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Law Library
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THE GIFT OF
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The law of vendors and purchasers o* rea
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THE LAW
OF
VENDORS AND PURCHASERS
OF REAL PEOPEETT.
BY
FRANCIS HILLIARD,
AUTHOR Of THE LAW OF HOBTGAOBS, ETC.
IN TWO VOLUMES.
VOL. I.
BOSTON:
LITTLE, BROWN AND COMPANY.
M DCCC LVIII.
tS^ ^'io
Entered according to Act of Congress, in the year 1858,
By !F«ANCIS HiLLIABD,
in the Clerk's Office of the District Court of the District of Massachusetts.
BIVEBSIDE, OAMBBIDGE:
PBINTED BT H. O. HOUGHTON AND COMPANY.
PREFACE.
Many years ago, I conceived the design of preparing
an extended view of The American Law of Real Property,
and accordingly compiled the Treatise or Abridgment,
the last edition of which bears that title. That work
was modelled substantially upon the approved Digest of
Mr. Cruise, which had long been used as the popular
text-book upon this subject. In the preface I took occa-
sion to remark, that, in consequence of the disuse of
many feudal doctrines, which our ancestors left behind
them in emigrating to this country; the gradual adap-
tation of our law to the republican institutions here
established; and, above aU, the numerous and various
statutory enactments in the different States of the
Union; — the English Law of. Real Property and the
American Law of Real Property had come to be two
distinct systems, requiring, of course, to be stated and.
explained in distinct elementary works.
iv PREFACE.
While the valuable Digest of Mr. Cruise had been
the approved manual of the American lawyer, upon those
branches of the general law of Real Property, which
alone he assumed to treat; another portion of this ex-
tensive subject was then, and has been ever since, occu-
pied by another work of equal merit and popularity,
to wit, Svjgden on Vendors and Purchasers. The line of
division between these two works is very marked and
apparent. The former treats of the title to Real Prop-
erty; the modes of acquiring such title, and the inci-
dents, rights, and liabilities which appertain to it, after
it is acquired ; ^hile the latter is restricted in plan,
though not always in execution, to executory controls
of sale and purchase, by which, when carried out,
the title will of course be changed, .but which in
themselves effect no such change. English law and
American law are less divergent upon the latter than
upon the former class of subjects ; and indeed their
discrepancy in reference to mere executory contracts,
concerning real property results chiefly from the differ-
ent rules which prevail as to real property itself Thus
estates tail have been substantially abolished in the
United States ; and, although there is no legislation
immediately relating to contracts of sale and purchase,
which by way of title to .the property sold involve the
nice points of entailment ; still the one change neces-
sarily involves the other, and upon both subjects alike
virtually supersedes those intricate and subtle distinc-
PREFACE.
tions, which have given occasion to so many decisions
in the English Courts. The same may be said of the
obsolete titles of Fine and Recovery, Tithes, Advowson,
Copyhold, &c. ; and to some extent of those other numer-
ous subjects — such as Dower, Descent, Devise, Execution,
&c.,— rwhich have not themselves become obsolete in our
law, but the rules and principles of which have been so
extensively and vitally modified by American statute
and usage.
There are moreover many points of mere practice, in
suits relating to the title of real property sold, more
especially suits in Equity ; which are peculiar to the
English Courts, and may well be very cursorily noticed
in an" American treatise.
Upon the whole, therefore, I may state, that the
present work is designed to occupy the same ground
in American law, which has been so successfully occu-
pied in the English law by Sugden on Vendors and
Purchasers. I mean the same ground for mere practical
use ; for, as I shall presently explain, this is the pre-
vailing purpose of the book; and I do not profess to
have imitated the free discussion, independent criticism,
acute comparison of authorities, and flowing style of
expression, which have made that work so popular and
so worthy of the fame of its distinguished author.
Without, for the most part, undertaking to weigh and
balance conflicting decisions, or to pursue the fine
threads of distinction which run through opposing cases
a*
VI PEBPACE.
and opinions; I have endeavored to present in a com-
pact form the law as it is, in the shapfi of the English
and American authorities ; usually accompanied, where
there is a serious conflict in the cases, with a general
expression of opinion as to the prevailing rule upon the
particular topic of discussion. It has always seemed to
me peculiarly impracticable, in an American text-book,
for the writer to advance any proposition of his own, as
in the nature of the " responsa prudentum " of the Roman
law ; or in other words as the law, authoritatively elim-
inated from the opposing cases ; because, in each of the
United States of America, the decisions of its own Court
are the controlling rule ; and if, in a treatise designed for
national use, the author should deduce an oracular con-
clusion from the concurring cases in a majority of the
States on one side, that conclusion would not be law in
the minority of States, whose Courts agree on the other
side. While, therefore, the highest respect is due to
the private opinion of such a writer as Sir Edward Sug-
den and many of our American commentator's, upon any
controverted point; it is after all but an opinion, the
value of which in any particular locality is best tested
by a summary statement of the decided cases upon
which it rests.
Althougk the subjects treated are substantially the
same as those in Sugden, the plan and arrangement are
wholly different, and, as I venture to suggest, more in-
telligible and appropriate. I begin with the distinction
PREFACE. Vll
between executed and executory contracts ; and proceed
to explain what is necessary to constitute a contract,
its consideration, parties, construction, and form — in-
cluding sales by auction, the Statute of frauds, license,
and part-performance. Then follow the Time of perform-
ance, the Title to the property sold, and, in natural suc-
cession, partial failure of title, and the general grounds
for avoiding or rescinding a sale, in whole or in part,
whether for total or partial want of title, for non-pay-
ment of the price, or other causes ; including Mistake,
Fraud, the sale of Expectancies, breach of Trust, and
Notice. Having completed my view of the rights and
liabilities growing out of the contract, I proceed to the
subject of the Remedies for enforcing it ; first in Equity,
including the extensive subject of Specific Performance,
and then promiscuously in Law and Equity, including, in
more minute detail than before, the title which the ven-
dor must show, and the grounds of objection which may
be made against it ; the dependence or independence of
the mutual covenants'of the parties ; actions to recover
back the price paid, and defences against notes and
other securities given therefor ; the claim for Use and
Occupation, Damages, Pleading, Parties, and miscella-
neous points of practice. I close with an Appendix,
somewhat similar to that found in Sugden, containing
some of the most recent decisions upon the prominent
topics of the work, stated very much more in detail
than is done in the work itself, and generally contain-
VUl PREFACE.
ing a useful abstract of the earlier cases upon the same
subjects.
Expressing my thanks to the profession for their
favorable reception of my previous works upon the Law
of Real Property and upon Mortgages, I submit the
present work to their candor and kindness.
FRANCIS BILLIARD.
Boston, February, 1858.
CONTENTS.
CHAPTER I.
Page
Nature of the Contract for a Sale and Purchase
OP Lands 1-13
1. Distinction between the executory cpntract, and a transfer in pursuance of
it ; merger, &c.
7. Right of property and possession, at law.
13. Doctrine m equity ; whether a title passes.
15. Whether the purchaser has a descendible and devisable interest; application
of funds ; revocation and republication of will, &c. Devise by a vendor, and the
effect thereof.
40. Reforming a deed, for variance from the previous contract.
CHAPTER II.
What constitutes an Agreement for the Sale
AND Purchase of Lands. — Distinction between
A Contract and a mere Proposal, Offer, etc. 14-18
1. An offer does not bind, till accepted.
2. Contract by correspondence.
8. Contract by several connected papers.
CHAPTER IIL
Consideration of a Contract o^ Sale. — Price . 19-40
1. Necessity of a consideration.
3. Inadequacy of consideration.
4. Illegality of consideration.
5. Nature of consideration.
6. Need not be expre*s,ed.
11. Price; construction of the agreement for.
18. Sufficiency, of security for. •
X CONTENTS.
19. Mutual rights and duties of the parties in connection with the price. Offer
to perform, tender of deed, &c.
47. To whom the price shall be paid; parties jmntly interested.
CHAPTER IV,
Inteeest 41-51
1. Claim of a vendor for interest.
13. Raite of interest.
15. Interest in case of reversions.
17. Investment of the purchase-money.
20. Claim of a vendee for interest.
28. Interest on money paid into Court.
CHAPTER V.
Parties to Contracts 52-71
1. Necessity of parties ; uncertainty, &c.
6. Joint parties,
12. Husband and wife.
16. Eepresentatives of a party deceased.
32. Trustees and cestuis que trust.
36. Agents i their authority ; it may be verbal ; construction of written powers,
&c.
47. Form of the contract; whether it hinds the agent or the principal.
58. Trust arising from an agency.
CHAPTER VI.
Sales by Auction 72-100
1. Forms of sale.
2. What is an auction ; effect of a bid ; separate estates ; letting by auction.
12. Puffing.
24. Combination of purchasers, to reduce the price.
33. Eights and duties of an auctioneer.
42. Statute of Frauds.
50. Parol evidence.
53. Deposit.
CHAPTER VII.
Statute op Frauds . .' 101-124
1. Form of contracts for the sale and purchase of lands. Statute of Frauds.
2. What property is within the statute ; products of the soil ; growing wood,
&c. •
7. Other property connected with the reaJtT/. '
10. Property not within the statute ; products of the soil, &c.
CONTENTS. XI
14. Paper securities relating to land.
15. Agreement as to boundary.
16. Whether the statute applies to a claim for the price.
23. Construction of the statute as to the form of executing a written memo-
randum ; what is a signing ; reference of different papers to each other, &e.
40. Eorm of pleading or relying upon the statute.
CHAPTER Vin.
Parol Licensk ' . . . 125-141
1. Part-performance and license.
2. Nature of a license.
8. Implied license.
9. Distinction between a license, and a lease, or an easement.
19. A license creates a personal right; by whom, and at what time, it is to be
executed ; who are bound by it.
27. Whether and how far a license is revocable.
CHAPTER IX.
Pabt-peefobmancb • 142-163
1. License and part-performance.
2. Part-performance, at law.
5. Entire performance, in Equity.
6. Part-performance in Equity.
7. Who may arail himself of part-performance.
8-20. What acts are sufficient.
10. Proof of the terms of a parol agreement.
11. Decided cases.
15. Vaxoy partition.
17. The effect of part-performance is founded oii fraud.
18, Effect of payment.
24. Doctrine in the United States.
25. Compensation for expenditures, &c.
CHAPTER X.
Construction or Contracts 164-179
1. General rules.
6. Certainty.
1 8. Separate instruments.
18. Parol evidence.
CHAPTER XI.
Time or Performing Contracts .... 180-207
1. Time, when of the essence of the contract.
9. When not of the essence of the contract.
Xll CONTENTS.
14. Title at the time of hearing, ^c, when sufficient.
21. Waiver, &c., as to time.
35. Necessity and effect of notice in reference to time.
41. Time, in connection with delivery of abstracts.
47. Deterioration from lapse of time.
50. Construction of contracts as to time.
CHAPTER XII.
Title of the Vendor '. 208-230
1. General importance of the subject.
2. In general the vendor is bound to convey a good title.
15. Destruction of the property sold, after the sale.
18. Grounds of objection to the title.
21. Mutual rights and obligations of the parties, as to conveyance of the land
and payment of the price.
28. Question of time, in reference to the title.
36. Waiver of title.
CHAPTER XIII.
Title to the Property Sold. — Partial Failure
OP Title 231-247
1. Partial defect of title, what constitutes.
2. When it is no ground of objection by the vendee.
10, Compensation for partial failure of title.
1 4. When ground for rescinding the sale.
26. Whether the vendor may object on the ground of deficiency or excess in the
property.
CHAPTER XIV.
Reference of Title 248-254
1. Questions of title, when, and how referred. Forms of proceeding.
CHAPTER XV.
Title Deeds 255-261
• CHAPTER XVI. *
Title to Leaseholds 262-287
1 . Agreement for a lease.
5. Whether an agreement for a lease or purchase in fee.
CONTENTS. XUl
10. What Is necessary to constitute a sale of leasehold ; offer and acceptance.
11. f/ncertomfy in the agreement.
12. The vendor must make a good title.
22. Otherwise in case of express agreement to the contrary.
24. Waiver of title.
27. Covenants, in case of leasehold sales.^
31. Par<-failure of title; compensation, rescinding, &c.
46. Effect of notice upon the title.
48. Parol evidence. ^
51. Statute of Frauds.
CHAPTER XVII.
Bescinding of Sales 288-302
1 . General subject ; grounds for abandoning a contract.
10. Misdescription of the property.
13. Compensation.
17. Presumption of rescission.
18. Waiver.
20. Mode of rescinding ; by vendor or vendee ; form'of action.
28. Interest, improvements, &c.
CHAPTER XVIII.
Grounds for Avoiding a Sale. — Mistake . • . 303-323
1. Gteneral remarks.
3. Mistake, what. •
4. Ignorance or mistake of law and fact.
8. Equitable relief in case of mistake ; mode and extent of.
10. Compensation or rescinding in case of mistake ; quantity of land sold and
conveyed ; sale in gross, or by boundaries ; more or less, &c.
16. Title to part of the property sold ; . when sufficient.
17. Compensation.
22. Rescission of the sale.
25. Rights of the vendor in case of mistake.
30. Waiver.
33. Seforming of agreements.
40. Parol evidence.
CHAPTER XIX.
GrEouNDS OF AVOIDING A Sale. — Fraud , . . 324-348
1. Misrepresentation avoids a sale.
3. Whether made ignorantly or intentionally ; express or implied.
10. Under what circumstances the vendee is bound by a fraudulent sale ;
waiver ; mode of rescinding ; acceptance of deed ; lapse of time, &c.
17. Part-performance and compensation.
23. Parties ; principal and agent, &c.
29. Fraud of the vendee.
34. Evidence, damages, &c.
VOL. I. b
jiv CONTENTS.
CHAPTER XX.
Implied oe Constructive Fraud. — Incapacity, In-
adequacy OF Consideration, etc. . . . 349-360'
1. Constructive fraud.
2. Mental inability. *
6. Drunkenness.
10. Inadequacy of consideration.
16. Excess of consideration.
CHAPTER XXI.
Sale of Expectancies 361-368
■•CHAPTER XXII.
Constructive Fraud. — Trust, etc 369-397
1 . General principle of confidential relations.
6. Agents.
10. Trustees. .
l6. Attorney* Solicitors, &c.
24. Executors, guardians, &c.
26. Miscellaneous trusts ; and exceptions and limitations to the general rule.
37. Remedies.'
CHAPTER XXIII.
Notice 398-415
1. General principles as to notice.
4. Express and implied notice.
5. Notice sufficient to demand inquiry.
6. Implied notice, chiefly as arising from possession under an unrecorded
deed. .
10. Notice, to whom given ; agents, solicitors, &c.
13. By whom.
14. Notice, in cases of lease and tenancy.
22. Lis pendens.
CHAPTER XXIV.
Remedies of Vendors and Purchasers. — I^aw and ,
Equity. — General Jurisdiction of Courts op
Equity; Compensation; Rescinding; Lien, etc. 416-427
CONTENTS. XV
CHAPTER XXV.
Specific Peefoemance 428-455
1 . Nature and history of the remedy.
3. Its peculiar apphcation to contracts relating to real estate.
4. Questionsof jurisdiction, in rem and in _personam.
5. Form of the contract ; bond with penalty.
7. Specific performance, in connection' with other modes of relief.
12. Denial of specific performance, and rescinding of the sale, compared.
13. Compensation — damages.
14. Contract must be certain.
16. And mutual.
20. And reasonable and equitable — fraud, mistake, &c.
27. But not necessarily iene^cta^
28. Public policy.
30. Consideration, inadequate or excessive.
34. Price fixed by arbitration.
39. Plaintiff must proTC performance of his own contract.
44. Partial failure of title.
45. Statute of Frauds— part-performance. Defences; pleading; evidence, &c.
INDEX TO CASES CITED.
Page
Page
A.
Anson v. Hodges
Anthony v. Leftwich
48
162
Acland v. G^isford
Adams v. Freeman
44
Archer v- Preston
430
127
Arganbright v. Campbell
1
u. M'Millan 26,
60, 114,
117,
Arnold v. Brown *
386
120
Arnott V. Biscoe
348
V. Smith
28
Ascutney, &C. v. Ormsby
93
V. Townsend
• 144
Ashcom V. Smith
318
V. Weare
438
Ashley v. Baillie
408
Adderley v. Dixon
429
Ex parte
396
Addison v. Dawson
351
Ashmun v. Williams
141
^tna, &e. V. Tyler
427
Athol V. Derby
430
Agar V. Macklew
24
Attorney-General v. Backhouse
271
A bea v. Griffin
•
163
V. Christ Church •
Albert v. Ross
104
42
Alderman v. Neate
263
V. Foster
164
Alexander v. Beresford
335
V. Gower
407
V. Crosbie
12
260
V. SitweU
12
V. Utley
426
V. Taylor
75
Allen's estate
161
Atwood V. 0obb
2
Allen V. Booker
154
Attwood V. Small
341
V. Bower
149
,.. Taylor
45
V. Bryant
389
Austin V. Chambers
393
V. Cameron
165
V. Sawyer
105
V. Chambers
123, 161
163
Ayres v. Hayes •
25
V. Greene
60, 62
186
V. Pease
23
V. Hammond
315
Aylett u. Ashton
59
Alley V. Deschamps
180
241
Aylesford's case
145
Alsop V. Patten
155
Amerlscoggin &c. v. Bragg 126
140
Anderson v. Bacon
386
B.
V. Chick
89, 145
157
V. Foulke
240
Babcock v. Smith
321
V. Harold
117
Bachelder y. Wakefield
139
V. Lemon
395
Bacon v. Simpson
199
Andrew v. Andrew
253
Bage, Ex parte
Bailey v. CoUett
396
Andrews v. Hobson
390
45
Annan v. Merritt
145
Baker b. Boston
128
Anonymous
411
,413
v. Carson
163
XVUl
INDEX TO CASES CITED.
•
Page
Page
Baker v. Carter
397
Bennett v. Fowler
250
Ball V. Carew
390
395
,399
V. Kees
249
Baldwin v. Belcher
9
V. Smith
67
,439
V. Campfield
438
V. Tankerville
7
V. Salter
177
194
199
V. Womaok
274
Ballard v. Way
279
Benson v. Glastonbury, &&
452
V. Walker
298
Bernal v. Donegal
364
Balmanno v. Lumley
252
Berny v. Pitt
864
Bamford v. Shuttleworth
69
Berry v. Vanwinkle
420
Bank &c. v. Torrey
394
V. Walker
432
Bander v. Snyder
153
Besant v. Richards
276
Barclay v. Kaine
2^55
Best t).. Stow 326,342,
436,
437,
Barickman v. Kuykcndall
62,
115,
441
143
154
299
Beverly v. Lawson
317
Barnwell v. Harris
258
268
Beverley's ease
350
,352
Barnardiston v. Lingood
365
Bexwell v. Christie
77
Barney v. Loper
186
Bibb V. Poather
325
Barnwall v. Harris
258,
268
Bierne v. Erskine
314
Barrandos v. Archer
234
Billington v. Welch '
158
404
Barraque v. Siter
2
Binks V. Kokeby
43
,238
Barrett v. Buxton
352
364
Birceu. Bletchley •
17
Barstow v. Gray
117
Birch V. Haynes
251
Bartlett v. Blanton
255
Bird V. Boulter
91
V. Pickersgill
172
Biscoe V. Brett
252
V. Purnell
88
V. Wilks
455
Bassler v. Niesly
34
i60
Blachford v. Christian
357
Bates V. Delavan
444,
Blackburn v. Stace
448
Baugh V. Price
324
Blacklow V. Law
228
Bawtree v. Watson
364
Blackwilder v. Loveless
433,436
Baxter v. Brand
41
454
Blades v. Blades
400
V. Brown
263
Blagden v. Bradbear
88, 90
V. ConoUy
266
281
Blake v. Phinn
243
V. Costin
387
Blakeslee v. Blakeslee
161
Beaman v. Buck
160
432
Blakeney v. Bagott
380
Beard v. Hubble
308
323
V. Ferguson
148
Beatniffu. Smith
400
Blanchard v. Moore
342
Beaumont v. Bramley
•
11
Bleakley v. Smith
117
V. Dukes
325
Blennerhasset v. M'Namara
44
Beavan v. M'Donnell
351
Blore V. Sutton
285
Beckwith v. Kouns
443
Blundell v. Brettargh
24
Bedford v. Abecorn
165
Blyth V. Elmherst
249
Beeson v. Beeson# .
384
388
389
Bodine v. Glading
435
Beete v. Bidgood
50
Boehm v. Wood 190,
204
249
Beirne v. Erskine
314
Bonner v. Johnston
452
Belchier v. Reynolds
441
Boothby v. Walker
448
Belknap v. Sealey
334
Boston, &c. V. Bartlett
15
Bell V. Andrews
142
V. Babcock
167
V. Howard
«
>368
Bostwick V. Lewis
333
V. Twilight
Bellinger v. Kitts
406
V. Leach 104,
110
,112
35
Boucher v. Vanbuskirk
435
Bellows V. Stone
35l,
322
323
Boughton V. Jewell
256
Belworth v. Hassell
232
Boults V. Mitchell
181
Beman v. Green
168
Boulds V. Atkinson
347
Benedict v. Beebee
114
Bower v. Cooper
165
V. Lynch
180,
188
435
Bowers v. Cator
286
Bennett v. Carey
193,
221
252
Bowen v. Morris
69
INDEX TO CASES CITED.
XIX
Page
Bowles V. Round * 78
V. Woodson 118
Bowyer v. Bright 242
Box V. Stanford 124, 160, 342
Boyer v. Blackwell 243
Boyes v. Liddell 249
Boynton v. Hubbard 363
Boys V. Ayerst 123
Bjfaekett v. Evans 114
Bradbyn v. Ord 400
Bradshaw v. Bennet 47, 99, 100
V. Bradshaw 448
Bradley v. Bosley 420, 423
Bramley v. Alt 79
V. Teal 448
Branch u. Doane 131
Brashier v. Gratz 180
Breadalbane v. Chandos 12
Brewer v. Bessinger 21
Bridger v. Rice 308
Bridges v. Pureell 108
V. Robinson 46
Brock V. Cook 145
Brockenbrough v. Blythe 41, 43
Broderick v. Broderick 345
Brodie v. St. Paul 142
Bronson v. Cahill 19
Brook V. Jones 88
Brooke v. 250
Broome v. Monck 5, 6, 9
Brooks u. Wheelock 159,177
Brothers v. Brothers 393
Brown w. Bellows 116,118
t). Budd 406
V. Haff 417
V. Stadton 95
V. Witter 426
Browning v. Clymer 26
Bruch V. Lantz 390
Bryan v. Duncan 387
V. Reed 216
Bryant v. Busk 257
Bubier v. Bubier 160
Buchanan v. Lorman 41
Buck V. Lodge 448
V. M'Caughtry 296
Buckley v. Beardsley 103
Buckmaster p. Harrop .89, 94, 147,
154 155
Bulkley v. Wilford ' 381
Bull V. Willard 2, 29
BuUett V. Worthington 2
BuUin vi Fletcher 8
Bullock u. Beemiss 302
Burgess v. Wheate 427
Burgett V. Bissell 104
Burkett v. Randall
Burnell v. Brown
Burns v. Allen
V. Taylor
Burrough v. Taylor
V. Skinner
Burroughs v. Browne
V. Oakley
Burrowes v. Locke
Burton v. Todd
Bushell V. Bushell
Butcher v. Butcher
V. Stapley
Butler V. vBuckingham
V. Plaskell
V. O'Hear
V. Hicks
V. Stevens
Buttemer v. Hayes
Buttrick v. Holden
Byrd v. Odem
Byrne v. Romaine
147
44, 224, 299
15, 299
21
21
96
46
448
20, 326
47
399
154
400
57
364
443
394
405
283
34
151
156
Cabg,llero v. Slater 22
Cadman v. Horner 324, 437
Cain w. M'Guire 110
Calcraft v. Roebuck 44, 238, 292
Calefu. Foster 66
Calhoun v. Jester 133
Caller v. Hilty 126
Calloway v. Witherspoon 352
Calverley v, Williams 12, 325
Cameron v. Ward 153
Campbell v. Pennsylvania, &c. 390
V. Walker 365, 388
Camfield v. Gilbert 290
Canham v. Barry 340
Cann v. Cann 228
Cannon v. Mitchell 94, 236
Capel V. Girdler 5
Carleton v. Leighton 365
Carlisle u. Fleming 148,157
Carpenter v. Blandford 203
V. Lockhart 116
Carr v. Hilton • 401
V. Holliday 351
V. Roach 3
Carrington v. Roots 105
Carson v. Lucore 35
Carter v. Ely 181
V. Toussaint 102
Cartwright v. Gardner 24,
Casborne v. Barsham 378
XX
INDEX TO CASES CITED.
Case V. Abeel
Cass V. Kudele
V. Waterhouse
Cassell V. Collins
Cassamajor v. Strode
■ Cathcart v. Keirnaghan
V. Robinson 247,
Cater V. Pembroke
Cattle V. Gamble
Cattell V. Corrall
Cave V. Allen
Chadwick v. Maden
Chamberlain v. Lee
Chambers v. Griffiths-
V. Lecompte
V. Massey
Champion v. Brown
V. Kigby
Champlin v. Laytin 304,
Chandler v. Spear
Chaplin v. Rogers
ChaVlewood v. Bedford
Charnley v. Hansbury
Chivall V. Nioholls
Child V. Abingdon
V. Godolphin
Chinn v. Heale
Christian v. Nixon
Church V. Brown
V. Legeyt
Church &c. 0. Farrow
Claflin V. Carpeijter
Clark V. Bell
V. Hackwell
V. Underwood
Clarke v. Elliott
V. Grant
V. Hughes
V. Rochester
V. Wilson
Clason V. Bailey
Clayton v. Gregson
Cleavland v. Burton
Cle^lent v. Durgin
V. Evans
Clerk V. Wright
Clermont v. Tasburgh
Clifford V. Laughton
Clinan v. Cooke 69
Clitherall v. Ogilvie
Clinton v. M'Kenzie
Clowes V. Higginson
Clute V. Robinson
Coburn
237,
Page
389
215
122
112
241
ai
359,417,
429
427
110
291
383
69
220
243
123, 158
440
6, 54
378, 383
306, 308,
399, 407
133
103
121, 284
449
400
. 44
452
296
36
274
251
172
110, 129
317, 319
155
341
451
173
214
436
447
117
167
308
127
423
145, 147
294, 334
247
, 122, 149
358, 437
125
166, 434
222
137
Coe V. Harrahan*
54
Coffin V. Cooper
194
Coles V. Brown
323
V. Treoothick 101,
122,
155,
354, 365, 389
396,
440
Collard v. Groom
295
Collier v. Jenkins
245
V. Lanier
306,
307
Coleman v. Garsigues
64,65
Colson V. Thompson
26
Colton V. Wilson
258
Commonwealth v. Harnden
86,87
Conant v. Jackson
352
Concord, &c. v. Gregg
333
Conner v. Banks
427
Conwell V. Claypool
36
ConoUy V. Parsons
77
Cook V. Clayworth
352
V. Cole
354
V. Stearns
129
136
Cooke V. Toombs
122
123
Cooper V. Emery
256
Coote V. Coote
76
V. Mammon
407
Coppin V. Fernyhough
281
Cornwallis's case
409
Cordage v. Cole
155
Cory V. Cory
352
Costigan v. Hastier
267
Coster V. Turner
219
Coslake v. Till
165
187
Cottington v. Fletcher
452
Cotton V. Ward
193
, 194
Cottrell V. Watkins
212
257
Coward v. Odingsale
187
Cowley V. Watts
17
,169
Cowper V. Bakewell
43
Cowgill V. Oxmantown
220
Cox V. Cox
154
Craddock u. Cabiness
350
V. Shirley
223
Crafts V. Aspinwall
39
Craig V. Kittred^e
322
Crawford v. Barkley
66
V. Morris
177
Crockford v. Alexander
9
Crofton V. Ormsby
281
,410
Crompton v. Melbourne
421
Croome v. Lediard
17^
Crosby v. Percy
268
V. Wadsworth
105
Crosse v. Lawrence
234
Crowden v. Austin
78
Cruise v. Christopher
355
Cruso V. Crisp
73
Crutchfield v. Haynes
387
INDEX TO GASES CITED.
XXI
Page
Crutchley v. Jervingham 71, 448
Cudburry v. Duval 385
Cuffu. Penn 102
CuUum V. Branch Bank 418
Cummings v. Antes 18
Cunningham v. Sharp 240
Curtis V. Blair 184
V. Greated 95
V. Mundy 401
Curtiss V. Hoyt 141
Cutler V. Sikes 110
V. Simons 449
Cutts V. Salmon 79
li. Thodey 200, 204, 224
D.
Daggett V. Daggett 211
Dakin v. Cope 45
Daly V. Duggan , 23
V. Osborne 251
Dalby v. PuUen 219, 240, 295
Daniel v. Mitchell 339
Daniels v. Adams 66, 72
V. Davison 266, 402, 409,
415
Darris's case 5
Dare v. Tucker 256
Darcus v. Crump 384
Davidson v. Little 358
Davie v. Beardsham 5
Davies u. Tilton 173
Davis, Ex parte 396
t7. Farr 113
V. Rogers 322
«. Symonds 177,433
V. Townsend 112, 451
Davinney v. Morris 382
Dawson v. Brinckman 261
V. Yates 300
Day V. Newman 369, 441
Deane v, Kastron 355
Dearborn i;. Cross 175
Delane v. Moore 406
Deller v. Prickett 98
Den t7. Baldwin 126,137
v. M'Knight 3JS4
Denn v. Lecony 84
Dennis v. Loftin 406
Denston v. Morris 419
De Bidder v. Schermerhom 169
Deven v. Davenell 89
De Vesme v. De Vesme 47
Deverell v. Bolton 230, 266, 267,
• 272, 291
Page
Dick V. Donald 68
Dickinson i>. Adams 155
Dill V. Shahan 306
Dixon V. Astley 224, 447
Doar V. Gibbes 184, 201, 444
Dobell V. Hutchinson 118, 119, 244,
278
V. Stevens 344
Dodd V. Seymour 441, 464
Doe V. Ashburner 263
V. Lufkin 411
V. Miller 460
Doe V. Sandham 274
Doggett V. Emerson 70, 325, 328,
338, 374
Dolittle V. Eddy 132
Doloret V. Rothschild 181
Dominiok v. Michael 181, 223
Donald v. Morton 351
Donaldson v. M'Roy 78, 80
Donovan v. Fricker 50
Dooley v. Watson 168, 430, 431
Doolubdass v. EamloU 73
Dorr V. Munsell 352
Dorsey v. Packwood 20
V. Wayman 166
Doty V. Wilder 86, 88, 90, 91
Do well V. Dew 447
Draper v. Bryson 400
Drayton v. Drayton 389
Drewe v. Corp * 234, 244
V. Hanson 238
Drury v. Cosner ^ 148
Dryden v. Frost . 407
Dubignon v. Loud 35
Duckenfield v. Whichcott 325
Dugan V. Cohuille 446, 449
Duke V. Shore 36, 245
&c. V. Worthy 97
Dumphe v. Hay ward 61
Dunbar w. Tredennick 368
Duncan v. Blair 113
V. Cafe 97
Dunk u.. Hunter 263
Dunlap V. Mitchell 56
Dunn V. Moore 163
Durrett v. Simpson 313
Dutch, &c. V. Mott 193, 194
Duvals V. Ross 336
Dwinal v. Holmes . 218
Dyer v. Hargrave 41, 45, 236, 238,
292
Dykes v. Blake 243
xxu
INDEX TO CASES CITED.
Page
E.
Feret v. Hill
340
Feme v. Bullock
155
Earl V. Baxter
S57
Ferguson v. Tadman
205
Eaton V. Sanxter
9, 389,
402
Fildes V. Hooker
269
274
. V. Whitaker
57, 143,
145,
Finch V. Newnham ,
413
X48, 161,
154
Fingal v. Ross
154,
162
Edgarton v. Pectham
193
Finley v. Lynch
240
Edman v. Allen
207
Fisher v. Kay
434
Edwards v. Burt
365,
367
V. Worrall
336
V. Handley
437
Fisk V. Lacher
895
V. Hodding
95, 98
Fiske V. M'Gregory
93
V. M'Leay
243
Fitch V. Casey
209
V. Meyrick
379,
383
V. Fitch
366
Egerton v. Jones
253
Fitchburg, &c. v. Boston,
,&c.
131
Eichelbemer v. Barnitz
Ekins V. Tresham
389
Fitzgerald v. Fauconberg
Fitzhugh V. Wilcox
e
408
344
351
Eliason v. Henshaw
14
Flagg V. Mann
405
Elder v. Elder
11
Fleetwood v. Green
227
248
EUis V. Burden
178
213
Fleming V. Gilbert
197
V. Ellis _
159
161
Fletcher v. Button
209
V. Hoskins
30
Flight V. Booth
245
Ely V. Stewart
330
V. Bolland
435
Emery v. Wase
440,
442
Flint V. Woodin
78,86
Emmerson v. Heelis
76,89
105
Flower v. Hartopp
253,
291
English V. Benedict
341
Fludyer v. Cocker
42,43
224
Eno V. Woodworth
21
Folsom V. Moore
125
129
Enraght v. Fitzgerald
42
Forbes v. Deniston
399
Ensign v. Kellogg
429
430
Ford V. Hitchcock
352
Erskine v. Plummer
110
V. Lewis
21
Erwin v. Saunders
197
Fordyce v. Ford 234, 244
292
Esdale v. Stepherfson
42
236
Forster v. Hale
149
Evans v. Brown
357
Fort u. Bunch
401
V. KingsbM'ry
V. Llewellyn
•
313
V. Clarke
258
308
Fosgate v. Herkimer, &c.
3
V. Prothero
101
Foster v. Deacon
206
V. Roberts
111
Fowle V. Freeman
118
Eyston v. Simonds
223
Fox V. Birch
442
V. Mackreth
348
395
Foxlowe V. Amcoats
204
F.
Frame v. Dawson
Franchot v. Leach
157
175
Fagan v. Davison
36,212
,213
France v. France
446
V. Newson
341
Frear v. Hardenburgh
20, 105
,114
Fain V. Ayres
256
Frederick v. Campbell
312
343
Farebrother v. gimmons
90
Freebody v. Perry
451
Fairfax v. Muse
78
Freer v. Hess
237
Falmouth v. Thomas
106
, 107
Fripp V. Fripp
356
Falls V. Carpenter
196
Frost V. Brunson
248
Fane v, Spencer
267
Frye v. Shepler
157
Farwell v. Rogers
32
, 206
Fuller V. Bennett
408
Faure v. Martin
226
V. Dame
386
Fellowes v. Gwydyr
340
V. Hubbard
30,37
,301
Fellows V. Fellows
384
V. Wilson
338
Fenucane v. Kearney
154
Fyler v. Givens
103
Fentiman v. Smith
137
Fenton v. Brown
43,99
, 277
•
INDEX TO CASES CITED.
XXIU
G.
Gabriel v. Smith
Gaby V. Driver
Gale V. Nixon
Gardner, Ex parte
Garley v. Kice
Garnett v. Macon
V. Yoe
Garret v. Malone
Garrett v. Garrett
Garth V. Ward
Gaskell V. Durdin
Gaugmere
Gell v'. Watson
George i\ Pritchard
V. Eichardson
German v. Machin
Gerrish y. Towne
Getchell V. Jewett
Gibbes v. Cobb
Gfbbs V. Champion
Gibson V. Clarke
V. D'Este
V. Jeyes
V. Patterson
V. Spurrier
Giddinss v. Eastman
Gill V. Bicknell
Gillett V. Maynard
Gillespie v. Battle
V. Moon
Gilman v. Schwartz
Gilmore v. Johnston
V. Morgan
V. Wilbur
Gilchrist v.. Stevenson
Gimell V. Adams
Givens v. Calder 62,
Goddard v. Divoll
Gonpertz
Goodell V. Field
Goodhue v. Barnwell
Goodtitle V. Way
Goodwin v. Lyon
Goom V. AflBlalo
Gordon v. Ball
V. Trevelyan
Gore V. Gibson
Gosbell V. Archer
Goss V. Nugent
Gourley v. Somerset
Gowland v. De Faria
Graham v. Hendren
V. Nesmith
Page
. 261
48, 96, 99
116
198
209
181,359,443
35, 185
115
384
411
413
351
50
271
355
160, 434, 435
177, 178,431
117
401
190
251, 447
337
383
190
243
382, 389
68, 70
302
123, 143
323
27
446
318
133
401
66
118, 123, 148,
156
384
249
307, 821, 323
148, 151
262
189
117
453
• 17
852
92
175, 282
442
354, 365
316
233
Graham v. Oliver
V. Yeates
Grandy v. Kittredge
Granger v. Worms
Grant v. Coombs
V. Craigmiles
V. Johnson •
V. Munt
Grantland v. Wight
Gray v. Gutteridge
Green v. Armstrong
V. Winter
Greenhill v. Greenhill
Greenlow v. King
Greenlee' II. Greenlee
Greer v. Caldwell
Gregor v. Duncan
Gregory v. Mighell
V. Wilson
Griffin V. Coffey
Griffith V. Depew
«. Eby
V. Heaton
V. Spratley
Griggs V. Woodruff
Griswold v. Smith
Growsock v. Smith
Guest V. Homfrey
Guier v. Kelly
Guitard v. Stoddard
Gunn V. Brantley
Gunnis v. Erhart
Gunter v. Halsey
Gurley v. Hiteshue
Gwynne v. Heaton
H.
Hackenbury v. Carlisle
Hackney v. Jones
Haden v. Weare
Hale V. Crow
HaU V. Betty
V. Hall
V. Ha^et
V. Laver
V. Smith
Hallett V. Collins
V. Wylie
Halsey v. Grant
Ham V. Goodrich
Hamburgh v. Edsall
Hamilton v. Grant
V. Hamilton
V. Royse
Page
241, 242
146
33
277
314, 815
102, 124
218
240, 846
216, 285, 810
96
104
393
5
886
177
823
357
286
275
153
302, 427
330
50
357
37,331,424
308
180, 236
384
177
388
92, 93
145
326
356, 367
128.
378
88
306
53
230, 267
145, 149
878
227
276, 402
363
262
241
156
82
860
83,84
402
XXXV
INDEX TO OASES CITED.
Page
Page
Hammatt v. Emerson
32,8, 342
Higdon V. Thomas
58, 117, 118
Hanbury v. Litchfield
276
Higgins V. Shaw
413
Hardacre v. Stewart
95
Higginson v. Clowes
88, 92, 174,
Hardwicke v. Sandys
197
453
V. Vernon
373
Hill V. Barrow
452
Hargreaves v. Eothwell
408
V. Buckley
237
Harnett v. Yielding
266, 435
V. Fisher
185
Harrington v. Hoggart
48
V. Ressegien
61, 209
V. Wheeler
180, 183,
Hilton V. Barrow
452
189
Hinde v. Whitehouse
89
Harris v. Brown
104
Hine v. Dodd
400, 401, 408
V. Miller
' 108
Hipwell V. Knight
181, 198, 204,
Harrison v. Talbot 317
, 318, 319
206
V. Town
440
Hitchcock V. Giddings
315,316
Hartly v. Wilkinson
286
Hobson V. Bell
195, 20'6-, 228
Harvey v. Graham
283
Hoe V. Simmons
443
V. Montague
412
Hoen V. Simmons
104
V. Phillips
257
Hoggart V. Scott
222
V. Toung
346
Holland v. Eyre
14
Hatch V. Cobb
445
HoUingshead v. M'Kenzie 123
V. Garza
335
Hollis V. Whiteing
285
Hatcher v. Hatcher 115
154, 160
Holman v. Crane
22
Hawkes'u. Eastern, &c.
289
Holmes v. Holmes
185
Hawkins v. Holmes
121
Holt V. Clemmons
60,61
V. Hunt
446
V. Payne
60, 61
Hawley v. Cramer
391
Homer v. Purser
425
Hfe,ydon V. Bell
273
Hood V. Fahnestook
400
Hayes v. Caryll
186
,!;. Huff
41
Haynes v. Crutchfield
85,86
Hook v. Nebeker
35
Hays V. Hall
417
Hopcraft v. Hickman
442
V. Richardson
131, 137
Hope V. Ellis
264
Hayward v. Ellis
386
Hopkins v. M'Laren
412
Hazal V. Dunham
78
Hord V. Bowman
148, 154, 157
Hazelton v. Putnam
125
Horford v. Wilson
32
Heaphy v. Hill
202
Home V. Wingfield
Horniblow v. Shirley
268
Hearne v. Tenant
189
236
Heeny v. Heeny
128
Hough V. Hunt
359
Heirn v. Mill
172,402
V. Richardson
325, 328, 329,
Hennessey v. Andrews
406
331,
338, 343, 346
Hepburn v. Auld 193,
240, 295
Houghtailing v. Houghtailing 125,
V. Dunlap 44, 47
63, 195,
137
216, 223
Howard v. Castle
77, 78
Herbert's case
411
Howe V. Dewing
88
Heriot's Hospital (Feoffees
oQk.
V. Palmer
103
Gibson
169
Howell V. Baker
382
Heme v. Meers
855
Howes V. Barker
13
Herrick v. Grow
62
Howland v. Norris
47, 240
Hertford v. Boore
222
Howorth V. Deem
403
Heth V. Wooldridge
176
Hubbard v. Smith
406
Heuer v. Rutkowski
444
Huddleston v. Briscoe
14, 15, 17
Hewit
396
Hudson V. Bartram
196
Hewitt V. Isham
131
V. Hudson
389
Hewlins v. Shippam
130
Hughes V. Parker
264
Heyward's case
132
Hull V. Cunninghau)
310, 314
Hick V. Phillips
438
Hulme V. Heygate
Humphries v. Horn
8
Bickman v. Grimes
417
51
inSbx to cases cited.
XXV
Hundley v. Lyons
Hunt V. Frost
V. Gregg
V. Robinson
V. Rousmaniere
V. Thorn
Hutchinson v. Brown
V. Morley
Hyde v. Wroughton
loely V. Gre*
Ide V. Stanton
Inge V. Lippingwell
Ihnis V. M'Crummin
Irions v. Cook
Irvin V. Smith
Irwin V. Harris
Ishmael v. Parker
Jackson v. Catlin
V. Curtwright
V. Delacroix
V. Given
V. Gray
V. Keisselbrach
V. Ligon
V. Moncrief
Jacobs V. Peterborough
James v. Shore
Jane Hunter
January v. Martin
Jarrett v. Johnson
Jarvis v. Palmer
Jenison v. Hapgood
Jenkes v. White
Jenkins v. Eldredge
V. Hogg
V. Spooner
Jennings v. Broughtoni
I'. Hopton ^
V. Mdbre
u. Selleck
Jerrard v. Saunders
Jervis v. Smith
Jervoise v. Clarke
Jfeudwine y. Alcock
Jolland V. Stainbridge
John V. Jenkins
Johns V. Rfeardon
Johnson v. Collins
41, 319
79
305
65
830, 353
335
251
78
116, 117
175
317
65
415
393
26
154
263
401
3 53
263
183
263
149, 159
76
265
42, 356
172
342
384
109
378, 402
79
63
331
249
407
410
406
34, 128, 148
81
253
400
262
406
■37, 5^4, 213
Johnson v. Jackton
83
V. Johnson
313
V. M'Gruder
64, 68, 446
V. Medlicott
352
V. Nott
365
V. Roberts
98
V. Ronald
115
Johnston v. Glancy
157, 160
Joliffe V. Hite
309, 310
Jolland V. Stainbridge
400
Jones V. Caswell
375
V. 'Edney
V. Flint
278
111
V. Mudd
42
• V. Nanney
V. Peterman
74, 89, 95
160
V. Powles
406
V. Price
191
V. Robbing
189
V. Shackleford
433
V. Smith
403
V. Taylor
V. Thomas
333
379
V. Wood
2
Jordan v. Pollock
401
V. Sawkins
284
Judd V. Ensign
25
Judge V. Wilkins
856
Judson V. Wass
28, 217
K.
Kearney v. Taylor
Keating v. Price
Keats V. Rector
84,86
197
145
Keen v. Stuckely
Kellogg V. Kellogg
Kelly V. Bradford
441
4
445
Kemeys v. Proctor
Kennedy v. Kennedy
V. Lee
89
3«9
17
Kester v. Rockel
41
Ketchum v. Stout
Killick V. FleXhey
Kime v. Brooks
233
386
64
Kinard v. Hiers
378
Kindley v. Gray
Kine v. Balfe '
221
286
Kin^ V. Bardeau
V. Hamilton
296
421
V. Hamlet
367
V. Hanna
114
V. King
V. Morford
225
192, 400, 487
V. Wilson
201, 236
XXVI
INDEX TO CASES CITEB.
Page
Kinsman v. Kinsman
414
Kirby v. Harrison
2
181
Kitchen v. Herring
166
440
KnatchbuU v. Grueber
210,
243,
422
Knight V. Crockford
117
Knotts V. Geiger
400
L.
Lacon v. Mertin
155
156
LafFerty v. Whitesides
4
Lamas v. Bayly
109
Lambert v. Bainfon
a96
Lang V. Gale
206
Langford v. Pitt
7
Lanier v. Hill 326
328
425
Lansdowne u. Lansdowne
305
■Lathrop v. Hoyt
153
Lawes V. Bennett
7
Lawless v. Mansfield
382
Lawrence v. Dole
209
216
Laythourp v. Bryant
Leach v. Mullett
119
270
294
Leak v. Morrice
162
Leas V. Eidson
310
323
Ledford v. Ferrell
112
Lee and Hemingway, in re
24
V. Dean
334
V. Munn
48,96
Legge V. Croker
275
Leland's Appeal
450
Lenehan v. M'Cabe
407
408
Le Neve v. Le Neve
399
400
Lennon v. Napper
429
Leonard v. Leonard
329
351
V. Vredenburg
103
Le Roy v. Beard
66
Lesley's case
395
Leslie v. Tompson
239
Lessee of Wright v. Deklyne
94
Lester v. Bartlett
113
V. Mahan
355
Lesturgeon v. Martin
250
Levi V. Levi
82
Levy V. Lindo
201'
V. Merrill .
103
V. Pendergrass
75
Lewin ». Guest
220
286
Lewis V. Clifton
290
V. Herndon
258
V. Lechmere
183
441
Vf McLemore
325
326
Liggins ». Inge 125, 128
,325
326
Lightfoot V. Heron
360
Page
Lindsay v. Lynch
285
453
Linscott V. Buck
4
, 196
V. M'Intire
143
Litchfield V. Cudworth
888
Livingston v. Peru, &c.
340
Lloyd V. Cftlett 98
183
, 198
V. Crispe
274
V. Lloyd
31
Loekey v. Lockey
145
Logan V. M'Ginnis
439
V. Wienholt
430
London, &c. v. Winter
436
V. Richmond
438
Long V. Collier •
293
Lord V. Stephens
205
489
V. Underdiinck
62
148
Lowe V Manners
250
Lowell V. Mutual, &c.' •
427
Lowry v. Dufferin
118
Lowther v. Carlton
400
408
V. Carril
284
V. Lowther
854
Lubin V. Lightbody
251
Luce V. Cooley
126
Ludlow V. Grayall
427
Luf kin V. Nunn
411
Lumsden v. Fraser
9
Lutweller v. Lumell
201
Lyman v. United Ins. Co.
11
V. United States Bank
36
Lyndsay v. Lynch
157
Lynn v. Lynn
16
Lysney v. Selby
343
Lyon V. Annable
301
V. Jones
389
M.
Mackreth v. Marlar 188
Maddeford v. Austurick 855
Maddox v. Maddox 406
Madeira v. Hopkins 20
Magennis v. Fallon 346
Main v. Melbourn 155
Majoribanks v. Hovenden 407, 408
Malins v. Brown 152
«. Freeman 816
Mallory v. Mallory 434
Manley v. Cremonini 26
Mann v. Betterly 20, 350, 354
V. Pearson 311
Manning, Ex parte 46
Marcey v. Darling 141
Margravine, &c. v. Noel 227, 248
Markham v. Stevenson 83
INDEX TO CASES CITED.
XX vu
Marsh, Ex parte
V. Hyde
Marston v. Roe
Martin v. Mitchell
V. Pycroft
V. Raulett
Page
396
" 102
5, 6, 64
360
109
82
Maryland, &c. v. Schroeder 152
Mason v. Armitage 308, 437
V. Crosby 66
V. Martin ' 388, 390
V. Wallace 189, 191
Massey v. M'llwain * 145
Matthews v. Dana *50
V. Demerritt 405
V. Light 71
Maure v. Heflfernan 70
Maxwell v. Wallac^ 112
.Mayo V. Purcell 444
Mays V. Swope 223
M'Aninch v. Laughlin 307
M'Artee v. Engart ' 20
McCants v. Bee 384
McClure v. McClure 143
McComb V. Wright 75, 88, 248
McCraw v. Gwin 60
McCrea u. Purmort 117
McCreight v. Aiken 351
M'Dermed v. M'Cartland 62
McDowell V. Simms 80
MoElderry v. Shipley 321
McFadgan v. Eisensmidt 255
McFarland v. Mathis 20
McEerrin v. Taylor 325
McGehee v. Gindrat 401
V. Jones 212
McKay v. Carrington 297, 300
MoKee v. Phillips 154
McKinney v. Pinchard 355, 364
McLaughlan v. Shepherd 402
M'Lelland v. Creswell 312, 343
MoMahan v. Davis 25
McMechan v. Griffing 401, 405
MoMeekin v. Edmund 375
McMuUen v. Riley 108
McQueen v. Farquhar 236
Mead v. Orrery 406
V. Randolph 439
Meadows v. Meadows 88, 91, 121
Mechelen v. Wallace 108
Meredith v. Macoss 64
V, Naish 154
Merry v. Abney . 406
Mesnard y. Aldridge 94
Metcalfe u. Pulvertoft 412
Meux V. Maltby 414
Middleton v. Wilson 434
Miles V. Langley
Mill V. HiU
Millar v. Campbell
Miller v. Auburn, &e.
V. Blandist
V. Irvine
V. Pelletier
Milligan v. Cooke
Mills V. Oddy
Milner v. Mills
Milnes v. Grey
Minchin v. Nance
Minor v. Edwards
Ex parte
Minturn v. Allen
V. Seymour
Mitchell V. Hayne
V. Wilson
Moale V. Buchanan
Molineux, Ex parte
Molony v. Kernan
MoncriefF v. Goldsborough
Monk V. Huskisson
Montesquieu v. Sandys
Moore o. Anders
■v. Beasley
V. Blake
V. Edwards
V. Moore
V. Rawson
V. Small
Mqre V. Mayhew
V. Sniedburgh
Moreland v. Lemasters
Morgan, Ex parte
V. Holford
V. Moraran
Page
404
405
• 78, 81
126
155
103
89
277
98, 271
5, 6
442, 443
45
229
253
75
435
95
185
11, 120, 150
396
411
78
42
383
2
145
180
287
71
128
161
400
221, 224
151
396
168
62
V. Shaw 51, 249, 451
Moriey v. Cook 227, 299
Morphett v. Jones 286>
Morris, &c. v. Emmett 310, 317
V. Kearsley 260'
V. Timmins 289'
Morrison v. M'Leod 352
Morse v. Copeland 129, 130'
V. Merest 24
Morss V. Elmendorf 313, 315, 316,
419,420'
Mortimer v. Orchard 149, 286,
453
Mortlock V. Buller 193, 241, 246,,
304,433,436,437
Morton v. Dean 90
Moss V. Matthews 98, 194, 249
Mountford v. Scott * 408
Moyl V. Home i5o
XXVIU ]
NDEX
TO (
Page
!ASES CITED.
Page
Mumford v. Whitney 125, 129
130,
Owen V. Thomas
101, 166
137
Owings V. Baldwin
209
Mundorff v. Howard
1
,449
Oxenham v. Esdaile
427
Mundy i>. Jolifie
149
Murdock's case
389
Murphy V. Marland
3
i P.
Murray v. Lylburn
412
V. Palmer
50
Packard v. Richardson
103
Muskett V. Hill
132
Page V. Adam
301
Musselman v. Eshlem^n
391
V. Hughes
181, 191
Myers
384
Paine V. Meller
199, 215
Mynn v. JoliflFe
38
Painter v. He&derson
Pqf ham V. Randolph
Parker v. Frith
384, 389
295
187
N.
V. Grant
V. Parker
348
4S0
National iFire Ins. Co. v.
LoomiE
81
V. Parmetee
V. Perkirre
209
Neelson v. Sanborne
103
31,217
Nelson v- ^ddridge
95
V. Staniland
109
V. Carrington
310
u. Wells
154
V. Matthews
310
, 319
i Parkhurst v. Van Cortlandt 2, 117,
V. I^elson
105
,372
160, 162
Nesbit V. Moore
433
Parks V. Brooks
424
Nettleston v. Sikes
110
135
V. Jackson
415
Newham v. May
336
419
Parrill v. M'Kinley
118, 446
Newman v. Chapman
412
419
Parry v. Frame
276
V. Kogers
183
Parsons v. Camp
126
Newton v. Swazey
123
145
Pasley v. Freeman
346
NichoU V. Chambers
229
Paterson v. Long
272
Nichols V. Johnson
120
Paton V. Rogers 193
241, 249
Nicholson v. Mifflin
64
Patton V. M'Clure
160
Nickerson v. Saunders
25
Paul V. Squibb
Pawle V. Gunn
402
Nodlne v. Greenfield
181
193
145
Nolen V. Gwynne
406
Payne v. Atterbury
427
Norfolk V. Worthy
317
V. Cave
75
Norton v. Hathaway,
333
Peacock v. Evans
364, 367
V. Herron
70
PearsoU v. Frazer
201
NotBon V. Barrett
290
Pearson v. Williams
23
Nott V. Hill
S64
Pedder, Ex parte
396
N. Y. &c. V. Pixley
15
Pember v. Mathers
Pendergast v. Meserve
Penn v. Baltimore
282
32
430
0.
Pennock v. Tilford
PennocVs Appeal
336
81
Oatman v. Walker
38
Perkins v. Rice
51, 336
Ogilvie B. Foljambe 94,117,
211,
V. Wright
437
267
Perring «. Brooke
262
Oliver V. Court
86,
371
Perry v. Fitzhugh
133
Olmstead, v. Miles
104
V. Rice
29
O'Neill
386
V. Wheeler
185
O'Reilly w. Thompson
147,
157
Peterson v'. Dickey
25
Orme v. Broughton
48
V. Orr
4
Ormond v. Anderson
15
Pettus V. Smith
426
O'Rourke v. Percival
277
Phillips V. Bucks
339
Osborne v. Bremar
312
V. Hunnewell
103
Osgood V. Franklin
356,
358
V. Thompson 109,
148, 163
INDBX TO CASES CITED.
XXIX
Page
Page
Phippen v. Stiokney
82, 85
Proctor V. Jones
102
Phyfe V. Wardell
343
Prothro v. Smith
209
Piatt V. Oliver
82
Providence, &c. v. Thurber
(
1131
Pidoock V. Bishop
348
Pugh V. Good 146,
148
161
Pierce v. Harrington
56
Purcell V. M'Cleary
166
V. Nichols
194, 222
Purvis V. Rayer
267,
268
Pierrepont v. Barnard
104, 131
Putnam v. Westcott
301
Pike V. Butler ■
280
Putney v. Day
104,
133
Pile V. Shannon
325
Pyke V. Williams
154
Pillage V. Armitage
348
Pyrke v. Waddingham
•
211
Pilmore v. Hood
344
«
Pinckard v. Pinckard
449
V. Woods
340
Q.
Pincker v. Curteis
197
Pinckney v. Hagadorn
87,88
Quackenbush v. Leonard
385
Pipkin V. James
26
Quesnell v. Woodlief
310
315
Pitchers v. Edney
100
Pitt V. Petway
389
V. Smith
352
R.
Plummer v. Owens
121
*
Poag V. Sandifer
123
Radcliffe v. Warrington 98
183
188
Pollard i;. Kiiiner
154
Radford u, Wilson
415
Pomeroy v. Drury
57
Radnor v. Shafto
1
Pomroy v. Stevens
406
Ramsay v. Brailsford 30
,41,
224,
Poole V. Shergold 237,
249, 259, 444
430
443
Pope V. Henry
406
Ramsbottom v. Tunbridge
121
Popham V. Eyre
147
Raness v. Wall
71
Popkin V. James
121
Rankin v. Matthews
94
Pordage v. Cole
30
^. Maxwell
295
Porter v. Vaughn
298
u. Simpson
449
450
Portman v. Mill
42, 195, 252
Ransom v. Shuler
4l9
Portmore v. Taylor
365
Read v. Walker . 35
424
426
Potter V. Everitt
20
Redding v. Wilkes
147
V. Potter
5
Reed v. Chambers
199
Powell V. Dillon
402, 409
V. Noe
443
444
V. Edmunds
93, 101
V. Redman
180
Powers V. Bridges
35
V. Vidal
54
V. Hale
20
Reed's Heirs v. Hornback
291
Pratt V. Carroll
183
Regan,!). Walker
427
u. Law
298, 420
Reinicker v. Smith
353
V. Philbrook
325, 330
Remington v. Irwin
208
Preble v. Baldwin
109
Renshaw v. Gans
U*
Prentice v. Achorn
352
Rex V. Christie
95
Prentiss v. Russ
343
V. Dunston
124
Preston v. Merceau
172, 281
V. Inhabitants of Horndon
126
V. Tubbin
408
V. Inhabitants of Standon
126
Prevost V. Gratz
388
V. Marsh
80
Price V. Assheton
266
V. Snow
450
V. Berrington
425
V. Taylor
73
V. Dyer
176, 266
Reynolds v. Dunkirk
113
, 123
V. Griffith
166
Ex parte
397
D. North 51,227
242,291,293
V. Nelson
202
V. Williams
263
V. Vance
295
Prince v. Case
129, 134
V. Waring
149
,449
Pringle v. Samuel
334, 335
Rhodes v. Rhodes
151
, 156
Pritchard v. Ovey
191
c*
Rice V. Carter •
113
XXX
INDEX TO CASES CITED.
Kich V. Jackson
Richards v. Edick
Riqjfer v. Kelly-
Riddle V. Brown
Ridley v. M'Nairy
Ringgold V. Bryan
V. Ringgold
Ringo V. Binns
Rippingall v. Lloyd
Roacl^M. Rutherford
Rob V. Butterwick
Robbins v. Bates
Roberts v. Berry
■V. Massey
V. Tunstall
V. Wyatt
Robinson v. Green
V. Kettletas
V. Milner
u»Musgrove
V. Page
Robson V. (Collins
Roche V. O'Brien
Rodman v. Zilley 324,
Rodwell V. Phillips
RoiFey V. Shallcross
Rogers v. Atkinson
■V. Colt
V. Hoskins
V. Rogers
V. Saunders
V. Wiley
V. Woodbury
Root V. Yeomans
Roots V. Dormer
Roper V. Coombes
Rose V. Bates
V. Calland
V. Cunynghame
Rosevelt v. Fulton
Routledge v. Grant
Eowton V. Rowton
Koy V. Willink
Royster v. Shackleford
Rue V. Rue
Ruflfey v: Henderson
Rugge V. Ellis
Ruggles V. Lesure
Rupert V. Mark
Russell V. Nixon
V. Richards
Russell's Appeal
Rutherford v. RuflE"
Rutledge v. Smith
Ryan v. Hall
Ryle V. Brown ,
173, 282
22, 27, 166
140
108
143
401
374, 389
372
196, 203
224, 426
10
391
205
46
368
259, 301
76
434
253
294
176
287
* 368
350, 353, 358
105, 109
241
306, 307
31
* 409
389
181, 182
401
141
389
76, 236
295
83
435
5, 122, 144
307,- 323, 335
265, 280
■ 103, 123
241
423
60
130
436
137
401,405
117
141
-6
350
42
174
364
Page
Sage V. M'Guire
60
V. Sherman
39
V. Wilcox
103
Sailors v. Gambril
149
Sainsbury v. Matthews
111
Salmon v. Cutts
379
Sampson v. Burnside
126
Sanderson v. Walker
397
Sansom v. Rhodes
207
Sargeant v. The State Bank 52, 53
Sargent v. Adams
179
273
Saunders v. Annesley
329
V. Wakefield
103
Savage v. Carroll 149
157
165
Savile v. Savile
99
Savory v. Underwood
192
Schedda v. Sawyer
71
Schmidt v. Livingston
437
Schreiber v. Creed
171
Scorell V. Boxall
105
Scott V. Fields
182
183
V. Hanson
346
V. Nixon
267
V. Thorp
254
Seagood v. Meale
155
Seaman v. Van Rensselaer
212
V. Vawdrey
238
Sears v. Brink
103
Sedgwick v. Stanton
439
Seidensparger v. Spear
129
Sellick V. Trevor
230
256
Selm V. Slade
259
Selsey v. Rhoades
395
Senter v. Drake
272
Sergeant v. IngersoU
401
Seton V. Slade
194
205
Sewall V. Jones
77
Seymour v. Delancey 20,
211,
216,
352, 356,358,417,433
436
440
Shackleford v. Handley,
325,
341,
435
Shannon v. Bradstreet
147
Shaw V. Hayward
207
V. Livermore
32
V. Thactray
353
Sheldon v. Cox
400
406
Shelton v. Homer
385
V. Livins
92
Shepherd v. Burkhalter
406
V. Keatley
268
Sherwin v. Shakspeare
43
255
Sherwood v. Robins
294
V. Salmon
329
341
Shiels V. Stark
177
INDEX TO CASES CITED.
XXXI
Shippey v. Derrison
Shirley v. DavLes
V. Shirley
V. Spencer
V. Stratton
Shoup V. Cook
Shumeton v. Jenkins
Simms v. Killian
Simmons v. Cornelius
V. Hill
Simon v. Motives
Simonds v. Catlin
Simonton v. Gandolfo
Sims V. Lewis
Sites V. Keller
Sloo V. Law
Slosson V. Beadle
Small V. Atwood
V. Jones
Smart v. Harding
Smith V. Arnold
V. Baboock
V. Baker
V. Brailsford
V. Burnham
V. Carney
V. Chaney
V. Clarke
V. Dolman
V. Greeley
V. Greenlee
V. Jackson
V. Lloyd
V. Low
V. Fatten
V. Phillips
V. Richards
V. Bobertson
V. Simons
V. Smith
V. Surman
V. Tombs
V. Underdunck
V. Wyley
Sohier v. Williams
Soles V. Hickman
SoUee V. Croft
Somerville v. Trueman
Sorrel v. Carpenter
Soule V. Heerman
Souter V. Drake
Southby V. Hutt
Southeastern, &c. v. Knott
Page
119, 284
346
26, 117,427
145
348,437
290, 425
182, 183
112
155
146, 150
88, 89
64
114
422
154
196
23
49, 301, 302, 427
85, 86
109
90, 117,120
325, 327
404
124
191
417
27
78,80
192
321
82, U
252
447
401
29
410
327
309, 324
125
40, 148, 154, 318
111
283
146, 148
101
210
450
393
118, 144
412
296
267
256, 259
435
Spindler v. Atkinson 341, 387, 390
Spofford V. Hobbs • - 64, 65, 67
Spratt V. JefFery 226, 271
306,
129,
242,
Spurrier v. Elderton
V. Hancock
V. Mayoss ,
Staines v. Shore
Stanley.!'. Robinson
Stansfield v. Johnson
Stanton v. Tattersall
Stapylton v. Scott
State (The) v. Gaillard
V. Mayes
State of Illinois v. Delafield
Stebbins v. Eddy
Stedwell v. Anderson
Steed V. Whitakei"
Step V. Alkire
Stephens v. Winn
Stevens v. Adamson
V. Guppy
V. Ryerson
V. Stevens .
Stevenson v. Maxwell
Stewart v. Attiston
V. Doughty
V. Stewart
Stillwell V. Wilkins
St. John V. Benedict
V. Bishop
St. Mary's v. Stockton
Stockett V. Taylor
Stokes V. Moore
Stone V. The State
Story V. Windsor
Stowell V. Robinson
Strafford v. Bosworth
Stuart, Ex parte
V. Kissam
Stubblefield v. Beazely
Sturdevant v. Pike
SuUivant v. Franklin
Swan V. Drury
Swartwout v. Burr
Sweeny v. Miller
Switzler v. Skiles
Sykes v. Giles
Symonds v. Ball
Symondson v. Tweed
T.
&c.
Page
95, 99
186
60
78, 80
329
89
320
308
329
67
38
31.3, 319
320, 322
408
297
103
281
258,451
188
137, 139
41,42
291, 293
105
305
354, 355
438
6
443
401
121
86
400
201
14, 164
267
394
38
71
132
217
62
109
82
87
89
149
Tanner v. Elworthy
386
V. Smith
299
Taylor v. Barker
402
V. Brown
201
248
V. Fleet
346
V. Green
58
xxxu
INDEX TO CASES CITED.
Taylor v. Longworthy
V. Martindale
V. Patrick
V. Koss
V. Salmon
Page
455
269, 291
850
104
372
V. Stibbert 281, 409, 410
«. Waters 125
TeallB. Anty 112
Tebbotfc V. "Voules 9
Tempest v. Fitzgerald 103
Temple V. Brown 271
Tenny v. Childs 263
Terrell v. Kirksey 233
Tevis V. Richardsdh 417
Thayer v. Rock 108
V. Viles 112
Thellusson v. Woodford 7
The Matteawan, &c. v. Bentley 333
Thomas v. Bering 241, 246
V. SoreJl 135
Thompson v. Dulles, 186, 212
V. Gould 159
V. Hallet 392
V. Scott 148, 149
V. Tod 123, 146
Thomson v. Miles 301
Thornton v. Henry 145
V. Kempster 114
Thorp V. M'CuUum 389
Thresh v. Rake 201
Thurston v. Franklin College 34
Th-vfsihes, Ex parte 896
Tibbs V. Barker 145
Tiernan v. Roland 34, 37, 38, 60,
180, 189, 190
Tilton V. Tilton 10, 145
Tindal v. Cobham 447
Todd V. Gee 47, 236, 238
Tohler v. Folsom 104
Tomkins v. .White 279
Tomlin V. M'Chord 209, 443
Tomlinson v. Savage 78, 81, 236
Toppin V. Lomas 112
Torrey u. Buck 436
Toulmin v. Steere 407
Tourville v. Naish 400
Towle V. Leavitt 78, 79
Town V. Needham 151
Townsend v. Corning 68
Townshend v. Champernowne 194,
195
V. Stangroom 174, 175
Trefuais v. Clinton 45
Trevelyan v. White 373, 414
Trimble v. Booth by 415
Tripp u. Cook 416
Troup V. Wood
Trower v. Neweome
Trull V. Eastman
Tucker v. Clarke
V. Woods
Tufts V. Tufts
Tunstall v. Trappes
Turner v. Harvey
Tuthill V. Babcock
Twining v. Morrice
Twistleton v. Griffith
Tyler v. Beversham
Tyree v. Williams
U.
Underbill v. Horwood
Page
82, 375
292, 325
367
418
14, 26, 245
115, 123, 394
407,412
308, 848, 355
338
77, 78
380
293
75, 240
356
Vanu. Corpe 174,274
Vancouver v. Bliss 252
Vandenburgh v. Van Bergen 132
Van Eps v. Schenectady 36, 213,
233, 312
Vanhorn v. Frick 64
Vawser v. JefFery 9
Veazie v. Williams 78, 81, 86
Veeder v. Fonda 309
Verlander v. Codd 119
Vernon v. Stephens 198
u. Vernon 5
Vielie w. Osgood 109,117
Vigers v. Pike 830, 332
Violet V. Patton 103
Voll V. Smith 155
Voorhees v. De Meyer 190, 193,
233, 240, 310
Vowles V. Craig • . 818
W.
Wain «;. Warlters 1D3
Wainwright v. Read 94, 314
Walker v. Advocate-General 74
V. Brungard 889
V. Constable 88, 96, 99
V. Johnson 423
II. Smallwood 411
Wall V. Bright 8
V. Stubbs 324
Waller »;. Hendon 285
Walling V. Kinnard 35, 336
Page
Wallinger v. Hilbert 250
Wallis V. Harrison 134
V. Sarel 45
Wallwynn v. Lee 406, 415
Walter v. Maunde 272, 281
Walters v. Morgan 284
i: Pyman 252
Ward V. Garmons 256, 257
V. Moore 7
V. Smith 389
Warder v. Jeffery 204
Waring v. Hoggart 278
Warner v. Daniels 422
Warren v. Richardson 273
Warrick v. Warrick 408
Warwick v. Bruce 110
Wason V. Waring 345
Wasson v. English 394
Waters v. Bailey 386
V. Groom 397
V. Mattingly 325, 345
V. Travis 445, 454
Watkins v. Gilkerson 112
V. Stookett 342
Watrous v. Chalker 57
Watson V. Eeid 201
Watts V. Waddle 209, 216, 443
Webb V. Sugar 386
Webster v. Ela 52
Weelhers, &c. 389
Weems v. Brewer 297
Welch V. Murray 84
Welford v. Beazely 116,117
Wells V. Bannister 141
V. Pheiffer 84
V. Smith 37, 182, 184, 185,
218
V. Wells 189
' Wesley ?). Thomas 342
Westall V. Austin ' 221
Westerman v. Means 181, 185
Westervelt v. Matheson 297
Western v. Kussell 20, 119, 246, 356
Wetmore v. White 145, 151
Whaley v. Bagenal 147
K.Eliot 313
Wheatley v. Slade 240
Whtfaton v. Wheaton 307, 323
Wheeler v. Collier 79, 90
V. Rpwell 126
V. Smith 363
V. Wright 270
Whelpdale v. Cookson 390
Whiohcote u. Lawrence 3^4,394
Whipple V. Foot 105
Whitbread v. Brockhurst 147
ASES CITED.
XXXlll
Page
Whitbread v. Jordan
401
Whitchurch v. Bevis
147
Whitcomb v. Foley
249
White V. Bartlett
88
V. Gaddon
235
V. Damon
358
V. Flora
356
V. Foljambe
245, 267
V. Palmer
351
V. Proctor
88
White's, &c.
141
Whiteside v. Jennings
21, 63
Whitman v. Weston
322
Whitmarsh v. Walker
110, 135
Whittemore v. Gibbs
112
Whorwood V. Simpson
437
Wigg V. Wigg
400
Wiggins V. Lord
97
Wiggins
390
Wigglesworth v. Steers
352
Wilber v. Pain
145
Wilbur V. How
85
Wilcox V. Bellares
252
Wildbahn v. Robidoux
173
Wilde V. Foote 95, 209, 219^
Wildgoose v. Weyland 409*
Wilkinson v. Fowkea 372
!). Scott 143
Wilks V. Davis 23
Willan V. Willan 305
Willett u. Clarke 190
William u. Nevill 155
Williams v. Edwards 184, 213
V. First Presbyterian,
&c. 391
V. Llewellyn 392
V. Rogers . 41, 47, 302
V. Shaw 452
Williamson v. Seaber 397
Willis V. Jernegan 357
Wills V. Stradling 157, 287
Wilmot V. Wilkinson 214
Wilson V. Fuller 348
Wilton V. Harwood 160
Winch V. Winchester 93, 174, 232,
292
Winckam v. Hawker 132
Winne u. Reynolds 213,231,232
Winter v. Blades 44
V. Brock well 141
V. Jones 36
Winterbottom v. Ingham 248, 249
Wiswall f. McGown- 200,420
Withy V. Cottle 181, 249, 250
Witter V. Biscoe 209
Woodi). Bernal 198
XXXIV
INDEX TO CASES CITED.
,
Page
Page
Wood V. Goodridge
68
Wright V. Bigg
15
V. Hewett
141
V. Bond
248
V. Lake
126
V. Dannah
372
V. Lambirth
253
V. Howard
180, 244
V. Leadbitter
136
,138
V. Wilson
237
1). Manley
140
Wynn v. Morgan
222
V. Midgeley
156
Wynne v. GriflSth
99
Woodbury v. Parshley
139
Woodman v. Freeman
425
Woodcock B. Bennett 420,
421
435
Y.
WoodrofFe v. Titterton
249
'
Woods V. Hall
325
Yates V. Martin
112
V Kirk
209
Yeates v. Prior 325
330, 331
Wood's Executor v. Hudson
82
York, &c. V. Mackenzie
396
Woodward v. Picket
103
Young V. Clerk
436
V. Seeley
125
V. Frost
326
WooUam V. Hearn
174
Younge v. Buncombe
448
Wormack v. Rogers
20
Worrall v. Munn
101
,117
Worseley v. De Mattos
399
Z.
Worsley v. Scarborough
408
,412
Worthy V. Johnson
384
Zickafosse v. Hulick
112
LAW OF VENDORS AND PUECHASERS.
THE LAW
VENDORS AND PURCHASEES,
CHAPT^E I.
NATURE OF THE CONTRACT FOR A SALE AND PURCHASE OF
LANDS.
1 . Distinction between the executory
contract, and a transfer in pursuance of
it ; merger, &c.
7. Eight of property and possession,
at law.
13. Doctrine in equity ; whether a title
passes.
15. Whether the purchaser has a de-
scendible and devisable interest ; applica-
tion of funds ; revocation and republi-
cation of will, &c. Devise by a vendor,
and the effect thereof.
40. Heforming a deed, for variance
from the previous contract.
1, The law uniformly recognizes the obvious distinction
between the contract of purchase cund sale, (a) 'which is a
(a) An agreement to devise real estate has been hf Id valid. MundorflF v.
Howard, 4 Md. 459. See Radnor v. Shaf'to, 11 Ves. 447. A., being in
treaty for the purchase of land, offered for sale by B., was informed by C.
that he had a claim to it. C. also inserted in a newspaper an advertisement,
cautioning all persons against purchasing ; and caused to be recorded a bond
of B., binding himself not to revoke a will, in which he had devised the land
to the wife of C, which bond was also shown to A. before he had concluded
the purchase. Held, these circumstances were sufficient to constitute A. a
purchaser with notice, notwithstanding, having seen the will, he had discov-
ered a misrecital of it in the bond, and was advised that he might safely
purchase. Argenbright v. Campbell, 3 Hen. & M. 144.
2 LAW OP VENDORS AND PXJKCHASBRS. [CH. I.
mere executory agreement., giving to each party a valid claim
against the other, but neither transferring nor vesting any
present title, ; and an actual conveyance of the property be-
tween grantor and grantee, (a)
2. Thus a vendor and vendee are said not to stand in the
relation of mortgagee and mortgagor^ (fe)
3. So it is held, in general, that, as agreements for the sale
of lands are executory contracts, the acceptance of a deed,
in pursuance of a contract, is primd facie an execution of
the agreement, which thenceforth becomes void, and of no
further effect ; ^ except, as is said, in case of a covenant,
which does not look to, nor is connected with, the title, pos-
session, quantity or emblements of the land.^ (c)
4
1 Kirby v. Harrison, 2 Ohio, (N. S.) ^ Bull u. Willard, 9 Barb. 641 ; Jones
326. V. Wood, 16 Penn. 25. " Ibid.
(a) Action upon the following writing, signed by both parties : " This
certifies, that I have sold to'' the plaintiff " about five acres of land, more or
less, being the same which I bought of him in consideration of the same sum
which I paid him for the same, with interest from the time I purchased the
same, till I paid for it (supposed about six months) with the expense of the
deed, also the taxes for one year." Held, an executory contract for the
sale of the land. Atwood v. Cobb, 16 Pick. 231.
(J) But it has been held, that where lands are sold by a bond or covenant,
conditioned to make title upon payment of the purchase-money, and ex-
pressly reserving the title to the vendor, till such payment ; the effect is the
same as that of a conveyance and mortgage back ; — the vendor retaiins a
lien for the price, even as against subsequent purchasers or incumbrancers,
with notice. Moore i;. Anders, 14 Ark. 628.
(c) Upon the same principle, a bond or written agreement for conveyance
merges all prior parol agreements and negotiations. BuUett v. Worthington,
3 Md. Ch. 99 ; Parkhurst v. Van Cortlandt, 1 Johns. Ch. 273. But where a
vendor pointed out to the agent of the vendee two fractions, when showing
him a tract offered for sale, represented them as valuable, and gave a writ-
ten description of the improvements on the fractions to be submitted to the
vendee, and the agent understood that the whole tract was offered, and pos-
session of the fractions with the tract was delivered to the vendee, but they
were omitted in the deed ; it was held that the fractions were included in
the sale. Barraque v. Siter, 4 Eng. 545.
CH. I.] NATURE OF THE CONTRACT FOR A SALE, ETC. 3
4. So, the purchaser of the interest of a party, under a
mere executory contract, is presumed to buy with notice of,
and subject to, the legal title.^
5. A covenant, upon the principle above stated, in an
agreement to sell and convey land, that it shall be " free and
clear of all incumbrances," is merged in the subsequent deed,
and the grantee can claim only under the covenant in such
deed. So, though the agreement and the deed are made by
different parties.^
6.- Agreement for the sale of land, the price to be paid
" as soon as it can be asce^ained that the title to the prem-
ises is good and unincumbered." Held, the purchaser is
bound to examine the title before taking his deed, and can-
not afterwards claim under the agreement.^
7. So an executory contract does not, at law, pass a title
to the property.
8. Bond to convey, on payment of a certain sum. The
obligee built a house on the land, without any agreement for
its removal, and paid part of the price, and, to protect the
property from his creditors, for an inadequate consideration,
assigned the bond to his son. In the mean time, some of
the creditors had attached the house, and caused it to be
sold as personal property ; and, with full notice bf the facts,
took a conveyance of the land from the obligor. Held, be-
fore the assignment of the bond, the obligee had no attach-
able interest in the land ; that the house was real estate ;
and that the son, on tender of the balance due and demand-
ing performance of the bond, might maintain a bill iri equity
against the obligor and the creditors for specific perform-
ance.*
9. So, under a naked contract of purchase, which is silent
on the subject of possession, the purchaser acquires no right
to possession or entry ; and, if he enter in pursuance of a
parol license from Hhe vendor, the possession is an interest
1 Fosgate v. The Herkimer, &c. 12 " Ibid.
Barb. 352. < Murphy v. Marland, 8 Cush. 575.
2 Carr v. Roach, 2 Duer, 20.
4 LAW OF VENDOES AND PURCHASERS. [CH. I.
distinct from that acquired under the contract, and is subject
to sale on execution.^
10. And possession under an executory contract will not
render the contract valid, if otherwise void for illegality.
11. Where a colonist, having a grant of land in Texas,
contracted to sell it before the expiration of six years after
receiving his grant, and to make a full conveyance as soon
as the law would permit, and the purchaser went into pos-
session at the time of the contract, and made valuable im-
provements, such contract being contrary to law ; held, it
was void, and could not be enforced.^
12. An agreement stated the sale of certain lands, and the
vendor covenanted for himself, his heirs, &c., to convey so
much of them as he held the legal title of, to the vendee, his
heirs, &c., by a certain time, with general warranty, and to
procure a third person to convey such parts as he was legally
entitled to, to the vendee, his heirs, &c., by a certain subse-
quent time, with special warranty. Held, only an ordinary
bond for a conveyance, which passed a mere eqviitable
estate.^
13. Bat, in equity, a contract of sale of land is not merely
executory, but the vendee becomes the owner, {a) and the
vendor is seised in trust for him ; which trust attaches to
the land, and binds all who claim under the vendor with
notice.*
14. So, an article of agreement, under seal, for the pur-
chase of land, is not a mere chose in action, but an interest
in the land, which is within the provisions of the recording
1 Kellogg w. Kellogg, 6 Barb. 116. s Lafferty v. Whitesides, I Swan,
2 Hunt V. Kobinson, 1 Texas, 748. (Ten.) 123.
* Lihscott V. Buck, 33 Maine, 530.
(a) So it has been held, that payment and entry test even a legal title in
the party who holds a bond for titles, which he may«enforce by an action at
law. Hence, equity will not interpose by injunction, though the obligor has
threatened to sell the property, or entered and carried oiF the crops. Peter-
son V. Orr, 12 Geo. 464.
CH. I.] NATURE OP THE CONTRACT FOR A SALE, ETC. 5
acts, and the interest of the vendee may be bound by judg-
ment. So, where the vendee, after paying part of the pur-
chase money, and being in possession, assigns all his right and
interest in the contract to a creditor as collateral security,
such assignment is but a mortgage, and, if not duly recorded,
will be postponed to subsequent judgments.^
15. Upon the same principle, by a general devise, an estate
passes, in which the devisor has acquired an equitable title
by a contract of purchase ; ^ more especially where a written
agreement for the purchase of an estate has been executed,^
16. So, an equitable title, acquired after a general devise,
passes by republication of the will.''
17. In such cases, the vendor is regarded as a trustee for
the vendee.^
18. A third person articled to purchase lands in trust for
the testator, who, before any conveyance by will, disposed of
all his freehold estate. Held, the lands articled for passed by
the will.6 '
19. Before the making of a will, the ancestor of the tes-
tator had contracted for the purchase of an estate, of which
possession was given, but no conveyance executed. The
purchaser then died intestate, leaving the testator his heir at
law and sole next of kin. The testator then made his will, and
afterwards the estate was conveyed to him. Held, the estate
was not after-acquired property, but included in the devise.'^
20. One possessed of three species of estates in the county
of H., viz : one by articles wholly executory, another execu-
tory in part, and a third (being an advowson) completely
executed by a recent conveyance, devises to his wife as.
follows: "AU the manors, messuages, advowsons, and here-
ditaments in the county of H., for the purchase whereof I
have already contracted and agreed, or in lieu thereof the
1 Kussell's Appeal,"l5 Penn. 319. ^ Pose v. Cunynghame, 11 Ves. 550.
2 Broome v. Monck, 10 Ves. 597 ; * Broome v. Monck, 10 Ves. 597.
Potter V. Potter, 1 Ves. 437 ; Davie o. ^ Darris's case, 3 Salk. 85.
Beardsham, 1 Cha. Cas. 39 ; Milner v. ^ Greonhill v. Greenhill, 2 Vern. 679.
Mills, Mose. 123; Cape! v. Girdler, 9 ' Marston v. Eoe, 8 Ad. & Ell. 14.
Ves. 509. See Vernon v. Vernon, 7 E. 8.
1*
6 LAW OF VENDORS AND PURCHASERS. [CH. I.
money arising by the sale of my real estate in the county of
L. ; " (with directions for completing the contracts.) Held,
the advowson shall pass.^
21. The same general principle has been applied to the
question of an implied revocation of a will, by subsequent
marriage, and birth of children.^
22. The same rule of equity sometimes involves the ques-
tion, as to the fund, making part of the estate of the testator,
from which purchase-money shall be paid.
23. Upon the principle above stated, the devisee or heir
of a purchaser may call for application of the personal estate
in payrrient for the land.^ But the liability of real and
personal representatives, in respect of such contract, is regu-
lated by that of the party at his death. If he could not be
compelled to take the estate, the heir cannot insist on having
it, and that the personal estate shall pay for it.* The admin-
istrators cannot assign the contract, or compel its perform-
ance, without consent of the heirs.^
24. A devisee, claiming the benefit of a contract for the
purchase of an estate, directed to go to the uses of the wiU,
the title of which proves defective, has no claim upon the
personal estate ; either to have the purchase-money, or an-
other estate purchased, or the purchase completed notwith-
standing the defect.®
25. A. makes a lease to B. for seven years, and on the
lease is indorsed an agreement, that if B. shall within a
limited time be minded to purchase the inheritance for
£3,000, A. would convey to him for that sum. B. assigns
to C. the lease and the benefit of this agreement. A, dies,
and by will gives all his real estate to D. and all his per-
sonal to E. and D. equally. Within the limited time, but
after the death of A., C. claims the benefit of the agreement
from D., who accordingly conveys to C. for £3,000. Held,
1 St. John u. Bishop, &c. 2 BI. 930 ; * Broome v. Monck, 10 Ves. 597.
1 Cowp. 94. ' Champion v. Brown, 6 Johns. Ch.
2 Marston v. Eoe, 8 Ad. & Ell. 14. 398.
3 Broome v. Monck, 10 Ves. 597; » Broome w. Monck, 10 Ves. 597.
Milner v. Mills, Mose, 123.
CH. I.] NATURE OF THE CONTRACT FOR A SALE, ETC. 7
this sum, when paid, is part of the personal estate of A.,
and E. is entitled to one moiety of it as such.'
26. The doctrine, that a party claiming under a will can-
not dispute any of its provisions, but must elect to affirm or
repudiate it in toto, has been applied to the devise of land
merely contracted for.
27. Will, directing that in case the testator shall enter
into contracts for the purchase of lands, and die before the
conveyance, such contracts shall bq§ carried into execution,
the money paid out of his personal estate, and the convey-
ance be to his trustees, their heirs, &c., to the uses of his
will. Held, the heir at law, having interests bequeathed to
him, is put to an election.^
28. A similar doctrine has been applied to the title of a
vendor of lands, as affected by a devise thereof. Thus, where
one devises land, and afterwards articles, for valuable con-
iSiideration, to sell or settle them, this in equity is a revocation
of the will ; as much so as a conveyance would be at law.
Whether the abandonment of the contract would set up the
will again, without republication, has been questioned.^
29. On the other hand, if the owner of an equitable fee
devises it, and afterwards the legal fee is conveyed to him,
the wiU is not thereby revoked, because such conveyance
was incident to the equitable fee devised. But, if he after-
wards take a qualified conveyance of the legal fee, for the
purpgse of preventing dower, it is a revocation, being a
change in the quality of the estate, and not incident to the
equitable fee.*
30. K, after a devise of all one's real and personal estate,
he articles to purchase lands, and then dies, they pass to the
heir. Had the articles been made before the wUl, the estate
would have passed by it.^ So, a testator entered into a con-
tract for the purchase of an estate, and the vendor agreed to
1 Lawes v. Bennett, 1 Cox, 167. ' Bennett v. Lord Tankerville, 19
2 Thellasson o. Woodford, 13 Ves. Ves. 170.
209. ■< Ward u. Moore, 4 Madd. 368.
5 Langford v. Pitt, 2 P. Wms. 629. '
8 LAW OF VENDORS AND PURCHASERS, [OH. I.
convey to the purchaser, his heirs, appointees, or assigns.
Subsequently to the contract, the purchaser made a codicil,
by which, after reciting the contract, he devised the estate to
his executors and trustees, upon the trusts therein mentioned.
He afterwards took a conveyance from the vendor, to the
usual uses, to bar dower. Held, the conveyance operated as
a revocation of the devise.^
31. A testator devises all his freehold and copyhold manors,
&c., and real estate wh^jjewer, upon certain trusts ; and gives
to the same trustees a sum of i£ 35,000 to lay out in the
purchase of lands, to be settled upon the same trusts. He
afterwards contracts for the purchase of several estates ; and
by a codicil, specifying some of the estates which he had so
contracted to purchase, devises them to the same trustees,
i^pon the trusts of his will, and directs that the purchase-
moneys shall be taken as part of the .£35,000 ; confirming
his will in all other respects. Held, the codicil amounts to a
republication of the will, so as to pass, not only the estates
thereia specified, but all the estates contracted for.^
32. But, on the other hand, it has been held, that an estate
which the testator had contracted to sell, will pass by a de-
vise of all his real and personal estate to trustees, in trust to
sell.3
33. A testator, having devised freeholds and copyholds to
the same persons, afterwards executed a marriage settlement,
by which he bargained and sold the freeholds to trustees and
their heirs, to the use of himself during his life, and after his
death, to the intent that the wife might receive annually a
rent-charge, which was secured by powers of distress and
entry, and by a term of years ; and subject to the rent-charge
and the term, to the use of the settlor, his heirs and assigns ;
and covenanted to surrender the copyholds to the uses of the
settlement. The testator died, leaving his wife surviving,
without having surrendered the copyholds. Held, the cov-
1 BuUin V. Fletcher, 1 Kee. 369. » Wall v. Bright, 1 Jac. & "Walk.
2 Hulrae V. Heygate, 1 Mer. 285. 494.
CH. I.]
enant to surrender did not operate as an entire revocation of
the devise of the copyholds, but only so far as the particular
piurposes of the settlement required.^
34. A testator devised all his real estates to his children,
equally, and afterwards entered into contracts for a sale, but
died before they were completed. The purchasers afterwards
abandoned their contracts, because they were unable to pro-
cure a conveyance from some of the devisees, who were
infants. Held, though the contracts w^ere properly aban-
doned, the will was revoked.^
35. Agreement for the sale of an estate at a future time.
Before that time, the vendor died intestate. Held, the rents
accrued between the vendor's death and the time fixed be-
longed to his heirs,^
36. A testator devised his estates to trustees, in trust to
sell, their receipts to be sufficient discbarges ; and directed
them to complete any contracts for sale remaining incomplete
at his death. Held, his executor was the proper party to
give receipts for the purchase-moneys of stich estates.*
37. So the title of a purchaser passes by descent to his
heirs.^
38. Although a purchaser, before the conveyance, has
neither a legal nor equitable right as against the seller, until
he pay the purchase-money ; yet, upon the same principle of
equitable ownership, his equitable estate is subject to his con-
trol, and to the lien of judgments obtained against him.
