficient part performance, on the part of the purchaser, 
 to sustain his suit against the vendor (i) : the fact of the 
 purchaser being, without liability to a charge of trespass, 
 in possession of the vendor's land, is considered as showing 
 unequivocally that some contract has taken place between 
 the htigant parties (j) ; and the Court will then receive 
 parol evidence of the terms of such contract. So, the 
 retention of possession by a tenant after the determination 
 of the original tenancy, may, under special circumstances, 
 amount to part performance {k) : so, if a tenant in pos- 
 session lay out money on the premises, upon the faith of 
 the parol agreement (/), or, it is conceived, commit acts 
 
 (e) As to the distinction between Buckmasfer v. Harrop, 13 Ves. 456 ; 
 
 agreements and declarations of trust, Reynolds v. Waring, You. 351, 353. 
 
 see Dale v. Hamilton, 2 Ph. 266, 275. (i) Clinan v. Cooke, 1 Sch. & Lef. 
 
 (/) See note to Pym v. Black- 41; Gregory \.Mighell,\%Yes.'i2^; 
 
 burn, 3 Ves. 38, and cases there col- Morphett v. Jones, 1 Sw. 172. 
 
 lected. {j) PerY. C. Wigram, 5 Ha. 381. 
 
 {g) Per V. C. Wigram, in Dale v. (*) Dowell v. Dew, 1 You. & C. 
 
 Hamilton, 5 Ha. 381. C. C. 345. 
 
 (A) Fyke v. Williams, 2 Vern. 455; (0 Wills v. Stradling, 3 Ves. 382 ;
 
 478 
 
 AS TO SPECIFIC PERFORMANCE. 
 
 Ch. XVIII. 
 
 What are 
 insuilicieiit. 
 
 wliicli "would, (if he were merely tenant^) subject him to 
 the loss of his lease (m), or to proceedings on the part of 
 the landlord (w) : so, it has been held, that the mere pay- 
 ment of additional rent entitles the tenant to an answer 
 from the landlord as to the existence of an agreement for 
 a renewed lease, although the Court intimated an opinion 
 against the admissibility of parol evidence in opposition to 
 the answer (o) . 
 
 And when the parties have for many yearS acted upon 
 the assumption that a contract existed, acts which might 
 not in themselves, and irrespectively of the lapse of time, 
 have been sufficient to take the case out of the Statute, 
 have been held to have that effect {p) . 
 
 But there can be no part performance of an imcomplete 
 contract {q) : and an act which, though in truth done in 
 performance of a contract, admits of explanation without 
 supposing a contract, is not, in general, sufficient to take 
 the case out of the Statute (r) : e. g., delivery of the ab- 
 stract, or gi\'ing directions for the conveyance, is insuffi- 
 cient {s) : so, also, is payment of a sum alleged to be pur- 
 chase-money {t) ; or procuring, and paying a valuable con- 
 sideration for, a release by a third party (w) ; or the mere 
 retention of possession by a tenant after the determination 
 of his tenancy but before notice to quit {v) ; or an ex- 
 
 Mundy v. Jolliffe, 5 Myl, & Cr. 167; 
 Sutherland v. Briggs, 1 Ha. 26. 
 
 (m) See and consider Parker v. 
 Smith, 1 CoU. 608. 
 
 (w) See 5 Myl. & Cr. 177; and 
 Sutherland v. Briggs, ubi supra. 
 
 (o) Wills V. Stradling, 3 Ves, 378, 
 382. 
 
 (jo) Blachford v. Kirlcpatrick, 6 
 Beav. 232. 
 
 (g) Lady Thynne v. Earl Glengall, 
 
 H. L. C. 131, 158 ; and see Parker 
 V, Smith, 1 Coll. 623. 
 
 (r) 5 Ha. 381. 
 
 («) Sug. 140; Whaley v. Bagnel, 
 1 Bro. P. C. 345 ; HoU v. White, 1 
 Bro. C. C. 409 (cited) ; Thomas v. 
 Blackman, 1 Coll. 301. 
 
 {t) Clinan v. Cooke, 1 Sch. & Lef. 
 40 ; Watt v. Evam, 4 Y. & C. Ex, 
 579; and see 5 Ha. 381. 
 
 (t<) O'Reilly v. Thompson, 2 Cox, 
 271. 
 
 (v) Wills V. Stradling, 3 Ves. 381 ; 
 Brennan v. Bolton, 2 Dru. & War. 
 349.
 
 AS TO SPECIFIC PERFORMANCE. 479 
 
 IDcnditure by the tenant to which he is liable under the Ch.xyiii . 
 terms of his lease [w) : so^ possession obtained wrongfully 
 by the plaintiff, of course^ cannot avail him {x) : marriage, 
 it may be remarked, is not, for the purposes of specific 
 performance, considered as a part performance of a parol 
 contract for which it forms the consideration [y) . 
 
 So, if, in the case of moneys expended by a tenant, the penciifure 
 circumstances were such as would, if there were no con- 
 tract for sale, enable him to recover the amount from the 
 landlord, the case would not appear to be different in 
 principle from that of payment of purchase-money ; the 
 same remark applies to the case of the payment of addi- 
 tional rent (~) ; where, however, as we have seen, the de- 
 cision was, that the landlord who had pleaded the Statute 
 should answer. 
 
 In the modern case of Mundy v. JoUiffe {a) , the defend- jomuv. ^ ' 
 ant, in pursuance of the parol agreement for a lease, had 
 laid down a field in pasture, and executed draining and 
 repairs; acts which are referred to by Sir /. Wigram 
 V. C. [b), as "certainly equivocal" : the bill was dismissed 
 by Sir L. Shadwell, V. C, but this decision was reversed 
 by Lord Cottenhani, C, on appeal. His Lordship, in giving 
 judgment, indicated a willingness rather to extend than to 
 contract (c) the jurisdiction : "Coui'ts of Equity," observed 
 his Lordship, "exercise their jurisdiction, in decreeing 
 specific performance of verbal agreements, where there 
 has been part performance, for the purpose of preventing 
 the great injustice which would arise from permitting the 
 party to escape from the engagements he has entered into, 
 upon the ground of the Statute of Frauds, after the other 
 
 (w) Frame v. Dawson, 14 Ves. G. 572. 
 386, (z) Wills V. Stradling, 3 Ves. 378. 
 
 (.r) Sug. 141; Hole v. White, 1 (a) 9 Sim. 413; on appeal, 5 Myl. 
 
 Bro. C. C. 409, cited. & Cr. 167. 
 
 iy) Dundas v. Dutens, 1 Ves. jun. {b) 5 Ha. 381. 
 
 199 ; Lassence v. Tierney, 1 Mac. & (c) See Sug. 150.
 
 480 AS TO SPECIFIC PERFORMANCE. 
 
 Ch. XVIII. party to the contract has, upon the faith of such engage- 
 ment, expended his money or otherwise acted in execution 
 of the agreement. Under such circumstances, the Court 
 will struggle to prevent such injustice fi'om being effected; 
 and with that object, it has, at the hearing, when the 
 plaintiff has failed to establish the precise terms of the 
 agreement, endeavoured to collect what the terms of it 
 really were" {d). 
 tfce an/°" ^^^ ^ modem case, where an agreement in writing for a 
 poslsess^on three years^ tenancy reserved to the tenant the option of 
 held to be' a requiring a twenty-one j^ears' lease at the expii'ation of 
 
 sufficient . 
 
 declaration the prior tcrm, V. C. Wigram appears to have considered, 
 purchase. that his Verbal notice of intention to take the new lease, 
 
 accompanied by retention of possession, was binding 
 
 upon him {e) . 
 Ejectment In a latc casc, where a colliery proprietor, under the 
 
 bylaudovvn- , j r r ' 
 
 er restrained mistaken notiou that he had a power of compulsorily pur- 
 
 on ground ^ r j r 
 
 quil?s^cence chasing land for the purpose of a railway, wrote to the 
 expendfture landowner, and, referring to such supposed power, offered 
 possession, to puTchasc the land at a fair valuation, and, no reply 
 
 although no . . . i • i 
 
 agreement, bciug givcn, the railway was made over the land without 
 fui'ther communication with him, but with his full know- 
 ledge; and then, after a fruitless negotiation as to the 
 price to be given for the land, the landowner commenced 
 an ejectment upwards of three years after the railway had 
 been finished ; the same learned judge on motion, re- 
 strained the action, upon the colliery proprietor giving 
 judgment in the action, and paying into Court the utmost 
 valuation of the land (/) . 
 
 how"^^' ^^ seems to be clear, upon the modern authorities [g), 
 
 (d) 5 Myl. & Cr. 177. Lef. 38 ; Boardman v. Mostyn,&Yes. 
 
 (e) Beatson v. Nicholson, 6 Jur. 467, 471 ; Morphett v. Jones, 1 Sw. 
 620. 172; Price v. Assheton, 1 Y. & C. 
 
 (/) Poxvell V. Thomas, 6 Ha. 300. Ex. 82 ; Dale v. Hamilton, 5 Ha. 
 {g) See Allan v. Bower, 3 Bro. C. 381 ; Mundy v. Jolliffe, 5 Myl. & 
 C. 149; Clinan v, Cooke, 1 Sch. & Cr. 167, 177 ; Sug. 147.
 
 AS TO SPECIFIC PERFORMANCE. 481 
 
 that the Court, being satisfied of the existence of an agree- cu. xviii. 
 ment, will if possible, ascertain the real terms : Sir E. g^ow pre- 
 Sugden, however, remarks, that " the prevailing opinion contract^ ° 
 requires the party seeking the specific performance in such 
 a case to show the distinct terms and nature of the con- 
 tract " {hj ; and in a case in Ireland, a reference was re- 
 fused at the hearing, on the ground that the party setting 
 up the agreement had not produced evidence which, if 
 uncontradicted, would be sufficient to establish its essen- 
 tial terms ; the Coiu't holding that a reference should be 
 directed only in cases where the evidence is contradic- 
 tory (i) . But it has been held, that where the bill states, immaterial 
 
 •^ ^ ' ■' ' terms of 
 
 as part of the agreement, a stipulation which would aftiw^h''*' 
 operate against the plaintifi^, and which created a liability Mi.'^need 
 to which he would, in the absence of agreement, have been proved ; 
 liable, — {e. g., an agreement by an intended lessee to pay 
 taxes and make necessary repairs (A:),) — or which has been 
 satisfied, and so rendered immaterial, so far as relates to 
 anything remaining to be done (/), the failure to prove 
 such statement is unimportant. 
 
 But if the final result of all the evidence which can be the material 
 
 terms must 
 
 procured, is, to leave the material terms of the agreement be'^cK.arty^ 
 doubtful, as where it remained uncertain whether the pur- 
 chase-money did or did not include the timber, the Court, 
 of course, can make no decree (m) : the Court, however, will 
 endeavour to put a reasonable interpretation upon vague 
 expressions in an agreement (w). 
 
 (h) Sug. 150 ; see Price v. Asuhe- estate. 
 ton, 1 Y. & C, Ex. 441. {k) Gregory v. Mif/hell, 18 Ves, 
 
 (i) Savage v. Carroll, 1 Ball & B. 328. 
 283, 550, 551; tliis case, however, (l) Mu7idg v. Jollife,b My\. Sc Cr. 
 
 was not one between vendor and 167, 176. 
 
 purchaser ; but the validity of the (w) Reynolds v. Waring, You. 
 
 contract was discussed upon the col- 346; in this case no reference ap- 
 
 lateral question, whether the heir of a pears to have been asked for by (lie 
 
 purchaser who had died before com- plaintiff. 
 
 pletion was entitled to have the pur- («) Sanderson v. Cockermoutk 
 
 chase-money paid out of the personal Railway Company, 11 Beav. 497. 
 
 I J
 
 482 AS TO SPECIFIC PERFORMANCE. 
 
 ch. XVIII. And it appears that, as a general rule, the plaintiff can- 
 
 ftmiantf^' not rely upon any act by the defendant which can merely 
 
 his ow/pre- tend to liis own prejudice, and not affect the plaintiff; e. g., 
 
 paVt^pe"*' payment of auction-duty by the purchaser (o) ; or the 
 
 formance ; • i i i c ±^^ 
 
 execution and registration by the vendor oi the convey- 
 nordoes anccfw). Nor, in the case of a piu'chase of separate 
 
 part per- i p 
 
 formance, jots imdcr Separate parol contracts, does part pertorm- 
 
 as to one lot, ^ '- 
 
 theriot!'"' ^^ce as to one lot set up the agreement as to another 
 
 lot(^). 
 Sales by Wc may here remark, that sales by auction (r), and in 
 
 auction and " ni-i-ict i?-r\ i 
 
 in bank- bankruptcy [s), are both within the [statute oi Iraucls. 
 
 ruptcy are i j \ i 
 
 jyitwn the 3^^^ Where the defendant, by his answer, admits the 
 Admission parol agreement as alleged in the bill, and does not claim 
 
 of agree- 10 <=> 
 
 ifendanf and *^^ benefit of the statute. Equity i^-ill decree specific per- 
 i-nsistedTn. formaiicc against himself, or, if he die before decree, against 
 his representatives (/) ; so if he admit a different agree- 
 ment from that alleged in the bill, the plaintiff may amend 
 his bill and take the benefit of the admission {n) ; but, in 
 any case, if relying on the admission, he is bound by its 
 terms, and cannot vary them by parol e\ddcnce [iv) : so, if 
 the defendant, although admitting the agreement, insist 
 upon the Statute, no decree can be made against him {x) ; 
 but he cannot, after having admitted and submitted to 
 perform the agreement, claim the benefit of the Statute 
 by his answer to the amended bill {y) : nor can he unite a 
 
 (0) Buchnaster \. Ilarrop, ISYes. {i) See Jit.- Gen. v. Dai/, 1 A^es. 
 
 465 ; the particular case cannot again 221 ; Sug. 150 ; see Parker v. Smith, 
 
 arise, the duty having, as is well 1 Coll. 615. 
 
 known, been repealed. (««) Lindsay v. Lynch, 2 Sch. & 
 
 {p) Hawkins V. Holmes, W.Wms. Lef. 9. 
 
 770. (»") Pyni V. Blackburn, 3 Ves. 34. 
 
 (g) Buckmaste9 y. Harrop,'l^yes. (.r) Blayden v. Bradbear, 12 Ves. 
 
 45ti, 474. 4G6; see Moore v. Edwards, 4 Ves. 
 
 (r) S. C. ; Blagden v. Bradbenr, 23 ; Cooth v. Jackson, 6 Ves. 37 ; 
 
 12 Ves. 466. Rowe v. Teed, 15 Ves. 375. 
 
 (s) Er parte Cntts, 3 Dea. 267, (//) Spurrier \. Fitzf/ernld, 6 Ves. 
 
 Lord Cottenham. 548.
 
 AS TO SPECIFIC PERFORMANCE. 483 
 
 plea of the statute with any other defence by answer {::) : d- xviii. 
 in a late case, it appears to have been held by V. C. K. 
 Bruce, that the defendant, denying the agreement, but 
 omitting to claim the benefit of the statute by his answer, 
 was not entitled to avail himself of it (a) . 
 
 The plaintiff, as a general rule, if suing on a written Purchaser 
 
 t- ■' ci JO cannot, in 
 
 contract is bound by its terms, and cannot, upon the for^'specmc 
 gi'ound of fraud, surprise, or mistake, seek to vary, add to, ance*™:!. 
 or explain its contents {b) : except, perhaps, where the tract witii a 
 
 . . . . parol varia- 
 
 fraud consists in a refusal to accede to a promised varia- tion. 
 tion upon the faith of which the plaintiff entered into a 
 written agreement (c) ; or in a fraudulent preparation or 
 alteration of the agreement so as to make it inconsistent 
 with the real intention of the parties, and with the under- 
 standing of the plaintiff at the time he executed it ; or 
 where, by mistake, an agreement not expressing the real 
 intention of the parties, is entered into, and the mistake 
 is admitted by the answer, or, not being denied by the 
 answer, is proved by unexceptionable evidence {d). A ^uentp^aroi 
 subsequent parol variation cannot be enforced by the can only be 
 
 enforced if 
 
 plaintiff (e), unless there has been such a part perform- partper- 
 ance of the varied agreement as would support a decree 
 in the case of an original independent agreement (/) ; or. 
 
 (z) Cooth V. Jackson, 6Ves. 12. 94; Lord Eldon's remarks, 6 Ves, 
 
 (a) Skinner v. M^Douall, 2 De G. 339 : Sir John Leach's argument, as 
 
 & S. 265. counsel for the defendant, in Wool- 
 
 {b) Marquis of Townshend v. lam v. Hearn, 7 Ves. 215 ; and the 
 
 Stangroom, 6 Ves. 328; Clowes v. judgment in Alt. -Gen. v. Sitivell, 1 
 
 Higginson, 1 Ves. & B. 524. You. & C. Exch. 583 ; as to adrait- 
 
 (e) Pember v. Mathers, 1 Bro. C. ting evidence in explanation of parti- 
 
 C. 52, 54 ; Sug. 188 ; but see Clarke cular expressions, vide supra, p. 451, 
 
 V. Grant, 14 Ves. 519, 525, et qucere. ot seq. 
 
 (d) See note to Pym v. Blackburn, (e) Robson v. Collins, 7 Ves. 130, 
 
 3 Ves. 38, and cases as to fraud there 133. 
 
 cited ; Lord Thurlow's judgment in (/) See Van v. Corpe, 3 Myl. & 
 
 Lord Irnham v. Child, 1 Bro. C. C. K. 269, 277 ; and Sug. 170. 
 
 I I 2
 
 484 AS TO SPECIFIC PERFORMANCE. 
 
 ch. XVIII. (it is conceived) unless the defendant by his answer admit 
 the variation and do not insist on the Statute. 
 
 (8.) As to grounds of defence negativing plaintiff's right 
 to specific performance except ivith a variation of the 
 original wi'itten agreement ; viz., fraud — mistake — mis- 
 representation — unfulfilled promise — parol variation, b^c. 
 
 On the other hand, it is quite competent for the defend- 
 ant to set up a variation from the written contract ; and it 
 will depend on the particidar circumstances of each case 
 whether that is to defeat the plaintiff's title to have a spe- 
 cific performance, or whether the Court will perform the 
 contract, taking care that the subject-matter of this parol 
 agreement or understanding is also carried into effect ; so 
 that all parties may have the benefit of what they con- 
 tracted for {g) . 
 As to de- ^\^Q admissibility of parol evidence by way of defence to 
 
 fences winch ^ i ^ ./ 
 
 pUintirs ^ bill for specific performance of a vAritten agreement, in 
 slfecific per- its literal unvaried terms, may be conveniently considered 
 
 formance •,^ n i c -i e 
 
 except with With reiercuce to tour classes ot cases : viz. 
 
 a variation . 
 
 ist.-Fraud 1st. Cascs where the defence is, that by fraud, or mis- 
 affectlng tiie take, tlic Written agreement is, in terms, different fi'om 
 
 terms ot the -i-iiini i- i i i 
 
 agreement, that which the defendant supposed it to be, when he 
 executed it; this, if proved, will negative the plaintiff's 
 right to specific performance except with the variation {Ji). 
 
 2ndiy.— Oj^d. Cases where the defence is, that by fraud, mistake. 
 
 Fraud, mis- > j > } 
 
 or surprise, the defendant executed the written agreement 
 
 {g) Per Lord Cottenham, Cr & v. Grinling, 2 Sw. 244 ; Clinan v. 
 
 Ph. 62. Cooke, 1 Sch. & L. 38,39; Hum- 
 
 (h) See Joynes v. Stafham, 3 Atk. phries v. Home, 3 Ha. 277 ; but 
 
 388 ; Woollam v. Hearn, 7 Ves. 211; mistake, if relied on, must be clearly 
 
 Sag. 157 ; Marquis Townshend v. proved ; Clai/ v. Rufford, 14 Jur. 
 
 Stangroom, 6 Ves. 328 ; Ramsbottom 803, V. C. W. ; and see Alvanley v. 
 
 V. Gosden, 1 Ves. & B. 1G5 ; Garrard Kinnaird, 2 Mac. & G. 1.
 
 AS TO SPECIFIC PERFORMANCE. 485 
 
 under a reasonable misapprehension as to its effect as ^'^X.^^^L. 
 between himself and the plaintiff (i) : here, also, the Court [frhferinXc- 
 will refuse to make a decree according to the literal terms femiant to 
 
 enter into 
 
 or strict construction of the agreement. Thus, where the agreement 
 
 misappre- 
 
 terms of the agreement have been ambiguous, so that, effecl;'"^'** 
 adopting one construction, they may reasonably be sup- 
 posed to have an effect which the defendant did not con- 
 template, the Court has, upon that ground only, refused 
 to enforce it {k) ; and this, even where the defendant him- 
 self was the author of the ambiguity, and the plaintifl' 
 certainly supposed himself to be buying all he claimed (/) ; 
 the principle is, that it is against conscience for a man to 
 take advantage of the plain mistake of another ; or, at 
 least, that a Court of Equity ^ill not assist him in doing 
 so : but the mere existence of circumstances at the date of mere sus- 
 the contract which might easily have led to fraud, and the Fraud! ° 
 want of any professional adviser on the part of the defend- 
 ant, have been held insufhcient to negative the right to 
 specific performance, — no fraud being shown {m) . 
 
 3rd. Cases where the defendant has obtained the like represen^i'-** 
 protection, when he has executed the agreement, knowing fumhed pro- 
 its terms and understanding its effect, but relying upon ingdefend- 
 
 ^ ■ -re " ^°* ^° enter 
 
 some misrepresentation (n) by the plaintifi, or upon some intoagree- 
 
 ^ \ / ^ r ^1 jjigjj^ know- 
 
 («■) But his mistake as to the use 447. 
 which he might make of it, is unim- (/) Neap v. Abbott, 1 C. P. Coop, 
 
 portant, see Mildmay v. Hungerfurd, 333 ; Manser v. Back, ubi sujjra. As 
 
 2 Vern. 243 to alteration of an agreement, vide 
 
 {k) Catverley v. Williams, 1 Ves. supra, p. 108, and cases cited : see, 
 
 jun. 210 ; Higginson v. Cloives, 15 also, a case of Twentyman v. Barnes, 
 
 Ves, 516; Clowes v. Higginson, 1 12 Jur. 743, V. C. K. B., where a 
 
 Ves, & B. 524; V. C. Wigram's plaintiff alleged that the agreement 
 
 judgment in Manser v. Back, 6 Ha. had been altered by chemical agency, 
 
 447 ; and see Alvanley v. Kinnaird, and moved that the paper might be 
 
 2 Mac. & G. 8. In Jenkinson v. subjected to chemical tests ; but tlie 
 
 Pepys, cited 6 Ves. 330, the evi- Court refused the application, 
 dence appears, in fact, to have been (in) Lightfoot v. Heron, 3 Y. & C. 
 
 offered on behalf of the plaintiff 586. 
 instead of the defendant: see 6 Ha. (m) See Buxton v. Lister, 3 Atk.
 
 486 AS TO SPECIFIC PERFORMANCE. 
 
 Ch. XVIII. stipulation upon his part, whicli goes to vary the written 
 and'effec™^ agreement^ but which he refuses to fulfil : e. g., a parol 
 promise to vary the terms of the T\Titten agreement has 
 been admitted as a defence to a bill seeking its specific 
 performance (o) ; and the same decision has been come to 
 in the case of a parol promise by the auctioneer, on behalf 
 of the vendor, to allow compensation for a deficiency in 
 quantity ; the right to which was in effect negatived by 
 the particulars [p). 
 ci-omne\. Howcvcr, wlicrc A. agreed to purchase Black Acre of 
 
 B., and B. by the same instrument agreed to piu'chase 
 White Acre of A., and no title could be shown to Black 
 Acre, it was held that, in a suit by A. for specific perform- 
 ance of the agreement for the sale of "VMiite Acre, B. could 
 not, as a defence, show that the performance of one agree- 
 ment was intended to be conditional on the performance 
 of the other ; that the intention was to effect an exchange 
 and not independent sales: Lord Brougham, C, in affirmiug 
 the judgment of Sir J. Leach, observed, that "parol evi- 
 dence of matter collateral to the agreement might be re- 
 ceived, but no e\ddence of matter dehors was admissible to 
 alter the terms and substance of the contract'^ {q) : upon 
 which Sir E. Sag den observes, that the e\n deuce was in- 
 admissible, " not because it was not to enforce a collateral 
 stipulation, but because it did not prove that by fraud, 
 mistake, or siu'prise, the agreement did not state the al- 
 leged real contract, viz. for an exchange between the 
 parties" (/"). 
 
 The meaning of the above extract from the judgment of 
 
 386 ; 7 Ves. 219 ; svjtra, Ch. 111. p. den's remarks, p. 160, upon Sir Tho- 
 
 39, et seq., and 62 et seq. mas Plumer's remarks in Clowes v. 
 
 (o) Clarke v. Grant> 14 Ves. 519; Higginson, 1 Ves. & B 526. 
 
 Mickletlnvait v. Nightingale, 12 Jur. {q) Croome v. Lediard, 2 Myl. & 
 
 638, R. K. 251, see 260; and see Lloyd v, 
 
 {p) Jt'inch V. Winchentcr, 1 Ves. Lloyd, 2 Myl. & Cr. 192. 
 
 & B. 375, 378 ; and see Sir E. Sug- (r) Sug. 161.
 
 AS TO SPECIFIC PERFORMANCE. 487 
 
 the late Chancellor, is, perhaps, not very obvions ; if meant Ohxviii. 
 to intimate that the non-fulfilment of a stipulation upon a 
 point collateral to the written agreement, and not incon- 
 sistent with such agreement, nor shown to have formed 
 any special inducement to its execution, is a good defence 
 in Equity, the dictum seems of questionable authority ; it J^^iul^^^'^ 
 having been held that the defendant cannot set up an r^reement, 
 additional parol stipulation, {e. g., as to the time for de- missibieasa 
 
 . . . defeuce. 
 
 livery of possession,) which was agreed upon by the parties 
 at the time of their signmg the written contract {s) . 
 
 The distinction in principle between such cases would ^^^{^l 
 seem to be this ; in the one case, the object of the defence '^^^^^' 
 is, not to in^^alidate or vary the written agreement, except 
 so far as such effect may be incidentally produced by 
 proving a parol agreement relating to the same subject- 
 matter ; and this is contrary to the Statute : in the other 
 case, the object of the defence is, to directly attack the 
 written agreement itself, by showing that it was executed 
 under mistake, or on the faith of a misrepresentation by 
 the other party, or of a promise made by him, and which, 
 from his refusal to fulfil it, must be taken to have been 
 originally fraudulent : and where the collateral parol agree- 
 ment is inconsistent with the written contract, the con- 
 clusion would seem to be almost inevitable, that the latter 
 was executed by the party favoured by the parol agree- 
 ment, either under a mistake as to the contents of the 
 written contract, or under a rehance on the good faith of 
 the other party in performing the parol variation : and the 
 fact of the point being provided for by the written con- 
 tract, would seem to show, that the parties deemed it 
 important ; whereas the contrary may be reasonably pre- 
 sumed of a parol stipulation upon a point which is in no 
 way provided for by the written contract. 
 
 (.s) Omerocl v. Hardman, 5 Ves. 722, 730 ; and see Sug. 163, et seq., and 
 187.
 
 488 
 
 AS TO SPECIFIC PERFORMANCE. 
 
 Ch. XVIII. 
 
 Stipulation 
 omitted by 
 consent, no 
 defence. 
 
 4th.— Sub- 
 sequent 
 parol varia- 
 tion, part 
 performed. 
 
 But where a stipulation is omitted fi-om the written 
 agreement, upon the supposition that it is illegal, the par- 
 ties are bound by such omission {t) . 
 
 4th. Cases where the written agreement is varied by 
 parol subsequently to its execution : in which cases the 
 vai'iation, to be available as a defence, must be accom- 
 panied by such a part performance as would enable the 
 Coiu"t to enforce it if it were an original independent 
 agi'eement (m) : subject nevertheless to the doctrine of 
 Equity which allows parties, by their acts, to vary the 
 original agreement in respect of matters relating to title 
 and the time for completion {w) . 
 
 As to de- 
 fences which 
 negative //* 
 Mo plain- 
 tiff's right to 
 specific per- 
 formance. 
 
 (9.) As to (/rounds of defence negativing in toto plaintiff's 
 right to specific performance ; viz., personal incapacity — 
 nature of contract, or fraud, ^c. ^r. attending its exe- 
 cution ; — matters relating to the estate, — title — or con- 
 sideration — plaintiff's conduct, ^'C, after contract; — 
 election of other remedy. 
 
 We may next consider those grounds of defence which, 
 assuming the existence of a prima facie valid agreement, 
 go to negative in toto the right to specific performance; 
 and these may, perhaps, be conveniently considered under 
 the several heads of, 1st, matters relating to the personal 
 capacity of the parties to contract ; 2nd, matters relating 
 to the natiire of the agreement, or the circumstances under 
 which it was entered into ; 3rd, matters relating to the 
 estate contracted for; 4th, matters relating to the title 
 thereto ; 5th, matters relating to the consideration ; and 
 6th, matters relating to the conduct of the plaintiff" sub- 
 sequently to the date of the agreement. 
 
 (/) Lord Lnham v. Child, 1 Bro. 
 
 C. C. 92 ; see 6 Ves. 332 ; Sag. 186. 
 
 («<) See Sug. 170 ; Legal v. Miller, 
 
 2 Ves. 299; Price v. Dyer, 17 Ves. 
 356. 
 
 (w) Sug. 170,
 
 AS TO SPECIFIC PERFORMANCE. 489 
 
 As to the 1st of the above heads. — Personal incapacity ^'^ /^X'^'^1' 
 on the part of the defendant to enter into the contract {£) sonalfn-'^" 
 is_, of course^ a sufficient defence to a suit for specific per- contract-" 
 formance ; unless_, having recovered his contracting capa- defeudaut. 
 city, he has confirmed or adopted the agreement. We 1"^°^*^^' 
 may here remark, that although intoxication, if excessive, 
 amounts to a temporary deprivation of reason {y), and is a 
 good defence although the party may not have been drawn 
 into drink by the plaintiff (»), yet it has been held that 
 the mere fact of the defendant having partaken freely of 
 liquor at the time of entering into the contract, is not, in 
 the absence of fraud, or of evidence that he was without the 
 full understanding and knowledge of what he was doing, a 
 reason for refusing specific performance («) . 
 
 Personal incapacity on the part of the plaintiff at the Personal in. 
 
 '^ *^ ^ -^ capacity on 
 
 time of the contract, cannot, it is conceived, be set up as a ^^afn°|jj- 
 defence to a suit for specific performance, if the plaintiff deftnce.^ 
 has recovered his capacity at the time of filing the bill or 
 claim {b) ; but the existence of incapacity, at the time of 
 the bill or claim being filed^ would appear to be a good 
 defence (c) : and at any time during its existence, the con- 
 tract, it is conceived, may be put an end to by due notice 
 from the party bound {d) ; except where the incapacity 
 consists in infancy, in which case the other party appears 
 to have no power to rescind the contract [e) ; but the infant 
 cannot^ while an infant, enforce the contract (/) : a con- 
 tract by husband and Avife for the sale of the wife's estate, 
 
 (c<) Ks to vfhich, vide supra, C\i.\. x\br. 393, 394 ; and see L-ases cited, 
 
 {y) See Cooke v. Clayworth, 18 infra, as to mutuality. 
 
 Ves. 12, 16; Cragg v. Holme, ib. (e) Flight w. Bolland, i Russ. 298. 
 
 14, 11. ; Nagle v. Baylor, 3 Dru. & {d) See, and consider, Martin v. 
 
 War. 60. Mitchell, 2 Jac. & W. 428. 
 
 (z) Matins v. Freeman, 2 Keen, (e) See Chambers on Infancy, 442; 
 
 see p. 34. Shannon v. Bradstreet, 1 Sch. & 
 
 (a) Lightfoot v. Heron, 3 You. & Lef. 58; Smith v. Bowin, 1 Mod. 25. 
 
 C. 586. (/) Flight v. Bolland, 4 Russ. 
 
 (/>) Clayton v. Jshdown, 9 Yin. 298.
 
 490 AS TO SPECIFIC PERFORMANCE. 
 
 cb. XVI II. jjjj^y also, perhaps, be considered an exceptional case ; that 
 is, if the purchaser at tlie date of the contract, be aware 
 that the property belongs to the wife (//). 
 
 2nd.-Mat- As to the 2nd of the above heads. — Where the contract 
 
 ters relating 
 
 to the con- j^as bccn entered into for an illegal purpose, whether the 
 
 tract, &c.:— o i x •> 
 
 Illegality, game be expressly prohibited or be merely the subject of a 
 statutory penalty, Equity will refuse to enforce it (/*) : 
 although it appears that if a legal agreement be intended 
 in all events to be executed according to its terms, it will 
 not necessarily be avoided by a collateral parol stipulation 
 for something not malum in se but merely prohibited (?) : 
 so, also, if the contract be in contravention of the rights of 
 a third party {k), Equity will refuse to interfere; as where 
 it derogates from a previous voluntary settlement by the 
 l)laiiititf vendor (/) : so, also, if the enforcement of the con- 
 
 impoiicy. tract would be against public policy, as where it originated 
 in the improper disclosure of evidence taken in a Chancery 
 Suit [m) : so, also, if the completion of the contract would 
 
 Breach of amouut to a brcacli of trust {n) ; even by reason of any 
 
 trust. 
 
 {(J) See 2 Y. & C. C. C. 62. & Lef. 519, 554 ; and see, and coii- 
 
 (A) See Thomson v. T/tomson, 7 siiler, Peacock v. Pemon, 11 Beav. 
 
 Ves. 470; Knowles v. Hawjhton, 11 355. 
 
 Ves. 1G8; De Bec/nisx. Anmatead, 10 (/) Smith v. Garland, 2 Mcr. 123; 
 
 Bing. 107 ; Ewing v. Oxb aldi.it on, 2 Johnson v. Legard, Turn. & Russ. 
 
 Myl. & Cr. 53, 85 ; Gas Light Com- 281. 
 
 pany v. Turner, 8 Sco. 609 ; and see (m) Cooth v. Jackson, 6 Ves. 12, 
 
 Tomlinson v. Manchester and Bir- 30. 
 
 mingham Railway Company, 2 Rail. (ii) Mortlock v. Btiller, 10 Ves. 
 
 Ca. 104; Ritchie v. Smith, C> C. B. 292; Ord v. Noel, b Mad. 438; and 
 
 462; see, as to the difference between see other cases cited, Sug. 240; also 
 
 enforcing an illegal contract and as- Baylies -v. Baylies, 1 Coll. 546; Bcll- 
 
 serting title to money which has ringer v. Blagrave, 1 De G. & S. 66 ; 
 
 arisen from it, Sharp v. Taylor, 2 White v. Cuddon, 8 CI. & F. 766 : 
 
 Phill. 801. As to champerty, vide we have seen that an agreement giv- 
 
 supra, p. \\},et seq.; and see Cook ing A. a right of pre-emption over 
 
 V. Field, 14 Jur. 951. B.'s estate, in consideration of A. not 
 
 (/) See Carolan v. Brahazon, 3 J. opposing B. on a sale by auction of 
 
 & L. 200. other jiroperty, is not illegal ; Gallon 
 
 (Jc) See Harnett v. Yeilding, 2 ticb. v. Eniuss, 1 Coll, 243.
 
 AS TO SPECIFIC PERFORMANCE. 491 
 
 stipiilatiou collateral to the mere agreement for sale; as lllii^^^ 
 where it was agreed that the purchaser should out of the 
 purchase-money retain a debt due to him from the selhng 
 trustee (o) ; so_, if an agreement be entered into by an de'nTcon. 
 agent, the omission of all usual and proper stipulations m l^genu^ 
 favour of his principal {p), may be a reason for refusing 
 specific performance. 
 
 So, Equity has refused to enforce contracts on the mere uardsiup. 
 groimd of their hardship as against the defendants : as 
 where one-half the pui'chase-money would, under a clause 
 of forfeiture contained in the -will of a prior o^nier, have 
 gone to a third party {q) ; or, as where the contract pro- 
 vided that a road should be made by the vendor over 
 property retained by him, and it appeared the making of 
 the road would risk the forfeiture of the lease of part of 
 the estate (;•) : so, it has been held, that a mortgagor, 
 contracting to grant a lease, should not be compelled to 
 pay off the mortgage in order to enable him to complete 
 the contract {s) : so, where a tenant for life, who, upon 
 the settlement by him of lands of equal value, Avould have 
 been absolutely entitled to the settled estates, contracted 
 to sell them, the Coui't would not order him to procure 
 and settle other lands, and so acquire a title {t) : so, where 
 the trustees of an estate, joined, expressly in that capacity, 
 with the beneficial owners in a contract for sale, and all 
 agreed to exonerate the estate from any incumbrances 
 Avhich might aficct it, the Coui't refused to enforce this 
 agreement against the trustees, when it seemed probable 
 that the incumbrances might, and perhaps materially, 
 
 (o) Thompson v. Blackstone, 6 355. 
 
 Beav. 4/0. (s) Coathjan v. Hastier, 2 Sch. & 
 
 (ji) Helsham v. Langleij, 1 Y. & Lef. IGO. 
 
 C. C. C. 175. (/) Howel v. George, I Madd. 1 ; 
 
 (y) Faiue v. Brown, cited 2 Ves. and see Southwell v. Nicholas, cited 
 
 307. p. 9, n. 
 
 (r) Peacock v. Peiison, 11 Beav.
 
 492 
 
 AS TO SPECIFIC PERFORMANCE. 
 
 Gh.XVIlI. 
 
 Fraud, mis- 
 take, sur- 
 prise, mis- 
 representa- 
 tion, or con- 
 cealment. 
 
 Lord Lang- 
 dale's re- 
 marks on 
 misrepre- 
 sentation. 
 
 exceed the amount of purchase-money [ii] : so, where the 
 contract was intended by both parties to be the means of 
 forwarding a common object which had utterly failed before 
 the bill was filed, the Court refused to interfere [w) . 
 
 So, Equity will refuse to enforce a contract which was 
 procured by fraud, or duress {{v), or was entered into under 
 a common mistake {y) , or, in many cases, a mistake only by 
 the defendant {z) ; or under the influence of surprise (a) ; 
 or was founded on a fraudulent or material misrepresen- 
 tation or concealment of facts by the plaintiff {b). 
 
 The following remarks were, in a recent case, made by 
 Lord Lmigdale, M. R., as to the effect, in Equity, of mis- 
 representation on the part of the plaintiff' {c) : — " Cases 
 have frequently occurred, in which, upon entering into 
 contracts, misrepresentations made by one party have not 
 been, in any degree, relied on by the other party. If the 
 party to whom the representations were made himself re- 
 sorted to the proper means of verification, before he entered 
 into the contract, it may appear that he relied upon the 
 result of his own investigation and inquuy, and not upon 
 
 (m) Wedyicond v. AdamH, (i Beav. 
 600 ; and see, as to hardship, Talbot 
 V. Ford, 15 Sim. 173; Hemiuguay 
 V. Fernandes, ib. 243 ; Kimberloy v. 
 Jenninys, 6 Sim. MO. 
 
 (tv) Padwick V. Haimlip, 14 L. T. 
 543. 
 
 (.2') But the mere fact of a person 
 being in prison at the time of signing 
 the contract is no defence ; Brinkloy 
 V. Ilann, 1 Dru. 175. 
 
 {y) Stapylton v. Scott, 13 Ves. 
 425, 427 ; Lord Gordon v. Lord 
 Hertford, 2 Madcl. 106; Cotyor v. 
 Clay, 7 Beav. 188. 
 
 (2) See Matins v. Freeman, 2 
 Keen, 25; Harnett v. Yeildiny, 2 
 Sch. & Lef. 549, 554 ; Howel v. 
 George, 1 Madd. 1, 11; but not 
 
 where the mistake is as to the legal 
 consequences of an act ; Great West- 
 ern Railiray Company v. Cripps, 5 
 Ha. 91. 
 
 (ff) See Evans v. Llewellyn, 2 Bro. 
 C. C. 150 ; Twining v. Morrice, ib. 
 326 ; Lord Townsheiul v. Stanyroom , 
 6 Ves. .528, .-538 ; Willan v. Willan, 
 16 Ves. 72 ; and see Story's Eq. Jur. 
 note to sect 120. 
 
 {b) See Sug. 238, and cases cited 
 supra, Ch. III. and Ch. IV. 63, et 
 seq. : and Clermont v Tasburgh, 1 
 Jac. & \V. 112 ; Cadman v. Hornei-, 
 18 Ves. 10 ; see Barker \. Harrison, 
 2 Coll. 546. 
 
 (c) Clapham v. Shilldo, 7 Beav. 
 see p. 149.
 
 AS TO SPECIFIC PERFORMANCE. 493 
 
 the representations made to him by the other party : or if ch.xviii. 
 the means of investigation and verification be at hand, and 
 the attention of the party receiving the representations be 
 drawn to them, the circumstances of the case may be such, 
 as to make it incumbent on a Com't of Justice to impute 
 to him a knowledge of the result, which, upon due inquiry, 
 he ought to have obtained ; and thus the notion of reliance 
 on the representations made to him may be excluded, 
 
 "Again, when we are endeavouring to ascertain what 
 reliance was placed on representations, we must consider 
 them with reference to the subject -matter, and the relative 
 knowledge of the parties. If the subject is capable of 
 being accui'ately known, and one party is, or is su})posed 
 to be, possessed of accm-ate knowledge, and the other is 
 entirely ignorant, and a contract is entered into, after 
 representations made by the party who knows, or is 
 supposed to know, without any means of verification being 
 resorted to by the other, it may well enough be presumed, 
 that the ignorant man rehed on the statements made by 
 him who was supposed to be better informed: but if the 
 subject is in its nature uncertain, — if all that is known about 
 it is matter of inference fi'om something else, and if the 
 parties making and receiving representations on the subject 
 have equal knowledge and means of acquiring knowledge, 
 and equal skill, — it is not easy to presume, that represen- 
 tations made by one would have such an influence upon 
 the other." 
 
 And an agreement, fair as between the parties, is not ^J^^l^he^ 
 invalid merely because it may have been concocted and tiesrisnot 
 brought about bv a third person with a fraudulent inten- fraud of 
 
 ® _ *' . ^ third per- ■ 
 
 tion of benefiting himself {d) . son. 
 
 Want of mutuality of remedy is a ground of defence ^^ftu^myof 
 not unfrequently relied on ; and respecting which the rules 'e^nt^dy 
 
 {d) Bellamy v. Sahinc, 2 Ph. 425.
 
 494 AS TO SPECIFIC PERFORMANCE. 
 
 Ch. XVIII. Qf ^}^g Court seem somewhat undefined. The principle 
 defence ^ would Seem to be one of clear Equity; \\z., that a de- 
 fendant ouj^ht not to be harassed with litigation founded 
 on an agreement which he himself could not enforce if the 
 plaintiff were to think fit to stop proceedings : for tliis 
 reason, it was once doubted whether a plaintiff could enforce 
 a written agreement which he himself had not signed : but 
 it was ultimately decided (e) that he could; inasmuch as 
 filing the bill binds him to the contract, and from that 
 time there is mutuality (/) : so, as we have seen, the 
 personal incapacity of the plaintiff" to enter into the 
 contract, is, generally, if subsisting at the time of the bill 
 being filed, a good defence {g) . 
 when found- The non-mutuality-dcfence has generally been grounded 
 onlurin"*^ upon the alleged entire, or partial, want of title in a 
 vendor. plaintiff vcudor : such want of title, it must be remem- 
 bered, being urged as an objection to the existence or 
 vahdity of the contract, and not by way of denial of his 
 present ability to give to, or procure for, the defendant, 
 his rights under the same. Thus, it has been held, 
 that A. cannot enforce, against C, an agreement for 
 the sale to him of B.'s estate ; even although B. be 
 willing to confirm the contract [h) : and Sir E. Sugden 
 considers it doubtful [i) " whether there is any case in 
 which a man, knowing himself not to have any title, 
 has been allowed to enforce the contract by pro- 
 curing a title before the report " {k) . But, as a general 
 
 (e) See 2 Coll. 161. {g) Vide supra, p. 489. 
 
 (/) Martin v. Mitchell, 2 Jac. & (/<) Noel v. Hoy, cited Sug. 241 ; 
 
 W. see p. 427 ; Coleman v. Upcot, 5 and see Tenclring v. London, 2 Eq. 
 
 Vin. Abr. 528; Dotvell v. Deiv, 1 Y. Ca. Ab. 680; Ariniger v. Clarke, 
 
 & C. C. C. 345 ; Butler v. Poivis, 2 Bunb. 111. 
 
 Coll. 161 ; see London and Birming- (J) Sug. 241, n. {p). 
 
 hnm Railway Company v. Winter, Cr. (k) See, on this point, Bryan v. 
 
 & Ph. 57 ; but see also Gaskarth Lewis, Ry. & Moo. 386 (a case at 
 
 V. Lord Lowther, 12 Ves. 107. Law on a sale of goods) ; Lechmerev.
 
 AS TO SPECIFIC PERFORMANCE. 495 
 
 rule, where no legal invalidity affects the contract, the C''- xviii. 
 enforcement of it in Equity is a matter of judicial discre- 
 tion (/) ; and, in several cases, specific performance has 
 been decreed at the suit of vendors who, contracting 
 under the bond fide belief that they could make a good 
 title, afterwards, on discovering that they had no title 
 either legal or equitable, procured the concurrence of the 
 necessary parties (>w) : as, also, at the suit of vendors who 
 had contracted to sell the fee simple, knowing that they 
 had only a life estate or other limited interest, and relying 
 on being able to procure the concurrence of the parties 
 entitled in remainder {yi) : and it seems by no means 
 clear, whether, even in the extreme case of A. contracting 
 to sell the estate of B., K. would not be entitled to specific 
 performance, if, by procuring a conveyance from B., he 
 were able to make a good title at the time fixed for the 
 delivery of the abstract, or even at the time fixed for com- 
 pletion (o) . Perhaps, in all such cases, the material point 
 may be, Avhether the pm'chaser, upon discovering that the 
 estate is not bound, has at once repudiated the contract, 
 or has continued to negotiate upon the footing of its being 
 still subsisting (^j). However, in a modern case, where 
 trustees with a power of sale exercisable with the consent 
 of the tenant for life, entered into a contract, and filed a 
 bill for specific performance, but did not procure the 
 
 Brasier, 2 Jac. & "W. 289 ; Dalby v. and see Williams v. Carter, cited 
 
 Pullen, 3 Sim. 29 ; 1 Russ. & Myl. Sug. 241. 
 
 296; and the cases cited infra, n. (o). {n) Lord Stourton v. Meers, cited 
 
 (0 2 Y. & C. C. C. 64. 2 P. Wms. 630 ; Wynn v. Morgan, 7 
 
 (m) See Hoggart v. Scott, 1 Russ. Ves. 202 ; Coffin v. Cooper, 14 Ves. 
 
 & Myl. 293, a case of mistake as to 205 ; Salisbury v. Hatcher, 2 Y. & 
 
 the proper parties to exercise a power C. C. C. 54. 
 
 of sale under a will ; C/iamherlain v. (o) See Mortlock v. Buller, 10 Ves. 
 
 Lee, 10 Sim. 444, where the front- 315 ; Boehm v. Wood, 1 Jac. & W. 
 
 a^e of the estate was found to belong 421 ; and see 2 Y. & C. C. C. 64. 
 
 to a third person ; Eyston v. Simonds, (p) See Eyston v. Simonds, 1 Y. 
 
 1 Y. & C. C. C. 608, where the es- & C. C. C. 608 ; Salisbury v. Hatcher, 
 
 tate had escheated to the Crown ; 2 Y. & C. C. C. 65.
 
 496 
 
 AS TO SPECIFIC PERFORMANCE. 
 
 Ch. XVIII. 
 
 Nominal 
 contractor. 
 
 Insertion ol 
 penalty, no 
 defeiicf. 
 
 Inability to 
 recover 
 damages at 
 Law, how 
 far a de- 
 fence. 
 
 requisite consent until after tlie commencement of the 
 suit^ V. C. Knight Bruce intimated a doubt whether the 
 bill should not be dismissed, although this had not been 
 contended for by the defendant [q). 
 
 The fact that the vendor contracted to sell his o^vn 
 estate, in the name of, or as agent for, another (r) ; or 
 th.it the nominal purchaser was in fact the agent for a 
 tliird person with whom the vendor has quarrelled upon 
 other matters (*), or to whom he. has given a bare 
 refusal (/) to deal for the estate ; is not, in general, any 
 defence to a suit for specific performance ; imless the case 
 can be brought within the class of cases noticed !(upra (m), 
 by showing that the misrepresentation was used as the 
 inducement to the defendant to enter into the contract {w) . 
 
 The insertion in the contract of a penalty in case of 
 non-performance, is no defence to a suit for specific per- 
 formance {x) : in a lute case, a decree was made upon an 
 agreement which took the shape of a bond [y) . 
 
 The circumstance that damages could not be recovered 
 upon tlie contract at Law, is not, universally, a good 
 defence to a suit for specific performance, although, as 
 
 (9) Adams v. Broke, 1 Y. & C. C. 
 C. 627, 630. 
 
 (r) Fellowes v. Lord Gwydyr, 1 
 Russ. & M. 83. 
 
 (s) Hall V. TVarren, 9 Ves. 605. 
 
 (^) Sug. 242, citing Lord Irnham 
 V. Child, 1 Bro. C. C. 92, see p. 95 ; 
 sed qumre, whether this doctrine can 
 be extended to cases of refusal 
 grounded on any particular and spe- 
 cified reason ; see I Coll. 219. 
 
 (m) p. 492. 
 
 (mj) Pltillips V. Buke of Ihicks, 1 
 Vern. 227 ; Scott v. Langsiaffe,c\iQA 
 Lofft, 797 ; and see Nelthorpe v. 
 Holgate, 1 Coll. 203. It apjiears 
 that specific performance was de- 
 creed in Phillips v. Duke of Bucks, 
 
 see 14 Ves. 527, n. Upon which 
 it may be remarked that the Duke's 
 equity seems to have been of (ac- 
 cording to modern notions) a very 
 doubtful character : amounting, in 
 substance, to this, viz., that he had 
 sold tiie estates at an undervalue 
 by way of bribe to the Chancellor 
 before whom causes, in which the 
 Duke was interested, were depend- 
 ing : see tlie account of the trans- 
 action from Roger North, cited Sug. 
 243, n. 
 
 (x) Hoirard v. Hopkyns, 2 Atk. 
 371. 
 
 (y) Bufler v. Povis, 2 Coll. 
 150.
 
 AS TO SPECIFIC PERFORMANCE. 497 
 
 observed by Lord Hardwicke {£), " Tliere are very few ch. xviii. 
 cases in which a Coui-t of Equity can decree a perform- 
 ance of a covenant or agreement upon which there can be 
 no action at Law^ according to the words of the articles 
 and the events which have happened :" Sir E. Sugden 
 considers the result of the authorities (which are conflict- 
 ing) to be, that although "Equity cannot contradict or 
 overturn the grounds or principles of Law^' it will yet 
 decree specific performance of an agreement void at LaAv 
 '' if there is a cleai* ground for the interference of Equity 
 according ,to the general rules of the Court '^ («) . 
 
 As to the 3rd of the above heads. — Upon defects in the 3rd. Matters 
 
 relating to 
 
 estate itself, we may refer to former obser\'ations respectinsr theestute:— 
 
 ' - r o original de- 
 
 misdescriptions and compensation {b) : we may also remark {jo'^^v f",: a 
 that, although either the original non-existence of, or the '^''*^^"'''' • 
 want of a sufficient title to, a material part of the property, 
 or that part of it which may have formed the inducement 
 to the purchaser, is a sufficient defence to a bill for specific 
 performance, yet mere non-existence does not, universally, 
 as a gi'ound of defence, stand so high as want of title ; for 
 it may, obA'ionsly, be often a very different matter to a 
 purchaser whether he be simply unable to get a particular 
 part of what he contracted for, or whether such part will 
 be liable to be held by another person, and converted into 
 a nuisance (c) . 
 
 It was considered, in a recent case, that the existence of public 
 a public nuisance in the immediate neighbourhood of a 
 house agreed to be taken as a residence, and rendering it 
 mifit for that purpose, its existence, however, being un- 
 known to either party, although easily ascertainable by 
 
 {z) See Whifmel v. Farrd, 1 Ves. to how far the purchases of several 
 
 256, 258. lots are connected, vide infra, p. 507. 
 
 (a) Sug. 245, and see cases there And see the judgment in Knatchbnll 
 referred to. v. Grueber, 1 Mad. 167. 
 
 (b) Supra, Ch. III. and IV. As (c) See 5". C, ib. 153, 165. 
 
 K K 
 
 nuisance.
 
 498 
 
 AS TO SPECIFIC PERFORMAXCE. 
 
 Ch. XVIII. 
 
 Destruction 
 of estate, not 
 a pur- 
 chaser's de- 
 fence. 
 
 4th. Matters 
 relating to 
 the title :- 
 want of, 
 considered 
 as a ven- 
 dor's de- 
 fence. 
 
 Cases in 
 which it is 
 available. 
 
 the vendor, is no defence to his suit for specific perform- 
 ance, although it will induce the Court to try the case 
 strictly {d). 
 
 We have akeady seen (e) that the accidental destruction 
 or deterioration of the estate subsequently to the contract, 
 is no defence to the vendor's bill for specific performance. 
 
 As to the 4th of the above heads — Want of title to the 
 estate is a defence which may occasionally be available as 
 well to vendor as to purchaser : as a general rule, however, 
 a vendor will be compelled to convey his interest, if an 
 imperfect one, in the estate, if the purchaser choose to 
 accept it without compensation (/) : so, he will be com- 
 pelled to make good the contract out of any interest which 
 he has subsequently acquired {(/) ; or to procm'C the con- 
 currence of parties who are bound to convey at his 
 request (h), e. ff., trustees of the legal estate (i) : so, if 
 entitled to an equity of redemption, he will be compelled 
 to redeem the mortgage, and obtain a conveyance from 
 a mortgagee (A) : so, a tenant in tail in remainder will be 
 decreed to convey a base fee, and covenant to bar the remain- 
 ders over upon becoming tenant in tail in possession (/) : but 
 Equity will not compel a vendor to procure the concurrence 
 of parties whose concurrence he has no right to require ; 
 e.ff., a husband to procure the concurrence of his Avife (m), 
 or son (/i), except, perhaps, where he has expressly agreed 
 to procure such concurrence (o) ; or a tenant for life to 
 
 (d) Lucas V. James, 7 Ha. 410, 
 418. 
 
 (e) Supra, p. 116. 
 
 (/) See Harnett v. Yeildhig, 2 
 Scho. & Lef. 554 ; Sug. 242. 
 
 {g) See cases cited si<pra, p. 360 ; 
 and Came v. Michell, 10 Jur. 910, 
 V.C.E. 
 
 (A) See 1 Mad. 11. 
 
 (/■) See Sug. 242 ; Crop v. Norton, 
 2 Atk. 74, 75. 
 
 {k) Sug. 253. 
 
 (T) Lord Bolingbroke's case, cited 
 1 Scho. & Lef. 1<), n. 
 
 (m) Emery v. Wase, 8 Ves. 505, 
 514 ; Howel\. George, 1 Mad. 1, 6 ; 
 see Jordan v. Jones, 2 Ph. 170. 
 
 (n) HoH-el V. George, ubi supra. 
 
 (o) Sug. 231 , and cases there cited, 
 but the point seems very doubtful ; 
 see Sug. 232.
 
 AS TO SPECIFIC PERFORMAXCE. 499 
 
 procure the concurrence of trustees for sale of the rever- ct' XvriT. 
 sion, they being under no obligation to comply with his 
 request (p) : nor will it compel him to perfect the title by 
 exercising a power of purchasing and settling another 
 estate in lieu of that which he has contracted to sell (5') ; 
 or to purchase and convey the tithes of an estate contracted 
 to be sold as tithe free [r] . It has even been held, that 
 where a tenant for life, with the ultimate reversion in fee, 
 contracted, as it appeared to the Court, merely as the 
 agent of his trustees, (who had a power to sell the fee 
 simple,) he was not bound, upon the contract being held 
 void as against the trustees, to make it good out of the fee 
 simple, which had subsequently vested in himself by the 
 failure of the intervening limitations {s) : but this decision 
 ought perhaps to be only cautiously followed {t) ; and, of 
 course, the decision was different, when a tenant for life, 
 similarly circumstanced, contracted in his own name, as if 
 seised in fee simple (w) : but the Court will not decree 
 specific performance by directing an invalid assurance to 
 be executed by a tenant for life, which might encumber 
 and embarrass remaindermen (w). 
 
 Where the want of title is onlv partial, — i. c, where it vendor 
 
 » i ^ ' wlien com- 
 
 affects only part of the estate, or only part of that interest ^onvtVpart 
 in it which was agreed to be sold, — the question arises, witiran* 
 whether the vendor can resist tlie purchaser's claim to 
 specific performance with a compensation, or, to speak 
 more accurately, an abatement of the purchase-money. 
 This right generally, but not universally (.r), exists in each 
 class of cases (y) : thus, the want of title to even a consi^ 
 
 (p) Thomas v. Dpriiif/, 1 Keen, (m) Bafler v. Potris, 2 Coll. 156. 
 
 729. (w) EUard v. Lord Llandaff, \ 
 
 {q) Howel v. George, 1 Mad. 1. Ball & B. 241 ; see 251. 
 
 (r) Todd V. Gee, 17 Ves. 273. (.r) 1 Ves. & B. 353. 
 