39. But Equity will order an injunction against cutting
timber, by a person having got possession under articles to
purchase.^
40. Although, as a general rule, a mere agreement of sale
and purchase is merged in the actual conveyance, yet, by a
well-established principle of Equity jurisprudence, the Court
1 Vawser v. Jeffery, 3 Russ. 479. ^ Broome v. Monck, 10 Ves. 597.
2 Tebbott u. Voules, 6 Sim. 40. ^ Crockford v. Alexander, 15 Ves.
" Lumsden u. Praser, 12 Sim. 263. jun. 138; Baldwin u. Belcher, 1 Jo. &
* Eaton V. Sanxter, 6 Sim. 517. Lat. 18.
10 LAW OF VENDORS AND PUKCHASBRS. [CH. I.
will correct a mistake (a) in a written contract, if clearly shown,
even by parol evidence. So, d fortiori, the Court will reform
a deed, entered into under a previous agreement, by ordering
a fresh conveyance ; from which a covenant will be ex-
punged which was not contained in that agreement, or con-
templated by the covenantor, even though such covenant
was introduced by the attorney of the covenantor, (but
without his express authority.) '
41. Tenants in common agreed to make partition pur-
,.suant to an awar^, and executed deeds for that purpose. In
the deed to the plaintiff, a tract assigned to him was omitted
by mistake. The parties took possession according to their
deeds. Held, the mistake should be rectified, and a spe-
cific performance of the contract decreed as to the tract
omitted.'*
42. E. (carrying on business under the name of W. Fac-
tory,) being indebted, proposed to his creditors in a writing,
signed by his agent, as follows : " A deed of trust of all the
property to be executed for the payment of such notes
already given by said Factory," &c., as may be renewed for
twelve months, payable afterwards in monthly payments.
This proposal was accompanied by another paper, headed.
State of Warren Factory, and included in its recitals, among
■other property, " Factory Pratt Street." It was accepted by
some of his creditors, and a deed of trust executed. It
appeared that the Factory Pratt Street, was situated on
two lots of ground, which belonged as well to E. as his
brothers and sisters ; but the deed of trust, in which the
brothers and sisters united, by mistake of all parties omitted
■one of those lots. Before the discovery of this mistake,
two creditors obtained judgments at law, one before, and
one after, the trustees took possession. Bill to reform the
deed, add the omitted lot, and enjoin the creditors from pro-
1 Eob V. Butterwick, 2 Price, 190. ^ Tilton v. Tilton, 9 N. Hamp. 385.
(a) See Mistake.
CH. I.] NATU^ OF THE CONTRACT FOR A SALE, ETC, 11
ceeding at law against that lot. Held, that the former
creditor, not having notice of the original contract, might
proceed at law; but the other, having received a dividend
from the trustees, thereby became an equitable party to the
deed, and could not enforce his judgment, in opposition to
the agreement on which the deed was founded. Upon these
principles, the deed was decreed to be reformed, in con-
formity with the original contract.^
43. But Equity will not interpose to amend a written
instrument, without the clearest and most satisfactory proof
of the mistake, and of the real agreement, especially where
the mistake is denied in the answer.^ Thus the defendant, in:
writing, agreed to convey to the plaintiff, on payment of a
certain sum, " a lot of land situated in the town of Wind-
ham." The plaintiff, alleging that there was a mistake in the
contract, and that the whole of a particular lot was intended
to be embraced by it, though a part of the lot lay in the town
of Westbrook, brought his bill to have the mistake corrected,
and specific performance decreed of the contract as amended.
Held, parol evidence was inadmissible to vary the written
contract.^ So, a biU to rectify a conveyance, alleged to have
passed by mistake more than was included in a previous
agreement, was dismissed ; the conveyance reciting a more
extended agreement, the parties being dead, the agent of the
grantor having acknowledged the extended agreement, and
the agent of the grantee, who could have given a personal
account of the transaction, not having been examined by
the plaintiff.*
44. A marriage settlement recited an agreement to convey
a certain estate, save and except the lands of Ballyhenry
and its sub-denominations, but the operative part of the deed
purported to convey by name, as a separate denomination,
the lands of Killahan, which, it was proved, were reputed a
sub-denomination of Ballyhenry. Held, that there was not
' Moale V. Buchanan, 11 Gill. & J. " Elder v. Elder, 1 Eairf. 80.
314. 4 Beaumont v.Bramley, Turn. &Iluss..
2 Lyman v. United Ins. Co. 2 Johns. 41.
Ch. 630.
12 LAW OF VENDORS AND PURCHAs'BlS. [CH. I.
sufficient evidence of mistake to justify the Court in striking
Killahan out of the settlement.^
45. So, where a contract is entered into for the sale of
an estate, and, under general v^ords, property passes which
the vendor insists he did not intend to sell, but the purchaser
by his answer denies, or does not admit, that it was not in
his contemplation at the time of the purchase ; it seems, the
vendor cannot sustain a bill against the purchaser, to have
the contract rectified on the ground of mistake, and carried
into- execution. And it is. even doubted, whether, consistently
with the Statute of Frauds, the Court can entertain such
bill, even where the mistake is admitted by the answer.^
46. So, a purchaser cannot claim premises which, though
answering the general description in the advertisement of
sale, were not in the contemplation of either party at the
time of the purchase or conveyance ; the purchaser being
referred to a more particular description, which did not in-
clude them ; and the surrender having been made according
to that, and from his own instructions. If one party thought
he had purchased bond fide part of an estate, which the other
thought he had not sold, it is a ground to set aside the con-
tract. If both understood the whole was to be conveyed, it
must ; otherwise, if neither understood so.^
47. It has been doubted, whether the Court would enter-
tain a suit to reform a mistake, for the discovfty of matter
constituting a new case, after the subject had been adjudi-
cated upon and disposed of by a foreign tribunal of com-
petent jurisdiction, when it did not appear that the new
matter might not stiU be made available before such tri-
bunal.*
48. Parol evidence is not admissible, at law, to show a mis-
take in the conveyance of land sold, as compared with the
agreement of sale.
'Alexander v. Ciosbie, 1 Lloy. & * Calverley w. Williams, 1 Ves. 211.
Goo. 14.5. * Marquis of Breadalbane v. Marquis
2 Attorney-General and Commission- of Chandos, 2 M3I. & Cra. 711.
era, &c. v. Sitwell, 1 You. & Coll. 559.
CH. I.] WATUEB OF THE CONTRACT FOR A SALE, ETC. 13
49. Agreement, in writing, to sell and convey land, at £9
per acre. A deed was accordingly executed, expressing the
number of acres, and the purchase-money paid at that rate.
Held, no parol evidence was admissible, of a mistake in the
quantity ; and that an action did not lie for money had and
received, to recover back the amount alleged to be overpaid.^
' Howes V. Barker, 3 Johns. 506.
14
LAW OP VENDORS AND PUEOHASERS.
[CH. II.
CHAPTER II.
WHAT CONSTITUTES AN AflRBEMENT EOR THE SALE AND PUR-
CHASE OP LANDS. DISTINCTION BETWEEN A, CONTRACT AND A
MERE PROPOSAL, OPFER, ETC.
1. An oifer does not bind, till ac-
cepted.
2. Contract by correspondence.
8. Contract by several connected pa-
pers.
1. Having considered the distinction between an executory
sale, and an executed conveyance, of land, and the w^ell-
settled qualifications of that distinction in Courts of Equity,
another somewhat analogous difTerence requires to be noticed,
applicable as well to a sale of land as of other property*;
to wit, that between a completed bargain, assented to by both
parties, and a mere proposal, negotiation, or treaty. Upon
this point it is held, that a contract wiU not be specifically
executed, unless upon a fair interpretation importing a con-
cluded agreement ; and not leaving it doubtful whether the
transaction was more than a treaty.^ So, an offer of a bar-
gain imposes no obligation, unless accepted according to its
terms, without qualification, or unless such qualification be
agreed to.^ So, where A. signs a writing, by which he de-
clares he will sell to B. his house, &c., at a certain price, &c. ;
this is a mere proposition, and not a contract.^ So, where
a material ingredient in the terms of a contract has been
omitted. Equity, considering it as only resting in treaty, will
not decree a specific execution. Thus, where a tenant in
possession, under an article impeached by his landlord, pro-
posed to pay an increased rent ; a bill by the landlord for
1 StrafiFord v. Bosworth, 2 Ves. & B. 225, 228 ; Holland v. Eyre, 2 Sim. & St.
341 i Haddleston v. Briscoe, 11 Ves. 583. 194.
2 Eliason v. Henshaw, 4 Wheaton, ^ Tucker v. Woods, 12 Johns. 190.
CH. II.] WHAT CONSTITUTES AN AGKBEMBNT. 16
specific execution of the proposal was dismissed ; the period,
when the increased rent should commence, not being agreed
on.' So, where A. sold land to B., and, on measurement
after the sale, it was found that B. owned a part of the land
sold, and A. offered, if B. would not sue him, to pay him
back a part of the purchase-money, and there was no evi-
dence of B.'s accepting the offer ; held, B. could not recover
on A.'s promise.2 So, a proposition in writing to seU land,
at a certain price, if taken within thirty days, is a continuing
offer, \#iich may be retracted at any time ; but if, not being
retracted, it is accepted within the time, such offer and
acceptance constitute a valid contract, the specific perform-
ance of which may be enforced by a bill in equity.^
2. But an agreement for the sale of an estate, the result
of a correspondence by letters, may be good within the Stat-
ute of Frauds.* (See Statute of Frauds.) Thus, the de-
fendant authorized one A. to propose a sale of land to the
plaintiff, to be accepted within a week. Within the time,
the plaintiff by letter to A. accepted the offer, but for some
time A. did not inform the defendant. Held, there was a
binding contract.^ So the defendant, by letters, stated certain
terms on which the plaintiff might make a road across his
land, and he (the defendant) would convey the land to him.
The plaintiff, with the knowledge of the defendant, began
the work. Held, he thereby became bound ; that this was a
valid consideration for the defendant's agreement ; that the
defendant could not shut up the road, after the plaintiff had
performed his part of the contract ; and that he should be
restrained by perpetual injunction from obstructing it ; but
without prejudice to any claim for damages against the
plaiatiff.^
3. On the 18th of April, 1834, A., iif writing, offered to sell
B. certain land, upon certain terms, and allowed three months
1 Lord Ormond u. Anderson, 2 Ball * Huddleston v. Briscoe, 1 1 Ves. 583.
& Beat. 363. 5 -Wright w. Bigg. 21 Eng. Law &Eq.
2 Burns v. Allen, 11 Ired. 25. 591.
8 Bost. & M. Railroad v. Bartlett, 3 '^ '3.T. &c. u. Pixley, 19 Barb. 428.
Cush. 224.
16 LAW OP VENDORS AND PURCHASERS. [OH. II.
to decide upon the proposition. On the 26th of June, B.
wrote to A., stating that C, the father of B., accepted the
proposition, and signed the letter, "B., for his father, C."
On the back of a copy of this letter, on the 19th of July, A.
wrote and executed a covenant to convey the land to B.,
" in consideration of the within," and " when he shall have
fulfilled on his part the conditions of the said agreement,
a copy whereof is hereto annexed." This agreement was
delivered to B., who made payments with money advanced
by C, and took receipts as for money paid by C. %. took
possession of and cultivated the land, C. residing with him
till his death. C. died, and B. paid the balance of t^e pur-
chase-money. The other heirs of C. then filed their bill
against A. and B., alleging that the name of B. had been
inserted by mistake in the contract of July 19, instead of that
of C, and praying for a partition among the heirs of C,
an accouBt of rents and profits against B., &c. B., in his
answer, under oath, denied the mistake, and averred that the
money advanced for the land had been loaned to him by C,
to secure the payment of which, C. was to have a lien upon
the land. Held, the averment in the answer, as to the loan,
was new matter, and, being unsupported by proof, was not
evidence; that the letter of June 26 showed a purchase by
C, and could not be explained by parol, no mistake being
pretended ; that the written instruments above named, as
well as the parol testimony, showed that the name of B. was
inserted by mistake, in the agreement of July 19, instead of
that of C. ; and that a decree was proper, ordering a partition
among the heirs of C, and directing that B. should account
for the rents and profits, be paid for the lasting improve-
meiits made by him, and refunded the purchase-money ^aid
by him since the death of C, with interest, and that A.
should convey to the heirs, according to their respective
interests.'
4. Where letters are stated as the agreement, no testimony
1 Lynn v. Lynn, 5 Gilman, 602.
CH. II.] WHAT CONSTITUTES AN AGKEEMENT. 17
aliunde is admissible ; otherwise, where they are stated as
evidence of the agreement only.^
5. A contract, by letter, may arise, and be specifically
enfo];eed, if the amount and nature of the consideration, to
be paid on one side and received on the other, may be ascer-
tained, and a reasonable description is given of the subject-
matter. The Court need not be satisfied, that the parties
actually meant the same thing, provided a clear assent be
given to a certain proposition, arising de facto, out of the
terms of the correspondence.^
6. But the Court will not decree specific performance of
an agreement for a lease by letters, where there is no definite
term expressed, nor any reference, aliunde, by which it might
be ascertained.^
7. The letters, from which a contract arises, may be written
by the agents of the respective parties. Thus, an agent,
ordered to buy a lease of a house for a certain sum, and sign
an agreement, wrote to the agent of the owner, offering that
sum. The owner wrote across this letter, " I agree to sell
my house upon these terms ; " and thereupon his agent wrote
to the other agent, " My employer will take your offer,"
" make an appointment to meet to draw the agreements."
The next day, the agent of the purchaser said, that his prin-
cipal had bargained for another house. Held, the letters
constituted a contract to buy, and specific performance was
decreed, with costs.*
8. Although mere proposals or negotiations are always
to be distinguished from a binding contract ; for the purpose
of determining the existence and terms of a contract of sale
and purchase, various writings, connected with and referring
to each other, may be taken into consideration ; though
neither by itself would constitute a contract.
9. The defendant, by articles, contracted to sell the plaintiff"
400 acres of land, and allowance out of two tracts claimed
' Birce v. Bletchley, 6 Madd. 17. See ^ Gordon v. Trevelyan, 1 Price, 64.
Huddleston v. Briscoe, U Ves. 5S3. * Cowley v. Watts, 17 Eng. Law &
^ Kennedy v. Lee, 3 Mer. 441. Eq. 147.
2*
18 LAW OF VENDORS AND PURCHASERS. [CH. II.
by the defendant, on two surveys in the names of A. and B.,
being the 400 acres surveyed on a warrant in the "name of
C, for $1,000. Subsequently, the defendant conveyed the
latter tract, containing 430 acres and ten perches and allow-
ance, and, on the same day, the plaintiff covenanted, that if
this survey should include over 400 acres and allowance, he
would pay $13 per acre for the excess, and the defendant
gave the plaintiff a bond for f 3 per acre for every acre
included in the C. survey, which might be recovered in two
pending actions. In these actions, 52 acres and 55 perches
and allowance were recovered from the defendant ; leaving,
however, of this survey, 400 acres and 72 perches. In an
action on the bond ; held, the bond, covenant, and deed were
to be construed together, and, as the plaintiff held under his
deed over 400 acres and allowance, the action did not lie.^
' Curamings v. Antes, 19 Penn. 287.
CH. ni.]
CONSIDERATION. PRICE.
19
CHAPTER III.
CONSIDERATION OE A CONTRACT OE SALE. — PRICE.
1 . Necessity of a consideration.
3. Inadequacy of consideration.
4. Illegality of consideration.
5. Nature of consideration.
6. Need not be expressed.
11. Price; construction of the agree-
ment for.
18. Sufficiency of security for.
19. Mutual rights and duties of the
parties in connection with the price.
Offer to perform, tender of deed, &c.
47. To whom the price shall be paid ;
yarties jointli) interested.
1. Contracts for the sale and purchase of lands must, in
general, like others, be founded upon some valuable consider-
ation. This wiU be briefly noticed at present, as one of the
elements of the contract. "We shall have occasion, hereafter,
in another connection, to refer, more at length, to the want,
inadequacy, or failure of consideration, as one of the circum-
stances which render such contract void. (See Fraud, Re-
scinding:)
2. Thus, upon a bill in equity for specific performance
against a vendee of land ; it appeared that a part only of
the vendors, the plaintiifs, had become bound to convey a
good title. Held, the contract should not be enforced, for
want of mutuality.^ So, an agreement, whereby the pur-
chaser of a plantation binds himself to transfer one half
thereof to his son-in-law, as soon as the latter shall pay for
one half of the cost, either with his own private means, or
with one half of the profits of the plantation ; is void for
want of mutuality, and will not be enforced by a Court of
Equity ; especially when the son-in-law, fifteen years after
the agreement, expresses his abandonment of all his rights
by a written release, and does not bring his bill in equity
1 Bronson v. Cahill, 4 McL. 19.
20 LAW OF TBNDOKS AND PXIRCHASBES. [CH. III.
until twenty-seven years have elapsed from the date of
the agreement, without any performance or oifer of per-
formance on his part.i So, a promise made by one, who
enters public lands, to pay a prior occupant for improvements
made thereon by him, is without consideration and void.^
So, there is neither a legal nor moral obligation, on the owner
of land, to pay for the work and labor done upon it, by one
who has entered without his consent, or any color of right,
and held possession against him. Hence, a promise thus to
pay is without consideration and void.^ So, a contract for
the sale of land will not be enforced, where it has been lost,
without proof of the identity of the land claimed and that
referred to, and of the amount and payment of the consid-
eration.*
3. Although entire want of consideration avoids the contract
in question, it may be stated, as the general rule, that inade-
quacy of consideration is no ground for resisting the execution
of a contract to sell, the vendor not being under any incapac-
ity or deficiency of judgment, or led by accident or design into
a misapprehension of the value.^ But execution is some-
times decreed without costs.^ In case of apparent frauds or
if the situation of the parties is so unequal, as to give one
of them an opportunity of making his own terms ; equity
will not lend its aid to execute the contract, but leave the
party to his remedy at law.^ So, where the inadequacy of
price, in a contract to sell or convey, is so great as to be
conclusive evidence of fraud, as where it would shock the
moral sense of an indifferent man, Chajicery should not carry
it into effect.^
4. Illegality of consideration avoids the contract. Thus,
where property has been conveyed, for the purpose of pro-
tecting it from the creditors of the grantor, no obligation to
1 Dorsey u.Packwood, 12 How. TJ. S. Wormack w.Rogers, 9 Geo. 60; M'Artee
126. V. Engart, 13 111. 242 ; Mann v. Bet-
■■i McFarland v. Mathis, 5 Eng. 560. terly, 21 Verm. 326.
3 Frear v. Hardenbergh, 5 Johns. 272. <• Burrowes v. Locke, 10 Ves. 470.
* Madeira U.Hopkins, 12 B.Mon. 595. 7 Potter r. Everitt, 7 Ired. Eq. 152;
6 Western v. Russell, 3 Ves. & B. Powers v. Hale, 5 Eost. 145.
187 ; Burrowes v. Locke, 10 Ves. 470 ; ' Seymour v. Delancey, 3 Cow. 445.
CH. III.J CONSIDERATION. — PRICE. 21
reconvey, growing out of the transaction, or forming a part
of it, can either be itself enforced, or form the consideration
of an enforceable promise or covenant, written or parol.'
5. The consideration need not be a cash payment. Thus,
a note for the purchase-money is sufficient consideration for
a bond to convey.^ So, if a vendee of land covenant to
erect a brick building thereon within a certain time, this is a
valid consideration for the' covenant to sell.^ So, if the only
condition of a bond for title is, that titles shall be made as
soon as a patent from the government is procured ; the pre-
sumption from its face is, that the purchase-money has been
paid ; and it is no Mbtice to an assignee to the contrary.*
6. It is -not necessary to constitute a valid consideration
for a contract to sell land, that the purchaser should expressly
stipulate to buy or pay for it.
7. Agreement, that one party wiU sell lands to another,
and convey them on a certain day. The purchase-money
was paid down, the vendor agreeing, at the end of a year,
upon thirty days' notice, to refund it with interest. The
agreement being signed by both parties, held, there was
sufficient consideration, though- the purchaser did not ex-
pressly contract to do any thing ; that the purchase and
payment were a sufficient consideration for the seller's en-
gagement to convey or repay the money ; that the agreement
was substantially an alternative one, either to sell and pur-
chase land, or to borrow and lend money, at the election of
the purchaser at the end of the year, and, upon giving
notice, he might recover back the money; and that, if he
should receive a conveyance before calling for the money, he
could not afterwards recover the money, without reconveying
the land.^
8. The plaintiff, by a contract inter partes, and signed by
both, agreed to sell to the defendant his farm in Florence,
Oneida County, for $1,700 in cash, and 240 acres of land
1 Ford V. Lewis, 10 B. Mon. 127. * Bums v. Taylor, 23 Ala. 255.
^ Whiteside v. Jennings, 19 Ala. 784. ^ Eno v. Woodworth, 4 Comst. 249-
' Brewer v. Bessinger, 25 Miss. 86.
22 LAW OF VENDORS AND PURCHASERS. [OH. III.
owned by the defendant, in Lake pounty, Blinois, upon
certain terms and with certain reservations. A penalty of
|500 was provided for breach of the contract. On the day
appointed, the plaintiff, tendered a deed, and demanded the
money and a ccftiveyance of the land, but the defendant did
not thus pay or convey, although the plaintiff was ready
to perform on his part. Held, in an action for the price,
and also for specific performance, that although the defend-
ant did not expressly agree to buy or pay for the farm,
such agreernent was to be implied ; that the measure of
damages was the price to be paid ; that the $500 was not
designed as stipulated damages, but as€t penalty to enforce
performance, and therefore was no bar to this* suit; and
that the contract was sufficiently definite to be specifically
enforced.^
9. A bond was made, in Alabama, by one member of a
firm to another, expressing no consideration, and conditioned
to give a quitclaita deed of certain land in two years. The
same day, the parties entered into an agreement, by which
the obligee covenanted to use his best endeavors for two
years to collect the partnership debts,' and pay their liabilities.
Held, a consideration for the bond was implied, and, as
neither instrument referred to the other, and the two related
to different subjects, they could not be treated as parts of
one transaction, nor the covenant of the obligee treated as
the consideration of the bond.^
10. A declaration alleged a written agreement, that the
plaintiff would let, and one A. would take, a house, at an
annual rent, and that the defendant thereby agreed to see
the rent paid by A. or pay it for him ; that' the plaintiff
let the house, and A. became tenant, on the terms of the
agreement ; and that neither A. nor the defendant paid the
rent. Held, on demurrer, the consideration for defendant's
promise was the letting of the house, and this sufficiently
appeared in the agreement.'
1, Richards v. Edick, 17 Barb. 260, ^ Caballero v. Slater, 25 Eng. Law &
2 Holman v. Crane, 16 Ala. 570. Eq. 285.
CH. III.] CONSIDERATION. — PRICE. 23
11. In this connection, may be considered the subject of a
purchaser's liability to pay the agreed price, and the defences
sometimes made against actions therefor, (a)
12. The terms of the contract may be such as to render
this liability alternative or contingent ; or, as in the following
case, to give a right of election to the vendor alone, not to
the vendee, (b) Thus, a purchaser of la ntLp aid part of the
(a) The question sometimes arises, ■whether the sum stipulated to be paid
by a purchaser is to be viewed as a penalty for violation of the contract,
or as part of the price, or as liquidated damages. Thus, ■where a purchaser
covenanted, in consideration of having the property conveyed to him for a
certain sum, that he would, by a certain day, erect two brick houses of
specified dimensions, or, in default thereof, pay to the grantor, on demand,
the sum of $4,000 ; held, the sum specified was not a penalty, but part of
the price ; and, on failure to erect the houses, the covenantee was entitled
to recover it as liquidated damages, not merely the actual damages ststained.
Pearson v. Williams, 26 Wendell, 630.
So, where A., in consideration of $500, paid in full, for fifty acres of land,
covenanted to convey the land to B. by a good and sufiicient deed, on or
before a certain day, or, in lieu thereof, to pay him $800 ; held, B. was
entitled to recover that sum on a breach of the covenant, with interest ; the
same being in the nature of liquidated damages, and not a penalty. Slosson
V. Beadle, 7 Johns. 72.
But a purchaser of land, who has contracted to pay a specific sum as the
price, cannot be relieved from the payment by the tender of a less sum,
also agreed upon in the contract as stipulated damages, to be paid in case of
non-performance on his part. Ayres v. Pease, 12 Wendell, 393.
(6) The price to be paid is sometimes left to arbitration. But specific
performance cannot be decreed, of an agreement to sell at a price to be
fixed by arbitrators (already appointed to settle other matters in dispute
between the parties) ; where the defendant (the vendor) had refused to
execute the arbitration bond, and it was therefore uncertain that any award
would ever be made. Wilks v. Davis, 3 Mer. 507.
Nor of an agreement to sell, at a price to be settled by arbitrators named
by the parties, if no award has been made. But, if the parties are agreed
as to a valuation, but have not appointed any persons to make it, the Court
will itself interfere, so as to ascertain the value, and direct specific perform-
ance. Daly V. Duggan, 1 Ir. Eq. Eep.-311.
The Court will not entertain a bill, for specific performance of an
24 LAW OF VENDORS AND PURCHASERS. [CH. II.
price, and gave notes for the balance, payable respectively in
one, two, three, and four years, the vendor agreeing, upon pay-
ment of the notes as they should fall due, to convey the land.
But, if the purchaser should refuse or neglect, upon request,
to pay either of the notes at maturity, the obligation to
convey should become void, and all previous payments be
retained as liquidated damages for breach of the contract.
Held, the stipulSRn last-named did not excuse the purchaser
from payment of the notes, if qlaimed by the vendor.^
13. So the contract may be such, as to give the vendee a
similar election. Thus, on the purchase of certain real estate,
part of the purchase-money was paid, and promissory notes,
payable at specified times with interest, were given for the
residue. The vendor gave the vendee a title bond, the con-
dition of which stated, that it was agreed between the par-
ties, that if said notes and interest were not paid at maturity,
' Cartwright v. Gardner, 5 Cush. 273.
agreement to refer to arbitration, nor substitute the master for the arbitra-
tors. Agar V. Macklew, 2 Sim. & Stu. 418.
But where there is a contract to sell at a valuation by persons named, the
Court will compel the vendor to permit the valuation. Morse v. Merest, 6
Madd. 26.
The time of valuation is of the essence of the contract ; but the defend-
ant (vendor) cannot take advantage of it, if he improperly occasion the delay.
Morse v. Merest, 6 Madd. 26.
Where, in an agreement for the sale of land, it is stipulated that the
price shall be fixed by an arbitrator, and the agreement be made a rule of
Court ; the award being published, and the agreement made a rule of court,
the vendor cannot have an attachment for the price. His only remedy is
by action on the articles. In re Lee and Hemingway, 3 Nev. & Man. 860.
Contract for 'Sale, at a price to be fixed by arbitrators within a certain
time, or, if they should not agree to make their award within the time, by
an umpire, also within a limited time. Held, as the contract required
delivery of the award in writing to each party ; though the consequential
acts, execution of conveyances, &c., might be done by representatives ; the
contract, in reference to the terms to be fixed by the award, was personal
to the parties ; and, one of them having died before the award, specific per-
formance was refused. Blundell v. Brettargh, 17 Ves. 232.
CH. III.] CONSIDERATION. — PRICE. 25
the bond should be voidj and the money paid, forfeited to
the vendor ; or if, on payment, as aforesaid, the vendor or his
assigns should make a warranty deed in fee simple to the
vendee or his assigns, then the bond to be void. Held, the
vendee was not bound to pay the notes, but might abandon
the contract, and forfeit the money paid.^
14. It has been hel4, that parol evidence is admissible,
that an additional sum was to be paid for land conveyed,
upon a certain contingency, which has occurred.^
15. A contract to purchase a certain tract of land described
by boundaries, supposed to contain 242 acres, at so much
per acre, is not a contract to pay for 242 acres at that rate ;
but for so many acres as there may be in the tract.^
16. Where, by the terms of a contract, dated December
24, for the sale and purchase of land, the payments were to
be made as follows : " flOO on the date hereof, f 100 by the
1st of May next, and the residue to be paid in annual pay-
ments of $100 each, with interest on the whole sums unpaid
from the date hereof; " held, the " residue " was payable in
annual payments computed from the 1st of May, and not
from the date of the contract.*
17. The plaintiff sold land to A. by written agreement,.
and A. assigned his interest to the defendant, who took pos-
session. The plaintiff and defendant subsequently executed
an agreement, settling all disputes about quantity and bound-
aries, the plaintiff to pay $20, and the agreement not to
affect claims between the plaintiff and defendant, or A. and
the defendant. In this action for the balance of the price
the defendant sets up the latter agreement. The plaintiff
then offered parol evidence, which was admitted, that the
agreement was not intended to release the purchase-money.
Held, such was not its legal effect, and therefore the admis-
sion of the parol evidence was no ground for reversing the
judgment.^
' Peterson v. Dickey, 8 Blackf. 427. ' Ayres v. Hayes, 13 Mis. 252.
' Nickerson v. Saunders, 36 Maine, * Jadd v. Ensign, 6 Barb. 258.
413. ' McMahan v. Davis, 19 Penn. 354.
3
26 LAW OF VBNDOKS AND PUECHASEKS. [CH. HI.
18. Where the price of land is to be paid otherwise than
in money, questions may arise as to the respective rights and
duties of the parties, in regard to the sufficiency of the pro-
posed security. Thus, it is held, that a vendor is not bound
to receive indorsed notes, unless they are not only good, but
there is no reasonable cause to reject them. Declaration, that
by the contract the purchaser was to execute hi§ notes for
the purchase-mpney, with approved securities. Plea, " that
the securities offered by the defendant were good and suf-
ficient to secuje the purchase-money of said lands." Held
bad, on demurrer, as it did not also aver, " that there was no
reasonable cause for rejecting them." ^
19. In this connection may be considered the important
questions, as to the liability of the respective parties, with
reference to the price, so far as that of each depends upon
a performance by the other.
20. In general, the plaintiff, who seeks for the specific
performance of an agreement, must show that he has per-
formed, or offered to perform, on his part, the acts which
formed the consideration of the alleged undertaking on the
part of the defendant.^ Thus, a vendor is not bound to
convey, or part with his title, until the purchase-money is
paid.3 So, if by agreement, the making of the title and
payment of the purchase-money are to be concurrent acts,
neither party can sustain a suit on the agreement, without
having first performed or offered to perform his part of it.*
So, where a vendor has no title, the contract is a nuUity, and
the vendee may recover back the purchase-money paid.^
So, upon a bond to convey, on payment of the purchase-
money, no action lies at law or in equity, without payment
or tender thereof.^
21. But, upon tendering a deed, and offering to perform
' Adams v. McMillan, 7 Port. 73. Eq. 573; Tucker v. Woods, 12 Johns.
2 Colson V. Thompson, 2 Wheaton, 190.
336, 341. • * Shirley v. Shirley, 7 Blackf. 452.
" Ishmael v. Parker, 13 III. 324 ; * pjpkin v. James, 1 Humph. 325.
Manley v. Cremonini, 11 Eng. Law & * Browning w. Clymer, 1 Cart. 579.
CH. m.] CONSIDERATION. PRICE. 27
his agreement, the vendor may recover the purchase-money
at law.'
22. Sale of a tract of land, containing 181 acres, at $45
per acre, with an agreement to deduct the price of such part
of which peaceable possession could not be given. Subse-
quently, a deed was given, without covenants, describing
the land by metes and bounds, and as containing 181 acres,
more or less, and possession taken. Held, the vendee was
bound for the whole price, though he should give up part of
the land.^
23. Unsealed agreement, by which A., in consideration of
$75 paid by B., and $15 to be paid by C, engaged to con-
vey certain land on a certain day to B. C. not having paid
the $15, held, A. was not bound to convey.^
24. Land was sold at auction to the defendant, who sub-
scribed the terms of sale ; which were, that a certain part of
the purchase-money should be paid within seventy-five hours ;
that a deed should be given by the vendor, with warranty of
title except as to the quit rents in such lots as should be desig-
nated ; that the purchaser should execute a bond and mort-
gage for the residue of the purchase-money ; and that the
deed, bond, and mortgage, should bear date on the day of
the sale. At the time of sale the premises were mortgaged,
and the mortgage had been previously registered, and was
still unsatisfied. In an action of assumpsit by the vendor,
against the purchaser, it was held, that giving the deed, bond
and mortgage were to be simultaneous acts; that, as the
plaintiff was not in a situation to convey a title, the defend-
ant was not bound to perform the agreement on his part ;
that the meaning of the agreement was not merely that the
plaintiff should give a deed with warranty, but that he was
able to convey ai^ indefeasible title ; and that although the
mortgage was registered, and the defendant therefore had
notice of it, yet that circumstance was immaterial ; for, by
1 Richards v. Edick, 17 Barb. 260. ' Gilman v. Schwartz, 36 Maine, 541.
2 Smith V. Chaney, 4 Md. Ch. 246.
28 LAW OP VENDORS AND PTJRCHASERS. [CH. HI.
the terms of sale, the quit-rents were the only incumbrance
on the land. Held, also, that if the vendee has, according to
the terms of the sale, paid part of the consideration-money,
and the vendor is unable to convey a good title, the vendee
may disaffirm the contract, and recover back the moneyA
25. In August, 1846, a father executed a bond to his son,
to convey to him certain real and personal property, provided
the son, jiving in another State, should return with his family
in the spring or summer of 1847, purposely to provide for
and maintain for life the father, his wife and daughter, and
give bond therefor, and to pay the father's debts. The son
did not return in 1847, and, in the fall of that year, the father,
standing in need, conveyed all his property to the plaintiffs,
they giving bond to provide for him and his family, while
they should live alone. The plaintiffs had notice of the
bond to the son, and it was understood that the property
was to be surrendered to him on his return. In the fall of
1849, the son returned with his family, and, early in 1850, the
father notified the plaintiffs, offered to surrender their bond,
and demanded a transfer to the son. _ Two days after^ the
son executed the bond agreed upon, and the father conveyed
the land to him. He entered, and the plaintiffs bring eject-
ment. Held, the plaintiffs had acquired the legal title, and,
in order to obtain it, the son must show a compliance with
his bond ; that, if the plaintiffs had performed its conditions,
in whole or in part, for him, on the faith of their title, they
were not bound to convey, tiU he compensated them ; not
including, however, any advances on accounts, except those
made on the strength of the title.^
26. In a contract for the sale of lands^ it was agreed that
the vendor should redeem a part which had been sold for
taxes ; that, if the vendee should redeem, the sum paid by
him should be allowed on the contract ; and that, if the land
could not be redeemed, a deduction should be made from
the contract. Held, this covenant was for the benefit of the
1 Judson V. Wass, 11 Johns. 525. ^ Adams v. Smith, 19 Penn. 182.
CH. in.] CONSIDERATION. — ^PEICB. 29
vendee, for the purpose of removing an incumbrance, and
looked solely to the title which he was to receive ; that the
vendor was bound to redeem, and, the title having been lost
by his neglect, the purchaser was not bound to pay for that
part of the land, nor to take a deed including it. Also, that
the vendee, having voluntarily paid the purchase-money for
the whole of the land, and demanded and received a deed
for the whole, could not maintain an action upon the con-
tract, to recover the value of the part sold for taxes, his only
remedy being upon the covenants in his deed.^
27. Although, in general, the purchaser shall not recover
possession, till he has paid or tendered the purchase-money ;
it has been questioned, whether this must be done previous
to the commencement of an action. And it is not requi-
site, if the vendor be the executor of the vendee, and retain
effects equivalent to the purchase-money.^ So, the above
rule may be qualified by the special terms of the agreement.
Thus a bond for title was given, reciting, that in considera-
tion of a certain sum, secured by note, payable in twelve
months, the obligor had sold certain land ; and conditioned
to give a good warranty title-deed "when the purchase-
money should be paid, or when a patent for the land should
be obtained from the government." In an action upon the
note, held, a conveyance was not a condition precedent to
payment of the price.^ So, although where the complainant,
who seeks specific performance of an agreement for the sale
of land, has not performed his part of the contract, the Court
will not decree specific performance, especially if any injury
has thereby resulted to the defendant ; yet, the defendant
having taken possession, paid part of the purchase-money,
and executed the agreement in part, the Court will consider
him as having waived his objections, and wiU decree execu-
tion. It will, however, extend the time of payment, vary
the security to be given, and regulate the payment of in-
1 Bull V. Willard, 9 Barb. 641. = Perry v. Rice, 10 Tex. 367.
2 Smith V. Patton, 1 Serg. & R. 80.
3*
30 LAW OF VENDORS AND PURCHASERS. [CH. III.
terest, according to the justice of the case, under the circum-
stances.^
28. The defendant covenanted to convey to the plaintiff,
on condition that the plaintiff paid him $500 by instalments.
The plaintiff entered, and paid the first, and offered to pay
the second if the defendant would give him security against
a mortgage on the premises, existing at the time of the,
purchase. The defendant refused the security, but offered
to receive the money, and perform the contract. The plaintiff
refused to pay any more money, and the defendant brought
an ejectment, and ejected him. The plaintiff then brought
this action to recover back the money. Held, the plaintiff
had no right to rescind and recover back the money, there
being no fraud on the part of defendant, and the plaintiff
not having entitled himself to demand a deed.^
29. An agreement between A. and B., that B. shall pay A.
a sum of money for his land on a particular day, amounts
to a covenant by A. to convey ; the term agreed being the
word of both parties ; but it is an independent covenant,
and A. may bring an action for the money before any con-
veyance.^ So, where the agreement is, to convey in fee
simple, a judgment against the vendor will not, at law,
authorize the vendee to rescind ; inasmuch as a conveyance
without covenants would satisfy such an agreement.*
30. Marriage articles recited that A., the father of the in-
tended husband, had agreed, in case the marriage should
take effect, to pay ,£200, and also to settle the lands of T., as
thereinafter mentioned ; and that B-., the father of the intended
wife, who was an infant, had agreed to convey the lands of
G., as thereinafter mentioned, and also to pay to the husband
£100 upon the marriage. It was then covenanted by A.,
that, in case the marriage should take effect, and B. should,
as soon as the intended wife came of age, settle the lands of
G. to the uses thereinafter expressed, he. A., would settle the
' Ramsay v. Brailsford, 2 Desans. 583. ^ Pordage v. Cole, 1 Saunders, 320.
-^ Ellis V. Hoskins, 14 Johns. 363. ■• Fuller v. Hubbard, 6 Conn. 13.
CH. in.] CONSIDERATION. — PRICE. 31
lands of T. to his own use until the marriage, and from and
after the marriage to his own use for life, with remainder
upon certain trusts for the benefit of the husband and wife,
and the issue of the marriage ; and it was covenanted by B.
that in case the marriage should take effect, and A. should
perform his covenant, he, B., would settle the lands of G. to
.the use of himself for life, with remainder upon certain
trusts for the benefit of the husband and wife, and issue of
the marriage. The marriage took effect, and the wife came
of age, but B. failed to settle the lands of G. Held, never-
theless, that A. was bound to perform the covenant on his
part.'
31. A. sold to B. his equitable estate in one fourth of
certain premises, subject to a mortgage of $1,500, and
authorized and requested the trustee to convey the same to
B. B. agreed to assume the payment of one fourth of the
mortgage, to save A. harmless therefrom, and to pay him the
sum of $625. It turned out that there was a mortgage of
$1,600. Held, the agreement was an executed one, and
nothing further was necessary to be done by the vendor, to
enable him to sue for the sum so agreed to be paid ; that, no
time being limited, said sum was payable immediately, with
interest from the date of the instrument ; and that the vari-
ance in the amount of the mortgage did not avoid the
contract.^ ^
- 32. Bond for a quitclaim deed of land on a certain day,
on payment of a certain price. At the day, the obligee
offered to pay the money, having it within his reach and
control, though not actually in hand, but made no tender.
The obligor insisted that the money should be paid before
giving the deed, and refused to convey simultaneously with
the payment. Held, the obligee was entitled in equity to a
decree for a quitclaim deed free from incumbrances, created
by the obligor since the date of the bond.^
1 Lloyd V. Lloyd, 2 Myl. & Cra. 192. s Parker v. Perkins, 8 Cush. 318.
" Eogers v, Colt, 1 New Jersey, 18.
32 LAW OF VENDORS AND PURCHASERS. [OH. ni.
33. Upon the question, what constitutes a performance by
one party, enabling him to enforce an execution by the Other ;
the general principle is, that it must be a substantial compli-
ance with the contract, as reasonably construed with refer-
ence to the rights and interests of both parties. Thus, where
one of the considerations of an agreement to convey land
was, that the purchaser should reside thereon, and he did ,
reside thereon two years, and then left; held, this was a
sufficient performance on his part.^ So, an agreement for
the conveyance of land provided, that the purchaser, in
addition to the purchase-money, should first clear the land
of stones, " at the rate of at least three acres by the year,
until the whole lot is cleared," " and haul the stones into
heaps, or near the road in places easy of access," to be taken
away by the grantor. Held, the purchaser was not bound
to clear the three acres in one parcel, but might clear to that
amount in several parcels.^ So, the defendant promised to
pay the plaintiff £5, if he would provide a tenant for cer-
tain premises, and get him ^£350 for his lease. The plaintiff
procured a tenant, with whom the "defendant entered into an
agreement, and received .£50 as a deposit. The tenant
being unable to complete his engagement, the defendant
afterwards released him, but retained the £50. Held, this
was a substantial performance of the condition on the part
of the plaintiff, and he was entitled to recover the £5 from
the defendant^
34. Conveyance of land, the grantee paying the consid-
eration therefor, and also agreeing in writing, "for value
received, to pay the grantor or order $100, when the grantor's
wife shall sign the deed ; if she does not sign it, the note to
be null and void." The wife, having a right of dower, died
without signing. Held, the grantor could not recover the
$100, either as part of the price, or upon the written agree-
ment.*
1 Shaw V. Livermore, 2 Greene, 338. * Horford v. Wilson, 1 Taunton, 12.
2 Farwell v. Rogers, 4 Cush. 460. * Pendergast v. Meserve, 2 Post. 109.
CH. III.] CONSIDERATION. — PRICE. 38
35. Written agreement, that the defendant would sell a
lot of land at a certain price, and advance to the purchaser
a certain sum towards building a house of a certain value,
which the latter agreed to build. The purchaser drew an
order on the defendant in favor of the plaintiff, payable
when the drawer should have fulfilled his contract, and re-
■questing the defendant to charge the amount thereof as part
of the sums to be advanced. The defendant accepted the
order, provided the drawer should perform his part of the
agreement, not otherwise. The drawer built a house, of less
value than was agreed. In an action on the acceptance,
the plaintiff offered evidence of a waiver by thfe defendant
of the condition of the contract and acceptance. To show
the value of the house, the defendant produced receipts from
the drawer, and other orders paid by the defehdant, amount-
ing to more than the agreed advances. Held, the jury were
rightly instructed, that the action might be maintained, if the
defendant had waived the condition of the contract, as to
the value of the house ; not otherwise.'
36. On a sale of land, the purchaser paid part of the price,
and gave notes for the balance, taking a bond for title " on
the punctual payment of the imtes;" took possession, but
failed to pay the notes, arlpthe vendor resold the land.
Held, a mutual and dependent contract, requiring perform-
ance or readiness to perform by each party before he could
exact performance by the other ; and that the vendor could
not treat the contract as at an end, vpithout refunding the
money paid.^
37. Sale of land, for a sum of money paid down, and an
agreement to pay a further sum, whenever the Court should
establish the validity of patent titles over tax titles. This
Court afterwards decided the revenue laws, under which the
land had been sold for taxes, to be constitutional and valid.
Held, the purchaser was not further liable.^
1 Grandy v. Kittredge, 8 Gush. 562. ' Markham v. Stevenson, 15 El. 209.
2 Johnson v. Jackson, 27 Miss. 498.
34 LAW OF VENDORS AND PTJBCHASBRg. [CH. ni.
38. Where, by the contract, possession was to be deliyered
before payment, and was so delivered, it is not necessary to
tender the balance of the money before commencing an
ejectment.^
39. In general, if a party to the contract disables himself
to perform it, the other party acquires the same rights, as in
case of a voluntary neglect or refusal on the part of the
former, (a) Thus, the right of action, for breach of a parol
contract of purchase, accrues when the vendor conveys to a
stranger.^ So, where a contract was made, dated April 20,
and executed before noon of that day, to convey land within
twenty days from date ; and, on May 9, the land was con-
veyed to another person ; held, a breach of the contract.^
But where A., who claimed real estate under articles of agree-
ment, after a written contract of sale by him, conveyed one
moiety of his interest in certain larger premises, including
the ground previously sold, to one having notice of the pre-
vious sale, and with an understanding that it was to be
carried out ; held, such conveyance did not amount to an
abandonment of the contract on the part of A., and fur-
nished no ground to the first purchaser, to refuse to complete
the bargain.*
1 Bassler v. Niesly, 2 Serg. & Rawle, "^ » Buttrick v. Holden, 8 Gush. 233.
355. * Tiernan v. Roland, 15 Penn. 429.
2 Thurston v. Franklin College, 16
Penn. 154.
(a) On the other hand, the party against whom a remedy is sought may
have disabled himself to perform. But although, in general, a bill in equity
will not lie, after a party has put it out of his power to fulfil a contract to
convey land, when the fact of his having disqualified himself is known to
the complainant previous to the filing of the bill ; yet, where no action could
be sustained at law, but a bill in equity might have been, the rule does not
apply. Hence, where a parol contract was sought to be enforced on the
ground of part-performance, and no action could have been brought for
damages, this was held no objection to the bill, although filed after the party
contracting had conveyed away the property. In such a case, the assess-
ment of damages in equity is the only remedy. Jervis v. Smith, 1 HofPm.
Ch. 470.
CH. III.] CONSIDERATION. — ^PRICE. 35
40. With regard to the particular acts which the vendor
or vendee is to perform, in order to establish a legal claim
against the other party to the contract ; there is some con-
flict in the authorities upon the point, under what circum-
stances, and by whom a deed of the land sold is to be
tendered. The prevailing rule, however, seems to be, that
where, in a sale of land, the acts of the parties are to be
concurrent, in order to maintain an action for the price or
for damages for a breach, the seller must prove tender of a
deed, or that the defendant had waived such tender, or by
his conduct made it nugatory.^ More especially, a vendor is
bound, on payment of the price, to prepare and tender a
deed.2 So, where land was sold, to bd paid for in instal-
ments, and a bond given, conditioned for payment of the
several instalments and conveyance of the land ; held, the
payment of the last instalment and the making of the deed
were concurrent acts, and an action for such instalment could
not be maintained, without showing a tender of the deed.^
So, a bond to convey is broken by the obligor's refusal to
convey, though the obligee does not present a deed for him
to execute.* So, to enable the plaintiff to recover the pur-
chase money paid on a contract for land, after the defendant
fails to make conveyance according to agreement, it is not
necessary for him to tender a deed for the defendant to
execute, unless expressly required to do so by the contract.^
So, where there is a mutual obligation, on a purchaser to
pay or secure the purchase-money, and on the vendor to
convey the property, an offer and readiness to perform, on
the part of the purchaser, is enough, especially where the
vendor refuses to convey at all.^ So, where a vendor has no
title, and cannot procure or cause one to be made, the vendee
may, without preparing and tendering a deed, obtain in
equity a recission of the contract.'^ So, if a complaint, upon
1 Dubignon «. Loud, 5 Rich. 251. ^ Carson v. Lucore, 1 Iowa, 33;
2 Walling V. Kinnard, 10 Tex. 508. Powers v. Bridges, lb, 235.
See Dulce v. Shore, 1 H. Bl. 270. « Bellinger v. Kitts, 6 Barb. 273.
8 Hook V. Nebeker, 1 Smith, 92. ' Read v. Walker, 18 Ala. 323.
♦ Garnett v. Yoe, 17 Ala. 74.
36 LAW OF VENDORS AND PUECHASBRS. [CH. IH.
a contract for sale and exchange of land, alleges a request to
convey and a refusal, which are not denied by the answer ;
a demand for a deed need not be proved.^
41. Where several lots are sold, the vendor is bound, if
required, to give separate deeds, and his offer to execute one
deed for the whole does not render the contract entire.^
42. A vendor, having tendered a deed, conformably to his
contract, executed and acknowledged according to the law
in force at the time of the tender, may file a biU in chancery
for the purchase-money ; but if, before a decree, (the deed
not having been delivered,) the form of acknowledgment be
changed by law, the decree for the complainant should be,
that he deliver the "deed duly executed and acknowledged,
and that the defendant at the same time pay the purchase-
money.^
43. Although it is the duty of a vendor to prepare and
offer a deed, if he knows the vendee ; where he does not,
and the representative of the vendee refuses information
when asked, the vendor may recover the pm-chase-money
without an offer of the deed.*
44. So, in an action for the purchase-money of real estate,
for which the purchaser had given his negotiable promissory
note, the plaintiff is not bound to show a conveyance, the
presumption being, that the defendant, having thus given
his note, was satisfied with the execution of the contract on
the part of the plaintiff.^
45. On the other hand, it has been held, that, in the absence
of any express agreement, the purchaser pays the cost of a
conveyance.^ So it has been held, that something more
than simple notice is necessary, on the part of a purchaser,
of his design to rescind the agreement. He must, on the
day fixed for completion of the contract, or, where no day is
fixed, within a reasonable time, demand a conveyance, with
1 Fagan u.DaTison, 2 Duer, 153. * Christian v. Nixon, 11 Ired. 1.
2 Van Eps v. Schenectady, 12 Johns. "^ Lyman u. United States Bank, 12
436. How. 225.
3 Conwell V. Claypool, 8 Blackf. 124. « Winter v. Jones, 10 Geo. 190.
CH. ni.] "^CONSIDERATION. — PRICE. 37
notice that, if the contract is not completed, he will not be
bound by it ; and, by the custom of the State of Pennsyl-
vania, he should tender for execution the necessary papers,
especially where the time of payment is optional with him.'
So also, it is held in New York, that it is not necessary for
a vendor, under a covenant to convey, to malte out and
tender a deed on the day the purchase is to be completed.
He is not bound to prepare it, until the buyer is ready to
demand it ; and even then, the vendor is allowed a reason-
able time to draw and execute the deed ; and, after being
thus drawn and executed, he is to hold it ready for delivery
when required ; and he is not in default until the latter
request is made. Although a purchaser may prepare the
deed and tender it for execution, (and then only one demand
is necessary,) yet still the above appears to be the settled law
of the State.2 So, where one agrees to convey land, on the
payment of money, the vendee must not only tender or pay
the money, but demand a conveyance ; and, after waiting a
reasonable time to have it made out, must present himself
to receive it.^ . But a purchaser is not bound to prepare an^
tender a deed, if the vendor is unable to give a title as
agreed.* Nor to tender the purchase-money and demand a
title.^ And any obligation on the part of one party, to ten-
der a sufficient instrument for execution by the other, may be
waived by a general refusal of the latter to complete the
contract. Thus, the vendors of real estate, under articles of
agreement with one who claimed under one of the vendors,
in due time executed a deed to the vendee and her heirs, and
endeavored to have it tendered to her, but the tender was
prevented by her sickness and death. The deed was after-
wards offered to her executors, accompanied, however, with
a mortgage and bonds for execution. The deed was insuf-
ficiently acknowledged by thri wives of the grantors, and the
1 Tienian v. Koland, 15 Penn. 429. * Johnson v. Collins, 17 Ala. 318.
2 Wells V. Smith, 2 Edw. 78. » Griggs v. WoodruflF, 14 Ala. 9.
3 EuUer v. Hubbaid, 6 Cow. 13.
4
38 LAW OP VENDOES AND PUBChISbRS. [CH. III.
bonds were not conformable to the contract, as to the time
of payment, but the executors or devisees did not object to
receiving them on this ground, but refused generally to per-
form the contract. There was no evidence of a refusal by
the vendors to amend the acknowledgment, Or to accept of
other securities, in accordance with the contract. Held, such
-tender was evidence of the willingness and desire of the
vendors to comply with their agreement.^
46. With regard to the party, to whom payment for land
purchased is to be made ; it has been doubted, whether a
power to sell, unrestricted, authorizes the agent to receive
payment.^
47. Questions sometimes arise from the joint or distinct
interests of different parties in the purchase-money of land,
or in the land itself, as connected with the price paid, or to
-be paid, for it.
48. Where several parties agree to pay a certain sum
upon another party's tendering a deed ; it is sufficient to offer
the deed to one of them.^
49. Two persons united to purchase a tract of land, for
which they gave $3,000 ; and entered into a contract under
seal, by which one was to pay $2,000, and the other $1,000,
of the purchase-money, and the land to be equally divided
between them. Held, each was to have a moiety of the
land.*
50. A. and six others entered into articles of agreement
with B., respecting the purchase of western lands, on the
joint account of all. The seven were to provide funds, to
meet the drafts which B. should make on A., and the money
was to be expended by B. in making the purchases. Con-
veyances were to be taken to A., in trust for all the associates.
B. was to draw the drafts at not less than ten days' sight,
and to make to A. monthly statements of his purchases. B.
' Tiemanw. Eolaud, ISPenn. 429. 1 Moo. &"R. 326; State of Illinois v.
2 Hackney v. Jones, 3 Humphreys, Delafield, 8 Paige, 627.
612 ■ 9 Leigh, 387 ; Mynn v. Joliife, ^ Oatman v. Walker, 33 Maine, 67.
♦ Stubblefield v. Beazely, 5 Gratt. 51.
CH. III.] CONSIDERATION. — PKIGB. 39
accordingly purchased lands of C. in Michigan, took a con-
veyance to A. and placed it on record. For a portion of the
purchase-money, not paid down, he gave the notes of A. at
one and two years, signing them as the agent of A. ; and, when
one of the notes became due, he substituted for them drafts
on A. Soon after the purchase, B. communicated it person-
ally to six of the associates, and stated to them the price and
time of payment, and they approved thereof. He also trans-
mitted the conveyance to A. ; and it did not appear that A.
or any of the associates had done any act repudiating the
purchase ; but the drafts were neither accepted . nor paid.
Held, the associates were liable to C. for the price of the
lands agreed upon, in an action for lands sold and conveyed
to A. at their request ; and that, after the lapse of a consid-
erable time, they should be deemed to have waived any
objection to the purchase, on the ground of B.'s having ex-
ceeded his authority.' [Bronson, J., and Cady, J., dissenting.]
51. A. contracted to purchase lands of B., and then to sell
a part of them to C. Afterwards, A. assigned his original
contract to D., by way of mortgage, D. having notice of the
contract between A. and C. For the purpose of extinguish-
ing the interest of A., B. exacted a forfeiture of the original
contract, on account of the .non-payment of the purchase-
money, subject, however, to the rights of C. and D., and D.
subsequently took a conveyance from B. of the whole of the
land. Held, the portioii of the land not contracted by A. to
C. was the primary fund for the payment of the original
purchase-money, and, such portion being sufficient for that
purpose, that D. was bound to convey to C. his portion of
the land, on being paid by C. such a sum only as remained
unpaid, on the contract between A. and C?
52. Land of A. was sold on an execution in favor of B.,
and C. paid to B. a part of the amount of the judgment,
under an understanding that, upon the payment of an addi-
tional sum, B. should convey the land to C. in trust for the
1 Sage V. Sherman, 2 Comst. 417. ^ Crafts v. Aspinwall, 2 Comst. 289.
40 LAW OP VENDORS AND PURCHASERS. [CH. in.
wife and children of A. C. died, without having paid said
additional sum, and B. paid over to C.'s administrator the
amount which C. ha,d paid. Held, the administrator, by
receiving said sum, had rescinded the contract for a convey-
ance made between B. and C.^
1 Smith V. Smith, 1 Greene, 307.
CH. IV.]
INTEKEST.
41
CHAPTER IV.
INTBKBST.
I . Claim of a vendor for interest.
13. Bate of interest.
15. Interest in case of reversions.
17. Investment of the pnrchase-raoney.
20. Claim of a vendee for interest.
29. Interest on money paid into Court.
1. Having, in the last chapter, considered the subject of
consideration or price, I proceed, in the natural order of
topics, to treat of the liability of the respective parties to a
contract of sale to pay interest; the one upon the purchase-
money unpaid, the other upon the purchase-money paid, but
for any cause subject to be recovered back by the purchaser.
2. Upon this subject, the general rule is, that a purchaser
in possession must pay interest.^ So, if the contract specifies
no time for a conveyance, but the price is made payable
upon receiving a deed ; the law implies immediate execution.
Hence, the vendor becomes immediately liable for the rents
and profits, and the vendee for interest.^ So, where a lease-
hold farm was sold, and three years had expired pending a
suit by the vendor who was in possession ; interest was
allowed, an'd he was charged with a rent.^ So, interest
begins when the money is due — the right to rents and profits
when the vendee is entitled to possession.* So, where par-
ties already in possession agreed to purchase, and 'pay the
purchase-money on a particular day, " on a good and valid
title being made and executed," and a title was not made for
' Stevenson v. Maxwell, 2 Comst. " Dyer v. Hargrave, 10 Ves. 505.
408 ; Hood v. Huif, 2 Const. 163 ; Kes- " Baxter v. Brand, 2 Dana, 298.
ter v. Kockel, 2 W. & S. 365 ; Ramsay See Buchanan v. Lorman, 3 Gill, 82 ;
V. BrailsfOrd, 2 Desaus. 592. Brockenbrough v. Blythe, 3 Leigh, 647 ;
2 Hundley v. Lyons, 5 Munf. 342. Williams v. Rogers, 2 Dana, 375.
4 •
42 LAW OP VENDORS ANl) PURCHASERS. [CH. IV.
many years, but they remained in possession, and did not
appropriate the purchase-money ; held, they were liable for
interest from the day mentioned.'
3. But where payment is to be made upon conveyance of
the land at a certain time, and it is not thus conveyed, the
purchaser is not in default by neglecting to pay the price,
and is not liable for interest till after tender of a deed. So,
though he has taken possession, if the land is vaicant and
unproductive.^ So, a purchaser not in possession is bound to
pay interest, and take the rents and profits, only from the
time whefi a good title is first shown, not from the time
fixed for completion of the purchase.^ So, the purchaser is
not liable for interest, when, upon finding a difficulty in the
title, he immediately offers to rescind the contract, redeliver
possession, and receive back the money advanced, which the
vendor refuses.* So, where the. purchaser tenders the pur-
chase money, and the vendor refuses it.®
4. Stipulation, that if, by reason of any unforeseen or un-
avoidable obstacles, the conveyance could not be perfected
for execution before the day fixed, the purchaser should from
that day pay interest, and be entitled to the rents and profits.
The vendor did not show a good title till long after the
specified day. Held, he was entitled to interest, only from
the time when a good title was first shown.®
5. Where the conditions of sale provide, that interest shall
be paid from a certain day ; if the purchase be hot then com-
pleted, the purchaser is liable for interest, though the delay
was caused by the vendor; otherwise, where there is no
express stipulation."
6. A purchase was to be completed on a certain day, when
the purchaser was to have possession, and, " if from any
cause whatever " the purchase-money were not then paid, he
' Atty.-Gen. v. Christ Church, 13 ^ Jones w. Mudd, 4 Enss. 118.
Sim. 214. See Fludyer v. Cocker, 12 * Rutledgew. Smith, 1 M'C. Ch. 403.
Ves. 25; Portman v. Mill, 3 Jur. 356 ; ^ January v. Martin, 1 Bibb, 586.
Enraght v. Pitzgerald, 2 Dw. & W. 43. ^ Monk v. Hnskisson, 4 Russ. 121, n.
2 Stevenson v. Maxwell, 2 Sandf. Ch. '' Esdale v. Stephenson, 1 Sim. &
273. St. 122.
CH. IV.] INTEREST. 43
was to pay interest. The transaction was delayed six
months, for want of proper abstracts. Held, unless he gave
up the rent, the purchaser must pay interest during that
time.i
7. But where these terms of purchase were used, and the
vendor furnished an abstract, the terms of which required to
be verified aliunde ; held, he was not entitled to interest,
though the purchaser had not demanded such verification.^
But he is thus entitled, from the time at which all questions
of title and conveyance are settled by the counsel of the
parties ; accounting for rent received, or which might have
been received with due diligence.^
8. "Where specific performance was prayed both by original
and cross bill, after considerable delay upon the title ; the
rents were ordered to be received, and interest paid, fi"om the
time stipulated.'* So, a purchaser, taking possession without
a conveyance, was compelled to pay interest ; though the
money was to be paid at a particular day, on the execution
of the conveyance.^ So, a purchaser under a decree for sale,
having accepted, and (on a report of an objection to the title,
for which compensation was ordered,) returned, possession,
must pay interest on the purchase-money from the time at
which he took, or at which a title was shown under which
he might have safely taken, possession, and is entitled to an
allowance for prior, not for eubsequent deterioration of the
estate.®
9. The vendee is liable for interest, though the vendor be
in default ; unless he has not only kept the purchase-money
idle, but notified the vendor of the fact.'^
10. A purchaser, upon entering into possession, paid the
amount of his purchase-money to his banker, and gave
notice that he was ready to invest it in such manner as the
' Cowper V. Bakewell, 17 Eng. Law " Fludyer v. Cocker, 12 Ves. 27.
& Eq. 508. « Binks v. Lord Rokeby, 2 Swanst.
2 Sherwin v. Shakspeare, 23 Eng. 222.
Law & Eq. 199. '• Brockenbrough n. Blytb, 3 Leigh,
3 Ibid. 619.
* Fenton v. Brown, 14 Vea. 143.
44 LAW OF VENDORS AND PURCHASBKS. [CH. IV.
vendor should require ; but no answer was returned to that
notice, and the purchaser, during the investigation of the
title, kept in the hands of his banker a balance equal to the
amount of the purchase-money, except for four days, when
it was a little less. Held, the purchaser was not liable for
interest, on the difference between his average balance dur-
ing the period in question, and during the three preceding
years.
11. A loss or deficiency of rents, arising while the vendor
was in default by not completing the conveyance, the pur-
chaser not having taken possession, or changed the receiver,
was ordered to be made good out of the purchase-money in
Court.2
12. Where a debtor sells land to his creditor in payment
of the debt, he is liable for interest from the liquidation of
the debt till a good title is made.^ (s. 20.)
13. With regard to the rate of interest to be paid by a
purchaser, it has been sometimes held in England, that he
shaU be charged with 5 per cent, interest on the purchase-
money unpaid.* But, on the other hand, on the bill of a
vendor, the purchase-money was decreed to be paid with
4 per cent, from the time it ought to be paid.^ And this
is said to be the general rate, allowed in the English Courts
of Equity.^ Thus, when purchase-money is to be paid, and
a conveyance made, at a given jime, but disputes arise as to
the title, and the purchaser proposes to the vendor to lay out
the purchase-money in exchequer bills till it js wanted, but
the vendor returns no answer ; and the money is so laid out ;
the vendee is at the risk, and is entitled to the benefit, of such
purchase-money, with 4 per cent, interest.'^ So, where the
completion of a contract was delayed for thirteen years, and
the property became deteriorated by dilapidations ; held, the
1 Winter v. Blades, 2 Sim. & Stu. * Barnell v. Brown, 1 Jac. & Walk.
393. 168.
2 Blennerhasset w. M'Namara, 1 Moll. ' Calcraft v. Eoebuck, 1 Ves. 221.
81. ^ Child u. Lord Abingdon, 1 Ves. 94.
s Hepburn v. Dunlop, 1 Wheat. 179. ' Acland v. Gaisford, 2 Mad. 28.
CH. IV.] INTEREST. 45
loss must fall on the purchaser, as the state of the title was
such, that he ought to have completed his purchase and taken
possession ; and he should pay interest at 4 per cent only
from the time of filing the bill.^ So, in a late case, real
estate, in possession and reversion, was offered for sale at
auction in lots, under condition that, on or before December
25, 1849, the vendors should confirm the master's report of
purchases, and each purchaser pay the purchase-money into
Court, and be entitled to rents from that day; and if, from
any cause whatever, the money should not be so paid, it
should bear interest from that day, at 5 per cent. Through
fault of the vendors, the master's report was not confirmed till
August, 1851. On motion, that a purchaser of a reversion
in fee, being one of the lots, should pay the purchase-money
into Court, with interest from December 25, 1849 ; held,
interest should be paid from that time at 4 per cent.^
14. The purchase-money of an estate was to be paid by
six instalments, with interest at 5 per cent., until the day
of payment. It was subsequently agreed, that the last in-
stalment, instead of being paid at the appointed day, should
remain on mortgage, at 4j per cent., for fourteen years, but
that the stipulations of the first contract, as to the previous
instalments, should continue in force. Held, the reduction,
from 5 to 4^ per cent., was dependent upon the fulfilment of
the terms of the first contract with respect to the prior
instalments.^
15." It has been held, that the purchaser of a reversion {a)
must pay interest from the time of purchase.* Thus, where
' Minchin v. Nance, 4 Beav. 332. * Trefusis v. Lord Clinton, 2 Sim.
2 Wallis V. Saiel, 13 Eng. Law & 359; Bailey w. CoUett, 23 Eng. Law &
Eq. 138. Eq. 263.
* Attwood V. Taylor, 1 Mann. &
Grang. 279.
(a) As to interest, in ease of the sale of timber or fixtures, with refer-
ence to the increasing value by natural growth in the one case, and the
deterioration arising from wear and tear in the other ; see Dart on V. &
P. 295-6 ; Dyer v. Hargrave, 10 Ves. 510; Dakin v. Cope, 2 Russ. 176.
46 LAW OF VENDORS AND PURCHASERS. [CH. IV.
a reversion expectant on an estate for life was decreed to be
sold, B. was confirmed the best purchaser, and the order made
absolute on the 1st of January, 1724 ; and in January, 1726,
B. was ordered to bring his money into the bank. The life
having dropped, held, if the life had dropped the next day
after the report of B.'s being the best purchaser was made
absolute, the purchase mpst have stood ; and as from that
time the life was wearing, so from that time the purchaser
ought to pay interest.^
16. But, on the' other hand, it has been held that the
purchaser of a future interest, after a term, shall not pay
interest, or an increased price, for a part of the term elapsing
before the purchase is completed, unless the delay be through
his fault.''
17. The question of interest sometimes arises from an
investment or deposit of the purchase-money.
18. The effect of a deposit by a vendee, with notice to the
vendor, is said to be, to stop or determine the rate of interest.
But such deposit does not operate as a tender and appropri-
ation, transferring the risk as to the principal. Therefore,
upon an investment in stock by the vendee, the title not
being ready, and the vendor having notice, but returning no
answer, the advantage by a rise, as the loss by a fall, is the
vendee's.^ But where, pending a dispute concerning the
title of land contracted to be sold, and to avoid the questioh
of interest, the vendor authorized the purchaser to invest
the price in funds in their joint names, if done by a c6rtain
day, which was done accordingly ; the funds having risen
in value ; held, the vendor should have the benefit of it.*
19. A purchaser is not liable for interest on the deposit,
even where he has rendered a suit necessary, by refusing to
perform the contract, on the ground of an unfounded objec-
tion to the title.^
20. The purchaser, as well as vendor, may, under some
' Ex parte Manning, 2 P. Wms. 410. * Burroughs v. Browne, 15 Eng. Law
2 Growsock v. Smith, 3 Anstr. 877. & Eq. 166.
» Koberts v. Massey, 13 Ves. 561. ^ Bridges v. Kobinson, 3 Mer. 694.
CH. IV.] INTEREST. 47
circumstances, make a claim for interest. Thus, where the
sale is made in payment of a debt, the vendor must pay
interest, from the time the debt is liquidated until he makes
a good title ; and the vendee is accountable for the rents and
profits, from the time the title is perfected, until the contract
is specifically performed.^ (s. 12.) So, the agreement not
being completed within the time specified, the purchaser shall
be allowed interest for such time as the .purchase-money has
been kept dead for this special purpose.^
21. But, on the other hand, it has been held, that a pur-
chaser out of possession cannot claim interest on the pur-
chase money, though he has laid it aside till the vendor
should show a good title, and it has thereby become unpro-
ductive.^ So also, that a party recovering back a deposit,
paid on the purchase of real property, is not entitled to
interest.* So, if the contract is rescinded, but not for fraud,
the purchaser having paid the price, and taken possession ;
the use of the money and that of the land are held to balance
each other; and the decree should in general restore the
money without interest, and the land without rents and
profits. Otherwise, in case of valuable and permanent im-
provements by the purchaser, or deterioration of the property
through his default ; in which cases, a valuation, account, .
and settlement shall be made accordingly.^
22. Bill by a purchaser, for specific performance. The
vendor, for fifteen years, had retained possession of the whole
estate, and of one third of the purchase-money. Held, he
should be charged with interest on one'third of the rents and
profits.®
23. Whej-e an auctioneer, as agent for the vendor, agrees
to sell, according to the conditions, by which the purchaser
is to pay down immediately a deposit, and the auction-duty,
' Hepburn u. Dunlap, 1 Wheaton, * Bradshaw v. Bennett, 5 Carr. & P.
179. 48.
2 Howland v. Norris, 1 Cox, 59. ^ Williams v. Rogers, 2 Dana, 375;
3 De Vesme v. De Vesme, 13 Jur. « Burton v. Todd; Todd o. Gee, 1
1037. But see Dart on V. & P. 294. Swanst. 255.
48 LAW OP VENDORS AND PUECHASERS. [CH. IV,
and the residue of the purchase-money upon a day certain,
on having a good title, and the vendor is to prepare and
deliver an abstract ; the auctioneer is not, upon a failure of
the contract, in consequence of a defective title, personally
responsible for interest upon the deposit and auction-duty,
unless the money be demanded, or notice given to him that
the contract has been rescinded.^
24. So, an auctioneer, vsrho receives a deposit from the
purchaser, is a mere stakeholder,' liable to pay the money at
any time ; and therefore, although he place the money in
the funds at interest, he is not liable to pay such interest to
the vendor, when the purchase is completed ; though the
vendor (without the concurrence of the vendee) gave him
notice to invest the money in government securities.^
25. So, where a purchaser of an estate by auction de-
posited a sum with the auctioneer, as part of the purchase-
money, until he should receive a good title, according to the
conditions of ^ale ; and no good title was made out ; but the
treaty was kept open with the auctioneer for four years, and
no demand made on him for the deposit ; held, the auctioneer
was not liable for interest.^
26. But, where a vendor filed a bill for specific perform-
ance, but, not being able to make a good title, his bill was
dismissed ; held, he should return the deposit with interest.*
So, where a vendor omits to make out a good title, within
the stipulated time, and the vendee dies, his executor may
sue for loss of interest on the deposit-money, and the ex-
pense of investigating the title.^ The plaintiff"s,'purchasers
of mines, having paid part of the purchase-money, and been
let into possession, agreed to pay the residue by instalments,
and in the mean time half-yearly interest on what should
remain due. Having paid one half year's interest, but no
portion of the remaining purchase-money, they filed their
' Gaby v. Driyer, 2 Toa. & Jerv. ' Leew. Munn, 8 Taunt. 45; 1 Moore,
549. ' 481.
* Harrington v. Hoggart, 1 Barn. & ' Anson v. Hodges, 5 Sim. 227.
Adolpb. 577. ' Orme ». Broughton, 10 Bing. 533.
CH. IV.] INTEREST. 49
bill to set aside the contract. The vendor then recovered
the next four half-yearly portions of interest by several
successive actions, but, upon bringing his action for the
fifth, was restrained by an order for an injunction in this
suit. The terms of that order, dated the 28th of February,
1829, were, that, upon the plaintiffs' paying into Court the
sum which was the subject of that action, the defendant
should be restrained, &c., and' that, upon their continuing
from time to time to pay in the like sums half-yearly, the
injunction should be continued to the hearing. Under that
order, several half-yearly instalments of interest were paid
in, and invested, and made to accumulate in the funds ;
but, under two subsequent orders, made at the instance of
the defendant, for the purpose of enlarging publication, all
further payments into Court were suspended until the hear-
ing. The cause was heard in November, 1831, and in the
following November judgment was given in favor of the
"plaintiffs ; under which the accumulated stock was sold out,
and paid to them, and the defendant was compelled to ,
pay X 9,766 for costs. In March, 1838, the House of Lords
reversed this decree, and remitted the cause back to this
Court, to do therein as should be just, and consistent with
their reversal. Held, 1st, that the defendant was entitled to
be repaid the sum of ^G 9,766, but without interest.
2d. That as to the instalments of interest, which became
due on the unpaid purchase-money, after the decree in the
Court below, the defendant had no remedy in this suit, but
must be left to his remedy at law.
3d. That the defendant was entitled to be repaid in this
suit the instalments of interest, which became due between
the orders for suspension and the decree of the Court below,
but that he was not entitled to interest on those instalments.^
26. Where payments have been made by a vendee, at
different times, aU exceeding the interest then due, and tho
' Small V. Attwood, 3 Y. & Coll. 105.
6
50 LAW OF VENDORS AND PPKCHASERS. [CH. It.
decree, in a suit by the vendor for a specific performance,
directs an account of what is due for principal and interest,
rests shall be made.' So, where a sale is avoide^, the
purchase-money for which was secured by an instrument
bearing interest, and interest had been paid thereon, such
payments are to be considered as principal, and are to be
refunded with interest.^ So, a purchase being set aside for
ftaud, and the purchaser decreed to pay an occupation rent,
receiving back his purchase-money with interest, there being
a considerable excess of the rent above the interest ; annual
rents were directed to be made in the accounts, until the
excess of the rent should liquidate the principal.^
27. The question of usury sometimes arises, in connection
with the price of lands sold. Agreement to purchase houses
for £431 IO5. ; possession to be given, and ,£200 paid imme-
diately, the rest with interest at Michaelmas^ but, if not
then paid, the purchaser to pay " in lieu of interest upon the
same a clear rent of J642 per annum," out of which was to
be deducted interest for the £200 paid. Held, not usurious.*
Sale of an estate at a certain price, to be paid by instal-
ments, with interest, at 6 per cent. Notes were given for
these sums, compounded of the instalments, and that which
was called interest. Held, the whole must be considered as
purchase-money, and the bargain was not usurious.®
28. Questions sometimes arise, as to an order for, and the
effect of, a payment of the purchase-money of lands into
Court, and a claim of interest thereupon.
29. It is said, purchase-money paid into Coul:t is the prop-
erty of the vendor.^
30. Generally, a purchaser shall not retain possession, and
also keep his purchase-money. But where he was willing to
give up possession, and it was a question whether there was,
' Griffith V. Heaton, 1 Sim. & Stu. * Spurrier v. Mayoss, 1 Ves. 527 ; 4
271. Bro. C. C. 28.
2 Murray v. Palmer, 2 Sch. & Lef. ' Beete v. Bidgood, 7 Barn. & Cress.
488. 453 i 1 Mann. & Gran. 324.
» Donovan v. Fricker, Jac. 165. " Gel! v. Watson, 2 Sim. & Stu. 402.
OH. IV.] INTEREST. 51
or not, a subsisting contract, the Lord Chancellor refused tc
order payment of the purchase-money into Court.^
31. Payment to the solicitor for all parties in the suit, is
equivalent to payment into Court.^
32. Where a contract is cancelled bv^ecree in Chancery
for fraud of a party, a decree that he snail repay what he
has received under it, with interest until paid, is proper.^
33. A purchaser, complaining that his conveyance did not
comprise the whole of the property which he had contracted
for, filed his bUl for a conveyance of the remainder, and
obtained an injunction against any suit for the purchase-
money, part of which was afterwards ordered to be paid into
Court, to abide the event of the suit. The bill being dis-
missed ; held, the vendor was entitled to the residue of the
purchase-money, and the interest upon it, to the time of
payment, although the purchase-money in Court had not
been laid out, and no interest accrued thereon.*
' Morgan v. Shaw, 2 Mer. 138. » Perkins v. Rice, Litt. Sel. 218.
2 Price V. North, 2 Y, & Coll. 620. * Humphries v. Horn, 3 Hare, 276.
o2
LAW OF VENDORS AND PUHOHASBRS.
[CH. V.
CHAPTER V.
PARTIES TO CONTRACTS.
1. Necessity of parties; uncertainty,
&c.
6. Joint parties.
1 1 . Husband and wife.
16. Kepresentatives of a party de-
ceased.
32. Trustees and cestuis que trust.
34. Agents i their authority ; it may he
verhal ; construction of written powers,
&c.
47. Porm of the contract ; whether it
binds the agent or the principal.
58. Trust, arising from an agency.
1. To render valid a contract for the sale and purchase of
lands, as in other contracts, there must be legally existing
parties. It is not necessary that the parties should be ex-
pressly named. But, if there is nothing in the instrument
itself, nor in the nature of the transaction, w^hich shows who
are the parties, the contract is void for uncertainty.'
2. In some cases, however, the party to whom final con-
veyance is to be made, need not be at the time distinctly
ascertained. Thus, a bond to convey lands "to a board not
in esse, for public purposes, in consideration of the location
of a county seat of justice, is not void, by reason of the
want of a grantee.^
3. A statute, creating a county, appointed commissioners
to locate the seat of justice, in May, 1826, to receive dona-
tions in land, and to take bonds of persons proposing to give
lands, payable to a board of justices, (whose appointment
was not to take effect until June,) and their successors in
office, which bonds the commissioners were required, by law,
to deliver to the board of justices. A party, proposing to
give lands, delivered to the commissioners a bond from him-
self to the board of justices to be thereafter organized, and
their successors in office, for the conveyance of the lands.
' Webster v. Ela, 5 N. Hamp. 540.
■^ Sargeant's, &c. v. The State Bank,
&c., 4 McLean, 339.
CH. V.| PARTIES TO CONTKACTS. 63
which bond was delivered by the commissioners to the jus-
tices. Held, the bond was not void, for want of obligees in
existence at the time of its delivery to the commissioners,
but was evidence in defence of an action of ejectment,
brought by the heirs of the obligor, against a party who
occupied the land twenty years under a title derived from
the board of justices.^
4. It is not always necessary, that the party binding him-
self by a contract should himself receive the consideration
of such contract. But, in general, a party is not bound by
an agreement relating to lands, where the consideration is
past, more especially if another person had the benefit of
such consideration, or if the contract is an unequal and
unreasonable one.
5. Declaration, that a surveyor, in consideration of a sum
paid him by the plaintiff, promised to furnish a land-warrant,
and enter and survey for the plaintiff a piece of vacant land,
in order that the plaintiff might obtain a grant thereof ; that
he wholly failed to make the entry ; and that the defendant,
his successor, in consideration of the promises of his prede-
cessor, and the payment made to him by the plaintiff, and
being required by the plaintiff to enter the land for him,
agreed to furnish the necessary warrant, and enter it in the
plaintiff's name in his office, and seasonably survey it, so
that the plaintiff might obtain a grant ; and that the plaintiff
agreed to pay the defendant his fees for the survey. That
the defendant failed to furnish a warrant and enter the land
for and in the name of the plaintiff, but entered and sur-
veyed it for another person, who had received a patent
therefor. Held, as a count in assumpsit upon a special con-
tract, the declaration set forth no sufficient consideration
between the parties ; and as a count in case, it set forth no
such official misbehavior or neglect, as furnished a ground of
action.^
1 Sargeantu. State Bank, &c. 12 How. ^ Hale v. Crow, 9 Gratt. 263.
371.
5*
54 LAW OP VENDORS AND PURCHASERS. [CH. V.
6. Where a person had purchased land at sheriff's sale, but
had not paid the money, and afterwards became attainted,
under an act of the legislature, held, the State could not, by-
paying the money, perform the condition, so as to make the
deed, which had. been delivered as an escrow, absolute, and
thereby vest the estate in the purchaser ; but he was to be
considered as civiliter mortuus.^
7. In this connection, it may be stated, that where the
vendee assigns the contract, and the assignee takes posses-
sion, the vendor, though he cannot compel the assignee to
pay the purchasfe-money, may, by virtue of his lien on the
land, call on him to pay the money, or to surrender the land,
or to have it sold for the benefit of the vendor. And where
the administrators of the vendee assigned a contract for the
purchase of land to the defendants, who covenanted and
agreed to take up and cancel the contract, and to indemnify
and save harmless the administrators from all damages, &c.,
which they might sustain by reason of the contract, &c. ;
held, that the administrators were entitled to specific per-
formance of the covenants, and a want of assets could not
be objected, in limine, to the relief soiight.^
8. Contracts for the sale of lands may involve the rights
and obligations of parties jointly interested. Thus, all the
parties, bound "by an executory contract to make titles, must
join in the deed, in order to a complete performance. But
all will be discharged, by the acceptance, on the part of the
vendee, of something in satisfaction of the obligation, and
in place of strict performance, from one alone.^
9. Two parties, each claiming title to the same land,
derived from distinct sources, but neither of which could be
perfected without a confirmation from the government ;
entered into a written and sealed agreement, fuUy reciting
' Simonds K. Catlin, 2 Caines, 61, 64. ^Johnson v. Collins,^ 20 Ala. 435
2 Champion v. Brown, 6 Johns. Ch. But see Coe v. Harrahan, Mass. S. J. C
398. Suffolk, March, 1857.
CH. v.] PARTIES TO CONTRACTS. " 55
their respective claims, and providing that they should share
equally if the title were confirmed ; if not, in the money
awarded by government, in lieu thereof. The title was con-
firmed, and a title granted to the defendant, one of the
parties, in his own name. The other having in the mean
time died, his heirs file a bill for specific performance. Held,
as the agreement fully recited the respective interests of the
parties, the defendant could not set up in defence an in-
equality of interest at that time.^
10. Bill for specific performance. By a written contract,
the defendant agreed to repair the plaintiff's mill, building,
fences, &c., and the plaintiff to sell to the defendant, on
completion of such repairs, one undivided moiety of the
premises. It was further agreed, that the parties should then
form a partnership, to work the mill for a year, when, if the
plaintiff should elect to withdraw, the defendant should pay
him a certain sum for the premises ; otherwise, the partner-
ship to continue for five years. Held, not to be a case for
specific performance.^
11. Agreement under seal, between the plaintiffs, husband
and wife, and the defendant and five other persons, interested
in certain real property, that " the said parties, namely, (the
plaintiffs) on the one side, and (the defendant and the other
five persons) on the other, shall," at a time and place to be
appointed, " bid against each other for the right to i^ake
said estate, and thereupon said party obtaining the right to
take the same shall receive a conveyance of the interest of
the other party therein, and shall pay therefor to the other
party the appraised value of the interest so conveyed,
together with the sums bid for the right of taking said estate,
in cash, upon the delivery of the deed." The plaintiffs bring
an action upon this agreement against the defendant alone,
alleging that at the time and place appointed " the parties to
said agreement bid against each other as aforesaid, and (the
defendant) did bid for said right " a certain sum, " being the
1 Hunt V. Thorn, 2 Mich. 213. ^ jjeed v. Vidal, 5 Rich. Eq. 289.
56 LAW 0*" VENDORS AND PURCHASERS. [CH. V.
highest sum bid therefor, and thereupon became entitled to
take the interest of the plaintiffs therein, and became bound
to take the same and to pay therefor the amount of said
appraisal and of said bid ; and afterwards the plaintiffs
executed a deed of the interest of said female plaintiff
therein, and tendered the same to the other parties to said
agreement, yet the defendant wholly refused to accept the
same or pay the consideration thereof." Held, pn demurrer,
the action could not be maintained. Shaw, C. J., says : " The
result " of the terms of the agreement is, " that the party
owning four fifths of the estate should give the other party,
for his one fifth, more than the appraised value of the whole.
It may be so, and the party may be bound ; but if so, it
must be by force of strict law, and cannot be aided by equit-
able considerations. The agreement exactly defines the
parties who are to bid against each other — the plaintiffs on
the one side, and the defendant and five others on the other. ,
The declaration does not aver that the parties bid, but that
the defendant bid. This is not conformable to the coiitract.
If the defendant bid for his party, then the whole were
purchasers, and the suit should have been against them
all. But the averment is, not only that the defendant made
the bid, but that he became bound, and the plaintiffs executed
and tendered a deed to him. The thing to be bid for and
con^yed was the interest of Pierce and wife in the real
estate ; whereas the deed was of the interest of the female
plaintiff" i
12. The question of parties sometimes arises, in connec-
tion "with the respective rights and obligations of husband
and wife.
13. Upon this subject the general rule is, that femes
covert cannot bind their interest in lands, except in the
precise form prescribed by law.^ Therefore an agreement
by a feme covert, even with the assent of her husband, for
the sale of her real estate, is void, and cannot be enforced in
1 Pierce v. Harrington, 1 Gray, 595. ' Duulap v. Mitchell, 10 Ohio, 117.
CH. v.] PARTIES TO CONTRACTS. 57
Chancery against her.' But the husband has such an in-
terest in lands owned in fee by the wife, that he can give a
lease thereof for a term of years, which will be valid during
the coverture, at least; and an agreement to give such a
lease, if not otherwise objectionable, may be enforced in a
Court of Chancery .2 And where one agrees to sell land, and
to execute and deliver a warranty deed thereof; his wife
must join in such deed.^
14. A., and B. his wife, conveyed her land to C, the
daughter of B., and wife of D., by a deed of gift; after
which A. was imprisoned on an execution in favor of E.,
and held in close confinement. With a view to obtain his
liberation, C. agreed with D., that, if he would assume the
debt to E., by giving his note for the amount, she would pay
it from the avails of the land so conveyed to her. D. gave
his note accordingly^ and A. was liberated. Immediately
afterwards C. died ; and D., having paid the note, exhibited
to the Court of Probate his claim for the money so paid,
against her estate. Held, 1, that the agreement between C.
and D., having been executed on one part, was not within
the Statute of Frauds, and might be proved by parol ;
2, that if D. had an equitable claim, which a Court of Chan-
cery, on suitable process, with the parties in interest before
it, could enforce, it was not competent to a Court of Probate
to allow it ; but, 3, that the agreement, having been made
by a feme covert with her husband, without benefit to her,
was void, and could not be enforced anywhere.*
15. Where an agreement does not designate the person to
whom the consideration is to be paid, the law raises an as-
sumpsit in favor of those who are the meritorious cause of
action, or from whom the consideration moves. Thus, the
consideration being the sale of the wife's inheritance, in the
absence of an express promise, the law raises one to the hus-
band and wife, on which the husband may sue, either in his
' Butler V. Buckingham. 5 Day, 492. ^ Pomeroy v. Drury, 14 Barb. 418.
2 Eaton V. Whitaker, 18 Conn. 222. * Watrous v. Chalker, 7 Conn. 224.
58 LAW OP VENDORS AND PUROHASEfeS. [CH. V.
own name, or in their joint names. Even if there was an
express promise to the husband, the wife might be joined as
plaintiff. But a feme covert cannot be joined, in an action
to recover the price of property sold by her, and which
belonged to her before coverture, or unless there be an
express promise of payment to herJ
16. A baker was desirous of disposing of his shop and
the good-will of his business, and in consequence an adver-
tisement was inserted in a newspaper, stating that the house
was doing twelve sacks a week. The advertisement was
inserted by the broker, in consequence of a conversation with
the baker's wife, who managed the business for him, in which
conversation she told the broker that they did between nine
and ten sacks a week, upon which he said, " We must make
it twelve for the paper." In consequence of the advertise-
ment, a person desirous of purchasing went to the wife and
said to her, " Are you reaUy doing any thing like this busi-
ness ? " to which she replied, " Yes, we are doing eleven
sacks," and appealed to the man in the shop, who confirmed
her statement. The baker himself did not appear at all in
any part in the transaction, except that he received the pur-
chase money, and paid the broker his commission. In an
action brought by the purchaser on the representation con-
tained in the advertisement, it was held, that the baker was
personally and individually answerable in damages, inasmuch
as though he did not make any representation himself, yet
he made the wife his agent, and was bound by her state-
ments.2
17. A., the wife of a bankrupt, who was abroad, without
his consent, or a legal ratification by herself, conveyed her
own lands to trustees under his sequestration. Upon a sale
of these lands by public roup, the vendor, by the articles of
roup, undertakes to execute to the purchaser a valid, irre-
deemable disposition of the subjects, as described in his own
' Higdon V. Thomas, 1 Harr. & Gill, '■' Taylor v. qtreen. 8 Carrington &
139. Payne, 316. \
CH. v.] * PARTIES TO CONTRACTS. 59
or constituent's title thereto ; also to deliver certain specified
deeds, &c., described as " all the title-deeds of the property
in his custody." Upon a suit by the vendor for the
purchase-money, and a proceeding for suspension by the
vendee ; held, it is not such a title as a purchaser is bound
to accept, and that the title is not limited by the terms of
the articles.^
18. A married woman, with the concurrence, and in the
presence of hpr husband, signed an agreement in writing to
grant a lease ; all parties believing that she was entitled to
two thirds of the property for her separate use, and that the
remaining one third belonged to her brother in India, whose
concurrence it was represented that she could procure. It
was soon afterwards discovered, that the wife was entitled
to one fourth only for her separate use, to another fourth
absolutely ; that another fourth had belonged to her deceased
sister ; and that the remaining fourth belonged to the brother.
The fourth which had belonged to the sister was purchased
by the husband soon after this discovery. Upon a bill for
specific performance against husband and wife ; held, there
could be no decree against her in personam ; and her agree-
ment did not bind the husband, as to the interests in the
property which he had at the date of the agreement, or .which
he afterwards acquired.'^
19. Contracts for the sale and purchase of lands are some-
times brought in question, after the death of the contracting
parties. Thus, such a contract may be enforced, though, by
reason of the vendee's death, the execution of bonds and a
mortgage required by the contract is impossible, as the heirs
or residuary legatees may carry it out. But, it is said, in;
case of the death or bankruptcy of the purchaser, it perhaps
may be optional with the seller to rescind the contract, or to>
demand specific performance ; and, if the defendants are
unable or unwilling to perform, perhaps the estate may be
sold, and the defendants ordered to pay any difference in the
1 Dick V. Donald, 1 Bligh. N. S. 655. ^ Aylett v. Ashton, 1 Myl. & Cra. 105.
60 LAW OP VENDORS AND PURCHASERS. [CH. V.
amount of the purchase-money.' So, it is held, that, to
enforce specific performance of a parol sale of land by one
deceased, the precise terms must be proved. The vendee
must also have taken exclusive possession in pursuance of
the contract, and in the lifetime of the vendor.^
20. If the obligee has fulfilled his part of the contract, his
administrator may sue for a breach, though the purchase-
money has not been paid.^
21. An averment in a declaration, that a vei^or has power
to sell, as executor, is sufficient, without an Eillegation that
the title of his testator is good.*
22. A. made a writing, in these words, signed by himself:
" This is to certify that I engage to my son B. the farm on
which he now lives, and, should Providence determine other-
wise, he is to receive of my estate $1,000, — $500 for the
improvements made on the farm on which my son C. lives,
and $500 for money to be paid to D., widow of my deceased
son." After the death of A., B. brought assumpsit against
A.'s executor,, alleging that A., by the contract, promised to
give to B. the farm, and, should Providence determine other-
wise, that B. should receive from A.'s estate $1,000; and that
A. did not give the farm to B., but that he gave and devised
it to C. Held, the writing was an intelligible and valid con-
tract, and the action could be maintained.^
23. Where a bond for conveyance has been given, and,
after the death of the obligor, his administrator executes a
deed, by virtue of the statute of North Carolina, any equit-
able defence against the bond may be set up against the
deed,^ ,
24. The decree of a court of competent jurisdiction, order-
ing an administrator to convey title to land, which decree
purports to be founded on a title-bond executed by the intes-
tate, is evidence that he did execute it.''
1 Tieman v. Roland, 15 Penn. 429. » Eue v. Ene, 1 New Jersey, 369.
2 Sage V. M'Guire, 4 Watts & Serg. " McCraw v. Gwin, ^Ired. Eq. 55.
228, 229. , ' Holt v. Clemmons, 3 Texas, 423.
•8 Allen V. Greene, 19 Ala. 34. See Holt v. Payne, 3 Texas, 478.
* Adams tJ.M'MiHan, 7 Porter, 73.
OH. v.] PARTIES TO CONTRACTS. 61
25. In a'suit for title, on such bond, it is not essential to
the validity of the decree, or the title executed under it, that
the heirs of the intestate should have been made parties.'
26. The owner of land declared in writing, that he held
the same in trust for A., his heirs, and assigns, subject to his
own lien for advances thereon, and that he was to convey
and would convey to A., or his representatives, upon reim-
bursement of his advances. A. having died, one of his
creditors took out letters of administration, inventoried his
interest in the land, and, under a license from the Probate
Court, sold and conveyed the same for payment of debts.
The administrator subsequently purchased the interest so
sold of such purchaser, received a conveyance thereof, and
then brought his bill in equity against the trustee, for a
conveyance upon paying the advances thereon. Held, the
plaintiff might maintain his bill as the representative of A.,
if not in his own individual right.^
27. The heirs of a vendor, though not named in the con-
tract, and whether adult or infant, are bound, and may be
compelled to execute it, to the extent of their assets.** But,
in New York, generally, the heir will not be compelled to
enter into personal covenants, in fulfilment of the ancestor's
contract.*
28. Bill for specific performance of a contract to convey,
against the heirs of the vendor, one of whom was an infant.
The contract stipulated for a good and sufficient deed, free
of all incumbrances, but did not name the heirs. The
vendor left a widow. Held, the infant was bound to con-
vey, without covenants, and the other heirs with covenants
against their own acts, on payment of the stipulated price,
deducting from each payment a proportionate share of the
value of the dower.^
29. A parol agreement for the sale of land will not be
■ Holt V. Clemmons, 3 Texas, 423. ' Hill v. Eessegien, 17 Barb. 162.
See Holt v. Payne, 3 Texas, 478. ' * Ibid.
2 Dumphe v. Hay ward, 2 Cush. 429. ^ Ibid.
6
62 ' LAW OF VENDORS AND PDROHASBES. [OH, V.
enforced specifically against the heir of the vendor, though
he had given instructions in writing, stating the terms, to an
attorney, to draw the deeds.'
30. The heirs of a vendee, who had a parol contract for
800 acres of land, and had paid the whole price, sold and
conveyed- 100 acres to the complainant. Held, he could not
compel the heirs of the vendor to convey to him the 100
acres.2
31. When a bond for title shows that the title is in a
stranger, from whom the obligor does not procure a convey-
ance to the obligee, nor himself obtain it ; the obligee's heir
does not inherit the land, nor can he maintain a suit upon
the bond in his own name, whether a breach of it occurred
before or after the obligee's death.^
32. If a vendor leaves several heirs, one of whom is a
minor, the purchaser is not bound to accept a deed from the
adult heirs, and a bond of the guardian of the minor with
surety, conditioned for the minor's conveyance when he shall
come of age.* So, in a suit demanding specifie performance
of a contract, by conyeying lands in Ohio, stipulated to be
conveyed as the consideration, for other lands sold in Keu-
tucky, or, in lieu thereof, requiring indemnification by the
payment of money ; held, all the co-heirs of the vendor, de-
ceased, ought to be made parties to the bill, or the death of
one of them not a party ought to be proved.^ But, where
a vendor dies before performance of the contract, leaving an
only child as his heir, who is a lunatic; equity may decree a
specific performance, and direct the committee of the lunatic
to execute all necessary conveyances.^
33. A bond by an administrator to convey real estate of
his intestate, in contemplation of a sale under a surrogate's
order, is void.^ So, if commissioners for selling the real
1 Givens v. Calder, 2 Desans. 171. ^ Morgan v. Morgan, 2 Wheat. 290.
2 Lord V. Underdanck, 1 Sandford, « Swartwout v. Burr, 1 Barb. 495.
46, 48. 7 Herrick v. Grow, 5 Wend. 579 ;
s Allen V. Greene, 19 Ala. 34. M'Dermed v. M'Cartland, Hardin, J 8.
* Barickman v. Kuykendall, 6 Blackf.
21.
CH. v.] PARTIES TO CONTRACTS. 68
estate of one deceased give a bond, conditioned to make or
cause to be made a title in fee simple, which exceeds their
authority, and fail to bind the estate of the deceased ; they
are bound personally.^
34. Questions have sometimes arisen, in reference to the
liability of trustees and cestuis que trust. Thus, the owner of
an estate having agreed with the cestui que trust of an adjoin-
ing estate, to build a new partition wall between them, in
place of the wall then standing, for the benefit of both, and
having built the same accordingly, on a promise by the latter
that he would pay for one half of the wall, if at any future
time he should have occasion to use it for any other purpose
than that for which the old one was then used ; the trustees
of the last-mentioned estate subsequently sold and conveyed
the same, without making any mention of the partition wall,
but with the consent of the cestui que trust, signified by his
signing and sealing the deed ; and the purchaser subse-
quently made use "of the wall for a different purpose from
that for which the old one was used. Held, the agreement
on the part of the cestui que trust was merely personal, and
his assent to the deed was not a use of the wall by him,
within the meaning of his agreement.^
35. Questions have also arisen from the alienage of a pur-
chaser of real estate, and his consequent inability to acquire
an indefeasible title. Upon this point, it has been held, that
aKenage of the vendee will not entitle the vendor to a decree
for rescinding the sale, though it may afford a reason for
refusing specific performance, as against the vendee.^ But,
if the parties have not an adequate remedy at law, the ven-
dor may be considered as a trustee, for purchasers under a
sale by order of Court for the benefit of the vendee.*
36. But, with regard to the parties to a contract for the
sale and purcjjiase of lands, the questions most frequently
arising are those which grow out of the relation of principal
' Whiteside v. Jennings, 19 Ala. 784. ^ Hepburn v. Dunlap, 1 Wheat. 179.
2 Jenkins v. Spooner, 5 Cush. 419. * Ibid.
64 LAW OF VENDORS AND PURCHASERS. [OH. V.
and agent. Of course, the most important inquiry under this
head is, the existence and source of the authority to act for
one person, which is claimed and exercised by another. And
the principle seems well settled, that, although contracts for
the sale and purchase of lands must themselves be in vsrit-
ing, yet verbal authority to an agent to sell lands is suf-
ficient.' [a) But verbal directions to an agent, who has a
power of attorney to convey lands, can neither give new
authority to convey, nor enlarge that contained in the
power.2
37. An authority to sell and convey lands for cash includes
the right to receive the purchase-money .^ So, where' A. en-
gaged B. to hire a certain piece of land for him, at a certain
1 Johnson v. M'Gruder, 15 Mis. 365; ^ Spofford v. Hobbs, 29 Maine, 148.
Coleman o. Garsigues, 18 Barb, 60; = Johnson u. M'Grader, 15 Mis. 365.
Marston v. Roe, 8 Ad. & Ell. 14.
(a) But the signing, sealing, and delivery of a deed by an agent ■will not
be valid, unless authorized by an instrument under seal, or done in the
actual presence of the principal. Kime v. Brooks, 9 Ired. 218. And the
principle stated in the text has not been uniformly recognized. Thtis, it has
been held, that the power of an agent to rent lands must be proved by other
testimony than his own. If there is a written power, it should be produced ;
if it is burnt or lost, the contents should be proved. Neither shall the agent's
leasing for some years and collecting the rents, and the acquiescence of the
owner, be presumptive proof of the power. Meredith v. Macoss, 1 Yea. 200.
A question arose, wjiether the defendant had given a written authority to
one A. to dispose of certain premises which the plaintiff alleged he had bought
under that authority. To prove that a written authority was given, but had
been mislaid, the plaintiff offered A. as a witness. Held, he was not com-
petent, unless the contents of the writing were proved by other witnesses ;
and then he might be allowed to show how he had executed his instructions.
Nicholson v. Mifflin, 2 Dall. 246.
- So, it has been held, that a sale of land by an agent, under a parol au-
thority, is void ; but, if the sale be subsequently affirmed by the principal,
he, and those who claim under him, are estopped from repovering the land
in ejectment, even though a deed to the agent himself, under which he
undertook to sell, was forged. Vanhorn v. Frick, 6 Serg. & R. 90.»
It is said, a parol sale by an agent is as valid as a parol sale by a principal.
Ibid.
CH. v.] PARTIES TO CONTRACTS. 65
rent or at any rent ; and B. effected the lease, but the lessor,
being unwilling to give credit to A., trusted B., and B. paid
the rent ; held, this was a general agency, the payment by B.
was within the object of it, and A. was liable to an action
for the money paid, without demand.^ But, where baron
and feme, having joint power to sell her estate, authorized
an agent to seU by auction, and he sold by private contract
for more than the price they required ; held, the buyer could
not compel specific performance.^
38. A power of attorney to sell lands, " for the purpose of
making actual settlements thereon," and " to sign, seal, and
deliver sufficient deeds, conveying the land in fee simple,
with the several covenants and a general warranty ; " leaves
it to the judgment of the attorney to determine, whether tne
purchasers buy for this purpose, and, in the absence of fraud,
the conveyance will be valid, although the land was pur-
chased, not for settlement, but. on speculation.^
39. A land-broker, having authority, if he could sell land
for cash on delivery of the deed, " to close the bargain,"
signed an agreement in the name of the principal, to sell
the land for the sum fixed in cash on delivery of the deed,
and also that the principal should give a warranty deed, with
fuU covenants and a perfect title at any time on demand
within thirty days. Held, the principal was not bound, the
express authority being merely " to close the bargain," and
not involving the right, in case of lands, to sign a contract ;
and the general agency of land-brokers not being any more
extensive.*
40. Where a power of attorney authorized the agent " to
contract for the sale of, and to seU, either in whole or in part,
the lands and real estate so purchased," and " on such terms
in all respects as he shall deem most advantageous," and
" to execute deeds of conveyance necessary for the full and
perfect transfer of all our respective right, title, &c., as suf-
1 Irions v. Cook, 11 Ired. 203. " SpofFord v. Hobbs, 29 Maine, 148.
2 Daniels v. Adams, Ambl. 495. * Coleman v. Garrigues, 18 Barb. 60.
6*
QQ LAW OF VENDORS AND PURCHASEES. [cil. V.
ficiently in all respects as we ourselves could do personally
in the premises ; " held, that these expressions, aided by the
situation of the parties and the property, the usages of the
country, the acts of the parties themselves, and any other
circumstances having a legal bearing upon the question, gave
to the agent the power to enter into a covenant of seizin. ^
[McLean, J., dissenting.]
41. A proprietor of lands, who had sold lots for which the
pay was still due, and contracted to sell others, granted a
power, " to collect and receive all sums of money due to him
for said lands from purchasers, and to execute all such con-
tracts as the sales may require." Held, the power did not
authorize new contracts for the sale of other lands.^
42. A contract, by which a right of preemption is given to
a party for a certain time, at a fixed price, on a bond fide
expectation that he may become a purchaser, will not con-
stitute him an agent of the vendor, although he sells his
interest in the contract at an advanced price before the expi-
ration of the term. But if the right of preemption is given,
not with an expectation that the party will become a pur-
chaser, but" solely for the purpose of enabling him to make
sale of the thing, and to get his compensation in the advanced
price, this will render him the agent of the owner, and the
■owner responsible for his acts.^
43. Under a power to " mortgage or convey for the pay-
ment of debts," the property may be conveyed to a trustee,
with authority to sell for the satisfaction of debts.*
44. Where a person for himself, and as agent for another,
purchases land on their joint account, but for a higher price
than he is authorized to pay, but without any collusion with
the vendor, or knowledge on the part of the vendor that he
is exceeding his authority ; the other purchaser must either
wholly adopt or wholly repudiate the transaction.^ But
where an agent, holding a power of attorney to sell lands,
1 Le Eoy v. Beard, 8 How. XT. S. 451. * Gimell v. Adams, 11 Humph. 283.
« Calef ». Foster, 32 Maine, 92. 6 Crawford,?;. Barkley, 18 Ala. 270.
^ Mason ». Crosby, Dareis, 303.
OH. v.] PARTIES. TO CONTRACTS. 67
makes a conveyance not authorized by the power, the taking
back of a mortgage and notes, neither of which contain any
specific reference to the deed, nor any thing inconsistent with
the attorney's want of authority, and the receiving by the
principal of the money paid upon the notes, will not operate
as a ratification of the conveyance, nor as an estoppel from
denying the validity of the deed.^
45. An act, authorizing the auditor to rescind contracts for
the purchase of lots, where none of the purchase-money had
been paid, and he was satisfied that the purchasers and their
sureties were insolvent ; applied only to the cases expressly
specified, and did not authorize the auditor to cancel a con-
tract for a lot, the purchaser of which was not insolvent, and
whose note was not, at the date of the rescission, the prop-
erty of the State.2
46. A purchaser alleged, by his answer to a suit for specific
performance, that he acted as a puffer in bidding for one lot,
and also for another lot, which was knocked down to him ;
and that he therefore purchased the lot, and signed the agree-
ment for the purchase, as the agent of the vendor ; but the
statement, in his depositions, of the circumstances attending
the signature, was somewhat difTerent from that in his answer,
and he had signed an order on his attorney for payment of
the deposit-money. Held, there was not sufficient evidence
of agency, and the defendant was held to have purchased on
his own account.®
47. Questions frequently arise, from the form of execution
of a contract made by an agent, as to the respective liabili-
ties of the principal and agent. Upon this subject, the gen-
eral rule is, that a sealed covenant for the sale of land, made
by an attorney in fact, must be executed in the name of the
principal by A. B., his attorney ; if the attorney affix only
his own name, the covenant is void, although in the body of
the instrument it be stated that it is the agreement of the
1 Spofford V. Hobbs, 29 Maine, 148. ^ Bennett v. Smith, 10 Eng. Law &
2 The State v. Mayes, 23 Miss. 516. Eq. 272.
68 LAW OF VENDORS AND PURCHASERS. [CH. V.
principal by A. B., his attorney, that the principal covenants,
&c., and in the in testimonium clause that A. B., as the attor-
ney of the principal, hath set his hand and seal. The
principals not being bound, the other party is discharged ;
and no act subsequently done by the covenantor can give
validity to the covenant without the assent of the covenantee.
But when the agent as such does an act in pais, though in
his own name, or enters into a commercial or other contract,
not under seal, without subscribing the name of the princi-
pal, the latter is bound by the act of his agent.^
48. Although a title-bond, executed by an agent, be insuf-
ficient to bind the principal at law, yet, if the agent were
authorized and intended to bind him, a specific performance
may be decreed in equity, there being a sufiicient note or
memorandum within the Statute of Frauds.^ ■
49. Two tenants in common of a tract of land, which was
divided into two lots, having put the same up for sale at
auction, one of them, without previous knowledge or agree-
ment of the other, bid off and became the purchaser of a lot,
through an agent, who, in his own name, but declaring that
he was acting therein as the agent of such purchaser, signed .
a memorandum, acknowledging to have purchased such lot,
and agreeing to comply with the terms of sale. In a bill in
equity, by the other tenant, to compel his co-tenant to receive
a deed from him of an undivided moiety of the lot, and to
pay therefor one half of the auction price ; held, there was
no sufficient contract in writing, or memorandum of such
contract.^
50. A. advertised lands to be let for three lives or thirty-
one years. B. made proposals for them, which were accepted,
and an agreement executed, between B. and the agent of A.,
in which the term was not mentioned. Held, A. was not
bound by the agreement. Also, there being no reference in
the agreement to the advertisement, that parol evidence could
' Townsend v. Coming, 23 Wend. ^ Johnson v. M'Gruder, 15 Mis. 365.
435. See Wood v. Goodridge, 6 Cush. 117.
8 Gill V. Bicknell, 2 Cnsh. 355.
CH. v.] PARTIES TO CONTRACTS. 69
not be received to connect the one with the other, so as to
ascertain the term.'
51. Bill for specific performance. One of the defendants
purchased lands at tiuction, declaring himself the agent of
the other, in his presence ; but the solicitor of the vendor,
the plaintiff, required the agent to sign the agreement, and
refused to accept the name of the principal ; but subse-
quently communications took place between him and the
principal, respecting the title. Held, the plaintiffs had not
substituted the principal for the agent, but the agent was
personally liable.^
52. On sale of premises by auction, the memorandum of
the mutual agreement was signed by the auctioneer, as •
agent for the purchaser, and by the vendor's attorney, sub-
scribing himself " as agent for the said S. S.," the vendor.
The purchaser paid his deposit to the attorney, who gave a
receipt signed by himself as " agent for S. S," The sale
going off through the vendor's default, and the deposit not
being returned ; held, the purchaser could not bring an ac-
tion of money had and received against the attorney, he not
being a stakeholder, but merely the vendor's agent, and pay-
ment of the deposit to him being payment to the vendor.^
53. The highest bidder for certain lands sold by auction,
and the plaintiff, the mayor of a corporation, on behalf
of himself and the rest of the burgesses and commonalty of
the borough, the vendors, signed a contract, in which they
mutually promised to fulfil the conditions of sale on their
respective parts. The conditions stated the title of the cor-
poration, and stipulated that they should convey, and might
resell on default. The only act therein" mentioned, to be
done by the plaintiff, was the receiving the deposit. Held,
the plaintiff could not maintain an action in his individual
capacity against the purchaser for breach of this contract.*
54. One party, who would exonerate himself on the ground
' Clinan v. Cooke, 1 Scho. & L. 22. » Bamford v. Shuttlewoeth, 4 Ad. &
2 Chadwick v. Maden, 12 Eng. L. & Ell. 926. *
Eq. 180. ' * Bowen v. Morris, 2 Taunt. 374.
70 LAW OP VENDORS AND PtJECHASERS. [CH. V.
of agency, ought to show that he communicated it to the
other, and acted as agent, so as to give a remedy over
against his principal.^
55. The defendant, by a -written agre'ement, expressed to
be made by himself on behalf of A. B., of the one part, and
the plaintiff of the other part, stipulated to execute a lease
to the plaintiff of premises proved to belong to A. B. Held,
the defendant was personally liable.^
56. An ^leged principal, though not originally bound,
may so ratify a sale or purchase, as to become liable for its
completion. And, where a sale made by an agent is ratified
by his principals, the agent's representations, made at the
time of the sale, bind hi& principals.^
57. Upon the general principle which governs the case of
trusts, (see Trust,) the law does not permit an agent to act
in that capacity for his own benefit, or to appropriate to
himself the advantage which rightly belongs to his principal.
Thus, one who assumes to act as agent in redeeming land
sold for taxes, and obtains a title in his own name, will be
held to answer to those for whom he has assumed to act, by
a biU in equity for an account, Smd to compel a reconvey-
ance.* So, one employed to bid for another at a mortgage
sale of land cannot purchase it himself, nor through another,
for his own benefit.^ So, if an agent, appointed to sell and
convey lands, cause part of them to be conveyed to himself,
upon application within reasonable time by the heirs of the
principal, equity will order a reconveyance to them, unless
the principal had ratified the sale.®
58. An agent having purchased the property of his princi-
pal at a sheriff's sale, the Circuit Chancellor refused to set
aside the purchase, but ordered that he account for " the true
value " of the property. Held, this meant the true value at
the time of sale."
' Maure v. Hefferman, 13 Johns. 58. * Scheddaw. Sawyer, 4 McLean, 181 ;
2 Norton w.Herron, B,j. & M. 229. Matthews v. Light, 32 Maine, 305.
W Doggett V. Emerson, 3 Story, C. C. ^ Moore v. Moore, 1 Seld. 256.
700. ^ Stnrdevant v. Pike, 1 Cart. 277.
' ' Eaness v. Wall, 5 Rich. Eq. 143.
CH. v.] PARTIES TO CONTKACTS, 71
59. The rule in question more especially applies, where a
paity combines the characters of trustee and agent for his
fellow-trustees. Thus, a purchaser, (being a trustee, acting
on behalf of himself and others, his co-trustees, and of the
cestui que trusts,) was ordered to pay the purchase-money
into Court ; the agreement having been entered into in the
name of himself alone ; upon affidavits, that the plaintiffs
(the vendors) had no notice of his acting for others, and of
acts of ownership committed since possession given to him
under the agreement ; in opposition to the answer, alleging
notice and denying any ax;ts of ownership by himself, or by
any other person, to his knowledge.^
1 Crutchley u. Jerviugham, 2 Merivale, 502.
72
LAW OP VENDORS AND PURCHASERS.
[CH. VI.
CHAPTER VI.
SALES BY AUCTION.
1. Forms of sale.
2. What is an auction ; effect of a
bid ; separate estates ; letting by auction.
12. Puffing.
24. Combination of purchasers, to
reduce the price.
33. Bights and duties of an auctiop-
eer. '
42. Statute of Frauds.
50. Parol evidence.
53.
1. In the natural succession of topics, we now propose to
consider in what form contracts for the sale and purchase of
lands are required by law to be made. There is, however, a
particular class of sales, to which the general rules upon this
subject do not directly apply, and which may therefore be
more properly treated of, before proceeding to a statement of
those rules, to wit. Sales at Public Auction, {a) These have
become so frequent and import^,nt a nlode of disposing of
real estate, and are at the same time so disftnguishable in
form and effect from mere private transfers, as to have'caUed .
for the establishment of a set of legal principles quite pe-
culiar to themselves, and of great practical consequence.
Auctioneers being also agents, the subject naturally follows
that of a sale and purchase by agents, which was'onsidered
in the last chapter.
2. An auction is defined, a-s " a public sale of property to
the highest bidder." ^ It may be by public outcry or other-
1 1 Boun. Law. Diet. 141.
(a) In many cases, this is the only lawful mode of sale. Thus, an agent
or trustee,. simply authorized to sell by public auction for a certain sum,
cannot, for any price, sell at private sale. Daniel v. Adams, Ambl. 495 ; 8
Jur. 206.
CH. VI.] SALES BY AUCTION. • 73
wise, (a) The essential part, is the selection of a purchaser
from a number of bidders. But questions have sometimes
arisen, as to the precise elements necessary to constitute this
peculiar description of contract.
3. The plaintiff, an auftioneer, was employed to sell
lands, &c., subject to the following (among other) conditions
of sale : 1. " That the vendors having caused a notice to be
delivered to the auctioneer, authorizing one A. to bid for the
premises mentioned in a certain particular, the same should
not be considered as sold, unless the price bid by any oilier
•person or persons should exceed the sum bid by the said A."
2. " That the purchaser of each lot should pay to the auc-
tioneer the duty granted to his Majesty on the sale of real
estates, over and above the purchase-money for each lot."
The conditions were read by the plaintiff, in the hearing of
the defendant, a bidder. Defendant bid £4,000 for a lot,
which bidding was then taken down by the plaintiff in his
catalogue, ivithout adding the name of the defendamt. The
plaintiff postponed the sale, and went to other lots, saying
aloud, he did so, " to give gentlemen time to considei." In
(a) A womaii remained silent during the whole time of a sale, but gave a
glass of brandy to every bidder; and, upon the breaking up of the sale, the
person receiving the last glass was taken aside and declared the purchaser^
Held, an auction.. 1 Dow. 115.
At an auction sale, the vendor invited each bidder to put two sums upon
a slip of paper, and, on comparison, the highest bidder to be declared the
purchaser at the lowest of his sums, if exceeding the highest bid of any other
person. Held, an auction, under St. 19, Geo. lU. ch. 56, and the penalty
incurred for selling without license, though the purchase was never com-
pleted. Kex V. Taylor, McLel. 362. (p. 74, n.)
The agent of the owner of an estate put it up at auction, first in a num-
ber of lots at certain prices. No bid being obtained, he offered it in a
smaller number of lots, at other prices. Still obtaining no bid, he withdrew
the property. Held, this was not a bidding of the owner by his agent, which*
subjected the party to payment of a duty, for want of notice to the auc-
tioneer of his agency. The upset price was merely the terminus from which.
a bidding commenced. Cruso v. Crisp, 3 E. 337.
7
74 LAW OP VENDORS AND PURCHASEES. [CH. VI.
less than an hour, he declared, in defendant's hearing, that
he was going back to the lot, and to defendant's bidding,
that it was an open sale as to the same lot, and that he would
give two minutes time to consider; and unless there was an
advance, he would knock it down to the defendant at .£4,000.
The defendant then said, but not so loud as to be heard by
the plaintiff, that he would not have it. There being no
advance, the lot was knocked down to the defendant ; who
thereupon refused to complete the purchase, or to sign a
memorandum. A. had made no bidding. Held, assumpsit
did not lie to recover the auction duty, which the plaintiff
had paid to the crown, against the defendant, as purchaser,
or as highest bidder, or as a higher bidder than A., according
to the condition of sale.'
4. The agent of the owner of an estate, to be sold at
auction, attends at the place and time of sale ; mentions the
upset price, but not bidders ; and gives notice that he wiU be
ready to treat for a sale by private bargain. Soon after, he
is called into a private room by some of those who attended
at the. public meeting, and they give him offers in writing.
He engages, before inspecting the offers, that the highest
offer shall be accepted ; and it is accepted accordingly.
Held, that where the contract is with various persons, with
an engagement to let the highest bidder be the purchaser, or
to accept the highest offer, it is a sale at auction for the pur-
poses of the act, of 17th Geo. III. c. 50, and l9th Geo. IE.
c. 56.2 (a) *
' Jones V. Nanney, McClelland, 25. ^ Walker v. Advocate-General, 1
Dow. 111.
(a) A sale was appointed for two certain days, by public advertisement,
for the disposal of a house and furniture ; but, some of the furniture not
being then sold, an announcement was made to the company assembled, that
at a future day then named for that purpose, the whole of the remainder
jpould be sold. The persons who attended upon the second occasion, and
were' desirous of purchasing, were directed to retire to another room, where
each was to write two different sums on a piece of paper ; arid, whoever
should be found, on giving in those pieces of paper, to have written the
CH. VI.] SALES BY AUCTION. 76
5. By the General Turnpike Act, the trustees were em-
powered to let the tolls by auction ; but, to prevent undue
preference, a minute-glass was to be turned thrice after each
bidding ; and if no other person bid, the last bidder to be
the farmer or renter. Tru^ees under this act put up tolls
subject to other condition^ one of which was, that, unless
there should be three biddings, there should be no letting,
unless the trustees thought proper to take less than three
biddings, and that they should have a reserved bidding. The
plaintiff made the only bid ; whereupon the trustees declared,
that, if there was no advance, they should be obliged to
make a reserved bidding. The minute-glass was turned
thrice, and there was no further bidding. The plaintiff filed
his bill for specific performance, but the bill was dismissed,
without costs.'
6. A testator directed by his will, that his land should be
sold at auction. It was accordingly advertised for sale, and
A. offered by letter a certain sum, anllno other person bid
as much, and the land was afterwards conveyed to A. Held,
a sale at auction.^
7. Upon the point, at what particular time a sale by auc-
tion is completed ; it is held, that a bidder at an auction
under the usual conditions, that the highest bidder shall be
the prurchaser, may retract his bidding any time before the
hammer is down.^ But where one bids, at auction, though
for another, but does not, at the time the lot is knocked
down to him, nor on the day of sale, disclose to the owner,
nor to the auctioneer, the name of his principal, he is respon-
sible as the purchaser.*
' Levy V. Pendergrass, 2 Beav. 415. ' Payne v. Cave, 3 Term Rep. 148.
2 Tyree v. Williams, 3 Bibb, 368. * McComigt?. Wright, 4 Johns. Ch.
See Minturn v. Allen, 3 Sandf. 50. 659.
largest sum, was to be declared the purchaser. This was held to be a mode
of sale at auction, within the 1 9 Geo. III. ch. 36, sect. 3 & 4 ; and it was held,
that the person who had so conducted the sale had incurred the penalty of
£100 thereby imposed, for having acted as an auctioneer, without first tak-
ing out a license. Attorney-General v. Taylor, 13 Price, 636. (p. 73, n.)
76 LAW OP VENDORS AND PURCHASERS. [CH. VI.
8. Where several lots are knocked down to a bidder, and
his name marked against them in the catalogue, a distinct
contract, both in law and fact, arises for each lot; and a
memorandum signed -afterwdrds by him, stating that he
agrees to become the purchaser olthe several lots set against
his name, does not require a swRnp, though the aggregate
exceed £20 in value, no single lot being of that price.^ In
such case, in a special action for refusing to adhere to the
conditions of sale, the plaintiff" cannot consolidate the con-
tracts.^
9. An auctioneer sold, by request of the owner, different
lots of standing wood, part, of them lying out of his county.
The purchasers took the wood, and paid the owners therefor,
and the auctioneer afterwards paid the duty on the whole
sales. Held, he might recover the amount of such duty
from the owner, in an action for money paid.^
10. Estates may be let or leased, as well as sold, by auc-
tion. This is somet^es done by order of Court. Upon a
letting under the Court, the person declared highest bidder
will not be discharged from his bidding, though it was at a
great overvalue, and was by an agent, who appeared to have
misapprehended the intention of his instructions. But the
lands may be set up again, upon the bidder's undertaking to
pay all costs occasioned by a reletting, and to recognize for
payment, yearly, during the term, of a sum to be settled by
the master, by way of compensation for the loss of rent by
letting. "Where the bidding was £261 per annum, and was
excessive, the Court ordered, upon consent, that the bidder
be deemed tenant at £200,- and take out leases at that
rent, &c.*
11. St. 1822, ch*87, (Massachusetts,) imposing a duty on
sales by auction, ^rcs not embrace a lease thus made. Such
statutes, imposing restrictions, or levying an excise or tax
upon common occupations, are to be construed strictly.
1 Eoots V. Lprd Dormer, 4 Barn. & ^ James v. Shore, 1 Stark. Ca. 426.
Adol. 77 ; Emmerson v. Heelis, 2 Taunt. ' Robinson v. Green, 3 Met. 159.
38. * Coote V. Coote, 2 Ir. Eq. R. 159.
CH. VI.] SALES BY AUCTION. 77
Here there is nothing sold by auction ; the estate not exist-
ing, which it was the object of the sale to fix a price for.^
12. We shall hereafter have occasion to inquire, how a
sale or purchase of land is rendered, void. There is, how-
ever, one reason for avoiding sales at auction not applicable
to others, and which may therefore be properly considered in
this connection. I refer to the use of means on the part of
the vendor or the purchaser, unknown at the time to the
other party, to raise or reduce the price of the property
sold. Upon this subject, numerous cases are found in the
books, (a)
1 Sewall V. Jones, !) Pick. 412.
(a) The leading case, perhaps, upon this subject, is Bexwell v. Christie,
Cowp. 395, where the owner of a horse, to be sold at auction, having
directed the auctioneer not to sell it under a certain sum ; it was held, that
no action would lie against the auctioneer for violating this direction, be-
cause it would be illegal to obey it ; otherwise, if the direction was, not to
put up the horse under a certain sum: In this case. Lord Mansfield re-
marked, upon the practice of employing bidders for the owner, that the
frequency of such practice was no argument in its favor, for the same might
be said of gaming, stock-jobbing, and swindling. In another case, — Howard
V. Castle, 6 T. R. 642, — Lord Kenyon uses the strong language : " The whole
transaction is bottomed in fraud — it is fraud from beginning to end. The
whole of Lord Mansfield's reasoning is founded on the noblest principles of
morality and justice, and calculated to preserve honesty between man and
man." He further remarks, that, if this had been the first case, perhaps
he should have hesitated, but " Lord Mansfield's comprehensive mind saw it
in its true colors."
On the other hand, in the case of Twining v. Morrice, 2 Bro. 331, Ken-
yon, M. R., says : " I do not say the doctrine in Bexwell v. Christie is
wrong ; but everybody knows that such persons are constantly employed."
So, in ConoUy v. Parsons, 3 Ves. 625, n., the Lord Chancellor remarked,
that Bexwell v. Christie turned upon the fact that there was no real bidder,
and the purchaser refused instantly to complete the contract. It was a trap-
auction. " The reasoning goes large, and does not convince one. It would
reduce every thing to a Dutch auction, a bidding downwards." The rule
has also been questioned by Sir Wm. Grant and Lord Roslyn.
The plaintiff and B. were appointed by the will of C, trustees to sell his
lands. They were accordingly sold at auction, after public notice. D., the
7*
78 LAW OP VENDORS AND PTJRCHASBKS. [CH. VI.
13. It may be stated, as the general rule, that if the owner,
or one of the owners, or his agent, of an esta,te put up at
auction, employ puffers, or by-bidders, to bid for him, without
declaring it; this is a fraud on the real bidders, and the
highest bidder cannot be compelled to complete the contract,
or may maintain a bill in equity to set it aside.' So, the
employment of a puffer vitiates the sale, even though the
property brought no more than its general value.^ But not
unless the buyer was thereby induced to bid more than the
value of the property, or more than he had previously deter-
mined to bid.^
14. The rule more especially applies, where all the bidders,
except the purchaser, are by-bidders, secretly employed by
the seller, and the judgment of the purchaser is improperly
influenced by their bids.*
15. It is not fraudulent for a puffer to bid iy degrees,
instead of mafeiitg his highest bid .at once.^ So, when there
are real as well as sham bidders, and the last bid laefore the
purchaser's is a real one,'and the judgment of the'real |Did-
ders and the purchaser has not been blinded by the sham
bidders, the sale is valid.^ (a) Thus, at an auction sale, a
« ° - ■ * .
' Howard,!). Castle, 6 Tei-m Eep. ^ Staines u. Shore, 16 Penn. 200.
642; Crowden !). Adstin, 3 Bing. 368 ; ' Tomlinson v. Sanage, 6 Ired. Bq.
Towle V. Leavitt, 3 Fost. 360 ;" TTwiriing , 430.
t. Morriee, 2 Bro. C. 326. See Smith * Veazie v. Williams, 3 Story, 611.
v. Clarke, 12 Ves. 476; Bowles v. ^ Flint u. Woodin,"13 Eng. Law &
iRound, 5 Ves. 508; Fairfax,!;. Muse, 4 Eq. 278. See loely v. Grew, 6 C. & P.
Munf. 124; Hazal v. JDunliam, 1 Hall, 671.
1-46; Millar u. Campbell, 3 Marsh. 526 ; ^ Veazie v. Williams, 3 Story R.
Donaldson v. McEoy, 1 Brown«, 346. 611w
plaintiff's counsel, bid £1(750, and the defendant £l,751. D. was a by-
bidder' of tEe trustees, who declared he did not want the land, and advised
the defendant to purchase it. Held, if the defendant iad no notice of D.'s
being thus employed, and if D. bid in order to enhance the price for the
benefit of the trustees, the sale was void. MoncriefF v. Goldsborough, 4
Har. &M'H. 281.
(a) Where two parties enter into a wager as to the price of opium ^t a
certain sale, 'each knowing that the other would use means lo influence^ the;„
CH. VI.] SALES BY AUCTION. 79
person bid for the ■mic^r £75 per acre, upon private notice
to the auctioneer. After a contest with bond fide bidders,
the property was sold for over £101, and some days after-
wards the vendee paid the duty. Held, the sale was binding.^
But the sale is void, although only one by-bidder be em-
ployed, and although he is only to bid up to a certain sum,
unless it is announced at the time.^
16. Notice may be given, that the property will be put up
at a certain price, or that the owner reserves to himself one
bid.^ And, in case of the sale of property of an infant, there
should be a reserved bidding.* {a)
' Bramley v. Alt, 3 Ves. 620. ^ Towle v. Leavitt, 3 Fost. 360.
2 Wheeler v. Collier, 1 Moo. & M. * Cntts v. Salmon, 12 Eng. Law &
123. Eq. 316.
price, it is no fraud on one, that the other thus raises the price. Doolubdass
V. KamloU, 3 Eng. Law & Eq. 39. ^
So, employing agents to bid for such a purpose is not an unlawful con-
spiracy. Ibid, ' , *
So, if one has a right to purchase a certain quantity of opium at a sale,
no fraud on the vendors is committed by bribing the agent of A. to exercise
that right. Ibid.
It' has been held, in South Carolina, that the ■employment of a bidder for-
the vendor is not illegal, though no notice be given, and the price be thereby '
very much enhanced. Thus, at a sale of land, there were hand fide bidders
up to $18 or $20 per acre, after which the bidding was confined to the
puffer and the defendant, who purchased at $44. The latter was a good
judge of the land, lived in the neighborhood, and was acquainted with the .
premises, while the by-bidder enjoyed none of these advantages. The latter
also communicated openly with the owner. The property was an old family
seat, which was sold with reluctance, and merely for the purpose of eflfecting
a division, and for which therefore the owner was justified in securing a
large price. Specific perfprmance was decreed against the ^defendant.
Jenkins «. Hogg, 2 Const. S. C. 821.
(a) At), agreement, by an administrator or guardian, to offer the real
estate of his intestate or ward for sale by auction, and to sell the same to a
particular individual, for an agreed price, provided no higher sum should be
bid,' is valid. But such an agreement to sell the estate at a fixed price,
without regard to the biddings, is fraudulent and Void. Hunt v. Frost, 4
Cush.54. .. ' ' ■•
80 LAW OF VENDORS AND PUECHASEES. [CH. VI.
17. The rule applies to a sheriff'^ sWe? Thus, the em-
ployment of a puffer at a sate of property seized under an
extent, -by an agent of the Crown, to whom a bidding is
reserved by the conditions of sale, vitiates the sale.^
18. The circumstance, that a person bid under the private
direction of the vendors, for the purpose of preventing a sale
under a sum specified as the value, is no objection to a
specific performance, especially where the vendors were
assignees in bankruptcy, and the purchaser was not present,
but purchased by an agent.^
19. The misconduct of the purchaser does not preclude
him from objecting to the employment of a puffer.* But it
is the duty of the purchaser to return the property as soon
as the fraud is discovered, unless it is too late to do so.^ So,
in case of by-bidding, the purchaser, immediately upon the
discovery of it, must elect to rescind or abide by the pur-
chase. Thus, vsihere land was sold as containing a gold-
mine, and a by-bidder employed by the sellers to enhance the
price, and the purchasers brought a bill to rescind, twelve
months or more after notice of this fact, in the mean time
having continued to work and explore the land ; held, they
were barred by lapse of time.^
20. Certain mill privileges of the defendants were sold at
auction by H., as their agent, to the plaintiff. After five
years, when the property had greatly deteriorated, the plain-
tiff brings a bill in equity, charging that H. had, by shana
bids, fraudulently enhanced the price, far beyond the real
value of the property ; but not charging the defendants with
knowledge and connivance with him, at the time of the sale.
Held, as the false bidding by the auctioneer was unauthor-
ized by the seller, it would not avoid the sale, although it
would be good ground of action against the auctioneer for
damages ; that H. ought to have been made a party to the
1 Donaldson v. McRoy, 1 Browne, * Rex w. Marsh, 3 Y. & Jerv. 331.
346. * Staines v. Shore, 16 Penn. 200.
2 Rex V. Marsh, 3 Y. & Jerv. 331. » McDowell u. Simms, 1 Bash. Eq.
s Smith V. Clarke, 12 Ves. 476. (N. C.) 130.
CH. VI.] SALES BY AUCTION. 81
bill, and that the lapse of time was, under the circumstances,
a bar to the suit.^ (a)
21. An agent for the complainants, in a foreclosure suit,
may bid for his principals in his own name, without giving
notice of it to other bidders.^ (b) So, at a sale by order of
the Court, a reserved bidding was allowed to be made one
of the conditions, the master to fix the amount, and to use
his discretion in communicating it to the parties, or their
solicitors.^
22. It has been held, that the sale cannot be objected to
on this ground (pufRng) in a suit for the price against the
purchaser, but only by an action on the case or biU in
equity.*
23. By-bidding may avoid a sale as to part only of the
property sold. Thus, at a sale by auction under the decree
of the Orphans' Court, A., one of the parties interested, bid,
to raise the price, on one tract, and B., the agent of C,
another party interested, bid for C, whose purchase would
not have been void but voidable, upon another. Held, the
sale of the former tract was void, but that of the latter was
valid.^
24. While the rule above stated has been adopted for the
protection of purchasers, another, and the converse of the
' Veazie v. Williams, 3 Story's Eep. ^ Jervoise v. Clarke, Jac. & Walk.
611 ; Tomlinson v. Savage, 6 Ired. Bq. 389.
430. * Millar v. Campbell, 3 Marsh. 526,
^ National Fire Insurance Co. v. (sed qucEre.)
Loomis, 11 Paige, 431. ^ Pennock's Appeal, 14 Penn. 446.
(a) A release of all liability in the premises having been executed by the
plaintiiF to the auctioneer, held, a release of his principals the defendants.
(6) If he does this, without disclosing it to the master, he is personally
responsible. The principle, upon which the employment of puffers is disal-
lowed, is, that they are not real bidders, but the instruments of the vendor,
to deceive the other bidders. But the principle is not applicable to a master's
sale of property, under a decree, where the complainant is authorized to bid
upon the property, at the sale, and is bound to take it if bid off, by him, or
by his agent duly authorized.
82 LAW OF VENDORS AND PDRCHASERS. [CH. VI.
former, is applied for the benefit of vendors. Auction sales,
(particularly those made by a sheriff) are said to be founded
upon the idea of fair competition. And as the employment
of puffers is a fraud upon the vendee, so an association of
bidders, designed and calculated to stifle competition, chill
the sale, and depress the price below the fair market value, it
being agreed that one shall buy for the benefit of aU, is a
fraud upon the vendor, as well as a fraud upon the law and
against public policy, and avoids the sale even at law, so
that a deed executed in consequence of it conveys no
title.' (a)
25. So, a sale of mortgaged land by Commissioners in
Chancery ought to be set aside, and another decreed, upon
its appearing to the Court that the highest bidder had pre-
viously agreed with a purchaser from the mortgagor, that he
would allow such purchaser to redeem the land within a
limited time, by repaying him his money with interest ; and
that such agreement being known at the sale, other persons
were induced to refrain from bidding, and, consequently, the
land was struck off at a price inferior to its value.^
26. So, an agreement by the owner of an execution, on
which lands to an amount in value far exceeding the debt
had been seized, to prevent the usual competition at the
sheriff's sale, and in order to leave a balance due on the
execution, for the purpose of having lands of the debtor, in
other counties, seized and sold, is fraudulent; and the execu-
tion is deemed, in law, satisfied.^ So, A., being indebted to B.,
mortgaged to him certain property, which was levied on by
C. under an execution. Before the sale, A. agreed by parol
with C, that C. should bid in the property at the amount of
1 Sraitlii'. Greenlee, 2 Deveroux, 126; ^ Wood's Executor v. Hudson, 5
Martin v. Kaulett, 5 Rich. 541 ; Piatt Munf. 423.
!>. Oliver, 1 MeX. 295 ; Pliippen v. ^ Troup v. Wood, 4 Johns. Ch. 228.
Stickney, -3 Met. 384 ; Switzer v. Sliiles, See Hamburgh v. lidsall, 1 Halst. Ch.
3 Gilra. 529. ' 249, 658.
(a) It has even been held an indictahle conspiracy. Levi v. Levi, 6 Car.
& P. 239.
CH. VI.] • SALES BY AUCTION. 83
the execution, and give A. time to redeem it for the benefit
of B. Other persons, friends of A., who were also present
at the sale, did not bid, relying on this agreement. Held,
on a bill in equity to enforce the agreement, that it was not
within the Statute of Frauds, so as to prevent its execution
by a Court of Equity ; but, whether it was valid or not, that
this sale could not be ratified, as there were parties present,
who were kept from bidding by their knowledge of the
agreement.^
27. A plantation, worth at least $40,000, was ordered
by the Court of Chancery to be sold, to satisfy, in their
order, four mortgages, given to secure debts amounting to
$80,000. The first mortgage was owned by B., and secured
a debt of $22,000, and the last was owned by N., his debt
being $17,000. B. also had an unsecured debt against the
mortgagor of $16,000. 9- had determined, if necessary to
secure his debt, to bid the property up to $50,000, and this
coming to the knowledge of B., he proposed that if N. would
not bid against him, and if he should purchase the planta-
tion at or under $30,000, he would secure N.'s debt — the
agreement to be at an end, if the biddings went over
$30,000. This was acceded to, and at the sale B. bid ofi'
the property at $11,000. B. had entered into an arrange-
ment before the sale,' if he became purchaser, to sell the
property, on credit, for $55,000, a sum sufficient to secure
his own mortgage, N.'s mortgage, and B.'s unsecured debt.
Held, on the application of the intermediate mortgagees,
that the agreement between B. and N. was illegal, and the
sale was set aside.^
28. A. and B., sureties of C, whose property was about
to be sold at sheriff's sale, for the purpose of indemnifying
the sureties, agreed not to bid against each other ; that B.
should bid, and that, if the property was knocked off to him,
the sureties of C. should share in the benefit of a resale. A.
' Kose V. Bates, 12 Mis, 30. " Hamilton v. Hamilton, Rich. Bq.
355.
84 LAW OP VENDORS AND PtJRCHASEBS. [CH. VI.
intended to bid at the sale, and, but for the agreement, would
have done so. On the day of sale, B. met a judgment cred-
itor of C, who attended " for the purpose of looking after his
case," and, telling him he need not bother himself, offered to
buy, and did buy, his judgment. At the sale, B. purchased
property to a considerable amount, and at a considerable
sacrifice. Held, on a bill filed by the creditors of C, that
the conduct of B., in silencing bidders, was illegal,' and the
sale was set aside.'
29. When mortgaged property has been described in the
advertisement of the sheriff as subject to a larger ground
rent than it really is, and thereby sold at an under-price ; the
sale will be set aside, though before it occurred the mistake
was corrected.^
30. There are cases, however, which somewhat qualify the
general principle above stated. THros, it is said, that a sale
is not invalid, when an association of bidders has for its
object a fair competition, and is formed because one, from
the magnitude of the purchase or the like, cannot bid on his
own account. So, if the purpose be, to enable each of the
parties to become a purchaser, when he desires a part of the
property only, or any other honest and reasonable purpose.^
So, it has been held, that sales on execution are distinguish-
able in this respect from voluntary sales, and especially sales
of public lands, made at public auction by the United States ;
and, it is said, that an association of individuals cannot pur-
chase jat such sales, is a novel doctrine. So it has been held,
that lien creditors, as weU as others, may purchase jointly,
even at sheriff's sales, if all be open and fair. A combination
of interests for that purpose is not necessarily corrupt. It is
the end to be accomplished, which makes such a combination
lawful or otherwise ; if it be to depress the price of the prop-
erty by artifice, the purchase will be void ; if it be to raise
1 Hamilton v. Hamilton, Kich. Eq. Welch v. Murray, lb. 196 ; Denn v.
355. Lecony, Coxe, 39.
2 Wells u. Pheiffer, 4 Yea.203. See ^ Smith v. Greenlee, 2 Dev. 126;
Kearney v. Taylor, 15 How. 494.
OH. VI.] SALES BY AUCTION. 86
the means of payment by contribution, or to divide the
property for the accommodation of the purchasers, it will be
valid.^ So, an agreement between A. and B., that B. will
permit A. to buy a tract of land which is to be sold at auc-
tion, and that A. will buy it, and convey a certain part,
thereof to B. at an appraisement to be made by persons
named in the agreement, is not, on the face of it, void for
illegality.^ So, a mere unsuccessful attempt of the purchaser
to prevent a person from bidding, will not avoid the pur-
chase.^
31. The general rule, above considered, applies as well
between the parties themselves who enter into the illegal
agreement, as in reference to the vendor. Thus, the contract
or job for rnaking a road was put up at auction, and A. and
B. agreed that one of them should bid, and, if the contract
should be struck off to him, the other should have an equal
share in it. B. having become the purchaser, A. brought an
action against him on the agreement. Held, the agreement
was without consideration, and void.*
• 32. But a party not prejudiced cannot avoid an auction
sale, on account of proceedings on the part of others con-
cerned, which may tend to reduce the price. Thus, if the
trustee, or one of the creditors, in a deed for the benefit of
creditors, be authorized to prescribe the day of sale, and the
length of time fo» which it shall be advertised ; the failure
to notify any of the creditors of the time and place, does not
warrant the inference, that as to one of the creditors provided
for, and who attended the sale and purchased the property,
the sale was fraudulent ; and the grantor, who assented to,
and was present at the sale, cannot, upon that ground, defeat
an action by the purchaser for the recovery of the articles sold.
And where the sale of property, which had been conveyed
by deed of trust, was, under the powers conferred, expedited,
(with the assent of the grantor,) so as to prevent the inter-
1 Small V. Jones, W. & Serg. 128. » Haynes v. Crutchfield, 7 Ala. 189.
2 Phippen v. Stickney, 3 Met. 384. * Wilbur v. How, 8 Johns. 444.
86 ' LAW OP VENDORS AND PURCHASERS. . [CH. VI.
ference of some of his creditors, who were prosecuting their
claims to judgment ; the grantor, when sued by the purchaser
at the trust sale for property sold, cannot for that cause de-
feat a recovery.'
33. If a purchaser at sheriff's sale participate in a fraudu-
lent contrivance, by which he was enabled to become the
purchaser, in an action of ejectment against him for the
property, it is not necessary that the plaintiff should offer to
refund the amount bid and paid.^
34. It is not per se fraudulent for the owner to act as
auctioneer.^ But it has been suggested, that an auction
sale to an association, of which the auctioneer is a member,
is invalid.* And it has been expressly decided, that an
auctioneer cannot purchase property himself. So, if he has
also been in other respects connected with the vendor, as
by valuing the property ; and purchases the estate the next
day by private contract, it not being sold at auction, for
want of a bid ; and fails to give a satisfactory account of
the proceedings in his answer to a bill filed against him ; the
purchase will be set aside. In such case, the duties of an
agent do not cease with the auction.^
35. But a purchase by an Eluctioneer for hiniself is not
void, but voidable by the principal. Third persons cannot
question the sale.^
36. As in the case of other agents, (see ^hap. V.,) an auc-
tioneer's authority to seU land need not appear in writing.''
37. An auctioneer cannot delegate his authority.^ But he
may employ another person to use the hammer and make
the outcry, under his immediate supervision and direction ;
and, though he is occasionally absent during the sale, the
agent will not incur the penalty of selling without license.*
Whether the transaction was a sale by the auctioneer, made
1 Haynes v. Crutchfield, 7 Ala. 189. 6 Oliver v. Court, 8 Price, 127.
2 Small V. Jones, W. & Serg. 128. « Veazie v. Williams, 3 Story, 611.
-■' Flint V. Woodin, 13 Eng. Law & ' Doty v. Wilder, 15 111. 407.
Eq. 278. * Stone v. The State, 12 Mis. 400.
* Kearney v. Taylor, 15 How. 494. » Com. v. Harnden, 19 Pick. 482.
CH. n.] SALES BY AUCTION. 87
through the defendant, or by the defendant, under pretence
of a permission from the auctioneer, in order to evade the
statute, is a question for the jury.'
38. Questions sometimes arise, as to the authority of the
auctioneer to receive payment for the property sold.
39. An auctioneer's authority, to receive a portion of the
purchase-money, which, by the terms of sale, is to be paid
within a certain time, does not, ipso facto, expire immediately
at the end of that time.^
40. Under some circumstances, payment to the auctioneer
will be invalid.
41. Thus, the plaintiff having employed an auctioneer to
sell timber growing, the following, amongst other conditions,
were read at the sale, in presence of the defendant : " That
each purchaser should pay down a deposit of £10 per cent.
in part of the purchase-money, and pay the remainder on or
before the' 17th of August ; but in case any purchaser should
prefer to pay the whole amount of his purchase-money at an
earlier period, discount after the rate of £5 per cent, will be
allowed." Also, "that each purchaser shall enter into a
proper agreement and bond, if required, with such one, two,
or more sureties as shall be approved by the vendor, or his
agent, for the performance of his agreement, pursuant to the
above conditions." The defendant purchased one lot, and
paid the deposit. Some days after the sale, which was on
the 14th of February, the defendant, at the auctioneer's re-
quest, drew a bill of exchange for the residue of the pur-
chase money, dated on the day of the sale, and payable in
six months to his own order, and indorsed it to the auction-
eer, who indorsed it to a creditor of his own. When the bill
became due, it was paid, but never transferred to the plaintiff.
Held, the delivery and payment of the bill was not a valid
payment of the purchase-money, the auctioneer having no
authority to receive payment, or, if he had such authority,
only in cash .5
' Com. V. Harnden, 19 Pick. 482. = gykes v. Giles, 5 M. & W. 645.
2 Pinckney v. Hagadorn, 1 Duer, 89.
88 LAW OF VENDORS AND PUKCHASBRS. [CH. VI.
42. The auctioneer is, in general, responsible for the pur-
chase money paid him, only to his employer. Thus, the
defendant, an auctioneer, was employed by a person in em-
barrassed circumstances, known to the defendant, to sell his
property ; sold it, and paid the proceeds to his order. The
owner was soon afterwards declared insolvent. Held, the
defendant was not liable to the assignees.^
43. It has been questioned, whether sales by auction,
except those made under a decree, are within the Statute of
Frauds.^ But the weight of authority is that fhey are.^
Thus, where a contract for the sale of land has been aban-
doned, and an action brought for the deposit, and the plaintiff
declares on the special circumstances, and states the contract,
he must prove it to have been a valid one, by a note in
writing, even though the sale was by auction.* (a)
44. But if auction sales are within the statute, the weight
of authority also is, that an auctioneer is by implication an
ag'ent, duly authorized to sign a contract for the purchase of
a real estate, on behalf of the highest bidder. Writing the
name of the highest bidder in his book, or memorandum of
sale, is a sufficient signature, more especially if done imme-
diately on receiving the bid and knocking down the hammer.
And, if the highest bidder is agent for another, and if the
• terms and conditions are stated, the writing of the bid-
der's name will bind the principal ; at least if the principal
is present, and consulting with the agent during the sale,
and makes no objection before the entry made in the book.''
' White V. Bartlett, 9 Bing. 378. M'Comb v. Wright, 4 Johns. Ch. 659;
^ Simon ti.Motivos, 1 BI. 599 ; Brook Piuckney v. Hagadorn, 1 Duer,' 89;
V. Jones, 8 Tex. 78. Doty v. Wilder, 15 III. 407 ; Hunt v.
s Blagden u. Bradbear, 12 Vcs. 466; Gregg, 8 Blackf. 105; Meadows u.
Higginson v. Clowes, 15 Ves. 516. Meadows. 3 M'C. 458. See Bartlett v.
* Walker u. Constable, 2 Esp. Ca. Purnell, 4 Ad. & Ell. 792 ; Howe u.
659. Dewing, 2 Gray, 476.
"i White V. Proctor, 4 Taunt. 209;
(a) A sheriff's sale is within the statute, but his return, stating fully the
terms of the contract, if made immediately upon the sale, is a sufficient
signing. If otherwise, not. Jackson zi. Catlin, 2 Johns. 248 ; Hunt u. Gregg,
8 Blackf. 105.
CH. VI.J SALES BY AUCTION. 89
The auctioneer's authority is given by the buyer's bidding
aloud, or giving in his name.' And specific performance
will be decreed against the purchaser, upon the note made
by the auctioneer.^
45. On the other hand, it has been held, that the auctioneer
is not an agent for both parties, and therefore such entry in his
book is not a sufficient note in writing.^ (a) More especially
that fact not being proved to be contemporary, and the auc-
tioneer being also vendor.* So, a plea, that "A., by his writing,
sold the after-math of land to B.," is not proved by evidence,
that, at an auction held for the purpose of selling it, B. was
the purchaser, and gave his note for the price, and that
his name was written by A.'s agent in the printed cata-
logue, as the buyer.^ So, the rule above stated extends only
to persons exercising the public business of an auctioneer,
not to mere private agents of the vendor.®
46. The mere signing of the auctioneer is not sufficient,
1 Emmerson v. Heelis, 2 Taunt. 38 ; highest bidder at a sale of land, to re-
Simon V. Motives, 1 Black. 599. In cover nmney paid by the plaintiflf for
this case, Lord Mansfield remarked, that the auction duty; which, by the con-
the solemnity, of an auction sale pre- ditibns, the purchaser was to pay. It
eludes all perjury as to the fact of the appeared that the sale was invalid, in
sale ; and expressed it as the inclination consequence of the plaintiff's having
of his opinion, that auctions, in general, omitted to set down the name of the
are not within the Statute of Frauds, defendant. Held, neither this action,
Wilmot, J., was inclined to think, that nor an action for moneypaid, would lie.
sales by auction, openly transacted be- Jones v. Nanney, 13 Price, 76. See
fore five hundred people, were not within Deven v. Davenell, 3 Camp. 451 .
the statute. But in Hinde v. White- ^ Kemeys v. Proctor, 3 Ves. & B. 57 ;
house (7 E. 568,) Lord Ellenborough 1 Jao. & Wa,lk. 350.
remarked, that, with all due deference, " Stansfield v. Johnson, 1 Esp. Ca.
it was no sufficient reason to dispense 101 ; Buckmaster v. Harrop, 13 Ves.
with the statute, merely that the guan- 456. See Simon v. Motivos, 1 Black.
turn of parol evidence diminishes the 599.
danger of perjury ; but failed to express * Buckmastqr v. Harrop, 13 Ves. 456.
a decided opinion upon either side of * Symonds u. Ball, 8 Term Hep. 151.
the question. The plaintiflf, an auction- ° Anderson v. Chick, 1 Bai. Eq. 118.
eer, brings special assumpsit against the
(a) By the Revised Statutes of New York, a contract of sale is void, and
not binding upon the vendor or vendee, unless subscribed by the vendor or
his agent thereto duly authorized ; and the entry by the auctioneer on his
books is not a signing within the statute. Miller v. Pelletier, 4 Edw. Ch.
102.
8*
90 LAW OE VENDOKS AND PURCHASERS. • [CH. VI.
unless the terms and conditions of the sale appear in the
paper signed. His memorandum, or some writing connected
therewith, must refer to the conditions of sale, and state
the material terms of the agreement.' Thus, an auctioneer,
after reading or exhibiting written conditions, made this
memorandum : " Sale, on account of Messrs. Morton and
Dean, assignees of the Taunton Iron Company, of the real
estate, nail-works, water-privilege, buildings, and machinery,
agreeable to the plans and schedule herewith. Sale to Silas
Dean for $30,300. April 5th, 1843." Held, this memoran-
dum was insufficient, not containing nor referring to the
conditions of sale.^ So, an auctioneer's receipt for the de-
posit, not containing expressly or by reference the terms,
viz : the price, cannot bind the vendor as an agreement.^
So where, on the sale of an estate by auction, the name of
the owner does not appear in the particulars or conditions of
sale, or in the agreement signed by the purchaser, and the
agreement is not signed either by the vendor or the auc-
tioneer, it seems the seller cannot maintain an action on the
contract.*
47. The agent, contemplated by the 17th section of the
statute, who is to bind a defendant by his signature, must be
a third person, and not the other contracting party. There-
fore, where an auctioneer wrote the defendant's name, by his
authority, opposite to the lot purchased ; held, in an action
brought in the name of the auctioneer, the entry was not
sufficient.^ So, where an administrator,, licensed to sell the
real estate, acted as auctioneer; held, a memorandum by
him of the sale at the time was not binding on the pur-
chaser, the auctioneer not being in law his agent?
48. It has been held, that the highest bidder is bound by
the entry in the sale-book by the auctioneer's clerk, made in
his presence, upon his name being called out as the pur-
1 Morton v. Dean, 13 Met. 385 ; Doty ' Wheeler v. Collier, 1 M. & M. 123.
V. Wilder, 15 111. 407. ^ Farebrother v. Simmons, 5 Barn. &
2 Ibid. Aid. 333.
s Blagden v. Bradbear, 12 Ves. 466. « Smith v. Arnold, 5 Mas. 414.
CH. VI.] SALES BY ATJCTiON. 91
chaser, even in an action brought by the auctioneer.' If
an auctioneer has a clerk, to make entries in the sale-
book ; authority of the purchaser, to enter his name in
such book, must necessarily be implied, where, within view
of all the bidders, he is employed to thus enter the names ;
and such authority may be given before or at the time
of entry, and a subsequent assent of the purchaser wiU con-
firm an entry made without authority .^ So, an auction-
eer's clerk, under a general authority to act in his master's
absence, may sign a contract for' sale, where the vendor knew
that he was so to act. So, where such clerk signs the con-
tract as a witness for his master, who is authorized to sell,
he may be considered as a contracting party according to
the statute.^
49. But, in the following case, lands of the defendant were
put up by him at auction, and one condition of the sale was,
that the purchaser should pay a deposit and half the auction-
duty. The plaintiff purchased and paid as above, and signed
a written memorandum of the contract, which A. B., the
auctioneer's clerk, also signed, as follows : " Witness, A. B."
A. B. received the above sums for C, the auctioneer, and
signed the receipt (being authorized by C. to do so,) as fol-
lows : " For Mr. C, A. B." Money was afterwards paid over
by the auctioneer on the purchase, to D., the defendant's
attorney, as his agent. The defendant not being able to
make out his title, D., as his agent, wrote a letter to the
plaintiff's attorney, naming the plaintiff and defendant, say-
ing that he could not make out the title to " this property as
freehold," advising the plaintiff to relinquish his purchase,
and referring to the " charges " to be made by the plaintiff's
attorney. Held, that A. B. did not sign the memorandum
as agent to the defendant ; that neither his agency nor the
contract was recognized by the receipt of the money or D.'s
' Bird u. Boulter, lNev.& Man. 313; ^ Cathcart w. Keirnaghan, 5 Strobh.
4 Barn. & Adol. 447 ; Doty v. Wilder, 129.
15 111. 407. But see Meadows v. Mea- ^ i Smith's Rep. 233.
dows, 3 M'C. 458.
92' LAW OF VENDORS AND PUBCHASBES. [CH. VI.
letter; that there was, consequently, no proof of a contract
to make a title, on which the defendant could be charged
under section 4 of the Statute of Frauds ; and therefore, that
although the plaintiff might recover the deposit and moiety
of, auction-duty as money had and received, he could not re-
cover interest thereon, nor his expenses of investigating the
title.i
50. Questions have arisen as to the introduction of parol
evidence in relation to auction sales of land, &c. Upon this
subject, it is held, that the verbal declarations of an auc-
tioneer, at the time of sale, are not admissible, to contra-
dict the printed conditions or particulars.^ So, though the
question arises on a sub-sale by the purchaser.' So, though
a paper, as the particular upon a sale by auction, may by
reference be engrafted into a contract within the Statute of
Frauds, that wiU not authorize the introduction of parol
evidence to show what part was read.* So, parol evidence
is not competent, in aid of a specific performance, to explain
by declarations of the auctioneer an ambiguity on the face of
the particular, growing out of a general clause for a separate
valuation of the timber, and also special provisions as to the
timber upon certain lots ; the agreement, signed on the back
of the particular, binding the purchaser, the defendant, " to a
strict fulfilment of the article, and to abide by the conditions
and regulations made at the sale." ^ So, in an action against
a purchaser at auction, for not completing the sale, the
printed conditions cannot be contradicted by the verbal
declarations of the auctioneer at the time, in order to dis-
prove the charge of misrepresentation. Thus, where the
conditions were, that the property was " free from all incum-
brances," when, in fact, there was a charge upon it of £>V7
per annum, which the auctioneer declared, but not to the
purchaser individually; held, no action would lie against the
1 Gosbell V. Archer, 2 Ad. & Ell. 500. ' Higginson v. Clowes, 15 Ves. 515.
2 Gunnis v. Erhart, 1 H. Bl. 289. '' Ibid.
^ Shelton v. Livins, 2 Cromp. & Jerv.
411.
CH. VI.] SALES BY AUCTION. 93
latter for not completing his purchase.' So, where printed
conditions of sale of timber, growing in a certain close, do
not state the quantity, parol evidence is not admissible that
the auctioneer warranted a certain quantity.^
51. But parol evidence of declarations by the auctioneer
at the sale, warranting the quantity, were received in oppo-
sition to a specific perforfnance, on the ground of "fraud ; not
to enforce the performance.^ (a) So, though parol evidence
1 Gunnia v. Erhart, 1 H. Bl. 289. ^ Winch v. Winchester, 1 Ves. &
•^ Powell V. Edmunds, 12 Bast, 6. Beam. 375.
(a) Assumpsit, upon a promise by the defendant to pay one A. the amount
of a debt due from the plaintiff to A.,, secured by a mortgage of the plain-
tiff's real estate, in consideration of a deed of release given by the plaintiff
to the defendant of such estate. It appeared, that the plaintiff had an
auction sale of his property, including the estate in question. When this
■was offered for sale, the auctioneer, after describing the property, stated the
precise amount of the mortgage, and called for bids by asking, " Who will
give more ? " or, " How much more will you give ? " and it was struck off to
B. for $50. The defendant, being present at the sale, afterwards agreed
with B. to buy his bid for $25 advance. The plaintiff thereupon gave a
quitclaim deed to the defendant, with a covenant against the claims of all
persons claiming by, from, or under him, except the mortgage, and the
defendant paid to B. the sum agreed. Held, parol evidence was admissible,
of an understanding by the plaintiff and B. at the sale, that the purchaser
was to pay the mortgage debt, notwithstanding the memorandum of the
auctioneer's clerk and the deed of the plaintiff; and that the agreement was
not within the Statute of Frauds. Fiske v. M'Gregory, Law Kep. Mar. 1857,
p. 633, (New Hampshire.)
Assumpsit for the price of land sold at auction. The bid was $600, $200
to be paid down, which was done ; the balance to be secured on time, and
the deed executed upon production of the requisite securities. The plaintiffs
< made a proper deed, and tendered it on condition of receiving the securities.
The defendant did not give them, but obtained the deed and placed it on
record without consent of the plaintiff, and took possession of the land. Held,
the defendant having treated the deed as delivered, the plaintiff might elect
to do so, and thus vest the title in the defendant, notwithstanding the Statute
of Frauds. Also, that a special action could be maintained against the
defendant, for failing to furnish the securities, before the time fixed for pay-
ment, and damages recovered to the amount of the agreed price. Also, that
a general action for the price might be brought, after the time of payment
had passed. Asoutney, &c. v. Ormbsy, Law Kep. Dec. 1, 1856, p. 469, (N. H.)
94 LAW OF VENDORS AN1> PURCHASERS. [CH. VI-
of the declarations of an auctioneer, contrary to the written
terms, of sale, is not admissible, •such evidence, as to the
property intended to be sold by him, is proper.^ So, a pur-
chaser at auction is bound by verbal declarations of the
vendor, made publicly, at the sale, and before the biddings ;
which declarations are not variant firom the terms advertised,'
but are additional and explanatory thereto. And he shall
be compelled to complete his purchase according to the
terms so explained.^
52. It has been questioned, whether the rule against admit-
ting verbal declarations of an auctioneer at the time of sale,
in contradiction to the printed particulars, has the effect to
exclude evidence of personal information as to a mistake in
the particular.' So, the printed conditions of sale posted up
under the auctioneer's box, he declaring that the conditions
are as usual, are sufficient notice to purchasers of such con-
ditions.* So, the auctioneer's advertisement may be ex-
plained by his declarations at the time erf sale.^
53. It will be seen hereafter, that part-performance of a
verbal contract takes it out of the operation of the Statute
of Frauds. (See ch. 8.) But it has been held, that payment
of the auction-duty is not such a part-performance as will
have this effect.^
54. In connection with the subject of sales by auction, may
properly be considered the rights and liabilities of vendor and
purchaser, with reference to a deposit. A deposit is the pay-
ment of a part — usually a small part — of the price, by the
purchaser ; made chiefly for the purpose of binding the bar-
gain. Occurring for the most part in sales by auction, it .
naturally forms a part of that particular title in the law of
vendors and purchasers.
55. An auctioneer receiving a deposit is said to be a stake-
' Lessee of Wright v. Deklyne, Pe- * Mesnard v. Aldridge, 3 Bsp. Eep.
ters' Cir. C. 199. See Wainwright v. 271.
Read, 1 Desaus. 573. * Eankin v. Matthews, 7 Ired. 286.
2 Cannon u. Mitchell, 2 Desaus. 320. * Buckmaster v. Harrop, 7 Ves. 341.
» Ogilvie V. Foljambe, 3 Meii. 53.
CH. VI.] SALES BY AUCTION. 95
holder, not the agent of the parties. He is held to be liable
at all events, till the contract is completed. His knowledge
of a defective title is equivalent to an express notice not to
pay over. The deposit is a conditional payment, not to be
parted with till the conditions are fulfilled.' {a) Hence, if
the vendor of an estate by auction does not show a clear
title by the day specified, the purchaser may recover back
his deposit and rescind the contract.^ So, where an auction
purchaser rescinds the bargain, in consequence of an objec-
tion to the title and concealment of material facts, he may
recover a deposit from the auctioneer, no proof being offered
that it has been paid over to the vendor. The auctioneer
would have no right to pay it over, till completion of the
^ Edwards v. Hodding, 1 Marsh. 377; ^ Wilde v. Foote, 4 Taun. 334.
Barrough v. Skinner, 5 Burr. 2639.
(a) Sale of houses at auction, according to certain particulars and con-
ditions, one of ■which was, that an abstract of title be delivered within ten
days, and another, that a deposit be paid the auctioneer. A purchaser of
tw(Miouses paid the deposits, signed an agreement as purchaser, and took a
receipt from the auctioneer, as for payment of a deposit upon the auction
sale of the premises named in the particulars, &c. The abstract not being
delivered, the vendee brings an action against the auctioneer for his deposit,
and offers in evidence the receipt and conditions of sale, but not the agree-
ment signed by himself. Held, the action was not sustained. Curtis v.
Greated, 3 Nev. & M. 449 ; 1 Ad. & Ell. 167.
The title of an estate sold at auction being objected to, the auctioneer
refused to return the deposit, and was compelled to pay the costs of a suit
brought against him. Held, he could not recover the amount from the
vendor, in an action for money paid, but must declare specially. Spurrier
u. Elderton, 5 Esp. 1. • See Mitchell v. Hayne, 2 Sim. & St. 63.
If an auctioneer deviate from the strict terms of the conditions, he must
personally suffer the consequences; being liable for the duties, and not
entitled to maintain any action against the vendee. If the auctioneer has
fulfilled his duty, he may maintain assumpsit, as on an implied promise,
against the vendor ; who also has a claim upon the purchaser, on the express
agreement arising from the conditions of sale. Jones v. Nanney, 13 Price,
76. As to the general rights and liabilities of an auctioneer, see Rex o.
Christie, 2 Anst. 586; Hardacre v. Stewart, 5 Esp. 103 ; Nelson v. Aldridge,
2 Stark. 435; Brown v. Stadton, 2 Chit. 353.
96 ^ LAW OF VENDORS AND PURCHASERS. [OH. VI.
sale.i So, an auctioneer received' a deposit from the pur-
chaser, in presence of the vendor, signed an agreement ac-
knowledging the sale, and engaged to complete it ; but, by-
reason of a defect in the title, the sale was not completed.
Held, the purchaser might recover the deposit from the auc-
tioneer, though paid over to the vendor before, discovery of
the defective title, and though the purchaser had given him
no notice against paying it over.^
56. The net amount of a deposit only, without interest,
can be recovered in an action for money had and received.^
So, where an auction purchaser paid to the auctioneer a
deposit as part of the price, until the title should be made
out ; held, the auctioneer was not liable for interest, though
four years had elapsed since the sale, no demand of payment
having been made upon him.* So, an auctioneer, as agent
for the vendor, agreed to seU according to printed conditions,
by which the purchaser was to pay down a deposit and the
duty, and the balance of the price at a certain day, upon
receiving a good title, and the vendor was to prepare ^d
deliver to the vendee an abstract. The title being defective,
and the sale consequently failing, held, the auctioneer was a
stake-holder, and not liable for interest, unless the money had
been demanded, or notice given him that the bargain was
rescinded.^
57. AU matters of difference between two parties were
referred by a Judge's order to arbitration, and an agreement
of reference entered into, in which one of them was described
as the administrator of a deceased person, late owner of the
leasehold premises, the right to which was in dispute. It
was awarded, that the premises be sold by an auctioneer,
whose appointment was assented to by both parties. The
plaintiff, the attorney of one of the parties, who, at the time
of the sale, was aware that the other had not taken out
' Burrough v. Skinner, 5 Bnn-. 2639. * Lee v. Mu'nn, 1 Moore, 481.
2 Gray v. Gutteridge, 3 C. & P. 40. ^ (jaby v. Driver, 2 You. & J. 549.
8 Walker v. Constable, 1 Bos. & Pul.
306.
CH. VI.] SALES BY AUCTION. 97
administration, became the purchaser, and paid a deposit to
the auctioneer, it being understood, at the time of the sale,
that administration would be taken out. The proposed
administrator, however, afterwards refused to do so, and a
good title was not made out. Held, the plaintiff might re-
cover his deposit from the auctioneer, without notice of the
contract having been rescinded.^
58. A., as the agent of the defendant, the owner of land,
enters into an agreement, with penalty, for the sale of it,
with B., who appears to act on his own account, but in fact
is the agent of the plaintiff, and B. pays part of the purchase-
money as a deposit. Held, upon a breach of the conditions
of sale, on the part of the vendor, an action for money had
and received lies to recover back the deposit, without proof
of the money being paid over by A. to the defendant.^
59. On a contract for purchase, a part of the purchase-
money was paid as a deposit to the vendor's solicitor,
who paid it away at the desire of the vendor, without the
concurrence of the purchaser. This created a difficulty in
completing the purchase, as a mortgagee of the estate would
not join in the conveyance without payment to him of the
deposit. In a suit by the purchaser for specific perform-
ance, the solicitors were declared liable to make good the
raoney.^
60. An attorney, who was also an auctioneer, received a
deposit on property, which he had sold by auction, and, after
queries raised on the title, and before they were cleared, paid
over the deposit to his principal. On a demand of the de-
posit by the buyer, he answered, that his principals would
not consent to return, and would enforce the contract. Held,
the buyer might recover the deposit from the auctioneer as
money had and received to the plaintiff's use : 1, because
the defendant, as attorney, had notice that the title had not
been completed before he paid over the money ; 2, because
^ Duncan </. Cafe, 2 Mees. & Wels. ^ The Duke of Norfolk v. Worthy, 1
244. Campb. 337.
8 Wiggins V. Lord, 4 Beav. 30.
98 LAW OF VENDORS AND PUBCHASBRS. [CH. VI.
he misled the plaintiff to sue him, by not saying he had
paid it overJ
61. Where an auctioneer, against whom an action was
brought to recover the deposit upon the ground that the
vendor's title was defective, applied for an interpleader rule,
and it appeared that the vendor had no other property, the
Court refused the application, unless the defendant gave
security for costs ; and refused to allow the defendant his
costs of the application out of the deposit.^
62. Where the vendor of an estate at auction is unable to
make a good title, the purchaser cannot recover the deposit
from him, as money had and received, though paid over to
him. The remedy is against the auctioneer, who is the agent
for both parties, to appropriate the deposit to the party en-
titled to it.3
63. If the purchaser demands his deposit at the day for
completing the contract, and the vendor has not delivered
his abstract before that time, and also neglects to deliver it
until after an action brought for the deposit, it is evidence of
an abandonment of the contract by the vendor ; who shall
not be entitled afterwards to a specific performance.*
64. If a party has given a bill of exchange or check for
the amount of a deposit on a sale by auction, any ground on
which he could recover back his deposit, if paid in money,
will be good ground of defence, in an action upon the bill
or check.* A party gave a check for the amount of a deposit
on a sale by auction, which sale was void. In an action on
the check, he pleaded that there was no consideration for the
check ; and the plaintiff replied, that there was consideration.
Held, on this issue, the defendant must begin.^
65. Relief may be granted against forfeiture of the deposit,
upon putting the other party in the same situation as if the
contract had been performed at the time agreed.'^
1 Edwardsu.Hodding, 5 Taunt. 815. ' Lloyd v. Collett, 4 Ves. 690, n. ;
2 Deller v. Prickett, 2 Eng. Law & Radcliffe u. Warrington, 12 Ves. 376.
Eq. 232. 6 Mills v. Oddy, 6 Carr. & P. 728.
s Johnson u. Roberts, 30 Eng. Law " Ibid.
& Eq. 234. ' Moss v. Matthews, 3 Ves. 279.
CH. VI.] SALES BY AUCTION. 99
66. A purchaser before a master, submitting to forfeit his
deposit, is not bound to proceed in the purchase.'
67. The Court will not compel a vendor to pay the de-
posit money into Court, though he retains possession of the
estate, if the delay in the completion of the contract is
occasioned by the purchaser.^
68. A vendor, resisting an application by the purchaser
for payment into Court of the deposit, in the hands of the
vendor's agent, was ohatged with a loss by the agent's
failure.^
69. Where a contract for the sale of land has been aban-
doned, and an action is brought for the deposit, and the
plaintiff declares specially on the contract, he must prove it
to have been a valid one, by a note in writing, even though
the sale was by auction.*
70. A party recovering back a deposit, paid on the pur-
chase of real property, is not entitled to interest.^
71. Sale by auction. The auctioneer, as agent for the
vendor, agrees to sell according to the conditions. By these,
the purchaser is to pay down immediately a deposit, and the
auction duty, and the residue of the purchase-money upon a
day certain, on having a good title ; and the vendor is to
prepare and deliver an abstract. Held, the auctioneer, upon
a failure of the contract in consequence of a defective title,
is not personally responsible for interest upon the deposit
and auction duty, unless the money be demanded, or notice
given him that the contract has been rescinded.^
72. Where an auctioneer has sold an estate, the title of
which being objected to, he refuses to return the deposit,
and an action is brought, in which he afterwards pays the
costs ; he cannot recover these costs against the principal
in an action for money paid to' his use, but must declare
. specially.^
' Savile v. Savile, 1 P. Wms. 745. ^ Bradshaw v. Bennet, 5 Car. & P. 48.
" Wynne v. Griffith, 1 Sim. & St. 147. ^ Gaby v. Driver, 2 Yoii. & Jerv. 549.
2 Fenton v. Browne, 14 Ves. 143. ' Spurrier v. Elderton, 5 Esp. 1.
* Walker v. Constable, 2 Esp. 659 ;
1 Bos. & Pull. 306.
100 LAW OF VENDORS AND PURCHASERS. [CH. VI.
73. An auctioneer, who is sued for a deposit, and pays it
into Court, under an order for the vendor and purchaser to
interplead, is entitled, upon the termination of proceedings
between the vendor and purchaser, to receive his costs out of
the deposit-money.^
74. In assumpsit by vendee against vendor to recover back
a deposit paid on the purchase of real property, the defend-
ant at the trial produced (under a notice to produce) the
agreement, which had been signed at the foot of the con-
ditions of sale. Held, that it was not necessary to call the
subscribing witness to prove the execution of this agree-
ment.^
1 Pitchers v. Edney, 4 Bing. N. 721. '' Braclshaw v. Bennet, 5 CaiT. & P.
48.
CH. VII.]
STATUTE OF FRAUDS.
101
CHAPTER VII.
STATUTE OF FRAUDS.
1 . Form of contracts for the sale and
purchase of lands. Statute of Frauds.
2. What property is within the stat-
ute ; products of the soil ; growing
wood, &e.
7. Other property connected with the
realty.
10. Property not within the statute ;
products of the soil, &c.
14. Paper securities relating to land.
15. Agreement as to bomidary.
16. Whether the statute applies to a
claim for the price.
23. Construction of the statute as to
the form of executing a written memo-
randum ; what is a signinrj ; reference
of different papers to each other, &c.
40. Form of pleading or relying upon
the statute.
1. In the natural order of subjects, we proceed to consixier
the forms in which contracts for the sale and purchase of
lands must be made, (a) By the common law, contracts
(a) With regard to the formalities requisite in a contract for the sale of
lands, such contract is held good without a seal. Worrall v. Munn, 1 Seld.
229.
In England, questions have frequently arisen, with regard to the necessity
and effect of a stamp, in contracts of this nature.
An instrument, purporting to be a receipt for purchase-money, but insuf-
ficient, as such, for want of a stamp, is still admissible, it seems, as evidence
of an agreement for sale, if it contain the requisite terms. Evans v. Prothero,
13 Eng. Law and Eq. 163. See Smith v. Wyley, 17 Eng. Law and Eq. 49.
A receipt for purchase-money has been allowed to be stamped as an agree-
ment during the hearing. Coles v. Trecothick, 9 Ves. 234.
But the Court cannot sanction an agreement, that an objection for want
of a stamp shall be waived ; if, therefore, the objection comes to the knowl-
edge of the Court, no decree will be made, until the instrument, duly
stamped, is produced to the registrar. Owen v. Thomas, 3 Myl. & Kee.353..
Where the same paper contains two different contracts, for the purchase
of different lots, by different persons ; one stamp affixed to that part of the
paper which contains the contract with the defendant, and to which the
stamp officer's receipt for one penalty refers, is sufficient for such contract.
Powell V. Edmunds, 12 E. 6.
9*
102 LAW OF VENDORS AND PURCHASERS. [CH. VII.
may be either written or unwritten ; and a contract for the
sale of land does not differ, in this respect, from others. But,
by an English statute, 29 Car. II. ch. 3, commonly called
the Statute of Frauds, which has probably been adopted,
copied, or closely imitated, in every State of the Union, (a)
(a) It is said, in Kentucky, the decisions of the courts of Great Britain,
upon their statute against frauds and perjuries, are to be respected, only so
far as they enlighten the understanding or convince the judgment ; not as
evidences of the proper construction of a similar statute of Kentucky.
Grant v. Craigmiles, 1 Bibb, 203.
With regard to the general pui-pose and policy of the statute, it is said in
a recent case : " The great purpose of the enactments commonly known as
the Statute of Frauds, is to guard against the commission of perjury in the
proof of certain contracts. Tffis is effected by providing that mere parol
proof of such contracts shall be insufficient to establish them in a court of
justice. In regard to contracts for sales of goods, one mode of proof which
the statute adopts to secure this object, is the delivery of part of the gocOs
sold. But this provision does not effectually prevent the commission of
perjury ; it only renders it less probable, by rendering proof in support of
the contract more difficult. So, in regard to other provisions of the same
statute ; perjury is not entirely prevented by them ; the handwriting of a party
to be charged, or the agency of the person acting in his behalf, may still be
proved by the testimony of witnesses who swear falsely. Absolute prevention
of perjury is not possible." Per Bigelow, J., Marsh v. Hyde, 3 Gray, 332.
It is also said, " The statute dispenses with no proof of consideration which
was previously required, and gives no efficacy to written contracts which
they did not previously possess. Its policy is to impose such requisites upon
private transfers of property as, without being hindrances to fair transac-
tions, may be either totally inconsistent with dishonest projects, or tend to
multiply the chances of detection." 1 Greenl. Ev. § 262. As to the dis-
tinction between the Statute of Frauds, and the rule of comrmn law, which
excludes parol evidence concerning written contracts, see Cuff i7. Penn, 1
M. & S. 26.
As to the utility and proper construction of the Statute of Frauds, eminent
Judges have expressed themselves as follows : Chief Justice Best, says,
(Proctor V. Jones, 2 C. & P. 534,) " The Statute of Frauds and the Statute
of timitations were both so much objected to when they were passed, that
the Judges appeared anxious to get them off the statute-book. But in later
times, they have become desirous to give them their full effect. I think the
Statute of Frauds is a good and wholesome statute. In other countries, con-
tracts are made in writing." Bayley, J., says, (Carter v. Toussaint, 5 B. &
CH. VII.] STATUTE OP FRAUDS. 103
contracts for the sale of lands are required to be in writ-
ing, (a) The words of the English statute are as follows :
" No action shall be brought, whereby to charge any person
m
A. 859,) that the Statute of Frauds is a remedial law, and the Court ought
not to endeavor to strain words to take a case out of it. ' Chief Justice Ab-
bott says, (Howe v. Palmer, Tempest v. Fitzgerald, 3 B. & A. 323, 683,)
" The Statute of Frauds was made for wise and beneficial purposes, and
ought to be construed according to the plain meaning of the legislature. It
is a highly beneficial and remedial statute." Best, J., says, (Howe v. Palmer,
3 B. & A. 326,) so far from being disposed to restrain the provisions of this
statute, I should be inclined to extend them." — " It is better to adhere to the
words of the statute, unless we plainly see that the words used do not
express the meaning of the legislature." Lord Kenyon says, (Chaplin v.
Rogers, 1 E. 194,) it is of great consequence to preserve unimpaired the
several provisions of the Statute of Frauds, which is one of the wisest laws
in our statute-book." Weston, J., aays, (Phillips v. Hunnewell, 4 Greenl.
380,) " The Statute of Frauds is a very beneficial act ; and its objects are
best secured by adhering strictly to its provisions, unless in cases which
clearly do not fall within the meaning."
Whether the Statute of Frauds, in requiring that in certain cases the
" agreement " be proved by writing, requires that the consideration should
be expressed in the writing as part of the agreement, is a point which has
been much discussed, and upon which the EngUsh, and some American cases,
are in direct opposition. The English Courts hold the affirmative. See
Wain V. Warlters, 5 E. 10 ; reviewed and confirmed in Saunders v. Wake-
field, 4 B. & Aid. 595. And their construction has been followed in New
York; Sears v. Brink, 3 Johns. 210; Leonard v. Vredenburg, 8 Johns. 29.
In New Hampshire, in Neelson v. Sanborne, 2 N. Hamp. 414, the same
construction seems to be recognized and approved. But in Massachusetts,
it was rejected by the whole Court, upon great consideration, in Packard v.
Richardson, 17 Ma,ss. 122. So, in Maine, Levy v. Merrill, 4 Greenl. 180 ;
in Connecticut, Sage v. Wilcox, 6 Conn. 81 ; in New Jersey, Buckley v.
Beardsley, 2 South. 570; and in North Carolina, Miller v. Irvine, 1 Dev. &
Batt. 103 ; and now in South Carolina, Fyler v. Givens, Riley's Law Cas.
56, 62, overruling Stephens v. Winn, 2 N. & McC. 372, n. ; Wood-
ward V. Picket, Dudley, 30. See also Violet v. Patton, 5 Cranch, 142 ;
*■
(a) Where the verbal evidence of an agreement is contradictory, the
Statute of Frauds ought especially to apply against it. Rowton v. Rowton,
1 Hen.&Munf. 92.
104 LAW OE VENDORS AND PUECHASBRS. [CH. VII.
upon any agreement made upon any contract or sale of
lands, tenements, or hereditaments, or any interest in or con-
cerning them, unless the agreement, upon which such action
shall be brought, or some memorandum or note the^f shall
be in writing, and signed by the party to be charged there-
with,- or some other person thereunto by him lawfully au-
thorized."