 («) Mortlock V. Buller, 10 Ves. (y) 10 Ves. .'^16 ; 17 Ves. 401 ; 1 
 
 292, 316. Ves. & B. 353 ; 3 Ves. & B. 192 ; 4 
 
 (0 See 2 Ball & B. fiO. Sim. 127, 
 
 K K 2
 
 500 AS TO SPECIFIC PERFORMANCE. 
 
 Ch. XVIII. clerable part of the estate is not necessarily a reason why 
 the vendor slionld not convey the residue (~) ; hut, cases 
 might occui', Avhere, on the ground of hardship, Equity 
 would refuse to assist a purchaser ; as in the case put by 
 Sir E. Sugden {a), of a vendor showing a good title to his 
 mansion-house and park, but having no title to a "large 
 adjoining estate held and sold ^vith it." In a case before 
 Sir L. Shadwell, Y. C, where, upon a contract to sell the 
 entirety of a lace manufactory, it appeared that the vendors 
 had only nine-sixteenths, and that the remaimng shares 
 clearly belonged to another party, who had also a charge 
 on the vendor's shares for a sum nearly equal to the 
 purchase-money, the Comt refused the purchaser specitic 
 performance with an abatement {b) : a decision which Sir 
 E. Su(/den suggests may be referred to the nature of the 
 property, but otherwise disapproves of (c) : he seems, 
 however, to consider that the decision would have been 
 correct had the remaining shares been held by the vendors 
 under a defective title. In a late case, the same learned 
 Judge, when the vendors had agreed to sell two-sixths of 
 certain leaseholds, and then found that they had only four- 
 twentieths, decreed specific performance with an abatement; 
 observing, " this is very unlike a case where parties con- 
 tract to sell the whole, but can only sell a part" {d) : 
 from which remark, as in the case before the Coui't there 
 was no question as to leaving part of the property in the 
 hands of the vendors with a bad title, it may be inferred 
 that his Honom', upon general principles, approved of his 
 former decision. It seems, however, difficult to understand 
 why specific performance should be refused in the former 
 case ; or to distinguish it from the case put by Lord Hard- 
 ivicke, of two tenants in common agreeing to sell the 
 
 (z) Western v. Russell, 3 Ves. & (b) Wlicatley \. Sladc,A Sim. 126. 
 
 B. 187, 192. (c) Sug. 300. 
 
 («) Sug. 3.59. (</) Junen v. Evans, 12 Jur. GC4.
 
 AS TO SPECIFIC PERFORMANCE. 501 
 
 entirety of an estate, and one of tliera dpng, and a decree ^'^- -^^'"i- 
 being made against tlie survivor in respect of liis sliare, 
 although the contract could not be enforced against the 
 representatives of the deceased (e) : nor, it is submitted, 
 can the defence be safely relied on by a vendor, who, 
 ha^dng contracted to sell only shares in, and not the 
 entirety of, a property, is found to have a defective title to 
 some of such shares. 
 
 In another case, before the same learned judge, it was 
 held, that a condition for rescinding the contract, if counsel 
 should be of opinion that a marketable title could not be 
 made, enabled the vendor to rescind, upon counsel rejecting 
 the title to one third of the property (/). 
 
 Of course, no such question can be raised by a vendor, 
 Avlien, upon the purchase of several lots by the same pur- 
 chaser, the title to one or more of such lots is found to be 
 defective. 
 
 So, in general, when the vendor's interest is less than when Tom- / 
 Avhat he professes to sell, the purchaser may take what he convey / 
 
 . partial in- , 
 
 can have, with an abatement (») : as m the case put by terestinthe 
 
 ' ^^' ' i ./ estate, witli 
 
 Lord Eldon {h), of a man contracting to sell the fee simple, ^^^^'^*^- \^ 
 and having only a term for one hundi-ed years : so, where 
 the contract was, in effect, for an absolute term of twenty- 
 one years, and it was found that the actual term might deter- 
 mine by the cesser of certain lives, specific performance 
 was decreed, with an abatement in respect of the difference 
 between the absolute and defeasible interests (i) : there 
 was a similar decision where a term was sold with the 
 benefit of A.'s covenants for renewal, and such covenants 
 Avere found to be not absolute but binding only a contin- 
 
 (c) See Jtt.-Geii. v. Dai/, 1 Yes. 460. 
 218, 224. {h) Wood v. Griffith, 1 Will. Ch. 
 
 (/) Williams v. Edivards, 2 Sim. Ca. see 44 ; Sug. 346. 
 78_ (i) Dale v. Lister, cited 16 Ves. 
 
 {y) See Dyas v. Cruise, 2 J. & L. 7 ; and see p. II.
 
 502 AS TO SPECIFIC PERFORMANCE. 
 
 Ch. XVIII. geiit portion of his assets {k) : so, where the agreement 
 \ being for a term of thii-ty-one years, a title could be shoM n 
 I only to a term of twenty-one years, and a covenant for re- 
 newal of an additional tenn of ten years {m) : so, it was 
 admitted by Lord Eldon, (the case before him being that 
 of a contract by a tenant for life for sale of the fee,) [n) 
 that if a vendor, having a partial interest in an estate, enter 
 into a contract, representing and agreeing to sell it as his 
 own, the purchaser may take what he can have with an 
 abatement : however, in a case (o) before Lord Lamjdah, 
 M. R., when a tenant for life, with remainders to his first 
 and other sons in tail, with remainder to himself in fee, 
 contracted to sell the fee simple, speculating on the consent 
 of the trustees for sale, which consent was eventually with- 
 held, his Lordship refused to enforce specific performance 
 to the extent of the life estate and remainder in fee, and 
 Avith an abatement ; but the decision is disapproved of by 
 Sir jE. Sugden [p) ; and, in a subsequent case {q), his 
 Lordship appears to refer to his former judgment as if not 
 altogether satisfied of its propriety : and in a recent con- 
 verse case, of a person entitled in fee, subject to a life 
 estate, agreeing to sell the fee simple in possession, specu- 
 lating on the concurrence of the tenant for life, which was 
 withheld, specific performance, with an abatement in respect 
 of the life estate, was decreed by V. C. K. Bruce ; and the 
 vendor, having knowingly ofi'ered for sale an interest to 
 which he was not entitled, was not allowed to avail himself 
 
 (A) Milligan v. Cooke, 16 Ves. 11, (o) Thomas v. Dering, 1 Keen, 
 
 12 : but, semble, the Court will not 729. 
 
 now consider the comparative values {p) Sug. 351 ; as to the difficulty 
 
 of covenants ; see Rklgvay v. Gray, of fixing the amount of abatement 
 
 1 Mac. & G. 109 ; and Lair v. Url- being a reason for refusing relief, see 
 
 win, 16 Sim. 390. White v. Cuddon, 8 CI. & Fin. 766, 
 
 (>«) Hanhury v. LitchfieM, 2 Myl. 792. 
 & K. 629. {q) Graham v. Oliver, 3 Beav. see 
 
 (n) Mart lock v. Biiller, 10 Ves. p. 128 ; and see Neale v. Mackmzie, 
 
 315. 1 Keen, 474.
 
 AS TO SPECIFIC PERFORMANCE, 503 
 
 of a condition piu'porting to reserve the right of rescinding cti. xviii. 
 the contract if the title should prove defective (r) . 
 
 In two cases above referred to (s), where the vendor's neither"'^^' 
 title was only contingently defective^ it was held, that the fuktucom- 
 purchaser might take the estate wdth an indemnity ; but it 
 has been settled, by subsequent decisions, that an indem- 
 nity will not be enforced against either party {t), unless it 
 be provided for by special agreement (w) . 
 
 And matters which would not be considered fit subjects J^^^^J^^ 
 for compensation as against a piu'chaser, may entitle him r|!,'l;\^s in 
 to an abatement of purchase-money if he elect to take the ab^atement 
 
 are iiot re- 
 
 estate ; e. g., the existence of mining rights i^w), or rights dprocai. 
 of common over the estate {x), or the want of a road which 
 the vendor had agreed but was unable to make (»/). 
 
 If, however, the purchaser, at the time of entering into ^^f^'J^'^g^t 
 
 the contract, be aware of the existence of the outstanding [r^cting^or 
 
 interest, or that the vendor is agreeing for more than he w'iti^ notice 
 
 , „ , .,, . . of the de- 
 
 can give, no abatement oi pm-chase-money will, it is con- feet; 
 
 ceived, be allowed {z). 
 
 And where a plaintiff had obtained an agreement for an misr^^rc- '^ 
 exchange with immediate possession, under a false repre- 
 sentation to the defendant that the tenants of the latter 
 would accede to the arrangement, he was not allowed to 
 claim specific performance subject to the tenant's inter- 
 ests [a). 
 
 (r) Nelthorpe v. Holgate, 1 Coll. {w) Seaman v. Vawdrey, 16 Ves. 
 
 203. 390. 
 
 (s) Dale V. Lister, cited 16 Ves. 7 ; (x) Sug. 353. 
 
 Milligan v. Couke, 16 Ves. 1. (y) Peacock v. Penson, 11 Beav. 
 
 (t) Balmanno v. Lumley, 1 Ves. & 3.55. 
 
 B, 224 ; Paton v. Brebner, 1 Bli. {z) See Lawremon v. Butler, 1 
 42, 66 ; Jylett v. Jskfon, 1 Myl. & Sch. & Lef. 13, 19 ; Harnett v. 
 
 C. 105 ; Nouaille v. Flight, 7 Beav. Yeilding, 2 Sch. & Lef. 549, 560 ; 
 521 ; Ridgway v. Gray, 1 Mac. & Nelthorpe v. Holgate, 1 Coll. 203, 
 G. 109, 111. 215, 
 
 (k) Walker v. Barnes, 3 Mad. («) Clermont v, Tasburgh, 1 Jac, 
 
 247 ; .4ylett v. Ashton, 1 Myl. & C. & W. 112. 
 105, 
 
 sentation.
 
 504 
 
 AS TO SPECIFIC PERFORMANCE. 
 
 Ch. XVIII. 
 
 Vendor how 
 far bound 
 to make 
 good in- 
 terest con- 
 tracted for, 
 out of his 
 own higher 
 interest. 
 
 AVant of 
 title, where 
 a defence 
 for pur- 
 cha.ser de- 
 clining; an 
 abatement. 
 
 As where 
 estate is of 
 different 
 tenure ; 
 
 or is held 
 in adillerent 
 manner ; 
 
 or no title 
 is shown to 
 the same 
 extent of in- 
 
 It may occasional!}^ happen, that the vendor's interest is 
 found to exceed that which he contracted to sell ; in which 
 case he must, as a general rule, make good the latter to 
 the best of his ability : for instance, where a vendor, in 
 fact seised in fee, contracted to sell the estate as copyhold, 
 stating it to be equal in value to freehold, it was held that 
 he ought (l3ut for other grounds of defence) to have con- 
 veyed the freehold {b) : it has, however, been held, that, 
 on an agreement to assign a lease. Equity cannot decree 
 an underlease, although the assignment would induce a 
 forfeiture ; since the vendor's motive to the assignment 
 may have been to escape the rent and covenants (c) ; but 
 the defence, as Sir E. Sugden remarks, is one which could 
 seldom be set up by a vendor {d). 
 
 If the purchaser be unwilling to complete with an 
 abatement, he may resist specific performance on the 
 ground of the tenure of the property, or of a material part 
 of it, varying from that to which he is entitled under the 
 contract ; e. g., he will not be compelled to take a term, 
 (even for 4000 years) (e), or a copyhold (/), or mere sheep- 
 walks, instead of a freehold {g) : — Or on the ground of the 
 property being held in a maimer different from that which 
 is expressed or implied in the contract ; e. g., he will not 
 be compelled to take an assignment of an underlease, 
 instead of an original lease {h) ; or of a redeemable, instead 
 of an absolute interest (i) ; or of an improved, instead of a 
 ground rent {k) : — Or on the groimd of no title being shown 
 to that extent of interest which he contracted for : e. g., 
 
 (b) Twining v. Morrice, 2 Bro. C. 
 C. see 331. 
 
 (c) Anon. Sug. 342. 
 {d) Ibid. 
 
 (e) Drewe v. Corp, 9 Ves. 3G8 ; 
 and see Fordyce v. Ford, 4 Bro. 
 C. C. 494 ; see Wright v. Howard, 
 1 Sim. & St. 190. 
 
 {f) Twining v. Morrice, 2 Bro. 
 
 C. C. see p. 331 ; Sug. 343 ; as to 
 what is included in the contract, ia 
 the absence of any express descrip- 
 tion, vide supra, 51, e/ seq. 
 
 (g) Vancouver v. Bliss, 11 Ves. 
 458; see p. 466. 
 
 (h) Sug. 34 i . 
 
 (i) Coverley v. Burrell, Sug. 340. 
 
 {k) Stewart v. AUiston, 1 Mer. 26
 
 AS TO SPECIFIC PERFORMANCE. 505 
 
 he cannot be compelled to take, instead of an estate in ^c'^:^^'^":; 
 possession, a reversion expectant on a life estate {I), or on contracted 
 
 for * 
 
 a subsisting lease (m) ; or a life estate, and (subject to an 
 intervening estate tail), the remainder in fee, instead of 
 the fee simple in possession {n) ; nor, having contracted for 
 the entirety, can he be compelled to take undi\ided parts 
 of the estate (o), even although the vendors were tenants 
 in common of the entirety {p) ; and the same decision has 
 been come to, where, on a contract for two-sevenths of an 
 estate, a title could only be made to one-seventh {q) ; nor 
 can he, on the purchase of a leasehold interest, be com- 
 pelled to accept a term '' considerably less " {r) than that 
 contracted for ; e. g., a term for six instead of sixteen 
 years,(s) : — Or on the ground of no title being shown to a °lX^l^^n\o 
 material part of the estate; such materiality consisting, part^'of'the 
 either in the proportion which such part bears to the en- 
 tirety, or in its being important with re^ird to the enjoyment 
 of the residue, or as possessing an adventitious value in the 
 estimation of the purchaser {t) ; e. g.; "a purchaser can- 
 not be compelled to take compensation for a large portion 
 of the estate " {u) ; nor, having entered into a single con- 
 tract for two estates, could he probably be compelled to 
 take one without the other {iv), although the estate with 
 the defective title were let upon and sold subject to a fee- 
 farm grant at a large rent {x) : so where, on the purchase 
 of a mansion and 700 acres, the title to 12 acres proved 
 defective, such 12 acres being opposite the park gate and 
 containing brick earth, which rendered it probable that 
 
 (/) Collier \. Jenkins, You. 293. (r) Sug, M\. 
 
 (w) Sug. 346. (s) Long v. Fletcher, 2 Eq. Ca. 
 
 (h) Sug. 349. Abr. 5. 
 
 Uj) Dalby V. Pullen, 3 Sim. 29; {t) See 1 Mad. ].e>7 . 
 
 affiiQietl, 1 Russ. & M. 296. (m) Sug. 359. 
 
 {j}) Aft. -Gen. V. Day, Wes. 218, {w) See Prendergast v. Eyre, 2 
 
 224. Hog. 81. 
 
 iq) Rnffcy V. Shallcross, 4 Mad. {x) See S. C, p. 94 ; Sug. 358. 
 
 227.
 
 i06 
 
 AS TO SPECIFIC PEKFORMAXCE. 
 
 Ch. XVJII. 
 
 or where iii- 
 cunibrunces 
 or liabilities 
 exist which 
 would affect 
 it-i eiijoy- 
 meut ; 
 
 or mattera 
 exist which 
 increase the 
 
 liability of 
 the pur- 
 chaser. 
 
 they might be built upon, the purchaser was held free (y) ; 
 so also where^ on the purchase of a wharf and jetty, no 
 title could be made to the jetty (r) : — Or on the ground 
 of the existence of incumbrances or liabilities which would 
 interfere with the enjoyment of the estate ; e. g., liabilities 
 to tithe, (if the estate is sold as tithe free or subject to a 
 modus or commuted rent-charge (a),) to rights of mining {b), 
 common (c), or waterway with power of entry for the pur- 
 pose of making, opening, or cleansing water- courses, or to 
 rights of entry for making reservoirs, or of planting ladders 
 for the rcpaii- of adjoining houses {d), or to a right of 
 sporting {e), or to tlie repairs of the chancel of a chm-ch (/), 
 or to quit-rents or rent-charges, if of a large amount [g), 
 have been held to be defects which do not admit of com- 
 pensation. Upon a similar principle, it has been held, at 
 Law, that a pm-chaser having contracted for the assign- 
 ment of a subsisting lease, cannot be required to accept a 
 new lease as original lessee; his liability being greater 
 under the lease than it would be imder the assignment {h) : 
 
 (y) Knatchtiull v. Gruel/er, 1 Mad. 
 153 ; 3 Mer. 124, see 141 ; and see 
 2 Myl. & K. 728. 
 
 (z) Peers v. Lambert, 7 Beav. 
 546 ; and see Sug. 357, for refer- 
 ences to other cases in whicli some 
 earlier decisions of a contrary ten- 
 dency have been disapproved of. 
 
 (a) Ker v. Ctobery, Sug. 366 ; 
 Binks V. Lord Rokeby, 2 S\v. 222. 
 The question of tithe free or not, has 
 been said to be a question of fact 
 and not of title ; Smith v. Lloyd, 2 
 Sw. 224, n. ; sed qu., whether this 
 statement, although theoretically ac- 
 curate, is correct for practical pur- 
 poses. Freedom from the tithe is a 
 fact which does not relate to the 
 physical condition of the property, 
 and must, nevertheless, be proved by 
 
 the vendor before he can be said to 
 have shown a good title to the estate 
 as described in the contract. 
 
 (A) See Seaman v. Vawdrey, 16 
 Ves. 390 ; Sug. 353. 
 
 (c) Ibid. 
 
 (d) See Shacktcton v. Sutcliffe, 1 
 De G. & S. 60y, where only about 
 four and a half out of thirty acres 
 contracted for were subject to the 
 easements. 
 
 (e) Sug. 352 ; see Burncll v. 
 Brown, 1 Jac. & \V. 172. 
 
 (/) Forteblow v. Shirley, cited 2 
 Sw. 223. 
 
 (//) Portman v. Mill, 1 Russ. & 
 M. 696. 
 
 (A) Mason v. Corder, 2 Marsh. 
 332 ; see Sug. 341, where the case 
 seems to be cited doubtfully.
 
 AS TO SPECIFIC PERFORMANCE. 
 
 507 
 
 SO where, on the pm-chase of leaseholds, the lease was *^ '': '"^^ " ^- 
 found to contam covenants to build additional houses, and 
 to deliver them up at the end of the term, and the houses 
 had not been built, but the covenant to build liad been 
 Avaived, it was held that the liability imder the covenant to 
 deliver up at the end of the term was a sufficient defence 
 to the suit : although such hability might have been escaped 
 by assigning the terra to a pauper even only a day before 
 its termination (/) . 
 
 AMicre oulv part of an estate is affected by a liability thVInjoy- 
 
 . . , nieiit of 11 
 
 which, if affectinar the entirety, would enable the pin-- .nateriai 
 
 ' ^ •' part of the 
 
 chaser to resist specific performance, the pm-chascr's right proi.erty. 
 to avoid the contract would seem to depend upon whether 
 the part so affected is material to the enjoyment of the 
 residue. 
 
 Where, on the pui'chase of several lots by the same per- S^^^oot 
 
 one 
 
 1 c 1^- i.^ • „ . of several 
 
 son, the title to one or more proves detective, tins ma^ or lots, iiow far 
 
 - „ , a defence in 
 
 mav not, accordinsc to circumstances, be a ground lor the respect of 
 
 C > » . remaining 
 
 purchaser's resisting specific performance in respect of the lots. 
 remaining lots : an express agreement that the purchaser 
 shall not take any unless he can have all, will be sufficient 
 to blend the whole into one contract : " but the same com- 
 plication may be effected, or rather CAddenced, without any 
 such agreement. It is a question of circumstances: the 
 lots may be connected from their iiatm-e ; it may be shown 
 that the pm-chase of the one was made with reference to 
 the other. A mere suggestion by the party, a mere state- 
 ment of his inclination or fancy, will not be sufficient : nor 
 may the proof of anything of a private nature, not known 
 to the vendor, suffice : but where, upon matters known to 
 both parties, he can ground his proof that the one trans- 
 action was dependent on the other, he complicates the two, 
 so as to make the contract one, although there may have 
 
 (t) Nouallle v. Flight, 1 Beav. 521.
 
 508 
 
 AS TO SPECIFIC PERFORMANCE. 
 
 Ch.XVIII. 
 
 Benefit of 
 defence, 
 how lost to 
 purchaser. 
 
 Defects in 
 title, which 
 are not 
 available as 
 a defence to 
 purchaser : 
 
 limited 
 right of 
 common ; 
 
 small quit- 
 rents or 
 rent- 
 charges ; 
 
 tithe- 
 when the 
 
 been no express statement that he was to take none if he 
 might not have all" (/c) . 
 
 A purchaser will lose his right to resist specific perform- 
 ance on the ground of the estate being of a different 
 tenure [1), or subject to a liability affecting its beneficial 
 enjoyment^ [e. g., a right of sporting) {m), or of there 
 being no title to a material part of it {a), or of a variation 
 from the description in the particulars [o], if, after having 
 become acquainted with the defect, he, without insisting 
 thereon, proceed in the treaty (/») ; or, a for'tiori, take pos- 
 session {q) : or if, although insisting on the objection, he 
 take possession and endeavour to prevent the vendor from 
 removing the defect (r) . 
 
 And a purchaser has not been allowed to resist specific 
 performance, on the ground that the estate having been 
 sold with what was represented in general terms as an un- 
 limited right of common the same proved to be a right of 
 common only for sheep {s) ; or on the ground of the 
 estate being subject to quit-rents or rent-charges of small 
 amount [t). 
 
 So, where, on the sale of 140 acres, the particulars 
 
 {k) Per Lord Brougham, Casa- 
 major v. Strode, 2 Myl. & K., see 
 judgment, p. 725 ; Poole v. S/ier- 
 gold, 2 Bro. C. C. 118; Lord 
 Eldon's remarks in Drewe v. Han- 
 son, 6 Ves. 675, as stated Sug. 3G3. 
 
 (0 Fordyce v. Ford, 4 Bro. C. C. 
 494. 
 
 (jri) Burncll v. Brown, 1 Jac. & 
 W. 168. 
 
 («) See Dreive v. Hanson, 6 Ves. 
 679. 
 
 (o) Dyer v. Haryrave, 10 Ves. 
 505, 508. 
 
 (j») 4 Bro. C. C. 498; 6 Ves. 
 679 ; 10 Ves. 508. 
 
 {q) 1 Jac. & W. 168. 
 
 (r) See Calcraft v. Roebuck, 1 
 
 Vfs. jun. 221. 
 
 {s) Howland v. Norris, 1 Cox, 59. 
 
 {t) See Esdaile v. Stephenson, 1 
 Sim. & St. 122 ; Portman v. Mill, 1 
 Russ. & M. 696, and see Sir E. 
 Sugden's remarks (V. and P. 354), 
 disapproving of the decision in How- 
 land V. Norris, uhi supra, that a 
 tithe rent-charge of 14^. per annum 
 was a matter for compensation. It 
 may be remarked, that in the ab- 
 sence of any statement on the sub- 
 ject, the existence of a title-commu- 
 tation rent-charge, or of tithe, must 
 be presumed, and is no objection to 
 the title, nor ground for claiming 
 compensation.
 
 AS TO SPECIFIC PERFORMANCE. 509 
 
 stated that about 32 acres were tithe free, and no evidence Ch.A'viii. 
 
 of exemption could be produced. Lord Eldon held that the from'tuhe 
 
 right to the tithe of this part of the property could not be oV'the'in-'''^'^ 
 
 considered the inducement to the purchase ; and decreed tothepur- 
 
 .j, „ chase; 
 
 specmc performance Avith an abatement {ii) : so, where the 
 purchaser's agent having by letter agreed to purchase an 
 estate, consisting of a house and 19 acres of land, twelve 
 of which Avere occupied by the house, offices, garden, and 
 pleasure grounds ; no mention being made of tithes ; and 
 on a more formal contract being prepared the great tithes 
 were inserted by the puixhaser's solicitor, but without any 
 increase of price, or further treaty on the subject, and no 
 title could be made to the tithes. Sir /. Leach held that 
 the tithe could have formed no part of the inducement 
 to the contract, and decreed specific performance with 
 an abatement; (the same ha^dng been oiiered by the 
 vendor (w) ). 
 
 Upon the last case, we may remark, that the pm'chaser's 
 agent appears to have actually entered by letter into a bind- 
 ing agreement to pmxhase subject to the tithe : as to the 
 case before Lord Eldon, the decision ought scarcely to be 
 considered to establish any general rule ; the particulars 
 represented 32 acres or thereabouts to be free from tithe 
 generally, both small and great ; and it is ob^dous that a 
 pm-chaser buying an estate of 140 acres, say with an inten- 
 tion of building a residence on the land, and laying out 
 gardens, &c., might deem it of material importance that 
 even a very small part of the estate should be free from 
 a liability to the payment of tithe in kind. 
 
 So, the circumstance of the estate being; subiect to a existence of 
 
 ^ «* footway. 
 
 footway over and round it, has been held to be no defence 
 to a suit for specific performance, its existence being- 
 patent, and the purchaser having made no inquiry on the 
 
 (m) Birds v. Lord Rokehy, 2 Sw. («•) Smith v. Tolcher, 4 Russ. 
 
 222. 302.
 
 510 
 
 AS TO SPECIFIC PERFORMANCE, 
 
 Ch. XVIII. 
 
 5th. Matters 
 relating to 
 the con- 
 sideration. 
 
 Inadequacy 
 of, when a 
 vendor's de- 
 fence. 
 
 Sale by 
 auction ; 
 
 subject (x) ; but the decision lias not been generally ap- 
 proved {y) ; and the Courts would probably upon slight 
 grounds come to a different decision in any case where an 
 estate was subject to a right of way which materially 
 affected its enjoyment. 
 
 As to the 5th of the above heads. — The amount of the 
 consideration to be paid may be a ground of defence by 
 either party : and its inadequacy, or excess, will, of course, 
 be determined with reference to matters as existing 
 at the date of the contract, irrespectively of subsequent 
 events {z) . Inadequacy of consideration is not, however, 
 a defence available to the vendor of an estate in posses- 
 sion (a), unless it can be shown to have originated in 
 fraud, surprise, or misrepresentation, (whether wilful or 
 not) (b), or improper concealment on the part of the pur- 
 chaser (c), or in advantage taken of the distress of the 
 vendor {d) , or, according to Lord Eldon, " unless the 
 inadequacy of price is such as shocks the conscience, and 
 amomits in itself to conclusive and decisive evidence of 
 fraud in the transaction" (e) ; but this dictum would pro- 
 bably at the present day be hardly sustained in its full 
 extent (/). 
 
 The fact of the sale being by auction, of course, much 
 increases the difficultv of showing fraudulent inade- 
 
 (^x) Oldfield or Bovles v. Round, 
 5 Ves. 508. 
 
 (y) See Sug. 377; but see also 
 contra, Martin v. Cotter, 3 Jo. & L. 
 506. 
 
 {z) See Sug. 310 ; Poole v. Sher- 
 gold, 2 Bro. C. C. 118, 119 ; Coles 
 V. Trecothick, 9 Ves. 246 ; supra, 
 357. 
 
 {a) Coles V. Trecothick, 9 Ves. 
 246 ; Burrovies v. Lock, 10 Ves. 
 470; Lowther v. Lowther, 13 Ves. 
 103 ; Borell v. Dann, 2 Ha. 450. 
 
 (6) 1 Mad. 81 ; Brealey v. Col- 
 
 lins, You. 317 ; and see next note. 
 
 (e) See cases cited in n. (a) ; also 
 White V. Damon, 7 Ves. 30 ; West- 
 ern V. Russell, 3 Ves. & B. 187 ; 
 Deane v. Rastron, 1 Anst. 64 ; Cad- 
 man V. Horner, 18 Ves. 10; Turner 
 V. Harvey, Jac. 169 ; Wall v. Stuhbs, 
 1 Mad. 80; Sug. 312 ; and see Ch. 
 III. supra. 
 
 (d) See Martin v. Mitchell, 2 Jac. 
 & W. 413, 423 ; et vide supra, 353. 
 
 (e) 9 Ves. 246 ; and see Jac. 282. 
 (/■) See Sug. 314, n. ; see Vigers 
 
 V. Pike, 8 CI. & Fin. p. 645.
 
 AS TO SPECIFIC PERFORMANCE. 511 
 
 quacy \g) ; and the fact of neither party being aware of the ^' ^ ^^"t- 
 value of the estate at the time of the contract, seems to isccrtlined 
 render such a defence impracticable ; as in a case where 
 a person sold, for what proved to be one-tenth only of its 
 real value, the allotment to which he might be entitled 
 under an expected Inclosure Award [h) . 
 
 It is laid down by Sir E. Sugden {i), that "if an un- [j°f^^,"^- 
 certain consideration (as a hfe annuity) be given for an amount- 
 estate and the contract be executory, Equity, it seems, will question of 
 
 . n 1 ' " inadequacy 
 
 enter mto the adequacy of the consideration." However, 's thereby 
 
 ^ '' ' excluded. 
 
 in a case {k) before Sir J. Wigram, V. C, his Honour, 
 in deciding that an inadequacy of seven or eight pei' 
 cent, was insufficient as a defence, made observations 
 indicating a doubt whether the older cases are to be re- 
 garded as authorities ; they having been decided before the 
 modern rule of treating inadequacy of price in contracts for 
 the purchase of interests in possession as nothing more 
 than an ingredient in evidence, was perfectly established : 
 at any rate the circumstance of the contingency having 
 turned out unfavourably to the vendor, is no ground of 
 defence (/). 
 
 But although in sales of property in consideration of a 
 life annuity, the Court will decree specific performance 
 notwithstanding the death of the annuitant, it Avill inquire 
 with some jealousy as to the fairness of the transaction, and 
 require a clear case for specific performance under such 
 circumstances (m). 
 
 {g) White ?. Damon, 7 Ves. 30, ;je>-, 1 Bro. C. C. 156 ; and Jackson 
 
 35 ; Ex parte Latham, ibid, 35, n. ; v. Lever, 3 Bro. C. C. 605. 
 
 Boretl V. Dann, 2 Ha. 450 ; sMjyra, [k) Bower v. Cooper, 2 Ha. 408. 
 
 357, n. ((?). (J) Coles v, Trecothink, 9 Ves. 
 
 (A) Anon, cited 6 Ves. 24 ; and 246 ; Kenney v. Wexliam, 6 Mad. 
 
 see Knight v. Majoribanks, 11 Beav. 355. 
 
 322; affirmed. 2 Mac. & G. 10. (m) Per Lord Cottenham, C, in 
 
 {i) Sug. 311 ; citing Po;j(? v.Roota, Davies v. Cooper, 5 Myl. & C. 279. 
 1 Bro. P. C. 370 ; Mortimers. Cap-
 
 512 
 
 AS TO SPECIFIC PERFORMANCE. 
 
 Ch. XVIII. 
 
 Inadequacy 
 in sales of 
 reversion- 
 ary in- 
 terests. 
 
 Failure of 
 coutinjient 
 consiflera- 
 tion, in 
 general no 
 defence. 
 
 Excess of 
 purchase- 
 money, 
 when a pur- 
 chaser's de- 
 lence. 
 
 Remarks on 
 the doctrine. 
 
 We have already considered (») those cases in which the 
 Court has, upon the mere gi'ound of inadequac}^ of consi- 
 deration, set aside sales of reversionary interests, even after 
 the conveyance has been executed : these cases, of course, 
 are, a fortiori, authorities in favour* of a defendant resisting 
 specific performance. A degree of inadequacy which might 
 be insufficient to induce the Court to interfere and set 
 aside an executed contract, would, it is conceived, be a 
 valid defence in such a suit (o) : especially if the contract 
 has not been acted on or attempted to be enforced until 
 the reversion has fallen into possession {p). 
 
 We have already seen that where the estate is sold for a 
 contingent consideration, e. g., a life annuity, the occur- 
 rence of the contingency is, in general, no defence to the 
 purchaser's suit for specific performance {q) . 
 
 So, on the other hand, it has been held that the mere 
 excessive amount of the purchase-money, (even although 
 not attributable to fraud, misrepresentation, or conceal- 
 ment on the part of the vendor), is a defence available to 
 a pui'chaser (/•) : and Sir E. Sugden remarks that " few 
 contracts can be enforced in Equity where the price is 
 unreasonable, because contracts are not often strictly 
 observed by either party : and if an unreasonable contract 
 be not performed by the vendor, according to the letter in 
 every respect. Equity will not compel a performance in 
 specie " (5) . 
 
 It is, however, submitted, that such a defence by a piu-- 
 chaser deserves but little favour in a Court of Equity : tliere 
 is a great difference between proofs of inadequacy and of 
 excess of price. Inadequacy can be ascertained by reference 
 
 (n) Supra, 353, et seq. 
 
 (0) See Sug. 312, 314; Ryle v. 
 Swindells, M'Clel. 519; Playford v. 
 Playford, 4 Ha. 546 ; Vigers v. 
 Pike, 8 CI. & Fin. 645. 
 
 {p) Playford v. Playford, uhi 
 
 supra. 
 
 (q) Supra, 117, et vide, 511. 
 
 (r) Day v. Newman, cited 10 Ves. 
 300. 
 
 (.«) Sug. 310.'
 
 AS TO SPECIFIC PERFORMANCE. 513 
 
 to an extrinsic standard ; viz., the general market value ^^j^Jl*^-. 
 of similar property ; and there is no difficulty in comparing 
 money with money : but the Court when required to pro- 
 nounce a price excessive^ is called upon to do what it 
 has, apparently, no satisfactory means of doing ; viz., to 
 determine what represents the money value, to a specified 
 individual, of a sj)ecified estate : there is no extriusic stan- 
 dard by which such value can be certainly determined. 
 The mere fact of the contract having been entered into, 
 knowingly and bond fide, may, it is conceived, be not 
 unreasonably considered in itself to determine the real 
 value of the estate, to the purchaser, at the time of the 
 contract ; whatever may be its value to third persons, and 
 however much its value to the pui'chaser himself may have 
 been altered by subsequent events [t) . 
 
 As to the six of the above heads : — comprising those eth— Con- 
 duct of piain- 
 grounds of defence which consist of matters relating to the tiff after con- 
 
 ■^ *=■ tract — when 
 
 conduct of the plaintiff subsequent to the contract : these * defence. 
 may be conveniently treated of with reference to — 
 
 1st. Cases, where the defence is, that the plaintiff (whe- Release, 
 
 1 • waiver of, 
 
 ther vendor or purchaser) has released, expressly waived, or delay to 
 
 ^ '' . . enforce the 
 
 or improperly delayed to enforce his rights under the contract, 
 contract. 
 
 2ndly. Cases, where the defence is, that the plaintiff conduct of 
 
 J ' _ ' ^ i plaintiff. 
 
 (being the vendor) has, by his conduct, in respect of the 
 estate, or towards the purcliaser, forfeited his rights under 
 the contract. 
 
 3rdly. Cases, where the defence is, that the plaintiff Election of 
 
 •' ' ' r other re- 
 
 (whether vendor or purcliaser) has ali'eady chosen his "J-lacho^f 
 remedy and obtained satisfaction for the alleged breach of ^°^^^^'^^- 
 contract. 
 
 {t) And qu. as to the hardship of stances, which are relied on as consti- 
 
 the bargain being a defence, whether tuting the hardship, may be supposed 
 
 the Court should ever, merely on to have been present to the mind of 
 
 that ground, decline to enforce spe- the defendant at the time of his en- 
 
 cific performance, if the circum- tering into the contract .' 
 
 h h
 
 514 
 
 AS TO SPECIFIC PERFORMANCE. 
 
 Ch. XVIII. 
 
 Release, 
 waiver of, 
 or delay to 
 enforce tlie 
 contract. 
 
 What delay 
 in filing 
 bill, a de- 
 fence. 
 
 As to the first class of cases. — An actual release by deed, 
 or a mere written waiver of tlie contract, wiH, of course, 
 be a good defence in Equity : so will a mere parol waiver ; 
 " but such a defence must be established with the greatest 
 clearness and precision ; and the cii'cumstances of waiver 
 and abandonment must amount to a total dissolution of 
 the contract, placing the parties in the same situation in 
 Avhich they stood before the agreement was entered 
 into^^ {u) : and Sir E. Sugden remarks, that '^^the Court 
 will look at the evidence with great jealousy" {w) : and 
 has held, judicially, that there must be as clear evidence 
 of the waiver as of the existence of a contract {oc) . 
 
 We have ah'eady considered (y), how far time is in 
 Equity of the essence of the contract : even, however, 
 where a clear right has existed to enforce the contract 
 such right may be lost by delay in resorting to the Court ; 
 e. ff., an unexplained delay of seven years {z), and, in ano- 
 ther case, of four years and eight months («) , in fihng the 
 bill, has in itself been considered a sufficient answer to the 
 suit : where the bill was filed within fourteen months after 
 a correspondence upon objections to the title had ceased, 
 by the defendants returning no answer to the last letter 
 which called for a distinct ansAver and threatened to file a 
 bill, specific performance was decreed ; the Court observ- 
 ing, that one could easily imagine that circumstances 
 might have happened which would have made it peevish 
 to file the bill immediately (b). Less time, however, Avill 
 in general be allowed when the defendant has expressly 
 
 (m) Per Lord Lyndhurst in Robin- 
 son V, Page, 3 Russ. 114, 119 ; and 
 see Price v. Dyer, 17 Ves. 364. 
 
 (w) Sug. 173. 
 
 («•) Carolan v. Brabazon, 3 J. & 
 L. 200; as to the alteration of an 
 agreement by either party, vide 
 supra, p. 108. 
 
 (y) Supra, Ch. X., and as to a 
 
 mere option of purchase, vide supra, 
 98, n.{q). 
 
 (z) Mibrard v. Earl of Thanet, 5 
 Ves. 720, n. 
 
 («) Alley V. Descliainps, 13 Ves. 
 225. 
 
 (b) Marquis of Hertford v. Boore, 
 5 Ves. 719.
 
 AS TO SPECIFIC PERFORMANCE. 515 
 
 refused, than when he merely tacitly neglects^ to perform CLuXvm. 
 the agreement : in cases of the former description, periods 
 of delay, varying from two years and a half (c) to twelve 
 months {d), have been held sufficient to bar the relief (e) : 
 it does not, however, appear, that time will run against the 
 plaintiff so long as the question of completion remains 
 under discussion (/) ; or while he is substantially in 
 possession of the benefit contracted for {g) ; the modern 
 tendency of the Court has been to requii'c the plaintiff to 
 be prompt in seeking his equitable remedy {h) . 
 
 As to the second class of cases. — We have already seen waste of 
 
 '' estate, when 
 
 that any act by the vendor — e. g. the fall of ornamental a defence; 
 
 timber — which prevents his giving to the purchaser that 
 
 which was substantially the subject-matter of the contract, 
 
 will be a defence to his suit for specific performance (i) ; 
 
 but that he may, in due course of husbandry, cut coppice, 
 
 and get in crops, accounting to the purchaser for the 
 
 net profits [k) . 
 
 So, the circumstance of the vendor having turned the "f ''•'urchaler 
 purchaser out of possession, (which he was entitled to pfg^ses'^ilfn!" 
 under the contract, and had been allowed to take,) has 
 been held a sufficient defence to the vendor's suit (/) . 
 
 So, if the plaintiff refuse or be unable to perform a or inability 
 
 ■"■ of vendor to 
 
 material stipulation under the contract — as if it had been i^^^^[^j;!^j* 
 
 (c) Steivart v. Smith, 6 Ha. 222, considerable intervals for nearly four 
 
 note. years ; and see Gee v. Peame, 2 De 
 
 {d) Watson v. Reid, 1 Russ. & G. & S. 325. 
 M. 236. {g) Clarke v. Moore, 1 J. & L. 
 
 (e) See Heaphy v. Hill, 2 Sim. & 723 ; but delay will be material on 
 
 St. 29, about two years' delay; Walker the question of costs: see Burke v. 
 
 V. Jeffreys, 1 Ha. 341, two years; Smyth, 3 J. & L. 193. 
 Southcomb v. Bishoj} of Exeter, 6 {h) Southcomb v. Bishop o/Ereier, 
 
 Ha. 213, nineteen months. 6 Ha. 213. 
 
 (/) See Southcomb v. Bishop of (?) Supra, 116. 
 
 Exeter, 6 Ha. 213 ; and Moxhay v. (k) Ibid. 
 
 Inderwick, 11 Jur. 837, where a (I) Knafehbull v. Grue/jer, 3 Mer. 
 
 correspondence upon the shape of see 144. 
 the conveyance was carried on at 
 
 L L.2
 
 516 
 
 AS TO SPECIFIC PERFORMANCE. 
 
 stipulation 
 under the 
 contract. 
 
 ch. XVIII. agreed that the vendor should become tenant of the estate 
 for a term of fourteen years at a specified rent, and he 
 become insolvent (m) — this may be a reason for refusing 
 specific performance against the purchaser; but this de- 
 fence was overruled when the agreement was for merely a 
 yearly tenancy, and especially as the vendor's embarrass- 
 ments were known to the pm'chaser {n) . 
 
 As to the third class of cases. — If the plaintiff has 
 brought an action at law and has recovered damages for 
 breach of contract he will be held to have elected his 
 remedy (o). 
 
 Action 
 brought and 
 damages 
 recovered. 
 
 Purchaser 
 5n posses- 
 sion, when 
 ordered to 
 pay pur- 
 chase-mo- 
 ney into 
 Court. 
 
 (10.) As to the proceedings in the suit; — viz. payment of 
 purchase-money into Court ; — reference of title and pro- 
 ceedings thereon — decree for plaintiff — conveyance — de- 
 cree dismissing Bill. 
 
 Where the purchaser is in possession of the estate, he 
 may, even before answer {p), be ordered upon motion to 
 pay the purchase-money into Court; this relief it seems 
 will be afforded, when "the possession by the purchaser, 
 without payment of the purchase-money, is according to 
 the intention of the parties, or is held according to it, but 
 the purchaser has exercised improper acts of ownership, 
 for example cutting timber, or selling the estate" {q), or 
 dealing with it in a manner contrary to former usage, or 
 to the usual course of husbandry (r) ; " but not," according 
 to Sir E. Sugden, "where the possession is taken under 
 the contract, or is consistent with it, and the purchaser 
 has not dealt improperly with the estate" (.§) ; this last 
 
 {m) See 1 Y. & C. Exch. 228. 
 
 (h) Lord V. Stephens, 1 Y. & C. 
 Exch. 222, 228 ; sed qu. whether the 
 length of the tenancy is material ; 
 see Sag. .338. 
 
 (o) See Sainier v. Ferguson, 1 
 Mac. & G. 286. 
 
 (j») Dixon V. Astley, 1 Mer. 133 ; 
 Blackburn v. Stace, 6 Mad. 69. 
 
 iq) Sug. 251 ; Dan. Ch. Prac. by 
 H. 1642. 
 
 (r) Osborne v. Harvey, 1 Y. & C. 
 C. C. lie. 
 
 (*) Sug. 251.
 
 AS TO SPECIFIC PERFORMANCE. 517 
 
 proposition must^ however, be taken subject to the follow- chxviii. 
 ing qualifications^ viz. that where a purchaser has been 
 long in possession, e.g. three years [t), he will be required ^■J""'^!'^^!'" 
 either to give up {u) possession or to pay in his purchase- eltheVlopay 
 money within a short date, e. g. two months [iv) ; and this possession. 
 was ordered in a case where, according to the agreement, 
 the greater part of the purchase-money was to remain on 
 mortgage of the estate for twelve months after the con- 
 veyance (j?) : a similar order was made, in a modern case, 
 by Lord Langdale, although the purchaser had taken pos- 
 session for the benefit of the vendor, and expressly without 
 prejudice to any objection he might afterwards make to 
 the title, and had retained possession for about a year and 
 a half : and although the above proposition of Sir E. Sug- 
 den was cited in argument, his Lordship seemed to con- 
 sider that, as a general rule, a pui'chaser could not be 
 allowed to retain both the estate and the money (?/). 
 
 In a case where, according to the bill, there was a parol i^n^ulfen^ 
 agreement for sale at 80/. per acre, with possession given ^rtainrno 
 of five acres, but, according to the answer, only of three 
 acres, a motion that the purchaser should pay in the pur- 
 chase-money for the five acres, or else for the three acres, 
 was refused [z] . 
 
 In a case where there was a sort of mixed possession, J-^l^cfrcum- 
 the greater proportion of it being in the purchaser, but receiver ap- 
 
 {f) Tindal v. Cobham, 2 Myl. & pressed on the Court, would not 
 
 K. 385 ; Younge v. Buncombe, You. have been allowed to give his bond 
 
 275. or covenant for the amount agreed to 
 
 (m) Where possession having been be left on mortgage ; and see the 
 
 taken by an agent in mistake, had judgment in Clarke v. Elliott, 1 
 
 been restored, the motion for pay- Mad. 606, 607. 
 
 ment was refused ; Tomlinson v. (y) Fowler v. Ward, 6 Jur. 547 ; 
 
 Manchester and Birmingham Rail- and see Adams v. Heathcote, 10 Jur. 
 
 ■tray Company, 2 Rail. Ca. 104. 301, V. C. E. ; S^nith v. Lloyd, 1 
 
 (?r) Younge v. Duncombe, You. Mad. 83 ; and Wickham v. Evered, 
 
 275. 4 Mad. 53. 
 
 (.«■) 5. C, sed qu. whether tlie {z) Benson v. Glastonbury Canal 
 
 purchaser, if the point had been Company, 1 C. P. Coop. N. R. 350. 
 
 pointed.
 
 518 AS TO SPECIFIC PERFORMANCE. 
 
 ch. XVII I. ^]jg vendor not being entii'ely out of possession, and part 
 of the purcliase-nioney was paid, but the purcliaser was in 
 a state of insolvency and admitted his intention to convey 
 the estate to trustees for the benefit of his creditors, the 
 Court appointed a receiver {a) . 
 
 Oroccupa jn another case an occupation rent was set on the estate 
 
 tion rent set '- 
 
 on estate. deducting interest at 5/. per cent, on the deposit {b) : so 
 where a yearly tenant in possession filed a bill claiming an 
 option to pui'chase, the Com-t would only restrain an 
 ejectment by the landlord on the terms of the tenant 
 continuing to pay the rent, without prejudice (c) . 
 
 Vendor Where a vendor in possession files a bill for specific 
 
 plaintirt" 
 
 ?eekingin- performance and to restrain the purchaser from proceed- 
 
 obHged to i^g ^t Law for his deposit, he can generally obtain the 
 
 poJit."'''' injunction only on the terms of pajdng the deposit into 
 
 Com't ; unless his retention of the estate be the fault only 
 
 of the purchaser ; as where the vendor is able and willing 
 
 to make a good title and the other improperly refuses to 
 
 complete [d). 
 
 ^i"inst'°° ^ purchaser in possession, even under the contract, but 
 
 purchJ^erin "^vho has uot paid his purchase-money, may be restrained 
 
 possession. ^^ motiou from waste or destruction of the property; 
 
 e. g. : from felling timber {e) : so, the vendor may, under 
 
 special cu'cumstances, as where he has given up possession 
 
 Against and rcccivcd part of the purchase-money (/), be restrained 
 
 vendor of from convcviug awav the legal estate, or contracting to 
 
 his legal .. o ., o . j, 
 
 rights. resell the property [g] : but, in general, in a suit for 
 
 specific performance the purchaser is not entitled to 
 restrain the owner from deahng with his property ; as a 
 
 (a) Hall V. Jenkinson, 2 Ves. & St. 147, 149. 
 B. 125; see the judgment, 126. (<?) Crockford v. Alexander^ 15 
 
 (i) Smith V. Jackson and Lloyd, 1 Ves. 138 ; vide supra, p. 118, 119. 
 Mad. 618. (/) Spiller v. Spiller, 3 Sw. 556. 
 
 (c) Pyke V. Northwood, 1 Beav. {g) Echliff v. Baldwin, 16 Ves^ 
 
 52. 267 ; Curtis v. Marquis of Backinf/- 
 
 {d) Wynne v. Griffith, 1 Sim. & ham, 3 Ves. & B. 168.
 
 AS TO SPECIFIC PERFORMANCE. 519 
 
 diflferent doctrine would operate to control the rights of ch- xviii. 
 ownership, although the agreement were such as could not 
 be performed {h) : but in a suit to enforce an agreement 
 for sale of a next presentation, the vendor may be re- 
 strained from presenting any clerk not nominated by the 
 pui'chaser ; and the injunction has even been extended so 
 as to restrain the Bishop from presenting, except on the 
 like nomination, or from collating in the event of a lapse 
 pending the suit (i) . 
 
 Where the question of title is the only one in dispute, ^fie^on^^"^ 
 the Court, in order to save time {k), will, at the instance fore'hear^" 
 of either party, direct a reference to the Master upon 
 motion before the hearing, or even, at the instance of the 
 plaintiff (/), before answer (m) ; unless the defendant's ^^f^^^?^' 
 counsel can state that other matters are in question [a] ; groumiT 
 and this, although the only question of title is one which of title. 
 might be conveniently determined at the hearing without 
 a reference (o), or although specific performance be re- 
 sisted upon the ground that time was of the essence of the 
 contract, and that a good title was not shown within the 
 specified period {p) : such an order, if obtained by the 
 plaintiff before answer, will not preclude the defendant 
 from making any defence which he thinks proper {q) : and 
 in a suit commenced bj' claim under the new Orders of 
 April, 1850, the order of reference is of course, unless 
 sufficient cause to the contrary is shown by the defendant 
 on the hearing of the claim (r) . 
 
 (h) Per Lord Eldon in Spiller v. & B. 224 ; Bennett v. Rees, 1 Keen, 
 
 Spiller, ubi supra ; Tui-^ier v. Wight, 408. 
 
 4 Beav. 40 ; see Haigh v. Jaggar, 2 (/;) Matfheus v. Dana, 3 Mad. 
 
 Coll. 231. 470. 
 
 (i) Nichohon V. Knapp, 9 Sim. (o) Curling v. Fligtd, b Ha. 2^?,. 
 
 225 {p) Foxlowe v. Amcoats, 3 Beav. 
 
 (Jc) Dorin V. Harvey, 9 Jur. 648 ; 49(i. 
 15 Sim. 49. (?) Em'',y v. Pickering, 13 Sim. 
 
 (Z ) See Cu rling v . F/ig/i /,DHa.247. 583. 
 
 (,«) Balmanno v. Lumley, 1 V.s. {r) But the agrfetnent must be
 
 520 
 
 AS TO SPECIFIC PERFORMANCE. 
 
 Ch. XVIII. 
 
 Frivolous 
 defence. 
 
 May be dis- 
 posed of on 
 motion — 
 temble . 
 
 Objections 
 to title, 
 what are. 
 for purposes 
 of motion. 
 
 It is stated by Sir E. Sugden, that *'in every case, 
 where the answer, upon reasons solid or frivolous, insists 
 that the agreement ought not to be executed, the Court 
 must first dispose of the question raised " {s) ; and accord- 
 ing to some authorities, such question could only be dis- 
 posed of upon the hearing (/) . However, in a recent case, 
 where the question arose whether a defence, even although 
 frivolous, is necessai-ily an answer to the motion. Sir 
 /. Wigram, V. C, observed, that such has not been the 
 practice, at least since the case of Withy v. Cottle {u) . 
 Since the decision in that case the practice of the Coiu't 
 has been to look into the answer for the purpose of seeing 
 whether that which the defendant calls an objection to 
 performing the contract is an open question. A point 
 raised by the answer as an objection other than to title, 
 may be so surrounded and governed by authority, as, in 
 fact, to create no difficulty, and to be, in effect frivolous ; 
 and in that case the Court does not yield to the objection 
 by refusing the reference {iv) . 
 
 It has been decided by the same learned Judge that for 
 the purposes of such a motion, objections to the title mean 
 such objections as can only be properly the subject of 
 adjudication upon the investigation of the title ; e. g. 
 objections depending on the application of conditions of 
 sale, (the propriety or validity of the conditions themselves 
 not being questioned) [w] ; or on the liability of the vendor 
 to furnisli any particular evidence of title, or on his ability 
 to furnish such evidence {y). 
 
 admitted by the defendant, or proved 
 by the plaiiitifF, supra ; and see Mar- 
 shall V. Davics, 14 Jur. 997, V. C. R. 
 
 (s) Sug. 416 ; and see cases there 
 cited. 
 
 {f) See Blyth v. Elmhirst, 1 Ves. 
 & B. 1 ; Withy V. Cottle, 1 Sim. & 
 St. 174 ; Gordon v. Ball, 1 Sim. & 
 
 St. 178. 
 
 (m) Turn. & Russ. 78. 
 
 {to) Wood V. Machn, 5 Ha., see 
 p. 161 ; and see Poi/es v. Liddell, 1 
 Y. & C. C. C. 133. 
 
 (s) flood V. Machu, 5 Ha. 158. 
 
 (y) Curling v. Flight, 5 Ha. 248.
 
 AS TO SPECIFIC PERFORMANCE. 521 
 
 And since the object of granting the reference before c hxvii i. 
 the hearing is merely to save time, the Court has refused fused'^on 
 such a motion by a plaintiff- vendor, who, for eleven dt?"" ; ° 
 months after answer, had taken no proceedings in the 
 suit {z). 
 
 And, of course, no reference will be directed even at the titieT^^"^ ° 
 hearing, if the Court be satisfied that the purchaser has 
 intentionally waived his right to investigate the title (a) : 
 and it has been refused on the mere ground of long pos- 
 session and vexatious objections on the part of the pur- 
 chaser {b) . 
 
 We have already seen that a purchaser who accepts a acc(*^'ta«ce 
 title, conditionally on the vendor complying with a spe- effect o7. 
 cified requisition, which is not compUed with, is entitled to 
 a general reference of title (c) . 
 
 The reference, when directed, should be complete and ^f^rJ,r/e, 
 extend to all that regards the title, but not to other mauerand 
 matters {d) : the order is, to inquu'c Avhether the vendor 
 can, at the time of the reference (not at the date of the 
 contract) show a good title (e), and it should contain a 
 direction that if the Master shall find that a good title can 
 be shown, he shall inquire when it was first shown : 
 and so the order is now always made; unless, for some 
 reason stated at the time, and by the express direction of 
 the Court, the inquiry as to the time when a good title 
 was first shown, be omitted (/) ; so, also, an inquiry will, 
 if desired, be directed, whether the defendant ever and 
 when required of the plaintifi" any and what evidence in 
 
 (z) Dorin v. Harvey, 9 Jur. G48 ; (c) Supra, p. 217 ; Lesfurgeon v. 
 
 15 Sim. 49. Martin, 3 Myl. & K. 255. 
 
 (a) Fleetwood v. Green, 15 Ves. {d) Jennings v. Hopton, 1 Madd, 
 
 594; Margravine of Ampach v. 212; Bennett v. Rees, \ }Lttn,AQb. 
 Noel, 1 Madd. 310 ; Burroughs v. (e) Langford v. Pitt, 2 P. Wms. 
 
 Oakley, 3 Sw. see p. 168, and earlier see 630 ; Dan. Ch. Prac. by H., 982. 
 cases cited in argument ; BlacJclov: v. {f) Per Lord Langdale in Bennett 
 
 Laics, 2 Ha., see p. 4 7. v. Rees, 1 Keen, 409. 
 
 (5) Hall V. Laver, 3 Y. & C. 191.
 
 52.2 
 
 AS TO SPECIFIC PERFORMANCE. 
 
 Ch.XVIIl. 
 
 Form of, in 
 suit com- 
 menced by 
 claim. 
 
 Proceed- 
 ings on re- 
 ference ; 
 Master pro- 
 ceeds on 
 abstract ; 
 
 proof of a point material to the title [g) ; but not as to a 
 matter Ayhicli has no reference to the title; e. g., the 
 sufficiency of the abstract dehvered {h) . The order should 
 also contain the usual directions for the production of 
 deeds,, &c. and for the examination of the parties on oath, 
 and reserve fiu'ther directions and costs {i). 
 
 The form of the order of reference in a suit commenced 
 by claim under the Orders of April, 1850, is as foUows {k) ; 
 viz., '' that it be referred to the ^Master of tliis Court in 
 rotation to inquire whether a good title can be made to the 
 property comprised in the agi'cement in the plaintiff's 
 claim mentioned : and in case the said Master shall be of 
 opinion that a good title can be made, it is ordered, that he 
 do state at what time it was first shown that such good title 
 could be made •/' and reserves further dii'cctions and costs : 
 and under the 1 7th Order the Master has a general autho- 
 rity to cause the parties to be examined upon interroga- 
 tories and to produce deeds, books, papers, and writings, 
 as he shall think fit. 
 
 Pending the reference, the defendant cannot, under the 
 114th Order of May, 1845, dismiss the bill for want of 
 prosecution (/). 
 
 Ko state of facts is carried in, but the Master proceeds 
 upon the abstract : and he will assume its correctness and 
 not require the production of the title deeds, unless their 
 production is insisted on by the purchaser (m) : on " liti- 
 gated questions of title, ^mtten objections are brought in 
 by the party objecting ; and the Master is either attended 
 by counsel on both sides, or the written opinions of counsel 
 upon the abstract already given are produced to him, 
 according to circumstances" {n) : and he has the same 
 
 (g) Ibid. 408. 
 {h) Ibid. 
 
 (?) Winterbijfton) v. Iiif/hain, 
 Sim. 654. 
 
 (X,-) See Schedule C. No. 10. 
 
 {I) CoIUm V. Greaves, 5 Ha. 596. 
 (m) See Danl. Cb. Prac. by H. 
 1168. 
 (n) Ibid.
 
 AS TO SPECIFIC PERFORMANCE, 5)23 
 
 power to examine witnesses on a reference npon motion^ as ch.xviii. 
 lie would have if it were under a decree (o) . 
 
 The usual and recognised {p) practice^ is^ for the Master^ ^l^^f^^ 
 instead of personally perusing the abstract^ to submit it to opinion" 
 a conveyancing counsel, of his own selection : but although 
 he may avail himself of the assistance afforded him by the 
 opinion thus obtained, he ought not, in his report, to state 
 it as the foundation of his finding [q) . 
 
 "In the prosecution of the order for reference, the ^e'lfce^be 
 Master, in his discretion, may examine the parties upon and require. 
 interrogatories, and receive evidence upon affidavit, or by 
 the examination of witnesses before him either by written 
 interrogatories or viva voce. He may also call for such 
 deeds and other muniments as are necessary to the eluci- 
 dation of the title " (r) . 
 
 A pm-chaser will not be compelled to take a doubtful ne"'d noT*^ 
 title {s) ; or a merely equitable title {t), unless the sale be doubtful or 
 
 merely 
 
 under a decree of the Court {u), although he may have equitable 
 
 consented to go before the Master upon a reference as to 
 
 the title to the estate du-ected in an administration suit {w) ; 
 
 nor will he be compelled to take an equitable title which his 
 
 vendor, who pm-chased from the Com't, was himself obhged 
 
 to accept (<r) ; nor will a case be sent for the opinion of a or ^^M^e"'' 
 
 Court of Law without his consent (y) ; and if, upon the to lI^"* 
 
 return of a certificate in favour of the title, the Coui-t has 
 
 any doubt upon the point, a case will be directed to another 
 
 (o) Woodroffe v. Titterton, 8 Sim. cited : see the argument of defendant's 
 
 238. counsel in Howarth v. Smith, 6 Sim. 
 
 (p) See Flotver V Walker, I Russ. 161. 
 408. (0 ^I'id. and Law v. Urlivin, 1 
 
 {q) In re Collnrd, 10 Beav. 334. Sim. 377. 
 
 (r) Danl. Ch Prac. by H. 1169 ; (m) Infra. 
 
 and see Winterbottom v. Ingham, 9 {iv) Cann v. Cann, 1 Sim. & St. 
 
 Sim. 6o4 : and 17th Order of April, 284. 
 18.50, mpra, p. 522. {x) Lord Ifaltham's case, Sug. 52 
 
 («) Sug. 506 ; Bhsse v. Lord Clan- {y) Roake v. Kidd, 5 Ves. 647. 
 
 morris, 3 Bligh, 62 ; and other cases
 
 524 
 
 A3 TO SPECIFIC PERFORMANCE. 
 
 Ch. XVIII. 
 
 doubt must 
 be a reason- 
 able doubt. 
 
 Questions 
 of Law 
 more readily 
 decided 
 against pur- 
 chaser than 
 questions of 
 construc- 
 tion. 
 
 Court of Law [z), and notwithstanding such certificate, 
 the Court of Chancery will entertain and act upon any 
 equitable objection to the title {a). 
 
 The doubt, whether upon law or fact, must, in order to be 
 a ground for rejecting the title, be a reasonable doubt : 
 according to Lord Hardwicke, "the Coiu't, in carrying 
 agreements into execution, must govern itself by a moral 
 certainty, for it is impossible in the natm'e of things that 
 there should be a mathematical certainty of a good title ; 
 there are often suggestions of old entails, and often doubts 
 what issue persons have left, whether more or fewer, and yet 
 these were never allowed to be objections of that force as 
 to overturn a title to an estate " (b) : and the above remarks 
 are cited with approbation by Sir W. Grant (c), and Sir 
 E. Sugden [d] : however, in a case before Mr. Baron 
 Alderson, upon the above dicta as to moral and mathema- 
 tical certainties being cited, the Court observed, "that 
 only means that you cannot prove a title by means of 
 reasoning, but only with the help of evidence ; those sort of 
 apothegms get a great deal more reputation than they 
 deserve" (e). 
 
 As to doubts depending on a point of Law, Sh- E. Sugden 
 suggests, that a Judge " may feel himself more at liberty 
 to decide a general point of Law between vendor and pur- 
 chaser than a question of construction of an informal instru- 
 ment, which can afford no precedent, and upon which men 
 may naturally differ" (/) : and even an abstract point of 
 law will not, if considered doubtful, be decided against a 
 purchaser even by the House of Lords (g) : and where the 
 
 (z) Sug. 506 ; Dan. Chan. Prac. by 
 H. 1088 ; it appears that in the first 
 instance the plaintiff selects the 
 Court ; Wal/on v. Holt, 13 Jur. 3.=)5. 
 
 («) Shefpdd V. Lord Mulgrat^e, 2 
 Ves. jun. 526'. 
 
 {b) Lyddal v. Weston, 2 Atk. 20. 
 
 (c) Hillary V. Waller, 12 Ves. 252. 
 
 {d) Sug. 518. 
 
 (p) Hutchinson v. Morrift, .'■! Y. 
 & C. 554. 
 
 (/) Sug. 508. 
 
 {g) Blouse v. Lord Clanmorris, 3 
 Bh. 62, 71.
 
 As to doubts 
 
 respecting 
 
 facts. 
 
 AS TO SPECIFIC PERFORMANCE. 525 
 
 purchaser objects to the title upon the authority of a Ch.xviii. 
 decision of a Court of Law in a similar case, the Court of 
 Chancery, although entertaining a strong opinion against 
 the correctness of such decision, will not overrule it, but 
 will direct a case ( g) . 
 
 If there be an appeal, the fact of the title having been cou'^ ^6-°^ 
 held bad in the Courts below will not be a reason for the i^ereed on 
 Judge of the appellate Court considering the title too notrende?^* 
 doubtful to force on a purchaser, if he himself entertain a fni. 
 clear opinion in its favour (A) ; and Lord Eldon, where a 
 purchaser persisted in an objection, which, although 
 doubtful on the previous authorities, had been decided 
 in favour of the same vendor by a recent judgment of his 
 Lordship, from which there had been no appeal, decreed 
 specific performance with costs [i] . 
 
 As to doubts respecting facts, we may here refer to the 
 observations already made (/c) as to presumptions of facts 
 as between vendor and purchaser. 
 
 In a case where it appeared that upon a previous pur- Jons^dTrld 
 chase a tenant for life had, after the contract, exercised a mere sus-° 
 power of appointment in favour of one of his sons, and fraud, 
 that the father, mother and son had thereupon conveyed to 
 the purchaser, the money being expressed to be paid to 
 the three conveying parties. Lord Eldon held that the 
 mere possibihty of the appointment having been founded 
 on a corrupt agreement between the father and son was 
 not a valid objection to the title (/). 
 
 Even the mere fact that a suit is pending, in which part adverse*suit. 
 of the lauds are claimed adversely to the vendor, is not, in tor reporting 
 
 p 1 1 1 • • • • 1 against 
 
 itself, an absolute objection to the title; and in such a case, title. 
 the Master should state the point in question in the ad- 
 
 (ff) Peppercorn v. Peacock, 4 Jur. (^) Supra, 166, et seq. 
 
 1122. {I) McQueen v. Farguhar, 11 Ves. 
 
 (h) See Sug. 512. 467. 
 (i) Biseoe v. TVilks, 3 Mer. 45().
 
 526 
 
 AS TO SPECIFIC PERFORMANCE. 
 
 ch. XVIII. verse suit, and his opinion thereon {m). The Court, how- 
 ever, it is conceived, would not, unless the point were 
 perfectly clear, or, perhaps, in any case, compel the pur- 
 chaser to complete until the adverse claim had been de- 
 cided on. In a case before Lord Lang dale, where the 
 intended pm'chaser had received notice of a claim to the 
 estate, founded on the alleged invalidity of an appoint- 
 ment, which claim, however, had not been followed up by 
 any act, and no fact had been stated as a foundation for it, 
 his Lordship decided that the purchaser was bound to 
 complete ; but added, '' if it were possible to institute any 
 inquiry as to the facts which took place I think it ought to 
 be done, for the satisfaction of the purchaser; but I do not 
 see how that can be'' (w) : in a late case, where the vendor 
 claimed under a suspicious will, and the heir had failed 
 in an action of ejectment and in a subsequent motion for 
 a new trial. Lord Cottenham, reversing the Vice-Chan- 
 cellor's decision, held that, as means existed of bringing 
 the objection to a test, the Court would do so, before 
 compelling the purchaser to take the title : and required 
 the vendor to file a bill to establish the will against the 
 heir (o). 
 
 Adverse Au anouATnous casc is cited by Sir E. Sugden (p), in 
 
 right not 
 
 likely to be "wliich a man having agreed to buv an estate with mines, 
 
 enforced, o o » 
 
 rendeTtitfe ^^^^ objectiug that the mines were under a common, 
 ^'"^' over which others had a right of common. Lord Eldon, 
 
 obserAdng on the improbability of disturbance, and that 
 nominal damages only would probably be given in the 
 event of an action, decreed specific performance; but the 
 case seems to be of very questionable authority : Sir 
 E. Sugden considers {q) that the decision must have 
 
 (m) Oshaldcston v. Askew, 1 Russ. 
 160, 
 
 (w) Green v. Pulsford, 2 Beav. 
 see p. 75. 
 
 (o) Grove v. Bantarrl, 2 Phill. 619. 
 {p) Sug. 519. 
 {q) Hid. 520.
 
 AS TO SPECIFIC PERFORMANCE. 527 
 
 turned on the iraprobahility of disturbance : but it may c^-^^'^^'- 
 reasonably be doubted, wlietlier the supposed absence of 
 any adequate motive for parties to assert their rights by 
 litigation constitutes that sort of improbability upon which 
 a purchaser is bound to rely ; however, in an earlier case, 
 the existence in the Crown of a right to the mines under 
 the estate, but without a reservation of a right of entry, 
 was held by Lord Hardwicke to be no objection to the 
 title ; it appearing that no search had been made for 
 mines for upwards of a century, and that probably no 
 mines existed, and that the Crown's right never had been 
 and probably never would be exercised (/•) ; so a right of 
 re-entry by the Crown, which the Court considers incapa- 
 ble of being enforced, is no objection to the title [s). 
 
 Where a necessary party to the title is, neither in Law Outstand- 
 
 J i. •'' ^ ing interest, 
 
 nor Equity, subject to the control of the vendor, but has ground for 
 an independent interest, and no eAddence is fm-nished of a against"^ 
 legal or equitable obligation on the part of such stranger 
 to concur in the sale, the Master should report against the 
 title {t) on the ground of such non-concurrence ; not that 
 a good title can be made upon the stranger concurring [u) : 
 but where such necessary party is bound to concur, as in 
 the case of a mortgagee, the Master may report in favour 
 of the title {w) : the report, however, should, it is con- 
 ceived, be, that a good title can be shown subject to the 
 incumbrance, and that the incumbrancer is bound to 
 
 (r) Lyddal v. Weston, 2 Atk. 19. 31,3; Seaman v. Vawdrey, 16 Ves. 
 
 The case seems to have been decided 393 ; Bainbridge on Mines, 41. 
 
 under the idea that the Crown, no {s) Flower v. Har/oj}]), 6 Beav. 
 
 right of entry being reserved, could 476. 
 
 neither work nor authorize others to {t) Esdaile v. Stephenson, 6 Mad. 
 
 work the mines, unless they were 366. 
 
 first opened by the owner of the soil; (m) S. C. as reported in Sug. 412. 
 
 but it seems doubtful whether this is (w;) 6 Mad. 367 ; Danl. Ch. Prac. 
 
 good law ; see Case of Mines, Plow. by H. 1169.
 
 528 
 
 AS TO SPECIFIC PERFORMANCE. 
 
 Ch. XVIII. 
 
 Report in 
 favour of 
 title, and no 
 exception, 
 decree for 
 plaintitf un- 
 less new 
 matter ap- 
 pear. 
 
 Exceptions 
 taken ; 
 cause should 
 also be set 
 down on 
 further 
 directions. 
 
 If excep- 
 tions al- 
 lowed, a 
 fresh re- 
 ference will 
 be directed 
 at vendor's 
 request. 
 
 concur, not that a good title can be made upon payment 
 of the incumbrance {x) . 
 
 If the report be in favoui' of the title, and be not 
 excepted to, a decree for specific performance -will be made 
 on the hearing on further directions, unless, in the interim, 
 any matter appear which afi'ects the title, in which case, 
 although the report have been confirmed, a reference back 
 to the Master will be ordered on motion (y) . 
 
 If exceptions are taken to the report in favour of the 
 title, the cause should be set doTVTi for hearing on further 
 directions at the same time with the exceptions {z), in 
 order that, if the exceptions are allowed and the vendor 
 do not request a reference back to the Master, the pur- 
 chaser may at once take a decree (a) : if, on hearing the 
 exceptions, the Court considers the report erroneous, on 
 the ground of a mistake by the Master as to the title 
 which the purchaser can require {b), or as to the sufficiency 
 of the evidence in support of the title (c), or as to the con- 
 struction of an instrument {d), the title will, at the ven- 
 dor's request, be again referred, in order that he may have 
 an opportunity of removing the defect : it was held by Sir 
 /. Wigram, V. C, in a recent case, that the reference back 
 is not a matter of course, but depends on the vendor 
 satisfying the Court that he has a fresh case to bring 
 before the Master (e) ; but in a later case before Lord 
 Cottenham, his Lordship laid down, as a general rule, that 
 
 (x) See Sug. 419 ; Magmnis v. 
 Fallon, 2 Mol. 575. 
 
 (y) Jeudwine v. Alcock, 1 Mad. 
 597. 
 
 {z) Sug. 412. 
 
 (a) See V. C. Wigram's remarks 
 in the judgment in Dawes v. Bettn, 
 12 Jur. 41G. 
 
 {b) Fildes v. Hooker, 2 Mer. ; see 
 
 p. 429. 
 
 (e) Andretc v. Andreio, 3 Sim, 
 390 ; Curling v. Flight, 2 Ph. 613. 
 
 (d) Egerton v. Jones, 3 Sim. 392, 
 409 ; 1 Russ. & M. 694 ; and see 
 Portman v. Mill, ibid. 696. 
 
 {e) Daives v. Belts, 12 Jur. 412 ; 
 the exceptions were overruled on 
 appeal, 12 Jur. 709.
 
 AS TO SPECIFIC PERFORMANCE. 529 
 
 no special case need be made by the vendor^ but that ch. xa-iu. 
 
 where the report is in favour of the title, and the Court 
 
 holds a different opinion, and he desires an opportunity of 
 
 making out a better title, the Court will deal with the 
 
 report in the view that the Master has not fully performed 
 
 the duty imposed on him, but has prematurely come to a 
 
 conclusion in favour of the title, and will therefore send it 
 
 back to him for further investigation ; that there is no 
 
 reason why the same practice should not prevail whether 
 
 the original reference be made on motion or by decree ; 
 
 but that, in both cases, if the vendor wishes for an 
 
 opportunity of making a better title, the Court should 
 
 give him the option of doing so, and only conclude the 
 
 matter when he says he can go no further (/) . Upon the 
 
 fresh reference, the purchaser seems not to be restricted to 
 
 his original objections [g). Exceptions, it appears, should 
 
 not be general, but should specify the objections to the 
 
 title {h). 
 
 If the exceptions are allowed, and no reference back be ^•{I'jy^jf.t 
 asked by the vendor, his bill Avill be dismissed at the hear- ""^^^'^• 
 ing; or, if the title be considered doubtful, the dismissal 
 may be without giving judgment on the exceptions (i) : 
 but the purchaser if plaintiff may in general elect to take 
 the defective title [k). 
 
 If all the exceptions are overruled, the purchaser cannot ^v^rmted"' 
 make other objections to the title (/), except, it is con- howfaniie- 
 ceived, in the case of fresh matter, which affects the title, other otjec- 
 
 ^ tions. 
 
 being discovered subsequently to the date of the Master s 
 report {in). 
 
 (/) Curling v. Flight, 2 Ph. 016 ; [i) Willcox v. Bcllaers, Turn. & 
 
 and see S. C, 12 Jur. 423; and see R. 491 ; Robinson v. Milner, 1 Ha. 
 
 Daives v. Belts, on appeal, 12 Jur. 578, n. 
 709. {k) Infra, 533. 
 
 {g) Fildes v. Hooker, 3 Mad. 193; (J) Brooke v. Anon. 4 Mad. 212. 
 
 Sug. 411. (?w) See Jeudwine v. Alcock, 1 
 
 (A) Flower v. Hartopp, 6 Beav. Mad. 597. 
 476. 
 
 M M
 
 530 
 
 AS TO SPECIFIC PERFORMANCE. 
 
 Ch. XVIII. 
 
 Eeport 
 against title, 
 and no ex- 
 ceptions — 
 bill dis- 
 missed on 
 motion. 
 
 Exceptions 
 taken and 
 allowed — 
 referen ce 
 back when 
 directed. 
 
 If no ex- 
 ceptions, 
 decree will 
 be made on 
 hearing, if 
 vendor can 
 
 If the report be against tlie title and be not excepted to^ 
 the vendor's bill may be dismissed with costs on motion {n) : 
 if exceptions are taken and are overruled, the Court, it 
 appears, will at once discharge the purchaser, without 
 motion (o). 
 
 If exceptions are taken to the report against the title, 
 and are overruled, the Court will sometimes send the case 
 back to the Master {p) ; but not, it is conceived, upon 
 mere speculation, nor unless the vendor can satisfy the 
 Court of the probability of the title being perfected {q) 
 ■within a reasonable time (r) ; and long pre\nous delay, of 
 course, could be a reason for less additional time being 
 allowed {s) ; " and the Court will not allow a seller to lie 
 h\, before the ]\Iaster, and then upon further directions, 
 attempt to make a title (^)" ; nor will it show any 
 favour to a vendor, who, or whose solicitor, has improperly 
 concealed a defect in the title {u) ; nor allow further time, 
 when, owing to the long interval which has elapsed since 
 the contract and the altered situation of the parties, sub- 
 stantial justice would not be done by decreeing specific 
 performance {w). 
 
 So, if, no exceptions being taken, the cause comes on for 
 further directions, or for original hearing if the reference 
 (in a suit commenced by bill) were made before hearing, 
 
 (n) Walters v. Pyman, 19 Ves. 
 351 ; Whitcomb v. Foley, 6 Mad. 3. 
 
 (o) Taylor v. Marlindale, 1 Y. & 
 C. C. C, 658. 
 
 (p) See Sidebotham v. Barrington, 
 3 Beav. 524 ; 4 Beav. 110 ; 5 Beav. 
 261 ; and see Fraser v. Wood, 8 
 Beav. 342 ; Smith v. Capron, 13 Jur. 
 148, and Chamberlain v. Lee, 10 
 Sim. 444 ; the Master may, without 
 any special order, receive further evi- 
 dence in support of the title ; Cot- 
 trell V. Watkins, 1 Beav. 366 ; Ttvy- 
 ford V. Trail, 3 Myl. & Cr. 645. 
 
 (q) See judgment of V. C. Wigram 
 in Dawes v. Belts, 13 Jur. p. 416. 
 
 (r) Fraser v. Wood, 8 Beav. 339 ; 
 and see Whittaker v. Whittaker,c\teA 
 10 Ves. 599, and Lechmere v. Brasier, 
 2 Jac. & W. 289. 
 
 (s) See Fraser v. Wood, supra. 
 
 {t) Esdaile v. Stephenson, Sug. 
 412. 
 
 (m) Dalby v. Pullen, 1 Russ. & M. 
 296. 
 
 (w) See Cowgill v. Lord Oxman- 
 town, 3 Y. & C. 369, 377.
 
 AS TO SPECIFIC PERFORMANCE. 531 
 
 and the vendor can satisfy the Covirt that he can remove ch.xvii i. 
 the objection on which the Master reported against the objectkmsr 
 title, — as where he can procure the concurrence of a party 
 having an interest, — specific performance will be decreed 
 without a reference back to the Master (.r) . 
 
 So if, the report being against the title, and there ^^'^l^^^f 
 being no exceptions, the purchaser moves that he may be f" p'^url™^'" 
 discharged from the contract, the vendor may show that mouon\obe 
 the title has been perfected subsequently to the report ^ ^ ^ ® • 
 e. ff., by a private Act of Parliament (?/) . 
 
 We have seen that, as a general rule, the purchaser may !'g"nejl!fi^'^'"'^ 
 insist upon a reference as to title ; and the Court will not reference of 
 tie him doA^ii to the objections raised upon the pleadings ; it maybe 
 he may, however, waive such prima facie right wholly or 
 in part ; and if he clearly rest his objection merely upon 
 what Lord Eldon describes as " one neat dry point," or, it 
 is conceived, upon a plurality of neat dry points, the 
 Com*t, being satisfied that no other question of title 
 remains open, will make a decree mthout a prior re- 
 ference {z) : but he vrill not be compelled to take a 
 defective title merely because, being plaintifi", he filed his 
 bill with notice of the defect (a) . 
 
 Where a purchaser was let into possession, and soon after- fs^emMj"' 
 wards received the abstract and retained it for four years 
 without objecting to the title, he was held to have waived 
 his right to a reference {b) ; but in a later case it was held ft!J^fgfe*a''t 
 that, even after great delay and acquiescence (there being fyrcidTo 
 
 1 tike cl63.rlv 
 
 no express waiver) , the Court will not compel the purchaser bad title. 
 to complete if the title is manifestly bad (c) . 
 
 (^■) Pafon V. Rogei-s, 6 Mad. 256 ; 272. 
 Dawes v. Belts, 12 Jur. 416. {b) Fleetwood v. Green, 15 Ves. 
 
 {y) Coffin V. Coojyer, 14 Ves. 205. 594 ; and see Margravine ofAnspach 
 
 (z) See Jenkim v. Hiles, 6 Ves. v. Noel, 1 Mad. 310. 
 65:i, 654, and V. C. Wigram's re- (c) Blackford v. Kirkpatrick, 6 
 
 marks in Lucas v. James, 7 Ha. 425. Beav. 232 ; and see Warren y.Rich- 
 
 (a) Stapylton v. Scott, 16 Ves. «»-rfso»i, You. 1. 
 
 M M 2
 
 533 
 
 AS TO SPECIFIC PERFORMANCE. 
 
 Ch. XVIII. 
 
 Decree for 
 specific per- 
 formance — 
 its form. 
 
 Plaintiff 
 may take a 
 decree, 
 adopting 
 parol va- 
 riation 
 
 According to the old practice^ there were two ways of 
 framing a decree in a suit for specific performance : the 
 one was to declare that the plaintiff was entitled to a spe- 
 cific performance if a good title could be sho\^^l, and then 
 to direct a reference as to the title ; the other, to refer the 
 title to the INIaster, and to follow up that direction by a 
 declaration that if a good title was shown the agreement 
 ought to be specifically performed {d) . The mere direction 
 of the reference, seems, however, to be an implied declara- 
 tion of the right to specific performance (e) : so that, on 
 the hearing on further dnections, the Court will not enter 
 upon any other defence set up by the answer (/) ; and 
 such a declaration seems to have been at one time not un- 
 fi'equently omitted {g) . The present practice, however, in 
 suits commenced by bill, and where, by reason of the con- 
 tract itself having been disputed, the cause is heard before 
 a reference to the Master, seems to be, to declare absolutely 
 that the plaintiff is entitled to a specific performance of 
 the agreement, and to refer it to the Master to inquire 
 whether a good title can be made ; not to declare that the 
 plaintiff is entitled, &c., if a good title can be made (h) : 
 and, in such a case, the Court, in directing a reference, 
 will not direct an inquiry as to when the title was first 
 shown (i) . We have already noticed the form of the order 
 of reference which, in a suit commenced by claim, takes the 
 place of the decree for specific performance on the original 
 hearing (k). 
 
 Where the agreement was in writing, and a parol varia- 
 tion, not set up by the answer, came out on the cross- 
 examination of the defendant's agent, who was one of the 
 
 {d) Per Lord Eldon in Stevens v. 
 Guppy, 3 Russ. p. 182. 
 
 (e) See Mole v. Smith, Jac. 495. 
 
 (/■) Le Grand v. Whitehead, I 
 Russ. 309. 
 
 {g) See Seton on Decrees, 210. 
 
 (h) Clive V. Beaumont, 1 De G. 
 & S., see p. 408 ; Gibbins v. North 
 Eastern Metropolitan Asylum, 11 
 Beav. see p. 5. 
 
 (0 s. c. 
 
 {k) Supra, p. 522.
 
 AS TO SPECIFIC PERFOllMAXCE. 533 
 
 plaintiff's witnesses, the Court seemed to consider tliat this Ch.xvi ii. 
 was a proper subject for inquiry before finally disposing §efJndanrs 
 of the case ; but, on the plaintiff consenting to adopt the ^^^^^' 
 parol variation as part of the contract, specific performance 
 was at once decreed with costs (/) . 
 
 The purchaser, it appears, may elect to take a defective ^^^^jf"'^" 
 title (m) : " the covenants being so framed as not to leave ^^''tive title. 
 the seller exposed to an action on account of the flaw : but 
 where the conveyance would be merely void, and might 
 embarrass persons claiming under the same title as the 
 seller,^' the purchaser seems to have no such right {n) . 
 
 We mav here remark, that a decree for specific perform- Decree for 
 
 " ' A i specific per- 
 
 ance, in a suit between vendor and purchaser, is no pro- noTar"to' 
 
 tection against the adverse claims of persons not parties to pe'rsons not 
 
 the suit (o) : except so far as that, if any particular question 
 
 of title be decided in favour of the vendor, such decision 
 
 forms a precedent which would probably be followed on a 
 
 future occasion. 
 
 Where the plaintiff in his bill offered to perform an fnoweiftr* 
 
 ambiguous agreement, '^ according to the true intent and according 
 
 . . , to tiiat con- 
 meaning thereof/' but uniformlv up to the hearing insisted stmction of 
 
 *= ^ ~ '^ ^ agreement 
 
 on his own construction, as the only contract between J^'^^j'^^'^,'^'^ 
 himself and the defendants, not offering to take up the P^c'^ated. 
 other construction which the defendants were at one time 
 willing to perform. Sir T. Plumer held the case to be per- 
 fectly different from one where the plaintiff calls upon the 
 Court to declare the true construction, submitting to per- 
 form according to the same ; and, his opinion being against 
 the plaintiff's construction, he refused to enforce specific 
 performance against the defendants according to the con- 
 struction contended for by their answer (p). 
 
 (/) London and Birmingfiam Rail- (n) Sug. 420. 
 
 way Company v. Winter, Cr. & Ph. (o) See Wood v. White, 4 Myl. & 
 
 57. C. p. 470. 
 
 (m) Bennett v. Fowler, 2 Beav. (^p) Clowes v. Hiyginson, 1 Ves. & 
 
 302. B., see ji. 535.
 
 534 
 
 AS TO SPECIFIC PERFORMANCE. 
 
 Ch. XVIII. 
 
 Defendant 
 may take 
 decree with 
 parol varia- 
 tions of 
 written con- 
 tract offered 
 by purchas- 
 er's bill. 
 
 Parol va- 
 riation 
 proved by 
 defendant — 
 no decree 
 for plaintiff; 
 but defend- 
 ant may 
 take decree 
 without 
 cross bill. 
 
 Decree 
 should 
 direct ac- 
 counts &c. 
 
 Decree in 
 vendor's 
 
 And where the plaintiflF by his bill, praying the perform- 
 ance of a written agreement, oflPers to the defendant the 
 benefit of certain subsequent parol variations, the Court 
 will decree specific performance with the variations, if the 
 defendant elect to take advantage of them ; or otherwise 
 of the original agreement {q) . 
 
 So, where the plaintiff by his bill offers to perform the 
 agreement [r), and the defendant proves a parol variation, 
 the Court will, at his request, without a cross bill, decree 
 specific performance with the variation, and even fix the 
 plaintiff with the costs {s) . 
 
 The decree should also, (unless the particular circum- 
 stances of the case render such a direction unnecessary,) 
 direct the usual accounts to be taken of the rents and 
 profits of the estate, and of interest on the purchase-money, 
 and should order payment of the balance due from the 
 purchaser, and the execution of the conveyance and 
 delivery of the deeds by the vendor {t) : and an account 
 may be decreed on the footing of the agreement ; although, 
 as in the case of a lease, the subject-matter of the contract 
 has expired by lapse of time before the hearing {ii) . 
 
 Where part of the subject-matter of the contract is 
 abstracted by the vendor, pendente lite, Equity will give 
 relief, even upon supplemental bill after a decree for 
 specific performance ; and, in order to assess the amount 
 of damages, will allow the plaintifi" to bring an action to 
 ascertain quantum damnificatus, and require the defendant 
 to admit the necessary facts [w) . 
 
 If, on a bill filed by the vendor, the purchaser be 
 
 (g) Robinson v. Paffe, 3 Russ. 
 114. 
 
 (r) 1 C. P. Coop, N. R. 353. 
 
 (s) Fife V. Clayton, 13 Ves. 546 ; 
 S.C.,\ C. P. Coop. N. R, 351 ; Gwynn 
 V. Lethhridge, 14 Ves. 585 ; see 
 Higginson v. Clowes, 15 Ves. 525. 
 
 {t) See Seton on Decrees, 212, 
 214. 
 
 (m) Wilkinson v. Torkington, 2 Y. 
 & C, Ex. 726. 
 
 {iv) Nelson v. Bridges, 2 Beav. 239, 
 244.
 
 tied by 
 Master. 
 
 AS TO SPECIFIC PERFORMANCE. 535 
 
 considered unable to pay what is due in respect of pur- ch. xviii. 
 
 chase-money^ interest and costs, the decree may direct that, d^recra^ 
 
 in default of payment, the Master do proceed to a sale payment of 
 
 of the premises for the piu'pose of satisfying the amount so ciency by 
 
 , .^ o purchaser. 
 
 due ; and that the deficiency, if any, be paid by the pur- 
 chaser (a?) : and the vendor can prove as a specialty 
 creditor {y) in respect of such deficiency {z) in a suit insti- 
 tuted for the administration of the assets of the purchaser ; 
 the amount to be found due upon the reference to the 
 Master constituting a judgment debt within the 1 & 2 
 Vict. c. 110, s. 13(a). 
 
 The usual direction as to the conveyance is that the Astocon- 
 
 '' veyance 
 
 Master settle it '' if the parties difier about the same^^ {b) : titd by^* 
 these latter words will, however, it seems, be omitted, if 
 an infant is a necessary party to the conveyance (c) ; or if 
 it will, by Statute, operate to convey the infant's estate 
 although he may not actually be a party {d) ; but not 
 merely on the ground of his being interested in the estate, 
 as in the case of an infant cestui que trust whose trustees 
 have power to sell and give receipts (e) . In one case the 
 decree went on to direct that the Master, in settling the 
 conveyance, should insert therein a particular clause in 
 favour of the plaintiflP (/) ; but it does not appear that the 
 Court will, in general, embarrass the Master with any 
 positive direction, or declaration as to the rights of the 
 parties (^) : if the decree omit the usual direction as to the 
 conveyance, the omission may be supplied on petition {h) . 
 
 (x) See Haydon v. Bell, 1 Beav. 267. 
 
 337, 343 ; Rome v. Young, 3 Y. & C. {d) Cheese v. Cheese, 15 L. J., N. 
 
 199 ; Duke of Beaufort v. Phillips, S., Ch. 28. 
 
 1 De G. & S. 321. (e) Richardson v. Ward, 11 Beav. 
 
 (y) S. C. 378. 
 
 {z) Rome v. Young, 4 Y. & C. 204. (/) Blakesley v. Whieldon, 1 Ha. 
 
 (a) Duke of Beaufort v. Phillips, 183. 
 
 1 De G. & S. 321. {g) Williams v. Teale, 6 Ha. 254. 
 
 {h) Seton on Decrees, 212. (A) Trevelyan v. Charter, 9 Beav. 
 
 (c) Calvert v. Godfrey, 2 Beav. 140.
 
 536 
 
 AS TO SPECIFIC PERFORMANCE. 
 
 Ch. XVIII. 
 
 Course of 
 proceeding 
 in Master's 
 olfice. 
 
 Draft laid 
 
 before 
 
 counsel. 
 
 Effect of 
 a])i)eal. 
 
 Engross- 
 ment of 
 draft, and 
 allowance 
 tlnreof by 
 Slaster. 
 
 If the matter comes before the Master, the practice, as 
 settled by the 76th Order of April, 1828 {i), is, for the 
 party entitled to prepare the conveyance to bring the 
 draft thereof into the Master's oflfice, and give notice of 
 his ha^dng so done to the other party ; and, at any time 
 within eight days after such notice, such other party may 
 inspect the same Avithout fee, and may take a copy thereof 
 if he thinks fit; and at or before the expiration of the 
 eight days, or such further time as the Master shall in his 
 discretion allow, such other party must either agree to 
 adopt the conveyance, or signify his dissent therefrom, and 
 thereupon he may deliver a statement in writing of the 
 alterations which he proposes in the draft of the convey- 
 ance. But if he deliver no such statement in writing, or 
 if the party bringing in the draft refuse to adopt the pro- 
 posed alterations, the Master proceeds to settle the con- 
 veyance, according to the practice of the Court. And in 
 case the Master adopts the proposed alterations, the costs 
 of the proceeding are borne by the party preparing the 
 draft. 
 
 The usual course is, for the Master to take the opinion 
 of some conveyancing counsel upon the draft conveyance 
 and objections, as in the case of an abstract {k) . 
 
 If an appeal is penchng, the Master must nevertheless 
 proceed to settle the conveyance, and only its execution 
 will be stayed (/) . 
 
 The draft, when settJed by the INIaster, is engrossed in 
 his office, and, according to the books of practice, "he 
 signifies his allowance of it by signing his name in the 
 first and last skins, in the following form, in the margin of 
 the indenture ; A. ^;. B. I approve of and allow this 
 
 (0 See Edwards' Orders, 27, and 
 Daniel's Ch. Prac. by H. 1191. 
 
 (k) Supra, p. 52.'? ; Dan. Ch. Prac. 
 by H. 1191; see Lojd v. Griffith, 3 
 
 Atk. 264, 2(;(). 
 
 (/) Gwynn v. Lethbridye, 14 Ves. 
 585.
 
 AS TO SPECIFIC PERFORMANCE. 537 
 
 Indenture^ being the same mentioned in my report dated ch. xviii. 
 the day of . He then signs a report or cer- 
 
 tificate of his having approved and allowed the engross- 
 ment, which must be filed in the usual way (m) :" but 
 upon this, as on other points, the practice of the several 
 Masters is believed not to be uniform. 
 
 Exceptions he to the Master's certificate (n) : but if no p^i!??*'"'?^ 
 
 i^ ^ ' •' to Master 8 
 
 exceptions are filed the conveyance must be executed by certiticate. 
 the parties (o) . 
 
 In various cases of necessary parties being under dis- undJr^f"*^*' 
 abilities, a conveyance might, luitil recently, have been ig^o! ^^ ^ ' 
 procured under the 1 Will. IV. c. 60, and 4 & 5 Will. IV. 
 c. 23 (p) ; and may now be procured under the 13 & 14 
 Vict. c. 60, the principal provisions of which [q) we have 
 already noticed if). 
 
 And by the 1 Will. IV. c. 65 [s), when any person ^^.X"^""''^ 
 having contracted to sell any land becomes lunatic, and a c. 65, incase 
 specific performance of the contract, either wholly or as vendor. 
 the same remains to be performed, has been decreed either 
 before or after the lunacy, the committee of the estate of 
 the lunatic, may, in his place, by direction of the Lord 
 Chancellor, signified by an order to be made on the 
 petition of the plaintiff or any of the plaintifi's in the suit, 
 convey the land in pursuance of the decree, to such person 
 and in such manner as the Chancellor shall direct ; and 
 the purchase-money, or so much thereof as remains 
 unpaid, is to be paid to the Committee (/) . 
 
 Two modes of proceeding might, until recently, have [^owTo^br^ 
 been adopted when a party refused upon order to execute whenparty 
 
 (m) Dan. Ch. Prac. by H. 1192, Hill on Trustees, 273, efseq. 
 citing 1 Turn. & V. 422. (?) See, in particular, sect. 30, 
 
 (m) Wakcman v. Duchess of Rut- supra, 280. 
 layid, 3 Ves. 501. (r) Supra, Ttl , et seq. 
 
 (o) 1 Dan. Ch. Prac. by II. 1192. (s) Which is not repealed by tlie 
 
 (p) See In re Lowe's estate, 2 Ph. 13 & 14 Vict. c. GO. 
 690; and on the Acts generally, see {t) Sect. 27.
 
 )38 
 
 AS TO SPECIFIC PERFORMANCE. 
 
 Ch. XVIII. 
 
 refuses to 
 convey. 
 
 Interest on 
 money re- 
 funded on 
 appeal, not 
 generally 
 allowed. 
 
 Decree dis- 
 missing 
 vendor's 
 bill— return 
 of deposit 
 when 
 ordered. 
 
 the necessary" assurance : tlie first under the 1 Will. IV. c. 
 36 {u) which authorized the Coui't to appoint one of the 
 Masters to execute the conveyance ; but only when the 
 recusant party had been in prison for two months {w) ; or, 
 secondly, the party ordered to convey might, upon his 
 refusal or default for twenty-eight days after tender of the 
 conveyance, be treated as a trustee, and a conveyance 
 might be obtained under the 1 Will. IV. c. 60, s. 8 {x) : 
 the new Trustee Act, repealing the 1 Will. IV. c. 60, 
 contains, as we have seen, an express provision autho- 
 rizing the Court to declare that any of the parties to a suit 
 for specific performance are trustees within the meaning of 
 the Act, and to make a similar declaration as respects 
 unborn persons in certain cases (y) ; and will probably, in 
 cases coming within its provisions, supersede, although it 
 does not repeal, the 1 Will. IV. c. 36. 
 
 We may here remark that where money has been paid 
 under a decree or order, which is reversed on appeal, 
 interest will not be allowed except by special direction {z) . 
 
 Where the vendor's bill is dismissed for want of title, the 
 Court will du'ect him, if he has received the deposit, to 
 repay it with interest (a) : or, if in the hands of the auc- 
 tioneer, AA^ould probably du'ect the vendor to concur with 
 the piu'chaser in an order for its payment {b) : but, in a 
 recent case, where the vendor's bill was dismissed on the 
 ground of laches, and without any decision on the question 
 of title. Sir J. Wigram, V. C, refused to order the return 
 of the deposit ; and intimated that such an order should 
 only be made in cases where the decree dismissing the 
 
 (m) See sect. 15, rule 15. 
 
 {iv) See 9 Beav. 275. 
 
 (x) See Warhurton v. Vaughan, 4 Y. 
 & C, Ex. 247 ; Thomas v. Gwynne, 
 9 Beav. 275. 
 
 {y) 13 & 14 Vict. c. 60, s. 30. 
 
 (r) Parker v. Morrell, 2 Ph. 4G9 ; 
 
 and see 3 Y. & C. 131. ' 
 
 (a) Hayes v. Bailey, cited Sug. 
 814 ; Lord Anson v. Hodges, 5 Sim. 
 227. 
 
 (i) Bryant v. Busk, 4 Russ., see 
 p. 6.
 
 AS TO SPECIFIC PERFORMANCE. 539 
 
 bill would entitle tlie purchaser to an injunction if tlie Ch. xviii. 
 vendor attempted to enforce liis legal remedies upon the 
 contract (c) : the return of the deposit cannot {d) be 
 ordered when the pnrchaser^s bill is dismissed ; but^ in a 
 recent case^ V. C, K. Bruce, in adhering to the rule, 
 refused the vendor costs_, on his declining to return the 
 deposit (e) . 
 
 If a bill is dismissed on grounds which would not in 
 themselves be a defence to an action at Law, it does not 
 appear to be necessary to express in the decree that the 
 dismissal is without prejudice to the legal remedy (/) . 
 
 (11.) As to costs. 
 
 In Equity, as at Law, the party who fails is, prima facie, general rule 
 liable to costs (q) : and, although the question of costs rests by unsuc- 
 
 . . cessful 
 
 entirely in the discretion of the Court [h) , yet it is for the litigant. 
 unsuccessful litigant to show, (if he can,) the existence of 
 circumstances sufficient to negative his prima facie lia- 
 bihty {i) ; and the present disposition of the Com-ts 
 appears to be, to adhere, with considerable strictness, to 
 the general rule. It was observed by Lord Cottenham, C, 
 in a recent case, " Parties may have more or less reason 
 for coming here ; but 'the question is, whether those who 
 are right, or those who are wrong, are to pay the costs of 
 their so doing. The rule I always act upon is, to order 
 costs to be paid by those who are wrong ^^ (/c) : 
 
 (e) Soiithcomb s. Bishop of Exeter, 463. 
 
 Ha., see p. 225. W Sug. 821 ; Gerahty v. Malone, 
 
 (d) Supra, 88. 1 H. L. C. 81. 
 
 (e) Gee v. Pearae, 2 De G. & S., («) Vancouver v. Bliss, ubi supra. 
 see 346. (*) Hunter v. Nockolds, 2 Ph. 
 
 (/) See Wedffwood v. Jdams, 8 545 ; and see Green v. Briffgs, 6 Ha, 
 Beav. 105. 633, and Earl Nelson v. Lord Brid- 
 
 (ff) Vancouver v. Bliss, 11 Ves., see port, 10 Beav. 305.
 
 540 AS TO SPECIFIC PERFORMANCE. 
 
 ch. xviii. The cases upon the subject may be conveniently clas- 
 sified as follows, Adz. 
 
 1st, Cases where the general rule, fixing the unsuc- 
 cessful litigant with costs, is merely allowed to operate. 
 
 2ndly, Cases where it is enforced with more than ordi- 
 nary stringency. 
 
 3rdly, Cases where it is modified, so as to deprive the 
 successful litigant of his costs, wholly or in part. 
 
 And 4thly, Cases where the successful litigant is wholly 
 or in part fixed with payment of costs. 
 SeraTruie ^^ to the Ist class of cascs. — A pui'chascr resisting spe- 
 to operate, cific performance, on grounds which the Court considers 
 clearly untenable, will not be relieved from costs because 
 he acted under counsel's opinion {I) ; or even upon the re- 
 commendation of the Master (m) : so where he is held by 
 his conduct to have waived the usual reference upon the 
 title (n), or any particular objection arising on the title (o), 
 and he has rested his defence on the question of title, the 
 decree against him will be with costs. So, where the 
 vendor's bill is dimissed merely for want of title, and the 
 title is clearly bad, the decree against him is with costs (jj) , 
 although he be merely a trastee for sale {q), or although 
 the title have become defective through the accidental 
 destruction of the deeds subsequently to the contract (r) : 
 so, where a purchaser had objected that a good title could 
 not be shown unless certain accounts were taken, and, 
 this being resisted, each party filed a bill for specific 
 
 (l) Maling v. Hill, 1 Cox, 186; and Noel, 1 Madd. 317. 
 see Firmin v. Pullin, 12 Jur. 410, (o) Burnell v. Brown, I J. & W. 
 
 where it would appear that a trustee 175. 
 
 acting under advice was nevertheless (;;) Walters v. Pyman, 19 Ves. 
 
 fixed with costs. 351. 
 
 (in) Earl Nelson v. Lord Bridpnrt, {q) Edward v. Harvey, G. Coop. 
 
 10 Beav. 305. 40. 
 
 (n) Fleetwood v. Green, 15 Ves. (r) Bryant \. Busk, 4 Russ. 1,5. 
 
 595 ; Margravine of Ansjmch v.
 
 AS TO SPECIFIC PERFORMANCE. 541 
 
 performance^ tlie Court, holding the purchaser to be right, Ct. xviii. 
 made a decree in tlie second suit, and gave him the costs 
 of both suits (s) . 
 
 As to the 2nd class of cases. — A vendor obtaining a generaT'"^"^^ 
 decree for specific performance has been held entitled to forced wuh 
 
 . 1 f> 1 1 1 • more than 
 
 costs on the special ground oi the purchaser having per- ordinary 
 
 stringency, 
 
 sisted in an objection to the title which he knew had been 
 decided against another purchaser in a former suit {t) ; so, 
 where a bill is dismissed on the ground of misrepresent- 
 ation {u), or fraud, or contains groundless imputations of 
 moral {;w) fraud against the defendant (<r), or where the 
 claim is dishonourable and contrary to moral equity (y), 
 or against a clear stipulation in the contract {z), the dis- 
 missal will be with costs : so, where the unsuccessful liti- 
 gant has acted fraudulently in the subject-matter of the 
 suit, or has acted vexatiously, and refused fair offers of 
 accommodation, the decree against him will generally be 
 with costs (a) . 
 
 As to the 3rd class of cases (b) . — A vendor obtaining a Cases where 
 
 /■ ' o general 
 
 decree, has been refused costs on the ground of his having ^^^^\^^ ™°Jg 
 unsuccessfally contended that the purchaser had waived un^uTc'e's^iui 
 his right to investigate the title (c) ; so, a vendor has been costs^wiioiiy 
 refused costs, where the purchaser's objection to the title, 
 although overruled, has been considered a fair objec- 
 tion [d], or has been occasioned by the vendor or his 
 
 (.?) Burton V. Todd, and Todd v. (y) Davis v. Symonds, 1 Cox, 402, 
 
 Gee, 1 Sw. 255, 262. 408, and other cases cited in Beames 
 
 {t) Biscoe V. Wilks, 3 Mer. 456. on Costs, 37. 
 
 (m) Buxton V. Lister, 3 Atk., see {z) Williams v. Edwards, 2 Sim. 
 
 387. 78, 83. 
 
 («') See the conclusion of V. C. («) Beames on Costs, 109, and 
 
 Wigram's judgment in Marshall v. cases cited. 
 
 Sladden, 7 Ha. 444. {b) Ibid. 39. 
 
 (.r) Beames on Costs, 109 ; Scott (c) M' Queen v. Farquhar, 11 Ves. 
 
 V. Dunbar, 1 Moll. 442, 4G0 ; Lang- 482 ; Sidebotham v. Barrington, 5 
 
 ley V. Fisher, 9 Beav. 90 ; see Glas- Beav. 261. 
 
 co^^ v.Zaw^, 2 Ph. 310, 322; Knight (d) Cox v. Chamberlain, 4 Ves. 
 
 V. Majoribanks, 2 Mac. & G. 16. 631 ; Staines \. Morris, 1 Ves. & B.
 
 542 AS TO SPECIFIC PERFORMANCE. 
 
 Ch. xviiT. solicitor (e) : so, where tlie title was not clear on tlie ab- 
 stract as delivered before bill filed [f], or the vendor has 
 refused to furnish necessary evidence in support of the 
 title, (although the purchaser's requisitions embraced un- 
 necessary evidence) {g). 
 
 So_, the dismissal of the vendor's bill has been without 
 costs, in cases where the dismissal was merely on the 
 ground of his own laches in applying to the Court [h), or 
 of the title being merely doubtful [i), or of the general 
 inaccuracy of the transactions relied on as constituting the 
 contract {k), or upon a ground of defence which the pur- 
 chaser did not resort to until after the institution of the 
 suit (/) : so, where a purchaser had, in the first instance, 
 by his acts, waived the time for completion, and had gone 
 on for some time inducing the vendor to incur expenses 
 to perfect his title, and suddenly, upon discovering that 
 vacant possession coidd not be given according to stipu- 
 lation, declined to complete (m) : so, according to Sir E. 
 Sugden, " if, after a bill filed for specific performance, the 
 plaintifl", in pursuance of a power in the instrument, de- 
 termines the contract, the bill will be dismissed without 
 costs" {n) : so, the Court has, by way of compromise, re- 
 fused to fix the vendor with costs, he on his part consent- 
 ing to give up his legal right of action under the agree- 
 ment (o) . 
 
 8 ; Aislabie v. Rice, 3 Madd. see 261 ; {k) Marquis TownsJiend v. Sta7i- 
 
 Thorpe v. Freer, 4 Madd. 466. groom, 6 Ves. see 341. 
 
 (e) See Fenton v. Browne, 14 Ves. (/) Winch v. Winchester, 1 Ves. & 
 
 144,150; Dffl^mv.Cojwe, 2 Russ. 175. B. 380; and see 3 Y. & C. 517. 
 
 (/) Anon. V. CoUinge, 3 Ves. & B. (w) Nokes v. Lord Kilmorey, 1 De 
 
 143, n. ; Wilson v. Clapham, 1 Jac. G. & S. 444; and see Deverell v. 
 
 & W. 36. LordBolton, 18 Ves. 505, 514; suj)ra, 
 
 {g) Neumll v. Smith, 1 Jac. & W. p. 203. 
 
 263. (m) Sug. 661, referring to PTes^erw 
 
 {h) Guest V. Homfray, 5 Ves. 824. v. Perrin, 3 Ves & B. 197. 
 
 (i) White V. Foljambe, 11 Ves. (o) Buxton v. Lister, 3 Atk. 387 ; 
 
 337,352; Willcoxv. Bellaers,Tura. and see 2 De G. & S. 346. 
 & Russ. 491.
 
 AS TO SPECIFIC PERFORMANCE. 543 
 
 So, a purchaser obtaining a decree for specific perform- ch. xviii . 
 ance, lias been refused liis costs, on the ground of the 
 inadequacy of the consideration [j)) : so, where a pur- 
 chaser's bill for the performance of a contract alleged to 
 arise out of correspondence, was dismissed on the ground 
 of the language being equivocal and not clearly amount- 
 ing to an agreement, costs were refused {q) : so, also, on 
 the ground of the defendant having in his answer alleged 
 fraud and circumvention, which he failed to prove (r), or 
 having set up a false defence which the plaintiif has been 
 obliged to disprove (s) : so, if the purchaser elect to have 
 his bill dismissed, upon its appearing that the vendor can- 
 not make a title, the present practice seems to be to dis- 
 miss the bill without costs {t) ; unless, perhaps (m), his bill 
 alleges that the vendor cannot make a title {w) . 
 
 And it has been held that, if a bill is correctly filed on 
 the authority of a reported decision, there being no autho- 
 rities in conflict with it, and such decision is reversed, 
 the plaintiff may thereupon, on motion, dismiss his bill 
 without costs [cc). 
 
 As to the 4th class of cases. — It not unfrequentlv hap- Cases 
 
 ^ J i: where, in 
 
 pens that the party obtaining a decree has been clearly ti°on'^of^^°' 
 in the wrong, during all or a part only of the litigation ; fucce^sfui'^' 
 and if so, he must, as a general rule, pay all or a pro- made'to pay 
 portionate part {y) of the costs of the suit : e. g., in an 
 exceptional case, where the plaintiff obtained a decree 
 not in accordance with the prayer of his bill {2), he was 
 made to pay the costs of the suit ; so, '' if a purchaser file 
 
 {p) Burroives v. Lock, 10 Ves. (tc) Nicloson v. Wordsworth, 2 Sw. 
 
 470. 365. 
 
 (g) Stratford v. Bosworth, 2 Ves. {x) Robinson v. Rosher, 1 Y. & C. 
 
 & B. 348 ; and see 6 Ves. 341. C. C. 7 ; see also, as to mutual mis- 
 
 (r) Thomas v. Phillipps, 1 1 Jur. take, Broxighton v. Lashmar, .5 Myl. 
 
 80, V. C. K. B. & Cr. 136. 
 
 (*) Field v.Churchill,i Jur. 739, C. (y) See Farrow v. ReeSyi Beav. 25. 
 
 (t) Maiden v. Fyson, 9 Beav. 347. {z) Mortimer v. Orchard, 2 Ves. 
 
 {u) See Sug. 822, n. (e). jun. 243.
 
 o44 AS TO SPECIFIC PERFORMANCE. 
 
 ch. XVIII. r^ ]y^\\ insisting that the vendor cannot make a title, lie 
 must pay the costs, vhether he accept or refuse the 
 title" (a) : so, if a purchaser, being a plaintiff and aware of 
 objections to the title, require a reference to the ^Master, 
 and, on the ^Master reporting against the title, agree to 
 waive the objections, he must pay the costs of the un- 
 necessary investigation {b) : so if, prior to the filing of the 
 vendor's bill, the contract was resisted merely on the 
 ground of want of title, and no title was shown before bill 
 filed, the plaintiff, although he obtained a decree, will have 
 to pay the costs up to the time when he showed a title {c) ; 
 and this, although the purchaser, by his answer, unsuc- 
 cessfully insist on the alleged illegality or abandonment of 
 the contract (d) ; or even the general costs of the suit {e), 
 except such costs as have Ijeen occasioned by improper 
 contentions or objections made or taken by the defendant 
 in the course of the suit (/) : so, where a vendor, when 
 before the Master, abandoned the ground on which he had 
 previously relied, but estabUshed his title on another 
 ground, and the Master reported generally in favour of 
 the title, the purchaser was allowed the costs of the 
 reference and the several applications to the Court (ff). 
 But the rule will not prevail where the purchaser, by 
 resisting the contract on grounds other than of title {k), or 
 by his improper conduct (i), or claim [k], has occasioned 
 
 (fl) Sug. 822, citing Nicloson v. (/) 5. C. 
 
 Wordsworth, 2 Sw. 305, but with a ((/) Fielder v. Higginson, 3 Ves. & 
 
 query. B. 142 ; Harrison v. Coppard, 2 Cox, 
 
 (*) Bennett v. Foivler, 2 Beav. 302. 318. 
 
 (c) Wikon V. Allen, 1 Jac. & W. (A) Croome v. Lediard, 2 Myl. & 
 623 ; Sug. 826. K. 293 ; Scoones v. Morrell, I Btav. 
 
 (d) Smith V. Leigh, Sug. 824 ; but 251 ; Taylor v. Broum, 2 Beav. 180; 
 the purchaser will not be allowed the but see Sug. 823. 
 
 extra costs occasioned by this unsuc- {i) Oxenden v. Lord Falmourh, 
 
 cessful defence, S. C. cited Sug. 826. 
 
 (e) Knight v. Harden, Beames on {k) Wyvill v. Bishop of Exeter, I 
 Costs, 38 ; Townsend v. Champer- Price, 292. 
 
 Twwne, 3 Y. & Coll. 528.
 
 AS TO SPECIFIC PERFORMANCE. 545 
 
 the litigation ; or where, insisting on other objections, he ch. xviii. 
 has not accepted the vendor's offer to procure evidence 
 which, if produced, would have perfected the title (/) : so, 
 if a purchaser file a bill for specific performance with an 
 abatement of purchase-money, the question of abatement 
 being the only one in dispute, if he fail upon this point the 
 decree for specific performance will give costs against 
 liim (m) : so, if the successful litigant introduce upon the 
 pleadings unfounded allegations affecting the character {n) 
 of his opponent, he will have to pay the costs thereby 
 occasioned (o) . But where the Court, merely on the 
 ground of the personal hardship of the case as against the 
 defendant, refuses to enforce specific .performance, and 
 dismisses the bill, it will not make him pay the plaintiff's 
 costs {p). 
 
 ^^^here a purchaser sets up a defence which prevents 
 the plaintifi* from obtaining the usual reference of title on 
 motion, and fails to estabhsh it, he may be at once directed 
 to pay costs up to and inclusive of the hearing, without 
 regard to the result of the reference {g) . 
 
 Where the defendant submits to the whole demand of defe*n'drnif° 
 the plaintiff, and to pay costs, he may at once stop all jUa^tlff's^ 
 further proceedings (?•) ; and, if the question of liabihty to 
 costs be the only one remaining in dispute, the proper 
 course, it appears, is, to apply to the Court by petition {s) : 
 and where a plaintiff omitted so to do, but brought the 
 
 (/) Long V. Collier, 4 Russ. 269. (y) Hi/de v. Dallaway, 4 Beav. 
 
 {m) Fetvster v. Turner, 6 Jur. 144, 606. 
 
 v. C. W. ; JF/iite v. Cuddon, 8 CI. (r) Damer v. Earl of Portarling- 
 
 & Fin. 766. ton, 2 Ph. 30 ; Sivell v. Abraham, 
 
 (w) See 7 Ha. 444. 8 Beav. 598, and cases there cited ; 
 
 (o) Wright v. Howard, 1 Sim. & Sawyer v. Mills, 1 Mac. & G. 390. 
 
 St. see 205 ; Bower v. Cooper, 2 Ha. (s) Sivell v. Abraham, uhi sujira ; 
 
 408; see Thomas ■v. Phillips, 11 Jur. Winter \. Vizitelli, 36 Leg. Ob. 53, 
 
 80, V. C. K. B. V. C. E. ; Price v. Corporation of 
 
 (p) Wedgwood \. Adams, 8 Beav. Penzance, 4 Ha. 506. 
 103. 
 
 N N
 
 546 
 
 AS TO SPECIFIC PERFORMANCE. 
 
 Ch. XVIII. 
 
 When de- 
 fendant dis- 
 clairnin); is 
 entitled to 
 costs. 
 
 Possession 
 — how far 
 important. 
 
 cause to a hearing, the Court refused him any costs 
 subsequent to the time at whicli his original demand had 
 been submitted to (/) . It has, however, been unwilhngl y 
 held by V. C. K. Bruce, that this course cannot, without 
 the defendant's consent, be adopted before answer ; inas- 
 much as he has a right to put in his answer, and read it 
 on the question of costs at the hearing (w) : and in a later 
 case {w) his Honour refused a similar application by a 
 plaintiff after answer; but merely on the ground of the 
 novelty of the proceeding. 
 
 In a late case {x), it was laid do^ii by Sir J. ]l iyrain, 
 Y. C, as a general rule, that where a defendant so dis- 
 claims as to show that he had no interest in the property 
 irhen the bill was jiled, he is entitled to his costs (y) : but 
 where lie is properly brought before the Court in respect 
 of an interest at the time the bill was filed, and then says, 
 " I now abandon my interest," it is a question of discretion 
 with the Court either to order the jjlaintilf to pay the 
 defendant's costs or not ; witli reference to the circum- 
 stances which may have rendered the suit necessary or 
 proper {z) . 
 