2. The statute contemplates a transfer of lands, or some
interest in them ; ^ and one of the questions mo^t frequently
arising in the construction of this statute is, to what prop-
erty it applies ; or, in other words, what are lands within the
meaning of the statute. This question has for the most
part occurred, with reference to growing and movable pro-
ducts of the land, which are attached to, though not strictly
making part of, the soil.
■ 3. It has been held, that gro.wing trees are real estate, and
cannot pass, except by an instrument in writing.^ So, where
they are to be taken by the purchaser within a certain time.^
Thus, the sale of growing timber, with an agreement that
the purchaser should have twenty-five years to remove it,
was held within the statute, upon the ground that it pur-
ported to transfer an interest in land, as the vendee was to
have the timber remain and grow, if he pleased, and remove
it whenever he might see fit, during the period prescribed.*
1 Bostwick V. Leach, 3 Day, 476. ^ Pntney v. Day, 6 N. H. 430.
2 Pierrepont v. Barnard, 5 Barb. 364. * Olrastead v. Miles, 7 N. H. 522 ;
See Burgett y. Bissell, 14 Barb. 638. Greerf v. Armstrong, 1 Denio, 550. See
Taylor v. Ross, 3 Yerg. 330 ; 3 Kent's Comm. 122 ; 2 Stark. Evid. 350, 6tli
Am. ed. ; 1 Greenl. Ev. § 268, n. 3.
It has been held in California that a parol agreement for the sale of land,
made before the adoption of the common law, or the reenactment of the
Statute of Frauds, is void, unless possession be taken, or part payment
made. Harris v. Brown, 1 Cal. 98 ; Ploen v. Simmons, lb. 119.
But performance will be decreed, if the sale is in prcEsenti, the title-
deed delivered, possession taken, and valuable improvements made, to such
an extent as to work a fraud upon the vendee if his title should fail. Tohler
V. Folsom, lb. 207. See Albert v. Ross, 5 Md. 66.
CH. VII.] STATUTE OF FRAUDS. , 105
So, it is held, that an agreement for the sale oi g-rowing pears
is an agreement for the sale of an interest in land, because
they would pass to the heirs, not to the executor.^ So, in
case of a verbal purchase of a growing crop of grass, with
liberty to go on the close, for the purpose of cutting and
carrying it away ; held, the purchaser could not maintain
trespass against the seller, for taking away his horse and
cart from the close, which he had brought there for the pur-
pose of carrying away the grass ; the action, in substance,
charging the defendant on the contract, within the statute,^
So, although one who has contracted with the owner of a
close, for the purchase of a growing crop of grass there, to
be mown and made into hay, has such an exclusive posses-
sion, though for a limited purpose, that he may maintain
trespass qu. cl. against any person entering the close and
taking the grass, even with the assent of the owner ; still,
this being a contract or sale of an interest in or concerning
land, it may be discharged by parol notice from the owner,
before any part execution.^ So, a sale of growing turnips,
no time being stipulated for their removal, and the degree of
their maturity not being positively found, is a sale of an
interest in land, and must be in writing.* So, the sale of
growing underwood, to be cut by the purchaser, confers an
interest in land, under the statute.^ (a)
4. Declaration that the plaintiff was possessed of a farm,
Austin V. Sawyer, 9 Com. 39 ; 'V\|ipple ' Crosby v. Wadsworth, 6 East. 610,
u.Foot, 2 Johns. 422; Stewart u. Dough- (a leading case.) See Frearu. Harden-
ty, 9 Johns. 112. burgh, 5 Johns. 272.
1 Eodwell V. Phillips, 9 M. & W. 501. * Emmerson v. Heelis, 2 Taunt. 38.
2 Carrington v. Roots, 1 Mees. & "W. ^ Scorell v. Boxall, 1 You. & Jerv.
248. 396.
(a) Verbal sale of growing wood, by the defendant, with a right to cut it
within a oenain time, but without any express authority to assign tlie con-
tract. The purchaser cut part of the wood, left it on the land, and sold it,
with all his rights under the contract, to the plaintiff, whom the defendant
authorized to remove the remaining wood, but afterwards revoked the
authority, and burned the wood. Held, he was liable to an action for so
doing. Nelson w. Nelson, (Mass.) Law Rep. Nov. 1856, p. 411.
106 . LAW OF VENDORS AND PURCHASEBS. [CH. VII.
upon which were growing crops, and on which the plaintiff
had done work and labor and expended materials, in making
the lands ready for tillage, of which work the plaintiff had
not derived the benefit ; and that, in consideration that the
plaintiff would let the farm to the defendant for fourteen
years, the defendant undertook to take the crops and pay for
them, and for the work, according to a valuation ; that the
plaintiff let the farm accordingly, and left the crops upon it,
and the defendant took possession and had the benefit of the
work, &c., and the valuation was made, but the defendant
did not pay. Plea, that the crops, and the benefit of the
work, &c., were not excepted or reserved out of the letting
or agreement to let, and there was no agreement in writing
in respect of those causes of action, or any memorandum or
note thereof, signed by the defendant or any person by him
lawfully authorized. Held, on demurrer, that the contract
was for an interest in land, and the right to the crops, and
the benefit of the work and labor, were both of them an
interest in land, within the 4th section of the Statute of
Frauds.^
5. Indebitatus count, for crops bargained and sold, accepted
and taken, had and received, and cut down by the defendant.
Plea, that the crops, at the time of the bargain and sale,
were growing upon and affixed to certain lands ; and, before
the bargain and sale, there was a treaty on foot between the
plaintiff and the defendant, proposiig that the plaintiff should
let the lands to the defendant, and the defendant take there-
with the crops ; that the defendant assented to the treaty ;
and, in order to carry it into effect, the supposed bargain and
sale was verbally contracted ; and there was no agreement
in writing, or any memorandum or note thereof. Held, the
crops were at the time of the bargain and sale an interest
in the land, and the case was within the statute. And the
same point was held, on a similar plea, to a count for work,
labor, and materials.^
1 Falmouth v. Thomas, I Cromp. & Mees. 89. ^ ibjd.
OH. VII.] STATUTE OF FRAUDS. 107
6. Indebitatus assumpsit upon an account stated. Plea,
that, before the taking of the account, there was a verbal
agreement for the sale of crops growing upon the plaintiff's
land, and for work, labor, and materials, done and used in
preparing the land for tillage ; and a treaty for the plaintiflf's
letting and the defendant's taldng the land for fourteen years,
to which the defendant assented ; and that the money to be
paid for the crops, and the work, &c., was the money con-
cerning which the account was stated; and there was no
agreement in writing, nor any note thereof. Replication,
that before the account was stated, the defendant had mown
the crops, and taken them to his own use, and had and re-
ceived the amount of the work and labor and materials.
Rejoinder, traversing that defendant had cut down the crops,
and received the amount of the work and labor, &c., before
the stating of the account. General demurrer: Held, the
contract, as appearing on the pleadings, was within the
statute, and the plaintiff could not recover.^
7. The same question has arisen, and the same rule been
adopted, in reference to other kinds of property, not being
strictly real estate, but partaking, more or less, of the charac-
ter of chattels.
8. Declaration in assumpsit, that the plaintiff was de-
sirous of taking a furnished house as a school ; that the
defendant was possessed of a house in part furnished, and
all other furniture necessary for the completely furnishing
the same, and thereupon, in consideration that the plaintiff,
at the request of the defendant, would take possession of
said house, and would, if the furniture necessary for the
completely furnishing said house, for the purpose aforesaid,
should be sent into said house by the defendant, within a
reasonable time, become the tenant of the house, with the
furniture, at the rent aforesaid, and pay the rent quarterly,
commencing, &c., the defendant promised the plaintiff that
he would, vnthin a reasonable time, after the plaintiff should
^ Falmouth v. Thomas, 1 Cromp. & Mees. 89.
108 LAW OF VENDORS AND PURCHASERS. [CH. VII.
have so taken possession, send into the house all the fur-
niture necessary for furnishing the house with furniture of
good quality. That the defendant took possession of the
house, but the articles of furniture sent were not of good
quality, and all the furniture necessary for the furnishing was
not sent in. Plea, that there was no note or memorandum
in writing of the promise stated. Held, on demurrer, that
the promise related to land, and no action could be main-
tained upon it.^ (a)
9. The statute applies to a contract, for the sale of a " right
to dig and carry away ore " from the mine of another person.^
But a verbal contract for such right is valid as a license, and
a protection to the party acting under it, and vests in him a
title to the ore actually taken.^ But the license is revocable,
personal, and not assignable.^ (Seech. 8.) So, a right of per-
manently overflowing the land of another, by a mill-dam to be
constructed below his line, is a hereditament; and a contract
for the sale of it must, therefore, be in writing.^ So, a con-
tract made by an owner of land with the commissioners,
under the act relative to draining the drowned lands in Orange
County, (Sess. 30, ch. 25,) by which they were allowed to
use each bank of the River Wallkill, &c., which they might
find "necessary, in removing all obstructions, and in deepen-
ing and widening the river, &c., and to use, occupy, and
1 Mechelen U.Wallace, 2 Not. & Pen-. » Ibid. * Ibid.
224 ; 7 Ad. & Ell. 49. 5 Bridges v. Parcell, I Dev. & Bat.
2 Riddle v. Brown, 20 Ala. 412. 192 ; Harris v. Miller, 1 Meigs, 158.
(a) A parol contract for the sale of both real and personal property, if
entire, and founded on one consideration, being void as to the former, is
void for the whole. So held, in case of the sale of wood or timber compos-
ing a broken-down mill in connection with the mill-site, &c. Thayer v.
Kock, 13 Wend. 53.
Contract to hire a shop at a certain rent, and pay the landlord the ex-
pense of fitting it up. Held, an entire contract, and within the Statute of
Frauds, as it concerned an interest in lands. M'Mullen v. Kiley, (Mass.)
Law Rep. Deo. 1866, p. 439.
CH. VII.] STATUTE OF FRAUDS. 109
enjoy the same, and for which they were to pay a compen-
sation to the owner for the damages, and who agreed to
allow them to cut a canal through his lands, was held to be a
contract concerning an interest in lands, within the statute.^
So, in New York, the statute applies to the sale of a pew?
So, the statute has been held to apply to the sale of a lease-
hold interest. Thus, an agreement by a tenant for a sale and
delivery of the premises, the purchaser agreeing to pay the
rent, rates, and taxes, is within the statute.^ So, a claim for
specific performance stated, that the defendant had agreed in
writing, to demise a house to the plaintiff, for a certain term
and rent, and that the plaintiff at the same time agreed by
parol to pay the plaintiff a premium of £200 ; and prayed
that a lease be granted, offering to pay the premium. Claim
dismissed.* So, A. and B. severally negotiating to purchase
a house and land agreed by parol, that A. should withdraw
and B. purchase, giving to A. a part of the ground, at a
proportionable price. B. purchased, but refused to perform
the agreement. Held, within the statute.^
10. With reference, however, to the sale of things grow-
ing upon the land, decisions have been made, somewhat con-
flicting with those already cited.^ (a) In general terms, it
' Phillips V. Thompson, 1 Johns. Ch. ^ Lamas v. Bayly, 2 Vern. 627.
131. ^ Jenkes v. White, 14 Eng. Law &
2 Vielie v. Osgood, 8 Barb. 130. Eq. 350 ; Sweeny v. Miller, 34 Maine,
3 Smart v. Harding, 29 Eng. Law & 388 ; Preble v. Baldwin, 6 Cush. 549 ;,
Eq. 252. Parker w. Staniland, 11 E. 362.
* Martin v. Pyeroft, 11 Eng. Law &
Eq. 110.
(a) It is said, " No general rule is laid down in any one of them, that is
not contradicted by some others." Per Ld. Abinger, Kodwell v. Phillips, 9'
M. & W. 505. The distinction upon this point has been supposed to depend
on the question, whether the subject of contract, being part of the inherit-
ance, is to be severed and delivered by the vendor as a chattel ; or whether
a right of entry is given to the purchaser to cut and take the property ; the
4tli section of the statute being applicable to the latter case, but not to the-
former ; which, however, would fall within the 1 7th section, relating to the
sale of goods. Long on Sales, (Rand,) 80-1. But it is said, the later
English and the American authorities do not seem to recognize such dis-
tinction.
10
110 LAW OF VENDOES AND PURCHASERS. [OH. VII.
is said, a contract for the sale of things annexed to the free-
hold, but which are capable of separation without violence,
and by the terms of the contract are to be separated, is not
within the statute.^ So, it is said, a contract for the sale of
a growing crop, for example, a crop of potatoes, is essen-
tially the same, whether they are covered with earth in a
field, or stored in a box ; in either case, the thing sold is but
a personal chattel, and so not within the statute.^ So it has
been held, that a contract for the sale of gi'owing wood and
timber, to be cut and removed by the purchaser, is not within
the statute ; the effect of it being, to pass an interest in the
trees when severed, but not any interest in the land.^ So,
an agreement for the sale of mulberry trees, growing in a
nursery, and raised to be sold and transplanted, and to be
delivered on the ground where they are growing, on payment
being made.* So, an agreement that a person, not the owner
of the land, may cut down the trees, peel them, and take the
bark.^ So, grass already grown and in a condition to be
cut may be sold by parol.^ (a)
11. Plaintiff and defendant orally agreed (in August) that
defendant should give £45 for the crop of corn on plaintiff's
land, and the profit of the stubble afterwards ; that plaintiff's
cattle might run with defendant's ; that defendant should
have some potatoes growing on the land, and whatever lay
grass was in the fields ; should harvest the corn and dig up
the potatoes ; and plaintiff pay the tithe. Held, not a con-
1 Bostwick V. Leach, 3 Day, 476. * Whitmarsh v. Walker, 1 Met. 313.
2 Warwick v. Bruce, 2 M. & S. 205. ^ Nettleton v. Sikes, 8 Met. 34.
8 Claflin V. Carpenter, 4 Met. 580 ; ^ Cutler v. Pope, 13 Maine, 380.
Cain V. M'Guire, 13 B. Mon. 340;
Erskine v. Plummer, 7 Greenl. 447.
(a) Agreement, for the purchase of the herbage of a close for five months,
for £45 ; £10 to be paid down, and a joint promissory note given for the
residue, payable within the five months ; the lessee to yield up possessiouibt
the end of that time, and, if he failed to give a satisfactory note, the vendor
to be at liberty to relet the premises. Held, sufficiently stamped with a £1
stamp. Cattle v. Gamble, 5 Bing. N. R, 46.
CH. VII.] STATUTE OP FRAUDS. Ill
tract for any interest in land, but a sale of goods and chattels,
as to all but the lay grass ; and, as to that, a contract for the
agistment of defendant's cattle.^ So, where the defendant,
in June, agreed to sell to the plaintiff the potatoes then
growing on land of the defendant at 2s. per sack, the plain-
tiff to have them at the digging up time, (October,) and to
find diggers ; held, not a contract for the sale of an interest
in land.^ So, a verbal agreement, made on the 25th of Sep-
tember, for the sale of a then groAving crop of potatoes, is
not a contract or sale of any lands, tenements, or heredita-
ments, or any interest in or concerning them.^ So, the plain-
tiff verbally agreed with the defendant, to sell him the timber
growing on Ms land at so much per foot. Defendant after-
wards offered^o sell the butts of the trees to a third person,
and said he would convert the tops into building stuff.
Plaintiff afterwards, by letter, required defendant to pay for
the timber which he had bought of him. Defendant wrote
a letter in answer, stating that he had bought the timber, but
that he had bought it to be sound and good, and it was not
so. Held, the contract was not a contract for the sale of
lands, tenements, or hereditaments, or any interest in or
concerning the same, within the statute.*
12. Assumpsit, for goods sold, and on an account stated,
to recover the value of growing poles, purchased from the
plaintiff by the defendants, and afterwards carried away by
them. At the time of the bargain, some memorandums in
writing had been made, but neither stamped nor signed.
The defendants, after the poles were carried away, admitted
that a balance was due to the plaintiff. Held, a nonsuit was
rightly ordered, as the defendants had not admitted a precise
and definite sum to be due to the plaintiff, and therefore he
could not recover on the account stated, without reference to
the memorandums, which were not admissible in evidence ;
but, as the contract had been executed by the defendants,
' Jones V. Flint, 10 Ad. & Ell. 753. ^ Evans v. Eoberts, 5 Barn. & Cress.
2 Sainsbury v. Matthews, 4 Mees. & 829.
Wels. 343. * Smith v. Surman, 9 Barn. & Cress.
566.
112 LAW OF VENDORS AND PURCHASERS. [CH. VII.
they having carried away the poles, the Court granted the
plaintiff a new trial, on payment of costs.^
13. A parol contract for the* sale of improvements on the
public lands is valid.^ So a contract for the sale of improve-
ments on land, consisting of houses, is not within the stat-
ute.3 Nor an agreement by a tenant at will to transfer his
title, as he has no assignable interest.* Nor an agreement
not to exercise a right regarding the freehold, as to use a miU,
or to carry on a trade in a particular shop.^
14.' The question has arisen, whether the statute applies
to the transfer of paper securities, relating to the title to
lands. It has been held, that a contract for the sale of a bond
secured by mortgage of lands is within the statute.^ So, a
parol agreement to execute a covenant to cOTvey is within
the statute.'^ More especially at law.^ So, where the de-
fendant contracted in writing to purchase land at a certain
price, and the plaintiff, by parol, agreed with the purchaser
to purchase his interest in the contract, and the latter, by
an indorsement on the contract, ordered the vendor to con-
vey to the plaintiff; held, the plaintiflF could not maintain
an action against the defendant.^ But an agreement to
locate land certificates and procure patents, in consideration
of a good title to half the land, is not within the statute.^"
15. The statute applies to a parol agreement to straighten
a crooked line, up to which the party has occupied long
enough to give him a possessory title.^^
16. The question, whether a contract is within the statute,
has more commonly arisen with reference to the liability of
the vendor ; but sometimes, in connection with a claim for
the price, against the vendee, {a)
1 Teall V. Auty. 4 Moo. 542. ' Ledford v. Perrell, 12 Ired. 285.
2 Zickafosse v. Hulick, 1 Morr. 175. ' Yates v. Martin, 1 Chandl. 118.
3 Cassell V. Collins, 23 Ala. 676. ^ Simms v. Killian, 12 Ired. 252.
* Whittemore v. Gibbs, 4 Fost. 484. 1" Watkins v. Gilkerson, 10 Tex. 340.
5 Bostwick V. Leach, 3 Day, 476. See Maxwell v. Wallace, 1 Bush. Eq.
^ Toppin «. Lomas, 30 Eng. Law & 251.
Eq. 426. " Davis v. Townsend, 10 Barb. 333.
(a) The statute does not apply to an action relating merely to the price
of land. Thayer v. Viles, 23 Verm. 494.
CH. Vn.] STATUTE OF FRAUDS. 113"
17. Upon this subject, it is held, that in order to recover
the price of land sold, there must be a contract, subscribed
by the vendor, and assented to, or accepted by the purchaser.'
So, no action lies, for the price of land sold by parol con-
tract, no part of it having been paid, nor possession taken,
though a deed has been tendered by the seller, but not ac-
cepted.2
18. The plaintiff verbally sold to the defendant his interest
in a farm, the defendant agreeing to " step into his shoes,"
and clear him of certain mortgage notes, and of a note for
f 50, made to the mortgagee, with surety, and indorsed upon
the mortgage note as part payment. The defendant entered,
and six years after the sale, the plaintiff paid half the $50
note and costs, and brings this action therefor. Held, as the
defendant was not legally bound by the contract, it being a
contract for the sale of lands, within the Statute of Frauds,
the action did not lie.^
19. A purchaser of land under incumbrance, who receives
a conveyance without covenants, cannot set up a concurrent
parol agreement on the part of the grantor to pay off the
incumbrances ; for such agreement is parcel of an entire
agreement for the sale of lands.* So, where A. sold land to
B., and gave his bond to make title, on B.'s verbal promise
to pay a debt, which A. owed to C. ; held, this was not
void by the statisiiie, as a promise to pay the debt of a third
person, but was void as a contract for the sale of real estate.^
So it has been held, that a note or memorandum is insuf-
ficient^ unless it furnish evidence of price, and the amount
thereof, this being an essential part of the contract.^ There-
fore a letter written by the purchaser, subsequent to a sale
by auction, and addressed to the vendor, will not take the
case out of the statute, if it only contain a statement of the
contract for the purchase, but exhibit no particular of the
' Reynolds v. Dunkirk, &c. 17 Barb. ' Duncan v. Blair, 5 Denio, 196.
613. 6 Rice V. Carter, 11 Ired. 298.
2 Lester v. Bartlett, 2 Cart. 628. « Ide v. Stanton, 15 "Verm. 685.
3 Davis V. Farr, 26 Verm. 592.
10* *
114 LAW OF VENDORS AND PURCHASERS. [CH. VII.
price, nor refer to any other writing which does so. So,
though the letter refer to certain notes, tendered in payment,
which notes are not before the Court.^
20. But a promise by the purchaser of land, at the time
of the conveyance, to pay the taxes that are or may be
assessed thereon, for the current year, is not " a contract for
the sale of lands, &c*., or of any interest in or concerning
the same." ^ So, where A., who had mortgaged land to B.,
sold the land to C, on the parol agreement that C. should
pay the mortgage debt, and that B. should release his mort-
gage. Held, the promise of C. was not within the statute.^
So, A. promised B. to pay him $1,000 at his death, if he
would sell his estate and purchase his own farm at a stipu-
lated price, and come and reside there. B. did sell his farm,
and bought A.'s farm, and removed there with his family.
Held, the promise was not within the statute.* So, A. en-
tered on B.'s land, and, without his knowledge or authority,
cleared it, made improvements, erected buildings, &c. B.
afterwards agreed by parol with A., (against whom he had
brought an ejectment for possession,) that he would seU
the land to A. as wild land, or pay him for the improve-
ments. Held, though the promise to sell was void, the
promise to pay for the improvements was not within the
statute, though void for want of consideration.^ So, where
one in possession of land, on which he h^ made improve-
ments, agreed to transfer it ; and the purchaser verbally
promised to pay for the improvements ; held, the promise
was not within the statute.^ So, the plaintiff conveyed to
the defendant a tract of land, as containing 110 acres, at $8
per acre ; with a verbal agreement for a survey, and, if there
proved to be less than 110 acres, the plaintiflF shoujd refund,
if more, the defendant should pay at the same rate for the
STxrplus. Held, not within the statute, and that there was a
' Adams v. M'Millan, 7 Port. 73. « King v. Hanna, 9 B. Mon. 369.
2 Brackett v. Evans, 1 Gush. 79. ^ Prear v. Hardenbergh, 5 Johns. 272.
3 Simonton v. Gandolfo, 2 Florida, •> Benedict !>. Beebee, 11 Johns. 145.
392.
CH. Vir.] STATUTE OF FRAUDS. 115
sufficient consideration for the promise of the defendant.'
So, extrinsic evidence may be offered of the price paid, where
the instrument or memorandum is certain and unambiguous.^
So, a letter, promising to make a deed of land " according to
contract," is sufficient, though the terms are not mentioned,
if the party claiming the conveyance can prove the price by
one witness.^ So, a receipt for the purchase-money may
constitute a sufficient agreement, provided it show on its
face, or by reference to some other instrunjent, every material
part of a valid contract.* So, a receipt, acknowledging pay-
ment of money, in these words : " In part-payment of the tract
of land that I was interested in, and sold by the sheriff, and
purchased by Col. C. L. Goodwin, and which land was sold
by C. L. Goodwin to Benj. Hatcher ; this is in part-payment,
to redeem the said land from Benj. Hatcher," was held a suf-
ficient memorandum of the agreement.^ So, where there was
a parol agreement, that one party should hold an estate, and
reconvey to the other on payment of the purchase-money
and interest ; held, that credits and charges on the books of
the former in regard to the estate, and conformable to the
agreement, were sufficient to take the case out of the statute.®
21. The plaintiff and defendant enter into an indenture,
in which, after a recital that they are " in possession and
improvement, and are principal owners of a certain water
privilege with the buildings thereon, machinery, fixtures, &c.,"
the plaintiff agrees to convey, and the defendant to receive
and pay for, " all the plaintiff's right, &c., of the above de-
scribed premises, consisting of, &c. ; also the saw mUl, with
every privilege, &c," at such prices as shall be awarded by
three men, to be chosen, &c., and for the fulfilment of the
agreement they bind themselves, each to the other, under the '
penalty of $1,000, &c. A price having been fixed by such
1 Garret v. Malone, 8 Rich. 335. * Barickman w.Kuykendall, 6 Blackf.
2 Hatcher v. Hatcher, 1 McM. Eq. 21.
311, 318. = Hatcher v. Hatcher, 1 McMul. Eq.
3 Johnson v. Eonald, 4 Munf. 77. 311.
6 Tufts V. Tufts, 3 W. & M. 456.
116 LAW OP VENDORS AND PURCHASERS. [OH. VII.
referees, held, the defendant could not object, that, by the
Statute of Frauds, the indenture was invalid, because the
referees and the price were not ascertained by the indenture
itself.i
22. A contract for the sale of lands, signed and sealed by
the vendor only, and delivered to, and accepted by the ven-
dee, purported to contain, on the part of the latter, a cov-
enant to pay the consideration, money ; and was recognized
and ratified, on thjp part of the vendees, by an indorsement
under their hands and seals. Held, a sufficient signing ; and
the indorsement not containing in itself, or amounting, when
taken in connection with the original contract, to a covenant
to pay, and the vendor having tendered a conveyance ; held,
he might maintain indebitatus assumpsit for the consideration.
But if the indorsement had amounted to a covenant to pay,
the action must have been covenant or debt.^
23. The question has often been raised, whether a strict
and literal compliance with the requirements of the Statute
of Frauds is necessary to. the validity of a contract, relating
to the sale of lands. Upon this subject, it is held, as the
prevailing doctrine, that a liberal construction is to be given
to the statute ; and, where an agreement has been reduced to
a certainty, and the substance of the statute complied with
in the material part, the forms have never been insisted
upon.^ (a) Thus, a written admission of a previous parol
contract is sufficient.* It is also held, that a memorandum
in writing of the sale of lands will be sufficient within the
statute, if it be signed by the party to be cha/rged, more
especially when followed by a direction to the attorney to
I ' Brown v. Bellows, 4 Pick. 179. ^ Welford v. Beazely, 3 Atk. 503.
2 (jaie V. Nixon, 6 Cow. 445. * Ide v. Stanton, 15 Verm. 685.
(a) The statute does not require that the particular land contracted to be
sold shall be described; it is sufficient that the contract provides for its
selection out of the lands of the vendor. Carpenter v. Lockhart, 1 Smith,
326.
CH. VII.] STATUTE OP FEAUDS. 117
prepare a writing for both parties to sign ; and contain the
essential terms of the contract, expressed with such clearness
and certainty, that they may be understood from the writing
itself, or some other paper, to which it refers, without resort-
ing to parol proof Thus, it is sufficient, if the name is so
inserted in any part of the instrument, whether the top, mid-
dle, or bottom, as to authenticate it, and is applicable to
the whole substance of the writing, and put there by the
party or his authority .^ (a) As where an agreement begins,
"I, A. B.," though not signed.^ So, J. R. Bridges, having
five freehold houses, but no other property, in Cable Street,
Liverpool, agreed to sell them to J. Bleakley for £248 ; and
thereupon drew up the following memorandum : "July 26th,
1839. John Bleakley agrees with J. R. Bridges to take the
property in Cable Street for the net sum of £248 10s."
Held, the agreement was sufficiently signed by the vendor.*
So, if a person who is a party to, and knows the contents
of an agreement, subscribes it as a witness only, this has
been held a signing within the statute.^
24. B. sold W. a tract of land, for a sum of money, pa^y-
able one half in six months and the remainder in twelve,
and a deed was prepared and executed at the same time by
B., but remained in his possession. W. paid part of the
purchase-money, but afterwards failed, and, upon B.'s offer-
ing him a deed, conveying the land, and demanding a com-
1 Worrall v. Munn, 1 Seld. 229 ; 112; Barstow v. Gray, 3 Greenl. 409;
Fowle D. Freeman, 9 Ves. 351 ; Goom McCrea v. Purmort, 16 Wend. 460 ;
V. Afflalo, 6 B. & C. 117; Ide v. Stan- Clason v. Bailey, 14 Johns. 487.
ton, 15 Verm. 685 ; Smith v. Arnold, 5 ^'Ogilvie v. Foljambe, 3 Meri. 53 ;
Mass. 414 ; Adams v. M'Millan, 7 Port. Anderson v. Harold, 10 Ohio, 399 ; Hig-
73 ; Packhurst v. Van Cortlandt, 1 don v. Thomas, 1 Harr. & G. 130.
Johns. Ch. 274 ; Getchell v. Jewett, ^ Knight v. Crockford, 1 Esp. Ca.
4 Greenl. 350 ; Shirley v. Shirley, 7 189.
Blackf. 452; Thornton v. Kempster, 5 * Bleakley u. Smith, 11 Sim. 150.
Taun. 788; Eussell v. ]Sfixon,'3 Wend. ^ Welford v. Beazely, 3 Atk. 503.
(a) In New York, printing the vendor's name at the foot of the contract
is not sufficient. Vielie v. Osgood, 8 Barb. 130. There must be an actual
manual subscription at the end of the contract. Ibid.
118 LAW OF VENDORS AND PURCHASERS. [CH. VII.
pliance with the contract on his part, W. declined, on the
ground of inability to pay the sum due. B. then declared
the contract to be at an end, and went on to improve the
lands in his possession, at the same time refusing to give
up that portion of the purchase-money received. Upon an
action for specific performance, held, the deed took the case
out of the statute.^ So, a written notice, signed, referring to
a written proposal, not signed, and made several years before,
may be so connected with it, as to render the two documents
a binding contract.^ So, -decrees may be founded upon
letters, not intended at the time to be a complete, final
agreement.^ So, a deed defectively executed is evidence of
a parol agreement to convey land.* So, where parties agree
to exchange lands, a deed executed by one of them, though
not delivered, is a sufficient memorandum to bind him.^ (a)
So, a bond, reciting the names of the parties to, and the terms
of, a contract for the sale of land, and conditioned to secure
a performance of such contract, prepared and written by
the vertdee and obligee, and executed by an agent of the
vendor, and delivered by him to the vendee ; is a sufficient
signing.^
25. So, where a contract in writing, or note, exists, which
binds one party, any subsequent note in writing, signed by
the other, binds him, provided it either contains in itself the
terms, or refers to any writing which contains them.'^
26. Thus, the purchaser of lands at auction signed a
memorandum of the contract, indorsed on the particulars
' Bowles «. Woodson, 6 Gratt. 7t. 6 Pan-ill v. M'Kinley, 9 Gratt. 1.
2 Lowry v. Dufferin, Ir. Bq. 287. « Higdon «; Thomas, 1 Harr. & G.
" Bowie V. Freeman, 9 Ves. 351. 130.
* Somerville v. Trueman, 4 Harr. & ' Dobell v. Hutchinson, 3 Ad. & Ell.
McHen. 252. 355.
(a) Contract for the sale of land. The deeds were drawn, the vendor
took them home, and wrote, to the vendee that they were ready, and re-
quested her to attend and settle the business, but he died before the parties
met. Held, not a sufficient agreement in writing. Givens v. Calder, 2 De-
saus. 171.
OH. VII.] • STATUTE OP FRAUDS. 119
and conditions of sale, and referring to them. Afterwa;rds
he wrote to the vendor, complaining of a defect in the title,
referring to the contract expressly, and renouncing it. The
vendor wrote and signed several letters, mentioning the
property sold, the names of the parties, and some of the
conditions of sale, insisting on one of them, as curing the
defect, and demanding the execution of the contract. Held,
these letters, as connected with the particulars and condi-
tions, constituted a memorandum in writing, binding upon
the vendor under the statute, (s. 4,) although neither the
original conditions and particulars, nor the memorandum
signed by the purchaser, mentioned or were signed by the
vendor.^ So, where a letter signed by the vendor is com-
bined with his proposal, by a note in the third person, speci-
fying the price.2
27. The defendant purchased leasehold premises at auc-
tion, and signed a memorandum of the purchase, on the
back of a paper, containing the particulars of the premises,
the name of the owner, and the conditions of sale. Held,
that the defendant was bound, though no contract was
signed by the vendor.^ So, if a party has entered into a
parol agreement for a lease, and a draft of it is prepared,
though the agreement is void under the statute ; yet an
indorsement by him, referring to the case on the draft ad-
mitting the agreement, is sufficient to bind him.* So, where
the reversioner in fee of a house, expectant upon a term, a
portion of which has been underlet, agrees by one letter to
grant the sub-lessee an extension of the lease at a certain
yearly rent, and in another letter fixes the time when the
term is to expire ; this is a valid agreement^ and the sub-
lessee has a right to a lease, which shall commence from the
expiration of the existing term.*
1 Dobell V. Hutchinson, 3 Ad. & Ell. ^ Laythourp v. Bryant, 2 Bing. N. C.
355. 735.
^ Western v. Russell, 3 Ves. &Bea. * Shippeyu.Denison, 5Esp. Ca. 190.
187. ° Verlander u. Codd, Turn. & Buss.
352.
120 LAW OF VENDORS AND PUECHASEES. [CH. VIL
28. But the note or memorandum must state expressly, or
by reference, the subject of sale, the terms and the parties,
with such certainty as to furnish evidence of a complete
agreement. Thus, where the subject of sale was described
as " B.'s right in C.'s estate," held, sufficiently certain. But,
where the memorandum was a book, on the cover of which
was written, " A.'s memorandum of B.'s property received
by assignment," and, on a leaf of the book, under the cap-
tion, " Sales at auction, '6th March, 1826," was this entry:
"'B.'s right in C.'s estate, sold to D., $60;" in an action
brought by A., the auctioneer, against D., for the purchase-
money, it was held, that the memorandum was fatally de-
fective, because it did not show, with the requisite certainty,
that A. was the vendor.' So, an imperfect memorandum
of a sale by an auctioneer, and a letter, addressed by the
vendee to the vendor, cannot be so united as to take such
sale out of the statute, there being no direct reference in the
one to the other, so as, in effect, to render them one, without
the aid of parol proof. ^ So, an agreement cannot be partly
in writing and partly in parol, though it may be shown by
parol evidence that separate papers both related to, and
formed parts of, one contract.^ So, a paper signed by a party,
and proposing to convey all the property, cannot be con-
nected by parol with another paper not signed, for the pur-
pose of designating the property meant to be conveyed.*
29. The prevailing course of decisions is as above stated,
in regard to a liberal construction of the Statute of Frauds.
There are cases, however, which give it a more strict inter-
pretation, and require a more exact conformity to its pro-
visions. Thus, in reference to what constitutes a signing.
But where one altered a draft with his own hand, for the
purchasing an estate ; held, not a sufficient signing, though
the seller afterwards executed the conveyance, and caused it
' Nichols V. Johnson, 10 Conn. 192; = Moale v. Buchanan, 11 Gill & J.
Smith V. Arooia, 5 Mas. 414. , 314.
^ Adams v. M'Millan, 7 Port. 73. * Ibid.
CH. VII.] STATUTE OP FRAUDS. 121
to be registered.^ So the writing of a party's name by him-
self, in the body of a memorandum of agreement for a lease,
is not a signature?
30. So it is held that an entry, to be valid, must contain a
memorandum of the contract, and state distinctly the article
sold, the price, and the purchaser's name. Thus, the fol-
lowing memorandum, found in the books of one deceased :
« 1841, W. P. to H. C. O. Dr. To four loads of rock, one
lot, at one year's credit, $125;" is too vague and uncertain,
to sustain a bill for specific performance of a contract for
the purchase of land, against the administrator.^ So an
entry in these words, " The tract of land to Wm. Meadows,
at $5.48," is insufficient.* So, where Oliver and Pipkin
bought of Jam^s some groceries, an ice-house and lot ; and a
memorandum of the sale was headed, " Invoice of articles
purchased by Pipkin and Oliver of James, 2^th August,
1836 ; " and one of the items of sale wa# stated thus : " One
ice-house and lot, $140;" held, that the contract as to the
ice-house and lot was void for uncertainty.^ So, the bare
entry of a steward, in his lord's contract book with his
tenants, is not an evidence of itself, that there is an agree-
ment for a lease between the lord and a tenant.^
31. Lease of lands by auction. A writing, deliv-ered by the
auctioneer to the highest bidder, and containing a descrip-
tion of the lands, the term for which they were let, and the
rent, but not signed by the auctioneer or any of the parties,
was held not to be such a minute of the agreement as
was required to be stamped, pursuant to Stat. 48 Geo.
III. c. 149, nor such a writing as would exclude parol
evidence.'^
32. A., by public advertisement, offered lands to be let for
three lives, or thirty-one years. Proposals having been made
' Hawkins v. Holmes, 1 P. Wms. * Meadows v. Meadows, 3 M'C. 458.
770. ^ Popkin v. James, 1 Humph. 325.
2 Stokes V. Moore, 1 Cox, 219. ^ Charlewood v. The Duke of Bed-
" Plummer v. Owens, 1 Busb. Equ. ford, 1 Atk. 497.
254. ||Ramsbottom v. Tuubridge, 2 Mau.
& Selw. 434.
11
122 LAW OF VENDORS AND PURCHASERS. [CH. VII.
by B. and accepted, an agreement was executed between B.
and the agent of A., duly authorized, in which the term was
not mentioned. Held, A. was not bound. Also, there be-
ing no reference in the agreement to the advertisement, that
parol evidence could not be received, to connect the one with
the other, so as to ascertain the term.*
33. It has been questioned whether the receipt, not contain-
ing the terms of the agreement, nor referring to any other
paper containing it, can have effect as an, agreement, vdthin
the Statute of Frauds.^
34. A particular in writing for the purchase of an estate
is not sufficient within the statute, unless the party pur-
chased by it, or it was shown him at the time of purchase.
Hence, if it contain more than the words of the conveyance
will in strictness carry, the purchaser cannot compel a
specific execution of the residue, on the particular.^
35. Bill for specific performance of an agreement for the
sale of lands and chattels. Plea, the Statute of Frauds.
The defendant, during the negotiation, defivered a particular
of the whole, signed by him. The agreement was after-
wards made at a less price. Both parties gave instructions
to an attorney to prepare the conveyance ; and the defend-
ant delivered to him the particular, as instructions for the
deed, which was prepared. Held, not sufficient under the
statute.*
36. A letter to a solicitor, with directions for preparing
the conveyance of land purchased, described generally as
the land bought of, (a person named), but not specifying the
terms, is not suflGicient evidence of a contract within the
statute, and the estate will not pass by a will made pre-
vious to the conveyance.^
37. Where a letter contains the entire terms of an agree-
ment, it is not necessary for the plaintiff to prove that he
accepted the terms. If it require the plaintiff to supply a
1 Clinan v. Cooke, 1 Sch. & Lef. 22. * Cooke v. Tombs, 2 Anst. 430.
2 Coles V. Trecothick, 9 Ves. 23^ " Eosew. Cunynghame, 11 Ves. 50.
8 Cass V. Waterhouse, Free. ChaB9.
CH. VII.] STATUTE OF FRAUDS. 123
term, there must be a special acceptance in writing, supply-
ing that term, in order to take the case out of the statute.^
38. With regard to the mode of relying upon the Statute
of Frauds, as a defence to a suit upon a parol contract relat-
ing to lands ; or the rules of pleading connected with such
defence ; it is held, in general, that a parol contract for the
sale of lands is only voidable.^ Hence, although in a suit for
specific performance of such agreement, if the defendant, in
his answer, admit the agreement, he may still set up the
statute as a defence ; ^ yet, if the defendant in his answer
admits the contract, without insisting on the statute, the
court will decree a specific performance.*
39. The statute need not be pleaded ; more especially
where the answer denies the agreement.^ So, if a defendant
denies any agreement, the complainant must prove a valid
one, except in case of ptwt performance.^ So, if a bill
be brought for specific performance of a parol contract for
the conveyance of land, although the defendant does not
rely upon the plea of the statute, yet, if he denies the con-
tract as stated in the bill, and insists that the real contract
was a different one, the court will not receive parol evidence
in support of the plaintiff's claim.^
40. But the bill having charged, that the defendant had
written letters to the attorney who was to prepare the convey-
ance, in which the agreement was admitted, he must answer
to that fact.^
41. Where a biU seeks specific performance of a con-
tract, which appears from the bOl itself to be within the
statute, this is ground of demurrer.^ So, when fraud is
charged in the biU, it need not be answered, if the bill, ad-
mitting the fraud, presents no ground for relief. Hence, a
' Boys iJ. Ayerst, 6 Madd. 316. Rowton w. Kowton, 1 Hen. & M. 92;
2 Gillespie v. Battle, 15 Ala. 276. Givens v. Calder, 2 Desaus. 171.
" Thompson!;. Tod, 1 Pet. CC. 388. " jervis v. Smith, 1 Hoffm. Ch. K.
* HoUingshead v. McKenzie, 8 Geo. 470; Reynolds W.Dunkirk, &c., 17 Barb.
457; Newton v. Swazey, 8 N. H. 9; 613; Hall a. Hall, 1 Gill, 383.
Jerris v. Smith, 1 HofFm. Ch. 470. ' Allen v. Chambers, 4 Ired. 125.
5 Poag V. Sandifer, 5 Rich. Eq. 170. ^ Cooke v. Tombs, 2 Anstr. 420.
See Tufts v. Tufts, 3 W. & M. 456; ' Chambers a. Lecompte, 9 Mis. 566.
124 LAW OP VENDORS AND PURCHASERS. [CH. VH.
bill to enforce a parol sale of land, charging the defendant
with fraudulently refusing to reduce the agreement to writ-
ing, though it was part of the contract that it should be so
reduced, may be demurred to, without an answer to the
charge of fraud.'
42. Bill for specific performance of a parol agreement
respecting lands. The defendant pleaded the Statute of
Frauds, and also answered. In his answer he admitted the
parol agreement, as stated in the bill ; and that he had taken
possession of and held the land under the agreement. Held,
the answer took the case out of the statute.^
43. BiU for specific performance of a verbal agreement
relating to the purchase of land, The defendant relied ;on
the Statute of Frauds, and also denied any such agreement.
Upon this denial he was indicted for perjury. Held, the
denial of an agreement not binding on the parties was im-
material and irrelevant, and the defendant was entitled to
his acquittal.^
44. A parol contract for lands, alleged to have been made
by the ancestor, wiU not be specifically enforced against in-
fant heirs, although their guardians do not insist upon the
statute.*
" Box V. Stanford, 13 Smedes & ' Rex v. Dunston, Ry. & Mood. 109.
Marsh. 93. * Grant v. Craigmiles, 1 Bibb. 203.
2 Smithu. Brailsford, 1 Desaus. 350. •
CH. VIII.]
PAROL LICENSE.
125
CHAPTER VIII.
PAROL LICENSE.
1. Part-performance and license.
2. Nature of a license.
8. Implied license.
9. Distinction between a license, and
a lease, or an easement.
19. A license creates a personal right;
by whom, and at what time, it is to be
executed ; who are bound by it.
27. Whether and how far a license is
revocable.
1. In the next chapter, we shaU have occasion to consider
the effect, upon a verbal contract for the sale and purchase
of lands, of a part-performance of such contract, as operating
to take it out of the Statute of Frauds. Somewhat anal-
ogous to this part of the general subject, is a verbal license
to enter upon land, for particular specified purposes, not
constituting or accompanied by a transfer of title to the
land itself. Inasmuch as a Ucense derives much of its legal
effect and validity from the execution of it, the two topics
referred to may naturally be considered in immediate con-
nection with each other.
2. A license, as has been already remarked, does not pass
an estate, but merely confers a certain right or privilege, to
be used upon the land of another. It is a mere authority to
enter upon the land of another, and do an act, or series of
acts, without having any interest in the land ; founded in
personal confidence, not assignable, and valid, though not
in writing.' Thus, the grant of a license to flow passes no
property, but is a mere remitter of damages.^ So a license
wiU not sustain an action of trespass qu. cl? So, a plea
1 Mumford u. Whitney, 15 Wend.
380 ; Eolsom v. Moore, 1 Appl. 252 ;
Taylor v. Waters, 7 Taunt. 374 ; Lig-
gins V. Inge, 5 Moo. & P. 712 ; Hazel-
ton V. Putpam, 3 Chand. 117.
11*
2 Clinton v. M'Kenzie, 5 Strobh. 36.
See Smith v. Simons, 1 Boot, 318;
Woodward v. Seeley, 11 Illin. 157.
' Houghtailing v. Houghtailing. 5
Barb. 379 ; Den v. Baldwin, 1 Zabr. 390.
126 LAW OF VENDORS AND PTJRCHASEES. [CH. VIII.
of license does not raise the question of title.^ So a license
not only does not create any title to the land, but also dis-
proves any claim arising from adverse possession.^
3. Thus, a parol agreement for liberty to stack coals upon
land, for seven years, has been held valid.^ So, a parol
license to build and maintain a bridge on another's land is
valid.* So parol authority may be given to a grantor to
enter upon the land and remove property, being a mere
license.^ So, a parol license is valid, to enter on land, and
lay down aqueduct logs, for the purpose of conveying water
from a spring to adjoining land, with liberty to enter from
time to time for examination and repairs.®
4. Action for building and continuing a railroad on a
• street in front of the plaintiff's house, so as to obstruct his
right of ingress and egress. Held, the company might set
up a parol license from the plaintiff to buUd the road, as
a bar to all damages sustained, while the license remained
unrevoked.^
5. The owner of wild land agreed with another person
to go and clear a part of it, fence, and help the latter to
build a house, reserving to the former the use of the timber,
except what was needed for " house, rails, and firewood."
Held, a mere license to occupy the land, giving no right to
dispose of any timber cut in clearing it.^
6. License from the lord of a manor to erect a cottage,
rendering an annual rent of 10s. 6d. as a quit-rent ; also to
enclose a piece of ground for a garden to the cottage ; both
being parts of the waste. The licensee bmlt a cottage, and
resided in it a year and a'half. Held, not to confer a settle-
ment, not being a grant of any interest in land.^
7. A son, having agreed to purchase a piece of land for
65^., applied to his father, who consented to advance 201.
1 Wheeler ». Rowell, 7 N. H. 515. " Sampson v. Burnside, 13 N. H.
2 Luce V. Cooley, 24 Wend. 451. 264.
" Wood V. Lake, Say. 3. ' Miller v. Auburn, &c. 6 Hill, 6.
■• Ameriscoggin, &e. w. Bragg, UN. ' Caller u. Hiltj, 2 Harr. (Penn.) 286.
H. 102. ^ Rex V. Inhabitants of HorndoO, 4
5 Parsons v. Camp, 11 Conn. 25. Man. & Selw. 562.
CH. Vni.] PAROL LICENSE. 127
left to his wife, on condition that a house should be built by
the son on the land, which the father and mother were to
have for their lives, and the life of the survivor, and which
was afterwards to go to the son, but the father and mother
were not to sell or dispose of it, nor to take any other
family into the house. This agreement was only by parol.
Afterwards the father advanced the 20/., the son completed
the purchase, the land was conveyed to him in fee, and he
built a house, of which the father arid mother took* posses-
sion, with his consent, and lived in it for three years, with-
out paying any rent, when the father died, and the mother
continued in possession. Held, the father did not gain a
settlement by the residence on the land, nor was the mother
entitled to reside on it irremovably.^
8. A license, or a right equivalent to that created by a
license, may, under some circumstances, be implied. Thus,
it is held in Maine, that the right to flow, in order to raise
water sufficient to carry a mill, subject to the claim for dam-
ages, is given, by necessary implication, in the statute regu-
lating mills, and therefore needs not to be proved by writing,
under the Statute of Frauds.^ (o) So, there is an implied
license to enter a shop for the purpose of making a purchase,
or the house of a friend, to pay a visit.^ So, the construc-
tion of a wharf, or dock, on the margin of a navigable
stream, is an implied license to all persons engaged in the
navigation of its waters, to use the wharf, when otherwise
unoccupied, for the purpose of mooring or making fast their
vessels ; and, when once acted on, this license cannot be re-
called, without giving the owner of the vessel sufficient time
to provide for her safety in some other manner. Held, there-
fore, that one by whom a vessel was cut loose from her
•
' Rex V. Inhabitants of Standon, 2 ^ Clement v. Durgin, 5 Greenl. 9.
Mau. & Selw. 461. ^ Adams v. Freeman, 12 John. 486.
(a) Sof the damages occasioned by such flowing may be waived or re-
linquished by parol.
128 LAW OP VENDORS AND PUKCHASERS. [OH. VHI.
fastenings, and suffered to drift down the stream, was
answerable for the whole amount of injury thus occasioned ;
and could not justify by showing that the title to the wharf
was vested in himself, and that the vessel had been moored
there without his knowledge or consent.^ So, building a.
plank wall near the boundary line of land, which the plain-
tiff was entitled to have left open with a view to the enjoy-
ment of light and air ; was held a waiver of that right, and
debarred him from objecting to the building erected by the
defendant, although so placed as to obstruct the view from a
window subsequently opened in the waU.^ But where, by
an indenture between the town of Boston and a miU-dam
corporation, the latter granted to the former a certain pro-
portion of a tract of land covered with water, " excepting
the mill-creek, and such other canals as may be agreed to be
kept open for the passage of boats ; " and by a subsequent
indenture between the same parties, it was agreed that the
town might put a covering over part of the creek or canal,
" provided only, that no interruption or impediment shaU be
made or permitted below said covering to boats on passing
through or into said canal ; " held, these provisions did not
constitute a license to the abutters to navigate the creek.^
So, also, the creek being kept open for boats, held, although
there was an implied public license to navigate it, this was
not such a perpetual license as could be pleaded as a grant,
or a dedication to the public ; and that no individual could
acquire a prescriptive right, by the use of it while thus open.*
9. It is obvious, from the general nature of the title above
referred to, as well as from the cases cited to illustrate it,
that, although purporting to involve no interest in the land,
and therefore not falling within the provisions of the Statute
of Frauds ; it is still a species of ownemhip, and, if extended
to the length which the principle of it would seem legiti-
mately to aUow, might well go far to defeat the purposes
1 Heeny v. Heeny, 2 Denio, 625. " Baker v. Boston, 12 Pick. 184.
2 Moore v. Rawson, 3 B & C. 332. « Ibid.
See Liggins v. Inge, 7 Bingh. 682.
CH. VIII.] PAROL LICENSE. 129
of that statute. Hence the following distinction has been
adopted, and seems to be as well established as the general
rule itself.
10. A license is a mere authority to do a particular act, or
series of acts, upon another's land, as e. g. to hunt, or cut a
certain number of trees. Such licenses merely excuse acts,
which would otherwise be trespasses. But a license, which
grants an estate, however short, is a lease, and requires a
deed. So, a permanent right to hold another's land for a
particular purpose, and enter at all times without his con-
sent, is an easement, and requires an agreement in writing.^
11. So it is held, that although an easement, arising either
from grant or prescription, may be extinguished, renounced,
or modified by a parol license from the owner of the dominant
tenement, executed by the owner of the servient tenement;
yet, as an easement cannot be created but by deed or pre-
scription, a parol license, which would create an easement,
if given by deed, may be revoked, even after execution.^ {a)
12. The owner of a mill privilege, under whom the plain-
tiffs claimed, gave the owner of lands flowed thereby, under
whom the defendants claimed, an oral license to erect a dam
on His land, and also to dig a ditch across the land of the
licensor to drain the water from part of the licensee's land ;
which was accordingly done. Held, the license to dig the
ditch might be revoked, even after twenty years, but not the
license to build the dam ; and, the licensor having assumed
to revoke the whole license, and, after notice, made an in-
cision in the dam ; the licensee was justified in making a
' Cooky. Stearns, 11 Mass. 537; Fol- Spear, 17 Maine, 123; Stevens w. Ste-
som V. Moore, 1 Appl. 252; Prince v. vens, U Met. 251 ; 3 Kent, 452; Claflia
Case, 10 Conn. 375; Mumford w. Whit- v. Carpenter, 4 Met. 583.
ney, 15 Wend. 380; Seidensparger v. ^ Morses. Copeland, 2 Gray, 302.
(a) " Generally, if not always, a license whioh, when executed, extin-
guishes or modifies an easement, is, from the nature of the case, a license to
do acts on the servient tenement — the tenement of the licensee.'' Per
Metcalf, J. Morse v. Copeland, 2 Gray, 305.
130 LAW OF VENDORS AND PURCHASERS. [CH. Till.
ditch on his own land, to draw off the water thus thrown
upon it, though he thereby diverted the water from the
licensor's mill-pond.'
13. So, an agreement, that a party may abut and erect a
dam upon the lands of another, and maintain it so long as
there shall be employment for the water-power, is void, for
the power; being not a mere license, but a transfer of an
interest in lands, in order to be valid, must be in writing.^
14. The attorney of a lessor wrrote to the lessee : " Mr.
(the lessor) has no objection to your leaving the fixtures on
the premises, and making the best terms with the incoming
tenant." Held, if such letter gave any license, it was one
coupled with an interest in land, and required a sealed
instrument ; and did not therefore give the lessee a right of
action against the incoming tenant, for refusing either to
purchase the fixtures or allow the lessee to enter and remove
them.^
15. The defendant gave a parol license to the plaintiff to
construct a drain through the defendant's yard, and use it
as a means of escape for foul and waste water from the
defendant's premises. After the license had been acted upon
and executed, and the drain constructed, he revoked^he
license and stopped up the drain. Held, he was not liable
to an action for so doing, the right claimed by the plaintiff
being an easement, which lay in grant, and could not be
created by parol.*
16. A sealed instrument of the following tenor : " I hereby
authorize R. to open and continue open, a road through my
field, beginning at, &c., as also to build, keep in repair, and
use a bridge over the branch in the field on which the said
road wiU pass, said road and bridge being intended as well
for the public use, as the use of R. ; and to continue until R-
and myself shaU agree it shall be shut up or altered ; " is a
grant of an incorporeal hereditament, a right of way de novo,
1 Morse v. Copeland, 2 Gray, 302. ' Eaffey u. Henderson, 8 Eng. Law
2 Mumford v. Whitney, 15 Wend. & Eq. 305.
380. " ' Hewlins v. Shippam, 5 B. & C. 221.
CH. VIII.] PAROL LICENSE. 131
which will endure until both parties agree upon its discon-
tinuance, and must be legally acknowledged and recorded.'
17. The same distinction has been applied to public or
legislative grants. Thus, the proprietor of a wharf in a
harbor was authorized by statute to extend it into the chan-
nel to the line of the harbor. Before any such extension, a
company was incorporated, with authority to locate and
construct a railroad across and over the flats between the
wharf and the line of the harbor. Held, the former act was
a grant, not a mere license, revocable, and revoked by the
latter.^ So, a legislative repealable grant to a corporation,
of the right to lay gas-pipes in the highways, is not a mere
revocable license, but an easement.*
18. A license is also to be distinguished from a lease, as
well as an easement, which latter is the chief point of dis-
tinction in the cases already cited. Thus, A., under a license
from B., the owner of land through which flowed a water-
course, erected a miU thereon, and ever afterward held and
occupied such mill as owner; but it did not appear that
there was any consideration for the license, or that it was to
continue for any certain time, or that there was any agree-
ment as to the nature of the occupation, or any mutual
stipulations, A. brings an action against C, the owner of a
mill below, for setting back the water upon his mill, by
means of a dam erected by C. Held, the license did not
constitute a lease, nor create any privity of contract between
A. and B.* So, an unsealed lease provided as foUows : " All
the hedges, trees, thorn-bushes, fences, with lop and top, are
reserved to the landlord." The landlord having entered the
close, and drawn the trees, when cut, over it, the tenant
brings an action against him. Held, the above agreement
might be shown under a plea of leave and license.^ So, an
' Hays «.* Richardson, I Gill & J. ' Providence, &c. v. Thurber, 2 E. I.
366. 15.
■^ Fitchburg, &c. v. Boston, &c. 3 * Branch a. Doane, 17 Conn. 402.
Cush. 58. ^ Hewitt v. Isham, 7 Bng. Law &
Eq. 595.
132 LAW OF VBNDOES AND PTJKCHASEKS. [CH. VIII.
executory contract of purchase, with leave to the vendee to
enter and occupy till default in payment, without any fixed
period or compensation, is a license ; not a lease, easement,
or permanent interest in land. Nor does it create the rela-
tion of landlord and tenant. Nor is the purchaser a wrong-
doer tiU default or demand of possession.^ So, a deed,
invalid as a conveyance for want of a witness, may be good
as a license.^
19. It has already been stated, that a license is o. personal
authority. Hence, the privilege which it creates is not trans-
missible, by the act of the party or of law, by assignment,
descent, or devise, like a legal estate, but is restricted to the
original party himself, (a) Thus, an agreement was made
for sale of land, the purchaser not to cut or allow to be cut
any timber, without written consent of the vendor. The
defendant, claiming under the vendee, cut timber, and the
vendor brings trover against him. Held, the defendant could
not set up in defence a parol license to cut, from the plaintiff
to the purchaser.^
20. License (under seal) to build a mOl and dam, at any
point in the course of a stream, which the grantee should
think proper. Held, this license could be executed only by
the party to whom it was given ; and, if not executed in his
lifetime, would confer no authority or interest upon his heirs
or those claiming under him.*
21. Trespass against a commoner, for pulling down a
house built on the common, to which he pleaded his right of
common as a justification. Replication, a license to build
1 Dolittle V. Eddy, 7 Barb. 74. * Vandenburgh v. Van Bergen, 13
2 Sallivantu.Fmiiklin,&o. 3 Ohio, 89. Johns. 212. See Co. Lit. 145 a; Hey-
^ Pierrepont v.^ernard, 5 Barb. 364. ward's case, 2 Rep. 36 a, b.
(a) A distinction has been made, between a license of profit or profit a
prendre, and a personal license of pleasure; tte former of which may be
exercised by an agent. Winckham v. Hawker, 7 Mee. & W. 63. A license
to search for, raise and carry away metals and convert them to the party's
own use, has been held assignable. Muskett^n. Hill, 5 Bing. N. 694.
CH. Vni.] LICENSE. 133
the house, given by the party, from whom the estate to
which the common was appurtenant came to the defendant.
Hela^the distinction between the abandonment and acqui-
sition of the right in an easement, which was contended for
in support of the replication, applied, if at all, only as be-
tween the original parties, and not as against the defendant,
a subsequent grantee.'
22. So, a parol license from A. to B., to take trees from
A.'s land so long as B. pleases, expires with the death of A.'^
But whexe the defendant gave a written license to A. and B.
to take logs from the plaintiff's land, and, after the death of
A., B., under his license, and without intimation from the
defendant of a revocation, took the logs ; held, the license
was not revoked by the death of A., but the defendant was
liable in trespass.^
23. Upon the same principle, the time of -executing a
license is not to be extended beyond its strict terms. Thus,^
a general, parol license, to cut and carry away wood grow-
ing upon land, if available at all, must be acted upon within;
reasonable time ; and applies only to the wood as it is sub-
stantially at the time of giving the license. What is a
reasonable time, the facts being agreed, is for the Court..
Such license does not continue fifteen years, not being acted
upon.*
24. Devise to A.'s children, of " a plantation to come into
their possession, or into the hands of the executors for their
benefit, at the testator's death, providing that A. have the
privilege of living on the place with his children during his
life." Held, A. did not take a life-estate, but his title was
under a license, and of A.'s children only those, took who
were in esse at the testator's death.*
25. Upon the same principle, a conveyance by the owner
of the land puts an end to a license for an easement ; and
' Perry u.Fitzhugh, 8 Qu. B. 757. * Gilmore v. Wilbur, 12 Pick. 120.
2 Putney v. Day, 6 N. H. 430. . ' 6 Calhoun v. Jester, 1 Jones, 474..
8 Chandler w. Spear, 22 Verm. 388.
12
134 LAW OP VENDORS AND PTJKOHASBRS. [OH. VIH.
the licensee, afterwards entering, though without notice of
the deed, is liable in trespass to the purchaser.' Thus, a
license to erect a house on one's land, for the use of the
builder, does not affect the title of a purchaser of the land,
without notice ; and such notice is not to be inferred from
occupation of the house.^ (a)
26. A., the owner of land, gave B. liberty to erect a dwell-
ing house for his use thereon. B. erected it accordingly, and
lived therein eleven years, when he died ; having executed a
deed of such house to the plaintiff, his son. A. had previ-
ously conveyed the land to the defendant, by deeds contain-
ing no notice or exception of such license. The defendant
brought ejectment for the land and house against the party
in possession, recovered judgment, and, by virtue of an exe-
cution, was put in possession, and so continued more than a
year, when he took down the house, thereby destroying it as
such, but did not take away the materials. The plaintiff then
brings an action of trespass. Held, the defendant was not
liable.^
27. In regard to the revocation of licenses, a very fruitful
subject of discussion has been, whether a license can be re-
voked, after it has been executed ; and, if so, whether only
upon the terms of a reasonable indemnity to the party, who
may have acted and incurred expense under and upon the
faith of such license.
28. The weight of authority upon this subject' is, that,
where title to real estate is not involved, a license is not re-
vocable, after it has been executed, or rather executed in
1 Wallis V. Harrison, 4 M. & W. ^ Prince v. Case, 10 Conn. 375.
538. s Ibid.
(a) Such license is also a personal pri-vilege, not extending to heirs or as-
signs ; and, whether countermandable or not during the life of the builder,
expires at his death. Whether any notice to remove the building, after his
death, be necessary or not, a subsequent recovery in an action of ejectment,
by the grantee of the land, with possession taken and held for more than a
year, is sufficient notice.
CH. VIII.] LICENSE. 135
part, to the injury of the party who has acted under it.
Several cases have been akeady referred to in the present
chapter, which illustrate this point. The following may be
added, as turning more directly upon the question of re-
vocation.
29. Oral agreement of the plaintiff with the defendant,
that the latter might cut trees on land of the former, peel
them, and take the bark. The defendant having cut and
peeled the trees, the plaintiff forbids his entering to take the
bark, and brings an action, of trespass for such entry. Held,
the action did not lie, because the bark, when peeled, became
the property of the defendant, and was on the plaintiff's land
by his consent, and the defendant therefore had a right to
remove it. Had the plaintiff done so, he would have been
liable in trover.^
30. Sale of mulberry trees in a nursery, raised to be sold
and transplanted, with a license to enter and remove them.
Held, the sale pass^ no interest in the land within the
statute ; that the license was revocable, but, if revoked in
violation of the agreement to sell the trees, and give liberty
to enter and remove them, to the prejudice of the purchaser,
the vendor would be liable for damages ; the contract bind-
ing him, either to remove the trees himself, or permit the pur-
chaser to do it.2
31. So in an old case it is held, that a license, coupled with
the grant of an interest, is irrevocable, so far as it is essen-
tially necessary to the enjoyment of the grant. Thus, if one
permit another to cut down a tree on the land c^the former,
and to come on the land, at any subsequent period, for the
purpose of removing it, this is said to amount to the grant
of an absolute interest in the tree, as soon as the permission
to cut it has been executed ; and the license is irrevocable,
so far as essential to the possession and enjoyment of the
grant.^ And, in another case, it is said, " A license under
1 Neftleton v. Sikes, 8 Met. 34. ^ Thomas v. Sorell, Vaaghan, 35.
2 Whitmarsh v. Walker, 1 Met. 313.
136 LAW OP VENDORS AND PTIRCHASERS. [OH. VHI.
seal (provided it be a mere license) is as revocable as a
license by parol ; and, on the other haiid, a license by parol,
coupled with a grant, is as irrevocable as a license by deed ;
provided only that the grant is of a nature capable of bein^
made by parol." ^
32. But the class of cases, in connection with which these
questions have chiefly arisen, has been that of Solid and
permanent erections, constructions, or excavations — -such as
buildings, dams, sluiceways, &c. — by the party licensed,
upon the land^of the party licensing, necessarily involving
time, labor," and expense, and the chief value of which con-
sists in the contimdriff right to hold and use them. It is diffi-
cult to deduce from the authorities any well-defined rule
upon these points of discussion. They involve, in its most
practical application, the very nice and shadowy distinction
already adverted to, between a license and an easement ; or
rather, if the doctrine were adopted without qualification,
that an executed license is irrevocable, it is quite obvious
that the distinction in question woula cease to, exist; ber
cause the class of works above referred to are, in the fullest
sense of the word, easements, and, in a very large proportion
•of cases, no question arises in regard to them, until after
they have been completed and put in actual operation. Act
cordingly, in a leading case upon this subject,, already cited,^
which was an action of trespass qu. clems, for entering the
dose of the plaintiffs, and digging up the soil ; the defendant
having pleaded a license to erect and maintain a dam, and
an entry for^he purpose of repairing it ;. the plea was held
bad on demurrer, as being in effect the claim of an ease-
ment. The case would of course have been stiU stronger for
the plaintiffs, had they relied upon a revocation of the license
by way of replication. But the remarks of the court pre-
sent, in a strong light, the general difficulties of giving to a
verbal license the permanent effect contended for by the de-
1 Per Alderson, B. Wood v. Lead- '■' Cook v. Stearns, 11 Mass. 533.
bitter, 13 Mee. & W. 838.
CH. vrn.] LICENSE. 137
fendant. " Licenses to do a particular act," says Parker,
C. J., " do not in any degree touch upon the policy of the
law, which requires that bargains respecting the title or in-
terest in real estate, shall be by deed, or in writing. But a
permanent right to hold another's land for a particular pur-
pose, and to enter upon it at all times, without his consent,
is an important interest which ought not to pass without
writing, and is the very object provided for by our statute.
If the defendant had a license from the former owners of the
plaintiff's close, to make the bank, dam, and canal in their
land, this extended only to the act done, so as to save him
from their action of trespass for that particular act ; but it
did not carry with it an authority at any future time to enter
upon the land. As to so much of the license as was not
executed, it was countermandable ; and transferring the
land to another, or even leasing it without any reservation,
would, of itself, be a countermand. If the defendant's plea
were held to be a bar to the action, all the mischiefs and
uncertainties which the legislature intended to avoid by re-
quiring such bargains to be put in writing, would be revived ;
and purchasers of estates would be without the means of
knowing whether incumbrances existed or not, on the land
which they purchased."
33. The same doctrine has been affirmed by many other
decisions. Thus, in a leading English case, where the defend-
ant, after sanctioning, and actually aiding in the construc-
tion of a sluice by the plaintiff, which traversed the defend-
ant's land, stopped up the sluice ; held, he was not liable to
an action.!
34. Trespass for assault and false imprisonment. Plea,
that at the time of the supposed trespass, the plaintiff was in
a close of Lord E., and the plaintiff, as the servant of Lord
E., and at his command, molliter manus imposuit on the
1 Fentiman u. Smith, 4 E. 107; Rug- Wend. 380; Houghtailing v. Hough-
gles V. Lesure, 4 Pick. 187; Sterens tailing, 5 Barb. 379 ; Hays u. Richard-
V. Steyens, 11 Met. 251 ; Coburn, 1 son, 1 Gill & J. 366; Den v. Baldwin,
Cow. 568 ; Mumford v. Whitney, 15 1 Zabr. 390.
12*
138 LAW OE VENBORS AND PUKCHASBRS. [CH. VHI.
plaintiff, to remove him from the said close, which was the
trespass complained of. Replication, that the plaintiff was
in the close by the leave and license of Lord E., which was
tra-versed by the rejoinder. The evidence was, that Lord
E. was the steward of the Doncaster races ; that tickets of
admission to the grand stand were issued, with his sanction,
and sold for a guinea each, entitling the holders to come
into the stand and the inclosure round it, during the races ;
that the defendant, by order of Lord E., desired him to leave
it, and on his refusing to do so, the defendant, after a reason-
able time, put him out, using no unnecessary violence, but
not returning the guinea. Held, the jury were properly
directed to find for the defendant ; that a right to come and
remain for a certain time on the land of another can be
granted only by deed ; and a parol license to do so, though
money be paid for it, is revocable at any time, and without
paying back the money.'
35. Bill in equity for the abatement of a nuisance, alleged
to be a mill-dam on the plaintiff's land. It appeared that
A. gave to the defendant a verbal license to erect and con-
tinue a mill-dam on A.'s land, and to dig a ditch through
the land, for conveying water to a mill which the defendant
was about to erect on his own land. The defendant made
the dam, dug the ditch, and afterwards erected the mUl, and
continued them during A.'s life. After granting the license,
A. conveyed his land to the plaintiff, without reservation.
The defendant continued the dam ajid ditch after A.'s death,
for the purpose of working the mill. The plaintiff, having
requested him to remove the dam, and fill up the ditch, upon
his refusal, attempted to remove the dam, and tore down
part of it ; whereupon the defendant interfered by force, pre-
Tented further proceedings, and repaired the dam. The
plaintiff then brings this bill, and a jury, upon an issue sub-
•mitted to them, found the dam to be a nuisance. Held, the
plaintiff was entitled to a decree for abatement, and a per-
1 Wood V. Leadbitter, 13 Mees. & Welsh. 338.
CH. Vin.] LICENSE. 139
petual injunction ; that the defendant was not liable for any-
thing done before revocation of the license, and therefore not
chargeable with the expenses of removing the old dam ; but
that he was liable for building a new dam or repairing the
old one, after such revocation, and for the expense of abating
the new dam.^
36. In 1769, a parish erected a meeting-house on land
granted them by the town, and some of the parishioners
erected sheds on the land. In 1801, other sheds were built
by authority of the parish. In 1815, the sheds were blown
down, and the parish, proposing to erect a new house of wor-
ship in another place, voted not to authorize the reerection
of the sheds in the former site, and appointed the defendants
to be a committee to regulate the place and mode of erect-
ing new sheds ; and the former owners erected new sheds,
under direction of the committee, on other parts of the land.
The plaintiff, one of the old proprietors, was notified by the
defendants to remove his shed, and, upon his failing to do
BO, the defendants removed it, and the plaintiff brings an
action of trespass against them for so doing. Held, the
plaintiff was not a tenant at sufferance, the relation of land-
lord and tenant never having existed between the parties,
but the parish merely having permitted the parishioners to
place their sheds on the ground as a matter of accommoda-
tion and favor ; that no right or title to, or easement in, the
land was thus acquired ; bul; that the parish might at pleas-
ure revoke the license.^
37. But, on the other hand, it has been held in New Hamp-
shire, in case of a parol license to erect a dam, for the benefit
of both parties, that, after execution, it could not be revoked,
without a tender of the expense of erecting it.'^ So it has been
held, that a license to build and maintain a bridge on another's
land was either irrevocable, or else could not be revoked, ex-
cept on payment of all expense and damage. The court
1 Stevens v. Stevens, 11 Met. 251. ' Woodbury u. ParsUey, 7 N. H.
2 Bachelder v. Wakefield, 8 Cush. 243. 237.
140 LAW OE VENDORS AND PURCHASERS. [CH, VIII.
say, " A license to an individual, to do an act beneficial to
him, but requiring an expenditure upon another's land, is
held not to be revocable after it has been once acted upon.
Such a license is a direct encouragement to expend money ;
and it is said it would be against conscience to revoke it, as
soon as the expenditure begins to be beneficial. A license
to erect a bridge for the taking of toU, is clearly distinguished
from a mere easement of passing and repassing; and we
think when it is once executed, it is either irrevocable while
the bridge continues, or if revocable at all, can only be on
full compensation for all expenditures made, and damage
occasioned, by such revocation." ^
38. So it has been held in Maine, that if there be a parol
agreement for a right of way, or other interest in land, and any
acts be done in pursuance thereof, which are prejudicial to the
party performing them, and are in part-execution of the con-
tract, the agreement is vaJid, notwithstanding the Statute of
Frauds. Therefore, the owner of land having, for valuable
consideration, given license to another by parol to build a
bridge on his land, an action of trespass will lie against the
former for taking away the bridge, without the consent of
the latter.^
39. Trespass qu. cUms. Goods upon the plaintiff's land
were sold to the defendant; by the conditions of sale, to
which the plaintiff was a party, the buyer being allowed to
enter and take the goods. The defendant, having entered
to take them, justifies under a plea of leave and license, to
which the plaintiff replies de injwria. Held, the defendant
was entitled to a Verdict, though the plaintiff had, between
the sale and the entry, locked the gates, and forbidden the
defendant to enter, and defendant had broken down the
gates, and entered to take the goods, the plaintiff, after the
sale, not having power to revoke the license.^
1 Amerlscoggin, &c. v. Bragg, UN. ' Wood v. Manley, 11 Adol. & Ellis,
H. 102. 34.
2 Ricker v. Kelly> 1 Greenl. 117.
CH. Vin.] LICENSE. 141
40. So, a parol license, to put a sky -light over the defend-
ant's area, (which impeded the light and air from coming to
the plaintiff's dwelling-house through a window,) cannot be
recalled at pleasure, after it has been executed at the defend-
ant's expense ; at least, not without tendering the expenses
he had been put to ; and therefore no action lies as for a
private nuisance, in stopping the light and air, &c., and com-
municating a stench from the defendant's premises to the
plaintiff's house, by means of such sky-light.'
41. The remarks quoted above (§ 37,) and similar ones
in other cases, seem to pass beyond the technical doctrine
of license, to the distinct, though analogous title by estoppel;
which, however, if indiscriminately applied to aU Cases of
verbal acquiescence in the permanent use of real property,
would at once do away with the strict rules relating to the
moiie of creating an easement. There is another class of
cases, somewhat favoring this view of a license, according to
which, one party erecting a building upon the land of another,
by permission of the latter, owns the buUding^s personal
property.^ And, moreover, the general doctrine, to be con-
sidered in the next chapter, that in equity part-performance
of a parol contract renders it valid ; if carried out in courts
of law, would seem to favor the theory that a license be-
comes irrevocable by its execution. Still, however, as al-
ready stated, the weight of authority, and the only doctrine
consistent with the security of title to real estate, is, that no
permanent ownership can be thus created.
' Winter i>. Brockwell, 8 East, 308. Woodbury, 15 Pick. 156 ; Marcey v.
2 Russell u. Richards, 2 Fairf. 371 ; Darling, 8 Pick. 283 ; Wood w. Hewett,
Ashmun v. Williaijis, 8 Pick. 402 ; 8 Q. B. 913 ; White's, &c., 10 Barr,
Wells V. Bannister, 4 Mass. 514 ; Cur- 252.
tiss V. Hoyt, 19 Conn. 154 ; Rogers v.
142 LAW OF VENDORS AND PUROHASBKS. fCH. IX.
CHAPTER IX.
PART-PBRFOKMANCB.
1 . License and part-performance.
2. Part-performance, at law.
5. Entire performance, in Equity.
6. Part-performance in Equity.
7. Wlio* may avail himself of part-
performance.
8-20. What acts are sufficient.
10. Proof of the terms of a parol
agreement.
II. Decide'd cases.
1 5. Parol partition.
17. The effect of part-performance is
founded on fraud.
1 8. Effect of payment. .
24. Doctrine in the United States.
25. Compensation for expenditures,
&e.
1. Having in the last chapter considered that important
exception or qualification to the Statute of Frauds, as ap-
plied to th^ale and purchase of lands, which grows out of
what is termed in law a license, we now proceed to speak of
another equally important, arising from part-perfdrmcmce of
a parol agreement. We have already adverted to the obvious
analogy between these two topics, (ch. 8.)
2. It has been sometimes held, that the same construction
of the Statute of Frauds is to prevail at law and in equity,
and therefore that part-performance of a parol agreement
takes it out of the statute, alike in both tribunals.^
3. Action on the case, for breach of an agreement to sell
aqd convey to the plaintiff, in fee-simple, a tract of land.
The plaintiff offered parol evidence of the agreement, pay-
ment of the consideration, the defendant's subsequent ac-
knowledgment of the sale and payment ; and of the defend-
ant's refusal to execute a conveyance. Held, the agreement
having been executed by one of the parties, the action could
be maintained.^ So, the statute does not avoid a note for
1 Brodie v. St. Paul, 1 Ves. 326. = Bell v. Andrews, 4 Dall. 152.
CH. IX.] PART>PERFOEMANCB. 143
the purchase-money of land sold by parol, but»of which the
purchaser has taken possession.^ So, a grantor may main-
tain an action for a part of the consideration expressed in
the deed to have been paid, but which by mistake was
not paid. Parker, C. J., says : " It is not a case within the
Statute of Frauds, because it is not a contract for the sale
of lands. That contract was executed and finished by the
deed. This is only a demand for money arising out of that
contract." ^
4. But the prevailing rule is, that the doctrine of equity,
by which payment of part of the purchase-money on a parol
contract, and taking possession of the premises under the
contract, take the case out of the statute, does not prevail in
courts of law.^ So, it seems, that at law, nothing short of a
full and complete performance, by one party, of an agree-
ment within the statute, will take it out of the operation of
the statute. As where nothing remains but to pay over the
money received, in which case the statute furnishes no de-
fence.* Thus, at law, a parol contract for the sale of land
is void, notwithstanding possession and -improvements by the
purchaser ; 5,nd money paid thereon may be recovered back
from the vendor or his heirs, they being unable or failing to
perform the contract.* So, a promise by a father to give his
son a tract of land by his wiU, followed by expenditure in
iniprovements, not, however, in execution of the contract, or
at the father's request, is without consideration, and cannot
be enforced.^ So, a parol promise to give real estate, posses-
sion taken by virtue of such promise, and valuable and
permanent improvements made with the consent of the
owner, furnish no ground for a decree enfofeing the promise.'^
So, assumpsit does not lie, upon an agreement of the de-
' Gillespie v. Battle, 15 Ala. 276. ^ Sailors v. Gambril, 1 Cart. 88 ;
2 Wilkinson v. Scott, 17 Mass. 249, Barickman v. Kuykeudall, 6 Blackf.
258. 21.
* Barickman v. Kuykendall, 6 Blackf. « McClure v. McClure, 1 Barr, 374,
21. 379.
' Eaton V. Whitaker, 18 Conn. 222 ; ' Ridley v. M'Nairy, 2 Humph. 174.
liinscott 0. M'Intire, 15 Maine, 201.
144 LAW OF VENDORS AND PURCHASEES. [CH. IX.
fendant with*the plaintiff, to convey to him land on one side
of a highway, in consideration of the plaintiff's consenting
to the taking of his own land on the other side of the high-
way, without any claim for damages ; although the plaintiff
has performed his part of the contract. Dewey, J., says :
" Such a doctrine (that of part-performance,) has, under
proper limitations, often been recognized in the Courts of
Equity, where it was required in furtherance of justice, and
,to prevent manifest fraud ; but it has obtained no permanent
sanction as a principle of jurisprudence in the courts of law.
Several of the cases above cited will be found to have pre-
sented strong equitable claims for the interposition of the
Court, and to have been cases where the defendants had
received benefit, to a very considerable extent, from the
execution of the contract by the plaintiffs ; but the Court
nevertheless maintained the doctrine that damages could
not be given at law for the non-performance of a contract to
convey lands, which was not in writing ; and that it would
not avail, though a part-performance was shown, even if it
appeared that the party was remediless, if he could not
resort to his action.^
5, It will be presently seen, that a different rule prevails
in equity, even with reference to part performance of a verbal
contract. A fortiori, it is held, that in equity, a full, substan-
tial performance on both sides will take the case out of the
statute, notwithstanding any legal defect or informality.
Thus, on a parol agreement made sixty or seventy years ago,
which had been fully performed on both sides, except only the
complete execution of a deed, a specific performance was de-
creed.2 So, as hfre been seen, (ch. 1,) where a written agree-
ment for the purchase of an estate has been executed, the pur-
chaser has the estate in equity, and it will pass by his will,
notwithstanding a subsequent conveyance of the legal estate.^
So, if a parol agreement has been executed on one part, and
' Adams V. Townsend, 1 Met. 483, ^ Somerville v. Trueman, 4 Harr. &
485. McHen. 252.
^ Bose V. Cunynghame, 11 Ves. 550.
CH. IX.] PART-PERFOEMANCB. 145
an enjoyment had accordingly, equity will not destroy or
avoid itJ The Statute of Frauds in such case is no de-
fence.^
6. The same general principle has been still further ex-
tended, so as to apply not merely to a complete, though
informal performance, but also to a mere part-performance ;
and the prevailing rule in Courts of Equity is, that, although
a contract for the sale and purchase of lands, is void or
voidable, under the Statute of Frauds, for want of a writing
signed by the party to be charged, yet, where the purchaser
takes possession in pursuance of such agreement, and with
the vendor's assent, the Court wiU decree an execution of
the contract ; more especially where he has made improve-
ments on the land occupied without interruption, and where
the vendor has often recognized the sale, and the purchase-
money has been paid.^ (a) The. Statute of Frauds was
designed to exclude oral evidence of the agreement of sale ;
not oral evidence of the acts of part-performance, or things
done in execution of the agreement,* (6) And part-perform-
ance has no other effect, except that the plaintiff is- thereby
let in to prove the agreement aliv/nde, where it is not con-»
1 Lock^y u. Lockey, Prec. Cha. 518. 479; Massey v. M'llwain, 2 Hill, Ch..
2 Aylesford's case, 2 Stra. 783 i Pawle 426; Moore w.Beasley, 3 Ham. (Ohio),
V. Gunn, 4 Bing. N. 445. 294 ; Wilber v. Pain, 1 lb. 251 ; Shirley
^ Clerk M. Wright, 1 Atk. 12; Gunter u. Spencer, 4 Gilm. 583; Keats «. Eec-
V. Halsey, Ambl. 586 ; Newton v. Swa- tor, 1 Ark. 391 ; Thornton v. Henry,
zey, 8N. Hamp. 9, 13; Tiltonu. Tilton, 2 Scam. 216; Wetmore v. White,.
9 N. Hamp. 386, 390 ; Brock v. Cook, 3 2 Gaines' Cas. 87.
Porter, 464 ; Annan v. Merritt, 13 Conn. * Hall v. Hall, 1 Gill, 383.
(a) A fortiori, where the whole purchase-money for land was paid, and
possession delivered according to a parol contract, the agreement was held'
not within the statute. ElHs v. Ellis, 1 Dev. Eq. 180 ; Tibbs v. Barker, 1
Black. 58. *
(6) But the mere declarations of the vendee that he had purchased the
land, and was the owner, unaccompanied by any act in pursuance of them,,
want all the essential attributes of part-performance. They are merely
parol evidence of the agreement. Anderson v. Chick,* 1 Bailey, Eq. 118,,
124.
13
146 LAW OF VENDORS AND PUECHASBKS. [CH. IX.
fessed.i Thus, when a fair, honest, verbal agreement, for
the sale of land, is alleged in a bill and admitted in the
answer, or when it appears clearly that such an agreement
has been made, and has been performed on one part, or
something has been done in pursuance of it, the Court of
Chancery will decree a conveyance immediately, or on the
proper terms.^ And where there are several parcels sold by
one parol contract, it suffices if the vendee pays the price
and goes into possession of one parcel only.^ Thus, the
complainant's bill alleged a contract for the whole of a
square of ground, payment of the purchase-money, and pos-
session under the contract. The answer denied the contract
as to the whole square, but admitted it as to a part ; and
also denied paynient of the purchase-money, and possession
of the whole square. Decreed, that, on payment of the
whole purchase-money and interest, the defendant should
convey the part of the square.* So, where a parol contract
is made for the sale of two parcels of land for a gross price,
and the vendor, at the time appointed, conveys one only,
and agrees to convey the other presently ; and the vendee
.pays the whole price, and enters into possession of both on
receiving the deed ; the contract is not merged in such deed,
nor varied by the vendee's assent to the delay, as to the other
parcel. So, the agreement to give a deed of the latter is not
a new parol contract, or a substitute for the first agreement ;
but the conveyance is a part-performance of the original
contract.^
7. With regard to the party, who may avail himself of
part-performance, it is held, that, after delivery of possession,
in pursuance of a parol contract, the vendee, as well as the
vendor, may insist on a specific execution of the contract.®
But, on the other hand, part-performance is not ground for
' Thompson v. Tod, 1 Peters, C. C. * Graham v. Yeates, 6 Harr. & John.
388. 229.
2 Simmons w. Hill, 4 Harr. & M'Hen. ^ gnjit^ „. Underdunck. 1 Sandf.
252. 579.
8 Smith V. Underdunck, 1 Sandf. 579, « PugK v. Good, 3 W. & S. 56.
581.
CH. IX.] PART-PERFORMANCE. 147
holding' a party who has done the acts to his own prejudice,
unless they are also a prejudice to the plaintiff; because the
doctrine of part-performance is founded on fraud.' (a)
8, Acts merely introductory or ancillary will not constitute
part-performance, though attended with expense. As, for
example, delivery of an abstract, giving directions for con-
veyances, going to view the estate, fixing upon an appraiser,
making valuations, &dc.^ Thus, where one who had verbally
agreed for the purchase of an estate in confidence thereof
gave orders for conveyances to be drawn, and went several
times to view the estate ; held, the Court would not carry
such agreement into execution, but the Statute of Frauds
might be pleaded to a bill brought for that purpose.^ So, an
agreement was made by parol, that, upon the plaintiff's pro-
curing a release from a third person, the defendant would
convey. The plaintiff procures the release for a valuable
consideration. This is not a part-performance.* So, putting
a deed into the hands of a solicitor, to prepare a conveyance,
is not a part-performance of a parol agreement, which takes
it out of the Statute of Frauds.* So, possession, when set
up as an act of part-performance, must be unequivocally,
directly, and solely referable to the identical agreement alleged
in the bill. It must be either delivered by, or taken with the
express or implied consent of, the vendor. If otherwise ob-
tained, it cannot avail. Where no other title to possession,
1 Buckmaster v. Harrop, 7 Ves. 341 ; ' Clerk v. Wright, 1 Atk. 12.
Popham V. Eyre, Lofft, 786. « O'Reilly v. Thompson, 2 Cox, 271.
2 Whitchurch v. Bevis, 2 Bro. 559 ; ^ Bedding v. Wilkes, 3 Bro. C. C.
Whaley v. Bagenal, 6 Bro. P. C. 645 ; 400.
Whitbread v. Brockhurst, 1 Bro. 412.
(a) It is said, that a parol agreement, which by reason of part-execution
binds the party himself, will also bind his representatives in case of his
death. 1 Sugd. 174. See Burkett u. Randall, 3 Mer. 4S6. But a strong
doubt has been suggested, whether a remainder-man would be bound in
consequence of part-performance by the particular tenant ; inasmuch as the
doctrine proceeds upon the ground of fraud, which is a personal matter.
Shannon v. Bradstreet, 1 Sch. & Lef 52.'
148 LAW OF VENDORS AND PURCHASERS. [CH. IX.
and no other origin of it is proved, it is primd facie to be
referred to the agreement. But if the vendor's assent to the
possession is denied, merely suffering the party to occupy for
a few months without turning him out, when the property
was of trifling value as to profits, and no improvements
were put upon it, is not sufiicient.^
9. If one authorized by the vendor to deliver possession
to the vendee takes a lease from the vendee, and enters into
actual possession ; there is an equitable estate in the lessor,
which is bound by a judgment against him.^ So, payment
of the purchase-money, and continuance in possession by
the complainant for several years, who, but for the agree-
ment was a trespasser, were held to take a parol agreement
for the sale of lands out of the statute.^ So, a bill in chan-
cery stated, that M. had a life-estate in all the tract of land
called Oliver's Neck, the remainder in fee being in C. ; that
C. sold to M. all his interest in the land ; that the purchase-
money was paid by M., who retained possession until his
death ; and that his representatives, the complainants, after-
wards retained possession. The testimony did not establish
the claim as stated, but proved a contract between C. and
M. for one fourth part of the tract ; that the purchase-money
was paid by M., and possession pf the land permitted to be
retained by him under the contract. Held, the complainants
were entitled to a conveyance of the one fourth ; that per-
mitting the possession to be retained was equivalent to an
actual delivery, and,- with the payment of the purchase-
money, took the case out of the statute.* But, upon a
bill for specific performance, it appeared that the plaintiff,
"through whose land the defendants, a railroad corporation,
-were authorized to make their road, gave them a bond to
1 Jervis v. Smith, 1 Hoffm. Ch. 470 ; 1 98 ; Phillips v. Thompson, 1 Johns.
Givens v. Caldei-, 2 Desaus. 171 ; Hord Ch. 131 ; Blalceney v. Ferguson, 3 Eng.
V. Bowman, 1 Freem. Ch. 290 ; Smith 372.
V. Undei-duncli:, 1 Sandf. 579,; Lord v. ^ Pugh v. Good, 3 W. & S. 56.
. TJnderdunck, lb. 46; Thompson w. Scott, « Smith v. Smith, 1 Rich. Eq. 130.
' 1 M'C. Ch. 32 ; Carlisle u. Fleming, 1 * Drary, v. Conner, 6 Harr. & John.
Harr. 421 ; Eaton v. Whitaker, 18 Conn. 288.
222 ; Goodhue v. Barnwell, 1 Kice, Eq.