 As a general rule, a purchaser is less favoiu'cd on the 
 question of costs when he has taken possession of tlie 
 estate before the title is made out : but this docs not 
 apply to cases where, according to the contract, possession 
 is to be taken before a title is shown ; or where it is taken 
 at the instance of the vendor («) . A pm*chaser Avho, for 
 many years, retained possession without payment, and 
 
 (/) Swell V. Abraham, 8 Beav. 598; 95G. 
 
 and see Sentance v. Porter, 13 Jur. 
 980, V. C. W. ; and Woodtvard v. 
 Miller, 16 L. J., N. S., V. C. K. B. 
 16. 
 
 (m) Langham v. Great Northern 
 Railway Company, 1 De G. & S. 505. 
 
 {x) Gabriel v. Sluryis, 5 Ha. 101. 
 (y) See Glover v. Rogers, 11 Jur. 
 
 1000, R. 
 
 {:) See Ohrly v. Jenkins, 11 Jur. 
 
 1001, V. C. K. B. 
 
 (a) See Vancouver v. Bliss, 11 
 
 {le) M'Naughten V. Hasker, 12 Jur. Ves. 458 ; see 464.
 
 AS TO SPECIFIC PERFORMANCE. 547 
 
 refused either to vacate the contract or accept tlie title, Ch. xviii . 
 ■was fixed ^ith the costs of a suit by the vendor, although 
 the title was ascertained to be defective (b) . 
 
 Where the Coui't has actually dismissed a puchaser's fet^off"' °°' 
 bill with costs, it will not, on a subsequent apphcation, cos\T.*' 
 allow him to set off against them the deposit paid to the 
 vendor, but will leave him to his legal right (c) : but the 
 Court, as wc have seen, has refused to give costs unless 
 the vendor would return the deposit {d) . 
 
 "VMiere a defendant a purchaser asked for a case to be ^e^nt^oLTw! 
 sent to a Coiu't of Law, which was granted, and the opinion 
 of the Judges was against him, but ultimately the bill was 
 dismissed with costs upon another gi'oimd, he was allowed 
 his costs at Law as well as in Equity {e) : but, in other 
 cases, the costs of, what may be termed, collateral litiga- 
 tion, have either been refused, or have been thrown upon 
 the party failing therein, although held entitled to the 
 general costs of the suit (/). It would appear that, as a 
 general rule, such costs are not included in a mere order 
 for payment of the costs of the suit {(/) . 
 
 And it is laid down by Sir E. Sur/den, as a general rule, acTion^at 
 " that either party resorting to Law, where the Equity is ^*^- 
 against him, will be fixed with the costs of the action" {h) ; 
 but the prima facie right of the other party to such costs 
 may be lost by his neglecting to resort to Equity so soon 
 as the action is commenced at Law (i). 
 
 {b) King V. King, 1 Myl. & K. 442. dou-ne, 3 Y. & Col. see 528 ; Smith 
 
 {c) Williams v. Edwards, 2 Sim. v. Leigh, V. C. 1821, cited Sug. 
 
 84. 824. 
 
 {d) Gee v. Pearse, 2 De G. & S. (jj) Salkeld v. Johnston, 1 Mac. & 
 
 346. G. 533. 
 
 (e) Forbes v. Peacock, 12 Sim. (A) Sug. 829 ; Staines v. Morris, 
 
 528 ; the Vice- Chancellor's decision 1 Ves. & B. 16. 
 on the general merits was reversed by (i) Grover v. Hugell, 3 Russ. see 
 
 Lord Lyndhurst, 1 Ph. 717. 433. 
 
 (/) See Tounsend v. Champer- 
 
 N N 2
 
 548 
 
 AS TO SPECIFIC PERFORMANCE. 
 
 Ch. XVIII. 
 
 No interest 
 payable on 
 costj re- 
 funded. 
 
 Lastly, we may remark, that where cither party has 
 received costs under an order or decree which is subse- 
 quently reversed on appeal, he will not, in repaying such 
 costs, be compelled to pay interest upon them {k) . 
 
 (k) SmaU V. Atticood, 3 Y. & C. 131 ; and sec 2 Ph. 469.
 
 549 
 
 CHAPTER XIX. ^^^'^P-^^^- 
 
 AS TO SALES BY THE COURT OF CHANCERY. 
 
 1 . As to the time for, conduct of, and manner of the sale. 
 
 2. As to the rigJits and liabilities of the highest bidder, 
 after the sale but before confirmation of the Mastei^'s report ; 
 — and as to opening biddings. 
 
 3. As to confirming the Master's report ; — and as to the 
 purchase)'' s rights and liabilities after confirmation. 
 
 4. As to the investigation of title ; — payment and appli- 
 cation of purchase-money ; — possession ; — and preparation 
 and execution of the conveyance. 
 
 5. As to the purchaser's rights after completion. 
 
 6. As to the practice where the purchaser fails to 
 complete. 
 
 (1.) An estate when sold by the Court is usually sold faiesby^ 
 by pubHc auction ; the Court ^vill, however, at once accept I'^^^^^^^l 
 an advantageous ofifer actually made for the property (a) ; by'private" 
 or, if circumstances render such a course expedient, will 
 authorize the :Master generally to sell by private con- 
 tract {b) . 
 
 Where the decree in an administration suit directs the ^'^^f^'^^*' 
 Master to inquire and state what real estate passed by the ^,mf„'"tra- 
 will, and that the estates which he shall find to have t'°''''"^- 
 passed be sold with his approbation, he may, after having 
 
 (a) See I>OM'fe v.Z,Mry,4 Ha. 311. special petition; Bailey v. Todd, 1 
 The Master's report approving of Beav. 'Jo. 
 such a sale should be coufirmed ou {0) See Dau. Ch. l\ by H. 1216.
 
 550 
 
 SALES BY THE COrRT OF CHANCERY. 
 
 Chap. XIX. 
 
 Sale may 
 be made 
 under 3 & 4 
 Will. IV. c. 
 104, in suit 
 by person 
 claiming 
 under will. 
 
 Sale in suits 
 commenced 
 by claim. 
 
 Who may 
 bid. 
 
 informed himself what estates passed, proceed to sell them, 
 ■without making any previous report upon the preliminary 
 inquiry (c) : but where an infant is interested in the real 
 estate, it seems doubtful whether the Court will direct a 
 sale until the accounts have been taken and the cause has 
 been heard on further directions {d). 
 
 It has recently been determined, by V. C. Shadwell and 
 ^^ C. A'. Bruce, that the Court may sell the real estate of 
 a testator for payment of his debts tmder the 3 & 4 Will. 
 IV. c. 104, althou^'h tlie suit be instituted by a person 
 interested under the will instead of by a creditor (e). 
 
 Witli respect to suits commenced by claim, under 
 the Orders of April IKjO, it is directed (/), that "under 
 every Order uhereby any property is to be sold with the 
 approbation of the Master, the same is to be sold to the 
 best purchaser that can be got for the same, to be allowed 
 by the Master ; w/icrein {g) all proper parties are to join 
 as the Master shall direct." 
 
 As a general rule, no jjarty to the suit ought to bid for 
 the estate without the previous permission of the Court {h) ; 
 and the ])arty permitted to bid Mill not be allowed to 
 conduct the sale (/) ; and where, without such permission, 
 the party conducting the sale purchased, and under a 
 feigned name, the Court, even after the purchase had been 
 confirmed, ordered the estate to be put uj) ajrain at the 
 price for which he had bought it ; and if there should be 
 no higher bidding, he was to be held to his bargain {k). 
 
 (c) Dijken v. Taylor, 16 Sim. 563. 
 
 (</) See Bni/lir v.Jackxrm, 10 Sim. 
 167, where Sir L. Shadwell, V. C, 
 refused to insert a direction for sale 
 in the decree ; but, in Sir E. Sugden's 
 opinion, there is no invariable rule 
 upon the subject ; see Lynch v. Joyce, 
 3 Dru. & W. 349, 
 
 (e) Price v. Price, 15 Sim. 484 ; 
 Rodney v. Rodney, 16 Sim. 307 ; 
 
 DiiDiiiKj V. Ilendrmon, 2 Coll. 330. 
 
 (/; No. 17. 
 
 (y) Quare, in what ? The sale, 
 xemble. 
 
 (A) Elvcorthy v. BiUing, 10 Sim. 
 98 ; Sug. 66 ; but see Wihon v. 
 Greeiiuood, 10 Sim. 101, n. 
 
 (i) See Domville v. lierrinyton, 2 
 You. & C. Ex. 72.5. 
 
 (k) i>idny v. Ranger, 12 Sim. 118 ;
 
 SALES BY THE COURT OF CHANCERY. 
 
 551 
 
 A residuary legatee {I), or teuaut for life, or owner of a ^^p- ^^^- 
 reversionary interest in the estate, may, (subject to the 
 above restriction,) pui'chase on a sale by the Court ; and 
 Lord Eldon, although disappro\'ing of the nde, has referred 
 to its existence as free from doubt (w^) . In a late case, an 
 apphcation by an executor in an administration suit for 
 leave to bid, was refused in) . 
 
 In general, tlie plaintiff conducts the sale (o) ; in which ^cts sak. 
 case his solicitor is considered, as between the vendors and 
 the pm-chaser, to be the agent of all the parties to the 
 suit (yj) : the ^Master, however, may, if he consider it for 
 the benefit of the parties to the suit, give the conduct 
 of the sale to a person other than the plaintiff [q). 
 
 Where a suit is instituted to carry into execution the g^^'t-j^^^^ 
 trusts of an instrument which directs a sale upon the auTidpr' 
 occurrence of a specified event, and some of the parties by fixed for 
 interested in the proceeds of sale are not sui juris, the 
 Court has no power to direct a sale before the occurrence 
 of such event (r) : hoAvevcr injurious delay may be to the 
 property (.v). 
 
 Assuming the Court to have properly directed a sale, sa|^,;:;fy,^« 
 tlie same usually takes place before the :Master {t) : but he <=«"°t'-y- 
 may, if he shall think it for the benefit of the parties 
 interested, order the estate to be sold in the country, at 
 such place and l)y such person as he shall think fit {u) . 
 It is stated, in a work of reputation, that a London auc- 
 
 such an order may be brought under 1085. 
 
 the review of the House of Lords by (o) See Dan. Ch. P. by H. 1193. 
 
 a purchaser, although he is not a (p) Dalby v. Pullen, 1 Russ. & 
 
 party to the cause ; Bailey v. Maiile, Myl. 296. 
 
 7 CI. & Fin. 121, n. (y) D'-ron \. Pyner, 7 Ha. 331. 
 
 (/) Hooper V. Goodwin, G. Coop. {r) Blacklow v. Lau-s, 2 Ha. 40. 
 
 95, (s) Johnstone v. Baber, 8 Beav. 
 
 (wi) iieeTrilliatns'V.J/leuborouyh, 233. 
 
 Turn. & R. 76. (0 Dan. Ch. P. by H. 1193. 
 
 (n) Geldard v. Randall, 9 Jur. («) 75th Order of April, 1828.
 
 552 SALES BY THE COURT OF CHANCERY. 
 
 Chap. XIX. tioneer is never appointed for a country sale {w) ; but the 
 
 rule is not invariable {x) . 
 dutfes o^f The general rules, to which we have before adverted, 
 
 p^chaLrs'^ respecting the relative duties of intended vendors and 
 pnortothe p^g|jj^ggj.g pj^QP j-q ^hc coutract, apply as well to sales 
 
 under an order of the Court as to ordinary sales ; e. g., 
 
 puffing cannot be supported in the one case more than in 
 
 the other (y) . 
 TndS-^" The particulars and conditions are prepared- by the soh- 
 Jiep^'ation. citor of thc party conducting the sale {z) ; and, if of a 
 and nature sBCcial uatiirc, arc usually settled by counsel as in other 
 
 thereof. ^ ' , /> n n j -u xi. 
 
 cases; they must, however, be finally allowed by the 
 Master : the remarks ahcady made (a), upon particidars 
 and conditions, are generally applicable as well to sales 
 before a ^M aster as to ordinary sales ; it is not, however, 
 usual, on sales by the Court, to insert the common stipida- 
 tion as to the best bidder being the purchaser, or as to the 
 estate being put up again and resold in the event of there 
 being any dispute as to the last or highest bidding (b), nor 
 is it usual to require the payment of a deposit, except upon 
 the sale of stanchng timber separately from thc estate {c) ; 
 or to insert any stipulation that the purchaser shall sign 
 an agi'ccmcnt to complete the purchase {d) ; but he is, 
 independently of stipulation, bound to sign his name, 
 description, and place of abode, after the amount of his 
 bidding, on a copy of the pai'ticulars (e). If a reserved 
 bidding is considered desu'able, the insertion of a condition 
 to that effect must be authorized by the Court ; and the 
 proper course is, to apply by motion on petition (/) for 
 
 (m>) Dan. Ch. P. by H. 1194. (a) Ch. IV. 
 
 (:r) In Bracey v. Earl of Scar- (A) 3 Dav. Conv. 92. 
 
 6oroM<7A,V.C.W., July, 1849, estates (c) Dan. Ch. P. by H. 1197. 
 
 were sold at Bristol by Messrs. Fare- (</) See 3 Dav. Conv. 92. 
 
 brother and Co. [e) Dan. Ch. P. by H. 1197. 
 
 (y) Sug. G4. (/) See ^rooier V. CoWer, 3 Russ. 
 
 \z) Dan. Ch. P. by H. 1195. 3G9.
 
 SALES BY THE COURT OF CHANCERY. 553 
 
 sucli a direction^ when an order will be made for the chap. xix. 
 Master to fix a reserved biddings if he shall think fit {g) . 
 
 In a modern case, where a deposit was deemed desu'able, ^t^ft-* °^ 
 the Court refused to sanction its payment to the Master's meut re- 
 clerk, but allowed it to be paid to the solicitors of a "' 
 
 defendant in the cause, they undertaking by counsel to 
 accoimt for it, and the defendant submitting to be bound 
 by any future order which the Court might make respect- 
 ing it (A). 
 
 There are two advertisements of sale: each of which Advertise- 
 
 ' ments of 
 
 must be allowed by the Master, and inserted in the *''^^' 
 Gazette, and should also be inserted in other London, and, 
 (if the estate be in the country,) provincial newspapers ; 
 the time of sale is stated only in the second, or peremp- 
 tory advertisement, having been pre^^ously fixed by the 
 Master Avith the approbation of the parties to the cause; 
 the warrant to attend him for that piu'pose should be 
 served on the solicitors of all the parties (i) . 
 
 When the estate is sold by the Master, the sum of 5/., if fJP^°'^' ^^ 
 the entire purchase-money (whether the estate be sold in 
 one lot or several lots) does not exceed 2000/., or, if it 
 exceed that sum, then five shilling on every 100/., is pay- 
 able by such party as the Master shall direct {k) ; if the 
 estate is sold in the country, the auctioneer is usually 
 allowed, not a per-centage on the purchase-money, but a 
 fixed sum, the amount of which is previously settled with 
 him by the vendor's solicitor with the approval of the 
 Master (/) . 
 
 If an incompetent person, (as a lunatic,) is declared the Highest 
 
 ■^ ^ ^ bidding by 
 
 hiffhest bidder, the Com-t cannot hold the next bidder to ^ ?«'"*•'» H^- 
 
 o ' competent, 
 
 (g) Dan. Ch. P. by H. 1194 ; (i) See Dan. Ch. P. by H. 1195. 
 
 Shaw V. Simpson, cited 1 Jac. & W. (k) See Schedule to Orders of 2Ist 
 
 392 ; as to form of order, see Jervoise December, 1833; Re Allen's Charities, 
 
 V. Clarke, ibid. 391. 2 Myl. & K. 627. 
 
 (/() Lyon V. Colvill, 6 Jur. 680, (0 Dan. Ch. P. by H. 1194. 
 
 V. C. K. B.
 
 554 
 
 SALES BY THE COURT OF CHANCERY. 
 
 Chap. XIX. 
 
 or of insuf- 
 ficient 
 means — 
 effect of. 
 
 Bidding 
 after estate 
 bouslit in. 
 
 Resale of 
 lots re- 
 maining 
 unsold. 
 
 liis bidding, or even allow liim to stand as purcliaser with 
 the consent of the parties to the canse {m) ; in a recent 
 case, where the offer of the highest bidder was rejected, 
 under the idea that he was of insufficient means, and the 
 next bidder was declared the purchaser, the Coui-t did not 
 treat the sale as void, but seemed to consider that the 
 highest bidder shoidd have moved that he, instead of the 
 other, might be declared the pm'chaser (») . 
 
 Where a pm'chaser made an offer after the auctioneer 
 had declared the amount of the reserved bidding, it was 
 held that this was an offer respectmg which a special appli- 
 cation to the Court was necessary (o) . 
 
 Any lots remaining unsold may be again advertised for 
 sale {p). 
 
 Highest 
 bidder not 
 the pur- 
 chaser until 
 Master's 
 report con- 
 firmed — his 
 rights in 
 the interim. 
 
 (2.) As to the rights and liabilities of the highest bidder, 
 after the sale but before confirmation of the Master's 
 report ; — and as to opening biddings. 
 
 The fact of being, and being declared, the highest bidder, 
 does not at once invest such bidder with the character of 
 purchaser; nor does he assume that character until the 
 Master's report is made and confirmed as hereinafter men- 
 tioned : and it has been held by Sir E. Sugden, C, that the 
 Master has a discretion, and is not absolutely bound to 
 accept the highest bidder {q) : a loss by fire, even after 
 the report, but before confirmation, falls therefore' on the 
 vendors [r] : and a motion before confirmation, that the 
 best bidder shall complete, and pay his purchase-money, 
 by a certain day, will be refused {s) : but, if the interest 
 
 (m) Sug. 72 ; Blackbeard v. Lin- 
 diyren, 1 Cox, 205 ; sed qucere, whe- 
 ther the Court might not treat the 
 case as one of an offer to purchase 
 by private contract. 
 
 (w) Hughes v. Lipscomhe, 6 Ha. 
 142. 
 
 (o) Dowle V. Lucy, 4 Ha. 311. 
 {p) Sug. 66. 
 
 \q) In re Cosfello's, 2 J. & L. 244, 
 246, 249. 
 
 (r) Es parte Minor, 11 Ves. 559. 
 (s) Anon, 2 Ves. jun. 335.
 
 SALES BY THE COURT OF CHANCERY. 555 
 
 purcliasecl be in its o^tl nature determinable — e. g., ^ life ciiap xix. 
 estate^ — it seems that the report will be confirmed^ and he 
 must pay the purchase-money, although the event, upon 
 which the interest determines, occur before confirmation (/) : 
 so, if the report be confirmed, he will, in the case of a life 
 estate, be entitled to the intermediate income («). 
 
 The death of the prnxhaser before confirmation of the peathof, 
 
 ^ before con- 
 
 report, does not, however, vacate the sale, even although comract"^ 
 he never signed an agreement; sales by the Court, not enforced^ 
 being within the Statute of Frauds {iv) : but the contract pfesenta-^' 
 
 . . . - tives with- 
 
 cannot be eniorced against his representatives without out suit. 
 suit [x] : and it is the practice in such a case not to serve 
 the heir with notice of an application to open the biddings {y.) 
 
 If, before the report is confirmed absolutely, the pur- Subsaie at 
 chaser re-sell at a profit, the sub -purchaser becomes the fifi^atlou— 
 purchaser under the Court at the advanced price [z] : in beneflt'of 
 a late case, where the first purchaser had received the 
 advance in price and had absconded, the Court directed 
 the propert}^ to be resold ; reserving the question whether, 
 if it should not produce the sum offered by the sub-pur- 
 chaser, he should not be answerable to the Court for the 
 difference ; and reserving all questions of hability in the 
 original purchaser {a) . 
 
 Until the report is confirmed absolutely, the expectant ^°*Utfo"" 
 purchaser may lose his bargain by the Court opening, (as may'bf^ 
 it is termed,) the biddings ; that is, directing a re-sale, on sufffdent'^ 
 
 ,. . ^ .,,. J . 1-1 • advance iu 
 
 the appncation oi a person wimng to give a higher price price. 
 for the property; and this, although he be interested in 
 
 {t) Anson v. Towgood, 1 Jac. & 221. 
 W. 639 ; and see Vesey v. Elwood, 2 (.v) Lord v. Lord, 1 Sim. 503. 
 
 Con. & L. 47; 3 Dru. & W. 74, (y) Templer v. Sweet, 8 Beav. 
 
 overruling Vincent v. Going, cited 464 ; Lord Langdale's private opi- 
 
 ibid. p. 75. nion seems to have been that the htir 
 
 (m) Anson v. Towgood, 1 Jac. & should be served. 
 W. 637. (z) Hodder v. Ruffin, Taml. 341. 
 
 {w) See Jtt.-Gen. v. Day, 1 Ves. (a) Holroyd v. Wyatt, 2 Coll. 329.
 
 556 
 
 SALES BY THE COURT OF CHANCERY. 
 
 What ad 
 Vance is 
 sufficient 
 for the 
 purpose. 
 
 Chap. XIX ■ ^jjg proceeds of sale {b), or were present at the sale (c) ; 
 but, in the last case, the Court will regard the application 
 with some jealousy, and will require a larger advance than 
 under ordinary circumstances {d) : and they may be 
 opened a second time (e) on the application of the same 
 person (/). 
 
 The sufficiency of the advance is considered with refer- 
 ence to the entire purchase-money ; including the price of 
 timber, if valued separately from the estate [g) : as to what 
 constitutes sufficiency, no dejfinite rule seems to exist ; but 
 about ten per cent, seems to be the usual advance on small 
 sums (A) ; the Court has accepted an advance of 60/. upon 
 430/. {i), of 80/. upon 775/. {k), of 50/, on 395/. (/), and of 
 365/. on 7300/. (m) ; in a late case, the Court refused 300/., 
 but accepted 350/. on 3500/. {n) : and it seems that, what- 
 ever be its rate, an advance of less amount than 40/. will 
 be refused (o) ; but an advance of 105/., upon the aggre- 
 gate price of nine lots sold to the same purchaser, has 
 been accepted {p). In the case of property of fluctuating 
 
 {b) Hooj)er v. Goodwin, G. Coop. 677. 
 
 95. 
 
 (c) Thornhill v. Thornhill, 2 Jac. 
 & W. 347, overruling earlier cases 
 there cited ; see Sug. 88, n. 
 
 {d) Tyndale v. Warre, Jac. 525, 
 526 ; Lefroy v. Lefroy, 2 Russ. 606 ; 
 Shallcross v. Hibberson, 1 C. P. 
 Coop. N. R. 380. 
 
 (e) Scott V. Nesbit, 3 Bro. C. C. 
 475 ; Walond v. Walond, 8 Beav. 
 352. 
 
 (_/) Preston v. Barker, 16 Ves. 
 140 ; Sug. 85. 
 
 {g) Bates v. Bonnor, 6 Sim. 380. 
 
 {h) See Sug. 85 ; Dan. Cb. P. by 
 H. 1210; and 2 Coll. 537. 
 
 (i) Bourn v. Bourn, 13 Sim. 189. 
 
 (A) Connell v. Hardie, 3 You. & C. 
 
 {I) Hughes v. Lipscombe, 6 Ha. 
 142. 
 
 (rn) Domville v. Berrington, 2 You. 
 & C. Ex. 723 ; and see Walond v. 
 Walond, 8 Beav. 352. 
 
 {n) Holroyd v. Wyatt, 2 Coll. 
 537. 
 
 (o) See Farlotv v. Weildon, 4 
 Madd. 460; Gilbert v. Wetherell, 
 there cited ; Brookfield v. Bradley, 1 
 Sim. & St. 23; Ward v. Cooke, 9 
 Sim. 87 ; in Tempter v. Sweet, 8 
 Beav. 464, the advance was in fact 
 50/. instead of 30Z. ; see Reg. Lib. B. 
 1844, fo. 1224. 
 
 (jo) Humphries v. Roberts, 6 Jur. 
 680, V. C. K. B. ; vide injra, p. 
 558, n.
 
 SALES BY THE COURT OP CHANCERY. 557 
 
 value, as a colliery [q], (if in work or recently worked (r),) chap. xix. 
 the Court is generally unwilling to risk a resale, and has 
 refused an advance of 1150/. upon 8850/. {s) : but in a 
 recent case, where the property was held upon lives, the 
 Court evaded the difficulty by accepting an advance of 
 350/. on 5500/., on condition that the party opening 
 should be bound by his offer if no better bidding could be 
 enforced (/) . 
 
 Where several lots are purchased by the same person, ^^Pg 
 and the biddings are opened as to any of them, he may oJfany^of 
 give up those which he subsequently purchased, on satis- taken by 
 
 p. , 11111- n *'^^ same 
 
 tying the Court that he bought them m consequence oi purchaser 
 
 _ ox discharges 
 
 having purchased the prior lot (m) ; and a like indul- ^^e^lgj^ug 
 gence would probably be granted if, the biddings in re- 
 spect of a subsequent lot being opened, he could satisfy 
 the Court that he bought the prior lot with a ^dew of 
 purchasing such subsequent lot (w) : and a person seeking 
 to open biddings on some only out of several lots bought 
 by the same purchaser, will therefore be required to take 
 such other lots at their original price, if the purchaser 
 shall decline them, and they shall not fetch so much on a 
 resale {x). 
 
 The person wishing to open a bidding must, at his own proTee^d^ng 
 expense, apply for leave, by motion, notice of which must biddings. 
 be given to the parties in the cause, and the purchaser (y), 
 but not to the heir of a purchaser dying before confirma- 
 tion of the Master's report [z] : he cannot in one motion 
 include lots sold to separate purchasers (a) : if his offer be 
 
 {q) Williams v. Attenborough, Fielder, 1 Sim. & St. 386. 
 
 Turn. & Russ. 70. (w) See Sug. 89 ; Bx parte Tilsley, 
 
 (r) Jeffreys v. Smith, 1 C. P. Coop. 4 Madd. 227, n. ; et vide supra, 507, 
 
 N. R. 381. as to connecting lots. 
 
 (s) Williams v. Attenborough, {x) Bates v. Bonnor, 6 Sim. 380. 
 
 Turn. & Russ. 70. \y) Sug. 84 ; Dan. Ch. P. by H. 
 
 (0 Walond v. Walond, 8 Beav. 1214. 
 
 352 ; see Wren v. Kirton, 8 Ves. 502. (z) Tempter v. Sweet, 8 Beav. 464. 
 
 , (m) Price v. Price, and Fielder v. {a) Goodall v. Pickford, 6 Sim.
 
 558 
 
 SALES BY THE COURT OF CHANCERY. 
 
 Chap. XIX. 
 
 Deposit 
 required. 
 
 First pur- 
 chaser to 
 be paid in- 
 terest and 
 costs. 
 
 Biddings 
 may be re- 
 oijeued on 
 neglect to 
 pay in 
 deposit. 
 
 Resale. 
 
 accepted^ the order will, in general, be made on condition 
 that he pay, as a deposit, the amount of his advance [b) ; 
 and this he must do at his own expense {c) : however, in a 
 recent case, where an advance of 7000/. was offered upon 
 27,000/., Lord Langdale allowed the biddings to be opened 
 on payment into Court of only 3400/. {d) : he must also 
 pay to the first purchaser interest, at four per cent., on 
 such part of his purchase-money as may have lain dead (e) ; 
 and his costs, including any costs which he himself paid 
 on opening former biddings (/), and also, it would seem, 
 (although no special directions will in general be given {g),) 
 his or his agent's costs of a journey to the estate {?i) : and 
 where property which had been sold in several lots was 
 directed to be resold in a single lot, the Court, under the 
 special circumstances, directed that the person opening 
 the biddings should pay to the purchasers their expenses 
 of surveying the estate {i) . 
 
 If the person obtaining the order neglect to draw it up 
 and pay the deposit, any other person may, upon notice to 
 him, move to open the biddings {k) . 
 
 The order being obtained and drawn up, and the deposit 
 paid, the estate will then be resold, and the proceedings 
 on the resale will be similar to those on the original 
 sale (/) ; it appears doubtful whether the estate can be 
 re-allotted without a special order (m), made on special 
 reasons (n). 
 
 379. In Humphries v. Roberts, 6 
 Jur. 680, the nine lots appear to have 
 been bought by the same purchaser ; 
 see Registrar's Minute Book, Trin. 
 T. 1842, fol. 258. where the case is 
 entered as Jones v. Williams, 
 {b) See Juon. G Ves. 513. 
 
 (c) Sug. 84. 
 
 (d) Manners v. Furze, 17 L. J., 
 N. S. Ch., 485, R. 
 
 (e) Re Birch, Sug. 85. 
 
 (/) Bates X. Bonnor, 6 Sim. 382. 
 
 ((/) See Anon. 2 Ves. jun. 286. 
 
 (h) S. C. ; and see note to Farluw 
 V. Weildon, 4 Madd. 461. 
 
 (0 Watts V. Martin, 4 Bro. C. C. 
 113, Belt's edition. 
 
 (A) Gibbons v. Howell, 4 Madd. 
 52. 
 
 (I) Dan. Ch. P. by H. 1215. 
 
 (m) Ibid. ; and compare Sug. 87. 
 
 (w) Ward v. Cooke, 9 Sim. 87;
 
 SALES BY THE COURT OF CHANCERY. 559 
 
 Tlie first purchaser is entirely discharged by the order chap. xix . 
 opening the biddings (o) . ch'aser^dis- 
 
 If. upon a re-sale, the person opening the biddings be order 
 
 opening 
 
 outbid^ he is, in the absence of any special agreement biddings. 
 
 Pgfsod 
 
 with the Court (p), discharged from his offer (q), and opening 
 
 biddings if 
 
 may reclaim his deposit, but without costs {r), although outbid 
 the price of the estate has been more than doubled by ^^-^^^^'g^^ 
 the re-sale (s) : but such costs (t) , and also interest at 4/. when m- 
 
 ^ ' ' ^ ' ' titled to 
 
 per cent, on the deposit {u), have been allowed where the ^^^^s. 
 biddings have been opened merely for the benefit of the 
 parties interested in the proceeds of the estate. 
 
 A person opening biddings in a fictitious name, will be bidcUngf in 
 compelled to take the estate at the price at which he name. 
 opened them {w), if, on a re-sale, no better ofier is made 
 and can be enforced {x) . 
 
 (3.) As to confirming the Master's report of the purchase ; 
 — and as to the purchaser' s rights and liabilities after 
 confirmation. 
 
 The person who eventually is the highest bidder, and proceeding 
 who wishes to complete his purchase, must, at his own chaser to 
 expense, procure, file, take an office copy of, and apply to wasters 
 the Court, (either by motion, or petition of course at the 
 Rolls,) to confirm, the Master's report of his being the 
 best bidder [y] ; whereupon an order nisi is made, con- 
 firming the report unless cause be shown within a specified 
 
 and see Humphries v. Rolerts, 6 Jur. Ves. 214. 
 
 680, supra, p. 558. {t) S. C. ; Owen v. Foulks, 9 Ves. 
 
 (o) See Daa. Ch. P. by H. 1212. 348; West v. Vincent, 12 Ves. 6; 
 
 (yo) See Walond v. Walond, 8 Chapman v. Fowler, 3 Ha. 577. 
 
 Beav. 352. (m) Filder v. BelUngham, 1 Coll. 
 
 {q) See 5. C, and Williams v. At- 526 ; Gravenor v. Miles, 8 Jur. 838, 
 
 tenborough, Turn. & R. 77. V. C. K. B. 
 
 (r) Rigby v. M^Namara, 6 Ves. {w) Molesworth v. Opie, 1 Dick. 
 
 466 ; Trefusis v. Clinton, 1 Ves. & 289. 
 
 B. 361. (.r) Sug. 88. 
 
 (s) Earl Macclesfield v. Blake, 8 {y) Dan. Ch. P. by H. 1199.
 
 560 
 
 SALES BY THE COURT OF CHANCERY. 
 
 Chap. XIX. 
 
 After con- 
 firmation, 
 purchaser 
 jn'imdfacie] 
 entitled to 
 estate sub- 
 ject to pay- 
 ment of 
 price. 
 
 time after service : he must then, at his own expense, pro- 
 cure an office copy of such order, and, at the expiration of 
 the time therein limited, (but not before, even with con- 
 sent {z),) apply to the Court for an order confirming the 
 report absolutely; which order is made, of course, on an 
 affida\dt of service of the order nisi, and certificate of no 
 cause having been shown («) . No notice of either appli- 
 cation is required {b), but the second order can be made 
 only on a seal day {c) . He should not procure the second 
 order while under notice of an apphcation to open the 
 biddings (d) ; but the order, if so obtained, must be dis- 
 charged before the biddings can be opened (e) . 
 
 After the report is confirmed absolutely the purchaser 
 becomes the owner of the estate, subject to payment of 
 the purchase-money, and is not liable to have the biddings 
 opened on the mere ground of advance in price (/), or of 
 negligence, surprise, &c., on the part of the vendors {(/), 
 or of mistake on the part of an intended bidder (/i) ; but 
 only on the gromad of fraud or misconduct in the pur- 
 chaser, or of his fiduciary character, or of some fraudulent 
 negligence in another person, — e.g., the agent for sale, — 
 of wliich it is against conscience that the purchaser should 
 take advantage (i) : he is also liable to any loss which may 
 happen in connection with the estate ; as, in a recent case, 
 the expenses of making good damages caused to adjoin- 
 
 (z) Vernon v. Thellusson, 10 Beav. 
 452. 
 
 {a) Dan. Ch. P. by H. 1199; Sug. 
 70. 
 
 {b) Ibid. 
 
 (c) Robertson v. Skelton, 10 Beav. 
 199 ; this is an exception from the 
 general practice as to motions of 
 course. 
 
 (rf) Vansittart v. Collier, 2 Sim. & 
 St. 608 ; Watson v. Brickwood, there 
 cited. 
 
 (e) Vansittart v. James, 1 C. P. 
 Coop. N. R. 379. 
 
 (/) Morice v. Bishop of Durham, 
 11 Ves. 57; White v. Wilson, 14 
 Ves. 151 ; Fergus, Executors of, v. 
 Gore, 1 Sch. & Lef. 350. 
 
 (g) See 14 Ves. 153. 
 
 (A) Jnon. 1 Ves. jun. 453. 
 
 (i) See Morice v. Bishop of Dur- 
 ham, 11 Ves. 57; and, as to fraud, 
 see cases cited, Sug. 87.
 
 what terms. 
 
 SALES BY THE COURT OF CHANCERY. 561 
 
 ing property by the fall of the houses which he had pur- Chap. xix. 
 chased [k). 
 
 He may apply by motion, on notice, for leave to pay his to Mv^in^ 
 pm'chase-money into the Bank, and to be let into posses- chase'-'^ 
 siou ; or, if incumbrances appear m the report, or, [semble) to discharge 
 it not SO appearmg, the same are known to exist, and all brances. 
 parties to the suit are sui juris and agree to their dis- 
 charge, for leave to pay them off out of the purchase- 
 money, and to pay in the balance (/) : the payment, how- 
 ever, must be an entire payment, although the lot be sold 
 to joint pui'chasers (m) : where interest is payable, the 
 same must be paid in full without deducting the income 
 tax [n] . 
 
 The Court will, either before or after the report is con- Substitu- 
 ^ •*■ tion ot pur- 
 
 firmed, discharge the purchaser and substitute any other [^wed^ on 
 
 person (o), upon his paying in the entire purchase-money, 
 and upon an affidavit that there is no under-bargain [p) ; 
 and such an order has been made where the first pur- 
 chaser, after confirmation of the report, had agreed in 
 writing to sell the property, and had since died, and his 
 heir was abroad ( q) : and, where the same motion asks for 
 such substitution and for leave to pay in the money and 
 be let into possession, since no additional costs are in- 
 cirrred by the parties to the cause than would have been 
 incurred on the usual motion to pay in purchase-money, 
 no costs will be given {r) . 
 
 {k) Skelton v. Robertson, 14 Jur. 12 Beav. 43. 
 323. {o) See Sug. 66. 
 
 (/) Dan.Ch. P.by H. 1202; Sug. (jo) Riyly \. Macnamara, 6 Ves. 
 
 72. 515 ; Vale v. Davenport, 6 Ves. 615 ; 
 
 (»w) Darkin v. Marye, 1 Anst. 22. and see Miller v. Smith, 6 Ha. 609. 
 
 (n) Holroyd v. Wyatt, 1 De G. & {q) Pearce v. Pearee, 7 Sim. 138. 
 
 S. 125; Dawson v. Dawson, 11 Jur. (r) Christian v. Chambers, 4 Ha. 
 
 984, V. C. E. ; Humble v. Humble, 307. 
 
 O O
 
 563 
 
 SALES BY THE COURT OF CHANCERY. 
 
 Chap. XIX. 
 
 Abstract— 
 and title. 
 
 Costs of 
 reference. 
 
 (4.) As to the investigation of the title ; — payment and ap- 
 plication of purchase-money ; — possession ; — and pre- 
 paration and execution of the conveyance. 
 
 Delivery of the abstract may, if necessary, be compelled 
 by an order obtained on motion {s) ; and, if dissatisfied 
 Avith the title shown thereby, the purchaser may procure 
 an order that the title be referred to the ^Master ; upon 
 ■which reference the proceedings will be similar to those in 
 a suit for specific performance {t) : contrary to the rule 
 which prevails in ordinary sales, the Court will compel the 
 purchaser to take an equitable title (m) ; but only where 
 the legal estate is outstanding without any claim of 
 interest on the part of the person in whom it is vested {w) ; 
 nor wdU it compel him to take a doubtful equitable 
 title [x) ; nor, perhaps, where there is material eiTor in the 
 decree, to wait until the same is rectified (y) . In a late 
 case, where a purchaser had accepted the title and paid in 
 his purchase-money, he was discharged from the contract 
 upon a deed being discovered which showed that the plain- 
 tiffs could not make a title to more than a moiety of the 
 estate {z) : but a pui'chaser, who, having discovered a sup- 
 posed defect in the title, buys in the interest of the party 
 who alone could take advantage of it, will not be allowed 
 the benefit of the general rule as to doubtful titles («) . 
 
 It is stated by Sir E. Sugden [b) , that, in every case, the 
 purchaser is entitled to the costs of the motion for a 
 
 (s) Dan, Ch. P. by H. 11G8. 
 
 (0 Ibid. 1200. 
 
 (m) 14 Sim. 312; and see Sug. 
 525. 
 
 (w) Craddock v. Piper, 14 Sim. 
 see p. 312 ; and see 3 Ves. 23. 
 
 {x) Marlow v. Smith, 2 P. Wms. 
 201. 
 
 (y) Lechmere v. Brasier, 2 Jac. & 
 
 W. 287 ; but see Sherwood v. Bever- 
 idge, 13 Jur. 1042, V. C. K. B. 
 
 {z) Wardv. Trathen, 14 Sim. 82; 
 S. C. 8 Jur. 303. 
 
 (a) Sheppard v. Doolan, 3 Dru. & 
 W. 1. 
 
 {b) Sug. 76, citing Camden v. 
 Benson, 1 Keen, 671.
 
 SALES BY THE COURT OF CHANCERY. 563 
 
 reference of title, and to tlie costs of that reference : it chap. xix. 
 appears, however, from a recent case {c), that the decision, 
 upon which the above proposition was founded, is mis- 
 reported ; and that the Court only held that the purchaser 
 was not liable to pay costs, on the Master reporting in 
 favour of the title : if, however, the title were made 
 out before the Master, on grounds not appearing on the 
 abstract, he would be entitled to receive costs {d) . If the 
 title prove bad, the purchaser is entitled to receive his 
 costs, charges, and expenses, out of the fund in Court (if 
 any) (e), or, if there be none, from the plaintiff, who may 
 recover them in the suit (/) : it is said to have been held 
 by Sir /. Leach that, where exceptions are allowed to the 
 Master's report in favour of the title, the Coui't wall not 
 thereupon direct that the purchaser be discharged and his 
 costs be paid, but that some specific application must be 
 made for the pm'pose {ff). And it appears that, where the 
 title is decided to be bad, the purchaser must be actually 
 discharged by order, before there can be a resale {h) . 
 
 Where the sale has taken place under circumstances 
 which, in the case of an ordinary sale, would be a defence 
 to a suit for specific performance, except with a variation, 
 but would not be a ground for rescinding the contract, the 
 Court, as the property must be sold, is obliged to decide 
 whether the sale is to be carried into effect, or the pro- 
 perty is to be resold : but, so far as possible, the rules 
 which regulate such cases between ordinary vendors and 
 
 (c) See Floiverv.Hartopp,SBea.v. 8 Sim. 71; Calvert v. Godfrey, 6 
 
 200. Beav. 97. 
 
 {d) Fielder v. Higginson, 3 Ves. (/) Berry v. Johnson, 2 Y. & C. 
 
 & B. 142 ; the purchase in which Ex. 564, 565 ; Smith v. Nelson, 2 
 
 case seems to have been made under Sim. & St. 557. 
 a decree; see 2 Sim. & St. 117. (g) Hide v. Hide, 1 C. P. Coop. 
 
 (e) Reynolds \. Blake, 2 Sim. & St. N. R. 379. 
 117; Att.-Gen. v. Corp. of Newark, (h) Williams v. JVace, ibid. 
 
 O O 2
 
 564 
 
 SALES BY THE COURT 0¥ CHANXERY. 
 
 Chap. XIX. 
 
 Purchase- 
 money may, 
 under spe- 
 cial circum- 
 stances, be 
 paid in 
 without 
 accepting 
 title. 
 
 As to its 
 application 
 and dis- 
 tribution. 
 
 purchasers >^ill be adapted to purchases under orders of 
 the Court (i). 
 
 Although the practice has varied {k), it is now clearly 
 the rule of the Courts that, on a special case, as where the 
 purchaser is entitled to reheve himself from paying in- 
 terest, the Court will receive the pm-chase-money on his 
 apphcation, without his accepting the title (/) : but the 
 order will not be made except in a special case (m) ; nor 
 will it be extended so as to let him into possession (») : 
 and where a purchaser, without the authority of the Court, 
 enters into possession, although with the consent of the 
 vendor's solicitor, he will be held to have accepted the 
 title (o), and will be at once ordered to pay in his pur- 
 chase-money (p). 
 
 ^Tien the purchase-money is paid into Court, it will 
 not, ^dthout the purchaser's consent, be applied in dis- 
 charge of incumbrances, on the ground of his delay in 
 preparing the di-aft conveyance {q) : it is, however, usual, 
 upon pajdng in the money, expressly to ask that it may 
 not be paid out again without notice to the purchaser ; an 
 order to which effect prevents the distribution of the fund 
 without the pm-chaser's consent given in Court, or upon 
 his non-appearance and an affidavit of his having been 
 served with a copy of the order for setting down the cause 
 on further directions, or of the petition for distribution (r) ; 
 
 (i) Alvanley v. Kinnaird, 2 Mac. 
 & G. 1, 8. 
 
 {k) See Sug. 73 ; Deyining v. Hen- 
 derso)i, 1 De G. & S. 689 ; and 
 Mutter V. Marriott, 10 Beav. 33. 
 
 {i) Per Lord Cottenham in De 
 Visme v. De Visme, 1 Mac. & G. 
 344 ; Hindle v. Dakins, 1 C. P. Coop, 
 N. R. 378 ; Morris v. Bull, 1 De G. 
 & S. 691, n. 
 
 {m) Ouseley v. Anstruther, 11 
 Beav. 399. 
 
 (m) Hutton V. Mansell, 2 Beav. 
 260; Butter v. Marriott, 10 Beav. 
 33 ; Dempsey v. Dempsey, 1 De G. 
 &S. 691, 
 
 (o) Wilding v. Andrews, 1 C. P. 
 Coop. N. R. 380. 
 
 (jo) S. C. ; and see Anon, cited 
 Sug. 74. 
 
 {q) Bevan v. Bevan, 1 C. P. Coop. 
 N. R. 381, 
 
 (r) Dan, Ch. P. by H. 1203.
 
 SALES BY THE COURT OF CHANCERY. 565 
 
 in a late case Lord Langdale appears to have held that^ chap. xix. 
 although the estate was sold for payment of debts^ the 
 Court ought not to distribute the fund until an effectual 
 conveyance could be made to the purchaser [s) . 
 
 We may here observe that an incumbrancer consenting ^t^tris^n- 
 to a sale in an administration suit is entitled to be paid his *^"™ ^"^^ ■ 
 principal^ interest, and costs, out of the purchase-money, in 
 priority to the costs of the plaintiff in the cause (/) ; and, 
 as a general rule, a decree for sale of an incumbered 
 estate does not, of itself, alter the rights of the parties ; so 
 that where estates subject to numerous and complicated 
 incumbrances were sold, by consent, it was held that to 
 authorize payment of the costs of sale in the first place out 
 of the general fund there should have been a special 
 direction in the decree ; and that, there being no such 
 direction, the money arising from the sale of each estate 
 ought to be treated as the estate itself would have been ; 
 and that the mortgagees ought to be paid their principal, 
 interest, and costs, according to their respective priori- 
 ties [u) : but where a first mortgagee with power of sale 
 unnecessarily files a bill praying a sale, subsequent in- 
 cumbrancers, although they consent to the sale, are en- 
 titled to their costs out of the purchase-money, although 
 it be insufficient to pay off the first charge {tv) . 
 
 If the purchaser, before completion, is served with a ^^ts^^ap 
 petition or motion for payment of the purchase-money out peduol ?br 
 
 p /-( 1 • • 1 n 1 • n • its distribu- 
 
 oi Court, he is entitled to his costs oi appearing on the tion, wUea 
 
 / . . allowed. 
 
 apphcation, although he make no opposition (^). 
 
 If the money has been invested on his application, he 
 
 (s) Heming v. Archer, 9 Beav, (m) Wild v. Lockhart, 10 Beav. 
 
 366 ; see and consider Morris v. 320 ; and see Aldridge v. Westbrook, 
 
 Clarkson, 3 Sw. 558, and other cases 5 Beav. 188. 
 cited in reporter's note, et quare. {w) Cooke v. Brown, 4 Y. & C. 
 
 (/) Hejmorth v. Heslo]), 3 Ha. 227. 
 485 ; and see Tijjjnng v. Power, 1 (a) Bamford v. Watts, 2 Beav. 
 
 Ha. 405. 201. ,.;.
 
 566 SALES BY THE COURT OF CHANCERY. 
 
 Chap. XIX. ixLUst, if the purchase is rescinded, take the stock, notwith- 
 
 atpuT'^*^ standing any variation in the funds (y). 
 ques^he^' Whcrc the conditions of sale are silent as to the time 
 
 proceeds of when hc is to have possession, and as to interest upon the 
 
 investment 
 
 if contract purchasc-moncv, the rule of the Court is, that he shall he 
 
 rescinded. ^ " ' 
 
 Possession- let into posscssiou from the quarter-day preceding the 
 
 from what 
 
 time pur- confirmation absolute of the Master's report of his bemg 
 
 chaser is i. <-> 
 
 entitled to. j.^^ purchaser, he paying his purchase-money into Coui't 
 before the following quarter-day {::) ; and although he may 
 not pay his purchase-money into Court until the quarter 
 is nearly expu*ed, yet he will not be liable to pay in- 
 terest («) unless the estate be a reversion, in which case 
 interest is payable fi-om the date of the purchase (6) ; if 
 he delay payment, he will take the rent only from the 
 quarter-day preceding payment (c) : nor will he be alloM^ed 
 the rents from an earlier day on the gi'ound of his money 
 having lain idle (d) ; where, as in the case of a colHery, 
 the profits are ascertained monthly or weekly, he will be 
 entitled to them from the commencement of the month or 
 week (as the case may be) in which he pays his money {e) ; 
 and the same' principle would, it is conceived, prevail 
 where, as often happens with house property, the rents are 
 paid at shorter intervals than a quarter; while on the 
 other hand, if rents are reserved half-yearly, the purchaser 
 would seem, on principle, to be entitled to them from the 
 commencement of the current half, instead of quarter, 
 year : on the purchase of a manor, fines on descent, are, 
 for the purpose of the above rules, considered to accrue 
 due on the death of the copyholder, and not on the ad- 
 mission of his heir or devisee (/). 
 
 89. 
 
 (y) Hodder v. Ricffin, cited Sug. Sim. 359. 
 
 (c) Sug. 73. 
 
 (z) Maurice v. Waineivright, C. P. {d) Ibid. ; Hindle v. Bakins, 1 C. 
 
 Coop. N. R. 378. p. Coop. N. R. 378. 
 
 («) ^- ^- («■) Wren v. Kirton, 8 Ves. 502. 
 
 (5) Trefusis v. Lord Clinton, 2 (/) Garrick v. Lord Camden, 2
 
 SALES BY THE COURT OF CHANCERY. 567 
 
 On tlie pui'chase of a life interest in stocky the purchaser Chap, xix . 
 pays interest and takes the dividends from the day of ciras^e'^ofiife 
 sale [g) : on the purchase of a life annuity^ secured by life annuity. 
 bond and payable quarterly, he must pay interest and take 
 the annuity from the day on which he could first have con- 
 firmed the report [h) . 
 
 The remarks already made (i) as to the abstract, ^bstmSf 
 searches for incumbrances, and matters arising between its 
 delivery and the preparation of the conveyance, are 
 generally applicable as well to sales by the Com-t as to 
 ordinary sales. 
 
 The conveyance, if an infant be a necessary conveying ^H^J^f^^ 
 party {k), or if, although he be not a party, it \vill by sta- by Master. 
 tute have the effect of divesting his estate [1), must be 
 settled by the Master ; but, ^ith this exception, it is usual 
 to dii-ect only that the draft be settled by the Master in 
 case the parties difiPer (m) ; and, when the order is so 
 worded, a purchaser going before the Master pays his own 
 costs, unless he can make out special grounds for exemp- 
 tion {n) : the practice before the Master is similar to that 
 in a suit for specific performance (o) . 
 
 Upon the sale by the Court of leaseholds of a testator, ^|ee"en'°^ 
 
 , . . • titled to 
 
 his executor, although he have not been m possession, is indemnity 
 ° . - from pur- 
 
 entitled to an indemnity from the purchaser against the ciia^^e^r^of^ 
 
 rent and covenants {p). 
 
 Cox, 231 ; the marginal note is in- S. 28, V. C. S. ; aliter, if the infant 
 
 correct : it will be seen from thexase be only interested in the proceeds of 
 
 that the admissions were after and sale (RicJiardson v. Ward, 1 1 Beav. 
 
 not before the time fixed for cornple- 378) : the consequent costs must be 
 
 tion ; see Earl HardwicJce v. Lord borne by the funds in Court : Brown 
 
 Sandys, 12 M. & W. 761. v. Lake, 15 L. J., N. S., 34, V. C. 
 
 {y) Anson v. Toivyood, 1 Jac. & K. B. 
 
 W. 637. {m) Sug. 75. 
 
 {h) Twiyy v. Fifield, 13 Ves. .517. («) Hodyson v. Shaw, 11 Jur. 95, 
 
 {i) Supra, Ch. VIII., X., XI. V. C. K. B. 
 
 {k) Calvert v. Godfrey, 2 Beav. (o) Vide su])ra, 586. 
 
 267. {]}) Cochrane V.Robinson, l\ Sim. 
 
 (I) Cheese v. Cheese, 15 L. J., N. 378.
 
 568 
 
 SA.LES BY THE COURT OF CHANCERY. 
 
 Chap. XIX. 
 
 Purchaser 
 may re- 
 quire con- 
 currence of 
 all neces- 
 sary par- 
 ties. 
 
 Who are 
 such. 
 
 Party re- 
 fusing may 
 be ordered 
 to convey. 
 
 Against 
 whom order 
 will be 
 made. 
 
 The piu'chaser may requii-e the concurrence of all persons 
 having a legal title to, or remedy against, the property, 
 although parties to the suit {q) ; except, perhaps, a dowress, 
 whose dower is barred by a term or equitable jointure (r) ; 
 but cannot, it would seem, "if he acquire the legal estate, 
 require, at the seller's expense, a release fi'om equitable in- 
 cumbrancers whose demands have been satisfied by the 
 Court {s) ;" nor docs it, in fact, appear, that he can insist 
 on the concm-rence, even at his OAvn expense, of parties 
 having mere equitable interests and who are bound by the 
 decree (/) ; if the decree direct that all proper parties con- 
 vey, and a party to the suit, whom the Master considers a 
 proper party to the conveyance, refuses to conciu', the pur- 
 chaser should move against the recusant party (and not 
 against the plaintiffs) that he do convey {u) : it appears 
 that a mortgagee, who has proved his debt, may be required 
 to receive his money and to concur without the usual six 
 month's notice {w). 
 
 Such an order will not be made against a married woman 
 in respect of her real estate not settled to her separate 
 use {oc) ; but will be made against an infant (y), and if 
 
 {q) See and consider Craddock v. 
 Piper, 14 Sim. .310. 
 
 (r) Vide supra, pp. 251, 252. 
 
 (s) Sug. 75, citing Keatinge v. 
 Keatinge, 6 Ir. Eq. Rep. 43 ; and 
 Webber v. Jones, ib. 142. 
 
 {i) Webber v. Jones, ubi supra. 
 
 (m) Stillwell or Stilwell v. Mel- 
 lersh, 10 Sim. 367 ; 4 Myl. & Cr. 
 581. 
 
 (w) Matson v. Sivift, 5 Jur. 645. 
 
 (x) Jordan v. Jones, 2 Ph. 170. 
 
 (y) As to conveyances on sales in 
 creditor's suits, see 1 Will. IV. c. 47, 
 ss. 11 and 12, amended by 2 & 3 
 Vict. c. 60, and 11 & 12 Vict. c. 87; 
 and see Penny v. Pretor, 9 Sim. 
 135 ; Walker v. Aston, 14 Sim. 87 ; 
 
 Ileming v. Archer, 8 Jur. 945 ; 7 
 Beav. 515; 8 Beav. 294 : an infant 
 tenant in tail may be ordered to con- 
 vey, Radcliffe v. Eccles, 1 Keen, 130; 
 Penny v. Pretor, supra : a suit by 
 an equitable mortgagee praying a 
 sale is within the statute ; and the 
 infant heir of the mortgagor will be 
 ordered to convey, although the 
 mortgagee is, with the permission of 
 the Court, the purchaser ; and al- 
 though, if the decree had been for 
 foreclosure, the infant would have 
 been allowed to show cause on com- 
 ing of age ; see Scholefield v. Hea- 
 field, 7 Sim. 669 ; 8 Sim. 470 ; Red- 
 shaio V. Newbold, 12 Jur. 833, V. C. 
 K. B. ; Clinton v. Bernard, 1 Dru.
 
 SALES BY THE COURT OF CHANCERY. 569 
 
 he refuse to execute, an attachment may issue against chap, xix 
 him {z). 
 
 But the more usual course of proceeding, where a party ^^[I'^^jfj' 
 to the suit refused to execute, has been to treat such party a^^ustee!*^*^ 
 as a trustee within the 1 Will. IV. c. 60, and to obtain an 
 order for some other person to convey under the Act ; and 
 this coui'se might have been adopted when the recusant 
 party was a married woman {a), infant [b), lunatic (c), or 
 mere tenant for life {d) : and the mere decree directing a 
 sale and all proper parties to convey, made the owner of 
 the legal estate, if party to the suit, a trustee within the 
 Act {e) : and an order fo" a conveyance, or a vesting or 
 releasing order ha\ing the effect of a conveyance, may now 
 be obtained under the 13 & 14 Vict. c. 60 (/). 
 
 (5.) As to the purchaser's rights after completion. 
 Upon the execution of the conveyance the purchaser is. Purchaser 
 
 '■ J i. ' after con- 
 
 as a general rule, entitled to have the title deeds delivered gxecutek 
 to him; and an order for their delivery, if not provided uie^dieds! 
 for in the order for payment of the purchase-money, may 
 be obtained on motion (^) : on a sale in lots, in the 
 absence of special agreement, the purchaser of the largest 
 lot is entitled to the deeds as against the purchaser of 
 
 287, et vide supra, p. 312; but see (i) Walters v. Jackson, 12 Sim. 
 
 now the Trustee Act, 1850, sects. 29 278 ; Warhurton v. Vaughan, 4 Y. & 
 
 and 30 : queers, whether under the 1 C. 247 ; Thomas v. Gtvynne, 9 Beav. 
 
 Will. IV. c, 47, and the 3 & 4 Will. 275. 
 
 IV. c. 104, the Court can sell copy- (c) In re Blake, 3 J. & L. 265. 
 
 holds; see Branch v. Browne, 12 {d) In re Mi/Jield, 2 Ph. 2bi. 
 
 Jur. 768, V. C. K. B. (e) See cases cited in last four 
 
 (z) Thomas v. Givynne, 8 Beav 
 312 ; and seeiJe Beech, 4 Madd. 128 
 
 (a) Jordan v. Jones, 2 Ph. 170 
 Billing V. Webb, 1 De G. & S. 716 
 and see Jumpson v. Pitchers, 1 Coll 
 13; Hood V.Hall, 14 Jur. 127, V 
 
 notes ; and King v. Leach, 2 Ha. 57; 
 Robinson v. Wood, 5 Beav. 246 ; 
 Jackson v. Milfield, 5 Ha. 538 ; In 
 re Blackwell, 7 Jur. 9, V. C. E. ; 
 Barfieldv. Rogers, 8 Jur. 229, C. 
 (/) Sects. 29 and 30. 
 
 C. W. {g) Dan. Ch. P. by H. 1204,
 
 570 
 
 SALES BY THE COURT OP CHANCERY. 
 
 As to at- 
 tested 
 copies. 
 
 Chap. XIX. several lots of larger aggregate ataount (A) ; if the pur- 
 chaser, instead of appljdng to the Com-t, bring an action 
 at Law against parties to the suit for a document to which 
 he is entitled, he will be restrained by injunction (i) : 
 where mortgagees, parties to the suit, consented to the 
 sale, they were ordered to leave the deeds in the Master's 
 office, but it was dii'ccted that they should not be delivered 
 to the purchaser without notice to the mortgagees {j) . 
 
 The purchaser is also, in the absence of stipulation, 
 entitled to attested copies and a covenant for the produc- 
 tion of the originals of such documents of title as are not 
 delivered to him {k) : it may however be remarked that, 
 in Dare v. Tucker (/), Lord Eldon qualified his order for 
 delivery of attested copies by the expression, " unless you 
 leave the originals, or make some other proposal in the 
 Master's office :" so that possibly, upon a sale by the 
 Court, a deposit of the deeds in the Master^s office might 
 be sufficient to preclude the right to attested copies ; but 
 such a deposit could probabl}^ not be enforced against a 
 purchaser who had purchased to an amount exceeding 
 that of any other purchaser, and the part (if any) remain- 
 ing unsold. 
 
 Where the estate is sold in accordance with the decree, 
 the Coiu't " will protect the purchaser against the parties 
 to the suit, and all parties coming in under the 
 decree [m) ;" and Sir E. Sugilen considers it to be a 
 general rule " that the purchaser shall not lose the benefit 
 of his purchase by any irregularity in the proceedings in 
 a cause {n) :" if, however, the Court clearly exceed its 
 jurisdiction, as if it assume to sell the real estate of infants 
 
 Will be pro 
 tected 
 against all 
 parties to 
 the suit. 
 
 Unless 
 Court 
 exceed its 
 jurisdiction. 
 
 (A) Kinnard v. Christie, cited Dan. 
 Ch. P. by H. 1205. 
 
 (e) Stubbs V. Sargon, 4 Beav. 90. 
 
 {j) Livesey v. Harding, 1 Beav. 
 343, 346. 
 
 (A) As to the qualification of this 
 
 right, vide supra, p. 316. 
 
 (l) 6 Ves. 460. 
 
 {m) Sug. 69. 
 
 (») Sug. 67, and cases tliere cited ; 
 Dan. Ch. P. by H. 1201 ; and see 
 Baker v. Soivter, 10 Beav. 343.
 
 SALES BY THE COURT OF CHANCERY. 571 
 
 upon the mere notion that a sale is beneficial {o), or, as chap. xix. 
 against cestuis que trust not sui juris, to anticipate, ■with- 
 out special grounds, the time fixed by the author of the 
 trust for the sale of the estate {p) , it is not clear that the 
 purchaser would be protected by the decree ; at any rate 
 he will not be compelled to accept the title : and a pur- 
 chaser is always bound to see that the sale is according to 
 the decree [q) ; although he is not bound to see that no 
 more property is sold than will be sufficient for the pvu'- 
 poses for which a sale was directed (?') ; nor will he, it would 
 seem, be affected by fraud in the proceedings of which he 
 himself is innocent (s). Of course, the decree is no pro- 
 tection against persons who ought to have been, but are 
 not, parties to the suit {t). 
 
 A purchaser, after conveyance, has been allowed com- ^^f^*^*^ 
 pensation out of his purchase-money, on the ground of the mL'descHp- 
 rent of the estate having been overstated in the par- estate. 
 ticulars (m). 
 
 (6.) As to the practice, when the purchaser fails 
 to complete. 
 
 Where the purchaser refuses or neglects to complete his 9^^^^^ \°. 
 
 ^ ° ^ be adopted 
 
 piu'chase, and is supposed to be a responsible person, the J-efu^e'^to^'^^'^ 
 
 complete, 
 
 (o) Calvert v. Godfrey, 6 Beav. Island Charity, 3 J. & Lat. 171. 
 97 ; see Peto v. Gardner, 2 Y. & C. {p) Blaeklow v. Laws, 2 Ha. 40 ; 
 
 C. C. 312. See, as to special circum- Johnstone \. Baber, 8 Beav. 233. 
 stances warranting a sale, Garmstone (q) Colclough v. Sterum, 3 Bli. 
 
 V. Gaunt, 1 Coll. 577 ; and see, as to 181, 186, 188 ; Lutwych v. Winford 
 
 the sale by the Court of charity lands, 2 Bro. C. C. 248, 25 1 . 
 Att.-Gen. v. Corporation of Newark, (r) S. C. 
 
 1 Ha. 395 ; Att.-Gen. v. Sotith Sea {s) See Sug. 67; Bowen v. Evans, 
 
 Company, 4 Beav. 453, and cases 1 J. & L. 178 ; 2 H. L. C. 257; see 
 
 cited : it seems doubtful vehether the also, on the general subject, Thom- 
 
 Court can direct a sale upon petition hill v. Glover, 3 Dru. & W. 195. 
 under Sir S. Romilly's Act (52 Geo. (/) Colclough v. Sterum, 3 Bli. 181 
 
 III. c. 101) ; see In re Parke's Cha- —186. 
 
 rity, 12 Sim. 329; In re Neivton's {u) Cann v. Cann, 3 Sim. 447. 
 
 Charity, 12 Jur. 1011 ; In re Suir
 
 572 
 
 SALES BY THE COURT OF CHANCERY. 
 
 sponsible. 
 
 Chap. XIX. solicitor of the party conducting the sale should procure 
 the Master's report^ and the orders confirming it nm and 
 absolutely (w) ; notice of motion for the order absolute 
 must be served on the purchaser (cT) : if, however^ the 
 purchaser has obtained the order )usi, and neglects to 
 obtain the second order, the same may be obtained by the 
 vendors on motion {y), which is of course, and if made 
 specially will be refused with costs (z) ; but can be made 
 
 If supposed only on a seal day (a). If the purchaser be supposed to 
 be incompetent in point of means, the vendors may move, 
 on notice, that he be discharged, and that the estate be 
 resold {b) ; or, as is now the more usual and more eligible 
 course, to obtain an order, not that the pm'chaser be dis- 
 charged, but that the estate be resold, and that he may 
 pay the expenses arising from liis non-completion of the 
 purchase, the expenses of the application to the Court, 
 and of the resale, and any deficiency in price on the re- 
 sale (c). 
 
 If the purchaser is responsible, the vendors may move 
 that within a given time he pay his money into Court; 
 if he appear on the motion he is primd facie entitled 
 to have the title referred to the Master; and, if he do 
 not appear, it seems to be requisite that the vendors shall 
 have dehvered the abstract, and procured the Master's 
 report in favour of the title {d) ; or that the purchaser 
 shall have accepted the title (e) : where defendants to the 
 
 (w) See Dan. Ch. P. by H. 1205; Anst. 344 ; Dan. Ch. P. by H. 1206 ; 
 Sug. 71. Sug. 71. 
 
 {x) Ibid. 
 
 (y) Chillingworth v.Chillingworth, 
 1 Sim. 291 ; Lidbetter v. Smith, 5 
 Beav. 377 ; Roberts v. Williams, 2 
 Ha. 151. 
 
 {z) Robertson v. Skelton, 10 Beav. 
 197. 
 
 (a) Ibid. 199. 
 
 {b) Hodder v. Ruffin, 1 V. & B. 
 544 ; Cunningham v. Williams, 2 
 
 If supposed 
 to be re- 
 sponsible. 
 
 (c) Harding v. Harding, 4 Myl. & 
 Cr. 514; Saunders v. Gray, ibid. 515; 
 Gray v. Gray, 1 Beav. 199. 
 
 (d) Dan. Ch. P. by H. 1207, and 
 cases cited ; and see Buhner v. Alison, 
 8 Jur. 440, V. C. W. ; 15 L. J., N, S., 
 11 Ch. 
 
 {e) Rutter v. Marriott, 10 Beav. 
 33.
 
 contract. 
 
 SALES BY THE COURT OF CHANCERY. 573 
 
 suit who were entitled Miih tlie plaintiff to shares in the Chap, xix. 
 estate, purchased a part of it of which they were in [os- 
 session, and the conditions precluded any objection to the 
 title_, they were ordered to pay in the enth^e purchase- 
 money, although they claimed allowances for improve- 
 ments and the estate was incumbered (/) . 
 
 On the other hand, where the contract is inequitable {(/), whetiiefli- 
 or where to enforce it would be attended with great hard- fo^dt *d*e- 
 ship, as in the case of a sudden and \dolent change in the abandon 
 money market {h), or where the pm-chaser has by mistake 
 given an um-easonable price for the estate (i) and is ex- 
 peditious in applying to the Court {k), he will, according 
 to some authorities, be allowed to forfeit his deposit (if 
 any), and abandon the contract : but this will not be con- 
 ceded on the mere gromid of the price being excessive (/), 
 nor in the case of a person without authority buying the 
 estate to prevent a sale at an undervalue [m) ; nor, it is 
 conceived, under any ordinary state of circumstances. 
 
 (/) Bulmer v. Allison, 15 L. J., but with disapprobation, Sug. 90. 
 
 N. S., Ch. 11., L. C. (k) See Price v. North, 2 Y. &C. 
 
 (g) Sug. 89. 620, 626. 
 
 (h) Savile v. Savile, 1 P. Wras. {I) In re Birch, cited Sug. 89. 
 
 745 ; sed queer e. {in) Nelthorpe v. Pennyman, 14 
 
 (i) Momhead v. Frederick, cited, Ves. 517.
 
 INDEX. 
 
 [When Chapters, or several consecutive pages, are referred to, see 
 Table of Contents.] 
 
 ABANDONMENT. 
 
 Of parol agreement, letter suggesting, ia no contract, 99. 
 Of contract — purchaser in possession not liable for use and 
 occupation, 119. 
 in vendor's lifetime — its effect on rights of his 
 
 representatives, 123. 
 in purchaser's lifetime, its effect, &c., 125. 
 entitles vendor to have abstract returned, 130. 
 by assignees of bankrupt purchaser, 4G5. 
 by pui'chaser from the Court, whether allowable, 
 573. 
 Of possession by husband and wife, of her estate, 194. 
 Of vendor's lien for purchase-money, what amounts to, 346, 
 
 et seq. 
 Of objection to title by purchaser, its effect on costs, 544. 
 
 ABATEMENT. 
 
 Of rent, agreement for, must be in writing, 96. 
 Of price, for misdescription, 54. 
 
 when claimable for defects in estate, 307, et seq. 
 vendor when compelled to convey estate, on being 
 
 allowed, 499, et seq. 
 purchaser unsuccessfully claiming in suit, pays costs, 
 when, 545. 
 Of incumbrances, obtained by purchasing partner, enures to 
 benefit of firm, 434. 
 
 ABSENCE. 
 
 Of husband, may prove illegitimacy, 170. 
 Without tidings, raises presumption of death, 172. 
 
 ABSOLUTE. 
 
 Interest contracted for,/ purchaser need not take redeemable, 
 504.
 
 576 INDEX. 
 
 ABSTEACT. 
 
 In conditions, means " perfect abstract," 58. 
 
 Wlien perfect, what it must contain and show, 131 to 134. 
 
 Purchaser's right to, and right to retain, 130. 
 Condition restricting, when expedient, 58. 
 
 Vendor pays for, except on sale to railway company, &c., 130. 
 Condition contra, mortgagee may sell under, 77. 
 
 What must be furnished in various cases, 134 to 140. 
 
 Effect of condition for its commencement with specified docu- 
 ment, 68. 
 
 Condition respecting, how to be framed, if early title lost or 
 defective, (58. 
 
 Production of, prior to sale, when expedient, 09. 
 
 As to its preparation, contents, and deUvery, 140 to 147. 
 
 On sale by Court, 562, 567. 
 
 Condition for delivery of, 57. 
 
 How waived in Equity, 213, et seq. 
 
 Dehvery of, cannot supply want of written contract, 99, 478. 
 
 But must precede application for payment of purchase-money 
 into Court, on sale under decree, 572. 
 
 Non-delivery of, its effect on conditions as to time, &c., 58, 72. 
 
 Or on condition as to interest, 300, et seq. 
 
 Long retention of, without objection, a waiver of title, 531. 
 
 As to its examination and perusal, 147 to 149. 
 
 expenses of, when recoverable by purchaser, 147, 446. 
 
 Master proceeds on, on reference of title, 522. 
 
 As to its verification, 69, 149 to 200. 
 
 Must be verified, although deeds not to be produced, 67. 
 
 Should be verified at vendor's expense, on sale in lots, 70, 77. 
 
 Erroneous, purchaser reselling on faith of, yet not allowed 
 damages for loss of bargain, 447. 
 
 Must be returned if contract finally abandoned, 130. 
 
 ABSTEACTIOX. 
 
 Of part of subject-matter of contract, pendente lite, 534. 
 
 ACCEPTANCE. 
 
 Of lease by assignees in bankruptcy, 37. 
 
 Payment by, to agent of vendor, when valid, 87. 
 
 Of right of pre-emption, 98, n. (q). 
 
 Of offer, by post, 101, 105. 
 
 Of offer, binding if not conditional, 104. 
 
 Conditional, its effect, 104. 
 
 Of abstract, after time fixed for delivery, when inexpedient, 146. 
 
 Of title shown by abstract, its effect, 149. 
 
 Subject to removal of specified objection, its effect, 217, 521.
 
 INDEX. 
 
 577 
 
 ACCEPTANCE— cow^wmef/. 
 
 Subject to removal of specified objection, its effect, 217, 521. 
 Not always required of purcliaser moving to pay purckase- 
 money into Coui't, 564. 
 And see Waived. 
 
 ACCESS. 
 
 Doctrine as to, as respects illegitimacy, 170. 
 
 ACCESSION. 
 
 In correspondence, by both parties to same terms, is an agree- 
 ment, 104. 
 
 ACCIDENTAL. 
 
 Loss or improvement after contract is borne or taken by pur- 
 chaser, 116 to 118. 
 Omission of parcels from conveyance, 383. 
 
 ACCOMMODATION WORKS. 
 
 Should be referred to in agreement for sale to railway com- 
 pany, 97. 
 
 ACCOUNT. 
 
 Of profits, &c., how taken, if sale to trustee, &c., set aside, 23, 24. 
 When sale set aside as fraudulent against vendor, 222, 358. 
 Or as fraudulent against purchaser, 380. 
 How taken against vendor, delaying to show title, 293. 
 ' Against pixrchaser evicted under paramount title in Equity, 426. 
 Against purchaser, not obtainable imder prayer for general 
 
 rehef, 472. 
 Of rents, &c., decree for specific performance should direct, 534. 
 Settlement of, with agent, when equivalent to payment to 
 
 vendor, 87, 310. 
 
 ACCEUEE. 
 
 Of title. See Statute of Limitations. 
 
 ACCEUING. 
 
 Benefit after contract — purchaser entitled to, 116 to 118. 
 
 ACCUEACY. 
 
 Of particulars, material, 51. 
 
 ACKNOWLEDGMENT. 
 
 Of title, equivalent to possession, within 3 & 4 Will. IV. c. 74, 
 
 192. 
 What amounts to, ih., n. (e). 
 Its effect between mortgagor and mortgagee, 196. 
 By married women, search for, 243. 
 
 p p
 
 578 INDEX. 
 
 ACKNOWLEDGMENT— con^2«Merf. 
 
 Mode of taking, and practice respecting, 269, et seg. 
 Until made, vendor's liability to discharge incumbrances con- 
 tinues, 282. 
 Vendor pays for, 334. 
 
 ACQUIESCENCE. 
 
 In purchase, binds infant attaining majority, 10. 
 Or married woman becoming sui juris, 12. 
 In voidable piu-chase by trustee, &c., binds cesiuis que trust, 25. 
 How distinguishable from confirmation, 26. 
 Bars vendor's right to set aside fraudulent sale, 359. 
 In purchase, or expenditure by purchaser, binds adverse claim- 
 ants, 394, 395. 
 In expenditm-e by railway company, held to bind landowner, 480. 
 Purchaser when not bound by, to accept bad title, 531. 
 
 ACEE. 
 
 Statutory and customary, 303, et scq. 
 
 Estate presumptively sold by, if quantity stated, 307. 
 
 ACT. 
 
 Private, copy of, should accompany abstract, 145. 
 
 How to be proved, 150. 
 
 Is not notice, although declared public, 4.09. 
 
 Affecting property, should be noticed in particulars, 53. 
 
 But local public Act need not be noticed, ih. 
 
 Being notice to all the world, 406. 
 
 ACTS. 
 
 Meaning of, in covenants for title, 368. 
 Of ownership by purchaser, when an acceptance of title, 220. 
 Of purchaser, what will rebut presumption of advancement, 439. 
 Of vendor, may avoid contract, 515. 
 
 ACTION. 
 
 Against vendor, for concealment or misrepresentation, 40, 44, 45. 
 
 Against solicitor misrepresenting title, 42. 
 
 Against stranger misrepresenting property, 45. 
 
 Against purchaser or stranger for slander of title, 46, 47. 
 
 Against auctioneer selling without authority, 80. 
 
 For deposit, if purchase go off, 82. 
 
 By auctioneer against party for whom he acts as agent, 83. 
 
 On cheque for deposit, 88. 
 
 In respect of performance of parol agreement, 93. 
 
 Or of transfer of parol agreement, ih. 
 
 Not for collateral matter mixed up with void parol agreement, 96.
 
 INDEX. 579 
 
 ACTION— continued. 
 
 For mortgage debt, not restrained, though mortgagor have 
 
 agreed to sell estate, 128. 
 For recovery of land, &c. See Statute of Limitations. 
 Of ejectment against purchaser rejecting title, 221. 
 For use and occupation against purchaser, 119, 222, 448. 
 
 by purchaser, 223. 
 By vendor upon purchaser's covenants, 360, ef seq. 
 By purchaser upon vendor's covenants, 363, et seq. 
 For rents, &c., by purchaser of reversion, 386. 
 Purchaser Tvhen Hable to, for nuisance, 430. 
 For breach of contract, Ch. XVII. jjasslm, 443. 
 Inability to recover damages in, when a defence in Equity, 496. 
 Damages recovered in, a defence in Equity, 516. 
 For title deeds by purchaser under decree, restrained, 570. 
 Costs of, in suit for specific performance, 547. 
 
 ACTUAEY. 
 
 Opinion of, no test of value of reversionary interests, 357. 
 
 ADDITION. 
 
 By parol to written agreement, inadmissible at Law, 451. 
 
 Or on behalf of plaintiff in Equity, 483. 
 
 When admissible as a defence in equity, 484, et seq. 
 
 ADITS, MINUS' G. 
 
 Law respecting, 184. 
 
 ADMINISTKiTION. 
 
 Letters of, received as evidence of death, 168. 
 Suit, its eflfect on power of trustees for sale, and executors, 29. 
 damages for breach of covenant, claimable as debt in, 
 
 376. 
 as is vendor's claim under decree for impaid purchase- 
 money, 535. 
 
 ADMINISTEATOE. 
 
 Cannot buy intestate's personal estate, 17. 
 May adopt contract entered into by agent before grant of let- 
 ters of administration, 86. 
 Time runs against, from death of intestate, 189. 
 Assignment by, before administration, void, 275. 
 See Personal Eepbesentatives. 
 
 ADMITTANCE. 
 
 To copyholds, should in abstract be preceded by surrender, 141. 
 
 Costs of, who pays for, 335. 
 
 Customary heir may sue as such before, 374. 
 
 p p 2
 
 580 INDEX. 
 
 ADOPTED. 
 
 Child, purchase in name of, an advancement, 437. 
 
 ADOPTION. 
 
 Of act of unauthorized agent, 86. 
 
 By -nidow of husband's contract for sale, 461. 
 
 ADVANCE. 
 
 Of price, what required on opening biddings, 556. 
 
 of biddings not opened for, after confirmation, 560. 
 
 ADVANCEMENT. 
 
 TNTien purchase is held to be, 437, et seq. 
 
 ADVANTAGES. 
 
 Concealment or disclosure of, by purchaser, 46. 
 
 Legally incidental to, are presumed to accompany property, 51. 
 
 Obtained by partner enure to benefit of co-partner, 434. 
 
 ADVENTITIOUS VALUE. 
 
 Destruction of matters conferring, relieves purchaser from con- 
 tract, 116, 223. 
 "Want of title to part of property possessing, a defence in 
 Equity, 505. 
 
 ADVENTUEE. 
 
 Property purchased as, docs not survive in Equity, 433. 
 
 ADVERSE INTEREST. 
 
 Parties having, prior to contract, not proper parties to suit, 466. 
 
 ADVERSE CLAIMS. See Claims. 
 
 ADVERTISEMENT. 
 
 Of sale by fiduciaiy vendors, proper, 33. 
 Of sales by the Court, 553. 
 
 ADULTERY. 
 
 Of wife, yet issue legitimate, 169. 
 
 ADVOWSON. 
 
 Title to, must be accepted by purchaser claiming to pres(>nt to 
 
 vacancy, 117. 
 Must be carried back, over what period, 139. 
 Right to recover, when barred by time, 197. 
 How aiFected by judgments, 231, 235. 
 Purchaser of, restrained from presenting, before payment, 519. 
 
 AGENCY. 
 
 Denied, may be established, 84. 
 
 Alleged agent may be examined to disprove, 106.
 
 INDEX. 581 
 
 AGENT. 
 
 For purchase, may not sell his owii estate to priucipal, 7. 
 
 Fiduciary vendor may not act as, 15. 
 
 For sale or management, cannot purchase, ih. 
 
 Of mortgagee, cannot purchase from him under power of sale, 
 17. 
 
 Of fiduciary vendor, cannot himself purchase, 18. 
 
 For sale, should sell when practicable, 27. 
 how he ought to sell, 31 to 35. 
 for what price he should sell, 35 to 37. 
 
 General points respecting sales by, 37, 38. 
 
 As to his appointment, powers, duties, liabilities, and remuner- 
 ation, 83 to 87. 
 
 Payments to, when valid, 87, 310. 
 
 Signature of agreement by, binds principal, 91. 
 
 How agent should sign, 85, 107. 
 
 Alleged agent may be examined to disprove agency, 106. 
 
 Acknowledgment of title by, binds principal, 192. 
 
 Principal bound by fraud of, 380, 454, n. 
 
 And by notice to, 402, 412. 
 
 Whether within the rule as to professional communications, 414. 
 
 May sue and be sued on contract, when, 444. 
 
 No damages in Equity against person falsely contracting as, 459. 
 
 When to be a party to suit for specific performance, 467. 
 
 Improvident contract by, not enforced in Equity, 491. 
 
 AGISTMENT. 
 
 Parol agreement for, valid, 95. 
 AGEEEMENT. 
 
 Not to bid at auction, valid, 47. 
 
 For sale of land, what it comprises, 51, 52. 
 
 In writing, generally necessary under Statute of Frauds, 
 
 91 to 96. 
 The preparation of formal agreements, 96, 97. 
 What informal documents may constitute agreement, 97 to 105. 
 Signature to, 105 to 108. 
 Stamps on, 109 to 111. (a) 
 As to illegal agreements. 111 to 113. 
 When to be recited, 254. 
 To pay interest, effect of, 298. 
 To take rents, &c., excludes claim to interest, 302. 
 In conveyance for lease, no additional stamp, 332. 
 Voidable, purchaser whether bound by notice of, 416, et sc 
 To use property as in trade, bars survivorship, 433. 
 (a) p. 110, for 10th read 11th Oct.
 
 582 INDEX. 
 
 AGHE^M.'El^T— continued. 
 
 Respecting joint purcliases, 434. 
 
 Eemediea at Law and in Equity for brcacli of, Ch. XVII. and 
 
 XVIII. 
 Production of, wlien compelled at Law, 453. 
 And see Contbact. 
 
 ALIEN. 
 
 Incapacity of, to hold land, present law respecting, 8, 9. 
 
 Naturalization of, 9. 
 
 No lien on land, presumed in favour of, 350. 
 
 ALIENATION. 
 
 Married woman, though absolute owner, may be restrained 
 
 from, 5. 
 Of charity lands, when valid, 7, 571 n. 
 Of tenant for Hfo's estate, effect of, on his power to consent to 
 
 sale, 35, n. 
 Champerty, what amounts to, 112. 
 Of purchaser's interest under contract, allowable, 115. 
 As to restrictions on general right of. See Ch. I. pp. 1 to 7. 
 
 ALIENEES. 
 
 Of purchaser or vendor, may enforce specific performance, 401. 
 Of vendor, specific performance when enforced against, 462, 
 469. 
 
 ALLOTMENT. 
 
 Condition to be used, on sale of, 74. 
 
 What abstract of title to, requisite, 134 to 136. 
 
 Held under several titles, steward's fees, 335. 
 
 Unascertained, sale of, at inadequate price enforced, 511. 
 
 ALLOWANCE. 
 
 To vendor or purchaser, when sale set aside. Sec Accounts. 
 
 ALTERATION. 
 
 Of property, by infant purchaser, its effect, 11. 
 
 Or by married woman, 13. 
 
 Of time fixed for sale by author of trust, inadmissible, 30. 
 
 Of advertized mode of sale, should be advertized, 33. 
 
 Of printed particulars, &c., by auctioneer, 50. 
 
 Of signed agreement, destroys rights of altering party, 108, 455. 
 
 Of property by vendor, discharges purchaser, 116, 223. 
 
 Of property by purchaser, its effect, 220, 223, 381. 
 
 In approved draft conveyance, should be mentioned, 267. 
 
 Of deed, whether fresh stamps necessary, 333.
 
 INDEX. 583 
 
 AMBIGUITY. 
 
 In wTitten agreement, fatal, if patent, 102. 
 Parol evidence, when admissible to explain, 451. 
 A groimd of defence in Equity, 485. 
 
 AMBIGUOUS EECITAL. 
 Not notice, 411. 
 
 ANCESTOES. 
 
 Vendor covenants against acts of, wlieu, 371. 
 Purcliase in name of, no advancement, 438. 
 
 ANCIENT DEEDS. 
 
 Not to be abstracted, 140. 
 
 but must be given up on completion, 314. 
 Attested copies of, cannot be required, 66, 316. 
 Proof of execution of oi-iginal, unnecessary, 152. 
 
 ANCIENT DEMESNE. 
 
 Land held in, whether within the 1 & 2 Vict. c. 110, 237. 
 
 ANNUITY. 
 
 Contract for purchase of, from infant, a misdemeanor, 3. 
 
 For sale of, when enforced after death of annuitant, 117, 511, 
 
 512. 
 Arrears of, for how long recoverable, 188, 189, n. (o). 
 Secured on land, is bound by registered judgment, 237, 238. 
 Searches for, whether requisite, 243. 
 Estate sold for, no ad valorem duty, 256, 327. 
 Charged on laud, estate must be sold subject to, unless annuitant 
 
 concur, 291. 
 Unless there is a tmst to pay debts, 284. 
 Vendor's lien, when the estate is sold for, 348, 349. 
 Covenant for payment of, he can require, 266. 
 Whether inadequacy of, as a consideration, may be shown, 354. 
 Release of, supports settlement otherwise voluntary, 423. 
 Purchaser of, from Court, when entitled to, 567. 
 
 ANSWEE. 
 
 Incumbrancer, &c., bound by, on inquiry as to claim, 42. 
 
 Whether he need make, 43, 228. 
 
 Admission of parol agreement in, by defendant, 482. 
 
 ANTICIPATION. 
 
 Of time, fixed by author of trust, for sale, improper, 30, 571. 
 
 APPARENT AGENT. 
 
 Acts of, may bind, 84.
 
 584 INDEX. 
 
 APPEAL. 
 
 Pending, yet Master settles conveyance, 536. 
 Money repaid on, does not bear interest, 538, 548. 
 
 APPLICATION. 
 
 Of purchase money, wlien purchaser bound to see to, 283 et seq. 
 Mode of, on sale by Court, 564. 
 
 APPOINTMENT. 
 
 Of agent, how to be made, 83. 
 
 Deed of, in abstract, should be preceded by deed creating 
 
 power, 141. 
 Defeated judgment, xmder old law, 233. 
 Sed aliter, under new law, 234. 
 Except as respects purchasers without notice, 241. 
 To be registered in County Register, 319. 
 Effect of, on prior covenants for title, 361, 364. 
 By covenantor, person claiming under, claims under him, 368. 
 
 APPORTIONMENT. 
 
 Of rent, condition for, on sale of reversion, 60. 
 Of rent, &c., conditions for, on sale of leaseholds in lots, 76. 
 Of consideration, on purchase of copyholds and other property, 
 255. 
 to avoid higher duty, ih. 
 None, of damages for breach of covenants for title, between 
 
 tenant for life and remainderman, 377. 
 Act, does not apply between vendor and purchaser, 386. 
 
 APPROPRIATION. 
 
 Of purchase-money, and notice given, saves interest, 293. 
 
 When justifiable, 294, 298, 301. 
 
 What amounts to, 297, 298. 
 
 Its effect if incumbrance discovered, 382. 
 
 APPROVAL. 
 
 Of draft, when equivalent to agreement, 107. 
 
 Of title, by counsel, does not bind client, 149, 217. 
 
 ARBITRATION BOND. 
 
 May amount to an agreement, 98. 
 
 ARBITRATOR. 
 
 Cannot purchase claims of parties to reference, 16. 
 
 ARGUMENTATIVE REPLIES. 
 
 To objections to title, whether a waiver of conditions as to time, 
 &c., 72.
 
 INDEX. 583 
 
 AEEEAKS. 
 
 Of periodical payments, what recoverable, 198. 
 
 AETICLES. 
 
 Marriage, post-nuptial settlement is notice of, 407. 
 
 ASSENT. 
 
 Purchaser's, to investment of deposit, necessary, to bind him, 88. 
 To contract, party bound may require other party to signify, or 
 to reject, 105. 
 
 ASSESSMENT. 
 
 To land-tax, evidence of occupancy, 167. 
 
 ASSETS. 
 
 When marshalled for vendor's Hen, 346. 
 
 Heir or devisee liable in action to extent of, 376. 
 
 ASSIGNEES. 
 
 Of Bankrupt or Insolvent, their rights to his after-acquired 
 
 property, 13, 14. 
 SelUng, cannot purchase the estate, 16. 
 As to time for sale by, 28. 
 As to mode of sale by, 32 to 35. 
 As to the price, 35 to 37. 
 As to their general liabilities, 37, 38. 
 
 Of bankrupt purchaser, may take to or abandon contract, 120. 
 Contract by, to sell lease, fixes them as assignees thereof, 129. 
 Of bankrupt, covenant by, to produce deeds, how quahfied, 263. 
 Of purchase-money, his rights and liabihties, 282, 346, 381, 461. 
 Of insolvent, not asserting rights for nineteen years, yet not 
 
 postponed, 396. 
 Of bankrupt or insolvent vendor, purchaser how protected 
 
 against, 396. 
 may enforce and are bound by contract for sale, 461, 462. 
 Of bankrupt purchaser, may elect, 465. 
 Of vendor's or purchaser's interest under contract, who proper 
 
 parties to suits by or against, 469, 470. 
 
 ASSIGNMENT. 
 
 Of lease for less than three years, parol agreement for, void, 92. 
 
 Of parol agreement, when a good consideration, 93. 
 
 Of terms for years, when presumed, 160. 
 
 What requisite, if incumbrance kept on foot, 248. 
 
 What to be entered in County Eegister, 318. 
 
 Of lease, agreement for, how not performed, 504, 506.
 
 586 INDEX. 
 
 ASSTIEANCE. 
 
 By infants, lunatics, and married women, whether void or void- 
 able, 1 to 5. 
 Further. See Covenants foe Title. 
 Further, purchaser's right to, in Equity, 382, et scq. 
 
 ATTAINDER. 
 
 What it is, and its effect, 6. 
 
 ATTENTION. 
 
 From defect in estate, vendor must not divert, 40. 
 
 ATTESTATION. 
 
 Of registration memorial, what sufficient, 319, ct scq. 
 
 ATTESTED COPIES. 
 
 Purchaser's right to, 314, et scq., 570. 
 Of deeds, when evidence, 152. 
 
 Of documents produced as negative evidence, purchaser not 
 entitled to, IGC. 
 
 ATTESTING WITNESS. 
 
 Signature as, not a signature within Statute of Frauds, 107. 
 "Whether proof of deeds by, can be required, 151. 
 Whether affected with notice of contents of deed, 411. 
 
 ATTOENEY. See Solicitoe. 
 
 Surrender made or deed executed by, power to be produced, 
 
 and what evidence, &c., required, 151, 152. 
 Receipt under power of, when insufficient, 292. 
 Conveyance by, by infant or married woman, void, 2, 269. 
 Vendor must not convey by, ib. 
 
 ATTORNMENT. 
 
 Not necessary to enable purchaser to proceed for rent, &.c., 
 387, 430. 
 
 AUCTION. 
 
 What it is, 80. 
 
 Purchase at, by fiduciary vendor, voidable, 15. 
 Authority to sell by, does not justify private sale, 31. 
 Fiduciaiy vendors, whether bound to sell by, 32. 
 Agreement not to bid at, valid, 47, 490, n. 
 Sales by, are within Statute of Frauds, 91, 482. 
 Agreement on sale by, refers to particulars, &c., 9G. 
 Bond fide sale by, fixes value of estate, 357, 510. 
 Estates are generally sold by, by the Court, 549.
 
 INDEX. 587 
 
 AUCTION DUTY. 
 
 Eepealed (by 8 Vict. c. 15,) 482, n. (o). 
 Payment of, was not a part performance, 482. 
 
 AUCTIONEEE. 
 
 Cannot buy the estate, 16. 
 
 Verbal declarations by, at sale, tlieir effect, 50, 486. 
 
 His liabilities, power, and remuneration, 80 to 83, 553. 
 
 Authority of, revocable before sale, 83. 
 
 Loss by insolvency of, falls on vendor, 89. 
 
 Entry by, in sale book binds either party, 98. 
 
 But the name of other party must appear, or auctioneer must 
 
 be personally bound, 100. 
 When and why a party to suit for specific performance, 468. 
 Who appointed, on sale by Court, 551. 
 
 AUSTEALIA. 
 
 Lands in, generally conveyed by feoffment, 257. 
 
 AWARD, 
 
 Conditions respecting, 74. 
 
 Want of inrolment of, supplied by statute, ih. n. 
 
 When evidence of requisition of Acts being complied with, 135, 
 
 136. 
 Agreement that title shall commence with, 136. 
 How proved, 150. 
 
 BAILIFF. 
 
 Purchaser of infant's estate, chargeable as, 427. 
 
 BANK. 
 
 Payment into, on sale by statutory vendors, 311. 
 
 BANKING ACCOUNT. 
 
 Payment into, whether an appropriation, 297, 298. 
 
 BANKRUPT. 
 
 Cannot make a title against his assignees, 6. 
 
 After-acquired property of, vests in assignees, when, 13. 
 
 Estate of, may not be bought by assignee, 16. 
 
 How to be sold. See Assignees. 
 
 Contract for sale of his estate, exempt from stamp duty, 110. 
 
 Whether to be a party to conveyance of his estate, 250. 
 
 And see Bankruptcy, and Assignees. 
 
 BANKRUPTCY. 
 
 Sales in, are within Statute of Frauds, 91, 482. 
 
 Biddings in, may be opened, 36. 
 
 Of either party does not determine contract, 120.
 
 588 INDEX. 
 
 BABKnv:PTCY—coniinued. 
 
 Of purchaser, deposit set off against deficiency on re-salc, 73. 
 Proceedings in, liow proved, 156. 
 Effect of, on rights of judgment creditor, 232, 23G. 
 Orders in, have the effect of judgments, 238. 
 Purchase-money how paid, on sale in, 311. 
 Commission in, not in itself notice, 410. 
 
 Certificate in, whether a defence to action on covenants, 375, 
 376, n. 
 And see Bankeupt, and Assignees. 
 
 BAPTISM. 
 
 Of child as legitimate, raises presumption of marriage, 171. 
 Certificate of, not evidence of time or order of birth, 176. 
 
 BAEGAIN. 
 
 No damages generally, for loss of, 447. 
 
 BASE FEE. 
 
 When enlarged into fee simple by 3 & 4 Will. IV. c. 74, 195. 
 Created before passing of the Act, is protected, 196. 
 
 BEDEOED LEVEL. 
 
 Eegister of conveyances of land in, 320. 
 
 BENEFIT. 
 
 Party may consent to sale for his own, 30, 35. 
 
 Happeuing to estate after contract, is taken by purchaser, 116. 
 
 Hule respecting, on purchase under decree, 566. 
 
 When purchaser claiming, must accept title, 117. 
 
 BIBLE. 
 
 Entries in, evidence of pedigree, 178. 
 
 BIDDER. 
 
 At auction, to protect property, allowable in Equity, 89. 
 But not at Law ; semhle, except by stipulation, 51, 89. 
 Buying-in wrong lot, specific performance not enforced against, 
 90. 
 
 BIDDING. 
 
 Heserved, when allowable, 51, 89. 
 
 special order for, requisite, on sale by Court, 552. 
 May be retracted before fall of hammer, if no condition against 
 
 57. 
 Whether such a condition is valid, ib. 
 Agreement not to oppose, is legal, 47, 490. 
 By agent beyond authorized amount, its effect, 84. 
 See Opening Biddings.
 
 INDEX. 589 
 
 BILL. 
 
 In admmistration suit, its effect on power of executors, 29. 
 For specific performance, dismissed, return of deposit when 
 
 ordered, 88, 538. 
 Of costs, delivery and taxation of, 340, et seq. 
 For specific performance, form of, 470, et seq. 
 filing, binds plaiutifi" to parol contract, 494. 
 not dismissed for want of prosecution, pending reference, 
 
 522. 
 dismissal of, 529, 530. 
 
 BILL OF EXCHANGE. 
 
 Should not be given to agent, &c., for purchase-money, 87. 
 Taking for purchase-money, does not afiect vendor's lien, 347. 
 
 BIETH. 
 
 Evidence of, 176 to 178. 
 
 BISHOP. 
 
 Purchase by, of annuity charged on rectory, set aside, 16. 
 Sale of lease by, freehold title not to be required, 75, 137. 
 Eestrained from presenting or collating, pending suit, 519. 
 
 BLANK. 
 
 Left for signature at foot of agreement, its effect, 107. 
 
 BLIND AND DEAF PEESON. 
 Notice to, whether valid, 34, u. 
 
 BOND. 
 
 Of reference, may constitute agreement, 98. 
 
 By Eailway Companies, on entry before payment, 225. 
 
 Taking for purchase-money, whether it affects vendor's lien, 
 347, et seq. 
 
 For quiet enjoyment, cannot be required as a "further assur- 
 ance," 370. 
 
 Agreement in shape of, specific performance of enforced, 496. 
 
 BOOK. 
 
 Entries in, when evidence of pedigree, 178. 
 
 BEEACH. 
 
 Of covenant. See Covenant. 
 Of contract. See Conteact. 
 
 Of agreement by tenant, when vendor may sue for after con- 
 veyance, 387. 
 Of trust, what amounts to confirmation of, 26. 
 Trustee of legal estate, liable for facilitating, 38. 
 When use of special conditions amounts to, 76.
 
 590 INDEX. 
 
 BREACH — continued. 
 
 Of trust, and inability to give receipts for purchase-money, dis- 
 tinguislied, 288. 
 vendor's lien affected by, 350. 
 purchaser when affected by notice of, 410. 
 lands purchased in, cestuis que trust may claim, 442. 
 agreement amounting to, not enforced in Equity, 490. 
 
 BEICK-BUILT. 
 
 What is, 56. 
 
 BUILDINGS. 
 
 Pulled down, how valued in taking accounts, 23. 
 Ruinous state of, a patent defect, 40. 
 Removed, to be referred to in sale of lease, 54. 
 Covenants respecting erection of, 360, 362. 
 
 BUILDING LAND. 
 
 Plan of intended improvements, on sale of, 55. 
 
 Adjoining land stated to be, effect of, ib. 
 
 Land sold as, and rights of way, &c., concealed, 64. 
 
 BURIAL. 
 
 Certificate of, how far evidence of time of death, 170. 
 
 BUYING IN. 
 
 Estate by fiduciary vendors, their liability, 37. 
 
 CASE. 
 
 Eor opinion of counsel, whether to be produced, 165, 415. 
 Is not evidence of pedigree, 178. 
 
 On title, not sent to Law, imless purchaser consent, 523. 
 As to costs of, 547. 
 
 CAUTION. 
 
 Purchaser not bound to use excessive, 412. 
 
 CERTIFICATE. 
 
 Of births, marriages, and deaths, evidence, 176. 
 
 Of burial, whether purchaser can require, ib. 
 
 Of acknowledgment by married woman, 270. 
 
 Costs of, 334. 
 
 In bankruptcy, whether a defence to action on covenant, 375. 
 
 CESTUI QUE TRUST. 
 
 Right of, to impeach purchase by trustee, &c., 21 to 26. 
 Under express trust, when barred by 3 & 4 "Will. IV. c. 27, 190. 
 Mortgagor not to be deemed such, 191. 
 Trustee whether barred by possession of, ib.
 
 INDEX. 591 
 
 CESTUI QUE TRUST-contmued. 
 
 Specific performance, when enforced against, 462. 
 "WTien not necessary party to suit, 469. 
 
 CESTUI QUE VIE. 
 
 Death of, before conveyance, on purchase in consideration of life 
 annuity, 117, 118. 
 
 CHAMPEETY. 
 
 What is, 111 to 113. 
 
 CHANCEL. 
 
 Liability fco repair, does not admit of compensation, 52, 506. 
 
 CHANGE. 
 
 Of sohcitors, not notice of change of interest, 412. 
 
 CHARACTEE. 
 
 In which actual notice is acquired, immaterial, 402. 
 
 CHAEGE. See Incumbrance. 
 
 CHAEITY. 
 
 Lands, alienation of, when valid, 7, 571, n. ; aticl see Att.-Gen. v. 
 
 Pilgrim, 14 Jur. 1053. 
 Governor of, lease to, of the lands, invalid, 17. 
 Lands, exchange of, double title to be shown on sale, 136. 
 Trusts for, whether within 3 & 4 Will. IV. c. 27, 190. 
 Conveyance to, must be enrolled in Chancery, 320. 
 As to notice, in cases of, 394, 425. 
 Voluntary conveyance to, is irrevocable, 420. 
 
 CHAETEE. 
 
 Ancient, parcels in, proved by modern usage, 167. 
 
 CHATTELS. 
 
 Agreement for sale of, when valid, 94. 
 
 Passing by delivery, not to be included in conveyance, 255. 
 
 Eeal, of wife, husband's power over, 5, 273, 464. 
 
 CHEQUE. 
 
 Action on, for deposit, when defensible, 88. 
 For purchase-money, when not a payment, 310. 
 
 CHILD. 
 
 Of trustee, purchase by, valid, 20. 
 
 Purchase in name of, when an advancement, 437, et seq. 
 
 And parent, contracts between, when valid, 356, n. (a-). 
 
 CHIEOGEAPH. 
 
 Evidence of Fine, 154.
 
 593 INDEX. 
 
 CHOSES IN ACTION. 
 
 Rules as to, do not apply to equitable estates in land, 393. 
 
 CHUHCHWAEDENS. 
 
 When a corporation to purchase land, 8. 
 EegiJarity of appointment of, presumed, 168, u. 
 
 CIRCUMSTANCES. 
 
 Of parties to contract, evidence of, when admissible, 452. 
 
 CLAIM. 
 
 Party supposed to have, on estate, should be applied to, 42. 
 Notice of, not followed by proceedings, its effect, 164, 526. 
 Moneys paid to compromise, when recoverable, 375. 
 Notice of, its effect, 407, et seq. 
 Particulars of, to be delivered in action, 456. 
 As to proceeding by, under Orders of April, 1850, 473, et . ^ 
 Adverse, by persons not parties to smt, decree does not bar, 533. 
 Against moral equity, its effect on costs, 541. 
 And see Inctjmbbances. 
 
 CLASS. 
 
 Unincorporated, cannot purchase, 8. 
 
 More favoured as respects laches than individuals, 25. 
 
 CLEAR YEARLY RENT. 
 
 What is, 56. 
 
 CLERK. 
 
 Of auctioneer is agent of both parties, 82. 
 
 Of agent cannot bind principal, 87. 
 
 Of solicitor, &c., may not disclose professional communications, 
 
 414. 
 Master's, deposit not paid to, on sale by Court, 592. 
 
 CLIENT. -See Solicitob. 
 
 CODICIL. 
 
 must be produced, on sale by devisee under will, 165. 
 
 COHABITATION. 
 
 May raise presumption of marriage, 171. 
 If illicit, presumably continues so, ib. 
 
 COLLATERAL. 
 
 Relations, as to limitations to, in settlements, 421, et seq. 
 Securities, mortgagee selling, after foreclosure, cannot resort 
 to, 430. 
 COLLIERY. 
 
 As to opening biddings on sale of, 557. 
 
 Purchaser of, from Court, when entitled to profits, 566.
 
 INDEX. 593 
 
 COLONIES. 
 
 Modes of conveyance in, 257, n. 
 
 COMMENCEMENT. 
 
 Of title, conditions as to, 67, 68. 
 
 what is a sufBcient, 138 to 140. 
 Of suit, what is, 188, n. 
 
 COMMENDATION. 
 
 Of estate by vendor, what allowable, 43 to 45. 
 
 COMMISSION. 
 
 Auctioneer filing bill of interpleader, cannot claim out of 
 
 deposit, 81. 
 Auctioneer's right to, 82. 
 Broker's, allowed, among costs of re-investment, 337, n. 
 
 COMMISSIONER. 
 
 Of bankrupts, cannot buy the estate, 17. 
 For inclosure, cannot buy lands in parish, ib. 
 Regularity of appointment of, presumed, 161, 168. 
 For tithe commutation, power of, 135, 181. 
 
 COMMITTEE. 
 
 Of lunatic, may set aside conveyance b}', 3. 
 May convey, imder statute, 4. 
 Cannot purchase or rent the estate, 17. 
 Specific performance enforced by and against, 461, 462, 464. 
 Of lunatic vendor, purchase -money to be paid to, 537. See 
 FiDuciAEY Chakactee and Stattjtoet Ownees. 
 
 COMMONS INCLOSURE ACT. 
 Title to lands held under, 136. 
 
 COMMON. 
 
 Liability to right of, does not admit of compensation, 52, 506. 
 
 But purchaser may elect to take subject to, with compensation, 
 503. 
 
 Rights of, title to under Prescription Act, 184 to 188. 
 
 Title to limited instead of unlimited right of, admits of compen- 
 sation, 508. 
 
 Right of, unlikely to be enforced, held immaterial, 526, sed qu. 
 
 COMMON. 
 
 Tenant in, possession of one does not save rights of others 
 
 under 3 & 4 Will. IV. c. 27, 192. 
 Buying of another, entitled to abstracts of general title, 134. 
 
 COMMUTATION. 
 Of tithe, 181. 
 
 Q Q
 
 5^4 INDEX. 
 
 COMPENSATION. 
 
 Defects &c. not admitting of, avoid contract if undisclosed, 52. 
 
 Condition respecting, 62. 
 
 May be used by mortgagee, 77. 
 
 What matters do not admit of, 63 to 65. 
 
 Fiduciary vendors cannot allow, 65. 
 
 Purchaser when entitled to defective estate, with, 71, 499, 
 
 et seq. 
 Waiver of title, not always waiver of, 221. 
 To landowners, for severance, &c., not liable to stamp duty, 257. 
 For breach of contract, whether purchaser bound to pay 
 
 interest during delay in showing title, can claim, 300, et seq. 
 Vendor's or purchaser's right to, for difference in quantity, 304, 
 
 et seq. 
 Purchaser's right to, for deficiency in quality, 309. 
 For personal inconvenience, &c., when allowed to statutory 
 
 vendor, 312. 
 For misstated rental, allowed to purchaser from the Court, 
 
 after conveyance, 571. 
 And see Abatement and Puechase-Monet. 
 
 COMPLETION. 
 
 Conditions should fix time for, 58. 
 
 Relative rights of vendor and purchaser imtil, 115 to 121. 
 
 Death of vendor before, relative rights of his representatives, 
 121 to 124. 
 
 Death of purchaser before — relative rights of his representa- 
 tives, 125 to 128. 
 
 COMPOSITION. 
 
 For tithe — Commissioners may decide on validity of, 181. 
 How otherwise proved, 182. 
 
 COMPROMISE. 
 
 WTien purchaser can recover from vendor, moneys paid for, 375. 
 By Court, in respect of costs, 542. 
 
 COMPULSORY POWERS. 
 
 Of Railway Companies — time for exercise of, 28. 
 
 Second notice may be given under, 118. 
 
 Notice Tinder, to what extent a contract, 98, 122. 
 
 CONCEALED. 
 
 Fraud, time does not run during, 190, 427. 
 
 CONCEALMENT. 
 
 Of defects, &c., by vendor, 39 to 43, 530. 
 Of advantages, &c., by purchaser, 46.
 
 INDEX. 595 
 
 CONCEALMENT— eon^fnwec?. 
 
 Of claim by incumbrancer, &c., 228, 395. 
 
 Inadequacy of consideration, resulting from, its effect, 353, 510. 
 
 Contract procured by, equity will not enforce, 492. 
 
 CONCUEEENCE. 
 
 Of husband, in conveyance by wife, when dispensed with, 273. 
 Of necessary party in settlement, a good consideration, 420. 
 Of others, vendor when required to procure, 498. 
 
 CONDITIONS. 
 
 Subsequent or precedent, as aflfecting trusts for and powers of 
 
 sale, 30, 31. 
 Purchaser of reversion, his rights in respect of breach of, 386. 
 Mutual, in contract, whether independent, 450. 
 
 CONDITIONS OF SALE. 
 
 Depreciatory, should not be used by fiduciary vendors, 34, 
 
 General construction of, 48 to 51. 
 
 Against retracting biddings, 57. 
 
 As to deposit, ih. 
 
 For delivery of abstract, ib. 
 
 Eestrictive of purchaser's right to abstract, 58. 
 
 As to time for completion, and interest, 58 to 60. 
 
 For preparation and execution of conveyance, 60. 
 
 For apportionment of rent, ib. 
 
 As to crops, fixtures, and timber, 61. 
 
 As to misdescriptions, and for compensation, 62 to 65. 
 
 As to deeds and attested copies, 65, 66. 
 
 Eestrictive of purchaser's right to title and evidence, 66 to 68. 
 
 As to identity, 69. 
 
 Stringent conditions not favoured, ib. 
 
 As to expenses, 70. 
 
 As to indemnity against charges, &c., ib. 
 
 As to time for objections, &c., 70 to 72. 
 
 As to resale, and forfeiture of deposit, 73, and see 451. 
 
 Matters of fact stated in, must be proved, 73. 
 
 Special, what generally required in various cases, 74 to 76. 
 
 Use of special, by fiduciary vendors, 76 to 78. 
 
 Effect of express power to sell under special, 78. 
 
 What objections respecting, are objections to title for purpose 
 
 of reference, 520. 
 What usually omitted, on sale by Court, 552. 
 
 CONDITIONAL POWEES AND TEUSTS. 
 As to sales under, 30. 
 
 Q Q 2
 
 596 INDEX. 
 
 CONDUCT. 
 
 Of parties, evidence of illegitimacy, 170. 
 
 Whether admissible as evidence against advancement, 439. 
 
 CONFIEMATION. 
 
 Of alien's title, by Crown, 9. 
 
 Of voidable purchase by trustees, &c., 26. 
 
 Of void exchanges, by Tithe Commutation Commissioners, 
 
 135, n. 
 Deed of, recitals of objections in, 254. 
 
 not liable to ad valorem duty, 330. 
 Volimtary, of sale by reversioner, when invahd, 355. 
 Advised, of purchase at undervalue, bars relief, 359. 
 Of Master's report on sale by Court, purchaser's rights, &c., 
 before, 554, et seq. 
 
 how obtained, 559. 
 effect of, 560. 
 
 CONSENT. 
 
 To sale, by party thereby benefited, valid, 30, 35. 
 
 General, to sale, whether sufficient, 34. 
 
 Of parties agreeing to join in sale, should be in writing, 132. 
 
 When insufficient, 132. 
 
 To inclosure and exchanges under inclosure Acts, as to proof of, 
 
 135, 136. 
 Of protector, to disentailing assurance, 321, 322. 
 
 deed of, vendor pays for, 334. 
 Of trustees, tenant for life contracting to sell without, 495. 
 
 CONSIDERATION. 
 
 Incapacitated vendors or purchasers impeaching sale, must re- 
 store, 3, 4, 6, 11, 12. 
 
 Fiduciary vendors may seU, for what, 35, 36. 
 
 On sale of reversion, condition, on re-sale, against requiring 
 evidence of its sufficiency, 76. 
 
 Cannot be sued for as such, on parol contract, 93. 
 
 Transfer of parol contract, when a good, ib. 
 
 Statement of in conveyance, 254, et seq. 
 
 What duty payable on, and on what, 254, et seq. ; 326, et seq. 
 
 No part of to be retained by statutory vendor, 311. 
 
 What sufficient to support settlement, 420, et seq. 
 
 Purchaser for, how protected in equity. See Ch. XV. 
 
 Inadequacy of, when conveyance set aside for, 354, et seq. 
 
 Inadequacy or excess of, a defence in equity, 510, et seq. 
 a ground for refusing costs, 543.
 
 INDEX. 597 
 
 CONSTRUCTION. 
 
 Of particulars and conditions of sale, 48 to 51. 
 
 Of doubtful instrument, purchaser wlietlier bound to notice, 
 
 404. 
 Of agreement, case of plaintiff insisting on his own, 533. 
 
 CONTINGENT. 
 
 Interests in real estate, married woman can convey, 275. 
 
 Interests in copyholds, are now alienable, 324. 
 
 Event, as to vendor's lien for purchase-money payable on, 347, 
 
 et seq. 
 Reversion, as to inadequacy of consideration paid for, 355. 
 Estates, owners of, when parties to suit, 469. 
 Amount of consideration, effect of, on question of inadequacy, 
 
 511. 
 Consideration, failure of, its effect, 117, 512. 
 
 CONTRACT. 
 
 As to restrictions on general power to enter into, 1 to 14. 
 
 Fiduciary vendors may not without special authority rescind, 
 37. 
 
 Condition for rescinding, how far available, 71, 72. 
 
 By agent, 85. 
 
 As to contracts in writing, see Ageeement. 
 
 Effect of, on relative rights of parties, 114 to 12^. 
 
 Purchaser entitled to estate, and vendor to money, 114. 
 
 Purchaser's general rights under, against vendor, 115 to 118. 
 
 Vendor's general rights under, against purchaser, 118 to 120. 
 
 Rights of parties, under hiter se, not affected by death, bank- 
 ruptcy, &c., 120. 
 
 Relative rights under, of vendor's real and personal representa- 
 tives, if he die before completion, 121 to 124. 
 
 And of purchaser's, if he die, &c., 125 to 128. 
 
 Effect of contract in various special cases, 128, 129. 
 
 Purchaser's right to rescind on notice, for delay, 212, et seq. 
 
 By tenant in tail, cannot be enforced against issue or remainder- 
 men, 394, 463. 
 
 For purchase or sale, remedies at law for breach of, Ch. XVII. 
 remedy in Equity, &c., Ch. XVIII. 
 
 Plaintiff rescinding after biU filed, no costs given, 542. 
 
 CONTRIBUTION. 
 
 To paramount charges, 428. 
 Siut for by joint purchaser, 434. 
 
 CONVERSION. See Contbact.
 
 598 INDEX. 
 
 CONVEYANCE. 
 
 Common condition respecting, whether necessary, 60. 
 
 Eequisition that stranger shall join in, an objection to title 
 within common condition for rescinding contract, 72. 
 
 Eights of parties, before, see Contbact. 
 
 Approval of draft of, whether an agreement, 107. 
 
 Memorandum of transfer of chattels, when subject to duty as, 
 111. 
 
 Of legal estate, under statute, 121, 277, et seq., 537, et seq., and 
 569. 
 
 To purchaser, when it revokes prior demise, 127. 
 
 Incumbrances, considered matters of, in Equity, 133. 
 
 Preparation of, whether waiver of title, 218. 
 
 As to the preparation of generally, Ch. XII. 
 
 As to its execution, &c., 269, et seq. 
 
 As to its registration, enrolment, &c., 317, et seq. 
 
 As to the stamps, 325, et seq. 
 
 As to the costs of, 334, et seq. 
 
 Its effect on relative rights of vendor and purchaser, Ch. XIV. 
 On adverse rights of third parties, Ch. XV. 
 
 Eights imder, of joint purchasers, &c., Ch. XVI. 
 
 Costs of, whether recoverable at Law, 416. 
 
 Plaintiff at Law, whether bound to tender or execute, 449, 450. 
 
 Eefusal to execute, no defence to action on security for pur- 
 chase-money, 451. 
 
 Giving instructions for, not a part performance, 478. 
 
 Execution of, by vendor, not a part performance, 482. 
 
 Of property by -vendor, pendente lite, when restrained, 518. 
 
 Preparation and execution of, in suit for specific performance, 
 535, et seq. 
 
 and in sales by the Court, 567, et seq. 
 
 CONVEYANCEE. 
 
 Certificated, whether he may prove notice to client, 414. 
 
 COPAECENEE. 
 
 Possession of one, does not save others' right of action, 192. 
 Estate of, how affected by judgment, 231. 
 
 COPPICE. 
 
 Vendor in possession may cut, for benefit of purchaser, 116, 515. 
 Improper cutting of, by purchaser, restrained, semhle, 119. 
 
 COPIES. 
 
 Condition that purchaser shall pay for, mortgagee may use, 77. 
 Of deeds, or enrolments of deeds, when evidence, 152, 153. 
 Of recoveries. Crown gi-ants, legal proceedings, &c., 154 to 156.
 
 INDEX. 
 
 599 
 
 CO^PIES— continued. 
 
 Office, usually received in evidence, 156. 
 
 Certified, of records, under 1 & 2 Vict. c. 94, ih. 
 
 Of wUl vrlien are received, 157. 
 
 Of records, under 3 & 4 Will. IV. c. 74; and 1 & 2 Vict. c. 94, 
 
 155, 156. 
 Of instrviments on record, vendor must verify abstract by, 202. 
 Covenant for right to take, of documents not delivered, 263. 
 Purcliaser's rigbt to, on completion, 314, et seq., 570. 
 Copy of agreement, production of, wben ordered at Law, 453. 
 And see Attested Copies. 
 