CH. IX.] PAET-PERFORMANGB. 149
convey to them by a certain day, on payment of a certain
price, so much of his land as should be taken by them by
authority of law for their road. The defendants, within the
time allowed by law, entered upon and took the land ; but,
upon the plaintiff's tendering them a deed on the day ap-
pointed, refused to pay the price. Held, the bill could not
be maintained, the defendants not having signed any written
agreement. Bigelow, J., says : " It does not appear that the
defendants took possession of the land under the contract.
They had the right, under their acts, of incorporation, and
the general statutes of the Commonwealth, to enter upon the
land of the plaintiff and construct their railroad over it,
without any contract, and even against the consent of the
owners. For aught that appears in this case, all the acts of
the defendants, relied on as showing part-performance of the
contract, were done under the rights and powers conferred
on them by statute, and not in pursuance of the contract." ^
10. With what degree of distinctness and certainty the
terms of the contract itself are to be shown, in order to
sustain a claim upon the ground of part-performance, has
been matter of somewhat conflicting decision. The prevail-
ing rule, however, appears to be, that, to obtain specific per-
formance of a parol contract for the sale of lands, it must be
clearly, fully, and satisfactorily shown what the agreement
was, and that the plaintiff has performed, or has been, and
is, able and willing to perform, his part of the contract.^
11. The following cases may be cited as illustrating the
general principles above stated.
12. A mother desired certain persons to bear witness, that
she had purchased a particular tract of land for her son,
a minor ; and verbally agreed with her brother, acting for
the son, to give him the land, in consideration of the son's
1 Jacobs i>. Peterborough, &c. 8 Cush. Carroll, 1 B. & Be. 265; Reynolds v.
223-4. Waring, You. 346; Mortimer v. Or-
2 Thompson v. Scott, 1 M'C. Ch. 32 ; chard, 2 Ves. 243 ; 5 Vin. Abr. 523, pi.
Hall (J. Hall, I Gill, 383 ; 6 Ves. 470 ; 40. See also Allen v. Bower, 3 Bro.'
Symondsou v. Tweed, Prec. Ch. 374; 149; Clinan v. Cooke, 1 Soho. &L. 22;
Forster v. Hale, 3 Ves. 712 ; Savage v. Mundy v. Joliffe, 9 Sim. 413.
13*
150 LAW OF VENDORS AND PURCHASERS. [CH. IX.
relinquishing his claim to his father's personal estate. The
mother gave him possession of the land, which the son used
and improved as his own until his death, having released
his claim to his father's personal estate. Held, the agree-
ment should be specifically performed.'
13. Agreement to convey to trustees for creditors, in con-
sideration of an extension. The trustees took possession,
and the extension was granted. Held, the contract should
be specifically performed.^
14. Bill in equity to compel performance of an agreement
to lease. The defendant, having a freehold estate in land of
his wife, entered, in the fall of the year, into a parol agree-
ment with the plaintiff, that he would erect upon the land a
substantial brick store, and have it completed by the first
day of April then next ; and that he would let such store to
the plaintiff for three years, for the yearly rent of $500, to
be paid quarterly. He erected such store, and the plaintiff
immediately took possession, and occupied for one year,
paying the rent quarterly. During the year, the defendant
gave the plaintiff notice to quit, and brought a summary
process to eject him. Held,
1. That the agreement was within that clause of the
•statute, which relates to the sale of lands, &c.
2. That there was a part-performance, sufficient to take
the case out of the statute, and authorize a decree for specific
performance.
The plaintiff, after the erection of the store, and before the
commencement of the suit, offered to the defendant a writing
in the form of a lease, to be executed by him, providing, that
if the store should be destroyed by fire, or rendered unfit for
use, the payment of rent should cease, until it should be put
in good order by the defendant. The defendant refused to
execute such lease, or even to read it, saying, " I have no
lease to execute." Held,
' Simmons v. Hills, 4 Harr. & McH. ^ Moale v. Buchanan, 11 Gill &
252. John. 314.
CH. IX.] PART-PERFOEMANCE. 151
1. He was not bound to execute the lease offered, or any
lease containing such a provision ; but,
2. This did not excuse him from executing a lease with
the usual provisions.'
15. Although, since the statute, a parol partition of lands
is invalid, a Court of Equity, it seems, will enforce specific
performance of such agreement, where it has been partly
carried into execution.^ Thus, an agreement was made be-
tween two brothers, who had always lived together, and
owned their property in common, that one of them', having
a family, should provide for and take care of the other, who
had no family, and who was subject to epileptic fits, during
his life ; in consideration that the former should have all the
real and personal estate of the latter. Held, the contract
should be enforced in equity.^ (s. 19.)
16. G. and W., brothers, being jointly interested in the
real estate of their father, as tenants in common, G. agreed
to relinquish his interest, in exchange for a quantity of
medicines, and the good-will of his brother's business as a
physician; in consequence of which agreement, W. took
possession of the real estate, made improvements, and after-
wards sold the same to T., who also made valuable improve-
ments. Held, this was sufficient, in equity^ to take the case
out of the statute, and T. was entitled to a conveyance of
G.'s interest, and to a perpetual injunction against a suit
which had been instituted by G. for the recovery of the
premises.*
17. Equity decrees the specific execution of a parol agree-
ment, after a part performance, and notwithstanding the
express provisions of the Statute of Frauds, on the ground
of framdy in refusing to perform, after performance by the
other party, and to prevent the statute from being an engine
1 Eaton V. Whitaker, 18 Conn. 222. Wetraore v. White, 2 Caines, Cas. 87 ;
2 Goodhue v. Barnwell, Kice, 1 98. Moreland v. Lemasters, 4 Blackf. 383 ;
' Rhodes v. Rhodes, 3 Sandf. Ch. Byrd v. Odem, 9 Ala. 756 ; Fenucane
'79. V. Kearney, 1 Freem. 65, 69.
* Town u. Needham, 3 Paige, 545 ;
152 LAW OF VENDORS AND PURCHASERS. [CH. IX.
of that fraud, which it was enacted to prevent.' This prin-
ciple is perhaps best illustrated, by that somewhat numerous
class of cases, involving a breach of trust, where a legal title
is conveyed to one person, by whom the consideration is
paid, but for the benefit of another, to whom, the nominal
purchaser verbally agrees to transfer the estate, upon being
reimbursed the sum paid out. Thus, in such case, it ig
held, that, where a party has paid money upon a contract
within the statute, and a recovery of the money will not re-
store hifti to his former situation, he is entitled to specific
performance.2 As where A. agreed to purchase land of B.
on condition that a mortgage on the same and other lands,
held by C, should be discharged from the land, and it was
thereupon verbally agreed between A., B. and C, that a part
of the consideration should be paid on the mortgage to C,
who should, at the same time, execute a release of that part
of the premises. The purchase was accordingly completed,
A; paying the money, of which C. received the sum agreed
on, but C. excused himself from executing the release at that
time, saying that he would give it at any time when called
upon. Held, A., notwithstanding the statute, was entitled
to a specific performance of the agreement to execute the re-
lease.^ So, where lands of A. were sold under execution to
B., and B. sold them to C, C. having agreed verbally with
A. that he would purchase them of B., and retain them until
the rents and profits should pay the redemption-money; held,
the agreement was not within the statute, being a mere ex-
tension of the time of redemption.* So, where A. obtained
the legal title to land, as security for the money advanced
by him to B., the vendor, for C, the vendee, promising to
reconvey the same to C, on repayment of the sum so ad-
vanced, with 20 per cent, interest, but fraudulently sold the
land to the defendant, who bought with notice ; held, the
1 Maryland, &c. «. Schroeder, 8 Gill ^ Ibid.
& John. 94. * Griffin v. Coffey, 9 B. Mon. 452.
2 Malins v. Brown, 4 Comst. 403.
CH. IX.] PAKT-PBRPORMANCB. 153
contract was not void under the statute, but equity would
adjudge thte defendants trustees for the party defrauded, aAd
decree specific performance, or pecuniary compensation.^
So, A. and B. obtained the legal title to land, for a small
sum advanced to C, not being a fourth part of the value of
the land ; promising verbally to reconvey to C, on repay-
ment of the sum advanced, with interest ; and afterwards
fraudulently reconveyed the land to a bond fide purchaser.
Held, a demurrer, insisting on the statute, should be over-
ruled, the statute being made to prevent fraud, not to protect
it ; and that A. and B. should be holden as trustees of C, for
the value of the land, beyond the sum advanced, and in-
terest.^ So, A.'s farm being about to be sold, on a decree of
foreclosure, for a debt of $430, he applied to B. to advance
that sum, to save the farm to A. ; and it was agreed between
them, verbally, that B. should become the purchaser, and
hold the premises as security for the advance. B. accord-
ingly became the purchaser for $680, received a deed from
the master, and paid the $430 due the mortgagee, and no
more. Held, the agreement was within the statute ; that B.
was entitled to hold the land for his own benefit, but was
bound to pay to A. the residue of the $680, after paying off
the mortgage.^ (a) So, upon a bill for injunction, it appeared
that the defendant agreed, by parol, with his brother, who
was infirm, and whose land was about to be sold on execu-
tion, to purchase the land for the brother's benefit, and as a
home for his family, and to give him the benefit of the pur-
1 Jackson v. Gray, 9 Geo. 77. ^ Bander v. Snyder, 5 Barb. 63.
2 Cameron v. Ward, 8 Geo. 245.
(a) But where A. agreed with B. by parol, at B.'s request, to attend a
sale of B.'s farm under a decree of foreclosure, purchase the same in his own
name, and give B. two weeks to redeem ; and A. did so, and afterwards, B.
failing to redeem, A. sold the farm for a greater sum than he paid for it ;
Held, in an action by B. against A. to recover the surplus, that the agree-
ment was void, being contrary to the statute. Lathrop v. Hoyt, 7 Barb.
59.
154 LAW OF VENDORS AND PURCHASERS. [CH. IX.
chase, when he should refund the money. The defendant
announced the agreement at the sale, bid off the'land for a
nominal price, and paid it. The brother remained in pos-
session till his death, when the plaintiff, his widow and heir,
occupied the land. The defendant then took a deed from
the sheriff, and brought an action at law to dispossess the
plaintiff. Held, the defendant's conduct was fraudulent, and
the Statute of Frauds was no defence against the plaintiff's
claim to have the deed cancelled.^ (a)
18. Upon the ground last stated, that the principle of part-
performance rests on fraud; the payment of money, more
especially of only part of the price, cannot, in general, be re-
garded as a sufficient part-performance. In such case non-
performance would not operate a fraud upon the party, be-
cause the money may be recovered back.^ {b) So, payment
' Cox V. Cox, 5 Rich. Eq. 365. Phillips, 9 Watts, 85 ; Parker w. Wells,
2 Hatchev v. Hatcher, 1 McMul. Bq. 6 Wharton, 153 ; Hatcher v. Hatcher,
311; Jackson v. Curtwright, 5 Munf. 1 M'MuUan, 311; Smith v. Smith, 1
308; Sites v. Keller, 6 Ham. (Ohio), Richardson, Eq. 130; Eaton v. Whit-
207 ; I^oUard u. Kinner, lb. 231 ; Allen aker, 18 Conn. 222; Finucane v.
V. .Booker, 2 Stewart, 21 ; Meredith v. Kearney, 1 Freem. Ch. 65 ; Hood v.
Naish, 3 Stewart, 207 ; Barickman v. Bowman, lb. 290, 294.
Kuykendall, 6 Blackf. 21 ; M'Kee v.
(a) Upon a somewhat similar ground, a party cannot avoid the effect of
p'art-performanoe, by buying in a prior title. Thus, a public survey was
held for sale of an estate, an offer for it accepted, conveyances ordered, and
possession delivered. But, disputes arising about settling the conveyances,
the purchaser obtained an assignment of a mortgage upon the estate, ante-
dated it, and refused to go on with the purchase. Held, though the agree-
ment was parol, yet it was binding. Pyke v. Williams, 2 Vern. 465.
(b) In an early case, (Lord Fingal v. Ross, 2 Eq. Cas. Abr. 46, pi. 12,)
Lord Chancellor Cowper remarked, that the clause of the statute relating
to the sale of goods expressly provides that payment of earnest shall bind the
bargain ; while it declares that no agreement concerning lands shall be good,
unless reduced to writing. Ace. Buckmaster v. Harrop, 7 Ves. 341. ' Mr.
Sugden says, (1 Sugd. 168,) the payment of a small sum cannot be deemed
a part-performance. The dicta are in favor of a considerable sum being a
part-performance, but this construction is not authorized by the statute.
He refers to the judgment of Sir Wm. Grant, in Butcher v. Butcher, (9 Ves.
382,) as showing the impossibility of drawing any such line of distinction be-
CH. IX.] PART-PEKFORMANCB. 155
of the auction duty is not a part-performance, taking an
agreement out of the Statute of Frauds, because the rev-
enue laws would thus be made to operate beyond their
direct and immediate purpose.' So, the defendant paid
to an auctioneer, an agent for the plaintiff, a vendor, .£50
" as a deposit and part-payment of .£1,000," for the pur-
chase of hereditaments, taking a receipt ; " the terms to be
expressed in an agreement to be signed as soon as pre-
pared." The defendant had previously approved of the draft
of the contract, and, at the time of taking the receipt, agreed
to sign the contract the next day ; but refused to do it, and
demanded back the deposit. Held, the Statute of Frauds
1 Buckmaster v. Harrop, 7 Ves. 341.
tween the amounts of purchase-money paid. So, in Buckmaster v. Harrop,
7 Ves. 341, it is said, that whether one guinea or fifty guineas be paid, it can
make no difference. Ace. Cordage v. Cole, 1 Saun. 319. But, in an earlier
case, it was held that, though payment of a substantial part of the purchaser
money will take an agreement out of the statute, payment of a small part, as
five guineas, the purchase-money being one hundred, will not do. The
plea of the statute was allowed ; with an intimation from the court, that,
under the circumstances of the case, the bill would be dismissed with costs.
Main v. Melbourn, 4 Ves. 720. A different doctrine from that stated in the
text has sometimes prevailed ; and several old cases have been relied upon
to sustain it. Feme v. Bullock, Toth. 206 ; Clark v. Hackwell, lb. 228 ;
Vol! V. Smith, 3 Cha. Rep. 16 ; Moyl v. Home, Toth. 67; Alsop v. Patten,
1 Vern. 472; Lacon v. Mertin, 3 Atk. 1 ; Dickinson v. Adams, 4 Ves. 722.
But see William v. Nevill, Toth. 135 ; Miller v. Blandist, lb. 85 ; Simmons
V. Cornelius, 1 Cha. Rep. 128; 2 Freem. 128; 1 Freem. 486, caa. 664 b;
Seagood v. Meale, Prec. Cha. 560 ; Coles v. Trecothick, 9 Ves. 234. One
of two joint lessees verbally agreed to sell his interest to the other, and ac-
cepted a pair of compasses in hand to bind the bargain. Whether this is
within the Statute of Frauds, Qu. ? Alsopp v. Patten, 1 Vern. 472. A.
agreed with B. for the purchase of nine houses, mortgaged to C, and paid
him a guinea in earnest. B. wrote a note to C, desiring him to deliver up
the buildings, he having disposed of them,' which C. refused, unless all the
mortgage-money was paid, and afterwards purchased them himself. On a
bill brought by A. for specific performance, held, that neither the earnest
nor the note, which was only evidence of assent, but did not ascertain the
terms of the agreement, was sufficient to take it out of the Statute of
Frauds. Seagood v. Meale, Prec. Cha. 660.
156 LAW OF VENBOES AND PDECHASERS. [CH. IX.
was a good defence to a bill for specific performance.^ So
the purchaser's having deposited part of the purchase-money
with her agent, to pay the vendor as soon as he should execute
the deeds, and the agent's informing the vendor of it, are not
such a part-performance as takes the case out of the statute.^
19. But, where the consideration of a verbal sale of land
consists of services to be rendered, which are of such a pecu-
liar character, that it is inipossible to estimate their value to
the vendor by a pecuniary standard, and the vendor did not
intend so to measure them ; the performance of the services
will entitle the vendee to a specific performance. Thus, an
agreement was made between two brothers, who had always
lived together, and owned their property in common, by
which the one, having a family, agreed to provide for and
take care of the other, who had none, and who was subject
to epileptic fits, during his life, in consideration that the
former should have aU the real and personal estate of the
latter. Held, after performance of the services, the contract
should be enforced.'' (s. 15.)
20. The principles above stated, with reference to part-
performcmce, seem to be well-established by the weight of
English and American authorities. There are, however, some
qualifications and exceptions, which equally require to be
noticed. Thus, as has been alreg,dy stated, (§ 8,) acts of
part-performance of a parol agreement will not take it out
of the statute, unless they are solely applicable to the agree-
ment, (a) Upon this ground, repairs made by a tenant
under his old lease, upon the expectation of getting a new
one, form no consideration for a promise to give a new
lease.* So, a mere continuance in possession, by a tenant,
1 Wood V. Midgeley, 27 Eng. Law & " Rhodes v. Rhodes, 3 Sandford,,279.
Eq. 206. * Byrne v. Eomaine, 2 Edw. 445, 446.
2 Givens v. Calder, 2 Desaus. 171. See Lacon v. Mertins, 3 Atk. 1.
(a) Part^performance must be such, as to make the party seeking to en-
force an execution a wrongdoer, by reason of his acts, and a complete per-
fornj»nce a protection against any liability for such acts. Ham v. Goodrich,
(N. H.) Law Kep. Nov. 1856, p. 390.
CH. IX.] PART-PERFORMANCE. 157
after his purchase, is not sufficient to take the case out of
the statute.^ So where, upon the faith of a verbal promise
of renewal, a tenant rebuilt a party wall ; the agreement was
held to be within the statute ; the act being an equivocal
one, which would have been done equally without any agree-
ment ; and moreover, the landlord being liable to an action
to recover back the cost, if it was to be borne by him.^ So,
the vendee's renting a part of the land, as agent of the ven-
dor, will not entitle the vendor to specific performance, as it
does not purport to be in pursuance and execution of the
agreement.^ So, to constitute a valid parol sale under the
statute, the possession must be exclusive of the vendor, and
the boundaries distinctly ascertained. Thus, A. entered, under
a parol agreement with B. to receive one hundred acres, in-
cluding the mansion-house, on one side of a larger tract ;
lived with B., performed the consideration, and farmed the
land in the manner it had been previously farmed, or with
his own and B.'s cattle ; having also an agreement to farm
the whole of the larger tract for one year, for payment of
taxes, and making fences. Held, within the statute.*
21. Promise by a father to one of his sons, that, if the
latter would continue with him, he would leave him the
farm at his death. The son brings a bill for specific execu-
tion against the heirs at law of the father, on the ground of
performance by the son. Bill dismissed.^ So, in case of an
agreement between father and son, that if the son, with his
family, would come and live with the father, and take care
of him and his farm during his life, hfe would give the son his
homestead farm ; the father is not bound to give up posses-
sion during his life, such surrender not being necessary to a
performance of the conditions. The agreement merely binds
the father to give the son a title either by devise, or by a
1 Johnston v. Glancy, 4 Blackf. 94, 1 ; O'Reilly v. Thompson, 2 Cox,
99; Hood v. Bowman, 1 Freeman, 271.
290-294; Wills v. Stradling, 3 Ves. ^^ Anderson w. Chick, Bai. Eq. 118.
378 ; Savage v. Carroll, 1 B. & B. 265. * Frye v. Shepler, 7 Barr, 91.
2 Frame v. Dawson, 14 Ves. 386. ^ Carlisle v. Flemin'g, 1 Harr, 421,
See Lyndsay v. Lynch, 2 Scho. & Lef. 430.
' 14
168 LAW OF VENDORS AND PURCHASERS. [CH. IX.
conveyance to take effect at his death. Hence, where a bill,
brought by the son to enforce the agreement, set it forth as
above stated ; held, the plaintiff's possession, during the
father's life, was not a part-performance.
22. Verbal agreement, that A. will convey a tract of land,
and pay a sum of money, to B., in consideration that B. shall
make a deed, confirming the sale of another tract to C.
Held, the execution of the deed of confirmation was not such
a part-performance, as made the contract binding upon A.^
23. A parol sale, upon which money has been paid, and
possession delivered, is not good against a bond fide pur-
chaser, without clear evidence of notice to him, either actual
or legal. Legal notice exists, only where there is a violent
presumption of actual notice. Undisturbed possession has
generally been considered legal notice ; but it must be clear
and unequivocal. Thus, A. bought by parol from B. a corner
of B.'s tract, paid for it, was put into possession, and had
buildings erected, but there was no survey of the part, or
other admeasurement. On B.'s part there were a forge,
dwelling-house, grist and saw mill, and buildings for the
workmen, which, with A.'s buildings, might strike the eye as
one establishment. Held, the possession of A. was not legal
notice of his title, to a purchaser at sheriff's sale, under a
judgment against B. ; particularly if A. gave no actual notice
of his title, when he probably knew of the judgment, execu-
tion and sale.^
24. It requires to be further stated, that, although the gen-
eral doctrine as to part-performance has been for the most
part recognized, with other principles of the English law, in
the United States ; yet it has not been universally adopted.
Thus, in Massachusetts, where there is no Court with full
equity powers, there has been a series of cases, all tentiing
to the conclusion, which seems now finally established, that
part-performance does not take a parol contract relating to
1 Chambers v. Lecompte, 9 Missouri, ^ Billington v. Welsh, 5 Binn. 131.
566.
CH. IX.] PART-PERFORMANCE. 159
lands out of the Statute of Frauds. Any earlier decisions,
which may have incidentally recognized the contrary doc-
trine, may be considered as now overruled. Thus it is held,
that, although a defendant in equity may rely upon a verbal
agreement, for the purpose of showing that it would be in-
equitable to enforce specific performance of a written one ;
the Court^have no power to decree specific performance of
a contract, unless every part of it has been reduced to writ-
ing.' So, in a case of assumpsit, to recover money alleged
to have been paid on a consideration which has failed. The
money was paid, on a parol agreement to purchase of the
defendant a certain house and estate, which were to be con-
veyed to the plaintiff free of incumbrance, the defendant
undertaking to discharge a mortgage on the estate, which
was subsequently done, but, before the estate was conveyed
to the plaintiff, the house was consumed by fire. It was
held, that the contract was void by the Statute of Frauds,
that the payment of the money did not take the case out
of the statute, that the loss must fall upon the defendant, no
actual conveyance having been made, and neither party in
fault, and that the plaintiff was entitled to recover.^ And,
in a very late case, where the general question was more
distinctly presented than in any preceding one,^it is expressly
decided, that part-performance does not, in Massachusetts,
take a case out of the statute. Bigelow, J., says : * " This
Court has no power to enforce in equity the specific perform-
ance of any but written contracts. The ground on which
Courts having full chancery powers have interfered to enforce
parol contracts concerning the sale of lands which have been
partly performed, has been to furnish remedies against fraud,
and not because the contracts, as such, were binding on the
parties. Such cases are not within the equity power of this
Court." The same point has been settled, upon similar
' Brooks V. Wheelock, 1 1 Pick. 438. ' Jacobs v. The Peterborough, &c., 8
2 Thompson v. Gould, 20 Pick. 134. Cush. 223.
* Ibid. 225.
160 LAW OP VENDORS AND PUKCHASEES. [CH. IX.
grounds, in Maine.^ So, it is said to be the settled doctrine
in Mississippi, that part-performance will not take a parol
sale of lands out of the Statute of Frauds, and that no
exceptions of that character will be ingrafted on the statute.^
So it is held in Tennessee, that a Court of Equity has no
power to relieve against the provisions of a statute in any
case ; that parol proof is inadmissible, to establish a contract
required by statute to be in writing ; or to show part-per-
formance, from which the contract may be inferred. The
rule is adopted, without qualification, that to make a con-
tract for the sale of land valid, it must be in writing, and
signed by the party to be charged therewith.' In New York
it was early held, that a contract cannot rest partly in writ-
ing and partly in parol ; that, where a part-performance is
set up, the party cannot resort to parol evidence in aid of
the written agreement ; but the terms must distinctly appear,
or be made out to the satisfaction of the Court.* So, in
New York, it is held, that the rule of the Court of Chancery,
by which parol contracts for the sale of real estate are taken
out of the Statute of Frauds by a part-performance, ought
not to be extended to new cases, which do not come clearly
within the equitable principles of the previous decisions on
that subject.^ So in Pennsylvania it was early held, that
possession alone will not take a case out of the act against
frauds, &c. ; though it is a strong circumstance connected
with others.^ Thus, possession begun before a parol agree-
ment of lease for seven years, and continued afterwards, is
of too doubtful a nature to be considered as part-perform-
ance.^ And, in a much later case, it has been decided, that
the delivery of possession of part of the property, in compli-
ance with a parol contract for the sale of land, is not such
1 Bubier v. Bubier, 24 Maine, 42 ; ^ German v. Machiu, 6 Paige, 289,
Wilton V. Hai-wood, 23 Maine, 131. 293. •
2 Beaman v. Buck, 9 Sm. & M. 207 ; « Bassler v. Nieslar, 2 S. & R. 355.
Box V. Stanford, 13 Sm. & M. 93. ^ Jones v. Peterman, 3 Serg. & Eawle,
s Patton V. M'Clare, M. & Y. 333. 543. So in Indiana ; Johnston v.
* Parkhurst v. Van Cortlandt, 1 Glancy, 4 Blackf. 94 ; and in Hatcher
John. Ch. 274. o. Hatcher, 1 M'Mul. Eq. 311.
CH. IX.] PART-PERFORMANCE. 161
an execution of it, as will take it out of the Statute of Frauds
and Perjuries.' But the doctrines of the English Chancellors
concerning part-performance have finally been adopted as the
law of Pennsylvania, under the Act of Assembly against
frauds and perjuries, notwithstanding the omission in the
latter of "the 4th section of the English statute.^ And the
rule elsewhere adopted seems to be finally established, that,
to take a case out of the statute, there must be possession,
and such part-performance, as cannot be compensated in
damages ; ^ and also exclusive possession.* Thus, the plain-
tiffs claimed under the will of their grandfather ; the defend-
ants under a parol gift or contract between their father and
grandfather. Held, under the Statute of Frauds, the defend-
ants had the burden of proof, that the contract was made ;
the land clearly designated ; open, notorious, and exclusive
possession taken and maintained under and in pursuance of
the contract ; and that they had made improvements which
did not admit of pecuniary compensation.^ So, in North
Carolina, part-performance, such as payment of the whole
purchase-money, and delivery of possession to the vendee,
will not dispetise with a writing, if the statute be insisted
on, nor admit parol proof of a contract, different from that
stated in the answer.^ (a)
25. It has been seen, (s. 17,) that part-performance is held
to take a parol contract out of the statute, on the ground
oi fravd; in the absence of which, actual or constructive,
equity wiU not interfere to enforce the contract, though in
part executed. It is further held, that specific execution of
a parol contract for land will not be decreed, where its opera-
tion would be harsh on any person concerned. But, if
' Allen's Estate, 1 Watts & S. 383, ' Blakeslee v. Blakeslee, 22 Penn.
385. 237.
2 Pugh V. Good, 3 Watts & Serg. ^ Moore v. Small, 19 Penn. 461.
56. .. « Allen v. Chambers, 4 Ired. Eq. 125 ;
3 Moore v. Small, 19 Penn 461. Ellis v. Ellis, 1 Der. Eq. 180, 341.
(a) Wiether it would be otherwise, if the contract partly performed were
admitted by the answer. Qu. ? Ellis v. Ellis, 1 Dev. Eq. 341.
14*
162 LAW OF VENDORS AND PURCHASERS. [CH. IX.
specific execution is refused, for any cause, the Court will
decree compensation to a party, who may have expended his
money on the property of another, on the faith of such con-
tract.^ Thus, the defendant agreed to assign a term of years
in his house and certain goods, for 200 guineas, paying one
in hand as earnest, and, three days after, nineteen more ; and
it was also agreed that the bargain should be put in writing
by a certain time. Bill for specific performance. Plea, the
Statute of Frauds, and that the money was only paid for
the lease, but confessing the receipt of the twenty guineas,
and offering to repay them. The plea was overruled, but it
was held to be clear that the defendant ought to repay the
money.^ So, the defendant agreed to give the plaintiff a
lease, rendering rent, the plaintiff paying J 150 fine. The
plaintiff paid £100, but the defendant refused to perform the
agreement. Upon a bill filed for specific performance, held,
the agreement was within the statute, but the £100 was
decreed to be refunded.^ So, in New York, where, as has
been seen, the general doctrine of part-performance has not
been fully adopted, if possession has been taken, and lasting
improvements made, under an imperfect agreement ; though
the Court wiU not grant relief, on the ground of part-
performance, yet the bill will be retained, for the purpose of
a reasonable compensation for such improvements.* Thus,
commissioners, under an act of the Legislature, were held
to have no right to use the lands of the plaintiff, or to re-
move or destroy his property, without a valid and legal
contract with him for that purpose, or until compensation
had beeij made and tendered to him according to the act.
And though a bill filed against the commissioners, to enforce
a parol contract for compensation, could not be sustained, as
being within the statute ; yet the Court retained the bill,
and awarded an issue of quantum damnificatus, to assess the
1 Anthony v. Leftwich, 3 Band. 238, ^ Lord Mngal v. Koss, 2 Eq. Cas.
246. Abr. 46, pi. 12.
■^ Leak v. Morrice, 2 Ch. Cas. 135. * Parkhurst v. Van Cortlaudt, 1
John. Ch. 274.
CH. IX.] PART-PERFORMANCE. 163
damages, as the plaintiff had no remedy, or at best a doubt-
ful and inadequate one, at law.^ So it is held in North
Carolina, that, although payment of the purchase-money,
taking possession, and making improvements, wiU not entitle
the vendee to specific performance ; yet he has in equity a
right to an account of the purchase-money advanced, and
the value of his improvements, deducting therefrom the an-
nual value during his possession.^ But a later case decides,
that, although in case of part-performance, if the defendant
admits the contract, as stated by the plaintiff, and the part-
performance, but relies on the statute, the Court will order
an account, and decree compensation ; if the contract is
denied, the Court can grant no relief, because it can go into
no proof of a contract, variant from that stated in the
' Phillips V. Thompson, 1 John. Ch. ^ Dunn v. Moore, 3 Ired. Eq. 364.
131, 149. Allen V. Chambers, 4 Ired. Eq. 130.
" Albea v. Griffin, 2 Dev. & Batt. Eq.
9 ; Baker v. Carson, 1 lb. 381.
164 LAW OF VENDORS AND PURCHASERS. [CH. X.
CHAPTER X.
CONSTRUCTION OE CONTRACTS.
1. General rules. I 13. Separate instmments. '
6. Certainty. |
1. Having considered the elements and requisites of a
contract for the sale and purchase of lands, we now proceed
briefly to speak of the construction of such contract. In this
connection, the agreement itself is assumed to be, as the
Statute of Frauds requires, in writing, and the present in-
quiry therefore involves the important subject of the admis-
sibility of parol evidence, in reference to such \\T:itten agree-
ment.
2. It is a general rule, that w^ords shall be so construed as
to have some meaning, rather than rejected. Thus, where a
vendor proposes a price; clear of all expenses, the agreement
is construed to mean that the purchaser shall bear the ex-
pense of making out the title ; the law imposing on him the
expense of the conveyance.^
3. The meaning of words may be determined by the
nature of the subject to which they relate. Thus, in case of
a purchase of a rectory for " the use of the parishioners and
inhabitants," the Court suggested various senses of the term
"inhabitant," with reference to the nature of the subject.®-
4. A. contracted to sell and plant a quantity of trees on
B.'s land ; and also, that he would keep in order the trees
aforesaid for two years, and replace such as should die during
that period " except from injury by sheep, game, or cattle."
1 Stratford v. Bosworth, 2 Ves. & ^ Attorney-General v. Foster, 10 Ves.
Bea. 341. 335.
CH. X.] CONSTRUCTION OF CONTRACTS. 165
In an action to recover the price, held, the words " keep in
order" meant, not to prune only, but to weed and clear the
ground, (a)
5. A stipulation was made, in articles before marriage,
that the intended settlement, which related to estates in
Ireland, should contain all the covenants, provisions, and
conditions, usually contained in marriage settlements made
in England. Held, to authorize the insertion of a power of
sale and exchange, under which lands in England might be
taken in exchange for lands in Ireland. A reference was
made to the master, to inquire whether certain proposed
powers of leasing were usual in th§it part of Ireland where
the estates were situated, and whether any circumstances
connected with the property rendered such powers expedient,
and to the interest of all parties, with liberty to*state special
circumstances.^
6. With regard to the construction of contracts for the
sale of land, the same reasonable certainty (b) is required
to render them valid, as in the case of other written agree-
ments. , And where a party has failed to prove the terms
of the agreement •telied on, equity wiH not assist him,
by directing an issue to ascertain the terms. A plaintiff is
bound to state in his bill the agreement relied on, and to
prove it as stated.^
7. An agreement to sell land, generally, means the whole
interest of the vendor.^
8. An agreement in writing, for the sale of a house, did
not, by description, ascertain the particular house, but re-
ferred to the deeds, as in possession of a person named.
^ Bedford v. Abecorn, 1 Myl. & Cra. ^ Savage v. Carroll, 2 Ball. & Beatt.
312. 444.
8 Bower v. Cooper, 2 Hare, 408.
(a) Also, that evidence of non-performance by A. of any part of the con-
tract on his part was admissible in reduction of damages. Allen v. Cam-
eron, 1 Crompt. & Mees. 832.
(&) Whether the purchase of a good will falls within this requisition, see
Coslake v. Till, 1 Russ. 376.
166 LAW OF VENDORS AND PtTRCHASBRS. [CH. X.
Held, the agreement was sufficiently certain, if it could be
ascertained by an inquiry before the master, that these deeds
referred to the house.'
9. In a contract for the conveyance of land, the land was
described as " lying on the southwest side of Black River,
adjoining the, lands of William Haffland and Martial."
Held, the description was sufficiently certain to entitle the
vendee to a specific performance.^ So, where a contract of
sale described the land, as lying in a certain town, county
and State, and the 240 acres owned by the vendor ; held, suf-
ficiently certain.^ So, the certainty of a contract may in part
depend upon, some subsequent act of the vendee. Thus, in
case of a bond, conditioned to convey a certain quantity of
land in one, two, or three surveys, at the election of the
obligee ; heM, the selection must be made, and the land sur-
veyed, before any obligation arose to convey. There being
a latent ambiguity in the description, which could be ex-
plained only by an actual survey ; held, the contract could
not be rescinded before such survey, showing whether the
bond could be complied with.*
10. But where A. and B. agreed in "writing, that A. had
sold to B. " all that part of a tract of land called C, lying
adjoining the turnpike road near where D. now lives at,
&c. ; " held, this agreement contained no sufficient descrip-
tion of the land, the bounds and quantity being both uncer-
tain, and could not be enforced any further than as admitted
by B.^ So, a contract for a lease of " coals; &c.," or " min-
erals," is too ambiguous to be carried out by the court.®
So, upon the ambiguous terms of a contract, as including or
excluding the timber, the purchaser's bill for specific perform-
ance was dismissed ; and, having throughout insisted upon
his construction, held, he could not compel the vendor to
convey, upon the terms he originally offered.'^
1 Owen V. Thomas, 3 My. & K. 353. ^ Dorsey v. Wayman, 6 Gill, 59.
2 Kitchen v. Herring, 7 Ired. Eq. ^ Price v. Griffith, 8 Eng. L. & Eq.
190. E. 72.
3 Richards w. Edlck, 17 Barb. 260. ' Clowes v. Higginson, 1 Ves. &
* Purcell V. M'Cleary, 10 Gratt. 246. Bea, 526.
CH. X.] CONSTRUCTION OF CONTRACTS. 167
11. Lessees of a' coal mine covenanted with the lessors,
that they would, by a certain time, get all the demised coal
in the township of B., " not deeper than or below the level
of" the bottom of the A. mine, under a certain point at the
surface. In an action upon the covenant, a question arose,
whether " level" was used in the ordinary sense of a horizontal
plane, or in a peculiar sensd, having reference to the drainage.
Held, that evidence was admissible, to show the understand-
ing of the term " level," used as in the above lease among
coal miners. It was referred to an arbitrator to receive such
evidence and state a case for the opinion of the court. He
found, that the mine was situate within an extensive coal-
mining district in the county of Lancaster, and that, " ac-
cording to the custom and understanding of miners through-
out that district," the terms " level," " deeper than," and
" below," signified, &c. ; stating the construction of the
terms, which was in favor of the defendant. It did not ap-
pear, as to some of the parties to the lease, that they re-
sided within the district, and they were named, in the lease,
as of other places. Held, the existence of the custom in this
district did not raise a conclusion of law, that the parties
used the terms accordingly, but was only evidence for a jury ;
and that the court could not give judgment for the defend-
ant ; although, it seems, they might have done so, if the arbi-
trator had found the custom of miners without limitation.^
12. The defendant agreed to sell the plaintiffs, a railroad
corporation, " the land they might take on the northerly side
of the M. turnpike, adjoining T.'s land, at twenty cents per
square foot, for each and every foot so taken by said com-
pany." Bill for specific performance. Held, not a sale of the
land generally, or of such part of it as the plaintiffs might
elect, or of such as they should accept the offer of ; but of
such part as the plaintiffs might take in the exercise of the
authority conferred on them by law.^
' Clayton v. Gregson, 5 Adol. & Ell. ^ Boston & Maine Railroad v, Bab-
302. , " cock, 3 Cush. 228.
168 LAW OF VENDORS AND PTJECHASBRS. [CH. X.
13. It has already been seen (ch. 2,) that a contract may
consist of separate writings, as well as a single instrument,
provided they mutually refer to each other. Of course, a
contract thus made is also to be construed like one entire
agreement. Thus, it was agreed, that for a sum to be fixed
thereafter, a lessee would assign his lease, and the furniture
and good-will of the property, reserving a certain part. Sub-
sequently, on receipt of this sum, a biU of sale was made of
aU the above interests, without reservation. Held, the two
instruments were to be construed together, and the reserva-
tion still took effect.' So, equity wOl enforce a written
agreement to convey, though accompanied by another writ- ,
ten agreement, that the party wiU forfeit a certain sum, if he
does not convey ; the plaintiff showing performance of the
terms on which such conveyance was to be made.^
14. A vendor. A., wrote thus to his own solicitor, " B. has
agreed to purchase my estate in this county for £60,000, in-
cluding the timber. I have shown this to B., and given him
a copy, not signed as a memorandum." A month after-
wards, in the course of correspondence concerning the terms
of a formal agreement, B. wrote to the solicitor, " I beg to
know when you wiU forward the agreement to be entered into
with A., relative to the purchase I have concluded with him
for his estate in this county." Held, the letters, agreement,
and memorandum constituted a contract, binding on both
parties, and vested a devisable interest in B.^
15. But where terms of sale are stated in connection with
one mode of transfer, and the sale afterwards takes place in
another mode, such terms will not bind the purchaser. A.
and his agent attended an auction for the sale of a house,
and had notice of certain conditions there exhibited. A.,
afterwards, through his agent, and the agent of the vendor,
purchased the house. Held, he was not bound by the par-
1 Beman v. Green, 1 Duer, 382. ' Morgan v. Holford, 17 Eng. L. &
2 Dooley v. Watson, 1 Gray, 414. Eq. 174.
CH. X.] CONSTRUCTION OP CONTRACTS. 169
ticulars.^ So, in order to connect different instruments as
constituent parts of one contract, the parties must be the
same. Thus, A., by an instrument under his hand and seal,
acknowledged the receipt of $100 from B., which he prom-
ised to pay out in the purchase of land in Michigan or
Illinois, and to procure deeds of the same ; pay three and a
half per cent, interest, and act for the mutual interest of both
parties ; and C, on the same day, and on the same piece of
paper, by an instrument under his hand and seal, covenanted
and guaranteed the fulfilment by A. of the said agreement.
Held, a joint action against A. and C, for breach of the
original agreement, could not be sustained. Held, also, that
the original agreement, and the guarantee, were different
contracts, and could not be united in the same action at
common law, nor under § 120 of the code of procedure.^
16. In some cases, a writing may undoubtedly be con-
trolled or explained, as well by a map or plan, with refer-
ence to which the contract is made, as by another .accom-
panying instrument. But it is held,^ that the mere exhibition
of the plan of a new street, at the time of the sale of a piece
of ground, on which to build a house in the line of the in-
tended street, does not of itself amount to # warranty or
engagement, that all which is exhibited on the plan shall be
done, more especially where the purchaser has a distinct
contract put into the solemn form of a charter containing no
such stipulation. Thus, where the governors of Heriot's
hospital, and the magistrates of Edinburgh, in selling certain
lots of ground for building, in the line of an intended new
street, (York Place,) exhibited a plan of the street, and some
of the surrounding objects, which represented, or was sup-^
posed to represent, certain old buildings, (not belonging to
the vendors,) as taken down, so as to make the street of
equal breadth through its whole extent, though the fen
charters granted to the pmrchasers contained no obligation
1 Cowley !). Watts, 17 Bng.L. &Eq. « Foeffees of Heriot's Hospital v.
147. Gibson, 2 Dow. 301.
2 De Bidder v. Schermerhorn, 10
Barb. 638.
15
170 LAW OF VENDORS AND PTjaOHASEES. [CH. X.
on the grantors to purchase and remove these old houses ;
held, that the magistrates were not bound to remove them,
or to purchase them for that purpose, when an opportunity-
offered of doing so at a reasonable price ; and that the pur-
chasers were not entitled to retain the fen duty till this was
done.
17. A deed dated in 1827, and made between G. Pitt, of
the one part, and the other persons, parties to the deed, of
the other part, recited, that Pitt, being seised in fee of the
lands delineated in the plan thereto annexed (being Pitt-
ville,) and having it in contemplation to establish a spa at
or near the north end of the lands, and to erect a pump-
room at or near the spot marked on the plan, and to lay out
the rest of the lands for buildings, pleasure-grounds, roads,
&c., had caused the plan to be drawn, whereby the mode in
which the lands were intended to be laid out, and the pur-
poses for which they were intended to be converted and used,
were described, in order that the beauty and regularity of
the whole of the design might be forever thereafter preserved,
subject only to such alterations as should be made or ap-
proved of by Pitt, his heirs or assigns, and as should not
destroy the gdfteral beauty of the same design, and that each
of the other parties to the deed had purchased or agreed
to purchase one or more of the pieces of land described
in the plan, as set out for building. The deed then con-
tained covenants by Pitt, his heirs and assigns, to complete
the pleasure-grounds, roads, &c., and that they should be en-
joyed and used by the occupiers of the houses to be erected
on the building ground, and that Pitt, his heirs or assigns,
would, on every agreement which should be entered into by
him or them, for the sale of any part of the building ground,
require the purchaser to covenant with him, his heirs and as-
signs, not to erect any messuage, on any part of the ground,
which might lessen in value any other of the messuages
erected, or to be erected at Pittville. In 1833, Pitt agreed to
sell lots 2, 3, 4 and 5 of the building ground to Stokes ; and
Stokes agreed with him to erect three houses on those lots,
CH. X.] CONSTRUCTION OF CONTRACTS. 171
and that each house should stand back 25 feet from the
western boundary of the lots, and that Stokes, his heirs or
assigns, would not do or suffer to be done, on the lots, or in
any building to be erected thereon, any act, deed, &c., which
might be deemed a nuisance, injury or annoyance, or which
might lessen in value any adjoining or neighboring lands
or property, or any houses to be erected thereon. Stokes
built two houses on l^ts 2 and 3 ; and, in 1833, Pitt con-
veyed those lots to him ; and Stokes, for himself, his heirs
and assigns, entered into a covenant with Pitt, his heirs and
assigns, with respect to those lots and the houses thereon,
similar to the last-mentioned stipulation in the agreement.
Stokes subsequently gave up lots 4 and 5 to Pitt, and aban-
doned his agreement as to them, and then sold his house on
lot 3 to the plaintiff. Pitt afterwards agreed to sell lots
4 and 5 to Creed. The agreement stipulated that the houses
to be erected on those lots should stand back ten feet, at the
least, from the western boundary thereof, and it contained
a stipulation for protecting the adjacent property from in-
jury, &c., similar to that in Stokes's agreement. Both
Stokes and Creed executed the deed of 1827. Creed began
to build a house on his lots, thirteen feet distant from the west
boundary, which was twelve feet in advance of the plain-
tiff's house, and which the plaintiff alleged would be a nuis-
ance or annoyance to him, and would lessen the value of his
house, and, consequently, would be a violation of the cove-
nant in the deed of 1827, and of the agreement of 1833. Held,
that the plan annexed to the deed of 1827 was merely a
general plan, and was not intended to be strictly adhered to,
but its details might be va;ried by Pitt, and, with his sanction,
by the purchasers from him ; and that the plaintiff was not
entitled to avail himself, as against either Creed or Pitt, of
the covenants of 1827, or of the agreement of 1833, for the
purpose of preventing the completion of Creed's house in the
manner intended, or the performance by Pitt, of the agree-
ment with Creed.^
1 Schreiber v. Creed, 10 Simons, 9.
172 LAW OF VENDORS ANl) PUECHASBRS. [CH. X.
18. No question more frequently arises, in the construc-
tion of the class of contracts under consideration, than that
relating to the admissibility of pwrol evidence, to explain,
qualify, or control them. Upon this subject, it is held, that
evidence in writing, not admitted, as e. g. an agreement
unstamped, does not prevent parol evidence, if otherwise
admissible.^ But the general rule applies to this class of
written contracts as to others, that they cannot be explained,
varied, or controlled by parol evidence. Thus, an indefinite
written agreement cannot be made sufficient by parol evi-
dence.2 So, parol evidence cannot be admitted, that a pur-
chase of an estate, in a party's own name, was in fact made
on behalf of another person.^ So, in case of a joint pur-
^chase of land, parol evidence is not admissible of a previous
agreement for an unequal division.* So, where by a written
agreement the plaintiff agreed to sell, and the defendant to
purchase, upon the terms stated, the Leigh estate ; and the
defendant agreed to sell, and the plaintiff to purchase, the
Ha/resfield estate ; and it was not expressed that the two
contracts were to be dependent on each other ; and the de-
fendant was unable to make a good title to the Haresfield
estate ; held, the plaintiff was entitled to specific performance
of the contract as to the Leigh estate ; and evidence aliunde
was not admitted, to show the intention of the parties, that
the agreement should take effect as an exchange.^ So, parol
evidence is not admissible, to prove an additional rent pay-
able by a tenant, beyond that expressed in the vwitten agree-
ment for a lease.^ So, where there was a written agreement
for a lease, which was executed accordingly, it was held,
that parol evidence was not admissible, that the lease,
though in strict conformity with the written agreement, was
contrary to its spirit, as there was something dehors the con-
tract agreed upon between the parties, yet omitted in the
1 Heirn v. Mill, 13 Ves. 114. * Jarrett v. Johnson, 11 Gratt.327.
2 Church, &c. v. Farrow, 7 Rich. Eq. ^ Croome v. Lediard, 2 My. & Kee.
378. 251.
' Bartlett v. Pickersgill, 1 Cox, 15. » Preston v. Merceau, 2 Black. 1249.
OH. X.] CONSTRUCTION OF CONTRACT^. 173
lease ; though, if there had not been a written agreement,
the evidence might have been admissible.^ So, evidence is
not admissible, (in support of a bill for specific performance,)
to prove from conversations before and at the time of sign-
ing an agreement for a lease, that the intent of the parties
was apparent from the memorandum, though the same was
written by the lessee, and the words "clear of all taxes,"
(which was the purport of the conversation,) were omitted
in the memorandum.® So, specific performance of an agree-
ment in writing for a lease for sixty years was refused, upon
parol evidence of an alteration stipulated for at the same
time, and upon the faith of which the party executed. A dis-
tinction was taken between the case of a defendant refusing,
and a plaintiff seeking, the* execution of an agreement under
such circumstances.^ So, an agreement in writing, to con- .
vey such lots as the grantor shall select, cannot be changed
by parol, so as to require the grantor to convey such lot as
the grantee may select.* So, the defendant signed a memo-
randum, as follows : " I have sold to (the plaintiff) four
building lots ; first two lots ninety feet front, depth about
one hundred and fourteen and ninety-six and a half; next
two lots one hundred feet front, depth about ninety-two and
seventy-six feet ; all the above lots the same as laid down on
the plan : First two mentioned lots at five cents a foot; next
two lots at four and a quarter cents a foot." The plaintiff
brought an action against the defendant, alleging in his
declaration, that he had tendered to the defendant twenty-
five per cent, of the price, and demanded a deed ; that he
was ready to execute mortgages for the balance, and that
the defendant had refused to execute a deed. At the trial,
the plaintiff offered parol evidence, that when the memoran-
dum was executed, it was agreed between him and the
defendant, that one quarter of the purchase-money should
be paid in cash, on delivery of the deed, and the other three
1 Davies v. Tilton, 2 Dru. & "War. » Clarke v. Grant, 14 Ves. 524.
232. * Wildbahn v. Kobidoux, 11 Mis.
2 Rich V. Jackson, 4 Bro. C. C. 514. 659.
15*
174 LAW, OF VENDORS AND PUKCHASEES. [CH. X.
quarters secured by notes and mortgages, and that the notes
should be payable in one, two, and three years, with interest
yearly. Held, this evidence was inadmissible, both because
it would vary the written agreement, the legal effect of which
was to pay cash on demand, within a reasonable time ; and
because it was offered in proof of a contract for the sale of
land, contrary to the Statute of Frauds.^
19. The general rule above stated, however, is not without
its exceptions, more especially in Courts of Equity-. Thus,
although parol evidence in relation to a written contract is
excluded for the purpose of enforcing, it is sometimes ad-
mitted for the purpose of resistitig specific performance.^
Thus, parol evidence of declarations made by an auctioneer
at the sale, warranting the quantity, was received in oppo-
,sition to a specific performance, on the ground of fraud.*
And where a parol agreement, varying the written agree-
ment, is set up by the defendants in a suit for specific per-
formance, and supported by evidence affording a presumption
or suspicion of its existence, an inquiry wiU be directed.*
So, parol evidence is admissible, in opposition to specific
performance of a written agreement, upon the heads of
mistake or surprise, as well as of fraud ; and upon such
evidence, a bill will be dismissed. So, another bill fojr specific
performance, corrected, according to the same evidence, but
contradicted by the answer, was. also dismissed. (See Mis-'
take, Fraud.) ^ But the plaintiff, in a bill for specific per-
formance, cannot show by parol evidence, that by fraud the
written agreement does not express the real terms, and thus
obtain specific performance with a variation.®
20. The principle, which excludes parol evidence as to
written contracts for the sale and purchase of lands, is some-
times brought in question with reference to subsequent agree-
ments, attempted to be set up by way of alteration, waiver,
1 Eyan v. Hall, 13 Met. 520. « Van v. Corpe, 3 Myl. & Kee. 277.
2 Higginson u. Clowes, 15 Ves. 515. ^ Townshend v. Stangroom, 6 Ves.
* Winch V. Winchester, 1 Ves. & 328.
Beam. 375. " WooUam v. Hearn, 7 Ves. 2U.
CH. X.] CONSTEUCTION OF CONTRACTS. 175
or discharge of such contracts. And the general rule is, that
a written agreement within the Statute of Frauds may be
varied by a subsequent, parol, distinct, and collateral agree-
ment.i Thus, the plaintiff gave a bond to sell land to the
defendant, who gave him notes for the consideration, and
took possession; but afterwards, in pursuance of a parol
agreement, the land was surrendered to the plaintiff, who
finally sold it, though the bond was not cancelled or surren-
dered. Held, no action would lie on the notes, the whole
contract being discharged.^ So, where a party voluntarily,
though by parol, abandons an agreement in writing, for the
sale or exchange of lands, with the assent of the other party,
because he is not in a situation to perform the same, it seems,
he cannot afterwards demand a specific performance.^ So,
where, in articles for the sale of land, no place is mentioned
for delivery of the deed ; the vendor is bound to seek the ven-
dee, and tender a deed. But the parties may afterwards, by
parol, agree on the place ; or the vendee may appoint it ; and
a tender at that place will be sufficient.* But it has been held
that a purchaser, who in his written contract stipulates for a
good title, cannot be required to complete the purchase upon
a defective title, on the ground of a verbal waiver of such
stipulation. Thus an agreement was made in writing, to
sell several lots of land, and to make a good title to them,
and a-deposit was paid. It was afterwards discovered, that a
good title could not be made to one of the lots. The vendor
delivered possession of all the lots, which the vendee accepted.
In an action to recover the remainder of the purchase-money,
the declaration stated, that the plaintiff agreed to deduce a
good title to aU the lots except one, and that the vendee dis-
charged and exonerated him from making out a good title
to that lot, and waived his right to require the same. Held,
oral testimony was not admissible of such waiver.^ And,
though a parol waiver of a written contract, amounting to a
1 Townshend v. Stangroom, 6 Ves. * Franchot v. Leach, 5 Cowen, 506.
328. ^ Goss V. Lord Nugent, 5 Barn. &
^ Dearborn v. Cross, 9 Cowen, 48. Adol. 58 ; 2 Nov. & Mann. 28. See
' Baldwin v. Salter, 8 Paige, 473. Inge v. Lippingwell, 2 Dick. 469.
176 LAW OF VENDORS AND PUECHASERS. [CH. X.
complete abandonment, and clearly proved, would bar a spe-
cific performance, or even parol variations, so acted upon, that
the original agreement could no longer be enforced without
injury to one party ; such variations verbally agreed upon are
not sufficient, the situation of the parties in all other respects
remaining the same, more especially where the variations
are all for the advantage of the defendant, by gratuitous
covenants of the plaintiff.' And, upon a bill praying per-
formance of an agreement duly signed, but offering to the
defendant the benefit of certain variations, contained in a
subsequent unsigned memorandum, the Court will decree
specific performance with those variations, if the defendant
elects to take advantage of them ; if not, of the original
agreement. A treaty and negotiations for a variation will
not amount to a waiver, unless the circumstances show, that
the parties intended an absolute abandonment and dissolu-
tion of the contract.*^
21. Written agreement, on the sale of land, that the pur-
chaser shall search for coal, under the direction of the vendor,
for a limited time ; and that if, within that time, coal be
found in a sufficient body to work, the purchaser shall pay
an augmented price for the land. Held, a parol agreement,
varying the time within which the search may be continued,
(and consequently obliging the purchaser to pay the aug-
mented price,) is within the Statute of Frauds, and will not
be enforced by a Court of Equity.^ So it has been held in
Massachusetts, where no Court exists with full equity
powers, that the Court has no power to decree specific per-
formance of a contract, unless every part of, it has been
reduced to writing. Thus, where the defendant contracted
in writing to execute and deliver a deed of land, upon pay-
ment of certain notes given for the purchase-money, and
made a subsequent verbal promise to deliver the deed upon
payment of the notes before they should fall due ; held, a
bill in equity against him, for specific performance of the
1 Price V. Dyer, 17 Ves. 356. s jjeth v. Wooldridge, 6 Rand. 605,
^ Bobinson v. Page, 3 Bass. 119. 607.
CH. X.] CONSTRUCTION OF CONTRACTS. 177
contract as modified by the verbal agreement, could not be
sustained.^
22. Though parol evidence cannot be admitted, for the
purpose of varying a written agreement, it may be, for the
purpose of raising an equity, founded on the agreement, by
proof of collateral circumstances? (a) " In such cases, parol
evidence is not used to vary, contradict, or control the written
contract of the parties, but to apply it to the subject-matter.
For this reason, any evidence which tends to indicate the
nature of the subject-matter included in a written contract,
which would otherwise be uncertain or ambiguous, and
to determine its application relatively to other objects, is
admissible. Thus, to. show the position of land and its
condition, the mode of its use and occupation, that it had
acquired a local designation or name, and whether it was
parcel of a particular estate."^ Thus, where a memoran-
dum was given to a tenant, agreeing to renew a lease ;
held, parol evidence was admissible, that the cellar of the
adjoining tenement had been occupied therewith, and was
necessary to the tenant's business, for the purpose of show-
ing that it was included in the lease.* So, where an act of
Congress provided, that a confirmee, whose title was dis-
puted, should prove " inhabitation, cultivation, or posses-
sion;" held, they might be proved by parol evidence.^ So,
a written contract to convey an undivided moiety of land, is
not contradicted, varied, or added to by parol evidence, that
the parties agreed to, and actually made, a certain division.®
1 Brooks V. Wheelock, 11 Pick. 439. * Crawford v. Morris, 5 Gratt. 90.
2 Davis V. Syn&nds, 1 Cox, 402. ^ Guitard v. Stoddai;d, 16 How. 494.
' Per Bigelow, J.. Gerrish v. Towne, ^ Shiels v. Stark, 14 Geo. 429.
3 Gray, 87-8.
(a) It is said, that to establish a title to land under a parol contract, the
contract must be express, (not implied from acts,) with all its terms and con-
ditions, clearly and explicitly proved on both sides, fair, founded on a suf-
ficient consideration ; the purchaser must have exclusive possession, under
the contract ; and it must be so far executed, that it would be a fraud on
the purchaser not to execute it entirely. Greenlee v. Greenlee, 22 Penn. 226.
178 LAW OF VENDORS AND PTJRCHASEES. [CH. X.
23. Agreement in writing, to convey to G. W. Gerrish
" the wharf and flats occupied by Towne & Hardin, and
owned by Francis Head." Parol evidence was offered, that
two lots of land, only one of which bounded on the sea, with
a street between them, were both, at the time of the agree-
ment, owned by Head and occupied by Towne & Co., for
the purpose of landing and storing wood and lumber, and
known as Towne & Hardin's wharf, and had, before the
street was laid out, formed parts of one lot, and been used
together, and been occasionally covered by the tide. Held,
the description being a general one, referring to extrinsic
objects and circumstances, the evidence was admissible, and
the vendee was entitled to a conveyance of both lots.^
24. Bill for specific performance. The plaintiff and de-
fendant entered into an agreement in writing, that the
plaintiff should do the brick work and plastering on sixteen
tenements in St. Francis Street, between Dearborn and
Wilkinson Streets, in Mobile, and on completion of the
work, that the defendant should give the plaintiff a deed for
three of them, not specifying which of the sixteen. Held,
such specification was not a term of the contract, but related
to the subject-matter, as to which parol evidence was admis-
sible ; and the parties themselves having subsequently desig-
nated the tenements, and, moreover, as they were all of the
same value, thus enabling the Court to make the designa-
tion, the plaintiff, having fulfilled his part of the contract,
was entitled to a decree.^
25. Agreement, to le^se for years " the Adams House,
situate on Washington Street, in Boston." Held, parol evi-
dence was admissible, that the parties intended to include
in the lease only so much of the building as vtRS fitted up
for a hotel, by the name of the Adams House ; and not the
distinct shops occupying the whole of the ground-floor ex-
cept the entrance to the hotel. Shaw, C. J., says, in sub-
stance : " What was embraced in the bond by the description,
1 Gerrish v. Towne, 3 Gray, 82. ' BUU v. Burden, 1 Ala. N. S. 458.
CH. X.] CONSTKUCTION OF CONTRACTS. 179
'Adams House?' It is not therein described as a hotel.
Looking at the mere contract itself, it might have been free
from all ambiguity ; because, in applying the description, it
must have appeared that there was an estate definitely de-
scribed, and as well known by that name as the Old State
House or the Boylston Market House. It is purely matter
of description, and must be established by evidence aliunde.
But the facts show that there is an estate corresponding in
part to the description, to wit, a house known as the Adams
House in Washington Street, certain parts of which had
been previously, and up to the time and at the time of the
contract, used and occupied as a hotel ; and certain other
parts of it used and occupied for shops foi»the sale of goods,
let to separate tenants, with no interior communication, nor
any other connection with the residue, as a hotel, than that
of relative position, being supported by the same foundation
and sheltered by the same roof. But this is common, espec-
ially in cities, with entirely distinct tenements or holdings.
This description, therefore, so brief in its terms, when ap-
plied to the estate in question, leaves it in doubt whether
these stores were excluded or included in the term ' Adams
House.' In ascertaining what is parcel, what are the monu-
ments, bounds, abuttals, names of streets or places, it is
always competent, and indeed often necessary, to go into
parol evidence. In seeking for all surrounding circum-
stances, to throw light on matter of description, the object
is to obtain from the words used in the instrument, in the
light of all such circumstances, the intent and meaning of
the parties. But in coming to apply the description to the
contract, there may remain an uncertainty in such applica-
tion ; this constitutes a latent ambiguity ; and parol evidence
is admissible to explain what was intended." '
1 Sargent v. Adams, 3 Gray, 72, 76, 77, 78.
180
LAW OF VENDORS AND PUKCHASEES.
[oh. XI.
CHAPTER XL
TIME -OF PEEFOEMING CONTRACTS.
1. Time, when of the essence of the
contract.
9. When not of the essence of the
contract.
14. Title at the time ^f hearing, §-c.,
when sufficient.
21. Waiver, &c., as to time.
29. Necessity and effect of notice in
reference to time.
41 . Time, in connection with delivery
of abstracts.
47. Deterioration from lapse of time.
50. Construction of contracts as to
time.
1. Among the most important incidents of contracts for
the sale and purchase of lands, is that of the time at which,
or within which, they are to be performed. Upon this sub-
ject, it has been generally held, more especially at law, that
time, with reference to the performance of such a contract,
is not immaterial ; i {a) but is of the essence of the contract,
' Alley u. Deschamps, 13Ves. 225; Tiernan v. Eoland, 15 Penn. 429;
Harrington ». Wheeler, 4 Ves. 690, n.; Benedict v. Lynch, 1 Johns. Ch. 375 ;
Guest I). Homfrey, 5 Ves. 818. See Brashier u. Gratz, 6 Wheat. 207.
Wright V. Howard, 1 Sim. & St. 190 ;
(a) A biHfor specrfic performance is an application to the discretion, or
rather the extraordinary jurisdiction, of the Court, which cannot be exer-
cised in favor of persons who have slept on their rights, or acquiesced for
a long time in a title and possession adverse to their claim. Laches is as
strong against in not prosecuting as in not defending a suit. Moore v.
Blake, 1 Ball & Beat. 68. Substantially the same principle applies to the
attempted performance of a contract before as after the time appointed.
Thus, in case of an agreement to convey land at a certain time, for which
the purchaser was to assign two land warrants ; held, a tender of the
warrants before the time gave the latter no rights. Reed v. Redman, 5
Ind. 409. It is said, the English Court of Chancery has never laid down
the broad priifl;iple, that time was never important ; on the contrary, the
present doctrine there is, that where time is really material to the parties,
CH. XI.] H TIME OF PERFORMING CONTRACTS. 181
more especially where the subject is exposed to a daily
variation in value ; or where lapse of time has made a great
change in the circumstances ; or where the parties appear to
have intended that the time should be strictly adhered to ;
or where the remedies of the parties are not mutual.' So,
it has been held, that in an agreement for the sale of lands,
time is always material, when either party chooses that it shall
be so. Each of them has a right to ^mand the perform-
ance of the contract on the stipulated day ; and, if the other
party is then unwilling or uname to perform, may actually
elect to rescind it. And by such an election he is whoUy
freed from the obligations of the contract ; and a Court of
Equity cannot subsequently decree its specific performance.^
So, time is held essential, whenever it materially affects the
benefit to be derived from the consideration or the convey-
ance.^ Thus, time is, to a great extent, of the essence of
a contract entered into with an ecclesiastical corporation.
Therefore, where the plaintiff agreed to take a concurrent
lease of a dean and chapter, and to pay the fine in January,
but was not ready with the money in March following ; a
bin filed by him for a specific performance was dismissed
with costs.* So, where the subject of contract was a life
annuity, and the defendant insisted that time was of the
essence of the contract, a motion for reference to the master
upon the title was refused.® So, if a contract relate to wild
and uncultivated lands, where the principal value is timber,
time may be 'of the essence of the contract.^ So, the dis-
tinction between conditions precedent and subsequent is ap-
1 Doloret v. Rothschild, 1 Sim. & » Kirby v. Harrison, 2 Ohio (N. S.)
Stu. 590 ; Hipwell v. Knight, 1 You. & 326.
Coll. 419; Westerman v. Means, 12 * Carter «. Ely, 7 Sim. 211.
Penn. 97 ; Page v. Hughes, 2 B. Mon. * Withy v. Cottle, Turn. & Buss. 78.
441 ; Nodinet). Greenfield, 7 Paige, 544. ° Rogers v. Saunders, 16 Maine, 92..
2 Dominick v. Michael, 4 Sandf. 374. See Boults v. Mitchell, 15 Penn. 371.
ties, the right to a specific performance may depend upon it ; and the same
doctrine prevails in the Court of the United States. Garnett i/. Macon,
6 Call. 308.
• 16
182 LAW OF VENDORS AND PTJECHASBRS. ^ [CH. XI.
plicable to the question of time. The rule is, that equity
cannot relieve from the consequences of a condition prece-
dent, unperformed. But, upon breach of a condition subse-
quent, which would work a forfeiture or devest an estate,
equity, acting upon the principle of compensation, will
interpose, and prevent the forfeiture or devestment, provided
it can be given with certainty in damages. Thus, the de-
fendant sold to the ^aintiff a lot of land. By an agreement
under the hands and seals of the parties, the plaintiff cov-
enanted to build within a ce^ain time, and give a bond and
mortgage for a part of the price, and pay the balance or
give a bond and mortgage for the whole by a specified day ;
and the defendant covenanted to give a deed on this day.
There was also a clause, expressly showing that the agree-
ment was in all respects to be void, provided the plaintiff
failed to perform any one of the covenants. He entered,
but, from untoward circumstances, and not from any act on.
the part of the defendant, was not ready with his money or
the bond and mortgage on the day specified, but made a
tender on the next day. Held, a condition precedent, and
that the Court could not relieve.^ So, although where a
contract has become invalid at law by lapse of time, equity
will grant relief, if time is not of the essence of the contract ;
yet, where the plaintiff has unjustifiably omitted to execute
his part of the contract by the time appointed, and the de-
fendant has not by his acts acquiesced in that delay, the
Court vdll not compel specific performance. Nor will they do
it, where the remedies are not mutual, and where the party
who is not bound lies by for the purpose of seeing whether
it wiU be a gainful or a losing bargain, and thus determining
whether to abandon or enforce it.^ So, time will be of the
essence of a contract to convey, where the parties declare
the forfeiture of the contract, in case payments are not made
according to its terms. Nor will the Court relieve fi-om a
' Wells V. Smith, 2 Edw. 78. Shuffleton v. Jenkins, 1 Morris, 427 ;
" Bogers v. Saunders, 16 Maine, 92 ; Scott v. Fields, 8 Ohio, 92.
CH. XI.] TIME OP PERFORMING CONTRACTS. 183
forfeiture or a penalty to be incurred by the failing party ;
as where the vendee agreed to forfeit the first payment and
the contigct, in case he did not make the others at the times
stipulated.! So, where a bond is given to convey land, if a
certain sum is paid by a particular day ; unless the money is
paid at that day, the bond cannot be enforced.^ So, after
seven years, the Court will refuse to decree specific perform-
ance of a contract, in the part execution of which the com-
plainants, or those under whom they claim, have expended
large sums of money, although the first default was on the
part of the defendant, and such failure probably prevented
an execution on the part of the complainants ; circumstances
having so changed, that neither party could derive the antici-
pated benefits from an execution of the contract.^ So, though
time may not be made, by the terms of the contract, of the
essence thereof; it may be by the conduct of parties, or
subsequent circumstances ; and, in such case, the palty in
default cannot demand specific execution.* So, a motion
for an injunction, to restrain an action against an auctioneer
for the deposit, was refused, where there had been great delay
on the part of the vendor.^ So, a bill, for specific perform-
ance of articles for the purchase of an estate, was dismissed
with costs ; because the title was not laid before the vendee's
counsel within the time limited.^ So, upon sale of a rever-
sion, part of the terms was, that the purchase-money be paid
by a certain time ; not being so, by default of the vendee,
the vendor was discharged from his contract.'^ So, where
there was a proposal to sell a lot of land for a certain price,
provided the vendee came to close the trade within two
weeks from a certain day ; and he came at 40 minutes be-
fore 12 o'clock at night, when the vendor was abed and
asleep, and half a mile distant from his place of business ;
1 Scott V. Fields, 8 Ohio, 92. 326 ; Lloyd v. Collett, 4 Bro. 469 ; 4
^ Shuffleton v. Jenkins, 1 Morris, 427. Ves. 689, n.
" Pratt V. Carroll, 8 Cranch, 471. ^ Lewis v. Lord Lechmere, 10 Mod.
* Jackson v. Ligon, 3 Leigh, 161. 503.
* Kadcliflfe v, Warrington, 12 Ves. ' Newman v. Rogers, 4 Bro. C. C.
391.
184 LAW OF VENDORS AND PURCHASERS. [OH. XI.
held, the latter was not bound.^ So, where a contract for
the sale of a city lot provided, that the purchaser should, on
or before a particular day, build and inclose a hojjpe upon
the front of the lot, or in lieu thereof on that day pay $1,000
towards the purchase-money ; also, if he neglected or failed
to perform any of the covenants therein contained at the
times limited, all his right or interest in the premises, either
in law or equity, should cease ; held, the parties had made
the payment at the day an essential part of the contract ;
and the vendee, who had not attempted to build the house,
and had without any legal excuse failed to make the pay-
ment at the time specified, was not entitled to a decree for
specific performance.^ So, where agreement was to be void,
if the purchaser's counsel should be of opinion, that a
marketable title could not be made by a certain time ; the
counsel being of that opinion, a bill by the purchaser for a
specifilb performance, with a compensation, was dismissed,
with costs ; and an application, afterwards made by the
plaintiff, that his deposit might be set off against the de-
fendant's costs, and the surplus (if any) paid to him, was
refused, with costs.^ So, specific performance will ,not be
enforced against the vendor, where the vendee has neglected
to comply with the conditions within the time limited, and
the vendor has, in consequence, sold and conveyed to an-
other purchaser. So, specific performance wiU not be
enforced against a subsequent purchaser, for valuable con-
sideration, without notice, who has acquired the legal title ;
especially in favor of a vendee, who has failed to comply
with his own contract,, within the time limited.* So, where
the payment of purchase-money, secured by a bond, was
.subject to the condition, that A., or his legal representative,
or attorney, should on or before a certain day execute to the
obligor a release for a certain portion of the land sold ; and,
if the same could not be procured, then a deduction to be
1 Curtis V. Blair, 26 Miss. 309. " Williams v. Edwards, 2 Sim. 78.
2 "Wells V. Smith, 7 Paige, 22. " Doan v. Gibbes, 1 Bai. Eq. 371.
CH. XI.] TIME OP PERFORMING CONTRACTS. 185
made for that portion, at a certain rate per acre ; held, ihat
time was of the essence of the contract, and, as the release
was not executed within the time, the stipulated deduction
must be made.^ So, a vendor is not bound to tender a deed
and demand payment, except for the purpose of enabling
him to affirm the contract, and to recover the purchase-
money in a suit at law. And where the payment at a par-
ticular day is made an essential part of the contract, the
vendee, in order to obtain specific performance, must tender
or offer the money at the time specified, upon the receipt of
a deed.^ So, where one contracts to convey land to another,
on a certain day, in fee simple, and free from incumbrance,
or pay a certain sum ; and on that day has not a perfect
title ; the vendee may recover such sum without any tender
of the mon^B or of security for it.^ So, if a vendee agrees
to pay the ^nce within a certain time, in consideration of
which payment he is to receive a deed ; he cannot at law
entitle himself to such deed, by making a tender after the
time.* So, where, in a contract to buy and sell on a par-
ticular day, each promise is the sole consideration of the
other ; neither party can maintain an action, without alleging
a readiness to perform , on that day, or an excuse for the
want of it, caused by the act of the defendant.* So, where
the defendant agreed to let to the plaintiff a store, upon his
procuring one A. as surety for the rent before a certain day,
which the plaintiiT failed to do; held, the plaintiff could
not have a decree for specific performance nor an injunction.^
So, if one who has bound himself to execute a title to land
as soon as he can obtain it, neglects for more than two
years to attempt to obtain such title ; this is a breach of the
bond, unless he proves reasonable diligence to procure the
title.^ So, where a bond was given to make title to land, the
1 Westerman v. Means, 12 Penn. 97. "^ Perry v. Wheeler, 24 Verm. 286,
'^ Wells V. Smith, 7 Paige, 22. " Mitchell u. Wilson, 4 Edw. Ch.
» Holmes v. Holmes, 12 Barb. 137. 697.
* Hill V. Fisher, 34 Maine, 143. ' Garnett v. Yoe, 17 Ala. 74.
16*
186 LAW OF VENDORS AND PXIKCHASERS. [CH. XI.
title to which appeared by the bond to be in a third person ;
and the obligee lived for three years, during which the
obligor acquired no title, nor attempted to do it ; held, the
delay was an unreasonable one, and a forfeiture of the bond ;
and the administrator of the obligee was the proper party to
bring a suit upon it.' So, though no time is fixed, or time
is not essential, the vendor cannot trifle with the purchaser
by needless delay. But the latter, not capriciously, or with
a design to surprise, may fix a reasonable time for the con-
veyance ; after which he shall rescind the contract.^ So,
where there was a sale of land, the purchaser agreeing to
pay $100 therefor by instalments, upon payment of which
the seller agreed to convey ; but, on failure of payment, might
reenter ; and aU the payments fell due, but none were made ;
and, on application of the purchaser, the timejj,w|^ extended ;
but no payment being then made, the seller g^e the pur-
chaser notice to quit ; held, he had a right to rescind the
contract, and by so doing had terminated all the right of the
purchaser in the premises.^ So, where one party to an agree-
ment trifles, or shows a backwardness in performing his
part of it, equity wUl not decree a specific performance in
his favor; especially if the circumstances and situation of
the other party are materially altered in the mean time.*
Thus, specific performance was refused, on the laches and
trifling conduct of the plaintiff; the contract being for a
sale to the plaintiff, under a bankruptcy, of a reversionary
interest for life; which in the interval fell into possession.
The defendants having also been in some degree remiss, the
bill was dismissed without costs, upon delivering up the
agreement.^ •
2. A. was proprietor of four parts in seven of the manor
of Glaston. B. treated with C, who was empowered to
1 Allen V. Greene, 19 Ala. 34. * Hayes v. Caryll, 1 Bro. P. C. 126 ;
2 Thompson v. Dnlles, 5 Kich. Bq. S. C. 5 Vin. Abr. 538.
370. ^ Spurrier v. Hancock, 4 Ves. 145.
8 Barney v. Leper, 16 Barb. 629.
CH. XI.] TIME OF PERPORMINa CONTRACTS. 187-
sell this manor or part of it, and in 1697 contracted with
him in writing. B. lived eight years afterwards, and during
that time was several times requested by C. to complete the
bargain, and pay the purchase-money, but B. raised objec-
tions to the title, and would not proceed further in his pur-
chase until they were cleared. But it appeared that those
scruples were only to shuffle off payment until, by the drop-
ping of some lives, his bargain would be bettered. One life
dropped in C.'s life, and two since. The plaintiff, after his
father's death, in 1706, exhibited his bill for specific perform-
ance. Dismissed, with costs.^
3. A bill for specific performance of an agreement to take
a lease, for forty-two years, of iron and coal mines and
machinery, for the purpose of trade, was dismissed, on
account of delay on the part of the lessor to make out his
title, and to give possession at the time stipulated.^
4. In an agreement, by a tenant at will of a public-house,
for the sale of the possession, trade, and good-will of the
house, at a fixed sum, and the stock and furniture at a valu-
ation, one of the terms being, that possession should be
taken and the money paid on a certain day, time was held
of the essence of the contract; and a purchaser, who was
not in a condition to fulfil his part of the contract on that
day, cannot compel a specific performance, though he was
ready on the following day. (It was doubted, however,
whether a Court of Equity will enforce the performance of
a contract for the purchase of a subject-matter, of which
the good- will of a public-house, unconnected with any fixed
interest in the premises, forms the principal part.^)
5. An estate 'was sold by auction, the purchase to be com-
pleted in two months. The buyer died soon afterwards,
and suits were instituted, both in the Spiritual Court and
the Court of Chancery, respecting his affairs, which pre-
vented the completion of the contract. Four or five years
' Coward v. Odingsale, 2 Eq. Ca. ^ Parkerp. Frith, 1 Sim. & Stu. 199.
Abr. 688, pi. 5. 3 Coslake v. Till, 1 Kuss. 376.
188 LAW OF VENDORS AND PURCHASERS. [CH. XI.
after the sale, the vendor filed his bill to have the contract
rescinded. The affairs of the buyer still remaining unsettled,
the Court rescinded the contract, and gave the plaintiff his
costs out of the deposit.^
6. In May, 1837, the defendant, being about to raise his
dam to a height that would overflow part of the farm of the
plaintiflj agreed to buy his land, and to pay for it on the 1st
of April, 1838, when the deed was to be dehvered. It was
further agreed, that, as a compensation for damages the
plaintiff might sustain previous to the conveyance, he should
use and occupy certain lands of the defendant. In the fall
of 1837, the defendant raised his dam, and the plaintiff took
possession of the lands., In October, 1838, the plaintiff
tendered his deed, but the defendant did not pay, and the
deed was not delivered. In 1844, the plaintiff filed his bUl,
praying that the defendant might be decreed to pay by a
day to be fixed ; otherwise the agreement to be cancelled,
and the defendant directed to lower his detm. Ordered, that
the defendant pay by a day fixed, or that the agreement be
cancelled ; but an order to lower the dam was denied.^
7. Agreement in March, 1810, to purchase a farm, and to
pay $250 in one year, one third of the residue in two years,
and the other two thirds in two successive years. On re-
ceiving the payments, the vendor to give a deed ; upon
failure in the payments or either of them, the agreement to
be void. The vendee took possession, and made improve-
ments, but made no payments ; and the vendor, in October,
1813, supposing the agreement void or abandoned, sold the
farm to a third person. The vendee filps a bill in 1814, on a
tender of the whole purchase-money, for specific perform-
ance. Bill dismissed, with costs.^
8. Parol agreement, in December, 1833, for the purchase
of lands, which the vendor was to purchase of an Indian
reserve. Under the contract, the vendor received a horse
1 Mackreth v. Marlar, 1 Cox, 259. ^ Benedict v. Lynch, 1 Johns. Ch.
'^ Stevens v. Kyerson, 2 Halst. Ch. 477. 370.
CH. XI.] TIME OF PERFORMING CONTRACTS. 189
valued at $100, and was also to receive flOO in December,
1834, 1835, and 1836, respectively. After the vendor pur-
chased, the vendee entered and made improvements, but
made no offer of payment, until January or February, 1835,
(except an offer of the notes of a third person, due several
years after the agreement was made ;) and the contract, as
disclosed by the bill, was uncertain and contradictory, and
altogether disproved by the answer and proof. Held, a bill
for specific performance, brought by the vendee, should be
dismissed, with costs ; but without prejudice to an action at
law, or suit in equity, to recover back money or property
delivered upon the faith of the agreement.'
9. There is, however, a class of cases, which hold the doc-
trine, that the time, at which a contract is to be performed, is
not essential in equity, as at law,® (a) unless the parties have
expressly agreed that it should be so regarded, or unless it
follows from the nature and purposes of the contract,^ and
that relief against "the lapse of time is in the discretion of the
Court, upon the circumstances.* Thus, upon a bill in equity,
to enforce specific execution of a contract to convey lands, if
the complainant has made large and valuable improvements,
with the knowledge and acquiescence of the defendant, the
Court will decree specific execution, upon payment of the
agreed price with interest, although payment has been de-
layed for an unreasonable time.^ So, the execution, by the
vendor, of a mortgage on the premises, after the agreement
to sell, is not a ground to avoid the contract, provided it be
removed before he is called on to make title, or, at least,
before the bill for specific execution is filed.^ So, although a
purchaser of an estate in fee will not be compelled to take a
1 Goodwin v. Lyon, 4 Port. Eq. 297. * Wells v. Wells, 3 Ired. 596.
2 Uadcliffe v. Warrington, 12 Ves. * Mason u. Wallace, 4 McLean, 77.
376; Harrington v. Wlieeler, 4 Ves. (Seep. 191.)
686 ; Hearne v. Tenant, 13 Ves. 287. ^ Tiernan v. Eoland, 15 Penn. 429.
^ Jones V. Eobbins, 29 Maine, 351.
(a) It will be seen, that in some cases the same principle has been adopted
by courts of law.
190 liAW OF VENDORS AND PURCHASERS. [OH. XI.
Ufe-estate. only, nor an estate in which the vendor had no in-
terest, as owner, at the time of sale ; yet, where the seller has
an equitable estate under articles of agreement, and a right to
acquire the legal title, and actually acquires it, after the sale,
but before any laches can properly be imputed to him, he may
compel a specific performance.^ So, merely undertaking to
deliver an abstract and possession at a particular time does
not make it of the essence of a contract.^ So, where a ven-
dee agrees to pay the vendor the balance of the price, on his
executing a bond to complete the title, and cause a con-
veyance to be made; time is not of the essence of such
a contract. Nor is it a defence to an action on the agree- ^
ment, that the bond was not tendered to the obligee, till two
years after the time when the money was to be paid by him.^
So, specific performance will be decreed, where the vendee
tenders the whole purchase-money at the time the second
instalment falls due, though he failed to pay the first instal-
ment at the proper time.* So, the fact, that the vendor has
suffered the purchaser to remain in possession, and received
payments from him, from time to time, down to a short period
previous to the filing of a bill by the purchaser for specific
performance, is strong evidence that neither party intended
to make the time an essential part of the contract ; and the
vendor will not be allowed to insist upon a forfeiture, on that
ground. So, although he is unable to make a title to the
whole of the land, he wiU be required to perform his contract,
so far as it can be performed, notwithstanding the lapse
of time, unless he has been prejudiced by the delayA So,
though the vendor does not produce his deeds, or tender a
conveyance, within the time limited by the articles, the Court
wiU stOl decree a sale.^ So, a lapse of twenty-one days,
from the time allowed to a lessee to purchase a lot, does not
forfeit his right ; a reasonable excuse being given for such
1 Tiernan v. Roland, 1 5 Penn. 429. * Gibbg v. Champion, 3 Ham. 335.
2 Boehm v. Wood, 1 Jac. &. Walk. ^ Voorhees v. De Meyer, 2 Barb. 37.
419. 8 Gibson v. Patterson, 1 Atk. 12.
3 Willett V. Clarke, 10 Price, 207.
CH. XI.] TIME OF PERFORMING CONTRACTS. 191
delay, viz., the death of the obligee, the refusal of the admin-
istrator to receive the purchase-money, and non-residence of
some, and infancy of others of the heirs.^ So, where posses-
sion has been taken, and valuable improvements made, the
acquiescence of the vendor may be presumed ; and a delay
of payment for two years, under such circumstances, where
the vendor sustains no damage, which interest will not com-
pensate, will not bar a bill for specific execution.^ So specific
performance of an agreement for the sale of an annuity, to
commence from the date of the agreement, and to continue
for three lives, to be named by the grantee, was decreed,
where the Hves had not been named, the delay having been
occasioned by the grantor.^ So, by the terms of an auction
sale, the title-deeds were to be produced by a certain day, and
were not then ready, but the purchaser received them after-
wards, without objection. Held, he could not afterwards, on
disliking the title, object to the delay.* So, where, by the
terms of an auction, the sale is to be completed by a certain
day ; yet, if neither party takes any step to quicken the other,
tiU it becomes impossible to execute the agreement by the
day ; the time is waived, and equity will interfere, to prevent
the purchaser from taking advantage of it at law.^
10. By the terms of a sale, the purchaser was to pay part
of the price on signing the agreement, and the rest on com-
pletion of the purchase " on the 11th of October, from which
time the purchaser was to be entitled to the rents and profits,"
but if the purchase should not be completed by the 11th of Oc-
tober, he should pay interest until such completion. The ven-
dor to deliver an abstract of title within fourteen days from
the sale, and deduce a good title. The sale was on July 9th,
and the abstract delivered on the 14th. It then appeared,
that there were two mortgages on the estate, and the mort-
gagees had not received the usual six months' notice of
1 Page V. Hughes, 2 B. Mon. 441. ' Pritchard v. Ovey, 1 Jac. & Walk.
2 Mason v. Wallace, 3 M'L. 148. 396.
(See p. 189.) * Smith v. Burnham, 2 Anstr. 527.
^ Jones V. Price, 3 Anstr. 924.
192 LAW OF VENDORS AND PtIRCHASBRS. [CH. XI.
redemption; that some of ^ them were dead, and letters of
administration de bonis non were requisite in the case of one
of thena ; also that a- deed of declaration of trust by parties
beneficially interested in the mortgage was required. For
these and other causes, a conveyance could, not be made by
the 11th of October, and the purchase was completed in the
following April. Held, the vendor did deduce an abstract,
and show a good title.i
11. So a delay, amounting to apparent negligence, may be
explained ; and, under special circumstances, as where there
is a difficulty about the title, presents no bar to relief. Bill
for specific performance. The defendant, in 1822, agrees
with the plaintiff to sell him certain real estate for $600, " to
be paid in one year, upon receiving a good title." The
plaintiff enters, but is soon after ousted of part of the prem-
ises by one claiming under an adverse title ; upon which the
defendant brings ejectment against .the latter ; and the con-
tract remains unexecuted until 1829, when the plaintiff ten-
ders the money to the defendant, and demands a deed. Held,
the plaintiff was not barred by mere lapse of time.^ So, A.
contracts for the purchase of an estate, and is let into pos-
session. The estate being greatly incumbered, A. pays off
some of the incumbrances. Great delay is used on the part
of the vendor in clearing other incumbrances, and making
good the title. Held, the purchaser shall not for that reason
be discharged from his contract.^
12. The owner of land made a written agreement to sell
it for $300, one third to be paid down, and the residue in
one and two years, with interest ; possession to be delivered
immediately ; and, if the purchaser should make default in
either of the payments, the vendor" to be discharged, and the
purchaser to forfeit all previous payments, and deliver up
possession. The vendee took possession, made valuable im-
provements, and paid the first two instalments at the times
1 Savory «. Underwood, 28 Eng. Law ^ King v. Morford, 1 Saxt. Ch. 274.
& Eq. 152. « Smith v. Dolman, 6 Bro. P. C. 291.
CH. XI.] TIME OF PEEFORMnsra CONTRACTS. 193
specified. He then assigned his contract to the complainant,
who took possession, but did not make the last payment at the
day specified ; nor was he called on for payment, nor did he
offer a conveyance upon payment ; but, a few days after-
wards, he tendered the money, and demanded a conveyance.
Held, time was not of the essence of the contract, and the
complainant was entitled to specific performance.^
13. Nor will the circumstance, that, at the time of filing a
biU for specific performance, the vendor is unable to make
a title to the whole of the land sold, relieve him from a
performance of his contract, so far as it can be performed,
any more than it would have done at the time the purchase-
money became due; unless something has occurred since
that time, by reason of the purchaser's delay, which has
placed the vendor in a worse situation than he would have
been in, had he been called upon to perform his contract at
the time stipulated.^ ^
14. The same principle, that time is not of the essence of
the contract, has also received other applications. Thus
if, on a bill for specific performance by the vendor, a good
title can be . made before ©r when the cause comes on upon
fwther directions, specific performance will be decreed. So,
if a title is procured before the report, or before the final
decree;^ more especially where no injury has arisen from
the delay.* So, where the parties have not made time of
the essence of the contract, and the delay is not the fault
of the vendor, but is occasioned by the state of the title,
unknown at the sale ; the invariable inquiry of the Chan-
cellor is, whether the vendor is able to convey at the hearing?
So, a purchaser cannot insist on being discharged upon a
report of defective title, if capable of being made good
within a reasonable time ; as to which the vendor will be
lEdgartonti.Peckham, 11 Paige, 352. net, &o. v. Carey, 3 Brown Ch. 390;
2 Voorhees «. De Meyer, 2 Barb. 37. Hepburn v. Auld, 5 Cranch, 262.
' 8 Paton 0. Rogers', 6 Madd. 256 ; * Dutch, &c. v. Mott, 7 Paige, 78. But
Mortlock V. Buller, 10 Ves. 292 ; Ben- see Nodine v. Greenfield, 7 Paige, 545.
^ Cotton V. Ward, 3 Monr. 813.
17
194 LAW OF VENDORS AND PURCHABBRS. [CH. XI.
put under terms.^ Thus, in some cases, the vendee may
claim costs, if not himself in fault.^ And the purchaser
may claim interest upon the purchase-money paid, from the
time of demanding a deed.^ So, relief is granted against
forfeiture of the deposit, upon putting the other party in
the same position, as if the contract had been performed
at the time agreed.* So, specific performance was decreed ;
the abstract, though delivered very late, and under a notice
that the vendee would insist on his deposit, with interest, if
the title should not be made out, and possession delivered,
by the time of payment, having been received and kept
without objection ; and the vendee, upon the construction
and the circumstances, not being entitled to insist on time
as the essence of the contract. So, where the vendor de-
clines executing the contract, upon the ground that he is
unable to give a good title, and the purchaser files his bill
for specific performance, or to res^nd, if the defendant is
able to give a good title at the time of the decree, the com-
plainant wiU be compelled to accept it.® But though, in
general, the vendor may compel specific performance if able
to make a title at the hearing ; ^et, where he is bound by
the contract to convey immediately, but asks for an injunc-
tion against any transfer of the defendant's property, by
which he was to be paid, or for a receiver of such property ;
he must show that he has a present ability to fulfil the con-
tract ; not merely that he may possibly be able to perform
at the hearing.^
15. Upon a bill filed by a vendor for specific performance,
it appeared that he could make a good title before the com-
mencement of suit, but did not show a good title to the
purchaser until afterwards. Specific performance decreed,
but the purchaser to recover costs.''