 COPIES OF COTJET EOLL. 
 
 Evidence, although not the original copies, 150. 
 Examined copies evidence, ih. 
 Steward to deliver out, stamped, 330. 
 And see Copies. 
 
 COPYHOLD. 
 
 Customary restriction on alienation of, in parcels, removed, 7, n. 
 
 Quit rents, &c., need not be noticed on sale of, 53. 
 
 Vague description of, on Court rolls, sufficient, 69. 
 
 Enfranchised, conditions proper on sale of, 74. 
 
 Formerly waste, conditions, &c., 75. 
 
 Subsequently surrendered to use of, would pass by prior will, 
 
 127. 
 Sixty years' title to be abstracted, on sale of, 138. 
 Assurances of, how proved, 150, 151. 
 Surrender of, presumed, 159. 
 Not extendable on a judgment under old law, 231. 
 Aliter under 1 & 2 Vict. c. 110, 233, et seq. 
 Kot extendible by Crown process, 241 Ised aliter as respects 
 
 a term for years in copyholds ; see Prid. on Judg. 3rd edit. 
 
 155]. 
 Court rolls should be searched on purchase of, 242. 
 Not withia the merger of Satisfied Terms Act, 248. 
 Consideration to be apportioned, on purchase of, with other 
 
 property, 255. 
 Vendor must surrender, in person, 269. 
 Assurance of, by married women, 272. 
 
 under the Trustee Act, 1850, 279. 
 by tenant in tail, 321. 
 Entry of assurances on Court EoUs, 323. 
 
 on sale to Eailway Companies, &c., 324. 
 Contingent interests in, are now aUenable, ib.
 
 600 INDEX. 
 
 COTYROJA)— continued. 
 
 Expenses liow borne, on sale of, 335. 
 
 Covenants will run with, 365. 
 
 Conveyance of, tinder private Act, effect of, 429, n. 
 
 Purchaser need not take, instead of freehold, 504. 
 
 COENWALL. 
 
 Duchy of, — evidence of deeds relating to, 153, n. 
 
 CORPORATION. 
 
 Cannot hold lands without a license, &c., 8. 
 
 Municipal, can sell under Lands C. C. Act, 1845, with consent 
 
 of Treasury, 37. 
 On sale of lease granted by, freehold title must be shown, 137. 
 Modus, on exemption from tithe, how proved against, 182. 
 How affected by 3 & 4 Will. IV. c. 27, 188, 197. 
 
 CORRESPONDENCE. 
 
 May constitute agreement for sale, &c., 97, 98. 
 Test of its suflBciency as an agreement, 104. 
 
 COSTS. 
 
 Fiduciary vendor, obtaining leave to purchase trust estate must 
 pay, semble, 22. 
 
 Of application that mortgagee may bid in bankruptcy, 18, n. 
 
 Fiduciary vendor purchasing, pays, if sale set aside, 24. 
 
 Fiduciary vendors liable to, as against purchaser, 38. 
 
 Of auctioneer, when allowed out of deposit, 81. 
 
 Of abstract, 130, 131. 
 
 Of production of deeds, 201. 
 
 Incurred by vendor before fatal objection by purchaser, 216, 542. 
 
 Landowner has no Hen for, on sum deposited by Railway Com- 
 pany, 225. 
 
 Of unnecessary searches, disallowed, 244. 
 
 Tender's solicitor has no lien for, on conveyance, 267. 
 
 Of the purchase, generally, 334, et seq. 
 
 Of statutory vendors, 336. 
 
 Of re-investment, &c., what payable by Railway Companies, 337, 
 et seq. 
 
 Taxation of, under G & 7 Tict. c. 73, 340, et seq. 
 
 Whether purchaser allowed, if conveyance set aside for in- 
 adequacy of consideration, 358. 
 
 Paid by purchaser to adverse claimant, when recoverable under 
 
 covenants for title, 375. 
 Of ejected purchaser, recoverable under covenants for title, 
 
 377. 
 Purchaser allowed, if sale set aside for fraud in vendor, 380.
 
 INDEX. 601 
 
 COSTS — continued. 
 
 What not recoverable in action at Law, 446. 
 
 General rules respecting, in suits for specific performance, 539, 
 
 et seq. 
 On sales by the Court, 558, 559, 560, 563, 565, 567, 572. 
 COUNSEL. 
 
 May not buy up charges on client's estates, 17. 
 
 Opinion of on abstract, purchaser's right to, if contract go off, 
 
 130. 
 As to consulting, on abstract, for vendor, 145. 
 Or on behalf of purchaser, 147. 
 
 Acceptance of defective title by, does not bind client, 149, 217. 
 Confidential communications to, as to non-disclosure of, 165, 
 
 414, et seq. 
 Usually directs what searches, 230. 
 Notice to, is notice to client, 412, et seq. 
 But his evidence is inadmissible in proof of notice, 414. 
 Opinion of, is taken by Master, on title, and conveyance, 523, 
 
 536. 
 Opinion of, does not save costs, 540. 
 COUET. 
 
 Payment into, of purchase-money, under sales by statutory 
 
 owners, its investment and application, 312. 
 Sales under order of, Ch. XIX. 
 COURT EOLLS. 
 
 To be searched on purchase of copyholds, 242. 
 
 Assignees omitting to enter their title on, yet not postponed, 
 
 396. 
 If not searched are not notice, 410. 
 COYENANTS. 
 
 Unusual in lease, notice of lease is notice of, 53. 
 
 In lease, deceptive statement respecting, fatal, ib. 54. 
 
 Should not be referred to as " usual," 75. 
 
 Evidence of performance of, condition as to, ih. 
 
 How affected, if lessor purchase underlease, 129. 
 
 What should be inserted in conveyance, 258, et seq. 
 
 Conveyance in consideration of, whether vendor's lien exists, 
 
 347, et seq. 
 Vendor's remedies on purchaser's, 360, et seq. 
 Purchaser's remedies on vendor's, 363, et seq. 
 By lessee, who may sue on after sale of reversion, 386. 
 By A. and B., relative values of, Court will not determine, 
 
 418, n., 502, n. 
 To indemnify husband, a consideration for separation deed, 420.
 
 602 INDEX. 
 
 COY^lSAliiTS— continued. 
 
 To settle land, purchase wlien a performance of, 442, n. 
 Unexpected liability to, a defence to specific performance, 507. 
 
 COYENA^^TS FOE TITLE. 
 
 Fiduciary vendors covenant only against incumbrances, 37. 
 
 Except under special circumstances, 261, 262. 
 
 Condition respecting, usual, 78. 
 
 Wbat entered into by vendor, in various cases, 258, et seq. 
 
 Breach of, what amounts to, and purchaser's remedies, 366, ef seq. 
 
 For further assurance, purchaser's remedy under in equity, 383 
 
 et seq. 
 Purchase-money when applicable in discharge of incumbrances 
 
 covered by, 381, 390. 
 
 COVENAJS'T FOR PEODUCTION. 
 
 Of deeds not delivered, purchaser's right to, 65, 158, 263, 316. 
 
 When to be entered into by separate deed, 263. 
 
 When to be made determinable on parting with deeds and pro- 
 curing substituted covenant, il. 
 
 To prior covenantees, purchaser taking deeds must enter into, 
 265, 314. 
 
 "VMiether to be required under covenant for further assxirance, 
 370. 
 
 COYERTUEE. 
 
 1^0 excuse for participation in fraud, 228. See Mabbied 
 
 Woman. 
 Estate of husband during, bound by judgments, 231. 
 
 CREDITOR. 
 
 Of bankrupt, advising on sale, cannot purchase, 17. 
 
 Execution, may buy the estate, 19. 
 
 Under composition deed, not bound by majority to voidable 
 
 sale, 21. 
 Single, may compel sale of bankrupt's estate, 28. 
 Creditors of insolvent, direct time, mode, and place of sale, 
 
 32. 
 Letters to, when not sufficient agreement within Statute of 
 
 Frauds, 99. 
 Of purchaser, by judgment, his rights against vendor before 
 
 completion, 115. 
 Judgment, when necessary parties to conveyance, 250. 
 Vendor's lien for purchase-money is valid against, 345. 
 Conveyance in trust for creditors, when voluntary, 420, 424. 
 What conveyances fraudulent against, 426.
 
 INDEX. 603 
 
 CEOPS. 
 
 Condition as to payment for, 61. 
 
 Growing, written agreement for sale or purchase of, when 
 
 necessary, 93 to 95. 
 Who entitled to, until time fixed for completion, 115. 
 Vendor may get in, pending completion, 116, 515. 
 
 CEOWN. 
 
 Eights of, against estates of traitors and felons, 6, 13. 
 
 or of aliens, 8, 9. 
 Grant from, to be abstracted, on sale of estate held under, 139. 
 how proved, 155. 
 vendor stating place of enrolment of, need not 
 
 produce, 202. 
 of advowson, presumed, 159. 
 Title acquired against, by adverse possession, 200. 
 Process, what estates are liable to, 212. See Copyholds. 
 Protection against debts to, under 2 Vict. c. 11, 241, 399. 
 Gives no covenants, 262. 
 Eight of, as respects mines, 527, u. 
 CULTIVATION. 
 
 Compensation claimable, for state of, misdescribed, 309. 
 
 or for deterioration through want of, 
 306. 
 CUETESY. 
 
 Estate by the, subject to judgments, 231. 
 
 CUSTODY. 
 
 Of deeds — condition as to, 66. 
 
 " Proper," what is, 152, n. 
 
 Of deeds of settled estate, right to, 201, n. 
 
 CUSTOM. 
 
 Universal, conditions not to be read so as to contravene, 48. 
 Manorial, or local, need not be noticed in particulars, 53. 
 That steward shall prepare surrenders, valid, 245. 
 Negativing doctrine of resulting trusts, is bad, 436. 
 Evidence of, when admissible to explain agreement, 452. 
 
 CUSTOMAEY FEEEHOLDS. 
 
 Whether subject to judgments under old law, 231. 
 Are subject to judgments under new law, 235, ef seq. 
 Are not within Merger of Satisfied Terms Act, 248. 
 And 3 & 4 Will. IV. c. 74, s. 53, does not apply to, 322. 
 As to assurances of, 257, n. 
 
 CUSTOM AEY HEIE. 
 
 May sue on covenants for title before admittance, 374.
 
 604 INDEX. 
 
 CUSTOiVIAEY. 
 
 jVIeasurements abolished, 303. 
 
 DAMAGES. 
 
 What recoverable for breach of covenants for title, 374. 
 
 When claimable as a debt in administration suit, 376. 
 
 Kot apportioned between tenant for life and remainderman, 377. 
 
 What recoverable at Law for breach of contract, 445, et seq. 
 
 Recovery of in-prior action, a defence at Law and in Equity, 
 4-55, 516. 
 
 Not recoverable in equity for breach of contract, 459. 
 
 Presumed inadequacy of, the ground for decreeing specific per- 
 formance, ih. 
 
 Inability to recover at Law, when a defence in Equity, 496. 
 
 By abstraction of subject of contract pendente lite, ascertained 
 by action, 534. 
 And see Action. 
 DEAN AND CHAPTEE. 
 
 Sale of lease granted by, whether freehold title must be pro- 
 duced, 137. 
 
 On sales by, time is of essence of the contract, 209. 
 
 DEATH. 
 
 Of life tenant, must bo disclosed in dealing with reversioner, 
 
 46. 
 Of life tenant, cestui que vie, or annuitant, pending contract, its 
 
 effect, 116 to 118, 511. 
 Of either party, contract not affected by, 120. 
 Of purchaser, intestate and without heir, before completion, 
 
 vendor may retain estate and purchase-money, 119. 
 Of vendor, before completion, relative rights of his real and 
 
 personal representatives, 121 to 124. 
 Of purchaser, before, &c., relative rights of his, &c., 125 to 128. 
 j# Presumption of, and as to time of, 172 to 174. 
 \l Without issue, 174 to 176. 
 " Evidence of, 176 to 180. 
 
 Of vendor or purchaser, who may sue and be sued for breach 
 of contract, 448. 
 
 for specific performance in Equity, 461, 462. 
 Of husband, effect of, on his contract to sell wife's chattels real, 
 
 464. 
 Of purchaser under decree, effect of, 555. 
 
 DEBT. 
 
 From vendor's agent to purchaser may not be discharged out 
 of purchase-money, 87.
 
 INDEX. 605 
 
 DEBT — continued. 
 
 Purcliase-money is a, from purchaser, 114 ; and see 535. 
 Mortgage, mortgagee need not receive before time fixed for 
 
 redemption, 276 ; see 568. 
 Trust to pay debts, purchaser when bound to see performed, 
 
 284, et seq. 
 Charge of debts in wUl, equivalent to trust for sale, 291. 
 Statutes makkig real estate assets for payment, do not amount 
 
 to charge of, 292. 
 Purchaser from heir or devisee need not see to payment of, ib. 
 When subject to ad valorem duty, on conveyance, 326. 
 Damages, when claimable as, in administration suit, 376. 
 
 DECEPTIVE PLAJST OE STATEMENT. 
 
 Avoids what would otherwise be notice of defects in estate, 54. 
 
 DECISION. 
 
 At Law, Equity will not overrule, but direct a case, 525. 
 Of Court below, does not in Appellate Court render title doubt- 
 ful, ih. 
 Eeported, bill filed on authority of, may be dismissed without 
 costs, 543. 
 
 DECLARATION. 
 
 Verbal, at time of sale, effect of, 49, 50. 
 Statutory by vendor, not evidence in support of title, 166. 
 By members of family, evidence in matters of pedigree, 177. 
 By strangers, not generally evidence of pedigree, yet acted on 
 
 by conveyancers, 175, 177. 
 Must be made ante litem motam, 179. 
 May be made by party in like interest, 180. 
 Of identity, should accompany extracts from Eegisters, 176. 
 Of trust, and agreements, distinguished, 435. 
 What admissible, to rebut presumption of advancement, 439. 
 
 DECEEE. 
 
 Sale under, not within Statute of Frauds, 91, 555. 
 
 Eor payment, has the effect of a judgment, 238, 535. 
 
 Is not notice, 410. 
 
 Form of, in suit for specific performance, 532, et seq. 
 
 Does not affect persons not parties to suit, 533. 
 
 Eeversed, no interest allowed on money paid imder, 538, 548. 
 
 Sales under, Ch. XIX. 
 
 DEDUCTION. 
 
 Of title by abstract, should be in regular order, 142.
 
 606 INDEX. 
 
 DEEDS. 
 
 Vendor must produce all, but need not state defects apparent 
 
 thereon, 41. 
 Condition respecting production, and copies' of, 65, 66. 
 Loss of, its effect on title, 65, 145. 
 Examination of, with abstract, 147. 
 Proof of, 151 to 154. 
 Presumption of, 159, 160. 
 Presumption of formalities relating to, 161. 
 Production of, Ch. IX., and see Covenant fob Pboduction. 
 Purchaser's right to, and to copies of, &c., on completion, 314, 
 
 et seq. 
 Not protected at Law by vendor's lien for purchase-money, 345. 
 Omission to ask for, its effect as regards priority, 345, 395, 
 
 et seq. 
 Notice of, as affecting property, is notice of entire contents, 404, 
 
 407, et seq. 
 Attesting witness, not affected with notice of contents of, 411. 
 Not produced, unless required in reference of title, 522. 
 But Master may call for, if necessary, ib. 
 Burnt after contract, and title therefore bad, yet bill dismissed 
 
 with costs, 540. 
 Purchaser's right to, on sale by Court, 569. 
 DEFAMATION. 
 
 Of title, when action lies for, 46. 
 DEFAULT. 
 
 Condition that purchaser making default shall pay interest, 59, 
 
 299. 
 Eents receivable but for, account when extended to, 294, 306, 
 
 358, 427. 
 WUful, what is, 299, n. 
 Meaning of, in covenants for title, 369. 
 
 DEFECTS. 
 
 Patent and latent, what are, 39, 40. 
 
 Disclosure or concealment of by vendor, 39 to 43. 
 
 In title, how to be guarded against by conditions, 68. 
 
 What not included in acceptance of title, 149. 
 
 In client's title, not to be disclosed to client entitled to take 
 
 advantage thereof, ib. 
 Known, in title, as to covenants against, 262, 369. 
 In estate, abatement of purchase-money in respect of, 307, 
 et seq. 
 when a defence against specific performance, 497, 
 et seq.
 
 INDEX. 607 
 
 DEFECTS— continued. 
 
 In estate or title, after conveyance, purchaser's general remedies 
 
 for, depend on vendor's covenants, 363, et seq. 
 In title, what damages recoverable for, if no e\actiou, 374. 
 
 purchaser's equitable remedy for, under special circum- 
 stances, 378, et seq. 
 when a defence against specific performance, 498 to 510, 
 523, et seq. 
 In execution of power, when suppHed in Equity, 394. 
 In fines and recoveries, and sales of land tax, supplied by 
 statute, 399. 
 
 DEFENCE. 
 
 Grounds of, in Law, admitting the agreement, 454. 
 
 Equity, against specific performance, except with 
 variation, 484 to 488. 
 negativing in toto plaintiff's right to 
 specific performance, 488 to 516. 
 Frivolous, may be disposed of on motion, semble, 520. 
 Nature of, its effect on costs, 540, et seq., 545. 
 
 DEFICIENCY. 
 
 In personal estate, as to sales to make good, 289. 
 In quantity or quality of estate, compensation for, 307 to 309. 
 In rental, compensation for, to purchaser from Court, after con- 
 veyance, 571. 
 
 DELAY. 
 
 By infant, to impeach voidable purchase, bars relief, 10. 
 
 Or by cestui que trust, to impeach purchase by trustee, 25. 
 
 Or by vendor to impeach sale at undervalue, 359. 
 
 In payment of purchase-money, condition as to interest, 59. 
 And see Interest. 
 
 In delivery of abstract, effect of, 58, 146. 
 
 In Post Office, party sending letter not responsible for, 101. 
 
 Waiver of, 213, 214. 
 
 In completion, payment of interest in cases of, 293, et seq. 
 
 Effect of express agreement to pay interest during, 298, et seq. 
 
 In showing title, &c., fatal at Law, 456. 
 
 In filing bill, a defence in equity, 514. 
 
 Reference of title before hearing, refused on ground of, 521. 
 
 Held not to be a groimd for forcing clearly bad title on pur- 
 chaser, 531. 
 
 Bill dismissed on ground of, dismissed without costs, 542. 
 And see Time. 
 DELEGATION. 
 
 Of sale by auctioneer, inadmissible, 80.
 
 608 INDEX. 
 
 DELIVEKY. 
 
 Of abstract, condition respecting, 57, 58. 
 
 neglect in, its effect, 146. 
 
 waiver of, 213, 214. 
 Of deeds by mortgagee to mortgagor, does not affect priorities, 
 
 395. 
 Of particulars of claim in action, 456. 
 
 DEMAND. 
 
 Constant, of title, modifies wbat would otherwise be waiver, 221. 
 Eight of defendant to stop suit, on submitting to, 545. 
 
 DENIAL. 
 
 Of claim on estate, binds the party, 42. 
 
 DENIZATION. 
 
 Effect of, 9. 
 
 DENOMINATION. 
 
 Erroneous, stamps of, when sufficient, 333. 
 
 DENOTING STAMP. 
 
 May be affixed, in certain cases, 329, 330. 
 
 DEPENDENT. 
 
 Stipidations in agreement, what are, 449, et seq. 
 
 DEPOSIT. 
 
 Condition for payment and investment of, 57. 
 
 For forfeiture of, 73, 88. 
 
 Purchaser cannot elect to forfeit, and avoid contract, 87. 
 
 Except, perhaps, under special circumstances, on sale by Court, 
 
 573. 
 Auctioneer cannot receive more than, 81. 
 When allowed his charges out of, ib. 
 His liability in respect of, ib. 
 
 As to payment, investment, and forfeiture of, 87, 88. 
 Heceipt for, may constitute agreement, 98. 
 Vendor rescinding contract need not return, nor need purchaser 
 
 rescinding sue for, 212. 
 What to be made by railway companies before entry, 224, 
 
 et seq. 
 Of deeds on completion for joint benefit of parties, 315, 570. 
 Equitable mortgage by, prevails against subsequent judgment, 
 
 237. 
 Of deeds, notice of, is notice of lien of depositee, 408. 
 On purchase-money, purchaser's right to recover at Law, 444, 
 
 et seq., 451.
 
 INDEX. 609 
 
 DEPOSIT— continued. 
 
 Action for, when not restrained in Equity, 446, 456, 518. 
 
 Return of, when decreed in Equity, 88, 538. 
 
 Cannot be set off against costs, 547. 
 
 Not usually required, on sale by Court, 552. 
 
 "WTien required, how to be paid, 553. 
 
 What required, on opening biddings, 558. 
 
 DEPEECIATOEY. 
 
 Remarks, &c. by purchaser, their eiFect, 46. 
 
 Conditions on sale by fiduciary vendors, what are, 76 to 78. 
 
 DESCENT. 
 
 If recent, proof of ancestor's intestacy required, 165. 
 Of person last entitled having been the stock of, presumption 
 as to, 168, 169. 
 
 DESCEIPTION. 
 
 Of property in particulars, matters to be attended to in, 51 to 56. 
 
 Inconsistent, not provided for by usual condition as to iden- 
 tity, 69. 
 
 Vague, of copyhold, sufficient, lb. 
 
 General, of estate, sufficient in agreement, 101. 
 
 Specific, of documents referred to in agreement, not essential, 
 103. 
 
 Of party, cannot amount to a signature, 106. 
 DESTEUCTION. 
 
 Of deeds, efiect of, on title, 142. 
 
 liability of mortgagee for, 205. 
 
 Of conveyance, vendor must execute duplicate, 371 . 
 
 Accidental, of property, purchaser bears, when, 117, 498, 554, 
 560. 
 
 DETEEIOEATION. 
 
 Trustee, &c. purchasing is liable for, if sale set aside, 23. 
 
 Accidental, after contract, is borne by purchaser, 116, 498, 560. 
 See 554. 
 
 To estate, through fault of vendor, effect of, 306, 307. 
 DETEEMINABLE. 
 
 Interest, wlien sold, should be so described, 52. 
 
 Character of the property, may make time essential, 209. 
 
 Interest, purchaser of from Court bears loss of, before confirma- 
 tion, 555. 
 
 DEVISE. 
 
 By vendor, how affected by contract for sale, 1'21 to 124. 
 By purchaser, how affected, &c., 126 to 128, 387. 
 General, not sufficient root of title, 141. 
 
 R R
 
 610 INDEX. 
 
 DEVISEE. See Devise. 
 
 Purchaser from, must see to payment of legacies, but not of 
 
 debts, 292. 
 Selling, must produce any subsequent mil or codicil, 165. 
 Conveyance from, under the Trustee Act, 277, et seq. 537. 
 May sue on covenants for title, when, 37-1. 
 Liability of, on ancestor's covenants, 376. 
 May set aside settlement actually fraudulent, 424. 
 When party to suit for specific performance, 469. 
 
 DIFFICULTY. 
 
 Of ascertaining compensation, a ground for refusing specific 
 performance, 502, n. {p). 
 
 DIGNITIES. 
 
 Judgments affect estates granted in support of, 231. 
 
 DILAPIDATIONS. 
 
 Generally admit of, and give right to, compensation, 63, n. (e), 
 309. 
 
 DIMENSIONS. 
 
 Of property, misstated, purchaser can claim abatement, though 
 the occupying tenant, 54. 
 
 DIMINUTION. 
 
 Of purchase-money, grounds for, 306, et seq. 
 
 DIEECTION. 
 
 To pay purchase money to stranger, when irrevocable, 86. 
 In decree for specific performance, what inserted, 534, et seq. 
 
 DIRECTORS. 
 
 Of public company, their power to contract, 108. 
 
 DISABILITY. 
 
 Persons under, enabled to convey by statute, 6. 
 
 See Statutohy Owners, and Statute of Limitations. 
 
 DISCHARGE. 
 
 For purchase-money, trustees, &c., when able to give sufficient, 
 
 283, et seq. 
 Of incumbrances, on completion, and under Lands Clauses 
 Consolidation Act, 1845, 281 to 283. 
 by purchaser out of unpaid purchase-money, 
 381. 
 ■ Of purchaser, on report against title, 530. 
 
 Of purchaser from Court, if biddings opened, 559.
 
 INDEX. 611 
 
 DISCLAIMEE. 
 
 By married woman, of interests in real estate, 275. 
 
 By assignees of insolvent purchaser, estate decreed to belong to 
 
 vendor, 465. 
 WTiat sufficient to save costs, 546. 
 
 DISCLOSITEE. 
 
 Of defects, &c., by vendor, 39 to 43. 
 Of advantages, &c., by purchaser, 46. 
 
 Of defects in client's title to client entitled to take advantage 
 of, improper, 149. 
 
 DISCONTINUANCE. 
 
 Of user, is not an interruption, within Prescription Act, 187. 
 
 DISCEETION. 
 
 Trusts involving, purchaser need not see performed, 285. 
 
 DISENTAILING. 
 
 Deeds, when to be searched for, 243. 
 Should be distinct from conveyance, 247. 
 Eecitals in, generally unnecessary, 253. 
 Enrolment of, 321. 
 Costs of enrolment, 334. 
 
 DISMISSAL. 
 
 Of bin, return of deposit, when decreed, 88, 538. 
 
 Does not generally prejudice right of action, 456, 539. 
 
 For want of prosecution, pending reference, irregular, 522. 
 
 Without giving judgment on exceptions, 529. 
 
 On motion, on report against title, and no exceptions, 530. 
 
 DISPUTE. 
 
 Agreement to accept title without, is binding, 68. 
 
 DISQUALIFIED. 
 
 Persons, no lien presumed in favour of, 350. 
 
 DISSENT. 
 
 From voidable purchase by infant, when to be expressed, 10. 
 
 DISTRESS. 
 
 Conveyance obtained from person in, when set aside, 353, et seq. 
 Agreement obtained from person in, when not enforced, 510. 
 And see Poveety. 
 
 DISTRESS FOR RENT. 
 
 Purchaser's right to make, after conveyance, 386, 430. 
 
 DISTRIBUTION. 
 
 Of purchase-money, on sale by court, 564. 
 
 R R 2
 
 012 INDEX. 
 
 DISTURBANCE. 
 
 What is a, within covenants for title, 367. 
 
 DIVISION. 
 
 Of estate, effect of, in prior covenants for title, 366. 
 
 DOCKETING. 
 
 Of judgments, 232. 
 
 Dockets closed by 2 & 3 Vict. c. 11, 239. 
 
 DOCUMENTS. 
 
 Conditions as to production, custody, or furnishing copies of, 
 
 65 to 68. 
 Loss of, how guarded against, in conditions, 68. 
 What may constitute agreement, within Statute of Frauds, 
 
 97 to 105. 
 Abstract should commence with, if practicable, 140. 
 What a suflBcient root of title, 140 to 142. 
 As to abstracting, 142 to 145. 
 When to be produced as negative evidence, though not part of 
 
 the title, 158. 
 But purchaser cannot require copies of such, 166. 
 Deficiencies in proof of, how far supplied by presumption, 159, 
 
 161. 
 Production of. Chap. IX. 
 
 And see Deeds, Attested Copies. 
 
 DOUBTFUL. 
 
 Document, abstract should not commence with, 140, 142. 
 Title, purchaser need not accept, 523, 562. 
 "V\Tiat is, 524, et seq. 
 
 Construction of executory instrument, whether purchaser need 
 notice, 404. 
 
 DOWER. 
 
 Conveyance to uses to bar, for purchaser, a revocation of prior 
 devise, when, 127. 
 
 Of after-taken wife, was barred by contract for sale, 129. 
 
 Arrears of, how long recoverable, 198. 
 
 Purchaser when entitled to concurrence of wife or dowress, 251. 
 
 Conveyance to uses to bar, still usual, 257. 
 
 Satisfied term, when a protection against, 252. 
 
 Release of, a sufficient consideration for settlement, 420. 
 
 Specific performance not enforced against wife entitled to, 462. 
 DRAFT. 
 
 Agreement or conveyance, approval of, whether a sufficient 
 signature, 107.
 
 INDEX. 613 
 
 DRAFT— continued. 
 
 Conveyance, preparation of, when a waiver of title, 218. 
 
 Alterations in, should be communicated, 267. 
 
 Of proposed further assurance, should be submitted to ven- 
 dor, &c., 371. 
 
 Notice of, not notice of executed deed, 411. 
 
 Conveyance, practice respecting, when Master settles, 636. 
 DEOPPING. 
 
 Of life. See Death. 
 DUEESS. 
 
 A defence at Law, 454. 
 
 And in Equity, 492. 
 
 DUTIES. 
 
 Relative, of vendor and purchaser prior to sale, 39 to 47. 
 And see Stamps. 
 
 EASEMENT. 
 
 When not a matter for compensation, 64, 506. 
 
 Can be granted only by deed, 92. 
 
 Grant of, when presumed, 160. 
 
 Title to, under Prescription Act, 184 to 188. 
 
 EAST INDIES. 
 
 Land in, how conveyed, 257, n. 
 EDUCATION. 
 
 Infants, &c., may convey for purposes of, 2. 
 
 EJECTMENT. 
 
 Without compensation, of purchaser rejecting title, 221. 
 Of tenants by vendor, compensation for, 307. 
 Costs of, allowed, as damages under covenants for title, 377. 
 Of purchaser, a defence against specific performance, 515. 
 Of tenant claiming right of purchase, when restrained, 518. 
 
 ELECTION. 
 
 By infant purchaser, on attaining majority, 10. 
 
 Party bound by contract, may require other party to make 
 
 his, 105. 
 By purchaser, under optional contract, effect of, on vendor's 
 
 representatives, 122, 124. 
 By vendor, under, &c., effect of on purchaser's representative, 
 
 126. 
 Heir of purchaser, when put to his, ib. 
 By vendor, of remedies for purchase-money, 351. 
 In cases of apparent advancement, 440. 
 By plaintiff at Law and in Equity, 351, 456.
 
 614 INDEX. 
 
 ELECTION— eow^trewec?. 
 
 By assignees of bankrupt purchaser, 465. 
 By purchaser, to take defective title, 533. 
 
 ELECTION. 
 
 Parhamentary, bond fide purchase, for purpose of voting at, 
 legal, 113. 
 
 ELEGIT. See Judgment. 
 
 Does not affect prior equitable mortgage, 398. 
 
 EMBLEMENTS. 
 
 Parol agreement for sale of crops which would go as, valid, 94. 
 
 ENCOUEAGEMENT. 
 
 By adverse clainiaut of purchase, &c., 394, 395. 
 
 ENCROACHMENT. 
 
 By lessee, lessor's right to, 2(», n. 
 
 ENFEANCHISED COPYHOLDS. 
 
 Title to be shown to ; condition respecting, 74, 137. 
 
 ENFKANCHISEMENT. 
 Presumed, 160. 
 
 ENJOYMENT. 
 
 Absolute, of estate, matter affecting, should be stated, 52. 
 Of estate, matter materially affecting, avoids contract, 64, 506. 
 Subsequent, of manor, whether to be proved on sale of enfran- 
 chised laud, 75, 137. 
 or of reversion, on sale of lease, 138. 
 Evidence of, when a sulEcient root of title, 142. 
 May raise presumption of existence of documents, &c., 159, 
 ' 160. 
 Confers title under Prescription Act, when, 184 to 188. 
 
 ENLARGEMENT. 
 
 Of time for completion, in Equity and at Law, 213, 456, 488. 
 Of bare fee, by subsequent enrolled assurance, 385. 
 
 ENROLMENT. 
 
 Of proceedings in bankruptcy, when to be required, 156. 
 Of deeds, when evidence thereof, 152, 153, u. 
 Under Statute of Charitable Uses, 320. 
 Of disentailing assurances, 321, et seq. 
 
 costs of, vendor pays, 334. 
 
 ENTRY. 
 
 By auctioneer in sale book, binds parties, 83, 98. 
 Subject to what qualification, 100.
 
 INDEX. 615 
 
 ENTEY— cow^wmef/. 
 
 In books, wlien evidence of pedigree, 177. 
 
 On lands, by Eailway Companies, before completion, 224, et seq. 
 
 Power of, in conveyance of minerals, 266. 
 
 On Court rolls, of disentailing assurances, 322. 
 
 of assurances generally, statutory provisions 
 for, 323, 324. 
 By purchaser of reversion, for condition broken, 386. 
 Eight of, by strangers, a defect in title, 506. 
 
 EQUITABLE ESTATE. 
 
 Trustees for sale of, can call for conveyance of legal estate, 38. 
 In land, purchaser of, acquires no priority, by notice to owner 
 
 of legal estate, 43, 229, 393. 
 Contract for purchase, not equivalent to conveyance of, 115. 
 Nature of purchaser's, under contract, ib. 
 Same length of title to be shown to, as to legal, 140. 
 Instruments only affecting, as to abstracting, 143 to 145, 
 How affected by judgments, 231, 232, 235, et seq. 
 Purchaser of, is entitled to a conveyance, when, 245, 461. 
 
 EQUITABLE TITLE. 
 
 Purchaser's, without notice, legal estate protects, 389, et seq. 
 
 Mere, is postponed to prior equities, 392, et seq. 
 
 Eegistered, yet subsequently registered legal title prevails, 400. 
 
 Purchaser need not accept, 523. 
 
 Unless he purchase from the Court, 562. 
 
 EQUITY. 
 
 Court of, cannot generally sell infant's estate, 2, 570. 
 Proof of proceedings in, 155, 156. 
 And Law, election between, 351, 456. 
 Suit in, a disturbance, 367. 
 
 EQUITY OF EEDEMPTION. 
 
 Mortgagee may buy from mortgagor, 18. 
 
 When barred under 3 & 4 WiU. IV. c. 27, 196. 
 
 Purchase of, an investment not sanctioned by Court, 313. 
 
 Notice to be given to mortgagee, on purchase of, 325. 
 EQUITIES. 
 
 Under contract, cannot before conveyance be enforced against 
 stranger, 115, 388. 
 EQUIVOCAL. 
 
 Terms of agreement, a reason for refusing costs, 543. 
 EEEOE. 
 
 In decree for sale, effect of, 570. 
 
 Whether purchaser need wait to have, rectified, 562.
 
 616 INDEX. 
 
 ESCHEAT. 
 
 Follows on attainder, 6. 
 
 Of trust or mortgage estates, provision against, 281. 
 
 ESTATE. 
 
 Is bound by contract of trustee for, or donee of power of, sale, 
 
 114. 
 
 Case of purchaser buying his own, 382. 
 
 ESTATE TAIL. 
 
 Eemainders expectant on, when barred under 3 & 4 "Will. IV. 
 
 c. 27, 194 to 197. 
 Enrolment, &c., of assurances to bar, 321, et seq. 
 Ban-ed by fraud, remedy of remainderman, 358. 
 
 ESTIMATION. 
 
 Quantity stated, described as being by, 308. 
 
 ESTOPPEL. 
 
 Whether any, by recital of vendor's title, 253. 
 Not by doubtful recital, 385. 
 
 .EVIDENCE. 
 
 Copies of deeds, wheu admissible in, 65. 
 Conditions restricting purchaser's right to, 'oQ to 70. 
 what necessary in various cases, 74 to 76. 
 Called for within limited time, objections on, 72. 
 Whether purchaser precluded from, may require information, 
 
 73. 
 Of existence and genuineness of abstracted documents, what 
 
 necessary or admissible, 150 to 158. 
 Deficiencies in, when supplied by presumption, 159 to 162. 
 May be required, of what facts in title, not documentary, 162 
 
 to 166. 
 Deficiencies in, when supplied by presumption, 166 to 176. 
 Ordinary, of material facts, 176 to 183. 
 Defects in, how far remedied by Statutes of Prescription and 
 
 Limitation, 183 to 200. 
 Unnecessary, danger of requiring, 216. 
 Deed, not properly stamped, is inadmissible as, 325. 
 Of vendor's intention to abandon lien, what sufficient, 350. 
 Of intention, cannot, at Law, cut down parcels, 352. 
 Of professional adviser, cannot prove notice, 414. 
 Parol, payment of consideration, provable by, against nominal 
 
 purchaser, 436. 
 
 may prove apparent conveyance, a mortgage, 437. 
 What will rebut presumption of advancement, 438.
 
 INDEX. 617 
 
 lEVlDE^CE— continued. 
 
 Parol, may rebut presumption of resulting trust, 441. 
 
 What will prove application of trust money, 441. 
 
 Parol, agreement how affected by, 102, 451, et seq., 476, et seq., 
 
 and 484, et seq. 
 Master may receive and require what, on reference, 523. 
 Necessary, refusal to furnish, its effect on costs, 542. 
 
 EXAMINATION. 
 
 Of abstract with deeds, expenses of, 70, 201. 
 
 may be made before taking opinion on 
 
 title, 147, 202. 
 matters to be observed in, 206. 
 Of parties, by Master, on reference of title, 522. 
 EXCEPTIONS. 
 
 To Master's Eeport in favour of title, proceedings on, 528, 529. 
 
 against title, &c. 530. 
 Lie to Master's certifictrte of approval of draft, 537. 
 EXCESS. 
 
 In quantity, whether vendor can claim compensation for, 303, 
 
 et seq. 
 Not after conveyance, 351. 
 Of purchase money, whether a purchaser's defence, 512. 
 
 no ground for discharging purchaser imder 
 decree, 573. 
 EXCHANGE. 
 
 Title to estates held under, 135, 136. 
 
 EXECUTION. 
 
 Alteration of agreement after, 108. 
 
 Alteration of conveyance after, stamps how affected by, 333. 
 
 Of title deeds, when vendor must prove, 65, 151, 152. 
 
 Of conveyance, 269, et seq., 537, et seq., 568. 
 
 Vendor pays for, 334. 
 
 Defective, of power, when relieved against, in Equity, 394. 
 
 EXECUTOR. 
 
 Cannot buy testator's estate, 17. 
 
 Whether he can sell, after bill filed for administration, 29. 
 
 Acting as auctioneer, cannot charge commission, 82. 
 
 Probate Act Book, proves appointment of, 157. 
 
 Assignment of term, by one of several executors, or before pro- 
 bate, vahd, 275. 
 
 Can give good discharges, unless purchaser has notice of breach 
 of trust, 285, 288. 
 
 Of vendor, purchase money should be paid to, 290.
 
 ei8 INDEX. 
 
 :EXECVT0'R— continued. 
 
 Not allowed to bid, on sale in administration suit, 551. 
 Of lessee, entitled to indemnity from purchaser, 567. 
 And see Eepeesentatites and Fidcciaet Chabacteb. 
 
 EXECUTOEY INSTEIDIENT. 
 
 Doubtful, or voidable, purchaser how far bound by notice of, 
 404, 416. 
 
 EXEMPLIFICATION. 
 
 Evidence of Fine or Eecovery, 154. 
 
 EXEMPTION. 
 
 From tithe, how shown, 181 to 183. 
 
 EXPENDITURE. 
 
 In improvements, purchaser when allowed, in account, 23, 221, 
 
 380, 426. 
 When recoverable at Law by purchaser, 375, 446. 
 Purchaser when protected in Equity, against persons encourag- 
 ing, 395. 
 ^ ■ By joint-purchaser, he has a lien for, when, 434. 
 "\Vhen a part performance, in Equity, 477 to 480. 
 
 EXPENSES. 
 
 Usually borne by vendor, condition for payment of by purchaser, 
 
 70. 
 May be used by fiduciary vendor, semhle, 77, 78. 
 Of purchaser, to be provided for ou sale to railway company, 97. 
 Of producing and inspecting deeds, 201. 
 Prior to contract, whether railway companies need pay, 336. 
 "V\Tiat recoverable by purchaser, in action at Law, 446. 
 Of sale by Court, 553. 
 What allowed to first purchaser, if biddings, opened, 558. 
 
 And see Costs and Expendituee. 
 
 EXPLANATION. 
 
 Of suspicious circumstances, or adverse notice, 164. 
 
 EXTINGUISHMENT. 
 
 Of charges, on purchase by incumbrancer, 442, n. 
 
 EXTEACTS. 
 
 Official, of Fines and Kecoveries, not strictly evidence, 154. 
 From parochial and general registers, how far evidence, 176, 177. 
 
 FACT. 
 
 Material to title, and not apparent on the deeds, vendor must 
 
 disclose, 41. 
 False statement of, what, by vendor, may avoid contract, 44.
 
 INDEX. 6] 9 
 
 FACT — continued. 
 
 Increasing value of property, purchaser need not disclose, 46. 
 Aliter, if it increase vendor's interest in property, ib. 
 Matters of, stated in conditions, must be proved, 73. 
 Instrunaent produced simply to establish, need not be abstracted, 
 
 142. 
 Matters of, what to be proved in support of title, 162 to 166. 
 Deficiencies in evidence of, supplied by presumption, 166 to 176. 
 How ordinarily proved, 176 to 180. 
 
 FAILURE. 
 
 Of issue, how proved, 174, 175. 
 
 Of contingent consideration, before completion, 117, 511,512, 
 
 555. 
 Of subject-matter of contract, yet account directed in Equity, 
 
 534. 
 
 FALL. See Coppice. 
 
 Of timber, when matter for compensation, 116, 224. 
 Of buildings contracted for, purchaser pays for consequent da- 
 mage, 117, 561. 
 
 FALSE DEFENCE. 
 
 Its effect on costs, 543. 
 
 FAMILY. 
 
 Declarations by members of, evidence of pedigree, 177. 
 
 FAMILY AEEANGEMENT. 
 
 Money payable as part of, not liable to duty, 328. 
 General validity of, 356, n. (a-). 
 
 FAEM. 
 
 Includes what, 56. 
 
 FATHEE. 
 
 Purchase by, in name of child, an advancement, 437, et seq. 
 Arrangements between, and son, their validity, 355, n., 357, n. 
 
 FEE SIMPLE. 
 
 Vendor's interest if unexpressed, presumed to be, 51. 
 
 FEES. See Steward. 
 
 FELONS. 
 
 How far incapable to sell or buy, 6, 13. 
 
 FEMALE. 
 
 Elderly, presumption against her having issue, 175. 
 
 FEME COYEET. See Maskied Wo?<ian.
 
 620 INDEX. 
 
 FENCES. 
 
 Out of order, compensation when to be made for, 306. 
 
 FEOFFMENT. 
 
 Customary by infant, still valid, 3, n. 
 By lunatic, now inoperative, semhle, 4. 
 Usual conveyance in Australia, 257, n. 
 
 FIAT IN BANKEUPTCY. 
 
 Not notice, 410. 
 
 Must issue within twelve months after act of bankruptcy, 396. 
 
 Annulled, purchase under, 397. 
 
 FIDUCIAEY CHARACTER. 
 
 Persons filling cannot generally purchase the estate, 15. 
 General ride applies in what cases, 15 to 19. 
 Incompetent purchaser bound at option of parties interested, 19. 
 General rule, when inapplicable, or but partially applicable, 19, 
 
 20. 
 How far it affects trustees, 21, 22. 
 Risk incurred by disqualified purchaser, 22. 
 On what terms reconveyance decreed, 23. 
 Or estate ordered to be resold, 23, 24. 
 Purchaser having made a profit must refund it, 24. 
 General rule respecting costs, ih. 
 Time allowed for impeaching sale, 25. 
 Confirmation of voidable purchase, 26. 
 As to sales by persons fiUing, 27. 
 When ought they to sell, 27 to 31. 
 How ought they to sell, 31 to 35. 
 As to the price, 35 to 37. 
 General points respecting sales by, 37, 38. 
 Cannot allow compensation for their own errors, 65. 
 Whether they may sell under special conditions, 76 to 78. 
 Acting prudently not liable for loss through auctioneer, 82. 
 Enter into what covenants, 261, 263. 
 Should themselves receive the purchase-money, 310. 
 On sale by, apparently regular, purchaser need not investigate 
 
 collateral questions, 410. 
 Contract by, not enforced, if amounting to a breach of trust, 
 
 490. 
 
 FINE. 
 
 On renewal, stated by vendor to be " small," 44. 
 Joint purchaser, paying, has a lien for, 434, 
 Manorial, alleged misdescription of, 48.
 
 k^' 
 
 INDEX. 621 
 
 FIN E — continued. 
 
 Need not be noticed, on sale of copyhold, 53. 
 On his own admittance, purchaser pays, 335. 
 Manorial, right to, as " rents and profits," how determined, 566. 
 
 FINE AND EECOVEEY. 
 
 By lunatic were binding, when, 4. 
 
 How proved, 154. 
 
 Proof of, under statute, 155. 
 
 Defects in, when remedied by statute, 399. 
 
 FINES AND RECOVEEIES ABOLITION ACT. 
 Lunatic cannot convey under, 4. 
 Conveyance under, by married woman, 270, et seq. 
 By tenant in tail of freeholds or copyholds 321, et seq. 
 
 FIEE. 
 
 Purchaser after contract bears damage by, 117. 
 
 Vendor need not insure against, ib. 
 
 Before confirmation of Master's report of purchase, 554. 
 
 FIRM. 
 
 Partner in, how affected by fraud of co-partner, 190, n. 
 
 FISH. 
 
 Tithes of, excepted from Commutation Act, 181. 
 
 Eight of riparian proprietor to, 184, n. 
 
 Eight to, when a profit h prendre, within Prescription Act, 185, n. 
 
 FIXTUEES. 
 
 Conditions as to payment for, 61. 
 
 Tenant may sell to landlord by parol, 95. 
 
 Price of, liable to ad valorem duty, 254, 327. 
 
 As to interest on valuation of, during delay in completion, 296. 
 
 FLUCTUATING. 
 
 Value of property, may make time essential, 209. 
 
 disinclines Court to open biddings, 556. 
 Body, fact of vendors being, may make time essential, 209. 
 
 FOOTPATH. 
 
 Existence of, a patent defect, 39, 52, 509. 
 
 FOECIBLE. 
 
 Entry, an acceptance of title, 219. 
 
 FOEECLOSUEE. 
 
 Suit for, whether within 3 & 4 Will. IV. c. 27, 198, 
 Mortgagee selling after, cannot enforce collateral securities, 430.
 
 622 INDEX. 
 
 FOREIGN LANGUAGE. 
 
 Agreement written in, Courts receive evidence of interpreta- 
 tion, 451. 
 
 FORFEITUEE. See Deposit. 
 By treason, felony, &c., 6. 
 Of lease, act by tenant amounting to, a part performance 
 
 semble, 478. 
 Agreement which would lead to, not enforced, 491. 
 
 FORGED INSTRUMENT. 
 
 Purchaser under, yet protected by getting in legal estate, 390. 
 
 FORM.ALITIES. 
 
 Of deeds may be presumed, 161. 
 
 Want of, in execution of powers, when supplied in Equity, 394. 
 , Want of, when supplied, in contract by married woman, 463. 
 
 FRAUD. 
 
 By infant or married woman, relieved against, 3, 6, 11, 13. 
 Must be shown, in action against stranger for misstatement, 45. 
 Concealed, when Statute of Limitations begins to run, in cases 
 
 of, 190. 
 Of one member of firm affects co-partner, ih., n. 
 By vendor, incumbrancer encouraging, &c. postponed in Equity, 
 
 228. 
 In barring estate tail, remaindermen when relieved, 358. 
 Of vendor, purchaser accepting defective title by, relieved, 379. 
 Of agent, principal bound by, 380. 
 Purchaser not protected by legal estate obtained by, semble, 
 
 392. 
 Gross negligence may be treated as equivalent to, 405. 
 Mere suspicion of, does not affect purchaser, 411. 
 Nor render title doubtful, 525. 
 Of his own professional adviser, whether purchaser has implied 
 
 notice of, 413. 
 How purchaser guilty of, must account, if sale set aside, 426. 
 A defence at Law, and in Equity, 454, 484, 492, 510. 
 WTien a ground for decreeing specific performance of parol 
 
 contract, 477. 
 Or of a written contract with parol variations, 483. 
 Bill founded on unsubstantiated allegation of, is dismissed with 
 
 costs, 472. 
 Groundless imputation of, its effect on costs, 541, 543. 
 A ground for setting aside sale by Court, after confirmation, 
 
 560. 
 In proceedings, purchaser under Court not affected by, 571.
 
 INDEX. 623 
 
 FRAUDS, STATUTE OF. 
 
 Written agreement, when necessary under, 91 to 96. 
 
 What informal documents may constitute agreement within, 97 
 
 to 105. 
 What is a sufficient signature within, 105 to 108. 
 Does not affect right to waive by word of mouth contract not 
 
 under seal, semble, 455. 
 Want of contract sufficient within, when supplied in Equity, 
 
 476, et seq. 
 Sales by auction and in bankruptcy, are within, 482. 
 But not sales by the Court, 555. 
 
 FRAUDULENT CONVEYANCES. 
 
 What are, 420 to 425. 
 As against creditors, 426. 
 
 FREE BENCH. 
 
 Wife's right to, bound by husband's contract, when, 462. 
 
 FREE PUBLIC HOUSE. 
 
 What is not, 56. 
 
 FREEHOLD. 
 
 Land presumed to be, if tenure not stated, 51. 
 
 If land sold as, prove not to be, defect is fatal, 63, 504. 
 
 FRIVOLOUS. 
 
 Objections to title, danger of taking, 215. 
 
 Defence, must be disposed of, before reference, 520. 
 
 FUNDS. 
 
 Purchaser, whether affected by variation in, 24, 88. 
 
 on purchase from Court, 566. 
 Loss by variation in, not recoverable at Law, 446. 
 
 FURTHER ASSURANCE. 
 
 Covenant for, a usual covenant, 259. 
 What can or cannot be required thereunder, 370. 
 What time, &c., allowed for executing, 371. 
 Purchaser's right in Equity to, 383, et seq. 
 Enrolled under 3 & 4 Will. IV. c. 74, confirms prior voidable 
 estate created by tenant in tail, 385. 
 
 FURTHER DIRECTIONS. 
 
 Order for reference of title, should reserve, 522. 
 Cause to be set down on, if exceptions taken to report in favour 
 of title, 528.
 
 624 INDEX. 
 
 FUTURE. 
 
 Right to property, wlietlier abstract showing, shows a good title 
 
 at Law, 132. 
 
 GAVELKIND. 
 
 Infaat may convey under custom of, 2. 
 
 GAZETTE. 
 
 Evidence of bankruptcy, 397. 
 
 Sale by Court should be advertised in, 553. 
 
 GENERAL WORDS. 
 
 Not cut down at law by evidence of intention, 352. 
 
 GLEBE. 
 
 Rector cannot buy the, 18. 
 
 How affected by judgments, 231, 233, 235. 
 
 GOODS. 
 
 Mortgage of reversion for price of goods sold, to resell, sus- 
 tained, 357. 
 Right of stoppage in transitu, &c., on sale of, 345, n. 
 
 GOVERNOR. 
 
 Of charity, cannot buy or take lease of charity lands, 17. 
 
 GRANDCHILD. 
 
 Purchase in name of, an advancement, 437. 
 
 GRANT. 
 
 From Crown, title under, how to be abstracted, 139. 
 
 how proved, 155. 
 
 when presumed, 159. 
 
 purchaser must inspect the original, 202. 
 
 title against, by adverse possession, 200. 
 Of easement, when presumed, 160. 
 By lord of manor, presumed, 2 Vern. 517. 
 Ancient, modern usage admissible to show what passed under, 
 
 167, n. 
 The word, does not imply a covenant. See 8 & 9 Vict. c. 106, 
 s. 4. 
 
 GRANTOR. 
 
 Of annuity, must disclose what to intended grantee, 42. 
 
 GRASS. See Ceops. 
 
 GROUND-RENT. 
 
 /i What it is, 56. 
 
 i\ Improved, instead of, purchaser need not take, 504.
 
 INDEX. 625 
 
 GUARANTEE. 
 
 Of solvency must be in writing, 46. 
 
 GUARDIAN. 
 
 Sale by, to ward, wben relieved against, 7. 
 Cannot purchase from ward, 17. 
 And see Statutoey Vendoes. 
 
 HAND-WRITING. 
 
 Evidence of, 178. 
 
 HARDSHIP. 
 
 A defence in Equity, 491, see 513, n. 
 
 Bill dismissed on ground of, defendant does not pay costs, 545. 
 Whether a ground for discharging purchaser under a de- 
 cree, 573. 
 
 HEIR. See Representatives. 
 
 Of infants, may set aside sale or purchase by, 2, 10. 
 
 Infant, may sell under custom of gavelkind, 2. 
 
 Of lunatic, may set aside sale or purchase by, 3, 12. 
 
 Of married woman, not bound by sale by, 5. 
 
 Need not be named in contract not under seal, 96. 
 
 Rights of, under contract, 121 to 128. 
 
 Devisee selling, when required in Equity to prove will against, 
 164. 
 
 On sale by, or by party claiming under, will stated to be in- 
 valid must be produced, 165. 
 
 Latent, Statute of Limitations confers certain title against claim 
 by, when, 199. 
 
 Want of conveyance by, when supplied by Trustee Act, 277, et 
 seq., 537. 
 
 Infant, costs of procuring conveyance from, 335. 
 
 Purchaser from, must see to payment of legacies, but not of 
 debts, 292. 
 
 Expectant, sale of reversion by, relieved against, 355, et seq. 
 
 Customary, may sue before admittance, 374. 
 
 When entitled to sue for breach of covenants for title, 374. 
 
 When, and how far, liable on ancestor's covenants, 376. 
 
 Sale of expectancy by, yet purchaser can require further as- 
 surance, 385. 
 
 Whether registered conveyance by, displaces unregistered con- 
 veyance by ancestor, 401. 
 
 Of settlor on marriage, bound by limitations to collaterals, 421. 
 
 Sale by, displaces fraudulent, but not merely voluntary convey- 
 ance, 424. 
 
 Of purchaser, has no remedy at law upon the contract, 448. 
 
 s s
 
 626 INDEX. 
 
 HEIR — continued. 
 
 May enforce conti'act in Equity, 461, 469. 
 
 Of vendor, is bound by contract in Equity, 462. 
 
 When to be made a party to suit, 468, 469. 
 
 HERBAGE. 
 
 Exclusive right to, whether a profit a prendre within Prescrip- 
 tion Act, 185, n. 
 
 HERIOTS. 
 
 Liability to, undisclosed, fatal to contract, 52. 
 
 Except on sale of copyholds, or manorial freeholds, 53. 
 
 Are rent within the 3 & 4 Will. IV. c. 27, 188. 
 
 HOUSE. 
 
 Materials, or number of, misstated, defect is fatal, 64. 
 
 HUSBAND. 
 
 Power of, over wife's chattels real, 5, 273, 464. 
 
 May annul purchase by wife, 12. 
 
 Signature by married woman in name of deceased, sufficient, 106. 
 
 Covenants for title, on sale of wife's estate, 261. 
 
 Concurrence of, in conveyance of her estate, when dispensed 
 
 with, 273. 
 Contract by, for sale of wife's estate, ejBTect of, 463, 464. 
 Will not be required to procure her concurrence, semble, 498. 
 
 HUSBAj!^DRY. 
 
 Improper, depreciation by, must be compensated for, 307. 
 
 by purchaser, a reason for pvirchase-money being 
 paid in, 516. 
 
 IDENTITY. 
 
 Failure of, in subject-matter of contract, fatal, 64. 
 
 Condition respecting, 69. 
 
 Of parcels, and individuals, presumption of, 166, 167. 
 
 Of individuals, whether proveable by declarations, &c., as a 
 
 matter of pedigree, 179. 
 Latent ambiguity respecting, may be removed by evidence of 
 
 intention, 453. 
 
 IDIOT. See Lunatic. 
 
 ILLEGAL. 
 
 Agreements cannot be enforced. 111 to 113. 
 
 At Law, or in Equity, 454, 490. 
 
 Omission of stipulation supposed to be, is binding, 488. 
 
 Allegation in anwer that agreement is, 544.
 
 INDEX. 627 
 
 ILLEGIBLE. 
 
 Abstract so written as to be, need not be received, 146. 
 Agreement, eyidence to decipher, 451. 
 
 ILLEGITIMACY. 
 
 Of child born in wedlock may be proved, 170. 
 Does not rebut presumption of advancement, 437. 
 
 IMMATEEIAL. 
 
 Terms of agreement need not be proved, 481. 
 
 IMPRISONMENT. See Dtjeess, and 492, n. {x). 
 IMPROBABLE. 
 
 Claim, possibility of, whether title bad, 526. 
 
 IMPROVEMENT. See Accounts, Expenditube. 
 
 Intended, of adjacent land, effect of plan showing, 55. 
 
 In estate, after contract, belongs to purchaser, 116 to 118, 560. 
 
 IMPROVIDENT. 
 
 Contract by agent, not enforced, 491. 
 
 INADEQUACY. 
 
 Of consideration, when a ground for a reconveyance, 353, et seq 
 
 On sales of reversions, 355. 
 
 How determined, 357. 
 
 When a defence in Equity, 510, et seq. 
 
 Its effect on costs, 543. 
 
 INCAPACITY. 
 
 To sell or purchase, 1 to 26. 
 
 To convey, a breach of covenant for right to convey, 367. 
 
 Of defendants to contract, a defence in Law, 454. 
 
 and in Equity, 489. 
 Of plaintiff, whether a defence in equity, ih. 
 
 INCAPACITATED OWNERS. See Statutoet Owners. 
 
 INCIDENTS. 
 
 All legal, presumably accompany estate, 51. 
 
 INCLOSED LANDS. 
 
 Conditions usually requisite on sale of, 74. 
 Title to, 134 to 136. 
 
 INCLOSURE ACT. 
 
 Commissioners and valuers under, cannot purchase land in 
 
 parish, 17. 
 Provisions of, as to evidence of compliance with, 135. 
 Award under, how proved, 150. 
 
 s s 2
 
 628 INDEX. 
 
 INCOME TAX. 
 
 Not deducted from interest paid into court, 561. 
 