16. Agreement between vendor and purchaser, that the
1 Coffin V. Cooper, 14 Ves. 205. 6 geton v. Slade, 7 Ves.265 ; Cotton
" Dutch, &c. V. Mott, 7 Paige, "8. v. Ward, 3 Monr."304, 313.
* Pierce v. Nichols, 1 Paige, 244. ^ Baldwin v. Salter, 8 Paige, 473.
* Moss w. Matthews, 3 Vea. 279. ' Townshend v. Champernowne, 3
Y. & Coll. 505.
CH. XI.] TIME OF PBEF0BMIN6 CONTRACTS. 196
purchaser should be entitled to the rents on the 1st May,
1813, or from such time as the purchase should be com-
pleted. An abstract of title was afterwards furnished to the
purchaser, and the title appeared to be satisfactory to him •
and in May, 1816, he sent the vendor a draft conveyance for
his approval, which was returned, approved, in July, 1816.
Afterwards, the purchaser, on the suggestion of counsel,
made several objections to the title, and delayed completing
the purchase. In November, 1817, the vendor filed his bill
for specific performance, and the master found, that the
vendor could make a good title before the bill was filed, but
did not show a good title to the purchaser till the 20th
January, 1825. Held, upon a decree for specific performance,
that the proper date of the conveyance was the 20th Jan-
uary, 1825.'
17. Though equity wiU decree specific performance of a
contract for the sale of land, if the vendor is able to make a
good title at any time before decree ; the dismission of the
bill is a bar to a new bill for the same object.^
18. The inability of the vendor to make a good title, at
the time of decree, though a sufficient ground for refusing a
specific performance, wiU not authorize a Court of Equity
to rescind the agreement, where the parties have an adequate
remedy at law for its breach.^
19. Where* the report is in favor of the title, the Court,
on allowing exceptions to it, will give the vendor a reason-
able time to remove the objection, although the exceptions
and further directions were set down to come on together.*
*0. AU objections to a title were to be taken within
twenty-one days from delivery of the abstract, or to be
deemed waived, and time was, in that respect, to be consid-
ered the essence of the contract. Held, that the twenty-one
days did not begin to run, until a perfect abstract had been
delivered.®
' Townshend v. Champernowne, 3 ' Portman v. Mill, 1 Russ. & Myl.
y. & Coll. 505. 696.
2 Hepburn v. Dunlap, I Wheat. 179. ' Hobson v. Bell, 2 Beav. 17.
» Ibid.
196 LAW OF VENDORS AND PTmCHASERS. [CH. XI.
21. Although time was originally an essential part of the
contract, it may become unessential by the subsequent con-
duct of the parties, (a) Thus the neglect of the obligee in
a bond for conveyance, to pay an instalment at the time
agreed, does not cause a forfeiture, if the obligor has not
regarded time as of the Essence of the contract ; and a subse-
quent receipt of payment is a waiver of any forfeiture for
this cause.i So, the delay of one party in fulfilling a con-
tract affords no ground for equity to relieve the other from
the consequences of the delay, where the latter has assented
to and acquiesced in such delay .^ So, a defendant may plead,
that, by a subsequent agreement, not under seal, made be-
fore breach, the time for deducing title had been enlarged,
and that he was ready to deduce it within the enlarged time.
So, that, in consideration the defendant would deduce a
good title and convey, (after breach,) the plaintiff agreed to
accept such title and conveyance at a later day.^ So, it has
' Linscott o. Buck, 33 Maine, 530 ; ' Eippingall v. Lloyd, 2 Nev. & M.
Hudson V. Bartram, 3 Madd. 440. 410.
2 Sloo u. Law, 1 Blatch. 512.
(a) It is said, time may be of the essence of the contract in equity.
Exact punctuality may be of great importance to the interests of a con-
tracting party in many situations. In some, it is obvious from the state of
the property and other circumstances. In others, we do not doubt that the
instrument may be so framed as to show that it is a substantial part of the
contract. In those cases, the Court can no more dispense with it than any '
other vital provision. But the parties themselves may ; and it is in that sense
true that time is not essential, but immaterial, when comparing its effecUin
that court with that at law.
Default in respect to time is not a bar of itself, except in peculiar cases ;
but is only evidence with other things of abandonment, and, of course, may
be rebutted. Time may in all cases be made essential, but where it is, it
does not follow that it is nebessarily conclusive in equity, as it is at law. In
equity, time may be waived by a party, as may any other stipulation intro-
duced for his benefit. A failure to avail himself of it, on the first fit occa-
sion, and before or when the other party begins, after a default, to act
again on the agreement, may amount to such waiver. Falls v. Carpenter,
1 Dev. & Batt. Eq. 277.
CH. XI.] TIME OF PERFORMING CONTRACTS. 197
been sometimes held, that the time of performance of the
condition of a bond may be enlarged by a parol agreement.
Thus,"where certain acts were done by the obligor, amount-
ing to a substantial, though not literal performance ; held, that
evidence was admissible of a parol agreement of the obligee,
to waive any further performance.^ So, specific performance
of an agreement to purchase may be decreed, after consid-
erable delay; if the vendee has not demanded his deposit,
or shown a determination not to proceed.**
22. The plaintiff, on the 26th of April, agreed to purchase
a manor from the defendant, to complete the purchase ac-
cording to certain conditions, and, upon the purchase taking
place, to sign an agreement for payment of the purchase-
money on or before the 24th of July. It was also agreed,
that, on completion of the purchase, the purchaser should
be entitled to the rents and profits of such parts of the
estate as were let, from the 24th of June. The day of com-
pleting the purchase was, for the convenience of the pur-
chaser, altered from the 24th of June to the 24th of Jxily.
A tenant of a copyhold parcel of the manor having died
seised thereof in 1836, the admittance of the parties entitled
to be admitted was postponed from time to time, at their
request, and did not take place till the 1st of July, and in
J)ecember the fine was paid to the defendant. The convey-
ance of the manor was executed in August, and the pur-
chase^money paid in the following September. Held, an
action for money had and received could not be maintained
to recover the fine.^
23. If the purchaser demand his deposit at the day, and
the vendor has riot delivered his abstract, and also neglects
to deliver it, until after an action brought for the deposit ;
this is evidence of an abandonrflent of the contract by the
1 Meming v. Gilbert, 3 Johns. 358 ; ^ Pincker v. Curteis, 4 Bro. 329.
Keating v. Price, 1 Johns. Cas. 22; ' LordHardwickeu. LordSandya, It
Erwin v. Saunders, II Cow. 250. Mees. & Wels. 761.
17*
198 LAW OP VENDORS AND PTJBOHASERS. [OH. XI.
vendor; who shall not be entitled afterwards to a specific
performance.!
24. Where a person had contracted for the purchase' of an
estate from trustees, under a deed of release and assignment
for the benefit of the creditors of a trader, upon a stipulation
that a good title should be made by a given day, and that
day fell within the period, during which a fiat in bankruptcy
might have issued against the trader ; held, he was in the
situation of a purchaser, who had waived a stipulation, that
time should be of the essence of the contract.^
25. Agreement for sale of real property. If the residue of
the purchase-money is not paid by a certain day, the agree-
ment shall be void ; and the vendors may resell. The money
is not paid on the day, but the purchaser retains possession,
giving a warrant of attorney to confess judgment in eject-
ment. The stipulation as to time is waived.*^
26. A vendor and vendee proceeded in the treaty beyond
the time for completing the contract. The vendor having
brought an action, and withdrawn his record, not having got
in a judgment amounting to half the purchase-money ; the
Court refused an injunction.*
27. A. articles to buy land, and pays part of the purchase-
money ; afterwards, he enters into several orders of Court, to
pay the residue by such a day, and, in default thereof, to giv^
up the articles, and lose what he had before paid. The '
Court will relieve, though these orders have not been com-
plied with.^
28. Assumpsit. The declaration alleged, that the plaintiff
was possessed of a house, &c., for the residue of a term of
six yeajs, and agreed to assign the lease to the defendant at
a certain price, and give possession on a certain day ; and^
averred, that she was, fi:oi# the time of making the agree-
1 Lloyd V. CoUett, 4 Bro. 469. * Wood v. Bemal, 19 Ves. 220.
2 Hipwell V. Knight, 1 Tou. & C. 419. 5 Vernon v. Stephens, 2 P. WmS. 66.
8 Ex parte Gardner, 4 Tou. & Coll. ^
503. •
CH. XI.] TIME OP PERFORMING CONTRACTS. 199
ment, ready and willing to assign her interest in the house,
&G. The defendant, in his pleas, traversed this readiness
and willingness. The greater part of the house was destroyed
by fire shortly after the agreement, and before the time for
its completion. The agreement provided, that either party
making default should pay the other £500 as liquidated
damages. After the making of the agreement, but before
the day for its completion, the parties Agreed, by an in-
dorsement, to enlarge the time for a few days. Held, this
amounted to a fresh agreement.^
29. Contract for the sale of houses ; which, from defects in
the title, could not be completed on the day. The treaty,
however, proceeded, upon a proposal to waive the objections
on certain terms. The houses being burnt before a con-
veyance, the purchaser is bound, if he accepted the title;
although the vendor suffered the insurance to expire, at the
day on which the contract was originally to have been com-
pleted, without notice. A reference to the master was there-
fore directed to inquire, whether the proposal was accepted
or acquiesced in on behalf of the purchaser.^
30. Where a vendee of land, incumbered by mortgage and
judgment, promised in writing to pay one of the vendor's
creditors, by a certain day ; held, a subsequent parol agree-
ment, pointing out the mode in which the title should be
secured to the vendee, and in effect carrying the contract
into execution, but postponing the day of the creditor's pay-
ment, was no variance of the original agreement.^
31. Conditions of sale stipulated, that the sale should be
completed on a certain day ; that objections to the title, not
made within twenty-one days from delivery of the abstract,
should be considered as waived ; and that, if the purchaser
should not comply with the conditions, his deposit should be
1 Bacon v. Simpson, 3 Mees. & Wels. ' Reed v. Chambers, 6 Gill & Johns.
78. 490.
* Paine v. Meller, 6 Ves. 349.
200 LAW OF VENDORS AND PTIRCHASBBS. [CH. XI.
forfeited, and the vendor be at liberty to resell. The pur-
chaser did not deliver his objections, until several weeks
after the twenty-one days, and after the day appointed for
completing the purchase. The vendor's solicitor, however,
received them, and entered into a long correspondence with
the purchaser on the subject of them, but without coming to
a satisfactory conclusion. Finally, the vendor, against the
purchaser's objection, resold the property (but at a less price)
to one who, some months before the suit, had notice of the
first sale. About six months afterwards, he filed his biU
against the two purchasers and the auctioneer. The Court
held, that the conditions had been waived by the solicitor,
and decreed specific performance, with a reference to the
master, as to title ; but dismissed the bill, with costs, as
ag&inst the auctioneer, who denied that he had ever
intended to part with the deposit ; and without costs, as
against the second purchaser, who claimed the benefit of
his contract, if the Court should refuse to enforce the
plaintiff's.^
32. But, on the other hand, it is said, although courts of
equity have sometimes interfered in favor of parties, who
were not ready to perform their agreement at the day, where
the time appeared not essential, yet, when a farther indul-
gence is granted, it should only be- in extreme cases, where a
party has failed through some unforeseen accidenl ; or where
there is something indicating a waiver of the objection by
the other party. It is for the parties themselves to settle the
terms of their agreement ; and courts have no power to
determine which of those terms are, and w;hich are not,
material. A new agreement, extending the time for the per-
formance of a contract, is evidence that the parties to such
contract deemed the time material.^ So it has been held,
that parol evidence is not admissible, to enlarge the time,
within which the terms of a written agreement for the sale
1 Catts V. Thodey, 13 Sim. 206. ^ Wiswall v. McGowa, 2 Barb. 270.
CH. XI.] TIME OF PERFORMING CONTRACTS. 201
of land were to be complied with.^ So, also, that the day
provided for completion of the purchase, in a written con-
tract, cannot be waived by oral agreement, and another day
substituted in its place.^
33. On a bill for specific performance, the questions,
whether time was originally of the essence of the contract,
and whether, being so, the defendant has by any act, waived
it as a ground of objection to the performance, are questions
depending on evidence, and not to be decided except upon
the hearing.^
34. Where an agreement in writing is to be performed on
a certain day, and the parties agree to enlarge the time, a
declaration on the day stated in the agreement, though the
evidence is of a different day, will support the action.*
35. In many cases, notice from one party to the other, or
the want of it, determines the effect of lapse of time upon
the contract. Thus, a vendor, having notice from the pur-
chaser that he abandoned his contract, did not file his bill for
specific performance, till about a year afterwards. The bill
was dismissed.^ So, where time is not of the essence of the
contract, and there is unnecessary delay by one of the parties
in completing, the other has a right, by notice, to limit the
time, and upon default to abandon the contract.^ But the
time may be waived, by proceeding in the purchase, after
the expiration of the time fixed by the notice.'^ So, a party
who covenants to convey is not in default, until the other
party has demanded a conveyance, and, after waiting a rea-
sonable time to have it drawn and executed, unless such
demand was absolutely refused, has again demanded it.*
This is a rule not of pleading, but of evidence.^
36. A bill by a lessee, for specific performance of an agree-
ment for a lease, was dismissed, because it was not filed,
1 Doar V. Gibbes, 1 Bailey, Eq. 371. « Watson v. Eeid, 1 Rus. & Myl. 236.
2 Stowell V. Robinson, 3 Bing. N. C. ^ Taylor v. Brown, 2 Beav. 180.
928. ' King v. Wilson, 6 Beav. 124.
8 Levy V. Lindo, 3 Mer. 81. ' Lutweller v. Lumell, 12 Barb. 512.
♦ Thresh v. Rake, 1 Esp. N. P. C. .53. ^ Pearsoll v. Frazer, 14 Barb. 514.
202 LAW OF VENDORS AND PURCHASERS. [OH. XI.
until more than two years after the defendant had given
notice to the plaintiff, of his intention not to perform the
contract, on account of the latter not having fulfilled it on
his part.^
37. Bill for specific performance. The plaintiff agreed to
take a house of the defendant for two years. Afterwards, on
the 4th of September, 1817, he agreed to buy it for iG25 paid
down, and £425 to be paid on the 25th of December, on or
before which time, the, conveyance was to be executed. An
abstract was delivered on the 20th of October, and after-
wards, a draft of the conveyance, with the abstract, sent to
the plaintiff, with a note of the defendant's solicitor, stating
that the deeds were with him, and desiring to hear from the
plaintiff if any objections occurred ; and many ineffectual
applications were made to see the plaintiff. A notice was
served on the plaintiff on the 22d of December, that the de-
fendant would, on the 23d, 24th, and 26th, attend at the plain-
tiff's house, to execute the conveyance, and, on default, he
should consider the plaintiff as refusing to proceed in the
purchase, and act accordingly. On the 2d of April, 1818, the
plaintiff returned the abstract, with objections to the title.
On the 13th, the defendant distrained on the plaintiff for rent.
The plaintiff then filed this bill. Held, the defendant should
have given notice that he considered the agreement as at an
end, and returned the £25 ; and, he not having done so, the
Court directed the usual reference as to the title.^
38. Where a vendor covenants to deduce a good title at
A., B., or C, on or before a certain day, a plea, that he was
ready to deduce a good title at that time, without averring
notice to the covenantee, at which place he would be ready,
is insufficient. So a plea, that, by a subsequent agreement
not under seal, made before breach, the time had been
enlarged, and that the defendant was ready within the
enlarged time. So, a plea, that, in consideration the defend-
ant would deduce a good title and convey, (after breach,) the
1 Heaphy v. Hill, 2 Sim. & Stu. 29. " Reynolds v. Nelson, 6 Madd. 18.
CH. XI.] TIME OF PERFORMING CONTRACTS. , 203
plaintiff agreed to accept such title and conveyance at a
later day.'
39. The defendant agreed to sell his interest in a public-
house to the plaintiff, &c., at an appraisement; payment, on
taking possession, which was to be on or before a certain
day. The plaintiff paid a deposit; to be forfeited, if he
should not complete his part of the agreement. The parties
appointed A. and B. to be appraisers, respectively, as agreed.
On the day appointed for executing the contract, A. and B.
met, but A., the seller's appraiser, was informed, that B. could
not conveniently on that day complete the valuation, but
would do it the next day ; and no objection was then made
to the delay. B. went to the seller's premises the follow-
ing day, to make the valuation, but the seller refused to
allow him so to do, and said he would not complete the con-
tract. In an action for the deposit, held, it was no defence,
that the contract was not completed on the day mentioned,
the defendant not having given notice that he should insist
upon this term of the contract.^
40. Agreement to sell a piece of land for a certain price,
payable in instalments, the deed to be given on payment of
the first instalment. Five months after the first day of pay-
ment, the vendee offered the money due, and asked to show
the deed to his counsel, which the vendor refused, and, in a
month afterwards, the vendee tendered the money due, with
interest, and then brought an action of ejectment, in the
nature of a biU for specific performance. Held, as time did
not appear to be of the essence of the contract, and as both
parties regarded the agreement in force five months after the
time fixed, the lapse of another month, as there was no
change in the value of the property, did not extinguish the
vendee's right. If the vendor had considered the agree-
ment at an end, he should have notified the vendee of the
fact.3
1 Rippingall v. Lloyd, 2 Nev. & Mann. ^ Carpenter v. Blandford, 8 Barn. &
410. Cress. 575.
s Eemington v. Irwin, 14 Penn. 143.
204 , • LAW OF VENDORS AND PURCHASERS. [CH. XI.
41. The question of time has also frequently been raised,
in connection with the delivery of an abstract of title. Thus
it has been held, that merely undertaking to deliver an ab-
stract ?ind possession at a particular time does not make it
of the essence of a contract.^
42. Where objections to title are to be considered as
waived, unless made within a certain time after delivery of
the abstract, it has been doubted whether that condition can
be insisted on, if the abstract is very defective.^
43. The defendant, a purchasei' of a public-house, insisted
that time was of the essence of the contract, and that the
abstract had not been delivered within the time agreed on.
A reference, without prejudice, was made, on motion, as to
the title, and when it was first shown.^
44. An agreement for the purchase of an estate stipulated,
that an abstract of title should be delivered immediately,
and, if the contract was not completed by a given day, the
purchaser be released. The abstract was not immediately
delivered, but communications on the subject of the title
were continued between the parties, until the time limited
by the contract had expired. Held, the stipulation as to
time was waived by the purchaser.* So a purchaser can-
not abandon a contract, on the ground of the vendor not
having perfected the title within a reasonable time, where
the former, who was in possession, had been aware from an
early period of the treaty, that there was some objection to
the abstract, but has nevertheless continued to negotiate
down to a recent period, and then on a sudden (a fortnight
after the last act of negotiation) notifies the vendor that he
abandons the contract. In such case, an injunction will be
granted, to stay an action at law for the purchase-money, on
motion, almost as of course ; and, if the case were made out,
it would be sufficient on the hearing.^
45. The abstract, though delivered very late, and under a
1 Boehm w. Wood, lJac.& Walk. 419. * Hipwell v. Knight, 1 You. & Col.
» Cutts V. Thodey, 13 Sim. 206. 419.
^ Toxlowe V. Amcoats, 3 Beav. 496. * Warder v. Jeffery, 4 Price, 294.
CH. XI.] TIME OF PERFORMING CONTRACTS. 205
notice that the vendee would insist on his deposit, with in-
terest, if the title should not be made out and possession
delivered, by the time of payment, was received and kept
without objection ; the vendee, upon the construction and
circumstances, not being entitled to insist on the time, as
of the essence of the contract ; specific performance was '
decreed.^
46. July 22d, an estate was put up at auction. By .the
conditions of sale, an abstract of title was to be furnished
within seven days, upon demand ; all objections considered
as waived, unless made within eight days thereafter ; and the
purchase completed August 8th. July 24th, the solicitor of
the purchaser called for the abstract. The land being mort-
gaged, and the mortgagee abroad, the abstract was delayed
tiU August 3d. The purchaser thereupon claims to fescind
the sale, and brings an action for the deposit ; and the vendor
files a bill for spe ific performance, to which the defendant
demurs. Held, the time of delivery of the abstract was not
of the essence of the contract, and the demurrer was over-
ruled.2
47. Questions have sometimes arisen, as to the effect
upon the contract of a deterioration in the value of the
property, arising from lapse of time. Upon this subject it is
held, that deterioration of the estate, arising from delay in
completing the purchase, is not a ground for rescinding the
contract, but may be the subject of an allowance to the
purchaser.^
48. The amount of deterioration, pending a suit for specific
performance, having been ascertained by an issue, the pur-
chaser was allowed it out of his purchase-money, which he
had paid into Court under an order ; with interest from the
time when he paid in his money.^
49. The completion of a contract being delayed for three
1 Seton V. Slade, 7 Ves. 265. * Lord v. Stephens, 1 You. & Coll.
2 Roberts v. Berry, 17 Eng. Law & 222.
Eq. 400. ' Perguson v. Tadman, 1 Sim. 530.
18
206 LAW OP VENDORS AND PURCHASERS. [CH. XI.
years by difficulties in the title, the vendor was held account-
able for a de'terioration of the land during that periodJ
50. Questions often arise as to the construction of con-
tracts in reference to the time of performance.
51. Under an agreement for conveyance of land, on pay-
ment of the purchase-money, a certain amount of which is
to be paid annually, " the time commencing at the date of
the agreement ; " the day of the date is to be excluded ;
although the purchaser in the mean time is to have the use
of the land.2
52. All objections to a title were to be taken, within
twenty-one days from delivery of the abstract, or deemed
waived ; and time was, in that respect, to be considered of
the essence of the contract. Held, the twenty-one days did
not begin to run, until a perfect abstract had been delivered.^
53. Where parties contract, that the purchase of lands
shall be completed within so many months, calendar months
are intended.* • But the word month may mean lunar or calen-
dar month, according to the intention of the contracting par-
ties. Sale of land on the 24th of January ; an abstract of the
title to be delivered to the purchaser within a fortnight, to be
returned by him in two months, to be redelivered within four
months, and the purchase to be completed on the 24th of
June, making a period of precisely five calendar months
from the date of the sale and conditions. Held, calendar
months were intended. And the condition for delivery of
the draft of the conveyance within three months w;as not a
condition precedent, with respect to its delivery within the
precise time.^
64. A vendor, in Illinois, covenanted with the vendee, in
Boston, to convey to him certain lands in Illinois, before a
certain day. It was also verbally agreed, at the time, that
the former should record the deed in Illinois, before sending
1 Foster v. Deacon, 3 Madd. 394. * Hipwell v. Knight, 1 You. & Coll.
2 Farwell v. Rogers, 4 Cash. 460. 419.
8 Hobson V. Bell, 2 Beav. 17. '" Lang v. Gale, 1 Mau. & Selw. 111.
CH. SI.] TIME OP PEEFORMING CONTRACTS. 207
it to Boston, but that it should reach Boston before the day-
named. Held, the covenant was performed by depositing
the deed in the registry before the day, though not sent to
Boston till after.^*
55. Action on an agreement to let the plaintiff a messuage
for a year from the 25th of March ; he to take the fixtures
at a valuation, and pay for them on entry. Held, the
plaintiff might show a tender on the 10th of April.^
56. By the conditions of a sale, which took place Septem-
ber 18th, the purchaser was immediately to pay a deposit, in
part of the purchase-money, and to sign an agreement for
payment of the remainder by the 28th of November ; the
vendor was to deliver an abstract within fourteen days from
the sale, and to deduce a good title ; objections to the title
were to be taken witfiin twenty-one days after delivery of
the abstract ; and the purchaser was to prepare the deeds of
conveyance by the 10th of November. Held, no precise
time was fixed, within which the vendor was to deduce
a good title, and therefore a declaration against him for fail-
ing to do so ought to aver, that he had been allowed a
reasonable tirae.^
' Shaw V. Hayward, 7 Cush. 170. ' Sansom v. Ehodes, 6 Bing. N. C.
» Edmau v. Allen, 6 Bing. N. C, 19. 261.
208
LAW OF VENDORS AND PURCHASERS. [CH. XII.
CHAPTER XII.
TITLE OP THE VENDOR.
1. General importance of the subject.
2. In general, the vendor is bound to
convey a good title.
15. Destruction of the property sold,
after the sale.
18. Grounds of objection to the title.
21. Mutual rights and obligations of
the parties, as to conveyance of the
land and payment of the price.
28. Question of time, in reference to
the title.
36. Waiver of title.
1. The title which a vendor of real property is bound by
his contract to convey to the vendee, is of course one of the
most important topics connected with the general subject of
this work. Indeed, it may be said to connect itself, directly
or indirectly, with almost every branch of that subject. A
mere engagement to convey certain land is worth little or
nothing to the proposed vendee, unless the vendor is the
owner of that land. * It is an important question, there-
fore, how far such ownership is an essential element or
condition of the contract, and what binding assurance or
guaranty of title the purchaser is entitled to receive. The
same question arises in regard to liens or incumbrances upon
the land, diminishing its value to the purchaser ; and a want
of title to a part only of the property. So, also, the time
and mode of settling questions of title, and the right of re-
scinding or claiming compensation for defects of title, are
matters upon which numerous questions and nice distinc-
tions are to be found in the books.
2. It is held, as the general doctrine, that an agreement
to sell land implies that the title shall be good and unin-
CH. XII.] TITLE OP THE VENDOR. 209
cumbered.^ (a) So, if the contract be, " to convey the land
by a deed of conveyance," for a stipulated price, this is not
fulfilled by executing a deed merely ; but the party must be
able to convey such a title, as the other party had a right to
expect ; and this is to be determined from the fair import of
the terms used, with reference to the subject-matter.^ More
especially, when a vendor seeks specific execution of the
contract, he must, if required by the defendant, exhibit such
a title as the contract requires.^ So, where A. agreed to do
work for B., and take certain land in payment, to which B.
agreed to make title to him; the title not being in B., A.
may rescind the contract, or, if he does the work, he will be
entitled to payment in cash.* So, in case of a contract to
buy and seU certain lands ; the seUer, on compliance with
the terms, to. give a sufficiei|t deed ; held, he was bound to
convey an unincumbered legal estate in fee.^ So, an agree-
ment to convey land, generally, and with nothing in the
transaction itself to indicate the kind of conveyance, requires
a deed 4n fee simple, with covenants of general warranty.®
So a covenant to give a good and sufficient deed of convey-
ance, free of aU incumbrances, binds the party to give a deed
which passes a title to the land.^ So a contract to give
a good and sufficient deed requires a legal title in the grantor ;
not merely a deed containing covenants of warranty and
against incumbrances.® If the vendor cannot make such a
title, the purchaser may recover back the purchase-moqey
with interest.^
3. Bill for specific performance of a contract to convey
1 Prothro w. Smith, 6 Rich. Eq. 324; i^ Witter v. Biscoe, 8 Eng. (Ark.)
Wilde V. Foot, 4 Taunt. 334 ; Watts v. 422.
Waddle, 1 M'L. 200. ' Hill v. Ressegien, 17 Barb. 162.
2 Lawrence v. Dole, 11 Verm. 549. * Fletcher v. Button, 4 Comst. 396.
" Tomlin K. M'Chord, 5 J. J. Marsh. See Garley v. Rice, 16 Johns. 267;
138. Parker v. Parmelee, 20 Johns. 130.
* Fitch V. Casey, 2-Greene, 300. » Ibid.
6 Owings V. Baldwin, 8 Gill, 337.
(a) An agreement by a party to pay a certain sum, "if he should get
certain land," means, " if lie should acquire a valid title to the land."
Woods V. Kirk, 8 Fost. 324.
18*
210 LAW OF VENDORS AND PURCHASERS. [CH. XII.
land. The defendant agreed to " convey by a good and
valid deed," vsrithin one year, upon four days' notice, on con-
dition of the plaintiff's paying in a specified manner at the
expiration of the year or the notice. A previous deed of
the land, unrecorded and, unknown to the plaintiff, assigned
to the defendant's, grantor a mortgage made by a former
owner, containing a reservation of " such interest as the
mortgagor acquired by virtue of a certain prior mortgage of
the same to him to secure the payment of $1,400." The
plaintiff afterwards made inquiry of the defendant respect-
ing the reservation, and notified him that he should not
accept a quitclaim deed. The defendant made no explana-
tion, but offered, for a further sum, to clear up the title.
Within the year, the plaintiff notified the defendant, that he
should take the property, as aareed, and demanded a war-
ranty deed, tendering the price. The defendant refused to
give such deed, but tendered a quitclaim deed, and demanded
payment, which the plaintiff refused. Held, the conveyance
and payment were to be concurrent, and each party was
bound to perform, on his part, at the time appointed ; that
the plaintiff was not bound to accept a quitclaim deed, or
make further advances, tiU the title was cleared up ; that
any deed, passing a clear title in fee, would satisfy the con-
tract, but, as the property was apparently incumbered, the,
defendant was bound either to remove or explain the incum-
brance, or give a warranty deed.^
4. It is further said, on this subject, that where one con-
tracts to purchase, on the faith of the vendor's having a good
title, he has a right to have the title sifted to the bottom,
before he can be called upon either to accept an indemnity
or compensation for a defect, or to abandon the contract.^
So, equity wiU not compel a purchaser to take a doubtful
title ; as where it depends on the doubtful interpretation of
a will, all parties in interest not being bound by the decree.'
' 22 Conn. 513. 3 gohier v. Williams, 1 Curt. 479.
2 KnatchbuU v. Grueber, 3 Mer. 137.
CH. XII.] TITLE OF THE VENDOR. 211
5. A title is doubtful, when it is such as other persons
may fairly question, although the Court entertains a favor-
able opinion of it.' If the doubts concerning a title arise
upon a question connected with the general law, the Court
is to judge whether that law is settled ; if not, or if extrinsic
circumstances, which neither the purchaser nor the Court
can satisfactorily investigate, may affect the doubt as to the
title ; specific performance will be refused.^ Thus, upon a
bill by a vendor for specific performance, the case turned on
the construction of a will, and the Court strongly inclined in
favor of the title ; but, the opinion not resting upon any gen-
eral rule of law, or upon reasoning which would necessarily
satisfy others, or preclude substantial litigation ; specific per-
formance was refused.^
6. Written agreement, executed at the time of the delivery
of a deed of land, and the making of a note for the price,
that if, in a suit then pending between other parties, involv-
ing part of a certain line, another part of which affected the
boundaries of the land conveyed, it should be decided that
the grantor was not entitled to a certain part of the land, he
should repay part of the price. Held, the effect of the
agreement was, to make his right and title to convey de-
pendent upon the final decision of the suit ; and an adverse
judgment therein might be set up in . defence pro ta/nto to an
action for the price.*
7. The right to a good title does not grow out of the
agreement between the parties, but is given by law. But a
purchaser may waive his right, by. going on with the agree-
ment after he has full notice that he is not to expect a good
title. This is, in such case, matter of notice, and not of
contract^ Where the doubt as to a title is upon matters of
fact, it may form a proper case for an issue at law ; and, till
the doubt is removed, or confirmed, by further investigation,
the Court wiU not either decree performance or dismiss the
bill.8
' Pyrke v. Waddingham, 17 Eng. "* Daggett v. Daggett, 8 Cash. 520.
Law & Eq. 534. , ^ Ogilvie v. Foljambe, 3 Mer. 53.
2 Ibid. 8 Ibid. 6 Seymour v. Delancey, 1 Hopk. 436.
212 LAW OF YENDORS AND PURCHASERS. [CH. XH.
8. But, on the other hand, it is held, that, in order to main-
tain a bill for specific performance, a vendor need only prove
a good marketable title ; not one which may not possibly be
defeated.! -Thus, in case of an agreement to convey land,
the title to be " good and satisfactory to the party to receive
it;" the purchaser is bound to accept a title free from any
reasonable objection.^ So a good title may be made,
although the origin cannot be shown by any deed or will ;
by proof of such a long, uninterrupted possession, enjoy-
ment, and dealing with the property, as afford a reasonable
presumption that there is an absolute title in fee simple.^
9. More especially, if the obligor in a bond for titles is
insolvent, or without the jurisdiction of the Courts, leaving
no property within it liable for the claim against him, and
there is an outstanding paramount title; the vendee shall
have relief from payment of a proportional part of the price,
before eviction.., The particular circumstances relied on
for such abatement must be distinctly alleged.* But, in an
action by the assignee of a purchaser against the vendor,
to enforce specific performance, it is no defence, that the
assignor, with another person, owes the defendant the pur-
chase money of other land, that they are insolvent, and the
land an inadequate security.^
10. Where the contract binds the vendor to give a good
title, the want of such title may avoid the contract at his
election, even though the purchaser seeks to enforce it.
Thus, one of the terms of an agreement was, that the con-
tract should be void, if the purchaser's counsel should be of
opinion that a marketable title could not be made by a
certain time. The counsel being, of that opinion, a bill by
the purchaser for specific performance, with compensation,
was dismissed with costs ; and an application, afterwards
made by the plaintiff, that his deposit might be set off
1 Thompson v. Dulles, 5 Eich. Eq. * McGehee v. Jones, 10 Geo. 127.
370. ^ Seaman v. Van Eensselaer, 10
2 Fagen v. Davison, 2 Duer, 153. Barb. 81.
' Cottrell V. Watkins, 1 Beav. 361.
CH. XII.] TITLB OP THE VENDOR. 213
against the defendant's costs, and the surplus (if any) paid
to him, was refused with costs.^
11. Contrary to the prevailing doctrine upon this subject,
which is as above stated ; it has been questioiled, whether
a covenant to give a good and lawful deed relates to the
form of the deed, or to the goodness of the title.'^ So it has
been held, that a bond, to make title free from incumbrances,
is fulfilled, by a conveyance in fee simple free from incum-
brances, accepted by the vendee.^ So, in case of an agree-
ment to give a deed of three out of sixteen tenements to the
buUder, when completed ; held, the deed must be a convey-
ance in fee simple, of the three tenements designated by the
parties, with a covenant against incumbrances done or suf-
fered by the grantor.* So an agreement, on a sale of land,
" to execute a deed " to the purchaser, has been held satisfied
by executing a deed without warranty or covenants.^
12. Action by the vendor, upon a contract for the sale and
exchange of lands, the title to be " satisfactory to the party
to receive it." Answer, that the lands were subject to the
lien of certain judgments, which the plaintiff was to convey
on the day appointed for the exchange of deeds. Held, the
defendant could not show, that the judgments were an appa-
rent, though not a real lien, and therefore a cloud upon the
title.6
13. An agreement, made in 1849, recited, that the father
of the plaintiff, in 1797, demised certain premises to one A.,
and that the plaintiff, under a devise from his father, owned
the reversion in fee. The agreement then provided, that the
plaintiff would, on receiving from the defendant $2,000, in
certain annual instalments, with interest, the last payable
in 1859, convey the property with warranty, excepting any
title or right under the lease. The defendant agreed to pay
the $2,000 ; and it was agreed that he should enter immedi-
1 Williams v. Edwards, 2 Sim. 78. ^ Van Eps v. Corporation of Schenec-
2 Winne v. Reynolds, 6 Paige, 407. tady, 12 Johns. 436.
" Johnson v. Collins, 17 Ala. 318. '' Eageu v. Davison, 2 Duer, 153.
■* Ellis V. Burden, 1 Ala. (N. S.) 458.
214 LAW OF VENDORS AND PTIECHASERS. [CH. XII.
ately and pay the taxes. The plaintiff brings this action for
an instalment of the principal and the interest. The answer
alleged, that the farm or a-large part of it was in possession
of persons holding or claiming adversely, but stated no facts
constituting such adverse possession. Held, as the agree-
ment recited that the plaintiff was a reversioner, the plaintiff
was not bound to have given possession ; that he did not
agree to give possession, but the defendant was to take it,
and be himself the actor ; and that the answer was no de-
fence, as there can be no adverse possession against a rever-
sioner,
1
14. By an unsealed instrument. A., in consideration of
£7,000, agreed to present to a rectory, on the next avoidance,
such person as B. should nominate, and to furnish an ab-
stract and execute a conveyance of the next presentation to
B. A. afterwards, with the assent of B, agreed to sell the
next presentation to C, and to convey such title as he (A.)
had received, in consideration of £7,500, of which £500 was
to be paid to B. on a certain day. A. furnished an abstract
of such title as he had, but C. refused to take it, and no con-
veyance was tendered to him. In an action by B. against C.
for the £500 : held, that there was a sufficient consideration
for C.'s promise ; that A. was not bound to make a market-
able title, but only to convey such as he had received ; and
that, as C refused to accept that title, it was not necessary
to tender a conveyance.^
15. The title to be acquired by a purchaser may be
affected, by circumstances occurring after the making of
the contract ; as by the partial destruction of the property
sold.
16. Contract for the sale of houses ; which, from defects
in the title, could not be completed on the day. The treaty,
■however, proceeded, upon a proposal to waive the objections
on certain terms. The houses being bmrnt before a con-
1 Clarke v. Hughes, 13 Barb. 147. ^ Wilmot v. WUkinson, 6 Barn. &
Cress. 506.
CH. Xn.] TITLE OF THE VENDOR. 215
veyance ; the purchaser is bound, if he accepted the title,
although the vendor suffered the insurance to expire, at the
day when the contract was originally to have been com-
pleted, without notice. A reference to the master was there-
fore directed, to inquire whether the proposal was accepted,
or acquiesced in, on behalf of the purchaser.^
17. A. articles, on behalf of B., to purchase four houses in
Jamaica, for £800. The houses are soon afterwards swal-
lowed up by an earthquake. Although A. hq,d no assets of
B., yet he was decreed to pay the purchase-money.^
18. With regard to the particular grounds of exception to
the title of a vendor, it is foreign from the plan of the present
work, to consider the various modes of acquiring title ; as by
deed, inheritance, or devise ; om: inquiries being strictly lim-
ited to executory contracts of sale, and not embracing those
executed alienations, by which such contracts are often per-
fected. Ordinarily, the title of the vendor is exhibited by doc-
umentary evidence ; as by a deed or will. Sometimes, how-
ever, questions have arisen upon the sufficiency of other
proof. Thus, upon a bill for specific performance of a sale,
and exceptions to the master's report in favor of the title ;
one link in the chain, was a deed found among the title
)ng
h%e
papers, accompanying the possession, but with^espect to
which the weight of evidence was, that the deed was not
genuine. By excluding that deed, the complainant would
be reduced to rely upon adverse possession, which was less
than twenty-five years. There was slight evidence that the
maker of the deed was an alien, and, if not so, there was no
account of his heirs or devisees. Held, a case proper for an
issue at law. If the complainant's title had been clearly
adverse for twenty-five years, it would not be sufficiently
impeached by the possibility, either of an escheat, or of such
grantor's having left heirs or devisees, whose title would be
protected by disabilities. Such title by adverse possession
would be sufficient to preclude all other questions, and to be
1 Paine v. Meller, 6. Ves. 349. ^ pasg „, Rudele, 2 Vern. 280.
216 LAW OF VENDORS AND PURCHASERS. [OH. XU.
made the ground for a decree.^ In the same connection it
may be stated, that the alienage of the vendee is an insufii-
cient ground, to entitle the vendor to a decree rescinding a
sale, though it may afford a reason for refusing specific per-
formance against the vendee. But, if the parties have not an
adequate remedy at law, the vendor may be considered as a
trustee for purchasers under a sale by order of the Court, for
the benefit of the vendee.^ But a vendee will not be com-
pelled to take^a title, founded on a decree against em infcmt,
because the latter may show cause against it when of age.^
So, where title is sought through a wife, the husband must be
made a party, in order to decree a good title. And so where
there is a dower interest outstanding.*
19. Th,e decree of title in one State, to lands in another,
cannot vest the legal title.^
20. A contract to convey, so soon as a suit then pending
for the title shall be decided, gives to the vendor all the time
necessary to close the litigation in all its forms.^
21. We have already considered (Chap. 3) the liability of
a purchaser to pay the stipulated price, as depending upon
the vendor's performance of his part of the agreement. It
may be added in the present connection, that, in a contract
for ■ the sallr of land, if the price is to be paid at the time of
the conveyance, the covenants to convey and to pay the price
are dependent covenants, and the declaration in an action
for the price must aver a readiness to convey, and the plain-
tiff must prove his ability to convey.'^ So an injunction, to a
judgment for the purchase-money, ought not to be dissolved,
until a good and sufficient deed be tendered by the vendor.*
22. Bond from defendant to plaintiff, to convey land by a
quitclaim deed, at a day named, on payment of a certain
sum. On the day, the plaintiff, having the money within
reach, though not actually in hand, offered to pay it, but
1 Seymour v. Delancey, 1 Hopk. 436. * Ibid.
2 Hepburn v. Dunlap.-l Wheat. 179." ^ Ibid.
s Bryan v. Eeed, 1 Dev. & Batt. Eq. ' Lawrence v. Dole, 11 Verm. 549.
86. 8 (jrantlandj;. Wight, 2 Munf. 179.
* Watts V. Waddle, 1 McL. 200.
CH. XII.] TITLE OF THE VENDOR. 217
made no formal tender ; but the defendant required payment
before the conveyance was made. Held, the plaintiff was
entitled in equity to a decree for a quitclaim-deed of the
land, free from incumbrances since the date of the bond.^
23. Land was sold at auction to the defendant, who sub-
scribed the terms of sale ; which were, that a certain part of
the purchase-money should be paid within seventy-five hours ;
a deed given by the vendor, with warranty of title, except
as to the quit rents, in such lots as should be designated ;
that the purchaser should execute a bond and mortgage for
the residue of the purchase-money ; and that the deed, bond,
and mortgage, should bear date on the day of the sale. At
the time of sale, ^he premises were subject to a registered
and unsatisfied mortgage. The vendor brings assumpsit.,
for breach of the conditions. Held, that giving fhe deed,
bond, and rnortgage, were to be simultaneous acts ; that, as
the plaintiff was not in a situation to convey an indefeasible
title, the defendant was not bound to perform the agreement
on his part ; and that defendant's notice of the registration
was immaterial, because, according to the true construction
of the terms of sale, the quit rents were the only incum-
brance.^
24. In the sale of a farm, it was stipulated, that part of the
purchase-money should be paid when the deed was ready,
and the residue in annual instalments. Held, the vendor
could not claim any part of the purchase-money, until he
had tendered an unincumbered title ; not merely a waiTanty
deed ; the farm being subject to a mortgage then due.^ (a)
1 Parker i'. Perkins, 8 Cush. 318. ' Swan v. Drury, 22 Pick. 485.
2 Judson V. Wass, 11 Johns. 525.
(a) In an action by the vendor upon such contract, parol evidence is in-
admissible that, when the contract was made, the vendee knew of the mort-
gage, and that it was then agreed, that the mortgage should remain. The
vendor having tendered a warranty deed, held, the declarations of the ven-
dee, made previously to the tender, that he should not insist on the removal
of the incumbrance, were not a waives of exception to the title, unless, taken
19
218 LAW OF VENDORS AND PtJECHASBES. [CH. XII.
25. Contract for the sale of lands, made in August, 1845.
The vendee agreed to pay therefor $950, viz. : $200 in April,
1846, $200 in April, 1847, and the rest in two subsequent
annual payments. The vendor agreed to deliver possession
in November, 1845, and a deed in May, 1846. Possession
was delivered and the first instalment paid, but no deed de-
livered or tendered. Held, an action did not lie for the sec-
ond instalment.^
26. Although the vendee has paid the price, and the ven-
dor offers to perform the contract on his part ; still no title
passes till the deed is actually accepted. Bond for a convey-
ance. The obligee occupied under the bond for nineteen
years, and paid the purchase-money, and»the obligor made,
executed, and tendered a deed, but the obligee refused to
accept if or surrender the bond. Held, he acquired no title
to the land.^
27. The mutuality of the contract imposes an obligation of
the same nature upon the vendee as upon the vendor. Thus
the vendor is not bound to tender a deed and demand pay-
ment, except for the purpose of enabling him to affirm the
contract, and recover the purchase-money in a suit at law.
And, where payment at a particular day is made' an essential
part of the contract, if the vendee wishes to have specific per-
formance, he must tender or offer the money at the time, upon
the receipt of a deed.^ So, on a sale under a decree, the ab-
stract stated, that the vendor was devisee of A., who took as
heir to B. On inquiry, the vendor's solicitor confirmed that
statement ; and the master accordingly approved of the title.
Just before the conveyance, the purchaser discovered that C.
1 Grant v. Johnson, 1 Seld. 247. = -yyella v. Smith, 7 Paige, 22 ; S. C.
2 Dwinal v. Holmes, 33 Maine, 172. 2 Edwards, 78.
in connection with what took place at the time of tender, the whole evidence
proved, that the vendee intended at that time to waive such exception ; for
such declarations, being made without consideration, were not obligatory,
it not appearing that the vendor acted on the faith of .them, or had been
subjected to any damage or expense thereby.
CH. XII.] TITLE OP THE VENDOR. 219
was the heir of B. ; and it appeared that the solicitor had re-
ceived information of that fact, but concealed it. A motion, by
the purchaser, to be discharged from his purchase, was granted,
though the vendor had obtained a release from C. before the
motion was made.^ So under a decree directing the sale of
an estate, which as against T., one of the defendants, was
only a decree nisi, and before the decree was made absolute,
the estate was sold, and A. was reported the purchaser.
Afterwards, on the application of A., an order was made by
the Vice- Chancellor for discharging him from the purchase,
on the ground that the decree was not absolute as against T.
The vendor immediately gave notice of a motion before the
Lord Chancellor, to discharge that order, and, that motion
having stood over a considerable time, the decree was made
absolute as against T., before it was heard. Held, the pur-
chaser was entitled to be discharged at the time the applica-
tion was made, and, having been once discharged by an order
which was right at the time, the contract could not be re-
vived by the subsequent proceedings.^
28. "We have already considered (Chap. 11) the question
of time, as bearing upon the respective rights and liabilities
of vendor and vendee. As has been stated, time is generally
treated as of the essence of the contract. Thus, if the ven-
dor of an estate by auction does not show a clear title by
the day specified, the purchaser may immediately recover
back his deposit, and rescind the contract.^ So, where it was
an objection to a title, that it was doubtful whether the wife
of a party to a deed thirty years old was barred by that deed
of her dower ; it was not answered by proving at the trial
that she was then dead, such proof not having been before
given.* So, it being necessary, in order to make a title per-
fect, that a recovery should be sufFejed, for the purpose of
barring an old estate tail, vested in one not a trustee for the
1 Dalby v. Pullen, 3 Sim. 29 ; 1 Euss. « Wilde v. Forte, 4 Taunt. 334.
& Myl. 296. * Ibid.
2 Coster V. Tumor, 1 Euss. & Myl.
311.
220 LAW ,01" VENDORS AND PUECHASEES. [OH. XH.
vendor ; the deed making the tenant to the praecipe, and the
warrant for suffering the recovery, were executed before the
filing of the bill for specific performance, but the recovery-
was not completed till a few days afterwards. Held, a good
title was not shown before commencement of suit.^ So A.,
being entitled, under his marriage settlement, to a life inter-
est in certain freehold estates, remainder to the use of trus-
tees for a term, of one thousand years, to secure a jointure
and portions, remainder to himself in fee, conveyed part of
the lands to B. in fee, in exchange for other lands, B.'s heir
having afterwards contracted for the sale of the land, the
purchaser refused to complete the contract, on the ground
that A. had no power to exchange the lands in fee. The
vendor then procured the execution of certain deeds, with a
view of bringing the exchange within the terras of a power
of sale and exchange, given to the trustees under the settle-
ment. Held, under these circumstances, and likewise on the
ground that the after-executed deeds were grossly inaccurate,
the purchaser was not bound specifically to perform the
agreement.^
29. But, on the other hand, it has been held, that the
purchaser cannot avoid the sale upon the ground of want of
title at the time, provided the vendor reasonably satisfies his
contract in this respect. Thus, where one agrees to sell an
estate, a small portion of which turns out to be the property
of another person ; the Court will not discharge the purchaser
from his contract, without giving the vendor an opportunity of
acquiring a title to that portion.^ So where, by the terms of
a sale, the vendee was entitled to immediate possession, the
first payment to be made in part, by his obtaining an assign-
ment of a judgment against the vendor, after which the
deed was to be given, the judgment cancelled, and the residue
of the first instalment paid ; held, the vendor was entitled
to a reasonable time, after notice of objections to his title,
1 Lewin v. Guest, 1 Buss. 325. ^ Chamberlain v. Lee, 10 Sim. 445.
2 Cowgill V. Lord Oxmantown, 3 You.
& Coll. 377.
CH. Xn.l TITLE OF THE VENDOR. 221
to clear off the incumbrances, and procure the necessary
certificate that the property was unincumbered. Also, that
three weeks was not an unreasonable time.^ So, though
equity will not compel a purchaser to take a title substan-
tially defective, yet it is the privilege of the vendor to com-
plete his title, at any time before a decree, provided there
has been no unnecessary delay ; and, if the purchaser fore-
stalls him, and perfects the title himself, he is not entitled to
rescind, but can claim only the expenses of removing the
defect.^ So, A. purchased land from B. and gave his bond
for the purchase-money. Afterwards, supposing the title to
be defective, A. procured a conveyance from C, the original
owner, under whom B. claimed, B. having refused to procure
such conveyance himself. Held, although A. might have
claimed to have the contract rescinded before his purchase
from C, he could now only claim to be reimbursed what it
had cost him to perfect the title.^
30. Greater vigilance is required of the vendor, in perfect-
ing the title to the purchaser, where the latter is not in pos-
session under the contract. But where a day is fixed for
the conveyance, the vendee must give notice of any objec-
tions to the title a reasonable time previous to the day, that
the vendor may remove them and convey at the time ; or
equity may consider a strict performance by a conveyance
on the day as waived. And, where the vendor has not been
guilty of gross negligence in perfecting his title, equity may
decree a specific performance, upon a biU filed by him,
although the title was not perfected on the specified day ;
unless the time is expressly made an essential part of the
agreement.*
31. So, as has been seen, (Chap. 11,) it has been often held
in equity to be a sufficient compliance with the contract, if
a party can make a good title in a bUl for specific perform-
ance, at any time before the final decree.^ So, where the
1 More V. Sniedburgh, 8 Paige, 600. * More v. Sniedburgh, 8 Paige, 600.
2 Westall V. Austin, 5 Ired. Eq. 1. * Bennett, &o. v. Carey, 3 Bro. 390.
s Kindley v. Gray, 6 Ired. Eq. 445.
19*
222 LAW OF VENDORS AND PURCHASERS. [OH. XU..
vendor declines executing the contract, upon the ground that
he is unable to give a good title, and the purchaser files hia
bill, to compel the defendant to complete the contract, or
rescind it ; if the defendant is able to give a good title at the
time of the decree, the complainant will be compelled to
accept it. But the defendant will be decreed to pay interest
upon the purchase-money, from the time a conveyance was
demanded.! So, the plaintiff, in a bill for specific performance,
more especially where time is not material, and there has been
no unreasonable delay, is entitled to a decree, if, at the hear-
ing, he can show a good title, although he had not such title
at the time of the contract, or the commencement of suit.
Otherwise, if the defendant retired from the contract as soon
as the want of title was discovered.^ So, though a vendor
cannot come at any distance of time for a performance ; yet,
where a bill was filed fourteen months after the correspon-
dence upon the objection^ to the title ceased, by the defend-
ant's returning no answer to the last letter, by calling for a
distinct answer, and threatening a bill, and the auctioneer had
not been called on to return the deposit, it was referred to the
master.^ So, though a covenant to execute and deliver a good
and sufficient deed means om operative conveyance, or one
that transfers a good and sufficient title, not a title admitted
to be doubtful ; yet a title at the time of the decree, or the
coming in of the master's report, is sufficient ; and the party
may be allowed then to perfonn his contract, and save the
forfeiture of his bond, on making compensation for the delay.
The rule of compensation is the amount of the interest on
the bond, from its date to the time of final decree.*
32. Bill for specific performance. The plaintiff, claiming
through an alien, contracted to sell the estate, having for this
reason no legal or equitable title to it. The purchaser, by his
own inquiries, ascertained the defect,*but did not, till after
some months of negotiation with the plaintiff, repudiate the
contract. Pending the investigation of the title in the mas-
i Pierce v. Nichols, 1 Paige, 244. ^ Hertford v. Boore, 5 Ves. 719.
^ Hoggart V. Scott, 1 Russ. & Myl. * Clute v. Kobison, 2 Johns. 595.
293 ; Wynn v. Morgan, 7 Ves. 202.
CH, Xn.] TITLE OP THE VBNDOB. 223
ter's office, the plaintiff obtained a grant of the estate from
the Crown. Held, he was entitled to a decree.^
33. But though equity will decree specific performance
of a sale of land, if the vendor is able to make a good title
at any time before decree ; the dismission of the bill is a bar
to a new bill for the same object. But the inability of the
vendor to make a good title at the time .of decree, though
ground for refusing a specific performance, will not authorize
a Court of Equity to rescind the agreement, where the par-
ties have an adequate remedy at law for its breach.^
34. Where a purchaser, having discovered a technical de-
fect in the title, abandons it, and files a bill to enjoin coUec-
tion of the price ; and the vendor then supplies such defect ;
the vendee is bound to complete the purchase,^
35. When performance of a contract of purchase is re-
sisted, upon grounds wholly independent of the title, and
the objections are overruled; or when the purchaser, although
doubtful of the title, consents by his answer to accept it, if
in the judgment of the Court it can be rendered valid ; it is
sufficient to warrant a decree for specific performance, that
a good title can be made within a reasonable time before
the final decree. But when the purchaser rejected the title
offered, as insufficient, and upon that ground refused and
fltiU refuses to complete the conteact, the entire controversy
turns upon the validity of the objections, and, if they are
•sufficient, the Court will not decree specific performance.*
36. Although a vendee may require a good and satisfac-
tory title to the estate sold ; yet by his own conduct he may
waive his rights in this respect. Thus, a purchaser buying
with full knowledge of a defect in the title will not, for that
defect, be permitted to come into equity for relief.^ So, the
Court will not set aside the purchase of a house and lot, on
the allegation of. an imperfect or incumbered title, not clearly
shown to be so, after long possession by the purchaser, and
1 Eyston v. Simonds, 1 You. & Col. ^ Mays v. Swope, 8 Gratt. 46.
C. C. 608, ' * DominicktJ. Michael, 4 SaDdf.374.
2 Hepburn v. Dunlap, 1 Wheat. 179. ^ Craddock v. Shirly, 3 Marsh. 1139.
224 LAW OE VENDORS AND PXJECHASERS. [CH. XH.
a confession of judgment for the purchase-money. Such
conduct amounts to a waiver of objections, though the Court
might give some relief, ultimately,, if the title turned out
to be bad. The vendor haAdng enforced the judgment,
and bought in the property at a very low rate, but offering
to rescind the sale on payment of the- debt, the Court de-
creed accordingly.^ So, although a complainant who seeks
specific performance of a sale, but has not performed his part
of the contract, is not entitled to a decree, especially if any
injury has resulted to the defendant ; if the defendant has
taken possession, paid part of the purchase-money, and
executed the agreement in part ; the Court will consider him
as having waived his objections, and will decree the execu-
tion of the agreement. It will, however, extend the time of
payment, vary the security to be given, and reg:ulate the pay-
ment of interest, according to the justice of the case.^ So
a purchaser, in possession under an agreement, having exer-
cised acts of ownership, but objecting to the title, was ordered
to pay in the purchase-money ; and slighter acts of ownership
were held sufficient, if subsequent to a discovery of an objec-
tion to the title.^ So, where the vendee has entered into pos-
session, if he wishes to rescind the contract, on the ground
that the vendor has not perfected his title, and executed a
conveyance within a reasonable time, or at the time speci-
fied, he must give up the possession.* So if a purchase, after
delivery of the abstract, on the face of which, part of the estate
appears to be subject to a right of sporting, not mentioned
in the particulars of sale, enters into possession, he waives
that objection ; notwithstanding a subsequent offer of com-
pensation, made by a clerk of the vendor's solicitor, without
express authority.^
37. Conditions of sale stipulated, that the sale should be
completed on a certain day ; that objections to the title, not
1 Roach V. Rutherford, 4 Desaus. ' Dixon v. Astley, 1 Mer. 133.
126 ; Fludyer v. Cocker, 12 Ves. 27. * More v. Sniedburgh, 8 Paige, 600.
2 Ramsay v. BraUsford, 2 Desaus. ^ Burnell v. Brown, 1 Jac. & Walk.
582. 168.
CH. XII.] TITLE OF THE VENDOR, 225
made within twenty-one days from delivery of the abstract,
should be considered as waived ; and that, if the purchaser
should not comply with the conditions, his deposit should
be forfeited, and the vendor at liberty to resell. The pur-
chaser did not deliver his objections, until several weeks after
the twenty-one days, and after the day appointed for com-
pleting the purchase ; the vendor's soUcitoi, however, received
them, and entered into a long correspondence with the pur-
chaser respecting them, but without coming to a satisfactory
conclusion. Finally, the vendor resold the property, at a
less price, notwithstanding the purchaser's protest, and gave
notice of his intention to file a bill to enforce the contract.
About six months afterwards he filed his bill against the
vendor, the auctioneer, and the second purchaser, to whom
he had some months before given notice of his prior contract.
Held, the conditions had been waived by the vendor's solici-
tor, and the Court decreed a specific performance by the
vendor, with a reference to the master as to title ; dismissed
the bill, with costs, as against the auctioneer, who denied
that he had ever intended to part with the deposit, and with-
out costs as against the second purchaser, who claimed the
benefit of his contract, if the Court should think that the
plaintiff's ought not to be performed.^
38. The defendant, a purchaser, was eight years in posses-
sion of premises, to which the vendor was unable to make a
good title ; and refused either to abandon the agreement, or
accept such title as the vendor could give, but paid no pur-
chase money or rent. Upon a bill filed by the vendor for
ralief, the Court directed the agreement to be delivered up
t^e cancelled, and the rents and profits accounted for, and
ordered the purchaser to pay the costs.^
39. Written agreement to buy a farm at $60 per acre ;
stating that it contained ninety-six acres, more or less. The
subsequent deed used the same terms, and security was
given for the price at $60 for ninety-six acres. There were
' Cutts V. Thodey, 13 Sim. 206. ^ Kingw. King, 1 Myl. SK. 442.
226 LAW OF VENDORS AND PURCHASBES. [CH. XII.
in fact but eighty-six acres. Held, the whole price might be
recovered.^
40. Agreement to sell the two leases and good-will in
trade of a public-house and shop adjoining, for the sum of
£4,260, " as he holds the same," for terms of twenty-eight
years from midsummer next ensuing, at the annual rent
therein mentioned!" The purchaser agreed to accept a proper
assignment of the said leases and premises as above de-
scribed, without requiring the lessor's title ; and, upon pay-
ment of said sum, the vendor agreed to execute an effectual
assignment of the leases and deliver possession of all the
said premises. Held, the vendee was bound to purchase the
two leases, without inquiring into the title of the lessor, and
could not refuse to complete his purchase, on account of an
objection to that title.^
41. A condition of sale was, that, in case the purchaser
should raise objections to the title, which the vendor should
not be able or willing to remove, the vendor might rescind'
the contract, on notice, and repayment of the deposit ; objec-
tions, not delivered within fourteen days after delivery of the
abstract, to be treated as waived, in which respect time was
to be essential. The purchaser returned the abstract, with
queries, within the fourteen days, and the vendor answered
the queries ; the purchaser on the same day objected to the
answers; the correspondence on the subject continued for
several weeks, and then the vendor gave notice that he
rescinded the contract. Held, the continuance of the treaty
for completion of the title, after the first objection of the pur-
chaser, was a waiver of the condition as to the rescindiqn;
that such a condition of sale ought to be discouraged, and
not to receive a construction oppressive on the purchaser ;
that the vendor's right to rescind must be coextensive with
the purchaser's right to object to the title, under the same
condition ; that the vendor was only bound bond fide to
Taure v. Martin, 3 Seld. 210. " = Spratt v. JefiFery, 10 Barn. & Cress.
249.
CH. XII.] TITLE OF THE VENDOR. 227
deliver an abstract of such title as he had at the time of
delivering it; and, so long as the condition remained in force,
was not bound to deliver any supplemental abstract of title
afterwards acquired. It was doubted, whether the benefit of
the condition would not in equity be forfeited, by a vendor
who designedly delivered an imperfect abstract of the title
which he had at the time of delivering Jt.^ So, where land
had been purchased under a decree in a creditor's suit, the
Court, on the application of a creditor, who had for four years
acquiesced in the purchase, and who was not supported in
his objections by the other creditors, refused to set aside the
purchase, on the ground of misdescription of the land in the
particulars of sale.^ So specific performance will be decreed
against a purchaser, without reference as to the title, upon
possession, and no objection made to the abstract? So, upon
possession, a correspondence, and no objection to the title
till two years after delivery of the abstract.* So a purchaser,
after long possession and vexatious objections to complete
the purchase, was held to have waived his right to an inves-
tigation of the title, and decreed to perform the agreement
specifically, and to pay interest at £4 per cent, on the unpaid
purchase-money from the time of taking possession, and the
costs.s
42. The rule above stated, however, wiU not be adopted
in all cases. Thus, a purchaser was held entitled to an in-
vestigation of the title, notwithstanding possession taken,
acts of ownership incident to possession, and preparation of
a conveyance.^ So, where a devisee of real estate, subject to
debts and legacies, had contracted to sell the estate, in order
to raise money to pay the debts ; and afterwards a bill was
filed against her by the legatees, for the administration of
the testator's estates ; and the purchaser consented to go
before the master, upon a reference as to the title in that
1 Morley v. Cook, 2 Hare, 106. * Margravine, &c. v. Noel, 1 Madd.
2 Price V. North, 2 Y. & Coll. 620. 310.
" Fleetwood v. Green, 15 Ves. 594. ^ Hall v. Laver, 3 You. & Coll. 191.
^ Burroughs v. Oakly, 3 Swanst. 159.
228 LAW OP VENDORS AND PURCHASERS. [CH. XII.
suit ; held, he was not thereby bound to take an equitable
title, but might insist on having the same title, as he might
have required, in a suit for specific performance ; and that, as
two coitimissions of bankrupt had issued against the devisee
before the contract, though neither of them was proceeded in,
he was not bound to accept the title.^ So, where the con-
ditions of sale provided, that all objections to the title disclosed
by the abstract, not taken within a certain time after its
delivery, should be deemed to be waived ; held, the time for
objecting was not to be computed from the delivery of an
imperfect abstract ; and an objection might still be taken,
which arose out of evidence called for before the expiration
of the time fixed.^ So, in case of sale under a decree, the
abstract stated, that the person, at whose death the sale was
to be made, proved the will of the testator ; but it did not state
the pleading in the cause, or whether that person was living
or dead. Held, this was not a sufficiently distinct intimation
to the purchaser, that the time of sale had, without any suffi-
cient ground, been anticipated.^ So, a contract of sale de-
scribed the property purchased as " The cottage and paddock
comprising 1 a. 2 r. 8 p. situate at, &c., described in the par-
ticulars a^ lot 1." The description of lot 1 in the particulars
was, " The property comprises 1 a. 2 r. 8 p. situate, &c., con-
sisting of a cottage and paddock in the occupation of Mr.
P." By the contract of sale, the title and conveyance were
to be completed according to the conditions of sale. One
of these was, " The property comprised in the particulars is
presumed to be correctly described, and the quantity of the
land shall be taken as stated, whether more or less (although
the title-deeds state such quantity to be less) without any
compensation on either side. And no other evidence of
identity shall be required than that furnished by the title-
deeds, and the statements therein shall be deemed conclusive
evidence of the identity of the property." On default, the
' Cann u. Cann, 1 Sim. & Stn. 284. ' Blacklow v. Laws, 2 Hare, 40.
2 Hobson V. Bell, 2 Beav. 17.
CH. XII.] TITLE OF THE VENDOR. 229
deposit-money was to be forfeited. The vendor delivered
an abstract of title to 3 r. 22 p. only. Held, this did not,
under the circumstances, authorize the purchaser to contend,
that the title had not been made according to the conditions,
and that he was bound to complete.^ So, A. bought land of
B., and gave his bond for the purchase-money, conditioned
to be paid on B.'s making a clear title in fee-simple. B.'s
agent delivered to A. a deed, on its face in fee-simple, but
there were incumbrances on the land unknown to A. Held,
A. might waive his right to a deed in fee, and accept a title
for a less interest ; that whether there was such a waiver,
was a question for the Court ; that there must be unequivo-
cal proof of it ; and the record of the judgment lien was
not notice to A.^
43. W. T., being possessed of certain copyhold premises,
mortgaged the same to P., and, by the indenture of mort-
gage, covenanted to surrender them into the hands of the
dean and chapter of W., the lords of the manor, to the use
of the defendant, who was to be a trustee to sell upon non-
payment of the mortgage-money. W. T. made no surren-
der, but died, after devising all his real property to certain
trustees. Subsequently, the lords of the manor, at the nom-
ination of the defendant, granted the property to certain
persons upon the above trusts, &c. W. T., in his life, sur-
rendered other property to the lords of the manor, by way of
mortgage to C, in consideration of a loan of £100, and, by
an indenture of even date, covenanted, amongst other things,
to repay the money borrowed, and gave the mortgagee a
power of sale, upon non-payment. The defendant sold the
whole property to the plaintiff, under the following con-
ditions : that he should deduce a good title to the premises
for the lives by which they were held under the dean and
chapter of W., but that no earlier or other title should be
deduced, or any deed or document produced, anterior to the
last copy of the Court-roU, by which the premises were
1 NichoU V. Chambers, 8 Eng. Law ^ Minor v. Edwards, 12 Mis. 137.
& Eq.423.
20
230 LAW OF VENDOKS AND PURCHASERS. [CH. XII.
granted. Held, the defendant showed no title in himself, as
no surrender of the premises had been made to his use by
W. T., and the vendee was not precluded by the conditions
from making this objection to the title, as it appeared on
the face of the abstract delivered.^
44. The objection to a title is not waived by the premature
conditional approbation of the purchaser's counsel ; but the
expense of making out the title before this objection was
taken shall be repaid.^
45. The purchaser's solicitor wrote to the vendor's solici-
tors, that, unless certain proof of title were adduced, the
purchase must go off. Held, the purchaser might still main-
tain an action for his expenses in investigating the title.^
1 Sellick P.Trevor, 11 Mees. & Wels. ^ Dererell v. Bolton, 18 Ves. 505.
722. » Hall «. Betty, 5 Scott, N. K. 508.
CH. Xin.] TITLE TO THE PROPERTY SOLD, ETC.
231
CHAPTER XIII.
TITLE TO THE PROPERTY SOLD. PARTIAL FAILURE OF TITLE.
1. Partial defect of title, what consti-
tutes.
2. When it is no ground of objection
by the vendee.
10. Compensation for partial failure of
title.
14. When ground for rescinding the
sale.
26. Whether the vendor may object
on the ground of deficiency or excess in
the property.
1. Questions often arise, as to the effect of a partial failure
of title to the property sold. Such failure may apply to the
interest of the vendor in the estate itself, as where he owns
less than a fee simple, or a fee simple subject to incumbrance ;
or to the amornit or quantity of the property, as where only a
part of the lands sold belongs to him. And it may depend
upon different combinations of circumstances, whether the
purchaser shall be allowed to make any objection on these
grounds ; whether he shall be restricted to a proportional de-
duction from the agreed price ; or whether he may at his
election wholly rescind the bargain.
2. As has been seen, (Chap. 12,) Chancery wiU not decree
specific performance of a contract to purchase, where the ven-
dor is unable to give a valid title, unless it appears firom the
contract, that the understanding of the parties was, that the
purchaser should take the risk of the title.^ But specific
performance will be decreed, when the vendor is able to per-
form his agreement in substa/nce, although there is a trifling
variation in the description, or a trifling incumbrance on the
title, which cannot be removed, but which is a proper subject
of compensation. Thus it is no valid objection to the title,
that the conveyance, under which the vendor holds, contains
, 1 Winne v. Keynolds, 6 Paige, 407.
232 LAW OF VENDORS AND PTJRCHASBES. [CH. Xm.
a reservation of mines and minerals and water privileges, if
there is no reason to suppose they exist. So, the reservation
of a pepper-corn, or any other rent which is merely nominal,
is not a valid objection to the title of the vendor, more
especially if known to the vendee ; and specific performance
will be decreed without compensation, although by mistake
of the scrivener they were not excepted in the written con-
tract of sale. But a restriction upon the power of alienation,
or the reservation to the original owner of a preemptive right
of purchase for a certain time, is an incumbrance, which
diminishes the value of the title. And a purchaser without
notice will not be compelled to take the premises, subject
thereto, without-a proper allowance.
3. The vendor of a farm in the manor of Rensselaerwick,
held under a lease at a nominal rent of a pound of wheat,
with a reservation of mines and minerals, and water priv-
ileges, and a preemptive right of purchase-; covenanted to
give the purchaser a good and lawful deed. Held, the rent
was no objection to the. title ; and, there being no mines or
minerals or water privileges on the premises, and the lessor
having agreed to relinquish his preemptive right, of which
the vendee had notice at the time of sale, a specific perform-
ance was decreed.'
4. Agreement, to sell and assign " the unexpired term of
eight years' lease and good-will " of a public-house. Held,
the purchaser could not refuse to perform the agreement, on the
ground that, when it was entered into, there were only seven
years and seven months of the term unexpired.^ So a pur-
chaser is not entitled to abatement for a deficiency in quan-
tity, where the particulars describe the estate as containing
by estimation a certain number of acres, be the same more
or less.3 More especially where the purchase is made by
metes and bounds, estimated to contain a specific quantity,
or " for more or less," and a gross sum to be paid for the
1 Winne v. Eeynolds, 6 Paige, 407. *• Winch v. Winchester, I Veaz. & B.
2 Belworth v. Hassell, 4 Camp. Ca. 375.
140. -
CH. XIII.] TITLE TO THE PROPERTY SOLD, ETC. 233
entire tract ; and the land, at the time of purchase, is of equal
value to the price paid ; — unless there is some misrepresenta-
tion or concealment.! go^ where land is sold at auction in
separate lots, and several are purchased by one person, this is
not an entire contract ; and, though the vendor cannot give a
title as to all the lots, the vendee cannot rescind the agreement
in toto, but must take a conveyance of the rest.^ (See p. 243.)
So the vendor of a large tract, consisting of various parcels, as
surveyed by the government, at a gross price, and not by
the acre ; and guilty of no fraudulent concealment ; is not
liable for any deficiency of quantity .^ So, where a specified
tract is sold for a sum in gross, the boundaries control the
description of the quantity; and neither party can have a
remedy against the other, for an excess or deficiency in the
quantity ; unless it is so great as to furnish evidence of fraud
or misrepresentation. Otherwise, where the mistake is in
the boundaries, and not in the quantity. So where the defi-
ciency is not in the thing described, but in the ability of the
defendant to convey the thing described.*
5. A. sold to B. three quarter sections of land for $1,000
each, and gave him a title-bond for two hundred and eighty
acres, and a deed for the balance. B. gave, for the price,
three notes, for $1,000 each, payable at different times ; the
two first absolutely, and the last on condition of receiving a
full title. A. afterwards conveyed one hundred and twenty
acres, transferred all the notes for value, became insolvent,
and left the State without making or being able to inake
title to the remaining quarter section. Held, the condition
of the last note operated as an indemnity against any dam-
age arising to B. from not receiving such title ; and, as the
title was not proved defective, that the bond fide payment by
B. of the note first due, and afterwards of the conditional
note, with notice of the transfer of the second note, did not
entitle him to relief in equity against the latter note.^
1 Ketchum v. Stout, 20 Ohio, 453. « Terrell v. Kirksey, 14 Ala. 209.
" Van Eps v. Schenectady, 12 Johns. * Voorhees v. De Meyer, 2 Barb. 37.
436. ' Graham v. Nesmith, 18 Ala. 763.
20*
234 LAW OF VENDORS AND PURCHASERS. [CH. XHI.
6. Copyhold and freehold lands, lying intermixed and un-
distinguishable, were sold, with the timber. The vendor was
not to be bound to distinguish the freeholds from the copy-
holds, and the timber was to be taken at a specified valuation
of the timber on each lot. A deposit was paid of £10 per
cent. It was also stipulated, that, in case of delay in the
completion of the purchase, interest, at £5 per cent., should
be payable on the whole price. Held, an entire contract, —
not two contracts, one for the sale of land, and another of
timber.! Also, that the purchaser was not entitled to any
abatement, though he could not cut a single tree, not being
able to distinguish any one tree as standing on freehold
ground. Also, that in case of one lot sold under the same
conditions and particiilars, and which consisted entirely of
copyholds, the purchaser was equally bound to pay the stip-
ulated price for the timber, although he could not cut any
of it.2
7. An estate, consisting of fen land, and so described in
the particular of sale, was charged by a local but public act
of Parliament with drainage and embanking taxes, of which
the purchaser had no express notice. Held, that he was not
entitled to a compensation for those taxes.^ So an injunction
was granted, to stay an action against the auctioneer for the
•deposit, although the estate sold was represented as freehold,
and turned out to be almost all leasehold, and although there
had been great delay in making out the plaintiff's title.*
8. A piece of ground being sold at auction, according to
.certain metes and bounds, which were shown to the pur-
chaser before his purchase, be the same more or less ; he is
not entitled to compensation for a deficiency ; although the
previous advertisement described the tenement as contain-
ing more than the actual quantity. So, notwithstanding a
subsequent agreement under seal, (written by the purchaser,
and signed by the vendor, for the purpose of binding the
1 Crosse v. Lawrence, 10 Eng. Law & ' Barrandos v. Archer, 2 Simons, 433.
Eq. R. 7. * Fordyce v. Ford, 4 Bro. C. C. 494.
" Ibid. But see Drewe v. Corp, 9 Ves. 368.
CH. Xin.] TITLE TO THE PROPERTY SOLD, ETC. 235
vendor to make a title,) in which the terms of sale are referred
to, but the quantity mentioned in the advertisement is speci-
fied, omitting the words " more or less ; " the veridor may
still prove the terms of sale by parol testimony.^
9. Trustees for sale of a manor described it in advertise-
ments, and particulars and conditions of sale, as a manor in
which the fines were arbitrary ; adding, that the clear profits,
on an average of the last eight years, had been ,£150 per
year ; and it was one of the conditions of sale, that if there
should be any error or misstatement in the particulars, the
vendors or purchaser, as the case might happen, should pay or
allow a proportionate value, according to the average of the
whole purchase-money, as a compensation either way. After
the sale, it was found that by the custom of the manor, arbi-
trary fines were payable only on alienation, and that on the
death of a tenant, his customary heir paid, upon admittance,
a small fixed sum, and the widow was admitted to her free
bench without any payment. It was also found that the
clear profits exceeded £200 a year. Held, (on a bill by the
purchaser for specific performance, with compensation in
respect of the misstatement as to the fines,) he could not
claim compensation, inasmuch as the annual profits, which
constituted the substantial value, far exceeded the amount
stated.^
10. Although a court of equity does not ordinarily exer-
cise its jurisdiction by awarding damages, yet in the class of
cases now under consideration, for the purpose of effecting
substantial justice between the parties, it sometimes departs
from its usual course of procedure, and, instead of rescind-
ing a contract for partial failure to fulfil it, seeks to indem-
nify the purchaser by decreeing a fair and equitable compen-
sation for his loss. It has been said, the plaintiff in a bill for
specific performance is not entitled, generally, to damages
for non-performance, to be ascertained by an issue, or a refer-
1 Grantland v. Wight, 2 Munf. 179. ^ white v. Caddon, 8 Clark & Fin-
nelly, 766.
236 LAW OF VENDORS AND PUECHASEES. [CH. XIH.
ence to the master.^ But the prevailing doctrine now is,
that specific performance will be decreed upon the princi-
ple of compensation and indemnity, where there is no subst(m-
tial deviation from the contract.^ Thus a small incumbrance,
which may be the subject of compensation, is no objection
to a specific performance.^ So quit rents, being incidents of
tenure, are proper subjects of compensation. It has been
doubted whether the same principle applies to rent charges,
which are not incidents of tenure ; though the Court has
allowed them, when small, to be subjects of compensation.*
So, if there be a small deficiency in the land, a reference
may be made to the master to ascertain it, and report the
value.^ So where the objection by a purchaser applies only
to a small part of the estate.^ Thus, where a tenant in pos-
session purchased the property, which was represented to be
forty-six feet in depth, but turned out to be thirty-three
only : Held, he was entitled to an abatement.'' So where
the title is good except as to a small portion, the loss of
which would not materially affect the value of the rest ;
equity wiU not rescind the' contract, but wiU credit upon the
bonds the value of such portion.^ So a purchaser of two lots
cannot refuse to take one, because a good title is not shown
to the other.^ So the general rule of specific performance,
that the purchaser shall have what the vendor can give, with
an abatement of price for deficiency in the quantity, was en-
forced against trustees for infants, upon the mere mistake of
their agent, vnthout fraud, &c. ; but the relief adapted to the
justice of the case, viz : the purchase being of wood upon a
gross valuation, without regard to the quantity of land, an
abatement for a deficiency of quantity, from erroneously in-
serting the hedges and fences not included in the purchase,
1 Todd V. Gee, 17 Ves. 273. ^ M'Queen v. Farquhar, 11 Ves. 467.
2 Horniblow v. Shirley, 13 Ves. 81 ; ' King v. Wilson, 6 Beav. 124.
Dyer v. Hargrave, 10 Ves. 505. * Tomlinson v. Savage, 6 Ired. Eq.
8 Guest V. Homfray, 5 Ves. 818. 430.
* Esdaile v. Stephenson, 1 Sim. & Stu. ^ Lewin v. Guest, 1 Enss. 325. See
122. Roots V. Dormer, 4 Bam. & Ad. 77.
6 Cannon v. Mitchell, 2 Desaus. 320.
CH. XIII.] TITLE TO THE PROPERTY SOLD, ETC. 237
was directed with reference to land merely, not wood-land.^
So, where there was a defect of title to a small piece of land,
over which lay the approach to a house and other land, the
main subject of purchase ; and the contract provided for com-
pensation, in case of any omission or mistake in the descrip-
tion ; held matter of compensation.^ So, in case of a con-
tract to purchase lots, to two of which a title could not be
made, and the others having deteriorated in value ; if the
value of the remaining lots is not affected by that deteriora-
tion, a specific performance shall be decreed as to all but
two.^ So where there was an auction sale of lots, under
condition that they were subject to the perpetual payment of
,£120 a year to the curate of N., but that this, and the per-
petual annual payment of £20 to the hospital of C, were in
future to be charged upon and paid by the purchaser of lot 1
only ; held, the purchasers of the other lots were entitled,
not to an absolute discharge, but to an indemnity from the
purchaser of lot 1.* So where it is provided by the condi-
tions of sale by auction, that, if any mistake be made in the
description of the premises, or any other material error shall
appear in the particulars of sale, such mistake or error shall
not annul the sale, but a compensation shall be made ; the
vendee is not released by a misdescription in the particulars,
obvious, on inspection of the premises, unless wilful and de-
signed.^ So an advertisement described the estate as all
freehold, though a small part was held at will : after execu-
tion of articles, a treaty for an exchange of that part took
place ; pending which, at the time appointed for completing
the purchase, the purchaser took possession forcibly ; but
proceeded in the treaty afterwards, till he finally refused to
agree to the purchase. On a bill of the vendor, the purchase-
money was decreed to be paid, with four per cent, from the
1 Hill V. Buckley, 17 Ves. 394. * Cassamaior v. Strode, 1 Wils. Cha.
2 Freer v. Hess, 17 Eng. Law & Eq. Ca. 428 ; 2 Swanst. 347.
154. ^ Wright V. Wilson, 1 Moo. & Rob.
8 Poole u. Shergold, 2 Bro. C. C. 1 1 8 ; 207 .
1 Cox, 273.
238 LAW OF VENDOKS AND PUKCHASERS. [CH. XIII.
time it ought to be paid ; but an inquiry was directed, what
ought to have been the compensation at that time, that, with
the outgoing, to be deducted.^ So it has been held, that where
part of the premises are subject to tithes, though represented
as tithe-free ; the purchaser, if he chooses to take the pur-
chase, has a right to compensation, but not to compel the
vendor to purchase the tithes.^ In another case it is de-
cided, that the purchaser of an estate, sold as tithe-free, can-
not be compelled to take it subject to tithe, on terms of com-
pensation ; but, an estate of an hundred and forty acres being
sold under a decree, and the particulars stating about thirty-
two acres to be tithe-free, and no evidence of exemption hav-
ing been produced on the reference of the title, the master
was directed to certify the proper amount of compensation.^ (a)
So specific performance of a sale was decreed, with compensa-
tion, notwithstanding a variance from the description, though
a minute examination might have discovered the defects ; as
in the state of the house and the cultivation of the land.
Otherwise as to a variance from the description, as lying
within a ring-fence ; this being an object of sense ; and, upon
the evidence, the purchaser being apprised of it.* So a res-
ervation of salt-works, np-ines, &c., in 1704, with a right of
entry, though there was no instance of any claim, and the
title had been transferred in 1761, without such reservation,
upon the usual covenants ; was held an objection, giving a
right to compensation ; the purchaser not insisting upon it
further.^
1 Calcraft v. Eoebnck, 1 Ves. 221. ' " Dyer v. Hargrave, 10 Ves. 505.
2 Todd V. Gee, 17 Ves. 273. » Seaman v. Vawdrey, 16 Ves. 390.
3 Binks V. Rokeby, 12 Swanst. 226.
(a) Even where the principal subject af contract was all the corn and
hay tithes of a parish, and half of the latter was allotted to the Yicar, and
the other half commuted for a customary payment ; the nature of that pay-
ment, the extent of meadow, and the possible conversion from arable, not
distinctly appearing, the injunction against recovering the deposit was con-
tinued after answer. Drewe v. Hanson, 6 Ves. 676,
CH. XIII.] TITLE TO THE PEOPERTY SOLD, ETC. 239
11. By the particulars of a sale by auction, at which the
defendant was declared the purchaser of lots 1, 2, 3, and 4 ;
lot 1 was described as comprising seventy acres, twenty-four
perches, more or less, and lots 2, 3, and 4, as comprising to-
gether three hundred and twenty-one acres, two roods, thirty
perches, more or less ; and by the conditions of sale it was
provided, amongst other things, that any mistake or error in
the description of the property should not annul the sale, but
should be the subject of compensation, to be given or taken,
as the case might require. A map or plan was annexed to
the particulars, in which the different lots were distinguished
by different colors. After the sale it was found, that lot 1
comprised eighty-nine acres, and twenty-nine perches, and
lots 2, 3, and 4, only three hundred and ten acres, three roods,
and eighteen perches. The error had arisen from the adop-
tion of a former surveyor's report. Held, the purchaser was
bound to make compensation to the vendors, on account of
lot 1, and entitled to receive compensation on account of
lots 2, 3, and 4.i
12. A vendor agreed to seU and convey " lots Nos. 9 and
11 in No. 20 in great lot No. 34, one hundred and eighty-
seven and a half acres for $750 ; " supposing that lot No. 11
contained one hundred and forty-three and a half acres ; but
through an error of the surveyor, who subdivided great lot
No. 34, in extending his survey beyond the north boundary
of that lot, whereby he included with lot No. 11 of his sub-
division forty-three and a half acres of a gore lying north of
that lot ; lot No. 11 really contained but one hundred acres,
and the quantity embraced in lots 9 and 11 fell short of the
agreement forty-three and a half acres ; by reason of which
error, the vendor was unable to make a good title to the
whole quantity of land. On a bill by the assignees of the
vendor for specific performance ; held, that it was a case of
mutual mistake, in relation to the quantity of land contained
in the two lots ; and a decree was made, directing a specific
1 Leslie v. Tompson, 5 Eng. Law & Eq. B. 166.
240 LAW OF VENDORS AND PURCHASERS. [CH. XIII,
performance, by the vendor, so far as he was able to perform,
and providing for an abatement from the purchase-money
on account of the deficiency.^
13. A contract having been made for sale of an estate, it
afterwards appeared that there were several out-goings from
the estate, which were not disclosed : yet, being matters
which lie in compensation, held, the contract should be exe-
cuted, with an allowance.^ So compensation was decreed
for the dry rot in a house and premises, upon representations
of the vendor to the purchaser as to the state of repairs ; he
relying upon such representations, and stating to the vendor
that he did not employ a surveyor, for that reason.^ So
where a tract of land is sold, as containing a given quantity
of acres, but really includes a less quantity ; a deduction will
be made ; unless the deficiency be such, as would have pre-
vented the contract, if known at the time of the purchase;
that is, the deficiency appearing to be in that part which
was the chief inducement to purchase.*
14. Although the rule above stated seems to be well
established by the weight of authority ; it has been held in
some cases, that equity will not compel a specific perform-
ance, unless the vendor can make a good title to all the land
.sold.^ A purchaser is said to be entitled to the specific real
estate which he contracts for, and not to be compellable by
a Court of Chancery to accept a part only, with a compen-
sation for the deficiency.^ As, for instance, to take six un-
divided seventh parts of an estate, when he has contracted
for the entirety.^ Or, it seems, nine sixteenths instead of
the entirety ; especially where there is a lien on the estate
for a debt nearly equal to the whole of the purchase-money.*
.So, in case of a purchase under a decree of two sevenths of
.an estate in one lot ; there being a good title to only one one
1 Voorhees v. DeMeyer, 2 Barb. 37. 275 ; Knley v. Lynch, 2 Bibb, 566 ;
2 Howland v. Norris, 1 Cox, 59. Tyree v. Williams, 3 Bibb, 366.
2 Grant v. Munt, Coop. 173. n Cunningham v. Sharp, U Humph.
* Anderson v. Fonlke, 2 HaiT. & G. 116.
346 ; Kbtchum v. Stout, 20 Ohio, 453. ' Dalby v. PuUen, 3 Sim. 29.
s Hepburn v. Auld, 5 Cranch, 262, s Wheatley v. Slade. 4 Sim. 126.
CH. Xni.] TITLE TO THE PROPERTY SOLD, ETC. 241
seventh. Held, the purchaser was not bound.' So, where a
contract was made to convey ten lots of land, and a tender
of a deed for eight whole lots, and an equal undivided half
of four other lots ; held, not a performance.^ So, although
admitted to be generally, though not universally true, that a
purchaser may take what he can get, with compensation for
what he cannot have ; it has been questioned whether that
is ever done, without an express undertaking on his part, to
do what the Court shall order.^ So, it is said, the doctrine
of compensation has been carried too far. It is not to pre-
vail, unless the party will substantially have that, for which
he contracted.* So, that small mistakes or inaccuracies in a
contract are the subject of compensation ; but that has been
extended to a great length.^
15. In some cases, as has been seen, the Courts have laid
down certain principles, upon which they will proceed, in
determining whether a purchaser is entitled to a partial per-
formance of the contract, with compensation for the de-
ficiency, where the vendor has only a limited interest in the
estate sold.^ In other cases, the Courts strongly set forth the
difficulty of decreeing a partial performance in such case.''
It is held, however, that the Court wiU not upon motion
determine, whether several lots, forming part of one estate
and bought at the same sale by one purchaser, are or are
not so intimately connected in use and enjoyment, that the
failure of title as to one will furnish a defence against specific
performance as to the rest. Such an objection raises a ques-
tion of facts, which ought either to be put in issue upon the
pleadings, or be the subject of a special reference to the
master.^ So, it is held, that the Court must be affirmatively
and clearly satisfied, that compensation will effect substan-
tial justice, before making a decree therefor. Thus, a bill
1 Koffey«. Shallcross, 4 Madd. 227. ^ Mortlock v. Buller, 10 Ves. 292.
2 Roy V. Willink, 4 Sandf. Ch. 525. « Thomas v. Dering, 1 Kee. 729.
8 Patoii V. Rogers, 1 Ves. & Beam. ' Graham v. Oliver, 3 Beav. 124.
351 ; Halsey v. Grant, 13 Ves. 75. ' Cassamajor v. Strode, 2 Myl.
1 Alley V. Deschamps, 13 Ves. 225. Kee. 724.
21
242 LAW OF VENDORS AND PUEOHASBRS. [CH. XIII.
was filed for specific performance of a contract for an ex-
change of lands, which the defendant had refused to perform,
on the ground of want of title to a small proportion of the
land agreed to be conveyed to him. The plaintiff tenders a
fuU and adequate compensation, to be ascertained by refer-
ence to the master. General demurrer, for want of equity.
Demurrer allowed, because the bill did not clearly show,
that the subject-matter of the suit was one palpably and
obviously matter for compensation, and capable of being
compensated.^ So, where a party, acting as the absolute
owner of property, and being absolute owner of part, and
of the other part only tenant for life, with a power of sale,
at his request and by his direction, vested in trustees, con-
tracted to sell the whole ; upon a bill by the purchaser for
specific performance, an inquiry was directed, '' whether the
defendant could make a good title, or could, by application
to the trustees, procure a good title to be made." ^
16. In conformity with these views, it has been held that
specific performance will not be decreed upon the principle
of compensation and indemnity, in case of misdescription ,
of the quantity of land, in regard to the acres being statute
acres or customary. This is not matter of compensation,
but a ground for setting aside the sale.^ So, no compensa-
tion wiU be ordered in a case of great intentional misrepre-
sentation ; although so provided by the conditions of sale, in
case of " any error or mistatement " in the particulars.*
17. By particulars of sale, lot 13 was described as build-
ing ground, and the adjoining lot 12 as a villa, subject to
liberty for the purchaser of lot 1 to come on the premises, to
repair drains, &c., as reserved in lot 7. The reservation in
lot 7 referred to a lease, which gave the occupier of that and
several adjoining lots, composing a row of houses, a carriage
way in common, in front of the lots, and a footway at the
back, and also a footway over lot 13. The particulars con-
1 Bowyer v. Bright, 13 Price, 698. = Price v. North, 2 Y. & Coll. 620.
2 Graham u. Oliver, 3 Bear. 124. * Stewart v. Attiston, 1 Meri. 26.
CH. Xin.] TITLE TO THE PROPERTY SOLD, ETC. 243
tained plans, showing the carriage-way and the footway at
the back, but not that over lot 13. But they stated that the
lease of lot 7 might be seen at the vendor's office, and would
be produced at the sale. Plaintiff having purchased lots 12
and 13 by one contract, in ignorance of the footway over
lot 13 ; held, he might rescind the contract.^
18. A. paid a deposit upon a contract for the purchase of
the lease, &c., of a public house. It being afterwards dis-
covered that the house was comprised with another in an
original lease, under which the lessor had a right to reenter
for breach of covenants, in respect of either house ; held,
that A was not bound to accept the title with an indemnity,
but might recover back the deposit and expenses of investi-
gating the title.2
19. So the purchase of several lots at an auction by one
person, is an entire contract; especially if adjoining, and
more conveniently occupied together ; and, if the seller fails
in making a title to any one of them, the purchaser may
rescind for the whole.^ (See p. 233.) So, it seems, where
one person is reported purchaser of several lots before the
master, if the biddings are opened as to one, he shall have
an option to open them as to all.* So, the defendant having
sold and conveyed land to the plaintiff, suggesting that he
had a title, but in fact not being entitled to a part, the same
being an encroachment firom a common ; though no eviction
has happened or been threatened, a bill lies to set aside the
conveyance, and for a return of the purchase-money and aU
expenses.^ So, specific performance of a purchase was re-
fused, no good title being made to ^ part of the estate,
which, though very small in proportion to the whole, was
essential to its enjoyment ; and the defendant, who was let
into possession, being afterwards turned out by the plaintiffs.^
20. So it has been held, that a purchaser cannot be com-
1 Dykes v. Blake, 4 Bing. N. C. 463. " Boyer v. Blackwell, 3 Anstr. 657.
2 Blake v. Phinn, 3 Mann. Grang. & * Edwards v. M'Leay, Coop. 318.
Scott, 976. « Knatchbull v. Grueber, 1 Madd.
8 Chambers v. Griffiths, 1 Esp. Ca. 153.
,149 ; Gibson v. Spurrier, Peake, 49.
244 ■ LAW OP VENDORS AND PURCHASERS. [CH. XlH,
pelled, upon the principle of compensation, to take, under a
contract for a freehold estate, a leasehold, though a very long
term.^ So, the Court refused to decree specific performance
of an agreement, made twelve years before the hearing, to
purchase the fee-simple of certain lands, and also the right
to impound the water of a river, and divert a stream from it,
because the vendor, though seised in fee of the lands, had
only a lease for ninety-nine years of the other subjects of
the contract, and had not, as against some of the proprietors
of land on the banks of the river, a right to. divert the water ;
and because the purchaser had entered into the contract, for
the purpose of erecting a manufactory to be wrought by the
water.^
21. Sale of a leasehold interest, described in the particulars
as held for a term of twenty-three years, at a rent of £55, _
and as comprising a yard. One of the conditions was, that,
if any mistake should be made in the description, or any
other error whatever should appear in the particulars of the
estate, such mistake or error should not annul or vitiate the
sale, but a compensation should be made, to be settled by
arbitration. The yard was not, in fact, comprehended in the
property held for the term at £55, but from year to year, at
an additional rent. It was also essential to the enjoyment of
the other property. It did not appear that the vendor knew
• of the defect. Held, this defect avoided the sale, and was
not a mistake to be compensated for, although, after the day
day named for completing the purchase, and before action
brought by the vendee, the vendor procured a lease of the
yard for the term to the vendee, and offered it to him.^
22. The particulars of sale of certain leasehold premises
in Covent Garden stated, that under the original lease " no
offensive trade was to be carried on, and that the premises
could not be let to a coffee-house keeper or working hatter."
1 Drewe v. Corp, 9 Ves. 368. But '^ Dobell v. Hutchinson, 3 Ad. & EU.
see ITordyce v. Ford, 4 Bro. 494. 355.
- Wright V. Howard, 11 Sim. & St.
190.
CH. Xni.] TITLE TO THE PROPEKTY SOLD, ETC. 245
The lease, in fact, prohibited the business of brewer, bakery
sugar-baker, vintner, victualler, butcher, tripe-seller, poultereif
fishmonger, cheese-seUer, fruiterer, herb-seller, coffee-house
keeper, working hatter, and many others, and the sale of
coals, potatoes, or any provisions. Held, the discrepancy
entitled a purchaser to rescind his contract."
23. A lessee's bill for specific performance was dismissed ;
his interest, described as fifty years, the residue of a term,
free from incumbrances, being a few years only of an old
term, and a reversionary term from another lessor ; and old
incumbrances not shown to be discharged.^
24. A contractor for the purchase of an estate in fee-
simple, in possession, free from incumbrances, died intestate,
before completion- of the contract. There proved to be an
outstanding lease, for life, at a low rent. A bill was filed by
the heir-at-law for specific performance, with an abatement
for the lease, and seeking to have the purchase-money paid
out of the personal assets of the purchaser. Held, the pur-
chaser could not have been compelled to perform the con-
tract, and the heir could not enforce it.^
25. Where, in articles of agreement under a penalty, there
are mutual covenants to do certain acts, and also a covenant
which goes to the whole consideration on each side ; to an
action for {he penalty, the defendant may plead in bar a
breach by the plaintiff of the covenant which goes to the
whole consideration. ■ Thus, an agreement for the sale of
lands provided, with penalty, that the seller should take in
part payment certain lands of the buyer, and that all timber
trees, then upon any of the estates, should be valued by
appraisers, and paid for by the respective purchasers at a
given time. To an action of debt by the seller for the
penalty, the buyer may plead that the plaintiff, before the
time, cut down trees, and thereby rendered himself unable
to perform the agreement.*
' Plight V. Booth, 1 Bing. N. C 370. * Duke of St. Albans v. Shore, 1
2 White V. Poljambe, 11 Ves. 337. H. Blackf. 270.
" Collier v. Jenkins, You. 295 ;
Tucker v. Woods, 12 Johns. 190.
21*
246 LAW OF VENDORS AND PURCHASERS. [OH. XIII,
^ 26. While the vendee may object to completion of the
*ale, on the ground of deficiency in the property sold ; the
question sometimes arises whether the vendor can raise a
similar objection, where the property claimed ejther falls
short of or e^cceeds that contracted for. Upon this subject
it has been held, that a vendor, representing and contracting
to sell the estate as his own, cannot object that he has only
a partial interest. The purchaser is entitled to as much as
he can have, and an abatement.^ So, defect of title to a
considerable part of the estate, though a good objection by
the purchaser to a specific performance, is not such by the
vendor?
27. But in the following case A. was beneficially entitled,
under his marriage settlement, to an estate for his Ufe, and
to the ultimate reversion in fee in default of issue male ;
and the trustees of the settlement had a power to sell, at his
request and by his direction. There being issue of the mar-
riage, A., acting as absolute owner, contracted to sell the
estate to B., but the trustees afterwards refused to concur in
the sale. Held, on a biU, the purchaser was not entitled to
have the contract performed to the extent of the vendor's
interest, by a conveyance of his life-estate and his ultimate
reversion.^
28. It has been held, that the vendor, as well as the
vendee, may have the benefit of the rule of compensation in
equity, where the property conveyed exceeds, instead of
falling short of, that contracted for. Thus, in King v.
Hamilton,* the Court, in giving their opinion, state the
case substantially as follows. BiU for specific performance.
The bill states, that there is a surplus of several hundred
acres, and by actual measurement it is found to be eight
hundred and seventy-six acres (the patent having been
granted for one thousand five hundred and thirty-thre e and
one third acres) beyond the quantity mentioned in the con-
tract. It is a fact of general notoriety, that the sujveys and
1 Mortlock V. Bnller, 10 Ves. 292. » Thomas v. Deering, 1 Kee. 729.
2 Western v. Russell, 3 Ves. &Beam. * 4 Pet. 311.
187.
CH. XIII.] TITLE TO THE PKOPERTY SOLD, ETC. 247
patents for lands, within the Virginia military district, con-
tain a greater quantity of land than is specified in the grants.
Parties, when purchasing land in that district, and referring
to the patent for a description, of course expect that the
quantity would exceed the specified number of acres. But
so large an excess can hardly be presumed to have been
within the expectation of either party. And, admitting that
a strict legal interpretation would entitle the purchaser to
the surplus, whatever it might be, it by no means follows,
that a Court of Chancery will in aU cases enforce specific
performance of such a contract. The powers of a Court of
Chancery to enforce specific execution are very valuable and
important ; for, in many eases, where the remedy at law for
damages is not lost, complete justice cannot be done without
a specific execution. And it has been almost as much a
matter of course for a Court of Equity to decree specific
execution of an unobjectionable contract for the purchase of
lands, as it is to give damages at law where an action liesd
But this power is to be exercised under the sound discretion
of the Court, with an eye to the substantial justice of the
case. If this large surplus should be taken as included in
the original purchase, it might well be considered a case
of gross inadequacy of price. The Court decreed a convey-
ance of the surplus, the vendee to pay for the same at the
average rate per acre, with interest, which the consideration-
money mentioned in the contract bore to the quantity of
land named.'
29. But where the plaintiff" brought a bUl in equity, sup-
posing that more lands passed by his deed than was intended;
the defendant being a purchaser upon valuable consideration,
held, the Court would give no relief.^
? See Cathcart v. Robinson, 5 Pet. ^^ Clifford v. Laughton, Toth. 83.
S. C. 264. fP
248 LAW OE VENDORS AND PURCHASERS. [CH. XIV.
CHAPTER XIV.
REFERENCE OE TITLE.
1 . Questions of title, when, and iiow referred. Forms of proceeding.
1. In suits relating to the sale and purchase of lands, more
especially where a bill is brought for specific performance,
and in case of any doubt or difficulty, Equity adopts the prac-
tice of a reference of the title, for the purpose of determining
upon its sufficiency, and making a return or report to the
Court.i Thus after an answer, submitting to perform the con-
tract, if a good title can be made, a reference wiU be directed
T5y decree, or by order on motion, whether a good title can be
made ; and whether it appears upon the abstract.^ So, on a
bill filed by a vendor for specffic performance, the pm-chaser
insisted that the contract had been abandoned ; but failing in
this defence, he was ordered to pay the costs up to the hear-
ing, and the usual reference was made as to title.^ But, if
the bill and answer clearly show that no title can be made ;
reference will not be ordered.* So, on the other hand, spe-
cific performance was decreed against a purchaser, without
reference as to the title ; upon possession, and no objection
made to the abstract.^ So, upon possession ; a correspon-
dence ; and no objection to the title till two years after the
abstract was delivered.^
2. When an inquiry as to title is directed, it is not neces-
sary to carry in a state offac^ but the master proceeds upon
1 M'Comb V. Wright, 4 Johns. Ch. ' Taylor v. Brown, 2 Beav. 180.
659. * Frost v. Branson, 6 Terg. 36.
2 Wright V. Bond, 1 1 Ves. 39 ; 2 Dan. ^ Fleetwood w.' Green, 15 Ves. 594.
Ch. Pr. 1462 ; Winterbottom v. Ingham, " Margravine, &c. v. Noel, 1 Madd.
9 Sim. 654. 310.
CH. XIV.] • BEFEEBNCE OF TITLE. 249
the abstract^ unless the purchaser insists upon production of
the title-deeds.^
3. As has been suggested, reference of title may be made
on motion. An order thus made ought to contain directions
for the production of deeds, &c., and for the examination of the
parties on oath.^ And the master, (under Lord Lyndhurst's
51st order,) has the same power to examine witnesses, as he
would have had if the reference had been made by decree.*
When reference is thus made, further directions may be
obtained by motion.^
4. In suits for specific performance, every thing connected
with the title may be the subject of the usual reference, upon
motion as to the title, and may be added, by way of inquiry,
to that reference ; but the Court will not allow inquiry as to
other matters, nor decide upon any matter of relief not ad-
mitted by the answer.^ The reference may inquire, whether
it appeared by the abstract in the pleadings mentioned, that
a good title could be made.'i' Upon motion for a reference,
of title, where performance is resisted on other grounds than
the title, the Court will determine by the answer whether
those grounds are substantial or frivolous.^ K substantial,
the motion will be denied.^ If not substantial, the Court
will order a reference ; as where the ground was, that the
time of possession had been made of the essence of the con-
tract, which, on examination, appeared not to be the case.i"
So, upon a bill filed by the vendor for specific performance,
it appeared that the defendant, in the course of correspon-
dence between the solicitors, and upon a case stated on his
part for the opinion of counsel, expressed himself wiUing to
accept the title, if a particular objection were removed. That
1 2 Dan. Ch. Pr. 1462. ' Jennings v. Hopton, 1 Madd. 211.
2 2 Dan. Ch. Pr. 1463 ; Poole v. Sher- ' Withy v. Cottle, Turn. & Rus. 78 ;
gold, 1 Cox, 160. Boye.5 v. Liddell, 1 You. & Col. 133.
8 Winterbottom v. Ingham, 9 Sim. ' Blyth v. Elmher.st, 1 Ves. & B. 1 ;
654. Morgan v. Shaw, 2 Mer. 138 ;, Gonpertz.
* WoodrofFe v. Titteijon, 8 Sim. 238. 12 Ves. 17 ; Paton v. Rogers, 1 Ves.&
6 Whitcomb v. Poley, 6 Madd. 3. B. 351.
" Bennett v. Rees, 1 Keen, 405 ; Moss i" Boehm v. Wood, 1 Jac. & W. 419.
V. Matthews, 3 Ves. 279.
250 LAW OP VENDORS AND PURCHASERS. [OH. XIV.
objection not being removed, the bill was filed. Held, the
reference to the master must be general, and not confined to
this objection.^
5. Somewhat contrary to the above practice, where a motion
was made, after bill filed, and before answer, for a reference
as to title ; the counsel for the defendant saying, there were
other matters in question besides the title ; the motion was
refused.^ So, where there was a further subject of dispute,
beyond the title, under a claim of compensation, reference
was refused with costs.^ So there will be no reference of
title, upon the question whether the estate was tithe-free,
having been sold as such.* So, where the purchaser, besides
objecting to the title, claimed compensation for defect of
quantity ; even though he submitted to complete his agree-
ment.^
6. If exceptions to the report of a good title are overruled,
other objections cannot be made ; otherwise, if exceptions
are allowed, and a new abstract delivered.^
7. Where the answer to a bill for specific performance
raises any other objection than defects in the title, on a mo-
tion for reference, after answer, it seems, the Court will not
inquire whether the objections be frivolous, but reserve the
matter to the hearing.'^
8. A bin prayed specific performance "if a good title could
be made." At the hearing it was declared, that the agree-
ment ought to be specifically performed, and referred to
the master to inquire, whether a good title could be made.
The master reported in the negative. The plaintiff, on fur-
ther directions, waived all objections to the title, and pro-
posed to take the property ; but the vendor objected. Held,
the plaintiff was entitled to a decree ; but, being aware, at
the first hearing, of the objections to the title, he ought to
pay the costs of the investigation in the master's office.^
1 Lestnrgeom v. Martin, 3 My. & Kee. * Lowe v. Manners, 1 Mer. 19.
255. ^ Brooke v. , i Madd. 212.
2 Matthews v. Dana, 3 Madd. 470. ' Withy u. Cottle, 1 Sim. & Stu. 174.
8 V. Skelton, 1 Ves. & Bea. 517. ^ Bennett v. Fowler, 2 Beav. 302.
" Wallinger v. Hilbert, 1 Mer. 104.
CH. XIV.] REFERENCE OF TITLE. 251
9. Injunction to restrain a purchaser from proceeding at
law, to recover part of the purchase-money paid by him in
advance, for want of title, and outstanding incumbrances.
Held, the Court would not make absolute the common order
nisi to dissolve the injunction, without the master's report
upon the title, although the objections were fully stated in
the defendant's answer.^
10. The Court will not, on motion, after an order for a
reference, the master having found that a good title can be
made, direct him to inquire when such title could first be made.
Such direction should be applied for at the hearing on the
merits.^ But, in case of a decree for reference upon the title,
the cause coming on for further directions, after a report
approving the title, the defendant was held entitled to an
inquiry, at what time a title could have been made.^ Bill
for specific performance, filed by the vendor. On a reference
of title, the master having reported that a good title could be
made, an order was passed, referring it back to him, to see
whether such title could have been made prior to the filing
of the bill.* But the inquiry, at what time a title could be
made, is a proper subject of further directions after the re-
port upon the title ; and not to be combined with the refer-
ence of title.*
11. A reference having been made as to title, on one mo-
tion, the party cannot afterwards, by another motion, have a
reference as to the delivery of the abstract.^
12. Bill for specific performance, against a purchaser. The
defendant, admitting that he had been for several months
in possession, and had exercised acts of ownership, on the
faith that a good title to three hundred and forty-nine acres
would be shown, insisted, that, in the contract, acres meant
statute acres, and that he was not bound unless three hundred
1 Church V. Legeyt, 1 Pr. 301. ^ Gibson u. Clarke, 2 Ves. & Bea.
2 Lubin V. Lightbody, 8 Price, 606. 103.
8 Daly V. Osborne, 1 Mer. 382. " Hyde v. Wroughton, 3 Madd. 279.
* Birch V. Haynes, 2 Mer. 444 ; 3 Madd.
495.
262 LAW OF VENDORS AND PUECHASEES. [CH. XIV.
and forty-nine statute acres were conveyed to him. Held,
a reference of title would not be directed on motion. It
seems, the clause, "be the same more or less," would not
cover so large a deficiency.'
13. Reference of title before answer ; the plaintiff, the
vendor, undertaking to do all such acts, for the purpose of
executing what the Court thinks right, as if the answer were
in, and the cause brought to hearing. Direction, if the report
shall be against the title, for compensation ; but refused as
to indemnity .2
14. On a report against the vendor's title, his biU for spe-
cific performance was dismissed, with costs, on motion.^
But an order to dismiss a bill for want of prosecution is not
of course, pending a reference on motion ; the title alone
being in question.* But where, in a suit by a vendor for
specific performance, the master reported in favor of the title,
but the Court, on exception, deemed it doubtful ; an order was
made, dismissing the bill, without costs, but neither allowing
nor disallowing the exception.^
15. Where the report is in favor of the title, the Court, on
allowing exceptions to it, will give the vendor a reasonable
time to remove the objection, although the exceptions and
further directions were set down to come on together.^
16. On a motion by a vendor against a vendee in posses-
sion, for a reference to set an occupation rent, the title not
being completed, an order was accordingly made, and that
interest at £5 per cent., upon the deposit, should, under the
circumstances, be deducted out of such rent.'^
17. Upon a question of title, as to specific performance,
further evidence may be produced on both sides before the
master.^
18. One general exception was taken to the master's re-
1 Portraan v. Mill, 2 Russ. 570. ^ WilCox v. Bellares, Turn. & Russ.
2 Balmanno v. Lumley, 1 Ves. & Bea. 491.
224. ° Portman v. Mill, 1 Russ. & Myl. 696.
3 Walters v. Pyman, 19 Ves.351 ; Ben- ' ' Smith u. Jackson, 1 Mad. 618.
nett V. Carey, 3 Bro. 390. ^ Vancouver v. Bliss, 11 Ves. 458.
* Biscoe V. Brett, 2 Ves. & Beam. 377.
CH. XrV.] REFERENCE OP TITLE. 253
port of a good title, which did not point out the objections
to the title. The Court disapproved of this inconvenient
mode of proceeding.^
19. Where, on reference as to title, in a suit against a pur-
chaser for specific performance, the master reports in favor of
the title, but the Court holds it to be so doubtful, that the
purchaser should not be compelled to take it ; the bill may
be dismissed, without allowing the exceptions taken by the
defendant to the report.^
20. Leave was given, under the circumstances, to except
to a report, although the party had not carried in objections
to it.3
21. A purchase before the master is not complete, before
confirmation of the report. Therefore a loss by fire, after
the report, but before confirmation, falls upon the vendor ;
although the sale was delayed by the purchaser's having
opened the biddings.*
22. After a report, which was confirmed, in favor of a title,
by one master, another master, in another proceeding, made
a report, by which the title was affected. On motion, the
title was referred back to the former master.^
23. If, upon a question of title, the master is satisfied with
the evidence, but, upon the hearing of an exception to the
report, the Court thinks the evidence not sufficient, the Court,
upon the application of the vendor, even though for some
time delayed, wiU refer it back to the master to review his
report, in order to give the vendor an opportunity of produc-
ing further evidence.®
24. The plaintiff, holding a contract for the purchase of
land, sold the land to the defendant ; and, upon the defend-
ant's failure to fulfil his contract, files a bill for specific
performance. The case was referred to a master, to report
1 Flomer v. Hartopp, 6 Beav. 476. ^ Jeudwiue v. Alcock, 1 Madd. 597.
2 Robinson v. Milner, 1 Hare, 578, n. " Andrew v. Andrew, 3 Sim. 390 ;
3 Wood V. Lambirth, 9 Sim. 195. Egerton v. Jones, 3 Sim. 392.
* Ex parte Minor, 11 Ves. 559.
22
254 LAW OP VENDOKS AND PURCHASERS. [CH. XIV.
whethei' the plaintiff coiold make a good title. The report
was favorable, and the defendant excepted. Held, the re-
port followed the reference, though it should properly show
how title could be made ; and speci&c performance was de-
creed.i
1 Scott ». Thorp, 4 Edw. Ch. 1.
CH. XV.] TITLE DEEDS. 265
CHAPTER XV.
TITLE DEEDS.
1. In the English law, the deeds, under which a title to
real property is derived or claimed, constitute an important
subject of inquiry, and give rise to numerous and nice ques-
tions. And although, in the United States, where the sys-
tem of registration universally prevails, the rules upon this
subject cannot be considered as generally in force ; still, a
comprehensive view of the law of vendors and purchasers
requires that they should be summarily noticed.
2. In England, it is the settled rule of law, that a purchaser
of real property is not bound to complete his purchase with-
out the title deeds, unless he has a legal covenant to produce
them.^ And by analogy to this rule it is held, that a vendee
is not bound to accept the title, unless the deeds under which
it is deduced are regularly recorded ; there being no other
proof of their execution.^ But, where a party binds himself
to execute a deed to another, he is bound to deliver or tender
it to him ; the acknowledgment of it before the clerk of the
county court, and deposit of it with him for the benefit of the
grantee, are no performance of his obligation.^
3. While the title deeds must themselves be produced, a
good title also requires the production of extraneous evidence
of the facts stated in the deeds ; even though the purchaser
makes no requisition therefor.* A vendor must produce all
evidence necessary to verify the title, beyond the title deeds in
1 Barclay v. Baine, 1 Sim. & Stu. ^ McFadgenu.Eisensmidt, 10 Humph.
449. 567.
^ Bartlett v. Blanton, 4 J. J. Marsh. * Sherwin v. Shakspeare, 23 Eng.
428. Law & Eq. 199.
256 LAW OF VENDORS AND PURCHASERS. [CH. XV.
his own custody, unless his intention to the contrary be pre-
viously made known to the purchaser in clear and explicit
terras.^ If a vendor retains the title deeds, and covenants for
further assurance only, the purchaser may compel him to
covenant for production of the deeds.^ But a purchaser is not
entitled, as a matter of course, to a covenant for the produc-
tion of all documents contained in the abstract of title, which
are not delivered to him ; but only of those which are neces-
sary to make out a good sixty years' title,^
4. Although conditions of sale provide, that no earlier or
other title should be deduced, or any deeS or document pro-
duced, anterior to a specified document ; the vendee is not
precluded from making an objection to the title, which ap-
pears on the face of the abstract delivered.*
5. A purchaser, who cannot have the original title deeds,
the estate being sold in a great number of lots, is entitled to
attested copies at the expense of the vendor, notwithstanding
the inconvenience and expense.^ [a) So, where title deeds
cannot be delivered, assignees must, like any other vendor.
1 Southby V. Hutt, 2 Myl. & Cra. 207. ^ Dare v. Tucker, 6 Ves. 459 ; Ward
2 Fain v. Ayers, 2 Sim. & Stu. 533. v. Garmons, 17 Ves. 134; Boughton v.
* Cooper V. Emery, 1 Phil. 388. Jewell, 15 Ves. 176.
* Sellick V. Trevor, 11 Mees. & Wels.
722.
(a) But, on the other hand, a purchaser is not bound to put up with
copies, where the originals can be had. Thus, the vendor of copyhold, en-
franchised in 1799, delivered to the purchaser two abstracts commencing in
1736, one of title to the land and the other of the title to the manor. The
deed of 1799, which was forty years old, recited, that the then lord and the
then owner of the land were respectively seised in fee ; and several of the
deeds relating to the lord's title were bargains and sales enrolled, and there-
fore, copies of them, as well as of the surrenders and admittances, which
would be good evidence, might be procured by the purchaser at any time.
The vendor was unable to deliver to the purchaser the deed of 1799, or any
of the prior instruments, but was wiUing to covenant to produce that deed.
Held, that he was bound to give the purchaser covenants for the production,
not only of that deed, but of all the prior instruments mentioned in the ab-
stracts. Cooper V. Emery, 10 Sim. 609.
CH. X¥.] TITLE DEEDS. 257
give attested copies of them at the expense of the estate ; but
their covenant for the production of the deeds should be con-
fined to the time of their continuance as assignees.^
6. Objection to a title for want of a deed, which had been
enrolled at a public office, but could not be found. A copy of
it, taken in 1632, attested to be a true one by five witnesses,
was produced in Court. Lord Hardwicke was of opinion,
that this would have been sufficient, even without an attes-
tation.2
7. K, after a sale, but before the title is accepted, the title
deeds be destroyed by fire, the Court wiU not compel specific
performance, unless the vendor can furnish the means of
showing their contents, and that they were duly executed
and delivered.^
8. While a title depending on deeds must generally be
verified by the production of them ; still a good title may be
made, although the origin cannot be shown by any deed or
will; if there has been such a long, uninterrupted possession
and enjoyment of, and dealing with, the property, as afford a
reasonable presumption, that there is an absolute title in fee
simple.* And it has been held, that the Court will compel
a purchaser to take a title, depending upon petrol evidence
of adverse possession under the statute of limitations.^ So
where the plaintiff" produces an original lease of a long term,
and proves possession for seventy years, the mesne assign-
ments shall be presumed.^ So the existence and execution
of a settlement by indentures of lease and release were pre-
sumed from circumstances ; principally the existence of the
drafts ; the statement in an abstract of the title ; and the
existence of the lease for a year of other estates, appearing to
have been included in the same plan of settlement.^
9., But, on the other hand, where a leasehold was sold,
subject to a ground-rent, which was said to be apportioned
1 Ex parte Stuart, 2 Rose, 215. ^ Scott i>. Nixon, 3 Dru. & War. i
2 Harvey v. Phillips, 2 Atk. 541. " Earl v. Baxter, 2 Blackst. 1228.
2 Bryant v. Busk, 4 Russ. 1. ' Ward v. Garmons, 17 Ves. 134.
> Cottrell v. Watkins, I Beav. 361.
22*
258
LAW OF VENDORS AND PimCHASERS. [CH. XV.
out of a larger rent, but the apportionment was not evidenced
by any existing deed, but only by the acceptance of a mesne
landlord, and presumption; held, that the purchaser was
not bound to accept the title.^ So it has been held, that
a vendor's showing an uninterrupted possession of twenty
years in himself, and those under whom he claims, is not
sufficient.^
10. Conveyance, in 1793, from persons residing in Ber-
muda, of lands then in their possession, and to which, sub-
ject to an outstanding but satisfied mortgage term, they
claimed title under an entaU created in 1732, through a de-
scent recited in the deeds. A subsequent assignment of the
mortgage term from the mortgagee to the purchaser, and
uninterrupted enjoyment under his conveyance, will not
enable him to make a good title ; if unsupported by extrinsic
evidence of the pedigree recited in the deeds, or of posses-
sion, prior to 1793, conformable to that pedigree.^
11. Where a title was derived from one who entered as
heir, under the impression that his ancestor's will was void,
a purchaser was not compelled to complete his contract,
without production of, the wfil, or evidence of its contents.*
But where one articles to buy land, and the title is under a
wiU, not proved in equity against the heir ; yet, in some cases,
equity will compel the purchaser to accept the title.^
12. The abstract of title is one of the documents, upon
which questions have often arisen between vendor and pur-
chaser. Where the title and abstract are to be made at the
vendor's expense, the purchaser is entitled to the custody of
the abstract, until either the purchase is finally rescinded by
consent, or declared impracticable by a court of equity.
When the contract is determined, the abstract becomes the
property of the vendor. If the sale proceeds, it is the prop-
erty of the vendee. An opinion Avritten thereon, as it was
1 Barnwall v. Harris, 1 Taunt. 430. * Stevens v. Guppy, 2 Sim. & Stu.
2 Lewis V. Herndon, 3 Litt. 358. 439.
s Fort V. Clarke, 1 Russ. 601. 6 Coltou v. Wilson, 3 P. Wms, 190.
CH. SV.] TITLE DEEDS. 259
necessarily written on the seller's paper by his consent, con-
tinues the property of the purchaser.^
13. On reference of title to a master, he proceeds on the
abstract only, unless the purchaser requires the deeds ; and
the latter cannot except to the report on this ground.^
14. Specific performance decreed ; the abstract, though
delivered very late, and under a notice that the vendee would
insist on his deposit, with interest, if the title should not be
made out, and possession delivered, by the time of payment,
having been received and kept without objection ; and the
vendee, upon the construction and the circumstances, not
being entitled to insist on the time, as of the essence of the
contract.^
15. Conditions of sale of an estate sold in lots, that the
vendor should deliver an abstract of the title to the pur-
chasers, and deduce a good title ; but, as to a part of the
estate, acquired under an inclosure, he should not be bound
to show any title thereto, prior to the award ; that the vendor
should deliver up, to the largest purchaser in value, all the
title deeds and other documents in his custody, but not be
required to produce any original deed or other documents
than those in his possession and set forth in the abstract.
Held, these conditions did not relieve the vendor from verify-
ing the title shown upon the abstract, by producing the title
deeds themselves, or, if any of them were not in his posses-
sion, by other satisfactory evidence.*
16. In 1745, J. executed a settlement of lands, reserving
a power, with the consent of A., to revoke the uses. The
abstract of title set forth a will of J., dated in 1761, whereby
he, with the consent of A., revoked the uses ; and it referred
to a copy of the will. P., the son and heir of J., by inden-
ture of 1763, reciting the will, resettled the estates ; and
possession had since gone accordingly. Held, the non-pro-
duction of the will was not an objection to the title. In the
1 Roberts v. Wyatt, 2 Taunt. 268. ' Selra v. Slade, 7 Ves. 265.
2 Poole V. Shergold, 1 Cox, 160. * Southby v. Hutt, 2 My. & Cr. 207.
260 LAW OF VENDORS AND PURCHASERS. [CH. XV.
same case, the abstract stated a deed of March, 1814, making
a tenant to the prcecipe, which recited articles of February,
1814, between the father, tenant for life, and his son, tenant
in tail, empowering them to revoke the uses thereby declared ;
and the recovery was declared to enure to the uses in the
articles. In 1815, the father and son revoked the uses, and
resettled the estates ; and possession had gone accordingly.
The abstract stated, that the articles had been lost ; and it
appeared that search had been made for them. Held, that
their non-production was not an objection to the title. Held,
in the same case, if counsel for the purchaser waive the pro-
duction of a particular document, stated in the abstract to
be lost, and the purchaser adopt that opinion, and deal with
the seller upon that view, he will not be permitted to repu-
diate the opinion of his counsel.^
17. Upon the death of one of two partners, intestate, his
personal representatives agreed to sell his moiety of the real
property to the other, and furnish him at their own expense
with an abstract of their title. Held, they were bound t©
furnish the usual abstract of title, and not merely the letters
of administration.^
18. Purchase of a mansion-house and park under condi-
tions of sale, which stated that the whole property was free-
hold, except eight acres which were copyhold, but undistin-
guished, except as not including any of the buildings. The
abstract of title having been delivered, and discussions arisen
thereon, which raised difficulties in the way of completing
the purchase ; a supplemental agreement was entered into,
detailing among the requisitions, " declaration of identity of
lands mentioned in deeds to those now sold." Held, on a
bill filed by the vendor for specific performance, that the
supplemental agreement was a substitution for the original
contract, and that the vendee was not entitled to demand,
that the vendor should distinguish the freehold from the
1 Alexander v. Crosby, 1 Jones & La- ^ Morris v. Kearsley, 2 You. & Coll.
tonche, 666. 139.
CH. XV.] TITLE DEEDS. 261
copyhold, so as to show that the latter did not include any
of the buildings.^
19. A condition of sale of copyhold estates stipulated, that
the vendors should not be required to produce any deeds,
instruments, or documents of title, not in their possession.
Held, in an action to recover back the deposit, that the ven-
dors were not bound to procure a covenant, for the produc-
tion of two deeds not in possession of the vendor, but which
were set out in the abstract of title delivered to the purchaser,
and to which the vendors had procured access, for the pur-
pose of verifying the abstract.^
1 Dawson v. Briuckman, 3 Eng. Law '^ Gabriel v. Smith, 6 Eng. Law & Eq.
&Eq. 239. 172.
262
LAW OF VENDORS AND PURCHASERS. [OH. XVI.
CHAPTER XVI.
TITLE TO LEASEHOLDS.
I. Agreement for a lease.
5. Whether an agreement for a lease
or purchase in fee.
10. What is necessary to constitute a
sale of leasehold ; offer and acceptance.
I I . Uncertainty in the agreement.
12. The vendor must make a good
title.
22. Otherwise in case of express
agreement to the contrary.
24. Waiver of title.
27. Covenants, in case of leasehold
sales.
31. Part-failure of title ; compensa-
tion, rescinding, &c.
46. Effect of notice upon the title.
47. Parol evidence.
50. Statute of Frauds.
1. The principles stated in the foregoing chapters, as to
the title of a vendor, apply more particularly to sales in fee-
simple or of the entire estate. There is another interest in
real property, which often becomes the subject of sale and
purchase, and which may most properly be considered in
this connection, to wit, leasehold estates or terms for years.
A lease, being an executed conveya/nce, and not a mere execu-
tory contract, does not fall within the plan of the present
work, except so far as connected with the subsequent sale
and purchase of the lessee's interest. But an agreement to
lease, being in its nature executory, requires to be briefly
noticed.
2. Whether an instrument is a lease, or only an agree-
ment for one, depends upon the paramount intent of the
parties, as collected from the whole tenor and effect of the
instrument.-' {a) Words oi present demise, as dqth let, agrees
> Goodtitle v. Way, 1 T. R. 73.^; Perring w. Brooke, 1 M. &R. 10; John
Hallett V. Wylie, 3 Johns. 44, 383 ; v. Jenkins, 1 Cr. & M. 233.
(a) By St. 7 and 8 Vict. c. 76, § 4, any written agreement to let land
CH. XVI.] TITLE TO LEASEHOLDS. 263
to let, agrees to pay for, &c., generally make an actual lease ;
unless a contrary intent is to be gathered from the whole
instrument. As where, notwithstanding such words, a future
lease is provided for, upon the making of certain improve-
ments ; or additional land is to be purchased, and included
in the lease.^ But an agreement to give a more formal lease
may amount only to a covenant fai fwrther assurance.^
3. Uncertainty in the terms of holding generally consti-
tutes the instrument a mere agreement to lease.^ So the
fact that a forfeitv/re will be incurred, if otherwise construed.*
4. An agreement to give a lease may be enforced, either
by an action for damages, or a bill in equity for specific
performance.^
5. The question sometimes arises, upon the peculiar terms
of a contract, whether it provides for a lease or a purchase of
the fee. Thus, A. agreed with B. by deed, that he, A.,
would, on payment of £900, as thereinafter mentioned,
grant, sell, and convey to B. certain messuages, lands, &c. ;
and B. covenanted to pay said sum on or before the 1st of
January then next, or whenever a good title should be ten-
dered to him; but, if B. should, on or before the 1st of
January, so desire that sum might remain a charge on the
premises, it provided, upon completion by A. of the convey-
ances, B. should execute proper conveyances for securing
.£900 on the premises with interest. Covenant by B., to pay
the interest, so long as the principal should remain unpaid.
Proviso, that, if the interest should be in arrear thirty days,
B. should be considered as a tenant to A. from the date
thereof, at a certain yearly rent, payable semi-annually ; and
1 Baxter v. Brown, 2 W. .BI. 973; ^ Jackson k. Keisselbrach, 10 Johns.
Jackson v. Moncrief, 5 Wend. 26 ; Jack- 436.
son V. Delacroix, 2, 433 ; Dunk v. Hun- ^ Alderman v. Neate, 4 M. & W. 704.
ter, 5 B. & A. 322 ; Doe v. Ashburner, 5 * Tenny v. Childs, 2 M. & S. 225.
T. B. 163. 5 Price v. Williams, 1 Mees. & W. 6.
shall be valid, and any one in possession under such agreement may, from
paynient of rent or other circumstances, be construed as a tenant from year
to year.
264 LAW OF VENDORS AND PURCHASERS. [OH. XVI.
it should be lawful for A., his heirs and assigns, to enter and
distrain, and to sell and dispose of the distress, or otherwise
to deal with the same, as in distresses for rent reserved by
lease, to the end that A. might be fully paid and satisfied
the interest and costs. B. gave due notice, that he would
require the purchase-money to remain a charge for five
years ; was let into possession and received the rents, and in
July, 1828, became bankrupt ; and, half a year's interest
being in arrear for more than thirty days, A. distrained on
the tenants then in possession. The assignees paid the
amount of the distress. On the 16th of October, 1828, after
B. had obtained his certificate, another half-year's interest
became due, and this action of covenant was brought
against him to recover it. He pleaded the bankruptcy, gen-
erally. Held, the agreement was substantially an agreement
for a purchase, and did not become a lease, or agreement for
a lease, by non-payment of the interest, and the above pro-
viso, that the plaintiff was entitled to have the estate resold,
and the produce and interest applied in payment of the
purchase-money, and to prove against the estate for the
residue ; and, consequently, that the claim for interest was a
debt provable under the commission, and therefore barred
by the certificate.^
6. Declaration, that the plaintiff bargained to buy of the
defendant, and the defendant agreed to sell to_him, a dwell-
ing house and fixtures, for the residue of a term then and
still unexpired, to commence fi-om the 1st of January, 1840,
for j660 ; and the defendant promised to execute a proper
conveyance, make out an abstract of title, and deliver pos-
session from the 1st of January, 1840, &c. At the trial,
the following paper, signed by the defendant, was read in
evidence : " I agree to sell the house and fixtures, No. 163,
Piccadilly, to commence from the 1st of January next, for
£60." Held, this document imported the sale of a fee-
simple, and did not sustain the contract alleged.'*
1 Hope V. Ellis, 1 Barn. & Ad. 498. ^ Hughes v. Parker, 8 Mees. & W. 244.
CH. XVI.] TITLE TO LEASEHOLDS. 265
7. Sometimes a lease itself contains a covenant to convey
in fee-simple. In case of such a covenant, allowing a lessee
to purchase the fee at a specified sum, the law^ intends that
the rent was fixed at the amount reserved, as an inducement
to such purchase.
8. The words, " shall have liberty to purchase," contained
in a covenant, require a clear title, free from a claim of
dower, and all other incumbrances ; that is, the whole title?-
9. A lessee for years, with an option at certain periods to
purchase, and making that option, was considered owner
db initio, for the benefit of the heir ; the price to be paid by
the executor.2
10. The same mutual understanding or assent has been
held necessary to a binding contract for the sale and pur-
chase of a leasehold interest, as in contracts relating to an
estate in fee. (See Ch. 2.) Thus, the defendant offered to
purchase of the plaintiff the lease of a house, requiring pos-
session on the 25th of July, and a definitive answer within six
weeks. The plaintiff accepted the proposal, offering posses-
sion on the 1st of August. The defendant afterwards, and
before the six weeks had expired, retracted his offer. Held,
the plaintiff's acceptance of the defendant's offer not being
in the terms proposed, and no proper acceptance of it having
been given before the defendant withdrew, the agreement
was vacated.^
11. It has been held, in reference to the sale of a leasehold
interest, in conformity with the general rule on this subject,
that equity will not decree specific execution of a contract,
tmcertain in extent; nor against a party not competent to
execute the contract. Thus, a tenant for life, with power to
make leases for twenty-one years, at the best improved rent,
made a lease to B., and covenanted " for the term of his life
to renew said lease to B., his executors, administrators, and
assigns, by giving them a lease for twenty-one years when
1 Jane Hunter, 1 Edw. 1. ^ Eoutledge v. Grant, 1 Moo. & P.
2 Daniels v.Davison, 16 Ves. 249. 717.
23
266 LAW OF VENDORS AND PURCHASERS. [CH. XVI.
applied to." B. surrendered the lease, under a clause em-
powering him so to do ; and, afterwards, upon a new agree-
ment, A. indorsed on the old lease " I promise and agree to
perfect a fresh lease to B. at any time he shall demand the
same at £5 a year less than the within-mentioned rent." It
being uncertain whether the agreement was for more than
one term of twenty one years, and an agreement for a fur-
ther lease (even if clear) being in fraud of the power, a bill
for a renewal of the lease for a second term of twenty-one
years was dismissed.^ So, a bill for specific performance of
an agreement to renew a lease was dismissed, the agreement
being too vague and uncertain to be executed by the Court."
So, the Court will not execute a contract for the sale of a
good will, but will leave the parties to law.^ An agreement
for a lease for seven, fourteen, or twenty-one years, gives the
option to the lessee alone.*
12. As to the title or assurance of title, which the vendee
of a leasehold may demand, it is held, that, if a contract be
made for the sale of leasehold property unconditionally, and
not merely the vendor's interest in the residue of the term,
and a proviso that he will not warrant his lessor's title ; (a) in
order to enforce the contract, he is bound to show to the
satisfaction of the purchaser, that his lessor, or the original
grantor of the term, was entitled to grant the lease, (b) If
' Hai-nett v. Yielding, 2 Scho. & Lef. " Baxter v. Conolly, 1 Jac. & Walk.
549. 576.
2 Price V. Assheton, 1 Y.& Col. 441. * Price v. Dyer, 17 Ves. 356,
(a) Whether the effect of advertising for sale a lease in possession is
equivalent to a declaration that the lessor's title cannot be produced, qucere.
Deverell v. Bolton, 18 Ves. 505.
(6) And the implied obligation of the vendor may be confirmed, by an
implication in the construction of the agreement itself. Thus, a declaration
alleged, that it vras agreed between the plaintiff and defendant, that the
plaintiff should purchase two houses of the defendant for the residue of a
term of years, &c ; that the defendant should paper them, &c. ; that the.
plaintiff should pay part of the purchase-money on completion of the con-
veyance of the houses, and the defendant make a good title. The agree-
CH. XVI.] TITLE TO LEASEHOLDS. 267
the vendor of a leasehold interest means to sell, virithout pro-
ducing his lessor's title, he ought to declare it. So, though
the lease was originally granted by a lay corporation, (a) or
is very old.^ (b) So, a contract for the sale of an existing
and a reversionary lease will not be specifically performed
without a production of the title of the lessors.^
13. Memorandum of an agreement, dated the 15th of
May, for sale and purchase of leasehold property, described
therein as " a messuage held for the remainder of a term of
years under the Corporation of Bath, and the late R. A., at
the sum, &c. ; " an abstract to be made out and delivered by
the vendor, and the assignment to be made and prepared at
the expense of the purchaser, the purchase-money to be paid
at or before midsummer. The contents of two existing
deeds were not introduced in the abstract, delivered on the
24th of May; though they were contained in an abstract
delivered on the 3d of September. Held, on exception to
1 Souter V. Drake, 5 B. & Ad. 992 ; Betty, 4 Mann. & G. 410 ; Ogilvie w.
Purvis V. Rayer, 9 Price, 488 ; Hall v. Foljambe, 13 Meri. 53.
2 Deverell v. Bolton, 18 Ves. 505.
ment was as follows : " Mr. H. (the plaintiff) having agreed to purchase of
Mr. B. (the defendfint) two leasehold houses, &c., Mr. B. hereby agrees
to paper, &c. ; Mr. H. to pay, &c., at the time of the conveyance, &c."
Nothing was said in the agreement as to making a title. Held, the agree-
ment to purchase, though recited as an existing agreement, was to be con-
sidered as forming part of the agreement produced. Hall v. Betty, 4 Mann.
& Gral 410. So, a contract for a lease by a mortgagor cannot be enforced
by him, without obtaining a reconveyance of the mortgage, or procuring
the mortgagee to confirm the lease. But a tenant holding under such con-
tract cannot compel the landlord to pay off the mortgage, to give effect to
the contract. Costigan v. Hastier, 2 Scho. & Lef. 160.
(a) The rule has been held not to apply to a Bishop's lease. Fane v.
Spencer, 2 Meri. 430.
(6) But it has been held, that, to make a good title to the residue of an
old term, mesne assignments, which cannot be produced, will be presumed,
even at law. But an old incumbrance must be attended to, unless it can
be presumed that it does not exist. White v. Foljambe, 11 Ves. 337.
268 LAW OF VENDORS AND PURCHASERS. [CH. XVI.
the report of the master, adverse to the title, that the pur-
chaser might abandon his contract.^
14. On a sale by auction of leasehold property, one of
the conditions was, that the vendor " should not be obliged
to produce the lessor's title." The vendee having aliimde
discovered certain defects in the title, held, notwithstanding
the condition, he was entitled to insist upon those defects.^
So, a purchaser is not compellable to accept a title to lease-
hold premises, formerly subject to an incumbrance, the dis-
charge of which is shown only by presumption. Thus, a
leasehold was sold, subject to a ground-rent, which was said
to be apportioned out of a larger rent, but the apportionment
was not evi(ienced by any existing deed, but only by the
acceptance of a mesne landlord, and presumption. Held,
the purchaser was not bound to accept the title.^ So an
assignee of a lease, to show his interest in the premises, is
bound to prove the execution of the lease and all the mesne
assignments.*
15. In an action against a purchaser of a leasehold at
auction for not completing, the declaration averred, that the
vendor had delivered an abstract of title, pursuant to the
conditions of sale, which averment was traversed by the
plea. Held, the allegation was not sustained, by proof that
the vendor caused the lease and assignment, which com-
posed the whole title, to be handed to the purchaser for
perusal, and offered to send them to his attorney, to enable
him to prepare the necessary assignment.^
16. Property was put up for sale by auction, described as
" a leasehold ground-rent of £23 reserved by a mesne lease of
certain premises for ninety-eight years wanting seven days,
and assigned apart from the reversion for the remainder of
the term by an indenture of 1817." By the conditions of
sale, no title prior to the assignment, nor the title of any
1 Purvis V. Rayer, 9 Price, 488. ^ Bamwall v. Harris, 1 Taunt. 430.
2 Shepherd v. Keatley, 1 Cro. Mees. ' Croshy v. Percy, 1 Camp. Ca. 303.
&Eosc. 117. ' Home v. Wingfield, 3 Scott's N.
C. 340.
CH. xvl] title to leaseholds. 269
ground or mesne landlord was to be produced. From a
recital in the deed of 1817, it appeared that the property
out of which the rent issued had been originally demised,
with other property, at a rent of £10, subject to the cov-
enants, conditions, and agreements in the original demise
contained. Held, that, under such circumstances, a good
title was not made to the rent of £23, inasmuch as it ap-
peared upon the face of the deed of 1817, that upon failure
of payment of the ,£10 rent, the rent of £23 might be liable
to diminution or forfeiture.^
17. Bill by a vendor for specific performance of an agree-
ment to take a lease for twenty-one years at rack-rent. The
master reported in favor of the title shown by the abstract,
but exception was taken to the report. Held, in the absence
of an express agreement, such vendor is bound to produce
the title of his lessor. The principle was laid down, that
whether the interest contracted for be freehold or leasehold,
for a long term of years, or a short lease at rack-rent, the
party who comes for specific performance should be prepared
to show, that he is able to give what he seeks to compel the
other to take. It was questioned whether the rule applies,
where the length of possession under the original lease has
been sufficient to raise a presumption of title.^
18. Declaration in assumpsit, that the plaintiff put up
leasehold premises at auction, subject to conditions that the
purchaser should complete the purchase by a certain day,
and the plaintiff deduce a good title, commencing with the
lease under which they were then held. Breach, that
although the plaintiff did deduce a good title, commencing
with the lease, the defendant did not complete the purchase
according to contract. Plea, that the premises were, on, &c.,
demised by T. L. to W. B. for a term still subsisting, subject
to a covenant by W. B. to keep the premises in repair, and
for reentry by T. L. in default thereof; that the interest of
1 Taylor u. Martindale, 1 Y. & Coll. ' Fildes v. Hooker, 2 Mer. 424.
658.
23*
270 LAW OB VENDORS AND PURCHASERS. [CH. XVI.
W. B, vested by assignment in the plaintiff, and that the
plaintiff, after the assignment, suffered the premises to be
out of repair, and they continued so up to the time of sale,
so that the term might at the option of T. L. be determined ;
and that the plaintiflF, by reason of the premises, had not, at
the time of the sale or at any time afterwards, any good and
valid title to the premises, and did not deduce or make a
good title to the defendant. On special demurrer to these
pleas, the former was held bad, as being an argumentative
denial of the allegation in the declaration, that the plaintiff
made a good title ; and the latter, on the ground that, if the
defendant meant to- object to the validity of the lease, he
ought to have confessed the allegation of title in the decla-
ration as it stood, and then to have pointed the plea specifi-
cally to the objection that the lessor had not title.^
19. Plaintiff put up to sale by auction a lease of prem-
ises, which he occupied as assignee of the lease, stipulating
not to produce any title prior to the lease. In an action
against a purchaser for not completing his purchase, the
plaintiff declared that he was possessed of the lease. Held,
the defendant having rejected the abstract, that the plaintiff
was bound to prove the execution of the lease by the attest-
ing witness, and that it was not sufficient to prove the
■assignment to himself.^
20. A. had purchased at auction an under-lessee's interest
in a house, and refused to pay a check given for the deposit,
because the ground-rent, payable to the superior landlord,
was greater than it was stated to be at the sale. Held, the
superior landlord's solicitor was not compellable to produce
the counterpart of the original lease, nor could a person who
had advanced money on that lease, and held it as equitable
mortgagee, be compelled to produce the lease itself ; but if
both these, on being called as witnesses, refused to produce
the lease and counterpart, secondary evidence might be given
1 Wheeler v. Wright, 7 Mees. & W. ^ Laythoarp v. Bryant, 1 Bing.N. C.
359. 421.
CH. XVI.] TITLE TO LEASEHOLDS. 271
of the contents of the lease, by calling any person who had
seen it, and who neither claimed under it as one of his own
title deeds, nor was privileged as an attorney or solicitor.'
21. The purchaser of a lease, though not so far a pur-
chaser for valuable consideration, without notice, as not to
be bound to know from whom the lessor derived his title ;
is not bound to take notice of all the circumstances under
which it is derived. Therefore, he is charged with notice,
that the lessors were trustees for a charity; but not that the
lease was bad ; that depending on circumstances dehors?
22. But the general rule, as to requiring production of the
lessor's title, does not apply where the terms of the adver-
tisement, proposal, or agreement plainly negative such an
obligation, {a) Thus, A. agreed to sell to B. the two leases
and good will in trade of a public-house and shop adjoining
for £4,250, " as he holds the same," for terms of twenty-
eight years from midsummer next ensuing, at the annual
rent therein mentioned ; and B. agreed to accept a proper
assignment of the said leases and premises as above described,
without requiring the lessor's title ; and, upon payment of
said sum, A. agreed to execute an effectual assignment of
the said leases, and deliver up possession of all the said
premises. Held, the vendee was to purchase without inquir-
ing into the title of the lessor, and could not refuse to com-
plete his purchase on account of an objection to that title.^
23. So even the liability of the purchaser for the future
1 Mills V. Oddy, 6 Car. & P. 728. 8 Spratt v. Jeffery, 10 Barn. & Cress.
2 Attorney-General w. Backhouse, 17 249.
Ves. 283.
(a) Even where the sale is a general one, the same doctrine has been some-
times held. Thus, in an action by the vendee against the vendor of a lease,
for the depositf»it was held that the vendor is not bound to produce his
lessor's title, without an express stipulation to that effect. George v. Pritch-
ard, 1 Mood. & Ry. 417. So it has been suggested, that the owner of land,
agreeing to grant a lease, does not thereby impliedly engage that he has a
good title in fee, and will deliver a written abstract. Temple v. Brown, 6
Taunt. 60.
272 LAW OF VENDORS AND PUBCHASBES. [CH. XVI.
default of a third person, in consequence of the terms of
the lease sold, has been held not to aifect the validity of the
sale. Thus, two houses held under one lease were sold
separately to A. and B. The lease was produced and in-
spected at the sale by the purchasers' solicitors. The con-
ditions of sale provided for the apportionment of the rent
between the two purchasers, but did not notice covenants to
insure, &c., and a proviso for reentry on non-performance,
contained in the lease. Held, though A. might be evicted
by the default of B., still he was bound to complete. ^ So,
on a sale in lots, of premises, the particulars of which state
them to be held under one lease reserving rent, and that the
purchaser of one lot is to be exclusively subject to the rent,
the other purchasers cannot object to the title, on the ground
of a clause of reentry or non-payment, contained in the
lease.^
24. While the production of title may be dispensed with
by the special terms of the sale itself ; it may also be impli-
edly waived by the purchaser. Such implication, however,
must be clearly established, in order to prevail over the gen-
eral rule of law. Thus, where a lessee in possession con-
tracted to seU the residue, of his term, being three years and
a quarter, at the rent of ^£42 per annum, the vendee paying
^30 for the fixtures, as per list ; held, it was not to be in-
ferred from the short residue of the term, the smaU value of
the property, and the absence of any premium for the lease,
that the vendee intended to waive his right to call for the
production of the lessor's title.^ So the objection to the title
is not waived, by a premature conditional approbation of it
by the purchaser's counsel ; but the expense of making out
the title, before this objection was taken, shall be repaid.*
25. In a suit for specific performance of a^greement to
accept a lease, the Court, considering the defendant, (the
intended lessee,) by his conduct to have waived all objec-
' Paterson v. Long, 6 Beav. 590. " Senter v. Drake, 5 Barn. & Adol.
2 Walter v. Maunde, 1 Jac. & Walk. 992.
181. * Deverelli). Bolton, 18 Ves. 505.
CH. XVI.] TITLE TO LEASEHOLBS. 273
tions to the vendor's title, decreed a specific performance, and
referred it to the master to settle the lease. In settling the
lease, it became necessary, for identifying the premises, to
produce before the master the original lease, under which
the plaintiff was entitled to the property, and from which
lease it appeared, that the property in question was held
with other property, at one entire rent, and under some
special covenants, no provision with respect to which was
made in the agreement between the plaintiff and the de-
fendant. On the hearing, for further directions, these facts
being brought before the Court by exceptions to the report ;
held, though the defendant had, by his conduct, waived his
right to the production of the lessor's title, yet, as, in the
course of the proceedings, it had become necessary to pro-
duce that title, and that production showed that a sufficient
lease could not be made, according to agreement, the Court
would not enforce a specific performance ; and the bill was
dismissed, but without costs.^
26. Purchase of the benefit of an agreement for the lease
of a public-house, and also of the stock and good will.
The purchaser entered before the lease had been granted,
paid part of the purchase-money, and mortgaged his in-
terest. Held, that after this mode of dealing, he could not
call for the lessor's title, or for evidence that the lease was
Pie in conformity with the power under which it was
nted.^
27. In reference to the title of leasehold property, ques-
tions often arise upon the necessity and effect of covenants
for the protection and benefit of the lessee or purchaser.
Thus, in addition to the rule above stated, as to the implied
obligation in the sale of leasehold estates to give a good title
to the purchaser, an agreement for a lease often stipulates
for the insertion in such lease of the usual covenants.^ What
covenants fall under this description, depends upon various
1 Warren v. Richardson, Yon. I. * See Sargent v. Adams, 3 Gray,
2 Haydon v. Bell, I Beav. 337. 81.
274 LAW OF VENDORS AND PUBOHASERS. [CH. XVI.
circumstances, such as local custom, or the nature of the
property ; but it is always a question of fact for the jury.
It has been held, that a lessee is not impliedly bound to cov-
enant that he will not carry on a particular trade or business
on the premises ; nor assign nor underlet without license ;
nor that he wiU keep the premises insured, or pay the taxes.
Nor is the lessor impliedly bound to covenant that he will
rebuild in case of fire, and that the rent shall cease if he does
not. But it seems he is bound to covenant for the lessee's
quiet enjoyment,, as against the lessor or those claiming un-
der him.i
28. Contract for an assignment of a lease of a public-
house, which was described as holden at a certain net rent,
upon usual and common covenants. The lease contained a
covenant by the tenant, to pay land-tax, sewers-rate, and all
other taxes, and a proviso for reentry, if any business but
that of a victualler should be carried on in the house. It
was proved, that a considerable majority of public-house
leases contained such a proviso. Held, the covenant was a
common one in a lease reserving a net rent ; and the proviso
was also usual and common?
29. So covenants made for the benefit of the lessor may
corne in question upon a sale of the lessee's interest. Thus,
a lessee, subject to covenants, cannot compel specific perform-
ance of an agreement to purchase the premises, thougyie
oflFer to indemnify the purchaser against the performan(SRf
the covenants.*^ So if the vendor of a lease, in- which is a
covenant not to assign, contract to assign his interest, it is
incumbent on him, and not on the purchaser, to procure the
lessor's license for the assignment.*
30. A. agreed, in 1814, for a lease of building-ground for
seventy-five years, at a ground-rent, containing the usual
building covenants to insure, repair, allow lessor to enter and
1 Church V. Brown, 15 Ves. 258; ^ Bennett v. Womack, 7 Barn. & Cr.
Bennett v. Womack, 7 B. & C. 627 ; 627.
Doe V. Sandham, !• T. R. 705 ; Van v. ^ Fildes v. Hooker, 3 Madd. 193.
Corp, 3 My. & K. 269. * Lloyd v. Ciispe, 5 Taunt. 249.
CH. XVI.] TITLE TO LEASEHOLDS. 275
view repairs, &c. ; and that in case of non-payment of rent,
or breach of any covenant, the lessor was to have the right
to reenter. The lease was never executed, but the tenant
entered, and buUt, at considerable expense, and continued in
possession up to his decease in 1843. Up to that time the
rent was paid regularly, but the covenants to repair and
insure were neglected. Upon the decease of the lessee, dis-
putes arose in the ecclesiastical court as to the right to repre-
sentation to "his estate, and probate was not granted until
1847. During these four years the rent was in arrear, and
the covenants to insure and repair were totally neglected.
The lessor threatened to bring ejectment. Held, on a bill
brought to restrain the ejectment, and to have a specific per-
formance of the agreement, inasmuch as the lessor, if the
lease had been formally executed in 1814, would now have
had a right to determine it Uy breach of covenant, the Court
would not decree specific performance ; and that the disputes
in the ecclesiastical courts did not afford sufficient ground
for relief.!
31. It has already been considered, (Ch. 13,) how far non-
compliance in part with the terms and conditions of sale
furnishes ground for avoiding the contract or demanding
proportional compensation. Most of the cases on this
subject relate to the transfer of estates in fee simple. But
substantially the same principles have been applied to the
sale of leasehold interests.
32. It has been lield that a lease, deliberately executed,
cannot be set aside, on account of an unfounded, though
justifiable assertion of the lessor pending the treaty, there
being no wilful misrepresentation ; nor on the ground of
mistake, firom an omission of a general warranty ; such war-
ranty not constituting part oithe agreement.^
33. A. having agreed to purchase of B. the remainder of a
term, B. delivered him the lease, in Order that he might pro-
1 Gregory v. Wilson, 10 Eng. Law & ^ Legge w. Croker, I Ball. & Beat.
Eq. 133. 506.
276
LAW OF VENDORS AND PTJECHASERS. [CH. XVI.
cure an assignment. A. then obtained an enlargement of
the term from the original landlord, and refused to accept an
assignment or pay the full price, because B.'s under-tenant
had removed fixtures. Held, no sufficient objection to ac-
cepting the assignment.^
34. A particular, describing a lease, as subject to notice to
quit, is not inconsistent with a covenant, that the tenant
shall hold over for a certain time " after the end of the term ;"
that being upon the context distinguished from the " other
sooner determination ;" and time, generally, not being of the
essence of the contract.^
35. The principle of compensation (see Ch. 13,) has been
applied to the sale of leasehold estates, where the contract
is but partially completed. Thus, the defendant contracted
to sell an inn to the plaintiff, and in the treaty represented to
him, that the agreement, under which the tenant in posses-
sion held it, was void, and that he would give the plaintiff
possession at Michaelmas following. He had given the ten-
ant notice to quit at that time ; but the tenant did not quit.
Held, the plaintiff might be released from the agreement,
or at his election perform it, and have compensation with
costs.^
36. BiU for general relief. The plaintiffs entered into an
agreement with the defendants for a lease of thirty-one years,
but could obtain from them a legal lease for only twenty-
one years, and a covenant for a further terra of ten years.
Although the bill was framed with a view to a different re-
lief, yet, inasmuch as upon the whole statement of the bill
such appeared to be the equity between the parties, and in
order to avoid future litigation, the Court decreed that the
plaintiffs should accept the lease and covenants, with com-
pensation.* So the particular o£»a church, lease represented it
as for twenty-one years, with covenants for renewals to sixty-
three years ; the lease being actually for lives ; and the cove-
1 Parry v. Frame, 2 Bos. & Pull. 451. * Hanbnry v. Litchfield, 2 Myl. &
2 Hairu. Smith, 14 Ves. 426. Kee. 629.
* Besant v. Kichards, Tamlyn, 509.
CH. XVI.] TITLE TO LEASEHOLDS. 277
nants limited and contingent. Specific performance was
decreed, upon the bill of the purchaser, with compensation,
if to be ascertained, by reduction of the purchase-money ; if
not, or if the , plaintiff would so take it, with an indemnity ;
the defendant proposing an option to take it as it was, or
relinquish the contract.^
37. Bat where a bill for specific performance of an agree-
ment for a lease, signed by the grantor only, and contrary
to his leasing power, of which the plaintiff had notice, was
afterwards amended ; and prayed an execution of the agree-
ment for the life of the grantor, without requiring compensa-
tion for the difference of interest ; held, the bill should be
dismissed, the case proved for the plaintiff creating doubts
and suspicions of the fairness of the transaction.^
38. So compensation wiU not be decreed, if the purchaser
would thereby lose the substantial benefits of the contract.
Thus, an indefinite representation by the vendor, that a lease-
hold estate was nearly equal to fi:eehold, being renewable
upon a small fine, under certain circumstances, may be
fraudulent, and furnish ground for rescinding the contract.*
So where leasehold premises are sold by auction, and the
lease containing the usual covenant to repair is produced
and read to the bidders, if any of the buildings demised and
described in the lease, though not in the particulars, have
been pulled down, the purchaser is not bound to complete
the purchase, and may recover back his deposit.*
39. On a sale of a leasehold interest of lands, described in
the particulars as held for a term of twenty-three years at a
rent of £55, and as comprising a yard, one of the conditions
was, that, if any mistake should be made in the description
of the property, or any other error whatever should appear in
the particulars of the estate, it should not annul or vitiate
the sale, but a compensation should be made, to be settled
1 Milligan v. Cooke, 16 Ves. 1. ^ Fenton v. Brown, 14 Ves. 143.
2 O'Rourke v. Percival, 2 Ball. & Bea. * Granger v. Worms, 4 Campb. 83.
56.
24
278 LAW OP VENDORS AND PUHCHASERS. [CH. XVI.
by arbitration. The yard was not, in fact, comprehended in
the property sold for the term at £55, but was held by the
vendor from year to year, at an additional rent ; and it was
essential to the enjoyment of the property leased for the
twenty-three years. It did not appear that the vendor knew
of the defect. Held, this defect avoided the sale, and was
not a mistake to be compensated for under the above con-
dition ; although, after the day named in the conditions for
completing the purchase, and before action brought by the
vendee, the vendor procured a lease of the yard for the term
to the vendee, and offered it to him.^
40. The conditions of sale of the lease of a public-house
described it as " a free public-house." The lease contained
a covenant, that the lessee and his assigns should take their
beer from a particular brewer ; this lease was all read over
by the auctioneer at the sale, and he said by mistake, that it
was a free public-house, and that this covenant had been de-
cided to be bad. Held, a purchaser, who heard the lease
read over, was not bound to complete the purchase, but was
entitled to recover back the deposit.^
41. A lessee of lands, subject to a covenant against certain
obnoxious trades, with a proviso for reentry, grants under-
leases of houses erected on the land, not containing a similar
covenant and proviso. Held, that a ptirchaser by auction of
houses on the land, and of the improved ground rents of the
houses so underlet, might recover back his deposit-money,
this omission in the under-leases not having been mentioned
in the conditions of sale.^
42. Certain leasehold houses were sold by auction, described
in the particulars and conditions of sale, as a well secured ren-
tal with reversionary interest, and an eligible investment, but
without warranty of title. By a local act, for the establish-
ment of the South London Ma/rket Compamy, the company
1 Dobell V. Hutchinson, 3 Adol. & ' Waring v. Hoggart, 1 Ry. & Mood.
EU. 335. 39.
2 Jones V. Bdney, 3 Campb. 285.
CH. XVI.] TWLB TO LEASEHOLDS. 279
were authorized to treat for, purchase, and take the premises
for the purposes of the act. No notice was given of this
liability in the particulars and conditions ; and the vendee
had no notice of it. The conditions contained no express
warranty of title. Held, this sale did not involve a warranty
of a clear title, free from all charges, incumbrances, and liabil-
ities ; but the purchaser was entitled to rescind the contract.^
43. Sale by auction, of a lot described in the particulars,
as " eleven houses, No. 1, 2, 3, &c., situate, &c., held by lease
of A." Previous to the lease, a small part of the ground
of No. 2 was subtracted from the possession of the lessee ;
but the lease contained a description and plan, in the mar-
gin, of the whole ground plot, including thjs part. Held,
although in equity A. should not be entitled to enforce the
covenants in the lease as to that part of the ground, yet, the
particulars referring to the lease, without an exception of
this plot, the purchaser was entitled to demand a title to
the whole estate contained in the lease, and an assignment
of the lease was not sufficient.^
44. A lessor covenanted, that, if the lessee should erect a
two-story dwelling-house, corresponding in elevation with a
house already built on a part of the premises, the lessor, at
the termination of the lease, would pay for the building, at a
valuation to be made by appraisers, to be appointed by the
parties. The tenant erected a building which did not cor-
respond in height with the dwelling referred to, and was
finished for a cabinet-maker's shop, but was capable of being
converted into a dwelling-house in a few days' time, at a
moderate expense. The lessor had early knowledge of the
character of the building, and made no objection, nor did he
give any intimation that he should refuse to pay for it, until
just before the lease expired, when it was too late to make
the building conform to the requirement of the lease. Be-
fore the lease expired, he concurred in the appointment of
1 Ballard v. Way, 1 Mees. & Wels. ^ Xomkins v. White, 3 Smith, 435.
520.
280
LAW OF VENDORS AND PURCHASEBS, [OH. XVL
appraisers, who met and examined the premises in presence
of the parties. Three days before th6 lease expired, the
lessor informed the appraisers, that the building was not
according to contract, and insisted that the lessee had no
claim for compensation. No award was made by the ap-
praisers. On a bin filed by the lessee for relief, and to com-
pel payment of the value of the building ; held, not a case
of fraud ; that the lessor might set up the defence, that
the building did not conform to the contract ; and that the
bill could not be sustained.^
45. The plaintiff, in the first and third counts of his decla-
ration, alleged, that, at the time of making the agreement
with the defeijdant, he was possessed of a house, for a cer-
tain term of years, to expire on the 25th December, 1856 ; and,
in the second, that he was entitled to the term, vmder and by
virtue of a certain contract. The proof was, that the plain-
tiff was possessed of a term oi twelve years only ; and there
was no contract or agreement under which he was at that
time entitled to an extension of the term. Held, that this
was a fatal variance, although it appeared that the plain-
tiff had since become possessed of a lease to expire in
December, 1856.^
46. In the sale and purchase of leaseholds, as in other
cases, the legal rights of the parties may be varied by notice, {a)
Thus the purchaser of a leasehold is held to contract, with
1 Pike V. Butler, 4 Comst. 360. ^ Routledge v. Grant, 1 Mood. & P. 717.
(a) While the purchaser of a leasehold inay incur certain liabilities and
obligations by notice, a lessee may by the same means acquire certain rights
as against a purchaser from the landlord. Thus, where a tenant for life
granted leases for lives under a power, and bound himself, upon the drop-
ping of a life, to grant a new lease, with the same provision for renewal, on
the death of any person to be named in any future lease ; and afterwards
joined in a sale; though the power is exceeded, yet, if a life drops in the
life of the lessor, the purchaser, having notice, must specifically perform by
granting a new lease with the same provision.
General notice to a purchaser, that there are leases, is notice of all their
contents. So a purchaser, being told that a part of the estate was in pos-
CH. XVI.] TITLE TO LEASEHOLDS. 281
notice of the clauses of the lease.^ And a purchaser of the
right and interest of another, under a contract for a lease,
with full notice of the nature of it, cannot object to payment
of the consideration, either on the ground that such contract
is not binding on the vendor, or for want of title.^ So the
mortgagee of a lease, vsrhich recited the surrender of a former
lease, which was in consideration of the surrender of a for-
mer lease, in which the plaintiff's title appeared ; was held
to have notice of the title.^
47. But, a landlord having given notice to his lessee, (un-
der a covenant in the lease,) that he would reenter, if the
premises were not put into repair within three months ; if
an auctioneer sell the lease, without communicating such
notice, the vendee may recover his deposit, although he knew
the dilapidated state of the premises at the time of sale.*
48. Questions have sometimes arisen, as to the introduc-
tion of pa/rol evidence to explain or vary written agreements
relating to leaseholds. In general, such evidence is not ad-
missible for this purpose. Thus, to prove a rent beyond
that expressed in the agreement.^ Nor, (in support of a bill
for specific performance,) to prove, from conversations before
and at the time of signing such agreement, that the premises
were to be "clear of all taxes," the memorandum being
1 Walter v. Maunde, 1 Jac. & W. 181 ; ' Coppin v. Fernyhough, 2 Bro. C. C.
Taylor v. Stlbbert, 2 Ves. 437. 291.
'^ Baxter v. Conolly, 1 Jac. & W. ' Stevens v. Adamson, 2 Stark. 422.
576. * Preston v. Merceau, 2 Black. 1250.
session of a tenant, was held Tbound by the lease. Taylor v. Stibbert, 2
Ves. 437.
C, being about to marry, applied to A., his landlord, and requested him
to change a cestui que vie in his lease, by inserting, in the place of an old
life, the name of his intended wife, which A. by letter promised to do. Upon
the faith of such promise the marriage was had, and the demised premises
settled upon the wife. Upon a bill by the wife, (C. being dead,) it was
held, that she would have been entitled to specific execution against A. ;
and, the estate of A. having been sold to O., who was deemed under the
circumstances to have had notice of the agreement, he was decreed specifi-
cally to perform it. Crofton v. Ormsby, 2 Scho. & Le£ 583.
24*
282 LAW OP VENDORS AND PXJKCHASERS. [CH. XVI.
written by the lessee, and these words omitted.^ But specific
performance was decreed, (after a trial at law,) of a parol
undertaking by the assignee of a lease, to indemnify the
original lessee, (the vendor,) against the rent and covenants ;
a presumption arising from the nature of the transaction,
and the assignment being " subject to the rents and cove-
nants on the part of the lessee ; " although the conditions of
the auction sale expressed no such engagement.^
49. A purchaser, who in his written contract stipulates for
a good title, cannot be required to complete the purchase
upon a defective title, on the ground of a verbal waiver of
such stipulation.^
50. In assumpsit, the first count recited an agreement,
that plaintiff should grant, and defendant take, a lease of
lands ; and that all straw, &c., on the lands when possession
was given up, should be valued by persons named respec-
tively by the parties, and the amount paid ; that, on the
execution of the lease, defendant should accept it, and exe-
cute a counterpart ; and that either party making default
should forfeit £300 ; that there were mutual promises to
perform the agreement; that defendant entered, and took
possession of the straw, &c. ; that he afterwards proposed
that the straw, &c., should be valued to the plaintiff by a
third person, and the plaintiff assented that it was so valued ;
that the plaintiff was ready to grant the lease, but the de-
fendant did not pay the amount of the valuation.
Second count, for goods bargained and sold, and taken by
the defendant under such bargain and sale.
Plea to the first count, that the first agreement was in
writing, signed by plaintiff and defendant, and the proposal
and assent for the valuation only verbal. To the second
count, that the goods consisted of straw, &c., which were
bargained and sold under a written agreement, by which
they were to be valued by persons chosen respectively by
1 Rich V. Jackson, 4 Bro. C. C. 518. ' Goss v. Lord Nugent, 2 Nev. & Man.
2 Pember v. Mathers, \ Bro. C. C. 52. 35.
CH. XVI.] TITLE TO LEASEHOLDS. 283
plaintiff and defendant ; and that no such valuation had
been made, but only a valuation (as above) ; that defendant
was ready, and had proposed, that they should be valued as
in the agreement ; but plaintiff refused.
Replication, 1. to the plea to the first count, that by the
proposal, assent, and valuation, the parties respectively waived
so much of the agreement as related to the valuation, and
substituted the other valuation ; 2. to the plea to the second
count, that the straw, &c., was bargained and sold under
the agreement in the first count mentioned ; that afterwards
defendant proposed, &c., (as in first count,) and plaintiff
assented, and it was valued accordingly ; by means of which
plaintiff and defendant waived, &c., (as in ihe replication to
the plea to the first count.)
Rejoinder to replication 1, that the waiver and substitu-
tion were by word of mouth only. To replication 2, that
the proposal and assent were by word of mouth only.
On general demurrer to the rejoinder ; held, that the orig-
inal was an entire agreement relating to an interest in lands,
and necessarily in writing ; that, even if the parties could
waive the whole verbally, they had not done so ; and that a
part could not be verbally waived, even though in itself not
required to be in writing.^
51. The application of the Statute of Frauds to the sale
and purchase of leasehold interests has often been brought
in question.
52. An agreement, by one having a term for years, to give
up possession to another, and allow him to become tenant
for the residue of the term, in consideration of his paying in
part for certain repairs, is within the statute.^
63. So an agreement by a termor to quit on a certain
day, and pay all outgoings up to that time, in consideration
of a sum to be paid him by one who has agreed with the
landlord for a lease at the end of the subsisting one.^ So
the statute is a good defence to a parol variation of an
1 Harvey v. Graham, 5 Adol. & Ell. ^ Bnttemer v. Hayes, 3 Jur. 704.
61. ^ Smith V. Tombs, 3 Jur. 72.
284 LAW OP VENDORS AND PtTRCHASBES. [CH. XVI.
agreement for a lease. But not if it only amounts to a
waiver in part, or to a declaration of trust.^ A parol agree-
ment made in the course of proceeding before an arbitrator,
that he shaU determine as to a lease to be granted, is within
the statute, and an award for a lease cannot be enforced.^
54. Upon the point, what constitutes a sufficient signing
or memorandum, it has been held that the bare entry of a
steward, in his lord's contract-book with his tenants, is not
evidence of itself of an agreement for a lease between the
lord and a tenant.^ But where A. agrees by parol with B.
for a lease, which is drawn, and then perused and corrected
by A.'s counsel, and afterwards engrossed and executed by
B. ; it has been doubted whether this is within the statute
as to A.* And if a party has entered into a parol agreement
for a lease, and a draft of it is prepared, though the agree-
ment is void under the statute, yet he wiU be bound by an
indorsement on the draft referring to the case.^
55. The question has been raised, whether a signing by
cm agent is a sufficient compliance with the statute.
56. A. was tenant for life, with power to lease by deed,
reserving the best yearly rent. The plaintiff entered into
possession, and expends money in building under an agree-
ment for a lease, proved only by the memorandum in writing,
entered in the book of A.'s authorized agent, and signed by
the agent's clerk, although shown to have been approved by
the agent, and according to the usual course of business. A.
died, and a bill was brought for specific performance against
the remainder-man. Held, first, no sufficient agreement in
writing, not being signed by an agent properly authorized,
and, if it had been, the memorandum not containing some
of the material terms of a lease, which were left to be made
out by parol evidence ; secondly, not to be established as a
parol agreement in part performed, both as it was not the
agreement of the principal, nor of the authorized agent, and
' Jordan v. Sawkins, 3 Bro. C. C. ^ Charlewood v. Duke of Bedford, 1
388 ; 1 Ves. 402. Atk. 497.
2 Walters v. Morgan, 2 Cox, 369. * Lowther v. Carril, 1 Vern. 221.
6 Shippey v. Derrison, 5 Esp. Ca. 190.
CH. XVI.] TITLE TO LEASEHOLDS. 285
also because the remainder-man had been guilty of no fraud,
upon which to charge him with the conveyances of the con-
tract. Also, that the plaintiff was not entitled to compen-
sation from A.'s representatives, for money laid out by him
on the faith of the alleged agreement ; such compensation
being in the nature of damages, and the fault lying in the
plaintiff's own negligence.'
57. Bill to recover a balance of purchase-money against
two defendants. Hendon, one of the defendants, contracted
in writing with the plaintiff for the purchase of a college
lease ; and the plaintiff agreed to renew the lease in the
name of Hendon, or such person as he should nominate and
appoint. Hendon directed the plaintiff to renew the lease
in the name of Cox, the other defendant, and declared he
bought it for him as his agent. The plaintiff brings the bill
against both for the residue of the purchase-money. The
decree at the roUs was against both defendants, to pay the
money, and, in case Hendon should pay it, that he might
prosecute the decree, in the name of the plaintiff, against
Cox. Cox appeals, for that he did not give any authority
in writing to Hendon to buy the lease for him as required
by the Statute of Frauds. Decree affirmed.^
58. With regard to the effect of part-performwnce upon
•the validity of a parol agreement ; specific execution of a
parol agreement for a lease for three lives, proved by one
witness, was refused ; the answer admitting an agreement
for one life only, supported by the testimony of one witness,
and not inconsistent with the evidence of part-performance
given by the plaintiff.^ So, in case of a bill for the execu-
tion of a parol agreement for a lease of a house to the
plaintiff, who, in confidence of the agreement, had laid out
money ; a plea of the Statute of Frauds was allowed.* But,
in case of a bill for specific performance of a parol agree-
ment for a lease, charging possession taken and other acts of
1 Blore V. Sutton, 3 Mer. 237. ^ Lindsay v. Lynch, 2 Sch. & Lef. 1.
2 Waller v. Hendon, 5 Vin. Abr. ' HoUis v. Whiteing, 1 Vera. 151.
524.
286 LAW OF Vendors and purchasers. [ch. xvi.
part-performance ; a plea of the statute, and answer, not
denying the acts alleged, but stating that the defendant,
being advised that he entered as tenant at will, gave notice
to quit ; was overruled.^ So, in case of an agreement for a
lease, in part performed by possession taken, though without
express assent, acquiesced in, and expenditure permitted;
specific performance was decreed according to the plaintiif's
evidence, against the assertion of a right of resumption by
the answer, and one witness, not proving that it was ad-
mitted.'^ So,. an agreement in writing for a lease, not signed
by the defendant, was specifically executed, on the ground of
part-performance, viz: possession taken and rent paid ac-
cording to the agreement.^ So, specific performance of a
parol agreement to grant a lease was decreed on the testi-
mony of one witness, confirmed by circumstances, against
the denial in the answer, after part-performance by delivery
of possession.* So, in case of a bill for specific performance
of a parol agreement to renew, the plaintiff having built a
house ; the only witness for the plaintiff proved an agree-
ment different from that in the bill ; and two defendants by
answer stated an agreement different from both. Held, in
strictness, the bill ought to be dismissed ; but specific per-
formance was decreed according to the answers, with costs
against the plaintiff.^ So, in case of a bill for specific per-
formance of a parol agreement to let lands ; the defendant
had suffered his wife to receive money firom the plaintiffs, in
consideration of fines, (he being incapable of receiving fines,)
and had written a letter to a third person, acknowledging
the demise, and stating that he was ready to make leases.
These circumstances were held sufficient to take the case
out of the Statute of Frauds.^ So a decree was made for
specific performance of an agreement to grant a lease, of
which only one part, signed by the plaintiff, was found in
1 Bowers v. Cator, 4 Ves. 91. ^ Mortimer v. Orchard, 2 Ves. 243.
2 Gregory », Mighell, 18 Ves. 328. ° Hartly v. Wilkinson, Irish Term
8 Kine u.'Balfe, 2 Ball & Beat. 343. Eep. 357.
* Morphett v. Jones, 1 Swanst. 172.
CH. :^I.] TITLE TO LEASEHOLDS. 287
the possession of the defendant, upon the grounds of pos-
session, drafts prepared and approved, and the execution
deferred only till repairs were completed. But an extension
of the term, according to a variation of the agreement, also
in writing, was refused, on the ground of want of consid-
eration.'
59. Bill by the tenant of a farm, for specific performance
of a parol agreement for a new lease, stating improvements
made at a considerable expense, continuance of possession
after the expiration of the old lease, and payment of an
increased rent under the agreement. Plea of the Statute of
Frauds ordered to stand for an answer, with liberty to
except.^
60. Bill for specific performance of a parol agreement to
grant a lease for twenty years, alleging acts in part perform-
ance. Plea of the Statute of Frauds ; and answer, denying
that the acts were done in part-performance. The plea was
saved to the hearing, with liberty to except ; the Lord Chan-
cellor inclining to the opinion that, though the agreement is
admitted, the statute may be used as a defence to the suit.^
1 Eobson V. Collins, 7 Ves. 133. ^ Moore v. Edwards, 4 Ve8. 23.
2 Wills V. Stradling, 3 Ves. 378.
288
LAW OF VENDORS AND PURCHASERS. [CH.%;vn.
CHAPTER XVIL
RESCINDING OF SALES.
1. General subject ; grounds for aban-
doning a contract.
10. Misdescription of tbe property.
13. Compensation.
^ 16. Presumption of rescission.
18. Waiver.
20. Mode of rescinding ; by vendor
or vendee ; form of actiom
28. Interest, improvements, &e.
1. In the foregoing chapters, relating to the subject of title,
it has been incidentally considered, for what defects of title
or other variances from the terms of the contract, the vendee
may refuse to complete the sale. In the natural order of
topics, we proceed to treat of the rescinding of a sale of
real property, generally. This will involve the extensive
subjects of fraud, mistake, personal incapacity, and other
legal or equitable grounds for avoiding the contract. In the
present chapter, we propose to consider more particularly
those causes, which are independent of any deceit or mis-
representation, and pertain rather to the condition of the
property sold. Reference will also be made to rescission by
the vendor as well as the vendee.
2. It may be remarked, that, if a party to the sale has
himself abandoned the contract, he cannot avail himself of
it in opposition to a legal claim, against which, until aban-
doned, it would have been a good defence. Thus, the de-
fendant, being entitled to an undivided moiety of a piece of
ground, agreed with the plaintiff, that, in case either of them
should purchase the other moiety, the whole should be
divided in a particular manner between them. This moiety
was sold to a third party, whererfpon the plaintiff and de-
fendant further agreed, that neither of them woxdd purchase
CH. XVII.] RESCINDING OF SALES. 289
it until they had agreed upon a sum to be given for it, sub-
ject to the former agreement. The defendant afterwards
refused to agree upoii the price, and, the plaintiff having
purchased the moiety, the defendant refused to carry the
agreement into effect. Held, in a suit for partition, the
defendant was bound to fix a price ; also, that he had aban-
doned the contract, and could not set it up as a bar.i
3. One party to a contract cannot abandon it as against
the other, although the former had no legal power to make
the contract, and although the collateral circumstances, with
reference to which the contract was made, have ceased to
exist. Thus, a railway company had a bill before parlia-
ment for making a railway from W. to S., with a line diverg-
ing to N. One of the objections to the bill was, that the
diverging line would cross another railway line. When the
bin was in committee, it was ascertained that this objection
would be removed, if the company were to obtain an estate
setjled on A. for life, with r^ainders over, which, however,
by their biU they would not be authorized to buy. An agree-
ment was entered into between the company and A. to
purchase this estate from A., and to perform aU such acts as
might enable A. to sell it. The biU was passed, without
obtaining any powers to purchase A.'s estate, and omitting
tjie diverging line. The line from W. to S., and every thing
connected with it, were afterwards abandoned by the com-
pany. In a suit by A. against the company, for specific
performance ; held, they were bound to perform.^
4. Nor can a vendor rescind the sale, upon the ground
that the plaintiff (the vendee) has wrongfully taken other
property, instead of the property sold.
5. Action for not permitting the plaintiff to carry away
from the land of the defendant, according to the conditions
of sale, certain trees purchased by the plaintiff. Defence,,
that before breach the plaintiff fraudulently felled and carried
1 Morris V. Timmins, 1 Beav. 411. ^ Hawkes v. Eastern, &c. 4 Eng.Law
& Eq. 91.
25
290 LAW OP VENDORS AND PURCHASERS. [CH. XVH.
away from the defendant's lands other trees, not sold to him,
as and for, and which were fraudulently pretended and repre-
sented by the plaintiff to be, the trees which were sold, and
which were equal to them in value and number. Held, an
insuiHcient defence, showing neither a rescission nor an
estoppel.'
6. In an action for money had and received, to recover a
deposit for a defect of title, the plaintiff must prove the title
bad, not merely that it has been deemed insufficient by con-
veyancers employed to advise upon it.^
7. A failure by the obligor, in a bond for title, to perform
the condition, is no ground for cancelling the contract in
equity.3
8. Contract to sell and convey, upon payment of the pur-
chase money, as the respective instalments became due, and,
in case of failure to pay any instalment when due, reserving
the power to ratify or re^ke the contract at pleasure. The
vendee entered upon and im^J|ved tHe land, and paid part
of the purchase-money, but failed to psy the balance at the
time stipulated, and the seller rescinded the contract, and
conveyed the land to another. The vendee files a bill in
equity to recover the consideration-money, and compensation
for the improvements, without alleging fraud or insolvency
in the vendor, and without asking other relief. Held, not a
case within the jurisdiction of equity.*
9. The conditions of sale represented that a deed, under
which A. claimed an interest in the estate, was a forgery,
that the vendor had made his affidavit to that effect, and,
therefore, that the purchaser should not take any objection
to the title by reason of that deed. The purchaser after-
wards refused to complete the purchase, brought an action
for his deposit, and obtained a verdict, the jury declaring the
deed to be genuine. Held, in a bill by the vendor for specific
performance, that at law the purchaser could not rescind on
1 Lewis V. Clifton, 25 Eng. Law & ^ Shoup v. Cook, 1 Smith, 29.
Eq. 380. * Notson V. Barrett, 1 Iowa, 302.