 INCOMPETENT. 
 
 Person, bidding by, at sale by court, 553. 
 
 INCONSISTENT. 
 
 Descriptions of parcels, not within common condition respect- 
 ing identity, 69. 
 
 INCOEPOEEAL. 
 
 Hereditaments, covenants run with, 366. 
 
 INCEEASE. 
 
 Of rent, agreement for, must be in writing, 95. 
 Of purchase-money, 293, et seq. 
 
 INCUMBEANCES. 
 
 On client's estate, coTinsel cannot buy at a profit, 17. 
 
 Effect of, on power of tenant for life to consent to sale, 35, n. 
 
 Vendor must disclose, if not apparent on the deeds, 41. 
 
 Inquiry respecting, should be made of supposed claimant, and 
 of trustees of legal estate, 42, 43. 
 
 Permanent, should be noticed in particulars, 52. 
 
 Condition, as to indemnity against, 70. 
 
 Notice of, to purchaser, before conveyance executed, is binding, 
 115. 
 
 Whether imperfections of title, in Equity and at Law, 131 to 
 133. 
 
 Equitable, which are satisfied, whether instruments creating 
 should be abstracted, 143 to 145. 
 
 Subsisting, should be abstracted, 145. 
 
 And trmsts for payment, difference between, 190, n. 
 
 On land, right to recover when barred, 197 to 199. 
 
 As to searches for, and inquiries respecting, generally, Ch. XI. 
 
 Fiduciary vendors covenant against, 261. 
 
 As to the discharge of, on completion, 281, et seq. 
 
 Purchaser, when liable to see to, 291. 
 
 Vendor, whether bound to get in, by separate deed, 246, 339. 
 
 Purchaser, keeping on foot, must pay expenses, 340. 
 
 His right to pay ofi", after conveyance, out of unpaid purchase- 
 money, 381, 390. 
 
 Legal estate, when a protection against, 389, et seq. 
 
 Concealed, thrown wholly on puisne equitable purchaser, 393. 
 
 In favour of charities, rule as to notice, 394, 425. 
 
 What is notice of, 402, et seq. 
 
 Contribution to, 428. 
 
 Merger of, 442, n.
 
 INDEX. 629 
 
 m CVMBHAJ^CES— continued. 
 
 Expenses of searclies for, wlien recoverable, 446. 
 
 Affecting enjoyment of estate, a defence in Equity, 506. 
 
 Application of money in discharge of, on sale by Court, 561, 565. 
 INCUMBEANCEE. See Claim, Expendituee, Incumbkance, 
 
 MoETGAGEE, NOTICE, PeIOBITY. 
 
 Releasing, covenant by, 262. 
 INDEMNITY. 
 
 Nature of, if offered, should be stated, 70. 
 
 Mutual, condition for, on sale of leasehold estate in lots, 76. 
 
 Lessee, entitled to, from equitable assignee of term, 129. 
 
 Vendor of leaseholds can require, when, 265. 
 
 Executor of lessee, entitled to, on sale by Court, 567. 
 
 Covenant for, does not run with land, semhle, 361, n. {b). 
 
 Vendor's right to, its effect on purchaser's right to avoid leases, 
 
 &c., 416. 
 Neither to be given nor taken compulsorily, unless by agree- 
 ment, 503. 
 
 INDOESEMENT. 
 
 On deed, should be examined, 206. 
 
 Of notice of conveyance, on leading title deed retained by 
 vendor, 324. 
 
 INDORSED EECEIPT. 
 
 Unusual position of, should be explained, 207, 409. 
 
 Not conclusive as to payment, in Equity, 310, 345 ; see 411. 
 
 Is counted as part of the deed, 332. 
 
 INFANT. 
 
 How far mcapable to sell or purchase, 2, 3, 10 and 11. And see 
 
 WrigJd v. Snoive, 2 De G. & S. 321. 
 Facilitating fraud by vendor, 228. 
 Cestuis que trust, trustees for, can give discharges, when, 284, 
 
 287. 
 Trustees and mortgagees, conveyance by. See Conveyance. 
 
 Costs of obtaining, 335. 
 Incumbrancer, encouraging purchase or expenditure, 228, 394. 
 Estate of, person buying may be treated as bailiff, 427. 
 Made a co-plaintiff in respect of adverse or inconsistent right, 
 
 no decree, 466. 
 Cannot enforce specific performance, but other party cannot 
 
 rescind contract, 489. 
 Conveyance of estate of. Master must settle, 535, 567. 
 May be ordered to convey, 568. 
 Refusing, attachment may issue against, 569.
 
 630 INDEX. 
 
 INFEEENCE. 
 
 Instrument produced merely to negative, need not be abstracted, 
 
 142. 
 Of Law, whetlier bill need state, 471. 
 INFORMATION. 
 
 Whetlier purchaser precluded from evidence may require, 73 
 
 INHEEITANCE. 
 
 Fiduciary vendors must sell timber, &c., along with, 33. 
 All that forms part of, belongs to purchaser from date of con- 
 tract, 116. 
 Owner of any portion of, can sue on covenants for title, 366. 
 Owner of first estate of, when to be a party to suit, 469. 
 
 INITIALS. 
 
 Signature of, agreement by, suflBcient, 106. 
 
 INJUNCTION. 
 
 Against sale by fiduciary vendors, rare, 38. 
 Granted against waste by purchaser in possession before com- 
 pletion, 118. 
 
 Or against process for rent by landlord vendor, 119. 
 Not against mortgagee contracting to sell estate and suing for 
 
 mortgage debt, 128. 
 Against breach of covenant, 362. 
 Against action for deposit, when, 446, 466, 518. 
 Against action for deeds, by purchaser under decree, 570. 
 
 IN LOCO PARENTIS. 
 
 Purchase by one standing, an advancement, 438. 
 
 INQUIRY. 
 
 Should be made of supposed claimants on estate, 42. 
 
 Of trustees of real estate confers no priority, 43. 
 
 By purchaser, vendor not bound to answer what, 164. 
 
 Of vendor's solicitors, supposed incumbrancers, &c., 227, et seq. 
 
 Purchaser fraudulently abstaining from, case of, 405. 
 
 Purchaser neghgently abstaining, &c., 409, 412. 
 
 INROLLED DEEDS. 
 
 Secondary evidence whether admissible in proof of, 65. 
 
 INSANITY. See Lunatic. 
 
 Evidence of, 12, n. 
 INSCRIPTIONS. 
 
 When evidence of pedigree, 178. 
 
 INSOLVENCY. 
 
 Of auctioneer, loss by, falls on vendor, 82.
 
 INDEX. 631 
 
 mSOLYENCY— continued. 
 
 Of party to contract, does not avoid it, 130. 
 
 Proceedings in, how proved, 156. 
 
 Of debtor by judgment, 236. 
 
 Court of, wben to be searclied, 242. 
 
 Of purchaser, a ground for appointing a receiver, 518. 
 
 INSOLVENT. 
 
 How far incapable to sell or buy, 6, J.3. 
 Assignees of, when they must sell, 28. 
 
 how they should sell, 32. 
 
 may sell below price fixed by creditors, 35. 
 
 appointment of, to be registered, when, 398. 
 
 costs of, on disclaimer, 546. 
 Purchaser, assignees of, disclaiming, estate decreed to vendor, 
 465. 
 
 INSTALMENTS. 
 
 Ad valorem duty on purchase-money payable by, 327. 
 
 INSTEUCTIONS. 
 
 Private, to agent, effect of, 84. 
 
 Agent exceeding, principal not bound, ib. 
 
 Writing sent as, may amount to agreement, 105. 
 
 INSURANCE. 
 
 Against fire, vendor need not keep up, 117. 
 
 INTENTION. 
 
 Of author of trust, test of trustees' power to give receipts, 283, 
 
 et seq. 
 Of vendor, as to hen for purchase-money, may be shown, 350. 
 Evidence of, cannot at Law cut down general words, 353. 
 Of parties to covenants, is to be collected from entire deed, 373. 
 Evidence of, when admissible at Law, in aid of agreement, 453. 
 
 INTEREST. See Accounts. 
 
 On purchase-money, condition respecting, 58 to 60. 
 
 As to payment of, 293 to 302, 383, n. 
 
 Miscalculated, vendor cannot claim after conveyance, 351. 
 
 On deposit, auctioneer not liable for, 82. 
 
 Purchaser evicted can recover, when, 375, 377. 
 
 Purchaser can recover, at Law, on breach of contract, 446. 
 
 Not allowed on money refimded on appeal, 538, 548. 
 
 On money charged on land, for what time recoverable, 198. 
 
 First purchaser allowed, if biddings opened, 558. 
 
 When allowed to person opening biddings and outbid, 559. 
 
 Paid into Court must be clear of income tax, 561 .
 
 632 INDEX. 
 
 INTEREST— continued. 
 
 Of vendor in property, purchaser must disclose facts increasing, 
 46. 
 
 Of vendor and purchaser, and their representatives, under con- 
 tract, 114; Ch.VII. 
 
 Reversionary, of married woman, acknowledged deed passes 
 what, 273. 
 
 In estate, conveying party mistaking, has no remedy, 352. 
 
 Subsequently acquired, purchaser may call for, 383. 
 
 When bound by contract for sale, 499. 
 
 Partial, when vendor bound to convey, 501 . 
 
 Contracted for, title not shown to, a defence, 504. 
 
 INTEEPLEADEE. 
 
 Order for. auctioneer may obtain, in respect of deposit, 81. 
 
 INTERPEETATIOX. 
 
 Of agreement, evidence of, admissible at Law, 451. 
 
 INTEEEUPTION. 
 
 Under Prescription Act, means adverse obstruction, 187. 
 
 INTESTACY. 
 
 And death of vendor before conveyance, rights of heir, 121, 122. 
 And death of purchaser before conveyance, rights of heir, 126. 
 Wliat evidence of, can be required, if title commences with con- 
 veyance by heir-at-law, 163. 
 Or in other cases, 165. 
 How proved, 168. 
 If doubtful, Statute of Limitations not to be relied on, 199. 
 
 INTOXICATION. 
 
 Of party to contract, its effect, 489. 
 
 INVESTIGATION. 
 
 Of title, should be expressly precluded, if so intended, 68. 
 Purchaser neglecting, has constructive notice of defects, 406, 
 
 408. 
 Costs of, when recoverable at law, 446. 
 
 INVESTMENT. See Appeopeiation, Puechase-monet. 
 
 Of purchase-money, fiduciary purchaser, whether bound by, if 
 
 sale set aside, 24. 
 Of deposit, condition for, when expedient, 57. 
 Of deposit, when binding on purchaser, 88. 
 Of purchase-money, and declaration of trust, discharge pur- 
 chaser, 285. 
 Of purchase-money paid by Railway Companies, &c. 311, et seq.
 
 INDEX. 633 
 
 INYESTMEl^T— continued. 
 Costs of, 337. 
 By father, of liis own money along with settled funds, an 
 
 advancement, 440. 
 Loss by, not recoverable at Law, 446. 
 Of purchase-money on sale by Court, purchaser when bound 
 
 by, 566. 
 
 IREEGULAEITY. 
 
 In proceedings, purchaser from Court, whether affected by, 570. 
 
 ISSUE. 
 
 Failure of, when presumed, 174. 
 Presumption against aged female having, 175. 
 
 ISSUE IN TAIL. 
 
 Barred, under 3 & 4 Will. IV. c. 27, to same extent as tenant 
 
 in tail, 194, 195. 
 Not bound by agreement by tenant in tail, 463. 
 
 JOINT-PURCHASERS. 
 
 T^Tiat duty on conveyance to, 329. 
 
 Rights, &c. of, imder conveyance, 432, et seq. 
 
 Of estate from Court, purchase-money must be paid entii-e, 561. 
 
 JOINT-TENANT. 
 
 Possession by one does not save the right of another, 192, 
 Estate of, how affected by judgments, 231, 234. 
 At Law, when not so in Equity, 432, et seq. 
 Lien of, on estate, for expenditure, &c., 434. 
 
 JOINTURE. 
 
 Relied on in bar of dower, title to land must be shown, 252. 
 Release of, a sufficient consideration for settlement, 420. 
 
 JOURNEYS. 
 
 Expenses of, condition as to, 70. 
 
 To examine deeds, 201. 
 
 To estate, allowed on opening biddings, 558. 
 
 JUDGMENTS. 
 
 Bind purchaser's interest under contract, 115. 
 
 Against vendor, give a lien on unpaid purchase-money, 119. 
 
 Should be abstracted, 145. 
 
 Entering-up judgment, what is, 234, n. 
 
 Vendor cannot be required to search for, 163. 
 
 As to searching for, general law respecting, 230 to 241. 
 
 Judgment creditors, when to concur in conveyance, 250. 
 
 Against purchaser, vendor's lien is a protection against, 351.
 
 634 INDEX. 
 
 JUDGM.'El^TS—conthiued. 
 
 T\Tiere part of purchase-money remains on mortgage, 351. 
 
 Are subject to prior equities, 398. 
 
 Unregistered, notice of, must be actual, 402. 
 
 Registered, are notice only if purchaser search register, 406, 410. 
 
 Order in suit for payment by purchaser, a judgment debt, 535. 
 JURISDICTIO:^. 
 
 Trustees, &c. out of, conveyance from. See Contetance. 
 
 LANDS CLAUSES CON^ SOLID ATION ACT, 1850. 
 
 Enables incapacitated owners to convey, 6. 
 
 Subject to what restriction as to time for compulsory pur- 
 chases, 28. 
 
 As to sales under, by trustees, and other fiduciary vendors, 36. 
 
 Or by municipal corporations, 37. 
 
 Notice under, when and how far an agreement for purchase, 
 98, 99. 
 
 Company, on sales under, pays for abstract, 131. 
 
 Conveyance under, by promoters of undertaking to themselves, 
 275. 
 
 Discharge of incumbrances under, 283. 
 
 Payment and investment of purchase-moneys under, 311, 313. 
 
 Assurance of copyholds taken under, to be entered on Court 
 roUs, 324. 
 
 Payment of costs under, 336, e( seq. 
 
 Vendor's rights of pre-emption of superfluous lauds, 359. 
 
 Omitted interests, provides for their subsequent purchase, 429. 
 
 LAND. See Covenant. 
 
 Agreement to sell, includes vendor's entire interest, 51. 
 
 Includes what, under 3 & 4 Will. IV. c. 27, 188. 
 
 Loss of, not certainly compensated for in damages, 459. 
 
 LANDLORD. 
 
 Agreement by, with tenant, what must be in writing, 95. 
 Agreement by, for sale of laiid to tenant, its eflect, 119. 
 
 LANDOWNER. 
 
 Notice by, to company, when an agreement, 99. 
 
 Rights of, as to deposit made by company before entry, 225. 
 
 Selling to company, enters into what covenants, 260. 
 
 In possession, right of, to money paid into Court, 312. 
 
 LAND-TAX. 
 
 Is presumptively a charge on property, 180. 
 Redemption of, how shown, ib. 
 
 In cases of allotments, ,iee Boelim v. Wood, Turn . & R. 334, 
 Certain defects in title to, removed by statute, 399.
 
 INDEX. 635 
 
 LATENT. 
 
 Defects, what are, 40. 
 
 must be disclosed by vendor, ib. 
 Ambiguity in agreement, evidence to remove, 453. 
 
 LAW. 
 
 Proceedings at, how proved, 155. 
 
 And Equity, plaintiiF must elect between, when, 351, 456. 
 
 Remedies at, for breach of contract, Ch. XVII. 
 
 Results of, whether to be stated in bill, 471. 
 
 Inability to recover damages at, whether a defence in Equity, 
 
 496. 
 Case not sent to, without purchaser's consent, 523. 
 
 costs of, 547. 
 Questions of, Court more readily decides against purchaser than 
 
 questions of construction, 524. 
 
 LEASE. 
 
 Premium obtained fraudulently by infant for, returned, 3. 
 To aliens, past and present Law respecting, 9. 
 Infant repudiating, and having enjoyed part of term, cannot re- 
 cover premium for, 11. 
 Putting up of, to sale by Assignees, 37, n., 129. 
 Notice of, whether notice of all its contents, 41. 
 Covenants, &c., in, need not be mentioned on sale of, 53. 
 But there must be no misrepresentation, &c., 53, 54. 
 Removal of buildings, when to be stated on sale of, 54. 
 Misdescriptions respecting, when fatal, 64, 67. 
 Conditions usually requisite, on sale of, 75, 76. 
 What agreements respecting, must be in writing, 91 to 93. 
 
 How affected by contract for purchase of reversion, 119, 128. 
 
 Or by contract by lessor to purchase underlease, 129. 
 
 Equitable assignee of, in possession, bound to indemnify original 
 lessee against breaches of covenant, 129. 
 
 Title to be shown, on sale of, 137, 138. 
 
 Ecclesiastical, recitals in, when evidence, 154. 
 
 In writing, its effect on rights of reversioner, under 3 & 4 
 Will. IV. c. 27, 193. 
 
 Preparation of, when a waiver of lessor's title, 218. 
 
 Grant of, in, equivalent to possession, 220. 
 
 How far liable to judgments, 231, 232, 234, 235, 237. 
 
 Counterpart of, when to be deposited, 315. 
 
 What to be entered in county register, 318. 
 
 Unregistered, defect not supplied by registering assignment, 
 401. 
 
 When liable to ad valorem duty, 328.
 
 636 INDEX. 
 
 LEASE — continued. 
 
 Agreement for in conveyance, no additional duty, 332. 
 Lessee pays costs of, and lessor's solicitor prepares, 336. 
 Property in, rights, &c., of purchaser after conveyance, 386, 
 
 387, 566. 
 Next estate is now the reversion, 387. 
 Purchaser of, has what notice of lessee's title, 410. 
 Void or voidable, purchaser may dispute, when, 416 to 419. 
 Whether vendor may set aside, for his own benefit, 417. 
 Agreement to assign, how not to be performed, 504, 506. 
 
 LEASE FOE A YEAE. 
 
 Kecital of, when evidence, 154. 
 
 Eeference to Act dispensing with, unnecessary, 257. 
 
 LEASEHOLD. See Lease. 
 
 Described as the freehold, variance is fatal, 63, 504. 
 Covenants by vendor of, 259. 
 
 by purchaser of, 265, 567. 
 Occupation rent to bo paid for, instead of interest, during delay 
 
 in completion, 297. 
 Covenants for title run with, 365. 
 Instead of freehold, purchaser need not take, 504. 
 And see Lease, Lessee, and Lessob. 
 
 LEGACY. 
 
 Eight to recover, when barred under 3 & 4 ^yiLl. IV. c. 27, 197. 
 Evidence of payment of, 197, n. 
 
 Charged on land, registered judgment charges, semhle, 238. 
 Payment of, when purchaser need see to, 284, et seq., 291, 292. 
 Assignment of, need not be registered, 318. 
 
 LEGAL ESTATE. 
 
 Dependent on precedent conditions, difficulty attending sale, 31. 
 Trustee of, must convey to trustee for sale of equitable estate, 
 
 38. 
 How far a protection to purchaser, 115, 232, 345, 883, 389 to 
 
 392, 4£)0. 
 Conveyance of, when in infants, &c. See Convetance. 
 Being outstanding, when not a defect in title, 131, 562. 
 
 notice of, is notice of its trusts, 408. 
 But abstract must show in whom it is vested, 132. 
 All documents affecting, should be abstracted, 143. 
 Eeconveyance of, when presumed, 159. 
 Trustees of, vendor must procure, to convey, 498.
 
 INDEX. 637 
 
 LEGATEE. 
 
 Of bond debt, can set aside purcliase by lunatic testator, in 
 consideration of release of debt, 12. 
 
 Court may sell under 3 & 4 Will. IV. c. 104, in suit by, 550. 
 LEGITIMACY. 
 
 Of child born in wedlock, when presumed, 169, 170. 
 LESSEE. 
 
 Misdescription of occupier as, not matter for compensation, 65. 
 
 Purcliase of reversion by, 119, 128, 387. 
 
 Has constructive notice of lessor's title, 409. 
 LESSOE. 
 
 Title of, condition against producing, 67. 
 
 Contract for sale of crops by, to incoming tenant, must be in 
 writing, 95. 
 
 Effect of contract by, to purchase under lease, 129. 
 
 Title of, when to be produced on sale, 137. 
 lessee has notice of, 409. 
 notice of tenancy, not notice of, 410. 
 LETTEE. 
 
 May constitute agreement, 97, 98. 
 
 When insufficient for that purpose, 99. 
 
 Binds writer from time of transmission, 101. 
 
 Party accepting offer by, not responsible for delay in post 
 office, ib. 
 
 Imperfect references in, to otber documents, 102. 
 
 Agreement, or merely treaty by, distinguished, 104. 
 
 Stamps on agreement by, 109. 
 
 To counsel, &c., as to producing, 415. 
 
 How to be referred to, in bill, 471. 
 LIABILITY. 
 
 General, of fiduciary vendors, 37. 
 
 Of auctioneers, 80 to 83. 
 
 Of agents, 83 to 87. 
 
 Under lease, condition for apportionment of, on sale, 76. 
 
 Of purchaser under contract, his alienee, &c., must undertake, 
 115. 
 
 To perform contract, not affected by death, &c. &c., 120. 
 
 tests the relative rights of either party's represen- 
 tatives, 122 to 127. 
 
 Eresh, incurred by vendor, makes time essential, 209. 
 
 Of vendor, purchaser must imdertake what, 265. 
 
 Mutual, under contract, whether dependent, 449. 
 
 Of purchaser, matters increasing, when a defence in Equity, 506.
 
 638 INDEX. 
 
 LICENSE. 
 
 Parol, to use land, whether valid, 92. 
 
 Is determined by the conveyance, 430. 
 
 Void agreement may operate as, to excuse trespass, 93. 
 
 LIEN. 
 
 Implied, fiduciary purchaser, ordered to reconvey, has none for 
 
 balance due, 23. 
 Vendor has, on estate and conveyance, for purchase-money, 118, 
 267. 
 suits by, to enforce, is for recovery of money charged 
 on land, 198. 
 Judgment is a, on unpaid pvirchase-money, 119. 
 Landowner has none, for costs, on sum deposited by EaUway 
 
 Company, 225. 
 Of mortgagee's solicitor, on deeds, its extent, 204. 
 Vendor's solicitor has none, on conveyance, for costs, 267. 
 Vendor's, for unpaid purchase-money after conveyance, its ex- 
 tent and nature, 345, et scq. 
 When lost, by taking security, &c., 346 to 349. 
 May subsist as to part only of impaid money, 350. 
 Presumable intention for or against lien may be rebutted, ih. 
 How lost as against third parties, ih. 
 None implied in favour of disqualified persons, ib. 
 Is merely equitable, 351. 
 
 Is a protection against judgment creditors, when, ib. 
 Does not extend to miscalculated interest, ih. 
 Purchaser has none on appropriated purchase-money, 382. 
 Notice of possession of deeds is notice of, 408. 
 Vendor's tenancy, when not notice of, 411. 
 LIPE. 
 
 Misdescription of, how not qualified, 44. 
 Dropping of, before conveyance, 116 to 118, 555. 
 Must be shown to exist, on sale of renewable lease, 138. 
 Estate or annuity, on sale of, time is material, 209. 
 
 purchaser of, from Court, when entitled to, 567. 
 LIGHT. 
 
 Adjoining land stated to be building land, yet vendor may not 
 
 build on so as to obstruct even new lights, 55, 56. 
 Title to rights of, under Prescription Act, 184 to 188. 
 LIMIT. 
 
 Of price, agent exceeding, principal not bound, 84. 
 LIMITATIONS, STATUTE OF. 
 
 Delay for less than time allowed by, may bar right to relief in 
 Equity, 25.
 
 INDEX. 639 
 
 LIMITATIONS, STATUTE OF— continued. 
 
 Tithes, how affected by, 183. 
 
 General provisions of, 188 to 200. 
 
 Purchaser compelled to accept title under, 199. 
 
 Suit to enforce vendor's lien is not within 25th sect, of, 34 6. 
 
 Begins to run, when, in favour of covenantor, 366. 
 
 on conveyance by trustees in breach of trust, 
 427. 
 LIS MOTA. 
 
 Declarations used as evidence must be made before, 179, 
 
 "VMiat is a, th. 
 
 LIS PENDENS. 
 
 Search for, is usually directed, 230. 
 
 for what period, 242. 
 Must be registered, to bind purchasers without notice, 399. 
 Is notice, only if registered, 406, 410. 
 
 LIVEEY OF SEISIN. 
 
 Presumption of, 161, 
 
 LOCAL. 
 
 Public act, liabilities under, need not be stated, 53, 
 
 as it is notice, 406. 
 Derivation of family, whether a matter of pedigree, 179. 
 Measures abolished, 303. 
 Customs, evidence of, to explain contract, 452. 
 
 LONDON. 
 
 Middlesex Eegister Act does not affect, 318. 
 
 LOED OF MANOE. 
 
 Customary validity of grant by, must be shown, 75. -^ 
 And title of, on sale of enfranchised copyhold, 137. 
 
 LOSS. 
 
 Fiduciary vendors selling by auction, not generally liable for, 36. 
 Aliter, if they buy in, and re-sell without authority, 37. 
 Through auctioneer, falls on vendor, 82, 89. 
 By investment. See Investment, and Funds. 
 Of unstamped agreement, 110, 453. 
 Accidental, after contract, falls on purchaser, 116, 
 rule, on sales by the Court, 554, 560. 
 Of early title, how to be provided for by conditions, 68, 
 Of deed, when not an objection to title, 145. 
 
 lets in secondary evidence of its contents, 65, 152. 
 what sufficient evidence of, ib. 
 By breach of contract, what recoverable at Law, 446, 447,
 
 640 INDEX. 
 
 LOTS. 
 
 Fiduciary vendors may sell in, 32. 
 
 Alteration in, should be advertised, 33. 
 
 On sale in, abstract should be verified at vendor's expense, 
 
 70, 77. 
 Of leaseholds in, what conditions requisite, 76. 
 Employment of several bidders, whether allowable, 89. 
 TVho entitled to deeds, 311, 569. 
 
 Stamps, on a^eement for purchase of several, 109, 110. 
 ■ Purchaser of one, when made a party to suit respecting another, 
 
 466, 467. 
 Part performance as to one does not affect ahother, 482. 
 Defect in title to one of several, 507. 
 As to opening biddings on some only of several, 557. 
 If biddings opened, estate may be re-allotted by order, 558. 
 
 LUNACY. 
 
 Evidence of, 12, n. 
 
 Subsequent, does not avoid contract, 120. 
 
 LUNATIC. 
 
 How far incompetent to buy or sell, 3, 4, 12, and see Price v. 
 
 Berrington, 7 Ha. 394. 
 Vendor, conveyance from, under, 1 "Will. IV. c. 65, 537. 
 Highest bidding by, on sale by Court, 553. 
 See Committee and Conveyance. 
 
 LYING IDLE. See Pubchase-money. 
 
 mainten.\:nce. 
 
 Agreement amounting to, invalid, 112. 
 
 MAJORi:^:- 
 
 Of creditors, or cestuis que trust, cannot bind minority, when, 
 
 21, 26. 
 Of creditors of insolvent, direct time and mode of sale, 32. 
 
 MANAGEMENT. 
 
 Acts of, by purchaser in possession, no waiver of title, 220. 
 
 MANDAMUS. 
 
 To compel inspection of Court EoUs, 242, n. 
 
 Existence of remedy by, whether a defence in Equity, 460. 
 
 MANOR. 
 
 Customary restrictions upon alienation, removed, 7, n. 
 Customs of, need not be stated on sale of copyholds, 53. 
 Freeholds, stated to be held of, quit rents and heriots need not 
 be referred to, semble, ih.
 
 INDEX. 641 
 
 MAjS^OR — continued. 
 
 Condition as to title to, on sale of enfranchised copyholds, 47, 
 
 137. 
 Condition as to customary grants of waste, 75. 
 On sale of, fines when considered to accrue, 566. 
 
 See COUET-EOLLS. 
 
 MANSIO]?^. 
 
 Vendor not compelled to convey, apart from estate, 500. 
 
 MANUFACTOEY. 
 
 Effect of notice by Eailway Company to take part of, 99. 
 Vendor contracting to sell entirety not forced to convey only 
 shares in, 500. 
 
 MAEEIAGE. 
 
 To British subject, naturalizes female alien, 10. 
 Presvunption of, 171. 
 Evidence of, 176 to 180. 
 
 Settlement, as to covenants by vendor claiming under, 259. 
 A sufficient consideration for settlement, 421. 
 "Wliether so as in favour of collaterals, ih. et seq. 
 Subsequent, may support prior voluntary settlement, 421. 
 Is not a part performance of parol agreement, 479. 
 
 MAEEIED WOM^UN^. 
 
 How far incapable to sell or buy, 5, 6, 12. 
 
 Signature by, in name of first husband, valid, 106. 
 
 When barred under 3 & 4 Will. IV. c. 27, 194. 
 
 Husband covenants, on sale of her estate, 261. 
 
 Caimot convey by attorney, 269. 
 
 Conveyance and disclaimer by, under statutes, 269 to 275. 
 
 Assignment by woman, erroneously supposing herself to be, 
 
 352, n. 
 Fraudulently encouraging purchase, &c., is bound, 394. 
 Contract for sale of her estate, when enforced, 463. 
 Surviving, whether she may adopt husband's contract, 464. 
 Separate estate of, bound by her contract to purchase, 465. 
 And husband, voidable contract by, for sale of her estate, 
 
 whether purchaser can rescind, 489. 
 When not ordered to convey, 568. 
 
 MASTEE. 
 
 Purchase before a, by trustee, &c., invahd, 15. 
 Sales before, are not within Statute of Frauds, 91, 555. 
 Eeference of title to, and proceedings on, 519, et seq. 
 Settlement of conveyance by, 535, et seq. 
 
 T T
 
 642 
 
 INDEX. 
 
 MASTER — continued. 
 
 Appointed under 1 "Will. IV. c. 36, to convey, 538. 
 Bill recommended by, yet dismissed with costs, 540. 
 And see, as to sales before, Chap. XIX. 
 
 MATEELiL. 
 
 Eacts, not appearing on deeds, vendor must disclose, 11. 
 Misstatements avoid contract, 63, 64. 
 
 MEANS. 
 
 In covenants for title, 368. 
 
 MEASUEES. 
 
 Statutory and local, 303. 
 
 Statutory meaning of expressions referring to, not varied by 
 parol, 452. 
 
 MEMOEANDUM. 
 
 To be indorsed on leading title deed retained by vendor, 325. 
 
 MEMORIAL. 
 
 Copy of, when evidence of registered deed, 153. 
 Contents and attestation of, 319, 320. 
 Stamps on, 319, n. 
 
 MERGER. 
 
 Of charges, on purchase by incumbrancer, 442, n. 
 
 MINES. 
 
 And minerals, should generally be sold by fiduciary vendors with 
 
 surface, 33. 
 Are not prima facie, included in sale or conveyance to Railway 
 
 or AVaterworks Company, 52, 258. 
 Liability to right to dig for, its effect on title, 52, 503, 506, 527. 
 Customary right to dig for, in mining districts, 53. 
 Shares in mining company, parol agi'eoment for sale of shares 
 
 in, void, 93. 
 
 what title must be shown to, 138. 
 Mining adits, 184, n. 
 
 MINERALS. 
 
 Parol agreement to sell, as a chattel, valid, semhle, 94. 
 
 Belong to purchaser from date of contract, 116, 306. 
 
 Tithes of, not within Commutation Act, 181. 
 
 Right to dig for, may, but exclusive right to particular stratum 
 
 of, cannot, be claimed by prescription, 185, n. 
 Conveyance of, should reserve power of entry, when, 266.
 
 INDEX. 
 
 643 
 
 MISAPPREHENSION. 
 
 By one of several vendors of the extent of his interest, imma- 
 
 terial after conveyance, 352. 
 Agreement entered into under, when not enforced, 485. 
 
 MISCALCULATED. 
 
 Interest, vendor cannot claim after conveyance, 351. 
 
 MISDESCEIPTIONS. 
 
 Destroy effect of what woidd otherwise be notice, 54. 
 Condition respecting, 62 to 65. 
 
 Fiduciary vendors cannot allow compensation for, 65, 78. 
 What are so material as to avoid contract, 63, 64. 
 Purchaser from Court allowed compensation for, after convey- 
 ance, 571. 
 
 And see Misbepebsentations. 
 
 MISINFOKMATION. 
 
 As to incumbrances, &c., how far trustees giving, are responsi- 
 ble for, 43, 229. 
 
 By purchaser, vendor relying on, and selling at under-value, 
 relieved after conveyance, 353. 
 
 MISEEPEESENTATION. 
 
 Purchaser from infant relieved only on ground of, 3 ; and see 
 
 Wright v. Snowe, 2 De G. & S. 321. 
 Unintentional, by vendor's agent, 40. 
 
 by principal, 394. 
 Of value &c., by vendor, 43 to 45. 
 Of estate by purchaser to third person, 46. 
 Of terms of lease, avoids contract, though lease read at sale, 53. 
 Inadequacy of price, occasioned by, sale set aside, 353. 
 Purchaser accepting defective title through, relieved, 378, et seq. 
 A defence in Equity, 485, et seq. ; 492, 496, 503, 510. 
 Its effect on costs, 541. 
 
 MISTAKE. 
 
 Purchase by, specific performance of not enforced, 90. 
 
 By vendor, as to extent or value of the property, or of his 
 
 interest therein, no relief after conveyance, 351, 352. 
 Aliter, if a conveyance of farm A., by mistake, include B., ib. 
 Lands omitted by, purchaser can claim, 383. 
 When not an excuse for misrepresentation, 43, 229, 395. 
 Whether a ground for varying written agreement in favour of 
 
 plaintiff, 483. 
 When a defence in Equity, 484, 485, 492. 
 Not a ground for opening biddings after confirmation, 560. 
 
 T T 2
 
 A 
 
 644 INDEX. 
 
 MIXED FUKD. 
 
 Proceeds of sale of real estate, to be applied as, with personal 
 estate, executors cau give receipts for, 285. 
 
 MODrFICATION. 
 
 Of waiver by constant demand of title, 221. 
 
 MODUS. 
 
 Tithe Commutation Commissioners may decide on validity of, 
 
 181. 
 How otherwise established, 182. 
 TMicn within the 3 & 4 WUl. J\\ c. 27, 188. 
 
 MONEY. 
 
 Charged on land, how long recoverable, 197, 198. 
 To be invested in land, married woman's reversionary interest 
 in, can be assigned, 273. 
 
 MONTH. 
 
 Cleans, prima facie, lunar month, 215. 
 
 MONUMENT. 
 
 Is evidence in questions of pedigree, 178. 
 
 " MOEE OR LESS." 
 
 Quantity of land stated to be, 308. 
 
 '"mortgage. 
 
 On sale of estate in, arrangement as to the deeds, 66, 
 
 For term, whether a sufficient root of title, 141. 
 
 And reconveyance, should not be taken off the title, 143. 
 
 Equitable, by deposit, need not, if satisfied, be abstracted, 144. 
 
 is not affected by subsequent judgments, 237, 398. 
 
 is subject to prior equities, 393. 
 Payment of, and reconveyance, when presumed, 100. 
 Interest on, for what time recoverable, 198. 
 Debt, whether judgment is now a charge on, 237. 
 Power to lend on, implies power to give receipts, 291. 
 As an investment, report by Master against, sustained, 313. 
 And conveyance, double duty on deed operating as, 331. 
 Taken for purchase-money, destroys vendor's lien, 34G. 
 Of estate to vendor, for securing part of purchase money, 
 
 judgments against purchaser are immaterial, 351. 
 For price of goods, bought to raise money, supported, 357. 
 Title, notice of, is notice of equity of redemption, 408. 
 And conditional purchase, distinguished, 388. 
 Apparent conveyance may be shown to be, 437.
 
 f^^ 
 
 INDEX. 645 
 
 ]\Iortgagor not compelled to pay off, in order to grant lease, 
 491. 
 MOETG-AGE— co«f/«HecZ. 
 
 Settlement reserving power to, when valid, 425. 
 Purchaser of estate in, may dispute voidable leases, when, 419. 
 And see Incumbeances. 
 
 MOETGAGEE. 
 
 V Or his agent, cannot buy under power of sale, 17. 
 
 May buy from mortgagor, 18. 
 
 Permission for, to bid in bankruptcy, whether requisite, ih. 
 
 May sell, under power, without mortgagor's concurrence, 28. 
 
 Should not conduct sale in bankruptcy, 32. 
 
 As to mode of sale by, &c. See Fidttciaby Chaeacteb. 
 
 Oppressive sale by, not necessarily invalid, 33. 
 
 Contracting to sell, may yet sue mortgagor, 128. 
 
 May recover land, within what period, 189. 
 
 Acquires absolute title, under 3 & 4 Will. IV. c. 27, when, 196. 
 
 Eight of, to retain deeds, until paid, 204, 205, 570. 
 
 Losing, or destroying deeds, liability of, 205. 
 
 Conveyance of mortgaged estate by. See Conveyaxce. 
 
 Settling several mortgages by same deed, liability of, 315. 
 
 Inquiry of, and notice to, by purchaser of equity of redemp- 
 tion, 325. 
 
 Omitting to take, or giving up deeds, how affected, 345, 395, 
 409. 
 
 Buying equity of redemption, 430. 
 
 Selling after foreclosure, cannot sue on collateral securities, 
 430. 
 
 IS'ot proper party to mortgagor's suit, 466. 
 
 Proving debt in suit, bound at once to convey on sale, 568. 
 
 Consenting to sale, must leave deeds with Master, 570. 
 "* See Incumbeanceb. 
 
 ^ ux-MOETGAGOE. 
 
 ■^ ] Agi'eement for his conciurence in sale by mortgagee, 28. 
 
 IS'ot tenant at wUl to mortgagee within 3 & 4 Will. IV. c. 27, 
 191. 
 
 Eight of, to redeem, when barred, 196. 
 
 I^ot proper party to mortgagee's suit, 465. 
 
 MOETMAIX. 
 
 Corporations cannot purchase without license to hold in, 8. 
 Act, enrolment under, 320. 
 
 MOTIVE. 
 
 For purchase, unexpressed, time not essential, 210.
 
 646 INDEX. 
 
 MUEDEE. 
 
 Attainder for, involves forfeiture and esclieat, 6. 
 
 MUTILATIO>^ 
 
 Deeds how affected by, as evidence, 161. 
 
 MUTUALITY. 
 
 On ground of, vendor's bill for p\ircliase-money sustained, 460. 
 Want of, when a defence in Equity, 493 to 496. 
 
 NAME. 
 
 Of unincorporated class, purchase in, bad, 8. 
 Of principal, auctioneer not disclosing is pcrsonably liable, 80. 
 Of stranger, contract entered into in, whether valid, 85, 490. 
 Of principal, agent should sign in, 85. And see Signatube. 
 
 being undisclosed, agent may vary times of pay- 
 ment, 86. 
 Of each party to contract must appear, scmhle, 100. 
 Of covenantee, when purchaser may sue in, 366. 
 
 NATUKAL-BOEN. 
 
 Subjects, who are, 9. 
 
 KATUEALIZATION. 
 How procurable, 9. 
 
 NE EXEAT. 
 
 Writ of, when granted against purchaser. See Turn. & E. 342, 
 et seq. 
 
 NEGATI"V^. 
 
 Evidence, vendor does not give copies of, or covenant to pro- 
 duce, 158, 166, 315. 
 
 will or codicil, may be required as, when, 165. 
 
 NEGLECT. 
 
 Gross, by either party in proceeding with contract, entitles other 
 
 party to rescind, 210. 
 To require performance of contract, when a waiver of time, 213. 
 Meaning of, in covenants for title, 369. 
 
 NEGLIGENCE. 
 
 Gross, in preparation of particulars, its effect, 62. 
 
 Of auctioneer, &c., defeats his claim to remuneration, 82. 
 
 Gross, may be treated as notice, 405, 409. 
 
 Biddings whether opened for, after confirmation, 560. 
 
 NEGOTIATIONS. 
 
 Preliminary to contract, rules to be observed in, 39 to 47. 
 Condition for rescinding contract, how affected by, 72. 
 Upon title, 215 to 220.
 
 INDEX. 647 
 
 NEW TITLE. 
 
 Vendor, wlien bound to convey, 383, et seq. 
 Acquired by plaintiffs in Equity, after bill filed, 495. 
 
 NOMLSTAL. See Eesttlting Trust. 
 
 Agent, contract by, when enforced, 85, 496. 
 
 IS'OJS'-EXISTENCE. 
 
 Of estate, whether any relief for, after conveyance, 382. 
 Of part of estate, and want of title to, distinguished as defences, 
 497. 
 
 NOTICE. 
 
 Of equitable incapacity in original, affects sub-purchaser, 22. 
 
 Of alteration in sale, fiduciary vendors should give, 33. 
 
 Matters of which purchaser has, vendor need not state, 41, 53. 
 
 Misrepresentation avoids effect of what would be, 54. 
 
 Lease is, of what, 41. 
 
 Should be given to mortgagee, on purchase of equity of redemp- 
 tion, 325. 
 
 on purchase of equitable estate, 43. 
 
 But does not give priority, as between equitable estates in land, 
 ib. 229, 393. 
 
 Of claim to estate by stranger, no cause of action, 47. 
 
 By or to Railway Company, may constitute agreement, 98, 122. 
 
 Single, does not cxliaust statutory power to purchase, 99. 
 
 Adverse, not acted on, its effect on title, 164, 526. 
 
 Of deposit, absence of deeds may amount to, 205. 
 
 Time, not originally essential, may be Hmited by, 211, 212. 
 
 Of claim, whether incumbrancer need give, 228. 
 
 Begistration under 1 & 2 Vict. c. 110, is not, semhle, 230. 
 
 Purchasers without, judgments do not affect under 1 & 2 Vict. 
 c. 110, 230. 
 
 "Whether so, as regards Palatinate judgments, 240. 
 
 Of unregistered judgment, ib. 
 
 Of sale being in breach of trust, power to give receipts is no 
 protection, 288. 
 
 Of money appropriated and lying idle, to save interest, 293. 
 
 Of deficiency in quantity, when not presumed, 307. 
 
 Of misdescription, bars claim to compensation, 309, 503. 
 
 Of copyhold disentailing assurance, 323, n. 
 
 Sub-purchasers with, vendor's lien prevails against, 345. 
 
 Alienees with, are bound by certain covenants, 361, 362. 
 
 To tenants to pay rent, a disturbance, 367. 
 
 Of claim, its effect, 395. 
 
 As to notice generally, Ch. XV^. s. 5, pp. 402 to 427.
 
 648 INDEX. 
 
 l!iOTlC^— continued. 
 
 Alienees vritli, must perform vendor's contract, 462. 
 Of defect, at time of filing bill, does not bind purchaser to 
 accept bad title, 531. 
 
 NOTOEIOUS. 
 
 Local customs, need not be referred to in contract, 53. 
 
 NCJISA^^CE. 
 
 Concealment of, by vendor's agent, 40. 
 On estate, purchaser when liable for, 430. 
 
 NUNC PEO TUNC. 
 
 Order for mortgagee to bid, made in Bankruptcy, 18, n. 
 
 OB.JECTIONS. See Defects. 
 
 To title, conditions as to, their effect, 67, 68, 70 to 73. 
 How affected by delay in delivery of abstract, 58, 146. 
 Condition limiting time for. fiduciary vendors may use, 77. 
 Negotiations upon, and waiver of, 215 to 220. 
 Expediency of reciting, in deed of confirmation, 254. 
 Equitable, a Court of Law considers, -157. 
 What arc, for purposes of reference of title, 520. 
 Fresh, purchaser may take on fresh reference, 629. 
 Fair, not a ground for costs, 541. 
 Purchaser waiving, pays costs of, when, 544. 
 Improper, costs occasioned by, not allowed, ib. 
 
 OBSTRUCTION. 
 
 Of necessary way, a disturbance, 367. 
 
 OCCUPATION. 
 
 Of premises by purchaser, its effect on right to rescind, 11, 444. 
 Seisin not presumed from, as between vendor and purchaser, 
 
 107, 1G8. 
 Of premises by purchaser, yet compensation allowed for defects, 
 
 54, 307. 
 Notice of, notice of occupier's equities, 408. 
 Sed aliter as respects a past occupation, 410. 
 
 OCCUPATION EENT. See Account, Leaseholds. 
 
 OFFEE. 
 
 For purchase by third person, false assertion of, by vendor, 44. 
 Party accepting, not liable for delays in post, 101. 
 Withdrawal, rejection, and acceptance of, 104, 105. 
 
 OFFICIAL. 
 
 Appointments, presumption of, 168.
 
 INDEX. 649 
 
 OFFICE COPIES, AND EXTKACTS. 
 
 Are received as, but are not strictly, evidence, 154, 156. 
 
 OMissio:s'. 
 
 Of parcels from conveyance, purchaser -wben relieved, 383. 
 To make prudent inquiries, purcliaser when not liable for, 412. 
 Of stipulations as illegal, binds the parties, 488. 
 
 OPENING BIDDINGS. 
 
 Allowed in Bankruptcy, 36. 
 
 Practice respecting, on sales in Chancery, 555 to 559. 
 
 Not usual, after Master's report confirmed, 560. 
 
 OPLS^O^^ 
 
 Puffing statements amounting to mere expression of, whether 
 allowable, 43. 
 And see Case, Counsel. 
 OPPRESSrV'E. 
 
 Sale by mortgagee may yet be valid, 33. 
 OPTIOX. 
 
 Of purchase, as to declaring, 98, n. 480. 
 
 Of sale or purchase, declared, its effect on relative rights of 
 donee's representatives, 122 to 126. 
 OEDEE. 
 
 To pay purchase-money to third person, when irrevocable, 86. 
 Of the Courts of Chancery and Bankruptcy, and in Lunacy, has 
 
 the effect of judgment, 238. 
 Of reference of title, 521, et seq. 
 OEIGI^s^ALS. 
 
 Loss of, when supplied by secondary evidence, 65. 
 Condition against production of, its effect, 67. 
 
 OENAMENTAL TIMBEE. See Timber. 
 OUTSTANDING INTEEESTS. 
 
 How to be got in, and costs of, 246, 339. 
 
 Provisions in Lands Clauses Consolidation Act respecting, 429. 
 
 TVhen a ground for reporting against title, 527. 
 OWNEE. See Statutoey Ownee. 
 
 Whether purchaser acting as, accepts title, 220, et seq. 
 
 Of estate sold by Court or his trustees, covenants, 260. 
 
 Beneficial devisee and executor selling as, implies no breach of 
 trust, 289. 
 
 Of lands, party in possession selling to EaUway Company, 
 when deemed such, 312. 
 
 Adjoining, right of, to pre-emption, under Lands Clauses Con- 
 solidation Act, 360.
 
 650 INDEX. 
 
 PALATINATE COURTS. 
 
 As to registration of judgments in, 239. 
 
 Whether such judgments are within 2 Vict. c. 11, and 3 & i 
 
 Vict. c. 82, 240. 
 May make orders under the Trustee Act, 277. 
 Orders by, whether evidence under 45th sect., 280, n. 
 
 PAEAMOUNT TITLE. 
 
 Purchaser asserting, need not give up posseBsion, 222. 
 Eviction under, when within the usual covenants for title, 368. 
 And see Account. 
 
 PAECELS. 
 
 Fiduciary vendors may sell in, 32. 
 Conditions as to identity of, Gl>. 
 Presumptions of identity of, 166. 
 How to be described in conveyance, 258. 
 
 Improperly included in, or omitted from conveyance, law 
 respecting, 352, 383. 
 
 PAEENT. 
 
 And child, contracts between, 355, n. (q), 356, n. (x). 
 Purchase in name of, not an advancement, '138. 
 
 PAEISH. 
 
 Inhabitants of, cannot purchase co nomine, 8. 
 PAESON. 
 
 And churchwardens, by custom a corporation to piirchase 
 land, 8. 
 
 PAET. 
 
 " Any," trust to seU, extends to entirety, 32, n. 
 
 Material, of property, wanting, or no title shown to, defect is 
 
 fatal, 61, 497, 505, 507. 
 Unspecified, of estate, notice of charge as affecting, '107. 
 Of estate, vendor when compelled to convey, 499, et seq. 
 
 PAET-OWNEE. 
 
 May enforce production of deeds, 202. 
 
 PAET-PEEFOEMANCE. 
 
 Equitable doctrine of, not recognised at Law, 451. 
 
 Wliat acts of, are or are not sufficient in Equity, 477 to 480. 
 
 Eequisite, to set up subsequent parol variation, 488. 
 
 PAETICULAES. 
 
 Of sale, general matters relating to, 48 to 51. 
 preparation and contents of, 51 to 56. 
 on sale by Court, 552. 
 Of claim, may be required at Law, 456.
 
 INDEX. 651 
 
 PAETIES. 
 
 To conveyance, requisition as to, an objection to title, 72. 
 
 who must be, 250, et seq., 568. 
 To contract, as between, it is in Equity a conveyance, 115. 
 To suit for specific performance, 465 to 470. 
 To suit cannot, without leave, bid at sale in, 550. 
 
 PARTITION. 
 
 Deed, party claiming under, can enforce its production, 202. 
 
 PAHTNEE. 
 
 Purchasing from co-partner, is entitled to what abstract. 134. 
 As to lands purchased or held in partnership, 432, et seq. 
 
 PAETY, OR PRIVY. 
 
 Effect of the words, 369. 
 
 PATENT. 
 
 Defects, what are, vendor need not point them out, 39, 40. 
 Ambiguity, evidence of intention cannot explain, 453. 
 
 PAYMENT. 
 
 Terms of, agent of undisclosed principal may vary, 86. 
 
 Of deposit. See Deposit. 
 
 Of mortgage debt, when presumed, 160. 
 
 Of purchase money on completion, 310, et seq. 
 
 Out of Court, of money paid by Railway Companies, 312. 
 
 costs of, 337. 
 To bankrupt, when protected, 396, et seq. 
 
 PEDIGREE. 
 
 Matters of, should be abstracted in chief, 143. 
 Presumption in matters of, 169 to 176. 
 Evidence of matters of, 176 to 180. 
 
 PENALTY. 
 
 On entry by Railway Companies before payment or deposit, 
 
 225. 
 Statutory, what is subject to, is unlawful, 454, n., 490. 
 Insertion of in agreement, yet specific performance decreed, 496. 
 
 PENCIL. 
 
 Signature is binding, 106. 
 
 PENDENTE LITE. 
 
 Legal estate may be got in from unsatisfied incumbrancer, 391, 
 Abstraction of subject-matter of suit, relief for, 534.
 
 652 INDEX. 
 
 PEECH. 
 
 Statutory length of, 303. 
 
 Statement of perches and roods, its effect on the expressions 
 " more or less," &c., 308. 
 PERFECT. 
 
 Abstract is, when, 131 to 13i. 
 PERFORM A^X'E. 
 
 Of covenants, condition as to eWdence of, on sale of lease, 75. 
 
 Of plaintiff's engagements, when necessary before action, 449. 
 PERIODICAL PAYMENTS. 
 
 Arrears of, how long recoverable, 198. 
 
 PERMITTED, OR SUFFERED. 
 
 Effect of the words, 360. 
 
 PERSONAL ESTATE. See Deficiency, Mixed Fund. 
 PERUSAL. 
 
 Of abstract, as to mode of, 148. 
 
 purchaser's solicitor, objecting to delay in de- 
 livery, should abstain from, 1 tG. 
 Of conveyance, vendor pays for, 33 1. 
 PEW. 
 
 Right to, how shown. 13S. 
 PLACE. 
 
 For production of deeds, 'in], 202. 
 PLAINTIFF. 
 
 In Equity, whether ho can vary contract by parol evidence, 50, 
 483. 
 PLAN. 
 
 Reference to in particulars, its effect, 51, 55, 308. 
 Words in, when counted for stamp duty, 333. 
 POLE. See Perch. 
 PORTION. 
 
 Further, a consideration for settlement, 420. 
 POSSESSION. 
 
 Agreement to give up, for a money consideration, must be in 
 
 writing, 92. 
 Vendor in, after time fixed for completion, may get in crops, 
 
 &c., 116. 
 Purchaser in, before payment of purchase-money, restrained 
 from waste, 118. 
 when liable for use and occupation, if no title, 119, 
 448. 
 When title may be proved by evidence of, 142.
 
 \ 
 
 INDEX. 653 
 
 :P0SSESS10:S— continued. 
 
 Title acquired by, under Statute of Limitations, 188 to 200. 
 
 Evidently at once required, time is essential, 209. 
 
 Undertaking to deliver, not binding in Equity, 210. 
 
 "V\Tien a waiver of title, 219, 220, 508, 564. 
 
 Granting lease is equivalent to, 220. 
 
 Purchaser in, his rights and liabilities, ib. to 223. 
 
 pays interest pending completion, when, 293 to 
 
 295. 
 ejectment of, a defence in Equity, 515. 
 when required to vacate, or pay purchase-money, 
 516, et seq. 
 Vendor in, by altering property, may avoid contract, 223. 
 when liable to occupation rent, 297. 
 must account for receipts, and deteriorations, 306. 
 By Eailway Companies before completion, 224, ef seq. 
 Party in, his primd facie right to purchase-money paid into 
 
 Court, 312. 
 Of estate, or deeds, assignees omitting to take, yet not post- 
 poned, 396. 
 notice of holder's equities, 408. 
 Given or taken, a part performance, 477. 
 Retention of, whether a pju-t performance, 478, 480. 
 Wrongfidly obtaiued, is unavailing, 479. 
 Collateral parol agreement for, void, 487. 
 Effect of, on costs, 546. 
 
 Purchaser from Court, not aUowed to take, without acceptinff 
 title, 564. 
 taking without leave, accepts title, ib. 
 from what time entitled to, 566. 
 Costs of motion for leave to take, and to pay money, 561. 
 
 POSSIBILITY. 
 
 Mere, evidence to negative cannot be required, 163. 
 POST. 
 
 Party sending letter by, is not responsible for delay, 101. 
 
 Offer made by, binding, if at once accepted, 105. 
 
 POTEETY. 
 
 Whether an excuse for laches, 25, 359. 
 Of vendor, effect of, 353, et seq. 
 
 POWER. 
 
 Collateral, infant may convey imder, 2. 
 
 Married woman may convey or contract under, 5, 463,
 
 654 INDEX. 
 
 FOWER—coiitinued. 
 
 To sell, conditional, exercise of, 30. 
 
 by auction, does not authorize private sale, 31. 
 to A., does not authorize sale to B., 32. 
 under special conditions, its effect, 78. 
 trustees not compelled to exercise, 464. 
 Of auctioneers and agents, 80 to 87. 
 Of vendor to manage estate, until completion, 115, 116. 
 Instrument creating, shoidd be abstracted, 141. 
 Exercise of, defeats judgment under old, but not under new 
 
 law, 233 to 235, 241. 
 Defective execution of, relief against, 394, 463. 
 Of revocation, settlement reserving, is fraudulent, 425. 
 Contract under, enforced against remainderman, 461. 
 To make substituted settlement, vendor not compelled to exer- 
 cise, 499. 
 And see Receipts. 
 
 PE^MUNIEE. 
 
 Effect of, on general right to sell, or buy, 6, 13. 
 
 PEAYEE. 
 
 For general relief, what relief obtainable under, 472. 
 
 PEAYEE BOOK. 
 
 Entries in, may be evidence of pedigree, 177. 
 
 PEE-EMPTION. 
 
 Clause of, in lease, whether notice of the lease is notice of, 41. 
 Eight of, how not accepted, 98, n., see 480. 
 Over superfluous lands, under Lands Clauses Consolidation 
 Act, 359. 
 
 PEELIMINAEY INQUIRIES. 
 
 Whether sale by Court can be made before, 550. 
 
 PEEMIUM. 
 
 For lease, infant lessor obtaining by fraud, decreed to repay, 3. 
 infant lessee, having occupied the property, cannot recover, 
 11. 
 
 PEEJUDICE. 
 
 Eeplies returned without, do not affect vendor's right to rescind 
 
 contract, semble, 72. 
 Act done to party's own, not a part performance, 482. 
 
 PEESCEIPTION ACT. 
 
 Title under, 184 to 188.
 
 INDEX. 655 
 
 PEESENTATION. 
 
 Purchaser, claiming present right of, must accept title, 117. 
 Hight of, when barred by statute, 197. 
 Injunction against, pendente lite, 519. 
 
 PEESENTMENT. 
 
 Of copyhold assurance, dispensed with, 323. 
 
 PEESUMPTION. See Evidence. 
 
 Of instrument having been duly stamped. 111. 
 
 Deficiencies in proof of documents, or of their attendant for- 
 malities, how far supplied by, 159 to 162. 
 
 General rule of, between vendor and purchaser, 162. 
 
 Deficiencies in proof of facts, not documentary, how far sup- 
 plied by, 166 to 176. 
 
 Under Lands Clauses Consolidation Act, of party in possession 
 being owner, 312. 
 
 PEICE. See Consideeation. 
 
 Limited, agent exceeding, does not bind principal, 84. 
 Bond of reference to settle, may amount to agreement, 98. 
 Uncertainty respecting, is fatal to contract, 101. 
 
 PEINCIPAL. See Agent. 
 
 PEIOEITY. See Ch. XV. 
 
 None is gained by notice to trustees, on purchase of eqmtable 
 estate in land, 43, 229, 325. 
 
 PEISON. 
 
 Contract executed in, held valid, 492, n. 
 
 PEIVATE. 
 
 Contract, as to sale by, by fiduciary vendors, 31, 32. 
 preparation of agreement, on sale by, 96. 
 Eestrictions on agent's written authority, 84. 
 
 PEIVILEGED COM]\fUNICATIONS. 
 
 Protected, 165, 414, et seq^. 
 PEITITY. 
 
 Of estate, as respects covenants, 361, 364, et seq. 
 
 PEIVY. 
 
 Eff"ect of expression, in covenants for title, 369. 
 
 PEOBATE. See Executob. 
 
 Eeceived as, but not properly evidence of title to freeholds or 
 
 copyholds, 156. 
 Should be seen to have issued from proper Court, 158.
 
 656 INDEX. 
 
 PEOBATE DUTY. 
 
 Not payable on share of partnership freeholds or copyholds, 
 
 433, n. 
 
 PEOCEEDDfGS. 
 
 At Law and in Equity, bankruptcy, &c., how proved, 155, 156. 
 
 PEOCLAMATIOXS. 
 
 Of fine, want of evidence of, suppUed by statute, 155. 
 
 PEODUCTIOX. See Ch. IX., axd Covknan't fob Pboditction. 
 Of deeds : purchaser's right to, 65. 
 
 condition against, its effect, 67. 
 
 covenant for, runs with land, 362, 377. 
 
 by unpaid mortgagee, not compelled, 20t. 
 
 unless he claim under mortgagor, who must himself 
 
 have produced them. ib. 
 or unless he consent to sale by Court, 205, 570. 
 Of title. See Abstbact, AND Title. 
 Of lease at sale, expedient, 75. 
 
 Of agreement, for purpose of stamping, enforced. 111, 453. 
 Of all docnmeuts of title in vendor's possession may be re- 
 quired, 110. 
 Of documents as negative evidence, 158. 
 Of cases, opinions, &c., 415. 
 PEOFESSIONAL. See Pbivileoed Communications. 
 Usage, evidence of, to explain agreement, 452. 
 Ad\aser, agreement entered into without, enforced, 485. 
 
 deeds procured from party in absence of, set aside, 378. 
 
 PEOFIT. 
 
 Trustee, Sic, purchasing, and making, must account for, 22, 24. 
 
 PEOMISE. 
 
 To accede to parol variation, whether enforced, 483. 
 
 when a defence in Equity, 485. 
 
 PEOMISSOEY NOTE. 
 
 Payment of deposit by, to auctioneer or agent, improper, 87. 
 Vendor's lien not affected by taking, 347. 
 Although stranger join therein as surety, ib. 
 
 PEOMOTEES OF PUBLIC UNDEETAKINGS. 
 May convey to themselves, in certain cases, 275. 
 Can, in certain cases, dispense with concurrence of incum- 
 brancers, 283. 
 
 PEOTECTION. See Ch. XV.
 
 INDEX. 657 
 
 PROTECTOR OF SETTLEMENT. 
 Consent by, 321, 322. 
 Costs of deed of, 334. 
 
 PROTEST. 
 
 Against delay, its effect, 214. 
 Payment under, 341, n. (z). 
 
 PUBLIC COMPANF. 
 
 Power of compulsory purcliase by, when exercisable, 28. 
 
 Bound by offer of adequate, though unascertained, price, to sta- 
 tutory owner, 36. 
 
 Notice by, of intention to take land under compulsory power, 
 how far an agreement, 98, 122. 
 
 May give second notice, 99, 118. 
 
 Contract by, how to be signed, 108. 
 
 Purchasing under compulsory power, pays for abstract, 131. 
 
 Entr}' by, before completion, 224, cf scg. 
 
 Covenants by landowner with, 2G0. 
 
 Shares, &c., in, ad valorem duty on conveyance in considera- 
 tion of, 256. 
 
 PUBLIC HOUSE. 
 
 Free, what is not, 56. 
 
 Deeds of, in London, usually mortgaged to brewers, 206. 
 
 Usual mode of payment for, 311, n. 
 
 PUFFING. 
 
 Statements by vendor, their effect, 43 to 46, 55. 
 On sales by auction, 89, 552. 
 
 PURCHASE. See Covenants and Tbust-money. 
 
 PURCHASE-MONEY. See Considehation, Funds. 
 
 Paid by wife, recoverable by husband, 12. 
 
 Person signing receipt for, liable as trustee, 38. 
 
 Payment of, to agent, &c., 86, 310. 
 
 Provisions respecting, on sale to railway companies, &e., 97. 
 
 Vendor's receipt for, may amount to agreement, 98. 
 
 Purchaser boimd in Equity to pay, 114. 
 
 After payment of, yet purchaser is boimd by notice of incum- 
 brance before conveyance, 115, 390. 
 
 Judgment against vendor after contract, a lien on, 119, 233, 238. 
 
 And estate, vendor may keep, when, 119. 
 
 Relative rights of vendor's real and personal representatives to, 
 if he die before completion, 121 to 124. 
 
 Real representatives of purchaser, when entitled to claim out of 
 personal estate, on his death before payment, 125 to 128. 
 
 u u
 
 658 INDEX. 
 
 PUECHASE-MOI^EY— co«^i««ec;. 
 
 Inability to give discharge for, a defect in title, 132. 
 Vendor's suit for, is within 3 & 4 Will. IV. c. 27, s. 40, 198. 
 Indorsed receipt for, unusual position of, to be explained, 206. 
 Condition for payment of, on specified day, not an agreement 
 
 for previous deduction of title, 208, sed qii. 
 Apologies for non-payment of, an acceptance of title, 218. 
 Parties interested in, whether to covenant for title, 262. 
 Should not be paid before acknowledgment by married woman, 
 
 270. 
 Discharge of incumbrances out of, 281, 381, 561. 
 Purchaser's liability to see to application of, 283 to 292. 
 Amount of, how increased or diminished, 293 to 309. 
 To whom and how to be paid, 310, et seq. 
 Payment into Court and reinvestment of, on sales to railway 
 
 companies, and costs of, 312, 313, 337, et seq. 
 Unpaid, vendor's lien for, 118, 341, cl seq., 267. 
 Whether purchaser, not evicted, may claim, if title bad, 374. 
 Payment of, procured by fraud, relieved against, 378. 
 
 notice of adverse right before, sufficient, 390. 
 whether material, as respects purchaser's liability 
 
 to action for use and occupation, 448. 
 not a part performance, 478. 
 
 into Court, by purchaser in possession, 516, cf seq. 
 l)y purchaser under decree, 501, 564. 
 ordered on motion, 572. 
 Joint purchasers contributing unequally to, take in common in 
 
 Equity, 432. 
 Vendor cannot recover at Law, if no conveyance, 417. 
 Application and distribution of, on sale under decree, 564, 
 
 et seq. 
 Purchaser under, &c., allowed compensation out of, after con- 
 veyance, 571. 
 
 QUALIFYING EXPEESSIO^"S. 
 In statement of quantity, 308. 
 
 QUALITY. 
 
 Of estate better than stated, no increase of purchase-money, 305. 
 Deficient, compensation for, 309. 
 
 no remedy for, after conveyance, except under cove- 
 nant, 363. 
 
 QUANTITY. 
 
 Excess of, whether vendor can claim compensation for, 304. 
 Not after conveyance, 351.
 
 INDEX. 659 
 
 QXJA'NTlTY—contimted. 
 
 Deficient, compensation for, 307, et seq. 
 
 pnrcliaser, after conveyance, can claim 
 only under covenant, 363. 
 QUIETUS. See2&B Vict. c. 11, s. 9. 
 
 QUIT-EENT. 
 
 Need not be noticed by vendor of manorial freehold, semlle, 53. 
 Liability to, whether it admits of compensation, 506, 508. 
 
 EACK-EENT. 
 
 Leases at, need not be registered, 318 ; what are, ib. 
 
 EAILWAY COMPANY. See Public Company. 
 
 Agreement to sell, or conveyance to, does not include mines, 
 
 unless named, &c., 52, 97, 258. 
 Agreement for sale of shares in, not within fourth section of 
 
 Statute of Frauds, 93. 
 And wUl be specifically enforced, 459, n. 
 Notice by, of intention to take land, its effect, 98, 122. 
 
 EE-ALLOTMENT. 
 
 Of estate bought by trustee, not admissible on purchase being 
 
 set aside, and estate re-sold, 24. 
 Of estate sold by court, if biddings opened, 558. 
 
 EECEIPT. 
 
 For rent, usually made evidence on sale of leaseholds of per- 
 formance of conditions, &c., 75. 
 
 For purchase-money, may constitute agreement, 98. 
 
 For deposit, not showing amount of purchase-money, no agree- 
 ment, 101. 
 
 Inability to give, for purchase-money, a defect in title, 132. 
 
 Last, of rent, &c., time under 3 & 4 AVill. IV. c. 27, runs from, 
 189, 192. 
 
 Of rent, written acknowledgment of title equivalent to, 192. 
 
 Indorsed, should be examined on production of deeds, 206. 
 
 For purchase-money, all the trustees must join in, 290. 
 
 EECEIVEE. 
 
 Not to be made a party to suit for specific performance, 465. 
 When appointed in suit, 518. 
 
 EECITAL. 
 
 Condition that recitals shall be evidence, effect of, 67. 
 Instrument appearing by, to be of suspicious character, must 
 
 be produced, 68. 
 Of agreement, may amount to a contract, 100. 
 
 u u 2
 
 660 INDEX. 
 
 'RECITAL— C07itinued. 
 
 Documents material to title should not be abstracted by way 
 
 of, 143. 
 Of deed, how far evidence, 153. 
 Of lease for a year, loi. 
 In renewed ecclesiastical lease, evidence, tb. 
 How far evidence of pedi^ce, 177, 180. 
 Conveyance, should contain what recitals, 252. 
 Of vendor's title, whether purchaser estopped by, 253. 
 Doubtful, does not operate by way of estoppel, 385. 
 Of objections, in deed of confirmation, 251. 
 Of sale and delivery of chattels, eflect of, as respects stamp 
 
 duty, 255. 
 General, of limitations or trusts, notice, UV. 
 Ambiguous, is not notice, HI. 
 
 RECONVEYANCE. 
 
 Decreed on what terms, apainst purchasintj trustee, 22, 23. 
 And mortgnfre, not to be suppressed from title, 1 13. 
 Of lef^al or mortj;apcd estate, when presumed, l.")lt, lOO. 
 "When decreed, for fraud, mistake, or inadequacy, 351 to 359, 
 
 378 to 381. 
 On what terms, 358, 380. 
 
 EECORD. See Copibs. 
 
 Instruments upon, may bo verified by secondary evidence, 65. 
 Purchaser whether entitled to copies, or 
 covenants for production of, 203, 31 G. 
 
 RECOVERY DEED. 
 
 Whether a suiBcient root of title. 111. 
 
 RECOVERY iVND FINE. 
 Proof of, 154, 155. 
 
 RECTOR. 
 
 Purchase of glebe by, invalid, 18. 
 
 RECTORY. 
 
 How now affected by judgments, 233, 235. 
 
 REDEMPTION. See Equity of Redemption, Land-tax. 
 
 RE-ENTRY. 
 
 Power of, deceptive statement respecting, 54. 
 Incapable of being enforced, no objection to title, 527. 
 
 REFERENCE. 
 
 To documents incorporated with signed agreement, must be 
 clear, 102, 103.
 
 INDEX. 661 
 
 HEFEnH^CE— continued. 
 
 As to terms of agreement, -when directed in suit, 481. 
 
 To Master under Trustee Act, 280. 
 
 Of title, on motion before hearing, 519, et seq. 
 
 Order of, subject-matter and form of, 521, 522. 
 
 Proceedings on, 522 to 531. 
 
 Purchaser's general right to, how waived, 531. 
 
 Back, when ordered, 528. 
 
 Purchaser requiring, and waiving objections, pays costs, 544. 
 
 Costs of, on sale by Court, 563. 
 EEFOEMATION. 
 
 Of executed deed, in Equity, 383. 
 EEFUSAL. 
 
 Of offer, cannot be retracted, 105. 
 
 To discuss or accept title, by purchaser retaining possession, 
 221, 223, 547. 
 
 To execute conveyance, no defence to action on security for 
 purchase-money, 4-51. 
 
 Of party to convey, 277, et seq. ; 537, et seq. ; 568, et seq. 
 
 Of purchaser from Court to complete, 571, et seq. 
 EEGISTEE. 
 
 Parochial and general, extracts from, how far evidence, 176. 
 
 County, to be searched, 242. 
 
 Is notice, only if searched, 400, 410. 
 
 EEGISTEAE. 
 
 District and general, difference between certificates of, 177, n. 
 
 EEGISTEATIO:^. 
 
 Of judgments, 239, et seq. 
 
 Of Us pendens and crown debts, 241, 242, 399. 
 
 Of the conveyance, in County Eegister, 317, et seq. 
 
 Of wills, when sufficient, 319. 
 
 Acts, as to priority imder, 399, et seq. 
 
 Of appointment of assignees of bankrupts and insolvents, 398. 
 EELATIOX. 
 
 Of trustee, &c., may purchase, 20. 
 
 Statement by, is evidence of pedigree, 177. 
 EEIN\^ST^IEXT. 
 
 Of purchase-money, condition as to costs of, on sale by Trustees 
 to Eailway Company, &c. 36. 
 
 Practice respecting, 313. 
 
 Costs of, 337, et seq. 
 EELEASE. 
 
 Order operating as a, under Trustee Act, 278, el seq.
 
 663 INDEX. 
 
 BMLEASE— continued. 
 
 Notice of, when notice of the consideration for, 409. 
 
 Of annuity, a consideration for settlement, 423. 
 
 Of power of revocation, whether settlement thereby rendered 
 
 valid, 425. 
 A defence at Law and in Equity, 455, 514. 
 Of existing right of action must be under seal, 455, n. 
 
 KEMAIIS^DER. 
 
 Estates in, when Statute of Limitation begins to run against, 
 
 193, 194. 
 Eight of party entitled in, to production of deeds, 203. 
 Man, cannot claim apportionment of damages for breach of 
 
 covenants for title, 377. 
 Specific performance enforced, by and against, when, 461 to 463. 
 
 RENEWABLE. 
 
 Leaseholds, trustee of, cannot renew for his own benefit, 19. 
 Condition against producing title to surrendered leases, 76. 
 Such title must be shown, if no condition, 138. 
 
 RENEWAL. See Fine. 
 
 RENT. See Gbound-bent, Eext-chabge and Rents and Pbofits. 
 
 Vendor misstating its amount is liable to action, 45. 
 
 Condition for apportionment of, on sale of reversion, 60. 
 or on sale of leaseholds, 7»). 
 
 Receipt for, generally made evidence of performance of cove- 
 nants, &c., 75. 
 
 T\Tiat agreements respecting, must be in \\Titing, 95. 
 
 Landlord restrained from proceeding for, pending contract for 
 purchase by tenant, 119. 
 
 Old receipts for, when evidence of seisin, 167. 
 
 What it includes, within 3 & 4 WUl. IV. c. 27, 188, 193 n. (»)• 
 
 Right to recover, when barred by statute, 188 to 198. 
 
 Arrears of, how long recoverable, 198. 
 
 Receipt of, by wrongful claimant, confers title, when, 193. 
 
 Retention of, by tenant, confers no title, 193. 
 
 How afiected by judgments, 231, 233, 235, 237. 
 
 Covenant to pay, by purchaser of leaseholds, 265, 567. 
 
 Notice to tenants to pay, a disturbance, 367. 
 
 Purchaser's right to, after conveyance, 386. 
 
 Secimty for, if leases set aside by vendor after conveyance, 418. 
 
 Purchaser of, relieved against fraudulent determination of lease, 
 419. 
 
 Additional, payment of, by tenant, whether a part performance, 
 478, 479.
 
 INDEX. 663 
 
 HENTAL. 
 
 Of estate, signed and delivered, no agreement, 99. 
 
 EENT-CHAEGE. 
 
 How affected by judgments, 231, 233, 235. 
 
 Of uncertain duration, estate conveyed in consideration of, no 
 
 ad valorem duty, 256. 
 Costs, on sale in consideration of, 336. 
 Covenant to pay, wlietlier it runs witli land, 360, et seq. 
 Purchaser of part of, may distrain, 386. 
 Contribution, where estates subject to, 429. 
 Liability to, whether it admits of compensation, 506, 508. 
 
 EENTS A:^D profits. See Account. 
 
 Eeceipt of, by infant purchaser on coming of age, amounts to 
 
 election, semhle, 10. 
 Trustee, &c., purchasing, must account for, 23. 
 Of estate devised in trust for sale, right of tenant for life to, 31. 
 Vendor entitled to, up to time fixed for completion, 115. 
 So are his real representatives in case of his death, 121. 
 "Written acknowledgment of title from person in receipt of, equi- 
 valent to possession under 3 & 4 Will. IV. c. 27, 192. 
 Purchaser may make vendor account for, during delay, 294, 
 306. 
 in possession of, must pay interest, when, 204 et seq. 
 from Coiirt, when entitled to, 566. 
 
 EEPAIRS. See Account, Expendituee. 
 
 Of church chancel, liability of estate to, a fatal defect of title, 
 
 52, 506. 
 State of, gross misstatement respecting, considered fraudulent, 
 
 63. 
 Joint purchaser has a lien for money expended in, 434. 
 
 REPLY. See Offee, Refusal. 
 
 To purchaser's objections, its effect on condition for rescinding, 
 
 72. 
 REPORT. 
 
 In favour of title, 528, 529. 
 
 Against title, 530, 531. 
 
 Of purchase, on sale by Court, purchaser's rights, &c., before 
 
 confirmation of, 554, et seq. 
 Need not be that highest bidder is the purchaser, 554. 
 Confirmation of, mode of procuring, and purchaser's rights and 
 
 liabilities after, 559, et seq. 
 Party conducting sale may procure, if purchaser makes default, 
 
 572.
 
 664 INDEX. 
 
 EEPRESENTATIVES. 
 
 Eeal and personal, of vendor or purchaser dying before comple- 
 tion, their relative rights, 121 to 128. 
 Of covenantee, rights of, on breach of covenant, 373. 
 Of vendor and purchaser, rights and habilities of, at Law and 
 
 in Equity, in respect of breach of contract, 418, 461 to 465. 
 What are proper parties to suit, 468 to 470. 
 Of purchaser from Court dying before confirmation, cannot, 
 without suit, be compelled to complete, 555. 
 EEPUG^^AXCY. 
 
 In descriptions of parcels, usual condition as to identity, 
 does not provide for, 69. 
 EE-PUECHASE. 
 
 Conveyance with power to, when not a mortgage, 388. 
 EEQUISITIOXS. Sec Objections. 
 
 On title, condition respecting, 58, 72. 
 EE-SALE. 
 
 Of property purchased by trustee, &c., 22. 
 
 Ordered, on what terms, 23, 24. 
 
 Fiduciary vendors, buying in estate without authority, bear loss 
 
 upon, 37. 
 Condition for, on default by ])urchascr, 73. 
 
 may be used by fiduciary vendors, 77. 
 Of estate, whether a waiver of title, 218. 
 
 by XiiniioT, pendente lite, when restrained, 518. 
 Decree in vendor's suit, may direct, and that purchaser pay de- 
 ficiency, 535. 
 Similar order made if purchaser from Court make default, 572. 
 Petition for, on bankruptcy of purchaser, 121. 
 By purchaser from Court, before confirmation, 555. 
 EESCmDING. See Account. 
 
 Contract, condition for, its effect, 71. 
 benefit of, how lost, 72. 
 by party solely bound, on refusal of other party to 
 
 elect, 105, 480. 
 in vendor's lifetime, effect of, on prior devise, 123. 
 on ground of delay, must be preceded by notice, 212. 
 by pui'chaser, his remedies at Law, 443, 445. 
 
 asserting paramount title, he need not 
 
 quit possession, 222. 
 right of, how lost by altering property, 
 223. 
 Sale by vendor, after conveyance, 351 to 359. 
 
 purchaser, after conveyance, 378, el acq.
 
 INDEX, 665 
 
 RESERVED BIDDING. 
 
 Fiduciary vendors have no implied authority to fix, 35. 
 If intended, should be noticed in particulars, &c., 51, 57. 
 Allowable in Equity, but semble not at Law, except on notice, 
 
 89. 
 On sale by Court, must be by leave, 552. 
 
 RESIDEJs^CE. 
 
 Unexpressed intention to use property for a, docs not make time 
 
 essential, 210. 
 Purchaser of, delaying to complete, pays interest, though out of 
 
 possession, 293. 
 
 RESTRICTION. 
 
 On due enjoyment of property, not matter for compensation, 
 
 64, 506. 
 Private, on agent \\ith written authority, docs not affect parties 
 
 without notice, 84. 
 
 RESTRICTIVE WORDS. 
 
 Effect of, in covenants for title, 371, et seq. 
 
 RESTS. 
 
 Directed, in case of fraud, 381. 
 Against evicted purchaser, unusual, 426. 
 
 RESTORATION. 
 
 By purchaser, of altered premises, compelled, 223, 381. 
 
 RESULTING TRUST. See Advancement. 
 Not within the Statute of Frauds, 436. 
 Custom, contra, bad, ib. 
 Sustained or rebutted by parol evidence, ib., 441. 
 
 RETAINER. 
 
 Client, whether affected by notice to solicitor before, 413. 
 
 RETENTION. 
 
 Of abstract, a waiver of delay in its delivery, 146. 
 
 showing imperfect title, when a waiver of time for 
 completion, 214. 
 Of rent by tenant, gives him no title against reversioner, 193. 
 Of incumbrances out of unpaid purchase-money, 282, 381. 
 Of deeds by vendor, its effect, 345, 395. 
 
 Of possession by purchaser, and refusal to discuss or accept title, 
 221, 223, 547. 
 
 RETRACTION. 
 
 Of bidduig allowable, condition agamst, 57. 
 Of offer, allowable before acceptance, 104.
 
 666 INDEX. 
 
 EETUEN. 
 
 Of deposit, when ordered in Equity, 88, 538. 
 
 EEVERSION. 
 
 May be sold under trust in settlement, although parties' rights 
 
 thereby altered, 30. 
 Lease, how far notice on sale of, 41. 
 Purchaser contracting for, must inform vendor of death of 
 
 tenant for life, 46. 
 Condition for apportionment of rent, on sale of, 60. 
 Misstatement on sale of, what not matter for compensation, 64. 
 Condition against evidence of adequacy of original price, on re- 
 sale of, 76. 
 Dropping of lives, enures to benefit of purchaser of, 116. 
 Abstract of title to, must go back to its creation, 139. 
 Eights of owner of, where saved under Prescription Act, 186. 
 how affected by 3 & 4 Will. IV. c. 27, 193, 
 
 et scq. 
 to enforce production of title deeds, 203, 204. 
 Time generally essential, on sale of, 209. 
 Subject to judgments, 231, 233, 235. 
 Assurance of, by married woman, 273. 
 Wasting of particular estate, on sale of, equivalent to possession, 
 
 295, 566. 
 On sale of, whether vendor's lien affected by bond, 349. 
 Sale of, when set aside for inadequacy of consideration, 354, 
 
 et seq. 
 Contract for sale of, not enforced, &c., 512. 
 Purchaser of, his rights after conveyance, 386, 387. 
 Trustees for sale of, need not adopt tenant for life's contract, 
 
 464. 
 Sale of, with abatement, enforced against vendor contracting to 
 
 sell the fee, 502. 
 Instead of estate in possession, purchaser need not take, 505. 
 Person entitled to, may bid on sale by Court, 551. 
 
 EEVEESED DECISION. 
 
 Does not render title doubtful, 525. 
 
 EEVOCATION. 
 
 Of auctioneer's authority, 83, 86. 
 Of devise, by contract for sale, 121, et seq. 
 Power of, settlement reserving, is fraudulent, 425. 
 EIGHT. 
 
 Time of accrual of, within 3 & 4 Will. IV. c. 27, 189. 
 Unlikely to be enforced, whether title therefore bad, 526.
 
 INDEX. 
 
 667 
 
 EING-FENCE. 
 
 Land falsely described as being in, whether compensation 
 claimable, 309. 
 EOMAN CATHOLICS. 
 
 May buy and hold land, 13. 
 
 EOOD. 
 
 Statutory contents of, 303. 
 BOOT OF TITLE. See Title. 
 EULE OF COOET. 
 
 For payment, equivalent to judgment, 238. 
 
 SALES-BOOK. 
 
 Entry in, by auctioneer, an agreement, 83. 
 
 SATISFACTION. 
 
 Of breach of contract, matter accepted in, a defence, 455. 
 
 SATISFACTOEY. 
 
 Means " marketable " title, 71. 
 
 SATISFIED TEEMS. 
 
 Title to, must be abstracted, 136. 
 Presumption of their surrender, 160, n. 
 Act for merger of, 248. 
 
 SEAL. 
 
 Loss, or want of, 154, n., 156. 
 
 SEAL-DAY. 
 
 Master's report of sale must be confirmed absolutely on, 560. 
 
 SEAECHES. 
 
 Conditions as to expenses of, 70. 
 
 For incumbrances, what and when to be made, 229 to 243, 
 
 243. 
 Costs of vmnecessary, not allowed, 244, 
 Expenses of, when recoverable at Law, 446. 
 
 SEAS. 
 
 What not beyond, within 3 & 4 Will. IV. c. 27, 188, n. 
 
 SECEET. 
 
 Trust, equitable mortgagee hovuid by, 393. 
 
 SECUEITY. See Moetgagee. 
 
 Auctioneer or agent cannot take, for deposit, &c. 81. 
 To be given by EaUway Companies before entry, 222, 225. 
 Taking for purchase -money discharges lien, when, 346, et seq. 
 For purchase-money, vendor refusing to convey may sue on, 
 451.
 
 668 INDEX. 
 
 SEISES^ 
 
 Livery of, when presumed, 161. 
 Presumption of, and of its continuance, 167, 168. 
 Benefit of covenants for title, runs with, 364. 
 Covenants for, how broken, 367. 
 
 SEPAEATE DEED. 
 
 "Whether purchaser can require outstanding interests, &c. to be 
 got in by, 2 16, 247, 339. 
 
 Covenants, when to be entered into by, 262, 263, 370. 
 
 Annuity consideration secured by, vendor's lien held to be dis- 
 charged, 349. 
 
 SEPAEATE ESTATE. 
 
 Married woman, may bind by contract, 5, 12, '165. 
 
 SEPMiATION. 
 
 Volimtary, child born during, is legitimate, 169. 
 Deed, how supported against creditors, 420. 
 
 SERVICES. 
 
 What equivalent to rent, withm 3 & i Will. IV. c. 27, s. 8, 
 192. 
 
 SET-OFF. 
 
 Payment to auctioneer or agent by way of, invalid, 87, 310. 
 Of vendor's expenses imnecessarily caused by purchaser, 
 
 whether any, 216. 
 Of deposit, against costs ordered to be paid, refused, 547. 
 
 SETTLEMENT. 
 
 Inquiry shoidd be made as to, if vendor is married, 163. 
 
 As to custody of, on sales under, 314, 315. 
 
 Protector of, his consent to disposition by tenant in tail, 321, 
 
 322. 
 Is notice of articles, 407. 
 
 Voluntary, is fraudulent as against purchasers, 420. 
 what is so considered, ib. et scq. 
 may be supported by matter ex post facto, 424>. 
 who may set aside, ih. 
 He vocable, is fraudulent, &c. 425. 
 Or to defraud creditors, 426. 
 
 Investment by father of his own moneys on trusts of, an advance- 
 ment, 440. 
 Contract for s:de by voluntary settlor may be enforced against, 
 but not by him, 462.
 
 INDEX. 669 
 
 SHAEES. 
 
 Undivided, of estate, fiduciary vendors should not sell, 33. 
 
 In companies, what within 4th section of Statute of Frauds, 
 93. 
 
 In mines, title to be shown to, 138. 
 
 Railway, specific performance of contract to sell or buy, en- 
 forced, 459, n. 
 
 In estate, vendor when forced to convey, 500. 
 
 purchaser contracting for entirety need not take, 
 505. 
 SHEEP-WALKS. 
 
 Instead of freehold, purchaser need not take, 504. 
 SIGIS'ATUEE. 
 
 Of agreement by attorneys or agents, 85, 444. 
 bUl need not allege, 471. 
 
 Of agreements, generally, 105 to 108. 
 
 Of steward, when to be proved, 150. 
 
 Of Judge, 155. 
 
 To deeds, when presumed to be genuine, IGl. 
 SOLICITOR. See Peitileged Communications. 
 
 As to purchases by, 18, 19. 
 
 Inducing purchaser to accept defective title, liability of, 42. 
 
 May not disclose defect in chent's title to client entitled, 149. 
 
 Lien of, on mortgage deed, its extent, 204, 
 
 Bound by undertaking to pay costs of mortgagee's solicitor, on 
 his giving up deeds, ib. 
 
 Purchasing, cannot object to title which he accepted for client, 
 215. 
 
 Must search for incumbrances, 229. 
 
 Liabihty of, to client, in respect of covenants in conveyance, 
 
 , 258. 
 
 Vendor's, has no lien on conveyance for costs, 267. 
 
 Of trustees, purchase-money should not be paid to, 310. 
 
 Unnecessarily preparing cannot claim costs of conveyance, 340. 
 
 Bill of, for costs, taxation, &c., of, ib. et seq. 
 
 Conveyance, &c., procured from client in absence of, set aside, 
 878. 
 
 Notice to, is notice to client, 402, 413. 
 
 Of party conducting sale imder decree, is considered as acting 
 for all parties, 551. 
 
 Deposit ordered to be paid to, 553. 
 SON. See Advancement, Family Aeeangement. 
 
 Of trustee may purchase trust estate, 20. 
 
 Vendor not generally ordered to procure concurrence of, 498.
 
 670 INDEX. 
 
 SPECIAL CONDITIONS. See Conditions. 
 
 SPECIALTY DEBT. 
 
 Purchaser from heir or devisee need not see to payment of, 292. 
 Purchase-money ordered to be paid, is provable as, 535. 
 See Ch. XVIII. 
 
 SPECIFIC PERF0K:MANCE. See Ch. XIX. 
 Eelation of trustee, purchasing, can enforce, 20. 
 Assignee of insolvent, selling below reserved price, can enforce, 
 
 35. 
 Fiduciary vendors are liable to costs in suit for, 38. 
 Right to, how affected, by statements, &c., before sale, Ch. III. 
 
 by particulars and conditions of sale, Ch. IV. 
 Return of deposit, when directed in suit for, 88, 538. 
 Liability or right of either party to, at time of his death before 
 
 completion, is the test of the rights of his representatives, 
 
 121 to 128. 
 Costs of suit for, not recoverable as damages at Law, 446. 
 Suit for, and action, plaintifl' must elect between, 456. 
 
 SPECULATION. 
 
 Property bought for purposes of, does not survive in Equity, 
 433. 
 
 SPORTING. 
 
 Right of, over estate, does not admit of compensation, 52, 506. 
 when a right of profit h prendre, 185. 
 
 STAMPS. 
 
 On agreements, 109, et seq. 
 
 Presumption respecting, in case of lost instrument, 110, 161. 
 
 Examined copies of Court roll, do not require, 151, n. 
 
 On conveyance, 254 to 257, and 325 to 334. 
 
 On memorial of registration, 319. 
 
 On copies of Court roll, steward has affixed, 330. 
 
 Production of agreement, for stamping, when compelled, 453. 
 
 Need not be alleged, in bill, 471. 
 
 STATEMENTS. 
 
 In conditions, must be proved, 73. 
 
 STATUTE OF FRAUDS. 
 
 Auctioneer is an agent within, 83. 
 
 What sales are within, 91. 
 
 Written agreement, when necessary under, 91 to 96. 
 
 What a sufficient agreement within, 97 to 105. 
 
 What signature sufficient, 105 to 108.
 
 INDEX. 671 
 
 STATUTE OF LIMITATIONS. 
 General provisions of, 188 to 198. 
 Purcliaser must accept title under, semhle, 199. 
 Possession under, bars the right and not only the remedy, 200. 
 
 STATUTORY. 
 
 Forms of conveyance, ineligible, 247. 
 
 STATUTOEY OW^^EES. 
 Enabled to seU, 6. 
 Who are, 27. 
 
 May sell, %vithin what time, 28. 
 Can sell only for gross sum, 35. 
 Cannot fix the price, except provisionally, 36. 
 As to covenants for title by, 260, 261. 
 
 Eefusal, &c., of, to convey, purchaser's remedies in case of, 275. 
 Payment, &c., of purchase-money, on sale by, 311 to 313. 
 Costs on sales by, 336, et seq. 
 
 Eights of pre-emption of, under Lands Clauses Consolidation 
 Act, 359. 
 
 STATUTOEY EEMEDY. See Mandamus. 
 
 STEW.IED. 
 
 Obtaining lease from employer, must prove its fairness, 18. 
 
 Of manor, whether evidence of handwriting of, can be re- 
 quired, 150. 
 
 Custom for, to prepare all surrenders, valid, 245. 
 
 Is to indorse acknowledgment on deed of consent, by protector 
 of settlement of copyholds, 322. 
 
 Is to enter assurances on court rolls, 323, 324. 
 
 Fees of, 324, 330, 335. 
 
 Are not taxable under 6 & 7 Vict. c. 73, 342. 
 
 Is to deliver stamped copies of Court roU, 330. 
 
 Not, as such, to be made party to suit, 465. 
 STIPULATION. See Promise. 
 
 Material, under agreement, inability of plaintiff to perfoim, a 
 defence in equity, 515. 
 
 STOCK. 
 
 Consideration, now pays ad valorem duty, 256, 328. 
 
 Contract for sale of, not specifi^cally enforced, 459. 
 STOCK OF DESCENT. 
 
 Presimiption respecting, 169. 
 
 STEANGEE. 
 
 WTien liable for misrepresentation, 45. 
 or for slander of title, 47.
 
 672 INDEX. 
 
 STJiANGYRr— continued. 
 
 To contract, equities under, cannot be enforced ajjainst, before 
 conveyance, 115. 
 
 not generally a proper party to suit, 'W>6. 
 Agreement brought about by, with fraudulent object, yet valid 
 as between parties, 493. 
 
 SUB-LESSEE. 
 
 Has implied notice of title, of immediate and original lessors, 
 409. 
 
 SUB^nSSION. 
 
 By defendant to plaintiff's demand, its effect on costs, 515. 
 
 SUB-PUECHASER. 
 
 "With notice of, is affected by incapacity of original purchaser, 22. 
 
 vendor's lien is valid against, 315. 
 Cannot vary conditions of sale, &c., as against original pur- 
 chaser, 50. 
 Stamp duty on conveyance to. 330. 
 Not a necessary party to suit for specific performance of original 
 
 contract, 170. 
 On sale by Court, before confirmation, rule as to, 565. 
 
 SUBSEQITINT. 
 
 Events, do not affect trustees' power, or want of power to give 
 
 receipts, scmhic, 286, ct scq. 
 Title, acquired by vendor, &c., he must convey to purchaser, 383. 
 Enrolled assurance, under 3 & 4 Will. IV. c. 74, confirms prior 
 
 voidable estate, 385. 
 Acts, &c., what may rebut presumption of advancement, 439. 
 
 SUBSTITUTION. 
 
 Of purchaser from Court, on what terms allowed, 5C1. 
 
 SUBTEERANEOUS. 
 
 Entry, by Railway Company, before payment or deposit, 
 illegal, 224. 
 
 SUIT. 
 
 In equity, a disturbance, 367. 
 
 is within 3 & 4 Will. IV. c. 27, 188, 198. 
 Commencement of, what is, 188, n. 
 Pendency of, whether an objection to title, 525. 
 
 SUPERFLUOUS. 
 
 Lands, taken by Railway Company, right of vendor, in respect 
 of, 359.
 
 INDEX. 673 
 
 SURETY. 
 
 Joining in bill, note, or bond, wbetber vendor's lien affected, 
 347. 
 
 SURFACE. 
 
 Deficiency, on sale of woods, what compensation for, 309. 
 
 SDKPEISE. 
 
 T\Tiea a ground for rescinding executed contract, 354. 
 
 !Xot, in general, a ground for enforcing parol variation, 483. 
 
 A ground of defence in Equity, 484, 492, et seq., 510. 
 
 I^ot a ground for opening biddings after confirmation, 560. 
 SUEEENDEK. See Stewabd. 
 
 Of lease, agreement for, when to be in writing, 93. 
 
 Of copyholds, when presumed, 159, 160. 
 
 Of satisfied terms, when presumed, 160, n. 
 
 Vendor of copyholds must, if possible, make in person, 269. 
 
 Purchaser of copyholds, pays for, 335. 
 
 SUEVEY. 
 
 Of estate, expenses of, allowed, on opening biddings, 558. 
 
 SUEVEYOE. 
 
 Valuation of estate by, falsely asserted, its effect, 44. 
 SUEVIVOESniP. See Joint Puechasebs, Vacancy. 
 
 Presumption as to, 173, 174. 
 SUSPICION. 
 
 Mere, of fraud, is not notice, 411. 
 Nor grovmd of objection to title, 525. 
 TAIL. See Tenant in Tail. 
 
 Estate in, and remainders on, how affected by 3 & 4 Will. IV. 
 
 c. 27, 194 to 196, 197. 
 How affected by judgments, 231, 234, 236. 
 Contract for sale of, not enforced against issue or remainder- 
 men, 463. 
 TAXATION. 
 
 Of costs, under 6 & 7 Vict. c. 73, 340, et seq. 
 
 under the Court's general jurisdiction, 343. 
 under 8 & 9 Vict. c. 119, ib. 
 TENANCY. 
 
 Of purchaser, how affected by contract, 119. 
 
 ceases, on conveyance, 387. 
 Notice of, is notice of tenant's interests, 229, 408. 
 
 but not of lessor's title, 410. 
 Past, notice of, is not notice of tenant's interests, ih. 
 Of vendor, notice of, is no notice of lien, when, 411. 
 
 X X
 
 674 INDEX. 
 
 TENAJS'T. 
 
 Agreement with, when within Statute of Frauds, 'J2 to 05. 
 Deteriorating acts of, vendor is liable for, 307. 
 Vendor ejecting, purchaser may claim compensation, ih. 
 Occupying, purchaser being, may claim compensation for mis- 
 description, ih. 
 Notice to, to pay rent, a disturbance, 3t.'7. 
 Liability of, to purchaser of reversion, 386. 
 AMiat acts by, are a part performance, 177, et scq. 
 
 TENANT AT WILL. 
 
 How affected by Statute of Limitations, 101. 
 ^Mio is, within the statute, 101. 222. 
 
 TENANT FOR LIFE. 
 
 May purchase from trustees of settlement, 20. 
 
 Riffht of, to rents of estate directed to be sold, 31. 
 
 Power of, to consent to sale, how affected by alienation, charges, 
 &c., 35, n. 
 
 Actual, or imminent death of, must be disclosed by intended 
 purchaser of reversion, K>. 
 
 Death of, after contract, gain by, belongs to purchaser of rever- 
 sion, 11*5. 
 
 Liability of, to covenant for title, 200, 2(U. 
 
 And reversioner, sale by, is treated as of an estate in posses- 
 sion, 355. 
 
 May sue for broach of covenants for title, 300. 
 
 Kemaindennau has no claim on damages recovered by, 377. 
 
 Concurrence of, in settlement, when a consideration, 121, 123. 
 
 Contract by, under power, enforced against remaindermen, 
 KU. 
 not under power, trustees for sale need not 
 adopt, 'KVl. 
 
 Under vendor's will, a necessary party to suit, 469. 
 
 Not compelled to procure a title, 101, 400. 
 
 When not compelled to convey partial interest, 499, 501, el seq. 
 
 May buy, on sale by Court, 551. 
 
 TENANT FROM YEiVR TO YEAR. 
 
 How affected by Statute of Limitations, 192. 
 
 TENANT IN COMMON. 
 
 One purchasing of another, what abstract to be furnished, 131. 
 Possession of one, does not save right of another, 103. 
 Must perform the contract for sale, as respects his own share, 
 501.
 
 INDEX. 675 
 
 TENANT IN TAIL. 
 
 In possession, whether abstract showing vendor to be, shows a 
 
 good title, 133. 
 Statutory bar against, its effect on issue and remaindermen, 
 
 194 to 197. 
 Assurances by, 321, 322. 
 Induced by fraud to bar the entail, remedy of remainderman, 
 
 358. 
 Confirmation of voidable estate by, 385. 
 Contract by, does not bind issue or remaindermen, 394, 463. 
 In remainder, decreed to convey base fee, and covenant to bar 
 
 remainders when practicable, 498. 
 
 TENDEE. 
 
 By mortgagor, necessary to prevent sale by mortgagee, 33. 
 
 Of payments of annuity, when material to rights of purchaser 
 on death of cestui que vie, 117. 
 
 Of conveyance and purchase-money, by purchaser, before ac- 
 tion, 449. 
 
 TENUEE. 
 
 Misstatement of, does not admit of compensation, 63, 504. 
 Lands of every, except ancient demesne, are included in 1 & 2 
 
 Vict. c. 110, s. 13, 237. 
 Variation in, is a breach of covenant for seisin in fee, 367. 
 
 TERMS. See Evidence. 
 
 Of contract must be fixed by, or deducible, from vrritten agree- 
 ment, 101, et seq. 
 
 plaintiff, how far bound to show, 481. 
 
 TERM FOR YEARS. See Lease, Leasehold, Mabeied Woman. 
 Bequest of, how affected by purchase of reversion, 128. 
 Old, what title to, must be abstracted, 139. 
 Satisfied, title to, must be abstracted, 136. 
 
 assignment or surrender of, when presumed, 160. 
 act for dispensing with assignment of, its effect, 248, 
 protected purchaser, without notice, from judg- 
 ments, 232. 
 aliter under new law, 234. 
 Beneficial, how affected by judgments, 231, et seq. 
 Termor contracting to sell the fee, must assign, 501. 
 Instead of fee, purchaser need not accept, 504. 
 Nor short, instead of long, 505. 
 
 xx2
 
 676 INDEX. 
 
 TnrBER. 
 
 "What trees are, 61. 
 
 Ornamental, effect of felling^, 11, 116, 224. 
 Standing, trustees must sell with estate, 33. 
 Condition for payment for, 61. 
 Agreement for sale of, when to be in writing, 94. 
 Felled, &c. after contract, belongs to purchaser, 116, 3lX>. 
 Fall of, by purchaser in possession before payment, restrained 
 lis, 220. 
 a reason for purchase-money being paid into Court, 516. 
 Price of, is subject to stamp duty, as part of the consideration, 
 255, 327. 
 
 interest upon, when payable during delay, 295, et »eq. 
 Compensation for surface dcGciency, on sale of timber estate, 
 
 308. 
 Standing, on sale of, by Court, separately from estate, a deposit 
 
 is usually required. 552. 
 Price of, included as part of price of estate, on opening biddings, 
 556. 
 
 TIME. 
 
 What, allowed for election by infant purchaser, 10. 
 
 for impeaching purchase by trustee, &c., 25. 
 
 For sale by fiduciary vendors, 27 to 31. 
 
 For delivery of abstract, and completion, conditions as to, 58, 
 72, 131. 
 
 For objecting to title, conditions limiting, 70 to 72, 146. 
 
 may bo used by fiduciary vendor, 77. 
 
 For acceptance of offer, 105. 
 
 Of death, presumption as to. 173. 
 
 Registers when evidence of, 17*). 
 
 For examination of deeds, 147, 2<)2. 
 
 Essential at Law, and when in Equity, 2<!)S to 215, 456. 
 
 Its effect, in considering the sufficiency of acts of part per- 
 formance, 478. 
 
 What lapse of, sufficient to bar relief in Equity, 514. 
 
 For sale by Court. 540. 
 
 Fixed for sale by author of trust, Coiu-t cannot in general anti- 
 cipate, 551, 571. 
 
 TITHE. 
 
 What title to, should be abstracted, 139. 
 Commutation of, 181. 
 
 Exemption from, or modus, how proved, 182. 
 How affected by Statute of Limitations, 183, 188, 
 How affected by judgments, 231, 233, 235.
 
 INDEX. 677 
 
 TITHE — continued. 
 
 Liability to, a fatal defect, if estate sold as tithe-free, 506, 
 Unless freedom from tithe seems to have been no part of the 
 inducement to the purchase, 509, sed qu. 
 
 TITHE-FEEE. 
 
 Title to estate sold as, 140. 
 TITLE. See Time. 
 
 Fiduciary vendors must show a marketable, 37. 
 
 As to disclosure of defects, &c., in, by vendor, 41. 
 
 Want of, to material part of estate, 64. 
 
 Conditions respecting, 60 to 72, 74 to 78. 
 
 " Satisfactory," means " marketable," 71. 
 
 Purchaser claiming accruing benefit to estate, when bound to 
 
 accept, 117. 
 AVhen perfect, 131 to 134. 
 
 AMiat to be abstracted, in various cases, 134 to I'lO. 
 Abstracted, acceptance of its effect, 149. 
 Defects in client's, not to be disclosed to another client, 149. 
 Under Tithe Commutation, Prescription, and Limitations Acts, 
 
 181 to 200. 
 Objections to, negotiations upon, and waiver of, 215 to 220. 
 Possession, when a waiver of objections to, 219. 
 Waiver of objections to, by acts of ownership, 220 to 223. 
 Fiduciary vendors, whether bound to covenant for, 262. 
 Owners or incumbrancers not making, power of purchasers 
 
 under Lands Clauses Consolidation Act, 1845, 276, 283. 
 As to payment of interest during delay in making out, 293 to 
 
 302. 
 AflBdavit of, on petition for payment of purchase-money out of 
 
 Court, 312. 
 To land proposed for reinvestment, must be examined by 
 
 Master, 313. 
 Statutory vendor's costs of making out, Kailway Companies, 
 
 &c., pay, 336. 
 Defects in, vendor until conveyance must make good, 281. 
 
 purchaser's general remedies for, after conveyance, 
 
 depend on vendor's covenants, 363. 
 purchaser neglecting to investigate, has notice of, 
 406, 408. 
 Defective, purchaser accepting, through fraud of vendor, re- 
 
 Ueved, 379. 
 New, acquired by vendor, purchaser's right to, 383, 384, 
 Lessor's, lessee has notice of, 409. 
 
 how far purchaser from lessee has notice of, 410.
 
 678 INDEX. 
 
 TITLE — continued. 
 
 Want of, contract going off through, purchaser can claim «hat 
 damages, 447. 
 whether he is Uable for use and occupation, 448. 
 Time for showing, in action at Law, 457. 
 Equitable objections to, entertained at Law, ib. 
 Want of, in plaintiff, when a defence on the ground of non- 
 mutualitj, 494, et seq. 
 when a vendor's defence, 498 to 504. 
 when a purchaser's defence, 504 to 510. 
 Reference of, and proceedings thereon, 519 to 523. 
 
 on purchase under decree, 562, 572. 
 What may be required on reference, 523 to 527. 
 
 or by purchaser under decree, 562. 
 Bad, purchaser after great delay not forced to accept, 531. 
 Costs, how affected by questions of, 540, et seq. 
 
 tombstone; 
 
 Evidence of pedigree, 178. 
 TOWN. 
 
 What is a, 359, n. 
 TRADE. 
 
 In contract for property connected with, time generally essential 
 in Equity, 209, 210. 
 
 Vendors held to carry on, at their own risk, 297. 
 
 Property purchased for purposes of, does not survive in Equity, 
 432, et seq. 
 
 Usage, evidence of, in explanation of agreement, 452. 
 TRADITIONARY EVIDENCE. 
 
 Receivable in matters of pedigree, 177 to 179. 
 TRAITORS. 
 
 How far disqualified to sell or buy, 6, 13. 
 TRANSFER. 
 
 Written, of parol agreement, when a valuable consideration, 93 
 TREATY. 
 
 Eor purchase, relative duties of parties during, 39 to 47. 
 
 And agreement, test of difference between, 104. 
 TRUST. 
 
 When not to be disclosed on abstract, 144. 
 
 How affected by Statute of Limitations, 190, 191. 
 
 Vendor's lien for purchase-money, is not an express, 190, n., 345. 
 
 Estates held in, how affected by judgments, 231, et seq. 
 
 Property, improperly sold, becomes reimpressed with, when, 426. 
 
 Declarations of, and agreements, distinguished, 435. 
 
 Resulting, on purchase in name of stranger, 435, et seq.
 
 INDEX. 679 
 
 TEUSTEE. See Tenant foe Life. 
 
 Purchases by, voidable, rules as to, 19 to 26. 
 
 As to sales by, 27 to 38. 
 
 Inquiiy of, aud notice to, as to incumbrances, and of comple- 
 tion, 43, 228, 325, 393. 
 
 Cannot allow compensation for his own mistakes, 65. 
 
 Use of special conditions by, whether allowable, 76 to 78. 
 
 Acting as auctioneer, cannot charge commission, 82. 
 
 Of estate, vendor is, for purchaser after contract, 114. 
 
 Provisions respecting, in Statute of Limitations, 190, 191. 
 
 Acknowledgment of title by, bars cestui que trust, 192, n. 
 
 Covenants, on sale by, 261, 262. 
 
 Bound to convey at request oi cestui que trust, 276. 
 
 Conveyance from, under Trustee Act, 1850. See Cona'eyance. 
 
 Purchaser from, when bound to see to application of purchase- 
 money, 283 to 292. 
 
 Purchase-money, how to be paid, on sale by, 310. 
 
 Can make good title to purchaser without notice, 390. 
 
 Legal estate got in from, when available, 391. 
 
 Contract by, enforced against cestuis que trust, unless it be in 
 breach of trust, 463. 
 
 Agreement by, to exonerate estate, not enforced against, 491. 
 
 TEUST-MONEY. 
 
 Purchaser when liable to see to application of, 283 to 292. 
 Land purchased with, becomes impressed with trust, 441, 442. 
 Evidence of pui'chase with, 441 ; and see Trench v. Harrison, 17 
 Sim. 111. 
 
 UNASCERTAINED. 
 
 Cestuis que trust, trustees for, can give receipts, 284. 
 Interest under expected inclosure award, sale of, at inadequate 
 price, supported, 511. 
 
 UNAVOIDABLE. 
 
 Obstacle, whether delay in making out title is an, 299. 
 
 UNAUTHOEIZED. 
 
 Agent, acts of, may be adopted, when, 86. 
 Acts, by agent, bind principal, when, 84. 
 Agreement by agent, his liability on, 85. 
 
 UNCERTAINTY. 
 
 In material terms of agreement, fatal, 101, 102, 481. 
 Of amount of consideration, whether material, as respects the 
 question of adequacy, 354, 511.
 
 680 INDEX. 
 
 UNDERLEASE. See Sub-lessee. 
 
 Effect of agreement by lessor to purchase, 129. 
 Instead of lease, purchaser need not accept, 504. 
 
 UNDEETAKING. 
 
 For delivery of possession, not enforced in Equity, 210. 
 By solicitor, for payment of costs, enforced summarily, 205. 
 
 UNTENABLE. 
 
 Objection made and persisted in, vendor, under condition, may 
 
 rescind contract, 71. 
 Requisitions, danger of, 216. 
 
 USAGE. 
 
 Modern, may show what passed under ancient grant, 167, n. 
 
 USE AND OCCUPATION. 
 
 Purchaser, when liable for, 119, 222, 448. 
 
 may sue for, when, 120, 223, 387. 
 USUAL. 
 
 Covenants, what are, 259. 
 
 should not be described as, in particulars, 75. 
 
 USURY. 
 
 Condition for payment of rent, in lieu of interest, is not, 60. 
 
 VACANCY. 
 
 Occurring, pending contract for sale of advowson, 117. 
 
 In trust, directed to be filled up, whether surviving trustees can 
 
 give receipts, 290. 
 Of possession, no notice of vendor's want of title, 411. 
 
 VALUATION. 
 
 As to fixing price of land by, under Lands Clauses Con- 
 solidation Act, 36. 
 Misstatement of by vendor, its effect, 44. 
 Of timber and fixtures, as to interest on amount of, 295, 296. 
 
 amount of, is subject to ad valorem 
 duty, and must be stated in convey- 
 ance, 255, 327. 
 VALUE. 
 
 Alteration in, after contract, 116, 117. 
 
 Fluctuating, of property, may make time essential, 209. 
 
 Relative, of covenants. Court will not determine, 418. 
 
 VALUERS. 
 
 Under Commons Inclosure Act, cannot buy lands in parish, 17 
 
 VARIATION. See Funds. 
 
 Parol, of conditions, &c., generally inadmissible, 49.
 
 INDEX. 681 
 
 Y ARIATION— continued. 
 
 Of contract, by auctioneer or agent, 81, 86. 
 Of offer, in reply, amounts to a refusal, 105. 
 Parol, of contract, inadmissible at Law, 451, 456. 
 
 whether admissible on behalf of plaintiff in Equity, 483. 
 is admissible on behalf of defendant in Equity, 484 to 
 
 488. 
 proved by defendant's agent, plaintiff allowed to take 
 
 decree with, 533. 
 offerred by bill, defendant may elect to take decree 
 
 with, 534. 
 proved by defendant, he may take a decree with, 
 when, ib. 
 
 VERBAL. 
 
 Declarations at sale, their effect, 49, 50. 
 Appointment of agent, inexpedient, 83. 
 Agreements. See Statute of EKAtiDS. 
 Enlargement of time, bad at law, 213, 456. 
 Waiver of contract not under seal, whether a defence at Law, 
 or in Equity, 455, 514. 
 
 VEEIFICATION. 
 
 Of abstract, vendor's liability respecting, 65. 
 
 not excluded by condition against production, 67. 
 Conditions respecting, 67 to 69. 
 
 Should be at vendor's expense, on sale in lots, 70, 77. 
 What evidence necessary for, 149 to 200. 
 Delay in, effect of, as to interest, 302. 
 
 VEXATIOUS. 
 
 Re-investments, costs of, not allowed, 339, n. 
 Objections to title, reference refused, on ground of, 521. 
 Conduct, its effect on costs, 541. 
 
 VOIDABLE. 
 
 And void assurances by infant, distinguished, 2, n. 
 
 Estate, created by tenant in tail, how confirmed, 385. 
 
 Or void, agreements, &c., purchaser how far bound by notice 
 
 of, 416 to 419. 
 Leases, whether vendor may set aside, for his own benefit, 418. 
 
 VOLUNTAEY. 
 
 Trust for payment of creditors, whether within the 3 & 4 Will. 
 
 IV. c. 27, s. 25, 190. 
 Settlements, Law respecting. 420, et seq.
 
 682 INDEX. 
 
 YOLVyTARY— continued. 
 
 Settlor, selling, specific performance can be enforced against, 
 but not by him, 462, 490. 
 
 VOTES. 
 
 Splitting, bondjide purchase with view to, valid, 113. 
 
 Of time fixed for delivery of abstract, 146. 
 
 generally, 213, 214. 
 Of title, and objections to title, 215 to 221, 246. 
 Verbal, of parol contract, whether suflScient at Law, 455. 
 Of contract, what suflicicnt as a defence in Equity, 514. 
 Of title, whether to be alleged in bill, 471. 
 no reference directed, 521. 
 WAEEA^^T OF ATTOR>^EY. 
 
 Judgment under, and insolvency of debtor, 236. 
 
 WASTE. 
 
 Conditions on sale of land formerly being, 74, 75. 
 
 Strips of. presumption as to ownership of, 168. 
 
 By purchaser in possession, restrained, 118, 518. 
 
 a ground for purchase-money being paid into Court, 516. 
 WATER. 
 
 Rights of, title to, under Prescription Act, 184 to 188. 
 
 WATERCOURSE. 
 
 Law respecting, 184, n. ; and see Attorney-General v. Corpora- 
 tion of Plymouth, 9 Bcav. 67. 
 
 Title to, under Prescription Act, 184 to 188. 
 
 Existence of, with right for stranger to open, does not admit of 
 compensation, 64, 506. 
 
 WATERWORKS COMPA^'Y. 
 
 Agreement to sell or conveyance to, does not include mines, &c. 
 unless named, 52, 97, 258. 
 
 WAY. 
 
 Rights of, undisclosed, 52, 54, 64, 379, 509. 
 
 title to, imder Prescription Act, 184 to 188. 
 
 Necessary, obstruction of, a disturbance, 367. 
 WEDLOCK. 
 
 Child born in, is presumably legitimate, 169. 
 WEIGHTS AND MEASURES. 
 
 Statutory meaning of expressions referring to, not alterable by 
 evidence of usage, &c., 452. 
 WHARF. 
 
 And jetty sold, and no title to jetty, 506.
 
 INDEX. 683 
 
 T\T:D0W. See Married Woman. 
 
 Settlement by, before marriage, on cliildren by former liusbanci, 
 not fraudulent, 424. 
 
 WIFE. See Married Woman. 
 
 Of vendor, holding deeds, not a proper party to suit for specific 
 
 performance, 204. 
 Purchase in name of, an advancement, 437, et seq. 
 Vendor whether compellable to procure concurrence of, 498. 
 
 WILFUL. 
 
 Default, as respects liability to interest, 299. 
 
 what is, 299, n., 337, n. ; see Account, Default. 
 Refusal, &c, of statutory owners, Eailway Companies do not 
 pay costs occasioned by, 337. 
 
 WILL. 
 
 General devise in, an insufficient root of title, 141. 
 Copy of, should accompany abstract, when, 145. 
 Wliat evidence of, required, 157. 
 When to be proved in Equity, 158, 164, 468. 
 When to be produced as negative evidence, 165, 264. 
 Not affecting the estate, received as evidence of intestacy, 168. 
 Proved, vendor must verify abstract by office copy of, 202. 
 Registration of, after time fixed by Statute, effect of, 319, 400. 
 Whether purchaser can claim copy of, on completion, 316. 
 Purchaser's, how affected by contract, see Ch. VII. 
 or by conveyance, 387. 
 WINDFALLS. 
 
 After contract belong to purchaser, 116. 
 
 WITHDRAWAL. 
 
 Of unaccepted offers, admissible, 104. 
 
 WITNESS. See Attesting Witness. 
 Signature as, its effect, 107. 
 
 WOODLAND. 
 
 Compensation for surface deficiency, on sale of, 308, 
 
 WRONGFUL. 
 
 Claim, &c., when a breach of covenants for title, 367. 
 
 YARD. 
 
 Sold with house and no title to, 64, 
 
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