2 Camfield v. Gilbert, 4 Esp. Ca. 221.
CH. XYII.] KBSOINDING OP SALES. 291
the ground that the affidavit turned out to be untrue, and, in
equity, that the vendor, in case he could make a goc^ title in
other respects, was entitled to a decree for specific perform-
ance, with costs.*
10. With regard to misdescription of the land sold, as
ground for rescinding the sale, it has been held, that a pur-
chaser under a particular, giving a false description, is not
bound at law or in equity, nor by any act of his agent, with-
out a fresh authority or subsequent approbation; a diiferent
agreement requiring a fresh authority.^ So, where conditions
of sale are so obscurely worded, that, when taken in connec-
tion with the particular they are likely to mislead an ordinary
purchaser as to the nature of the property offered, it seems
the Court wiU discharge the purchaser in the argument of
exceptions to the title, without a motion to be discharged.^
So, an injunction to stay proceedings, in an action brought
by a purchaser to recover the amount of his deposit, was
refused; the description in the printed particular of sale
being calculated grossly to deceive as to the real nature and
value of the estate sold.* So, it is held, that specific execu-
tion will not be enforced, unless the parties have described
and identified the tract, or unless the contract furnish the
means of certainly identifying it.^ Thus, by the conditions
of sale, no further evidence of identity was to be required,
than what was afforded by the abstract, and the documents
therein abstracted. The descriptions in the documents dif-
fered amongst themselves, and from the descriptions in the
particulars of sale. Held, that the purchaser was entitled to
have further proof of the identity.^ So, misdescription of
the quantity of land, in regard to the acres being statute
acres or customary, is not matter of compensation, but a
ground for setting aside the sale.^
1 Cattell V. Corrall, 3 T. & Coll. 413. ^ Reed's Heirs v. Homback, 4 J. J.
2 Deverell v. Bolton, 18 Ves. 505. Mar^. 375.
8 Taylor v. Martindale, 1 Y. & Coll. " Tlowerr. Hartopp, 6 Bear. 476.
658. ' Price v. North, 2 Y. & Coll. 620.
* Stewart v. Allistori, 1 Mer. 26.
292 LAW OF VENDORS AND PURCHASERS. [CH. XVH.
11. On "the other hand, it has been held, that agreements
for sale (^ an estate, especially if by auction, depend on the
bona fides of the transaction ; therefore trifling errors in the
description are not material. Thus, the advertisement of
an estate described it all as freehold, though a small part
was held at will. After execution of articles, a treaty for
an exchange of that part took place ; pending which, at the-
time appointed for completing the purchase, the purchaser
took possession forcibly, but proceeded in the treaty after-
wards, till he finally refused to agree to the purchase. On a
bin of the vendor, the purchase-money was decreed to be
paid, with four per cent, from the time appointed ; but an
inquiry was directed, as to what ought to have been the
compensation at that time for the part not freehold; that,
with the out-going, to be deducted.^ So an injunction was
granted, to stay action against an auctioneer for the deposit,
although the estate was represented as freehold, with lease-
hold adjoining, and turned out to be almost all leasehold,
and although there had been great delay in making out the
plaintifl"'s title.^ So specific performance of an agreement
for the sale of an estate was decreed, notwithstanding a
variance from the description, with compensation for the
deficiency in value ; though a minute examination might
have discovered the defects ; as in the state of the house and
the cultivation of the lands : but not for a variance from the
description as lying within a ring-fence, this being an object
of sense, and upon the evidence the purchaser being ap-
prised of it.^ ■ So specific performance was decreed against
a purchaser at auction, where the representation in the par-
ticulars was so vague and indefinite, that it ought to have
put the purchaser on inquiry.* So a purchaser is not enti-
tled even to an abatement, for a deficiency in quantity ; the
particular describing the estate, as containing by estirnation
forty-one acres, be the same more or less.^ So, where lands
' Calcraft v. Roebuck, 1 Ves. 221. * Trower v. Newcome, 3 Meri. 704.
2 Fordyce v. Pord, 4 Bro. C. C. 494. ^ "Winch u. Winchester, 1 Ves. &
' Dyer v. Hargrave, 10 Ves. 506. Beam. 375.
CH. XVII.] RBSOINDINa OF SALES. 293
had been purchased under a decree in a creditor's suit, the
Court, on the application of a creditor, who had for four
years acquiesc^ in the purchase, and who was not sup-
ported in his objections by the other creditors, refused to set
aside the purchase on the ground of misdescription of the
land in the particulars.^ So it has been held, thal^the gen-
erality and vagueness of descriptions of copyhold property
on the court rolls are so well known, that a vendor is not
bound to show how such description is to be applied to the
present state of the property, if he prove that the property
has actually been enjoyed and passed under that description
for upwards of sixty yeais.^
12. And even where a judgment has been recovered at
law by the vendee, upon the ground of misdescription in the
deed, as compared with the contract ; equity will sometimes
interfere for relief. Thus a bill was brought to be relieved
against a verdict and judgment in ejectment for a farm,
which the purchaser of the manor would have to be com-
prehended under general words in the deed, but which were
never mentioned in the particular given before the purchase
was made, but enjoyed by the vendor severa;I years after the
sale of the manor. The plaintiif was relieved.^
13. We have already considered (chapters 13, 16,) the ^ht
of a purchaser to repeive compensation in equity, for any de-
ficiency in the land sold. It may be added, in the present
connection,* that no compensation will be aUowed in a case
of great intentional misrepresentation, although so provided
by the conditions of sale, in case of " any error or misstate-
ment" in the particulars.* So, in the analogous case, where a
party obtains an agreement by a partial misrepresentation, he
is not entitled to a specific performance, on waiving the part
affected by the misrepresentation ; the effect of such misrep-
resentation being, not to alter or modify the agreement, but
to destroy it entirely, and to operate as a personal bar to the
' Price V. North, 2 Y. & Coll. 220. ^ Tyler v. Beversham, Rep. Temp.
2 Long V. Collier, 4 Russ. 267. Finch, 80.
* Stewart v. Alliston, 1 Mer. 26.
25*
294 LAW OP VENDOKS AND PUECHASEKS. [OH. XVII.
party who has practised it.^ So a condition in articles of
sale, " that any error in the particulars shall not vitiate the
sale, but a compensation shall be made," 'only applies to
cases, where the circumstances afford a principle by which
this compensation can be estimated. Therefore, on the sale
of a reveiipion, expectant on the death of A. B. without chil-
dren, an error in the statement of A. B.'s age does not come
within the condition, (as it would, if the reversion were sim-
ply expectant on A. B.'s death,) because it affects the prob-
ability of the other contingency, which is not a subject, of
calculation. Hence the purchaser is entitled to rescind.^ So
a condition, " that if any mistake shall be made in the de-
scription, or any other error in the particulars of the property,
such mistake or error shall not annul the sale, but a compen-
sation shall be given, &c.," does not apply, where any sub-
stantial part of the property turns out to have no existence,
or cannot be found ; or where the vendor has maid fide given
a very exaggerated description of the property. The pur-
chaser may in such a case rescind the contract in toto?
14. The particulars of a sale at auction described two houses
as Nos. 3 and 4, and stated, that the taxes of No. 3 were
paid by the tenant. The houses were really Nos. 2 and 3,
thdfcgh the names of the occupiers were correct ; and the
taxes of No. 3 were farmed by the landlord. The houses
Nos. 2 and 4 were of the same rate ; but No. 4 was in the
best state of rfepair. Held, these misdescriptions were not
cured by a condition, that, if any error or misstatement should
be found in the particular, it should not vitiate the sale.*
15. On a sale under a decree, the abstract stated, that the
vendor was devisee of A., who took as heir to B., and, on
inquiry, the vendor's solicitor confirmed that statement ; and
the master accordingly approved of the title. Just before the
conveyance was executed, the purchaser discovered that C.
1 Clermont v, Tasburgh, 1 Jac. & ^ Robinson u. Musgrore, 2 Moody &
Walk. 112. Eobinson, 92.
2 Sherwood v. Eobins, Moody & Malk. * Leach v. MuUett, 3 Car. & P. 115.
194.
^H. XVII.] RESCINDING OF SALES, 295
was the heir of B., and it appeared that the solicitor had re-
ceived information of that fact, but concealed it. A motion
by the purchaser, to be discharged from his purchase, vi?^as
granted, though the vendor had obtained a release from C.
before the motion was made.^ So the defendant, on the 31st
of March, agreed to grant to the plaintiff a lease, habendum
from the 29th of September next, for twenty-one years, in
consideration of .£1,000, of which £10 was paid down, £90
was to be paid on the 13th of April, and the residue on hav-
ing possession. The plaintiff, being called upon to pay the
£90, demanded an abstract of title, which was refused.;
whereupon he gave notice that he would rescind the con-
tract, and commenced an action to recover the £10. It
appeared that, when the action was commenced, the defend-
ant had no power to grant the lease contracted for. Judg-
ment for plaintiff.^
16. But, as has been already seen, (Chap. 13,) the chan-
cellor will not always rescind a contract, because the vendor
has not a title to the whole of the land, but wUl decree to the
vendee compensation pro tanto? (a) Thus, where ,a sale at
auction is bond fide, the title 'good, the quantity of land the
same, and the description substantially true, though slightly
1 Dalby v. Fallen, 3 Sim. 29. ^ CoUard v. Groom, 2 J. J. Marsh.
2 Roper V. Coombes, 6 Barn. & Cress. 488 ; Reynolds v. Vance, 4 Bibb, 215.
534.
(a) The cases upon this subject, however, are not uniform,'but vary with
the particular circumstances and equities of each. Thus it has been held,
that equity will not compel specific performance, unless the vendor can
make a good title to all the land sold. Hepburn ». Auld, 5 Cranch, 278.
So it is held, that a party applying for specific execution of a land contract
will not be compelled to take lost land ; but, if part of the land described be
lost, he has the election, to take the safe part, and go for damages as to the
other, or he may refuse the land saved, and go for damages for the whole.
Bankin v. Maxwell, 2 A. K. Marsh. 494. So, where there was an out-
standing title to five hundred and seventy acres of the land purchased, the
owners of which obtained possession after the purchase ; held, equity would
decree a rescission of the contract, after judgment on the notes given to secure
the purchase-money. Parham v. Eandolph, 4 How. (Miss.) 435.
296 LAW OF VENDORS AND PCECHASERS. [CH. XVI?
defective or variant, specific performance vdll be decreed. As
where two adjoining lots were sold together, in one parcel, for
one price, and on one of them were buildings, which projected
two feet on the other. Held, this was not so material a defect
in the subject, or variation from the description at the sale, as
would entitle the purchaser to abandon the contract. But,
as the projection was not so obviously visible as to conclude
the purchaser, if he had exercised ordinary vigilance ; and as
the advertisement described the buildings as being on one of
the lots ; the purchaser was entitled to compensation, to be de-
ducted from the price.' So, a bond being given, to make title
to a particular tract of land, which should contain a certain
number of acres, but not to convey any other specific lands to
make good a deficiency ; the only remedy for such deficiency,
is a proportional compensation in money according to the
price agreed on for the whole tract, with interest. And, where
a plaintiff' sues in chancery, for conveyance of a specific tract,
and also of other lands, to make up a deficiency of quantity,
(relating to which deficiency he prays a discovery,) but, ac-
cording to the contract, appears entitled to compensation in
money, and not in lands ; the Court, after decreeing the first-
njentioned conveyance, (the deficiency, and the sum to be
allowed for it, being ascertained,) wiU go on to decree the
compensationr^ So want of title to fifty acres, part of a tract
of eight hundred and odd acres, not appearing to be impor-
tant to the purchaser, is no ground for a rescission, but for
compensation.^ So the sale, by auction, of a lot described as
a certain and limited body of a given extent, cannot be
rescinded, for a deficiency in measure of less than one twen-
tieth of the whole.* So a trustee, appointed by the court of
chancery, sold an entire tract of land, at a certain price per
acre, and the sale was ratified. At the time of sale, it was
known to the trustee and the purchaser, that a bill was pend-
ing for the recovery of an interest in such land, in opposition
1 King V. Bardeau, 6 Johns. Ch. 38. ^ Buck v. M'Caughtry, 5 Monf. 230.
2 Chinn v. Heale, 1 Munf. 63. * Soule v. Heerman, 5 Miller, (Louis.J
358.
CH. XVII.] RESCINDING 01- SAMS. 297
to the cestuis que trust. On that bill, it was finally decreed,
that the complainants were entitled to one fourth of the prop-
erty. After this decision, the purchaser filed a petition in
Chancery, setting it forth, and claiming to vacate the sale,
on the ground that he viras induced to make the purchase,
because of its proximity to his ovsm estate, and an important
road, leading from his estate through the purchased premises,
and connecting them together. But, the existence of the road
not being proved, the sale being made in perfect good faith,
and it appearing that the quantity of land to be obtained
from the trustee was not a material consideration in the pur-
chase; that the trustee could make a good title under the
decree to three fourths of the land ; that the petitioner had
secured to himself three fourths of the remaining fourth part ;
and that the trustee was placed in a situation, by a deed
from the party having the right, to give a title to the other
fourth of that part, which, if the petitioner chose to accept it,
would secure to him the entire object of the purchase, with-
out loss ; held, that he could not be discharged from his
contract, when the enforcement of it, subject to a proportion-
ate deduction for that which he had purchased from others,
would do him no injury .^ And in general it may be stated,
that, on a bill for specific performance, if the vendor be not
able to make a conveyance of the entire estate sold, the pur-
chaser may insist for the specific thing, so far as the right of
the vendor extends, and compensation out of the purchase-
money for any embarrassment of the title, or deficiency in
the number of acres sold ; ^ that, although a purchase of lands
cannot be dissolved in part and aflSrmed in part ; yet, if part
of the land is lost, the vendee may coerce a title for the part
saved, and compensation for the part lost ; ^ and that, where
a sale has been in part executed by a conveyance of part of
the land, and the vendor is unable to convey the residue.
1 Weems v. Brewer, 2 Harr. & Gill, 64 ; Westervelt v. Matbeson, 1 Hoffm.
390. Ch. 37.
2 McKay v. Carrington, 1 McLean, s gtep v. Alkire, 2 A. K. Marsh. 259.
298 LAW OP VENDOES AND PTJECHASERS. [CH. XVII.
equity will decree repayment of a proportionate part of the
purchase-money with interest.'
17. Rescission of the contract may be presumed or im-
plied ; as, for instance, from lapse of time. Thus an action
was brought on a written agreement, reciting that, whereas
the defendant had sold to the plaintiff a lot of land, who had
agreed to pay him £300 by a certain day, and to execute a
bond and mortgage to secure the payment ; the defendant
therefore promised and agreed to deliver a good and sufficient
deed for the land, on delivery of the bond and mortgage.
Held, being a mutual agreement, there was a valid consid-
eration; and, being signed by the party to be charged, it
was sufficient under the Statute of Frauds : but, four years
having elapsed from the date of the agreement, before the
plaintiff gave notice to the defendant that he should insist
on the agreement, and five years before he tendered a per»
formance on his part; it was presumed that the parties had
rescinded the contract, although the defendant had, within a
year after the contract, sold and conveyed the land, so as to
incapacitate himself to perform his agreement.^ So the
defendant gave the plaintiff a note, payable on time, with
interest annually, the plaintiff agreeing in writing, upon pay»
ment at maturity, to convey certain premises to the defend'
ant. The defendant took possession under a lease, agreeing
to pay a certain rent, if the note were not paid at maturity,
and remained in possession. The note was not thus paid.
The plaintiff resumed possession, but the defendant con-
tinued to occupy under a lease. Held, this was a disaffirm-
ance of the contract by the plaintiff, and equivalent to
payment of the note ; upon which no suit would afterwards
Ue.3
18. The right to rescind may be waived. Thus, a con-
dition of sale was, that, in case the purchaser should raise
objections to the title, which the vendor should not be able
1 Pratt V. Law, 9 Cranch, 458. ' Porter v. Vaughn, 26 "Verm. 624.
2 Ballard v. Walker, 3 Johns. Cas. 64.
CH. XVII.] RESCINDING OP SALES. 299
or willing to remove, the vendor might rescind the contract,
on notice and repayment of the deposit to the purchaser;
objections not delivered within fourteen days after the de-
livery of the abstract to be treated as waived, in which
respect time was to be essential. The purchaser returned
the abstract with queries within the fourteen days, and the
vendor answered the queries ; the purchaser on the same
day objected to the answers ; the correspondence on the
subject of the title continued for several weeks, and then the
vendor gave notice that he rescinded the contract. Held,
the continuance of the treaty after the first objection was a
Waiver of the condition ; more especially as such a condition
ought to be discouraged, and not to receive a construction
oppressive on the purchaser ; that the vendor's right to re-
scind must be coextensive with the purchaser's right to object
to the title.i So if a purchaser, after delivery of the abstract,
which shows part of the estate to be subject to a right of
sporting not mentioned in the particulars, enters into posses-
sion, he waives that objection; and a subsequent offer of
compensation, made by a clerk of the vendor's solicitor,
without express authority, is of no effect.^ So if a purchaser
pay part of the purchase-money, and occupy some time
under the contract, he cannot, on the vendor's breach of his
agreement to convey, rescind the contract, and recover back
the money in indebitatus assumpsit ; his only remedy is on
the special contract.^ So a condition of sale prosfided, that,
if the purchaser should raise objections to the title, which
the vendor should not be able or willing to remove, the ven-
dor might rescind, and that all objections not taken in writ-
ing, within ten days after delivery of the abstract, should be
considered as waived. Held, the condition referred to the
first delivery of objections, and, if the vendor expressed his
willingness to answer them, he could never afterwards re-
scind.^
1 Morley v. Cook, 2 Hare, 106. ' Barickman u. Kuykendall, 6 Blackf.
2 Bumell V. Brown, 1 Jac. & W. 168. 21.
* Tanner v. Smith, 10 Sim. 410.
300 LAW OF VENDOKS AND PiniCHASEKS. [OH. XVH.
19. The right to rescind a written agreement may not
apply to a subsequent parol agreement, by which the former
has been waived. Thus, an agreement was entered into by
A., for the sale of an estate to B., to be completed, and the
purchase-money paid, on or before the expiration of five
years ; in the mean time, interest to be paid half-yeajly ;
the vendor reserving a right to avoid the contract, if the
interest should be in arrear for twenty-one days. To enable
B. to pay the interest, then in arrear, C. advanced a sum of
money, on mortgage of B.'s interest, and A. afterwards
verbally agreed with C. to extend the term for the payment
of the half-yearly interest. The interest became afterward%
in arrear, in such a way that A., by the original agreement,
had a right to annul the contract, but he had no such right
under the varied agreement. A. reentered as for a forfeiture.
The Court, on the application of C, appointed a receiver
over the property.'
20. To obtain a rescission, it is not necessary to pay the
whole of the puichase-money. Thus, where negotiable notes
have been given, and are outstanding, Chancery will inter-
pose.2
21. Purchase of land in Ohio, from a vendor in Virginia,
to be paid for by instalments. On the failure of any of the
payments, the vendor, by giving notice, and paying into the
Bank of Virginia, his heirs, executors, or administrators, to
have a right to annul the contract. Held, the contract, ex-
cept by consent, could be annulled in no other manner.^
22. By conditions of sale, all objections to the title were
to be taken away within twenty-eight days from the delivery
of the abstract, and, if not removed within fourteen days,
the vendor might annul the contract on payment of the
deposit, but without costs. The purchaser having made a
valid objection, which was not removed, the vendor gave
notice to annul the contract. Held, the vendor might avail
1 Dawson u. Tates, 1 Beav. 301. " McKay v. Carrington, 1 McL. 50.
« Ibid.
CH. XVII.] EBSOINDING OF SALES. 301
himself of the condition ; otherwise if, in giving the notice,
he had sought improperly to escape from the performance of
a duty, which, by the nature of the contract, he was bound
to perform.'
23. A proviso that, in case the vendor cannot produce a
title, or the purchaser shall not pay the money, on the ap-
pointed day, the agreement shall be utterly void, gives an
option to the vendor to rescind the sale, in case the vendee
does not pay the money, and to the purchaser to rescind, in
case the vendor does not make a title ; but not vice versa?
24. It is the prevailing doctrine, that, if the purchaser has
paid any part of the purchase-money, and the seller refuses
to complete the contract, the purchaser may elect either to
affirm the contract, by bringing an action for its non-per-
formance, or disaffirm it by an action for money had and
received. The latter remedy lies, if ftiere be a defect in the
title which the vendor fraudulently suppresses, and receives
a part of the purchase-money.° (a)
25. In an action for the general breach of an agreement
respecting the purchase of a house, the declaration need not
state a collateral representation made at the time of sale, as
that the house was in repair, &c.*
26. Where a contract is entered into for the purchase of
an estate, by certain persons in their own names, but in fact
on their own account, and also as agents for others, a biU to
rescind the contract may be filed in the names of aU the
parties.^
27. Where partners are numerous, a biU may be filed by •
1 Page V. Adam, 4 Beav. 269. * Thomson v. Miles, 1 Esp. Ca.
2 Koberts v. Wyatt, 2 Taunt. 268. 184.
8 Lyon V. Annable, 4 Conn. 350 ; ^ Small v. Attwood, Yon. 407.
Putnam u. Westcott, 19 Johns. 73.
(a) Contrary to this rule, it has been held in New York, that where, on
a contract to pay for and receive a conveyance of land, the money has
been paid, but no conveyance given, the vendee cannot rescind, and sue for
the purchase-money and interest, but must bring his action on the contract
as still subsisting, Fuller v. Hubbard, 6 Cowen, 13.
• 26
302 LAW OF VENDORS AND PUBCHASERS. J^CH. XVII.
some of them on behalf of themselves and the others to
rescind the contract, if manifestly for the benefit of aU.'
28. With regard to the respective rights of the parties
after a sale has been rescinded, if the vendee has had pos-
session, he must account for the profits exceeding the im-
provements.2 He has a lien on the land for his purchase-
money and interest, and the value of the improvements, and
is liable to rents, &c. ; but both interest and rents should run
only from the date of the prayer to dissolve the contract.*
So, when a sale of land which the purchaser has paid for,
and was put in possession of, is rescinded, for causes free of
firaud ; the use of the money, and the use of the land, are
held to balance each other ; and the decree should, in gen-
eral, restore the money to the purchaser without interest, the
land to the vendor without rents or profits. But, if the pur-
chaser has made valuable and lasting improvements, or if
the land has suffered in his hands through neglect or mis-
management; these are subjects of valuation, account, and
final settlement by the decree.*
29. But it has been held that the vendee cannot maintain
a distinct action at law for the improvements. Thus, the
plaintiff''s intestate entered into a parol agreement, in 1803,
with the defendant, for the purchase of 100 acres of land ;
took possession, paid part of the purchase-money, cleared
part of the land, made improvements, and died in 1807.
The plaintiff, his administrator, tendered the residue of the
purchase-money, and demanded a deed ; but the defendant
refused to receive the money or execute a deed, and took
possession of the land. The plaintiff then brings assumpsit
for the money paid, and also for the work and labor per-
formed and improvements made oh the land by the intestate.
Held, the contract was rescinded, and the plaintiff was en-
titled to recover back the money, but not for the labor or
improvements.^
1 Small V. Atwood, You. 407 ; 3 Y. ' Griffith v. Depew, 3 A. K. Marsh.
& Coll. 105. 180.
2 Bullock V. Beemiss, 1 A. K. Marsh. - * Williams v. Rogers, 2 Dana, 375.
434. ^ Gillett t>. Maynard, 5 Johns. 85.
cH. xvni.]
MISTAKE.
303
CHAPTER XVIII.
GROUNDS FOR AVOIDING A SALE. — MISTAKE.
1. General remarks.
3. Mistake, what.
4. Ignorance or mistake of law and
fact.
8. Equitable relief in case of mistake ;
mode and extent of.
10. Compensation or rescinding in case
of mistake ; quantity of land sold and
conveyed; sale in gross, or by bound-
aries ; more or less, &c.
16. Title to part of the property sold ;
when sufScient.
17. Compensation.
. 22. Rescission of the sale.
25. Rights of the vendor in case of
mistake.
30. Waiver.
33. Reforming of agreements.
40. Parol evidence.
1. Having in the foregoing chapters considered the sub-
jects of title to the property sold, and of the right to rescind
the sale for want of title ; we now proceed to a general
statement of the grounds, upon which a sale of real property
may be avoided, whether connected with, or wholly inde-
pendent of, the question of title. The subject is, of course,
an extensive one, and involves many subordinate topics,
some of which have little in common, except that they alike
constitute causes, which render a sale wholly or partially
void or voidable.
2. The failure of title, in whole or in part, which has
already been considered with reference to its bearing upon
the contract, is to be understood as unaccompanied with
deceit, fraud, or intentional misrepresentation. In the view
now to be taken, these wiU be found essential elements of
the defective title ; consisting either in positive falsehood,
negative concealment, or that kind of implied fraud which
grows out of the personal incapacity of a contracting party.
There is, however, one among this class of causes for avoid-
ing the contract, which is more nearly connected than the
others with simple defects of title; and therefore, in the
B04 LAW OF VENDORS AND PURCHASERS. [CH. XVIII.
natural succession of subjects, should be first of aU consid-
ered. We refer to mistake. In the absence of fraud, this of
course is the only remaining explanation of want of title,
and it has therefore been already incidentally considered in
the foregoing chapters. It was also briefly adverted to in
the introductory chapter upon the distinction between exe-
cuted and executory contracts, (Chap. 1, s. 40.) But as a
distinct ground for avoiding or varying the contract, resisting
specific performance, or claiming compensation in damages,
it now remains to be fully considered. It will at once be
seen that, with reference to this particular topic, it becomes
necessary to depart from the prevailing plan of the present
work, and to speak of executed conveyances of real property,
no less than of executory contracts to convey it ; because
the most frequent class of mistakes consists* in a variance
between the property conveyed and that contracted for ; and
the reforming of deeds is one of the most common exercises
of the powers of a Court of Equity in relation to this ex-
tensive subject.
3. Mistake is defined, as " an error committed in relation
to some matter of fact afiecting the rights of one of the
parties to a contract.^ It is also said, " mistakes in making
a contract are distinguished ordinarily into, first, mistakes as
to the motive ; secondly, mistakes as to the person with
whom the contract is made ; thirdly, as to the subject-matter
of the contract; and lastly, mistakes of fact and of law."^
4. Ignorance of title, or, which amounts to the same thing,
mistake of title, {a) is said to be partly of law and partly of
1 2 Bouv. L. D. 178. 2 ibia,
(a) As to the distinction between these terms, see Story on Equity, § 140,
■a. 2 ; Champlin v. Laytin, 18 Wend. 407. Surprise is also a term of sim-
ilar import. Thus it is held, that a party shall not be entitled to specific
performance, in case of any surprise, making it not fair and honest to call
for it, but will be left to law. Mortlock v. BuUer, 10 Ves. 292. So a lease,
with covenant for perpetual renewal at a fixed rent, of premises held under
a church lease, renewable upon fines, which were continually increasing,
CH. XVm.] MISTAKE. 305
fact} {a) "Viewed, respectively, in these different aspects, it
has been in som^ cases held a sufficient, and in others an in-
sufficient ground for avoiding a sale or purchase of real prop-
erty. The prevailing doctrine of our law is, that ignorance
of law can never be set up as a ground of action or defence,
" ignorantia legis neminem ezcnsat." (b) Hence, a mistake,
as to the rights growing out of a known state of facts, is
not, in general, sufficient to avoid a contract, in which those
rights are involved ; while a mistake as to the facts them-
1 1 Story Eq. 132, § 120.
was decreed to be delivered up on the ground of surprise, neither party
understanding the effect of it. Willan v. Willan, 16 Ves. 72.
(a) The question of heirship, for instance, has been held to partake of
both elements. Story, § 122, n.
(6) In Lansdowne v. Lansdowne, Mosel. 364 ; 2 Jac. & W. 205 ; Lord
King remarked, that this maxim applies only to crimes, not in civil cases.
The facts of that case were these : The plaintiff, who was heir at law and
son of the eldest brother, had a controversy with his uncle, the youngest
brother, as to the question which was heir to another deceased brother of his
uncle. They consulted a neighboring schoolmaster, who, upon examining the
Clerk's Remembrancer, gave his opinion in favor of the uncle, because lands
could not ascend ; upon which the parties agreed to divide the lands, and
accordingly executed, first a bond and then a conveyance. The plaintiff
brings a bill for relief from these instruments, alleging that he had been
surprised and imposed upon by the schoolmaster and his uncle. The uncle
being dead, his son and the schoolmaster were made defendants ; and the
latter admitted in his answer, that he had given the opinion, being misled by
the book, and that he had recommended to the parties to take further advice;
but that the plaintiff had afterwards told him, that, if his uncle would, he
would agree to share the land between them, let it be whose right it would,
and thereby prevent all disputes and lawsuits. Upon which the schoolmaster
prepared the papers, and they were executed. Lord Chancellor King de-
creed, that the bond and conveyances were obtained by mistake, and mis-
representation of the law, and ordered them given up to be cancelled.
This case was closely criticized and doubted by the Supreme Court of
the United States, in Huntu. Eousmaniere. 8 Wheat. 214 ; 1 Pet. 215 ; and
also by Lord Cottenham, in Stewart v. Stewart, 6 Clark & Fin. 966; and,
so far as it proceeds upon a mere mistake of law, is undoubtedly opposed to
Ih^ weight of authority. ^See Story on Equity, eh. 5, Mistake.
26*
306 LAW OF VENDORS AND PXJROHASEKS. [CH. XVIII.
selves, which constiiute the other element of title, may
furnish good ground in equity for relief, (a) ^
5. Thus, if an executor purchase lands belonging to his
testator's estate, at a public sale made by himself and his
co-executors, under a mistake of law as to the power of sale
conferred on them by the will, he cannot be relieved in
equity.'
6. A testator devised to his wife the use of all his real
estate, until his son came of age, if she should continue his
widow, and, if she should marry again before his son came
of age, he bequeathed to her certain personal property. The
vsridow thus married, and received the bequest. The land
was sold at sheriff's sale, as the property of the son. The
widow, her husband, and the purchaser entered into an
indenture under seal, reciting the purchase, subject to the
widow's claim by right of her deceased husband ; and agree-
ing that one third of the income should be paid to her for
I Dill V. Shahan, 25 Ala. 694.
(a) It has been held, however, that a contract entered into under a
mutual misoonception of legal righta, amounting to a mistake of law in the
contracting parties, by which the object of it cannot be accomplished, is as
liable to be set aside or rescinded, as contract founded in mistake of matters
of fact. Champlin v. Laytin, 1 Edw. 471.
Where an instrument is drawn and executed for the purpose of carry-
ing into effect a previous contract, written or parol, which, by mistake of
the draftsman, in fact or in law, does not fulfil the intention of the parties ;
equity will correct the mistake. Rogers v. Atkinson, 1 Kelly, 12 ; Collier
V. Lanier, 1 Kelly, 238. So it has been held, that, where property has been
conveyed, through mistake, which the parties never intended shpuld be
conveyed, which the grantor was under no legal or moral obligation to con-
vey, and which the grantee could not, in good conscience retain ; Chancery
will correct the mistake, whether it arose from a misapprehension of the
facts, or of the legal operation of the deed. Otherwise, in general, where
the conveyance was such as the parties intended, and the grantee may in
good conscience retain the property ;, although the grantor may misteike the
extent of his title. Stedwell o. Anderson, 21 Conn. 139. It is held that
Equity will not relieve for mistake of law, unless such a mistake be a gross
one. Haden v. Weare, 15 Ala. 149.
CH. XVni.l MISTAKE. 307
life. The statute of Pennsylvania of April 4, 1797, provides,
than any devise or bequest to the testator's widow shall be
in lieu of dower, unless the testator otherwise declare, or the
widow elect to take her dower. Held, the purchaser was
bound to perform his agreement.^
7. 'A bill in Chancery, brought by a son agaiiftt his father,
alleged,^ that it was agreed between the parties, that the
plaintiff should purchase of the defendant a farm of the
value of $4,000, and give two promissory notes, one for
$2,000 on demand with six per cent, interest, the other for
the same amount, with five per cent, interest, payable at the
decease of the defendant, and then to be delivered up unpaid
to the son as his portion of the father's estate ; that the par-
ties thereupon applied to a Justice of the Peace, to draw the
necessary writings to carry such agreement into effect ; but by
accident, and through their own want of knowledge, they
failed to give him the information requisite for this purpose,
and he drew the last-mentioned note payable in three years,
and omitted the stipulation that it should be delivered up at
the death of the father, unpaid, which note was signed by
'the plaintiff, he being ignorant of the operation of law
thereon ; that the defendant had brought an action on such
note, and was endeavoring to enforce it ; and praying for an
injunction and other relief. Held, 1. That the mistake was
not a mistake of fact, but of law. 2. That parol evidence
was inadmissible to prove the agreement set forth. Bill
dismissed.^
8. With regard to the mode and extent of the relief
afforded by Courts of Equity for mistakes of fact, it is held
that equity will relieve against mistakes as well as frauds,
either in a deed or contract in writing ; and this, either where
the plaintiff seeks relief affirmatively, on the ground of mis-
take, or where the defendant sets it up as a defence, or to
rebut an equity.^ So, it seems, either by requiring the re-
1 McAninch v. liaughlin, 13 Penn. Collier v. Lanier, lb. 238; Goodell v.
371 . Keld, 1 5 Verm. 576 j EoseYelt v. Fulton, .
2 Wheaton v. Wheaton, 9 Conn. 96. 2 Cow. 129.
^ Rogers v. Atkinson, 1 Kelly, 12 |
308 LAW OF VBSDOKS and purchasers. [cH. XVIII.
funding of money paid under the contract, or by annulling the
contract itself.^ Thus the common mistake of both parties
to a contract is held to avoid such contract.^ So, specific •
performance of an agreement being a subject of discretion,
it is refused in case of mistake, though there be no fraud.^
So trustees ^ill not be compelled to perform an agreement
entered into under mistake, to sell for an inadequate consid-
eration.* So relief is given against a contract, where the
purchaser knew that the vendors, the assignees of a bank-
rupt, were ignorant of a circumstance considerably increas-
ing the value,^ So a conveyance obtained from persons
uninformed of their rights is set aside, though there was
no actual fraud or imposition.^
9. But it is equally well settled, that Courts of Chancery
will not interfere to correct alleged mistakes in contracts
and deeds, or set them aside, unless those mistakes are
admitted by the defendant's answer, or very conclusively
proved." Thus, evidence drawn from the admissions of par-
ties, in a casual conversation, when they are not supposed
to state all the facts in relation to a particular subject, has
been held not satisfactory for this purpose.^ So it is said,*
" It must be plainly made out, that the parties meant in
their final instruments merely to carry into effect the arrange-
mentsv designated in the prior contract or articles. The very
circumstance, that the final instrument of conveyance or
settlement differs from the preliminary contract, affords of
itself some presumption of an intentional change of purpose
or agreement, unless there is some recital in it, or some other
attendant circumstance, which demonstrates, that it was
merely in pursuance of the original contract."® So it is held,
that the party suffering from mistake must take prompt steps
for relief.i^ And, if the contract is made under a mutual
1 Champlint). Laytin, 18 Wend.407; ^ Evans v. Llewellyn, 2 Bro. C. C.
Griswold v. Smith, 10 Vern. 452. 150.
_ 2 Stapylton v. Scott, 13 Ves. 427. ' Griswold v. Smith, 10 Verm. 452.
s Mason v. Armitage, 13 Ves. 25. ^ Cleavland v. Bivton, 11 Verm. 138.
* Bridger v. Eice, 1 Jac. & Walk. 74. ' 1 Story's Eq. 169, § 152; 177, § 160.
6 Turner v. Harvey, Jac. 169. i" Beard v. Hubble, 9 Gill. 420.
CH. XVIII.] MISTAKE. 809
mistake as to the title, the vendee is entitled to a rescission, if
he seeks it in a reasonable time after discovery of the mistake,
and abandons the possession, delivering or oifering to deliver
it to the vendor ; the right to rescission not depending upon
his payment or offer of the purchase-money, nor upon the
vendor's insolvency, but upon his own promptness in seeking
such rescission.! (See s. 30.)
10. We have already had occasion (Chaps. 13, 17,) in
considering the general subject of title, to discriminate be-
tween the diiferent classes of cases, in which mistakes occur,
with regard to the property sold, or its quantity or value ;
sometimes not in any way affecting the validity of the con-
tract; sometimes merely giving the right of compensation
or indemnity ; and sometimes authorizing an entire rescission.
At the risk of occasional repetition, it becomes necessary, in
the present connection, as bearing directly upon the subject
of this chapter, to consider the effect of mistake upon the
binding authority of the contract of sale and purchase, in
the threefold aspect above mentioned.
11. The most common mistake in sales of real estate
relates to the quantity of land conveyed, as compared with
the agreement or intent of the parties upon that subject.
The general principle is laid down, that the vendor of land,
as containing a certain quantity, more or less, when he
knows from the title deeds or otherwise, that it contains a
much less quantity, is in equity bound to make good the
difference. But, where a contract has been consummated
without any fraud, misrepresentation, or concealment as to
the quantity, the Court will not inquire whether there has
been a rnistake upon that point.^ So, if the vendor sells, and
the vRidee buys, a tract of land, for so many acres, more or
less, and it turns out upon a survey, that there is less than
the estimated quantity, the Ijjiyer shall not be relieved in
equity.^ Where a specified tract of land is sold for a sum
in' gross, the boundaries control the description of the quan-
1 Smith V. Robertson, 23 Ala. 312. 3 Jollife v. Hite, 1 Call, 262.
2 Veeder v. Ponda, 3 Paigo, 94.
310 LAW OF VENDORS AND PTJKOHASERS, [OH. XVIII.
tity, and neither party can have a remedy against the other,
for an excess or deficiency, unless it is so great as to furnish
evidence of fraud or misrepresentation; otherwise, where
the mistake is in the boundaries, and not in the quantity of
acres. So where the deficiency is not in the thing described,
but in the ability of the defendant to convey it.^ So it is said,
the. cases in which equity interferes, where the quantity of
the land exceeds or falls short of that specified in. the deed
or contract, are those in which the sale has been made by the
acre or foot ; or where there has been fraud or wilful misrep-
resentation on the part of the party against whom relief is
sought.2 So where there is a written contract for the sale of
land by the acre, equity will not relieve the purchaser on the
ground of a mutual mistake as to the boundaries, unless the
mistake be fully and clearly proved.^
12. But in case of a sale of land by the acre, relief is to be
granted for all deficiencies, not reasonably imputable to the
variation of instruments, and small errors in surveys, whether
the purchaser has expressly retained an election to have the
tract surveyed or not.* And this principle is not departed
from, but in case of a sale by the tract, the purchaser clearly
agreeing to take the hazard of all deficiencies upon him-
self.5 (a)
' Voorhees v. De Meyer, 2 Barb. 37. * gee Joliffe v. ^te, 1 Call, 301, 329 ;
2 Morris, &c.u.Einmett, 9 Paige, 168. Hull v. Cunningham, 1 Munf. 336;
8 Leas V. Eidson, 9 Gratt. 277. Grantland v. Wight, 2 Munf. 179; Du-
* Nelson V. Carringtpn, 4 Munf. 332. vals v. Ross, Ibid. 290.
See Quesnell v. Woodlief, 2 H. & M.
174 ; Nelson v. Matthews, Ibid, 164, 181.
(a) If A. purchase a tract of land as " containing about a specified num-
ber of acres, more or less, at a certain price per acre, the quantity to be
ascertained by actoal survey, if A. shall require it ; " this is ajal^y the
acre, if A. shall require the survey. And if no time be specifiedTorWaking
his election, he may demand the survey at any time before the whole busi-
ness shall hav6 been concluded, and a title to the land made or tendered by
the vendor. So though he has taken possession, or given bonds for the
purchase-money. Nor is such right necessarily limited by the last day
of payment ; for even then he is not bound to part with the purchase-
money, nor to make a final adjustment of the balance due, unless a title is
made or tendered, agreeably to the contract. 4 Munf. 332.
CH. XVIII.] MISTAKE. 311
13. The plaintiff sold to the defendant three tracts of land,
" containing nine hundred ninety-one acres and a quarter,
and allowance, at twelve shillings and sixpence per acre."
The plaintiff afterwards obtained patents in his own name,
and executed a conveyance of the tracts to the defendant,
describing them by courses and distances according to the
patents, and as "containing in the whole nine hundred
ninety-one acres and a quarter, and allowance, &c., be the
same more or less." The defendant, having previously paid
a part of the purchase-money, gave his bonds for the balance
on the day after the conveyance, with a mortgage on the
three tracts, stating them to contain "in the whole nine
hundred ninety-one acres and a quarter, and allowance," and
describing them by courses and distances. Upon a survey
made twelve years afterwards, the tracts were ascertained to
fall short 88 acres, 48 perches. Held, the defendant was
not entitled to any deduction from his bonds on account of
the deficiency.
14. Bond to convey a lot of land, number 78, in the
township of Lysander, &c., containing 600 acres. A deed
was delivered, describing the lot as " containing 600 acres,
be the same more or less." On actual survey, the lot was
found to contain only 4211 acres. In an action on the bond^
held, the mention of the quantity of acres was matter of*
description, and the delivery of the deed for the lot, accord-
ing to its usual and known description, was a performance
of the bond.^
15. Agreement by A. in November, 1811, to convey " all
his plantation in L. township, adjoining lands of D., B., and
others, reference being had to several deeds of conveyance
to A. wiU show the metes and bounds ; the whole tract con-
tains 225 acres and allowance ; 201 acres the said A. has a
patent deed for, and the remaining 24 he wiU also get a
patent deed for." In April, 1812, a conveyance was made
of 225 acres, more or less, the hand money paid, and bonds
1 Mann v. Pearson, 2 Johns. 37.
312 LAW OF VENDORS A-ND PDECHASERS. [CH. XVIII.
given for the residue. In 1823, the vendee discovered by
actual measurement, that the patented tract fell short 20
acres and 90 perches. Held, he was not entitled to any
deduction, in a suit on one of the bonds, for this deficiency.^
16. We have heretofore (Chap. 13,) spoken of the effect
upon the sale of a partial want of title. This is to be under-
stood as the result of mistake ; inasmuch as any fraud of
the vendor avoids the sale, alike whether the faSure of title
be partial or total. Upon this subject it has been held,' that,
where land is sold at auction in separate lots, and several
are purchased by one person, this is not an entire contract 5
and, if the vendor 'cannot give a title as to all the lots, the
vendee cannot rescind the agreement in toto, but must take
a 'conveyance of such as he is authorized to convey. In such
case, the vendor is bound, if required, to give separate deeds,
and his offer to execute one deed for the whole does not
render the contract entire,^ So the complainant sold at
auction to the defendant several parcels of adjoining land,
separately, but delayed several years to execute the convey-
ances, though importuned to do s6. Afterwards the defend-
ant discovered, that the title of one of the tracts, a principal
one, was not in the vendor ; arid refused to complete the
jpurchase, alleging that Jhis tract was the principal object of
fthe purchase, but offering on the trial no proof of this alle-
gation. Held, there was no ground to vacate the contract ;
that the delay in executing the conveyances should not pre-
vent a specific performance, but was ground only for deduct-
ing interest.^
17. With regard to the right of compensation for partial
failure of title ; it is held that a Court of Equity may inquire
t into aU the circumstances, and ascertain how far one part
of the bargain induced the rest, and award compensation
, accordingly ; but at law, a vendor cannot, on an entire con-
tract, recover any part of the purchase-money, where he
' Frederick v. Campbell, 13 S. & E. ^ Van Epsw. Schenectady, 12 Johns.
136 ; M'Lelland v. Creswell, lb. 143. 436.
* Osborne v. Bremar, 1 DesSus. 486.
CH. XVni.] ^ MISTAKE. 313
t
cannot make title to the whole estate, nor is a purchaser
entitled to retain that part, the title to which is good, and
vacate the contract as to the rest.^ Thus it is held that,
where a farm is sold for a gross sum, or at so much per
acre, and the quantity mistaken by the parties, equity will
relieve the party injured. The vendee has a right to take
the farm at the price of the real number of acres, and to
have compensation for the deficiency, if- he has paid the
consideration. But it may be otherwise, if the statement
of the quantity be mere matter of description, and not of
the essence of the contract ; as where the contract conteiins
the words " more or less," or " containing by estimation,"
&c. ; although, if there be any fraud or wilful misrepresen-
tation of the quantity, equity will afford relief even in these
latter cases.^ So, if the title to part of the land sold fails,
the vendee may claim a specific perfn^mance as to the re-
mainder, and a compensation in damages.^ More especially,
want of title to an unimportant part of the ground is a
subject of compensation, not a ground for rescission.* So,
where a purchaser cannot get a title to all he contracted for,
if he can get the substantial inducement to the contract, he
may insist upon taking, or he may be compelled to accept, a
tide, with reasonable compensation.^ So, in a sale of land
by the acre, and not of a tract in gross, if an unusual and
unreasonable excess or deficit appears, Chancery will relieve ;
particularly if the deed contains no indication that the ven-
dor intended to sell the tract " more or less." ^ Thus a
mistake of the parties, in a sale by the acre, of the boun-
daries of the patent under which the vendor sold, whereby
he sold and conveyed 1000 acres outside of the grant; is
ground for relief against payment of so much of the pur-
chase money ; although, the land not obtained not being
1 Johnson v. Johnson, 3 B. & P. 162 ; * Durrett v. Simpson, 3 Monr. 519.
Chit, on Contr. 303. ^ Evans v. Kingsberry, 2 Band. 120.
2 Stebbins v. Eddy, 4 Mas. 414. « Whaley v. Eliot, 1 A. K. Marsh.
8 Morss V. Elmendorf, U Paige, 277. 343.
27
314 LAW OF VENDORS AND PURCHASERS. ^ [CH. XVni.
material to the purchaser, he cannot have a rescission.^ (a)
So, though land be sold in gross, for so much, be it more or
less ; yet, if both parties were clearly mistaken in a material
point, as to the lines by which the vendor held, and there
was no express agreement of the purchaser to take the risk,
equity wiU give relief for the deficiency. But, unless the
purchaser, by eviction or otherwise, lose the land he expected
to get ; as if he make an entry for it as vacant, and obtain a
patent ; the proper measure of relief is only the amount of
his expenditures in procuring the patent, with a reasonable
allowance for troable, and actual costs of suit.^
18. Diminution of one hundred and seventy-one acres of
high land, out of six hundred and sixty-two acres of high
and swamp land. Notice was given at the sale that a claim
existed, and that, if it succeeded, a proportional deduction
would be made. Moreover, the purchaser voluntarily re-
newed the bond for the price in part to a third person, sev-
eral years after the purchase ; and the renewed bond had
been assigned for valuable consideration. Held, no ground
for a rescission; but that the purchaser was entitled to a
deduction out of the original bond ; also of interest till a
resurvey by the vendor.^
19. In 1788, the defendant, owning a tract of land called
Sion Hill, held by him and his forefathers under a survey
upwards of a hundred years old, advertised it for sale as con-
taining about eight hundred acres ; and believing that, as it
was an old survey, it would probably contain more than
eight hundred acres, he afterwards sold it to the plaintiff,
according as it had been held by him and his ancestors under
the old survey, for £3,200, (equal to £4 per acre,) offering to
survey it, if the plaintiff would pay at the same rate for the
1 Grant v. Coombs, 6 Monr. 281 . ' Wainwright v. Bead, 1 Desans. 573.
s Hull V. Cunningham, 1 Mnnf. 330.
(a) Whether a sale of land be by the acre, or in gross, is a question of
intention of the parties, to be collected from all the circumstances of the
transaction. Bierne v. Erskine, 5 Leigh, 59.
CH. XVIII.] MISTAKE. 315
excess ; which the latter, (who also believed that it contained
more than eight hundred acres, as it was an old survey,) de-
clined. Subsequent to the execution of the deed, the plain-
tiff had the land surveyed, and found it to contain much less
than eight hundred acres. Whereupon he filed a bill in
chancery, for a proportional deduction from the purchase-
money. Held, the deficiency was too great for a purchaser,
notwithstanding the sale was for eight hundred acres, more
or less. Decree for a deduction, and also jin indemnity
against aU charges and incumbrances on the estate.^
20. Where a vendor erroneously supposes he has title to
certain land, and contacts to seU and convey it, he cannot
be compelled to convey an adjoining lot, to which he has
title.2
21. A deduction, for want of title to part of the land, was
directed to be taken equally off all the instalments.'
22. There is a still stronger class of cases, where equity
wiU wholly rescind or anrml the bargain, by reason of mistake
of one or both of the parties. Thus it is said, that a vendor
is bound to know he actually has that which he professes to
sell. And, even though the subject of the contract be known
to both parties to be liable to a contingency, which may
destroy it immediately, yet, if the contingency has already
happened, it will be void.* Thus, if one person should sell a
messuage to another, which was at the time swept away by
a flood, or destroyed by an earthquake, without any knowl-
edge of the fact by either party ; oquity would relieve the
purchaser.^ So, if a life-estate be sold, which, at the time of
sale, is terminated by the death of the party in whom it is
vested, but without the knowledge of either party; equity
will rescind the contract.® So where a purchaser buys the
interest of a vendor in a remainder in fee, expectant on an
estate tail ; if, at the time of the contract, the tenant in tail
1 Quesnel w. Woodlief, 6 Call, 218; * Hitchcock v. Giddings, Daniel's
S. C. 2 Hen. & Munf. 173, n. Exch. E. 1.
2 Morse v. Blmcndorf, 11 Paige, 277. ^ Hitchcock v. Giddings, 4 Price, 135-
8 Grant v. Coombs, 6 Mon. 281. ^ Allen v. Hammond, 11 Pet. 71.
316 LAW OF VENDORS' AND PURCHASERS. [OH. XVItt.
had actually suffered a recovery, of which both parties were
ignorant till after the conveyance had been executed, and
an absolute bond given for the purchase-money ; equity will
rescind the contract,' on the ground that the vendor had no
interest in the subject-matter at the time of the sale.^ So
where, by the mistake of both, parties, one contracted to sell
and convey, and the other to purchase and pay for, a sup-
posed gore of land, which had in fact no actual existence ;
the vendee cannot file a bill in equity for specific perform-
ance, or for a compensation in damages,^ So, where an
estate is purchased at auction, under a mistake as to the lot
put up for sale, the Court will not decree specific perform-
ance against the purchaser, but leave the vendor, if he has
sustained any damage by the mistake of the purchaser, to
his remedy at law. A bill for specific performance was
accordingly under such circumstances dismissed, without
costs.' So where, at the time of entering into a contract
for sale of a tract of land, there was a misunderstanding be-
tween the parties as to the identity of the land, to which the
contract related ; a court of equity, in its discretion, ought
not to interfere by decreeing a specific performance.*
23. The general doctrine upon this subject is stated to be,
that, in an executed contract, where there has been a gross
mistake in the quantity sold, for " more or less," the com-
plaining party, who has practised no fraud, nor any culpable
negligence, nor impaired his equity in any other way, is enti-
tled to relief in chanceily^. And his condition is still more
favorable, where the opposite party comes into chancery for
a specific execution ; for then he must show that he has a
clear right to it, equitably and conscientiously ; otherwise he
will be left to his legal remedy. With regard to the degree
or amount of excess or deficiency necessary to constitute
a gross mistake, a difierence of 33 per cent., between the
actual and the estimated quantity of land sold in the gross»
1 Hitchcock V. Giddings, 4 Price, 135. ' Malins v. Freeman, 2 Kee. 25.
' Morss V. Elmendorf, 11 Paige, 277. * Graham v. Hendren, 5 Munf. 185.
CH. XVni.] MISTAKE. 817
has been held to raise a presumption of such mistake, and
give a claim to relief in chancery.^
24. Although, as has been seen, (Ch. 13^) the conditions of
sale provide that any error or misstatement in the particulars
shall not vitiate the sale, but be made the subject of compen-
sation to the vendor or purchaser, aS the case may be ; this
condition will not apply to a wilful or fraudulent misstate-
ment. Thus, where an estate thus sold was described as
about one mile from Horsham, a borough town, when in fact
it was between three and four miles ; in an action to recover
the deposit. Lord EUenborough remarked, that the clause in
question was designed to meet unintentional errors ; not to
compel the purchaser. to complete the contract, if designedly
misled ; and left this question to the jury ; who found a ver-
dict for the plaintifF.2
25. The vendor as well as the vendee may claim relief on
the ground of mistake. Thus, if lands be sold by metes and
bounds ; and the vendor covenant to warrant the title ; he is
bound to include, in a conveyance with warranty, and, in
case of eviction, to make compensation for, aU the lands
within those bounds, which he held and claimed as his own
at the time of sale, and showed to the purchaser as part of
the lands sold ; notwithstanding his title thereto may be de-
fective. But not lands which were not thus held and claimed,
nor thus shown ; although his title papers may comprehend
them.^
26. But when a tract is sold upon a conjectural estimate
of -the quantity, for a gross sum, and the variance is not very
extraordinary, showing that it could not have been conterA-
plated, there can be no relief. Thus it is held, that a surplus
of forty or fifty acres, in a tract of one thousand, would not
justify a decree for the value of the surplus.* So if one, who
has obtained a survey upon a land warrant for two thousand
acres, seU and transfer it for valuable consideration, and
1 Harrison v. Talbot, 2 Dana, 258. Innis v. M'Crummin, 12 Mart. 425 ;
2 Norfolk v: Worthy, 1 Camp. 337. Morris v. Emmett, 9 Paige, 168.
' Beverley v. Lawson, 3 Manf. 317 ; * Clark v. Bell, 4 Dana, 115.
27*
318 LAW OF VENDORS AND PUEOHASEKS. fCH. XVHI.
assign the plat and certificate to the purchaser, whereupon
he obtains a patent in his own name ; and if, upon a resur-
vey, it appear that the grant conveys two thousand seven
hundred acres ; the vendor cannot in equity support a claim
for the surplus against the vendee.^
27. Upon a sale of land by auction, the advertisement de-
scribed the tract as containing three hundred acres. On the
day of sale, doubts being expressed as to the quantity, the
vendor said, " he would sell it at three hundred acres, more
or less, and he would sell it by the acre, and it should be
measured ; " and it was accordin_gly cried and sold at so
much per acre. Held, the vendee was fcound to take it,
although a subsequent survey showed an excess of forty -five
acres. Also, that, if the vendee refused to carry the sale into
execution, and the vendor resold at a less price, the vendee
would be liable for the loss. K the vendor acted bond fide,
and with reasonable care, the measure of damages is the
difference of price on the resale.^ So, if A. contract to con-
vey to B. one hundred acres of land, adjoining C, and make a
deed, according to a mistaken survey furnished by a surveyor,
calling for one hundred acres ; and afterwards the tract is
ascertained to contain one hundred and -nineteen acres ; A. is
entitled to a reconveyance of the surplus.^ But a vendee,
required to surrender a surplus, may elect fi:om which end or
side of the tract it shall be taken.* So, where A. purchased
of B. one hundred and sixty-five acres of land, but obtained
from B. an obligation to convey all his right in the tract, that
right being supposed to be only one hundred and sixty-five
acres, but which turned out to be more ; equity will not en-
force the claim for the surplus.^ And, in general, whenever
it does not clearly appear, that land was sold by the tract,
and not by the acre, the vendee ought to be responsible for
the value of the surplus land ; which value is ordinarily to
1 Vowles V. Craig, 8 Cranch, 371. * Harrison v. Talbot, 2 Dana, 266.
2 Ashcom V. Smith, 2 Penn. 211. ' Smith v. Smith, 4 Bibb, 81.
' Gilmore v. Morgan, 2 J. J. Marsh.
65.
CH. XVm.] MISTAKE. ' 319
be estimated by the average value, per acre, of the whole
purchase.!
28. Sale of a tract of land, described in a covenant for a
conveyance, by its boundaries, and as containing four hun-
dred acres, for $6,000. It really contained four hundred and
ninety acres ; and the vendee files his bill for a conveyance
of the whole for $6,000. The vendor insists, that the sale
was, in fact, by the acre, at $15, the parties being under a
mistake as to the quantity, which, from a famUy tradition,
had been called four hundred acres ; arid that he had a right
to retain the surplus, unless he was paid for it. Decree for
the plaintiff.^
29. Where part of a tract of land is lost, but there is a
surplus in the tract, for which the vendor is entitled to pay ;
and, the value of the surplus exceeding the loss, the latter is
deducted, and a decree rendered for the balance ; it should
so appear by the decree ; which should also release the ven-
dor from his obligation to convey the lost land.^
30. A vendee may waive his right to rescind on the ground
of mistake. Thus a sale was at first made of a farm, for so
much per acre, to be ascertained by measurement. After-
wards, the parties agreed to waive any measurement, and
the vendee took the farm at the gross sum of $2,500, sup-
posing it to contain fifty acres, from the representation of
the vendor ; which the vendor himself believed to be true.
In the deeds, the quantity was stated to be forty-seven and a
half acres, more or less. The real quantity was forty acres
and a half. Held, the vendee was not entitled to relief in
equity ,^ach p^r#y having been well acquainted with the local
boundaries of the farm.*
31. But equity will not hold the rights of a party to be
waived, except by unequivocal acts or declarations of such
waiver. Thus, in a case of mistake by conveying to a hus-
band and wife, instead of conveying to the wife alone ;
. 1 Hundley v. Lyons, 5 Munf. 342. » Clark v. Bell, 4 Dana, 115.
See Nelson v. Matthews, 2 H. & M. 178. * Stebbins v. Eddy, 4 Mas. 414.
^ Harrison w. Talbot, 2 Dana, 258.
320 LAW OP VENDOES AND PXIECHASBRS. [CH. XVm.
upon a bill in equity brought after the death of the wife,
by her heirs, it appeared, that mo*e than twenty years had
elapsed, between the execution of the deeds and the com-
mencement of the suit ; during which time, the defendant
was in possession, and his wife never called upon him to
rectify the mistake, or complained of it to him ; but also,
that he was unquestionably entitled to the use of the prop-
erty, .that there was nothing in the manner of that use
adapted to awaken suspicion of mistake, and that she had
no knowledge of the mistake, until about a year and a half
before her death, and, when it was communicated to her,
was troubled about it. Held, the lapse of time di'd not affect
the rights of the plaintiffs.*
32. The plaintiff purchased at auction a house, of which
he did not know the position, by the description in the par-
ticulars of sale, of No. 58 on the north side of PaU MaU,
opposite Marlborough House. The same particulars stated
the amount of the rent, rates, and taxes of the house. The
house was not in Pall Mall, but behind No. 57 Pall MaU,
and only connected with Pall Mall by a narrow passage
leading through the ground floor of No. 57, and communica-
cating with the street by a door numbered 58. He did not
make any objection to this, but, upon discovering that the
cellars of No. 57 extended underneath this passage, and un-
der a small part of No. 58, and that the floor of the passage
was not very strong, he filed a bill to set aside the contract,
and for the return of the deposit, with interest. Held, he
was entitled to this relief, notwithstanding that by his con-
duct he had waived his right to object to thft positioft of the
house, upon the ground that the passage was not such an
access to the house as he was entitled to expect, from the
description.^
33. The ordinary course, as has been seen, for correcting
mistakes by the interposition of a court of equity, is to re-
1 Stedwell v. Anderson, 21 Conn. 139. ^ Stanton v. Tattersall, 21 Eng. Law
& Bq. 154.
CH. XVni.] ' MISTAKE. 321
scind the sale in whole or in part, or decree restitution of the
purchase-money. The same object is also accomplished, by
reforming the agreement or the conveyance in which a mis-
take is alleged and proved to have been made, (a) The
general doctrine is, that a court of chancery will correct a
written instrument, where through mistake it was written
differently from the intention of the parties.^ And such relief
is not effected by erasures or interlineations of the instru-
ment, but by injunctions, and orders for necessary and pr(J^er
releases,^
34. It was agreed by a father and his children, three sons
and a daughter, that referees should divide his real estate
into two parts, assigning one part to two of the brothers, and
the other part to the other brother and the sister. This being
done, the brother and sister agreed, with the assent of the
father, that the referees should divide their portion between
the two, which was done ; but, there being no buildings on
the land assigned to the sister, they assigned to her an un-
divided half of the buildings. The father then caused deeds
to be written by one of the referees, tha!t to the sister being
intended and supposed to be a deed of the part assigned to
her by the last award. They were executed by the father,
and delivered to A., to be delivered to the grantees on his
death. By mistake, the deed to the sister did not include
the undivided half of the buildings. Held, equity would de-.
cree, that deeds of release should be executed by the respon-
1 Goodell V. Field, 15 Verm. 576. ^ gmith v. Greeley, 14 N. H. 378.
(a) The general power of reforming contracts, as a distinct branch of
equity jurisdiction, has not been conferred on the Supreme Court of Massa-
chusetts. (See Statutes, 1847, ch. 214.) Babcock v. Smith, 22 Pick. 69.
See Bellows v. Stone, 14- N. H. 175. Where neither fraud, mistake, or
surprise is proved, a court of equity will not interfere to reform an agree-
ment or deed, which is such as the parties designed it to be. A conventional
trust cannot be set up on a special parol agreement, inconsistent with the
terms of the deed. McElderry v. Shipley, 2 Md. 25.
•°
322 • LAW OP VENDORS AND PUEOHASEES. [CH. XVIH.
dents to the orators, (the sister and her husband,) of one
undivided half of the buildings. ^
35. Four sisters being the joint owners of land, they and
their husbands mutually agreed, that it should be aparted to
them in severalty. One of the husbands undertook to pre-
pare deeds for that purpose ; and by mistake, misapprehen-
sion, and ignorance, the name of each husband, as a grantee
with his wife, was inserted. There was no intention, in any
of •them, to convey to the husbands a greater interest than
they would be entitled to, as husbands ; but, under the deeds,
each husband took an estate in fee. One of the sisters died,
without having had issue. Upon a bill in chancery, brought
by her heirs at law, against her husband, who was in posses-
sion, claiming title under one of the deeds ; held, as the de-
fendant was concerned in making and carrying out the mis-
take, as he had paid nothing for the land, and as he was now
holding it contrary to the intention and agreement of the
parties, the plaintiffs were entitled to a decree in their favor,
establishing the title in them.^
36. Where, by a" mistake of boundaries in a deed, more
land is included than was intended, equity will not reform
the boundaries, after the land has passed to a bond fide pur-
chaser without notice.^
37. In a bill to reform an agreement, on account of mutual
.misapprehensions, the Court, although they cannot reform
the agreement, will afford relief by causing it to be set aside.*
38. A bill in equity to reform a conveyance, on the ground
of accident or mistake, will be held defective on demurrer,
unless the persons under whom the defendant claims by deeds
of warranty, made since the alleged mistake or accident, are
made parties ; and unless an allegation is contained in the
bill, that the grantees in such deeds purchased with notice of
the mistake or accident.^
1 Craig V. Kittredge, 3 Foster, 231. * Bellows v. Stone, 14 N. H. 175.
2 Stedwell v. Anderson, 21 Conn. 139. ^ Davis v. Eogers, 33 Maine, 222. .
8 Whitman v. Weston, 30 Maine, 285.
OH. XVm.] MISTAKE. 323
•
39. A bill to correct a mistake in a written agreement
must not only state the agreement, as it ought to have been
reduced to writing, but also the substance of the written
agreement itself. And the party alleging a mistake holds
the affirmative, and must satisfy the Court, beyond all rea-
sonable doubt, that the alleged agreement was made, and
that a mistake has occurred in reducing it to writing.^'
40. A mistake in a written instrument may be shown by
parol proof.2 And this, as well on the part of the plaintiff
who seeks relief or a reformation of the writing, and to have
it afterwards enforced, as on the part of a defendant who
resists its performance.^ So, though denied in the answer.*
But not of a mistake in law.^
41. Evidence offered in equity to reform a deed need not
be positive, in the strictest sense of that term ;^ but it must
be clear, strong, and satisfactory.^ Thus, it seems, mere
confessions are insufficient.^
1 Coles V. Brown, 10 Paige, 526. « Greer v. Caldwell, 14 Geo. 207 ;
"Rosevelt v. Fulton, 2 Cow. 129; Goodell w. Field, 15 Verm. 576.
Beard w* Hubble, 9 Gill, 420. ' Beard v. Hubble, 9 Gill, 420 ; Leas
* Bellows V. Stone, 14 J{. H. 175. u. Eidson, 9 Gratt. 277.
* Gillespie v. Moon, 2 Johns. Ch. 585. ^ Gillespie v. Moon, 2 Johns. Ch. 585.
* Wheaton v. Wheaton, 9 Conn. 96.
324
LAW OF VENDORS AKD PTJKCHASERS.
[CH.
XIX.
CHAPTER XIX.
GBOUNDS OF AVOIDING A SALE. — FRAUD.
1. Misrepresentation avoids a sale.
3. Whether made ignorantly or in-
tentionally ; express or implied.
10. Under what circumstances the
Tendee is bound by a fraudulent sale ;
waiver; mode of rescinding; acceptance
of deed ; lapse of time, &c.
21. Part-performance and compensa-
tion.
28. Parties ; principal and agent, &o.
34. Fraud of the vendee.
41. Evidence, damages, &c.
1. It has been seen that even mistake may wholly or par-
tially avoid a sale and purchase of real property. We
proceed now to consider the somewhat analogous subject of
fravd; consisting either in positive misrepresentation, or
wilful concealment; or in circumstances of personal inca-
pacity, or terms and conditions of sale, from which a f?audu-
lent purpose may be inferred. In the first place, actual
misrepresentation of the seller avoids the sale. Thus, mis-
representation, though in a slight degree, is an objection to
a specific performance.^ As, for example, misrepresentation
of the Value of an estate.^ So articles may be set aside for
fraud and imposition.^ So a vendor cannot maintain a biU
for specific performance of a sale at auction, where the ven-
dee was induced to purchase by his fraudulent contrivance
and management.* So Equity wUl rescind a sale at the
request of the vendee, and restore the purchase-money, in
case of false representations by the vendor, relative to his
title ; and the whole conduct of the vendor may be inquired
into relative to the matter.^ So specific performance was
1 Cadman v. Horner, 18 Ves. 10.
2 Wall V. Stnbbs, 1 Madd. 80.
" Baugb V. Price, 1 Wils. 320.
* Rodman v. Zilley, 1 Saxt. 320.
' Smith V. BobertsoD, 23 Ala. 312.
OH. XIX.] FRAUD. 325
refused, even on the ground of representations made at the
sale by the vendor, of improvements, affecting the value of
the premises, intended by him, which were not carried into
effect.i
2. But it has been held, that it is not every representation
of the vendor in regard to property sold, that will amount to
fraud, be it ever so exceptionable in point of morals.'-' So
also, that, to avoid a contract for misrepresentation, it must
be shown that the other party intended a deception, and wp,s
successful therein, to the damage of the party defrauded.^
Thus specific performance was decreed against a purchaser,
where the representation in the particulars of sale, (com-
plained of as calculated to mislead,) was so vague and in-
definite, that it ought to have put the purchaser on previous
inquiry.*
3. The doctrine, however, seems to be now well estab-
lished, that actual misrepresentation avoids the sale, even
though made through ignorance of the seller himself. It is
said, a seller is bound to act with the utmost good faith, and,
if he mislead the purchaser by a false or mistaken statement
as to any one essential circumstance, the sale is voidable.*
So the general principle may be gathered from the authori-
ties, that, if a party innocently and by mistake misrepresent
a material fact, affecting the value of the property, upon
which another party is ignorantly induced to act, it is as
conclusive a ground for relief' in equity as a wilful and
false assertion.^ So it is said, any person undertaking to de-
scribe is bound by the description, whether conusant or not.''
Whether with a fraudulent design or innocently, yet, if a
false impression has been conveyed and inade the basis of a
1 Beaumont v. Dukes, Jac. Ch. 422. Pile v. Shannon, Hard. 55 ; McFerrin
• 2 Yeates v. Prior, 6 Eng. 58. v. Tavlor, 3 Cranch, 270 ; Woods v.
3 Pratt V. Philbrook, 33 Maine, 17. Hall, 'l Dot. Eq. 411 ; Smith v. Bab-
* Trower v. Newcome, 3 Mer. 704. cock, 2 Woodb. & M. 216 ; Hough w.
5 Doggett B.Emerson, 3 Story, R. 659. Richardson, 3 Story, 659; Lewis v.
" Waters v. Mattingly, 1 Bibb, 244 ; McLemore, 10 Yerg. 206. See Duck-
Shackleford v. Handley, 1 A. K. Marsh, enfield v. Whichcott, Cha. Cas. Pt. 2, 24.
370 ; Bibb v. Poather, &c. Pr. Deo. 153 ; ' Calverley v. Williams, 1 Ves. 21 1 .
28
326 LAW OP VENDORS AND PtmCHASEES. [OH. XIX.
contract, the extraordinary jurisdiction of the Court will not
be exercised, by coercing a specific performance.^ A mis-
representation in a matter of substance, afFegting the value
of the estate, is a good defence to a suit for specific perform-
ance, although the vendor, as well as the vendee, was
ignorant of its untruth. As in case of an erroneous state-
ment, that land in a distant State was situated in a particu-
lar county, in which the purchaser desired to buy.^ So,
where a purchaser buys on faith of a false representation by
the seller touching the essence of the contract, the sale will
be set aside in equity, whether the misrepresentation were
the resiilt of fraud or mistake.^ So, although equity will
not rescind a sale, on account of a defect in the title, when
a conveyance has been executed and accepted, and there is
no fraud or misrepresentation ; yet where there is a mis-
representation of a material fact, which was believed Snd
acted upon, it is immaterial, in the view of a Court of
Equity, whether or not the party making the statement knew
it to be false.* So a trustee was charged in respect of a
misrepresentation to a purchaser ; he having notice, and
alleging only that he did not recollect the fact.*
4. The commissioners of a town, in selling the lots, in
good faith, but untruly, represented, "that there was along
the whole extent of the town a first-rate steamboat landing
all seasons of the year'; that the landing was one of the
safest and best on the Mississippi ; that on the west side of
the river, immediately opposite the town, there was more
elevated ground than was to be found on that side of the
river, and that the nearest and best road could be made frpm
that point to Little Rock." Held, the representations were
material, and the purchasers, having bought under a suppo-
sition that they were true, were entitled to relief.^ ,
5. Bill, originally brought in New York, to rescind a con-
1 Gurley v. Hiteshue, 5 Gill, 217 ; ^ Doggett v. Emerson, 3 Story, E.
Yonng V. Frost, 5 Gill, 287, 313 ; Chit. 659.
on Contr. 302, n. * Lanier v. Hill, 25 Ala. 554.
2 Best V. Stow, 2 Sandf. 298. ^ Burrowes v. Locke, 10 Ves. 470.
* Lewis V. McLemore, 10 Yerg. 206.
CH. XIX.] FRAUD. 327
tract for the purchase and sale of land in Virginia, on which
there was a gold mine, alleging fraudulent misrepresentations
as to the mine, and other arts of the seller, by which the
purchaser was induced to buy. Decree for the plaintiff. In
this case, (a leading one upon the subi^,) the Supreme
Court of the United States remarked, iiWubstance, as fol-
lows : It is an ancient and well-established principle, that
whenever suppressio veri or suggestio falsi occurs, and more
especially both together, they afford sufficient ground to set
aside any release or conveyance. The party selling property
must be presumed to know whether the representation which
he makes of it is true or false. J£ he knows it to be false,
that is fraud of the most positive kind ; but if he does not
know it, then it can only be from gross negligence ; and,
in contemplation of a Cfjurt of Equity, a representation
founded on a mistake resulting from such negligence is fraud.
The purchaser confides in it upon the assumption that the
owner knows his own property, and truly represents it.
And it is immaterial to the purchaser whether the misrepre-
sentation proceeded from mistake or fraud. The injury to
him is the same, whatever may have been the motives of
the seller. The misreprespntations of the seller of property,
to authorize the rescinding a contract of sale by a Court of
Equity, must be of something material, constituting an in-
ducement or motive to purchase ; and by which he has been
misled to his injury. It must be in something in which the
one party places a known trust and confidence in the other.
Whenever a sale is made of property not present, but at a'
remote distance, which the seller knows the purchaser has
not seen, but which he buys upon the representation of the
seller, relying on its truth, then the representation in effect
amounts to a warranty ; at least the seller is bound to make
good the representation.^
6. Any apparent discrepancy in the authorities upon this
subject may be to some extent reconciled by the considera-
1 Smith V. Bichards, 13 Pet. 26.
328 LAW OP VENDORS AND PURCHASERS. [CH. XIX
tion, that, although the law does not make the vendor respon-
sible for every unauthorized, erroneous, or false representation
made to the vendee, even though it may have been injurious,
unless also fraudulent ; yet, where one has made a represen-
tation po^itively^r professing to speak as of his own knowl-
edge, without nlmng any knowledge on the subject, the
intentional falsehood is disclosed, and the intention to de-
ceive is also inferred.1 (a)
7. Upon the ground above stated, it has been held, that
on a bill filed by a vendee for rescission of the contract,
alleging a fraudulent misrepresentation of a material fact by
the vendor ; if the evidence shows an honest mistake only,
the intent being immaterial, the variance is not fatal, and
relief will be granted.^
8. Where, in a treaty for the sale of property, the vendor
makes material misrepresentations, even though through
mistake, by which the purchaser, having no knowledge or
means of knowledge in relation thereto, is actually deceived
to his injury, equity will rescind the contract, although it
do not itself contain the misrepresentations.^ So, misrepre-
sentations on a plat of lands, produced at the time and place
of a public sale, are good grounds for rescission. As where
a fine stream of water was laid down, with a good mill-seat
on it, in the centre of a tract of timber land, fit only for
lumber; and which, upon examination, turned out to be only
a dry gully three fourths of the year, without any running
water in it. And such misrepresentation may be given in
Evidence against a bond given for the consideration-money,
1 Hammatt u, Emerson, 27 Maine, ^ Hough v. Bichardson, 3 Story, E.
308. 659.
2 Lanier v. Hill, 25 Ala. 554.
(a) It has been held, however, that an agreement, containing a guaranty,
that there is a certain quantity of timber upon a tract of land, does not
necessarily include the idea, or authorize the inference, that the person
making it knows the fact to be, as the guaranty stipulates that it shall be,
for the foundation upon which business is to be transacted. Hammatt v.
Emerson, 27 Maine, 308.
CH. XIX.] FRAUD. 329
by way of discount, under the terms of a discotmt act, in a
Court of Common Law.^
9. Upon similar grounds, a compromise of rights, doubtful
in point of law, but founded upon a misrepresentation or
suppression of facts in the knowledge of one of the parties
only, cannot be supported. Therefore a deed of compromise,
induced by the opinion of counsel, upon a case laid before
him, which was prepared by the defendant's agent, but mis-
taking the tenures under which the estates, the subject of
the compromise, were held, was set aside.^ So, where one
having a clear title to £12 for rent, and claiming the prop-
erty of the land, is induced, by the representations of two
professional persons, that he had no right to either rent or
land, to agree to accept £10 in full for rent and land ; the
Court will not entertain a biU for specific performance.^ So,
if one having the fee-simple be induced by fraud to accept a
chattel interest, equity will control the setting up of the
lease.*
10. The important qualification to the general doctrine
upon this subject requires to be stated, that Chancery will
grant relief, where the vendor of real estate, by false and
fraudulent representations respecting its quality, induces an-
other to purchase it, if the purchaser is not in a situation to
discern the defect by ordinary diligence, provided there is
no adequate remedy at law.^ But where a purchaser re-
lies upon his own judgment, uninfluenced by any misrep-
resentations, and has full means of knowledge within his
reach, equity will not relieve him.^ So, to authorize a ven-
dee to refuse to comply with the terms of sale, on account
of a misrepresentation made by the vendor, the misrepresen-
tation must be in a matter important to the purchaser's
interest, by which he is actually misled. And if he knows
1 The State v. Gaillard, 2 Bay, 11. * Saunders v. Annesley, 2 Scho. &
2 Leonard «. Leonard, 2 Ball & Beatt. Lef . 101.
171. 6 Sherwood v. Salmon, 5 Day, 439-
^ Stanley v, Robinson, 1 Rnss. & * Hough v. Richardson, 3 Story, R.
Myl. 527. 659. .
28*
330 LAW OF VENDORS AND PURCHASERS. [CH. XIX.
the representation is false, it cannot be said to influence his
conduct, and he has no right to complain of any one but
himself.^ So a sale, though founded on the misrepresenta-
tions of the seller, cannot be for that cause whoUy re-
scinded, if, prior to the completion of the sale, the purchaser
had become acquainted with the whole facts, and yet con-
firmed the bargain.^ So the misrepresentation, to affect the
validity of the contract, must relate to some matter of in-
ducement to the making of it, in which, from the relative
position of the parties, and their means of information, the
one must necessarily be presumed to act on the faith and
trust which he reposes in the representations of the other,
on account of his superior information and knowledge in
regard to the subject of the contract.^ Thus, where the
parties are present at the property sold, the assertions of the
vendor as to its value and prospective profits, where there is
no misrepresentation of facts, afford no ground for setting
aside the contract.* So the parties to a sale went upon the
land, saw the location of the various parcels, and had plats
of the land before them, but the vendor represented that one
parcel was situated within certain lines of a survey, which
was not so situated. Held, that the question, whether that
representation was fraudulent or not, should be left to the
jury, and that the vendor must use means which would im-
pose upon a person of ordinary prudence, to constitute fraud,
and the vendee must place confidence therein and receive
damage.^ So it is held, that, in a case of alleged misrepre-
sentation of value, there cannot be a more effectual bar to
the plaintiff, than by showing that he was from the begin-
ning cognizant of all the matters complained of, or, after full
information of them, continued to deal with the property.^
So, where a vendee, with notice of the vendor's violation of,
or inability to comply with, the contract, negotiates or further
' Ely V. Stewart, 2 Md. 408. ^ Griffith v. Eby, 12 Mis. 517.
2 Pratt V. Philbrook, 33 Maine, 17. « Vigers v. Pike, 8 Cla. & Fin. 660,
' Yeates v. Prior, 6 Eng. 58. 651.
* Hutchinson v. Brown, 1 Clarke,
408.
CH. XIX.] FRAUD. 381
contracts with him, he cannot afterwards abandon the pur-
chase for any cause then known to him.' So, where A. gave
a certificate that certain lands, which he had " partially ex-
plored," contained, " as far as my knowledge extends," a cer-
tain average of timber, and it appeared that the purchasers, to
whom it was given, had as full means of knowledge as A. ;
held, they were not entitled to .place implicit reliance thereon
and make it the basis of their contract, but should have in-
vestigated the grounds of the opinion, and the extent of the
exploration.^
11. A. sold to B., who was just moving into the State, a
tract of land on the bank of the Mississippi, representing it
to be above overflow ; and also representing, that there were
public lands back and adjacent to it, subject to entry with
donation claims, held by B., which were likewise above over-
flow, when, in fact, a larger portion of both the front and
back lands- were subject to ordinary overflow. Held, such
misrepresentations were fraudulent, and constituted sufiicient
grounds for rescinding the contract ; but, B. having had an
opportunity of ascertaining the true character of the lands,
in a short time after making the contract, and having failed
for some two years, of his determination to abandon the
purchase, that he waived the fraud and confirmed the con-
tract.^
12. Where a purchaser of shares in a mine had not relied
upon the representations of the "vendor as to the value of
the mine, but had himself inspected it ; held, as there was
no proof that the representations made by the defendants
were untrue assertions, which, if taken as true, would have
added to the value, nor that these representations were not
merely conjectural, the plaintiff was not entitled to relief in
equity, but that his bill must be dismissed, without prejudice
to any action he might be advised to bring.*
13. A. agreed with P., in consideration of £165,000, to
- ■" Griggs V. Woodruff, 14 Ala. 9. " Yeates v. Prior, 6 Eng. 58.
2 Hough ». Kichardson, 3 Story, K. * Jennings v. Broughtou, 27 Eng. L.
657. &Eq. 397.
332 LAW OF VENDORS AND PURCHASERS. [CH. XIX.
grant to P. a lease of certain mines, as trustee for a joint-
stock company, which P. undertook to form ; the considera-
tion to be paid partly in shares in the company, partly in
money to be raised by calls on the remaining shares. The
lease was afterwards executed; and the company, having
been formed, with power to sue and be sued by one of the
directors, entered into possession and worked the mines,
and paid part of the purchase-money. Upon A.'s death. P.,
his executor, filed a bill against V., then managing director
of the company, for an account and payment of what re-
mained due to A. of the purchase-money. V. answered,
and then filed a cross-bill on behalf of the company, setting
forth various matters as evidence of misrepresentations, con-
cealment, and other frauds practised by A. and P. on the
company, and prayed that the consideration might be de-
clared exorbitant and fraudulent, and that the company was
entitled to a valid lease of the mines at their true reduced
vEdue ; or that the agreement might be declared fraudulent
and void, and the company discharged therefrom, and enti-
tled to a lien on A.'s estates for the payments made to him.
Held, 1st. That the company were not entitled to any relief
from the agreement, by reason of acts and misrepresentations
which proceeded from themselves, or were adopted by them
and acquiesced in after full knowledge, while they continued
to work and exhaust the mines. 2d. That as the executed
contract was not to be set aside, A.'s Executor was entitled,
as matter of course, to the account and payment prayed by
his biU.i
14. But where a purchaser of timber land seeks to rescind
the contract for firaud, on the ground of falsehood as to the
quantity of timber on the township ; although he makes an
examination of the land before the purchase ; stUl, if he con-
fides as to the details in the false statements of the person
negotiating with him, and his agents, he is not precluded
from rescinding the sale ; more especially if there was false-
1 Vigers v. Pike, 8 Clark & Fin. 562.
CH. XIX.] FEAUD. 333
hood as to other material matters in the trade, not offered
to be examined.'
15. A sale procured by fraud and misrepresentation of the
vendee is not absolutely void, but only voidable, at the
option of the vendor ; which must be exercised as soon as
the fraud is discovered, or in reasonable time thereafter. If
he would rescind the contract, he must restore, or offer to
restore, whatever he has received under it, in substantially
the same condition in which it was received ; he cannot
rescind in part and affirm as to the residue. Producing at
the trial, and offering to cancel, the notes received in part
payment of the purchase-money, is not sufficient.^ A deed
of quitclaim, made six months after the purchase, was held
within a reasonable time ; it not appearing that the fraud
was sooner discovered. So where such a deed was left with
the clerk of the Court, in which an action oA the note given
for the estate was pending, with notice to the vendor ; held,
a sufficient restoration of the property.^ So where the ven-
dee, in an executory contract for the sale of land, goes into
and remains in possession, he does not thereby waive ob-
jection to the title ; other circumstances must exist, such
as to shojfT that he knew of its defects, and intended to
accept such title as could be made, relying, in case of its
failure, upon the covenants of warranty, for redress.*
16. Although, in general, a parol contract is merged in the
deed by which such contract is perfected, yet an action for
fraud in the sale of lands will lie against the grantor and
others, notwithstanding the covenants of seizin in the deed.^
So, although the acceptance of a deed, in pursuance of arti-
cles of agreement, is primd facie and generally an extin-
guishment of the agreement ; yet, if the vendor fraudulently
induce the vendee to accept a deed, by making him believe
1 Tuthillu. Babcock, 2 'Woodb. & M. ^ Concord Bank v. Gregg, 14 N. H.
298. 331.
2 The Matteawan, &c. v. Bentley, 12 * Jones v. Taylor, 7 Texas, 240.
Barb. 641. ^ Bostwick v. Lewis, 1 Day, 33, 250 ;
Norton v. Hathaway, lb. 255.
334 LAW OP VENDORS AND PURCHASERS. [CH. XIX.
that the whole of the land contracted for is included in it,
the agreement is not merged, and the vendee may maintain
an action upon it. So, although he has paid the full amount
of the consideration-money to the vendor. So he may main-
tain assumpsit for non-performance of the contract, and is
not obliged to bring an action for deceit; nor would an
action of covenant be proper.^
17. It has been seen in previous chapters, that a partial
loss of the property purchased, or failure of title thereto,
arising merely fi:Om mistake, does not generally furnish
ground for rescinding the sale, but only for compensation.
A different rule prevails, however, in case of fraud ; it being
well established, that a party obtaining an agreement by a
partial misrepresentation is not entitled to specific perform-
ance, on waiving the part affected by such misrepresenta-
tion. The effect is, not to alter or modify the agreement pro
ta/nto, but to destroy it entirely, and to operate as a personal
bar to the party who has practised it.^ Thus the maxim,
caveat emptor, is not to be applied, so as to protect the
vendor in knowingly defrauding the vendee, as to the quan-
tity of the land sold.^ So, even where a party has been
induced to purchase land by the unintentional misrepresenta-
tions of the seller as to the quantity included within the
boundaries, the deficiency being material, equity will rescind
the contract; and this, though the complaint seeks relief
upon the ground that the representations were fraudulently
made, if the answer admits a mistake as to the quantity.*
So where the quantity of land is fraudulently misrepresented
by the vendor, the contract is not obligatory on the vendee,
though the land be sold in gross or by certain boundaries ;
and, in an action to rescind the contract, it is error to reject
evidence of the actual quantity of the land ; the deficiency
in quantity being the basis of the right to introduce evidence
1 Lee V. Dean, 3 Whart. 316. " Pringle v. Samuel, 1 Litt. 44.
2 Clermont o. TasburgU, 1 Jac. & * Belknap v. Sealey, 2 Duer, 570.
Walk. 112.
CH. XIX.] FKAUD. 335
touching the representations of the defendant, concerning
the quantity of land, and such other circumstandfes as tended
to give character to the transaction.' And the fact that the
deficiency was small is no bar to relief, if it bears a consid-
erable proportion to the whole tract.^
18. Purchase of land on the representation that it was
only overflowed from the backwater of a certain bayou. It
was proved that it did overflow generally, that the owner
knew it, and that it diminished its value. Held, a fraud,
and the contract was rescinded.^ So a sale of the fixtures
and fittings of a public-house was #leld to be avoided, by a
false representation of the vendor wfo the amount of busi-
ness attached to the house, though the agreement expressly
excluded the good will.* So a misrepresentation by a vendor
of a saltpetre cave of the quantity of saltpetre, which a
given quantity of nitrous earth will produce, authorizes a
rescission of the contract ; even though the purchaser em-
ployed a person in whom he had confidence, to examine the
cave for him after the representation was made, and he made
a favorable report.^
19. The plaintiff' purchased of the defendant a tract of
land on the Ohio River, the latter representing and believing
that it contained a valuable coal mine ; and, besides paying
$4,400, covenanted for an annuity of $1,000 for 20 years ;
which was to cease if, after the mine was faithfully worked,
it should not yield a certain quantity of coal. The land
was accordingly conveyed, but proved not to contain such a
coal mine, as was represented. A perpetual iirj unction was
granted to restrain the defendant from prosecuting at law
for the annuity. It was also held, that, as there was no such
coal mine in the land as was represented, the plaintiff" need
not work the mine in order to discover the quantity of coal.^
20. So a misrepresentation by the vendor of an occult
' Hatch V. Garza, 7 Texas, 60. * Hutchinson v. Morley, 7 Scott, 341.
2 Pringle v. Samuel, 1 Litt. 44. ' Perkins v. Rice, Litt. Sel. Gas. 218.
8 Alexander v. Beresford, 27 Miss. " Eosevelt v. Fulton, 2 Cow. 129.
747.
336 LAW OE VENDORS AND PURCHASERS. [CH. XIX.
quality in the land, although made ignorantly, and although
the vendee Agrees to run the risk in this respect, has been
held to bar an action for specific performance.^
21. But, on the other hand, when a misrepresentation as
to the quantity of land agreed to be conveyed is made,
though innocently, it is the right of the purchaser, if he does
not abandon the contract, to have what the vendor can con-
vey, with an abatement of a proportionate amount of the
purchase-money.2 So, where an agent of a vendor, by mis-
representing a material fact, of which the vendee had not
the means of obtainir* correct information, induced the
vendee to make theaBpchase ; in an action against the
vendee, on the articles of agreement, which had been in
part complied with on his part, it was held, that he was
entitled to have deducted, from the sum claimed in the
action, the difference between the value of what he received
and what he thought he was purchasing.^ So, whenever it
appears that the vendor's own title-deeds must have dis-
closed to him the true quantity of land, he is bound to make
compensation for a deficiency, though his deed to the vendee
express a quantity " more or less." *
22. But it is doubted, whether a bUl filed for compensa-
tion singly, without other relief, can be maintained, for the
difference between the value of an estate sold and conveyed
and the purchase-money paid, on the ground of fraud. The
jurisdiction of equity in cases of compensation is said to
be only incidental and ancillary to that of giving relief, by
enforcing the performance of contracts for the sale of real
property. The remedy in such cases is at law, by an action
for damages.^
23. With regard to the party who is responsible for a
fraudulent representation in the sale of land ; it is held that,
upon a proceeding in equity to set aside such sale, the per-
son most benefited by it is in a situation to be suspected of
1 Eisher v. Worrall, 5 W. & S. 478. * Duvals v. Ross, 2 Munf. 290.
2 Walling V. Kinnard, 10 Tex. 508. " Newham v. May, 13 Price, 749.
5 Pennock v. Tilford, 17 Penn. 456.
CH. XIX.] FRAUD. 337
the fraud. Therefore, if such a person makes false statements
as to material matters connected with the value of the land,
and which, from being more within his private knowledge,
or other circumstances, were clearly relied on in the pur-
chase, the sale is void, whether he believes them to be true
or not. And, in a bill against such party and another, it is
no objection to rescinding the contract, that another remedy
on a guaranty may exist against the person alone, now be-
come insolvent, but not against the other respondent ; or
that the complainant had an opportunity to examine the
land, and one of his friends did examine it, some time before
the bargain was completed ; if the false representations were
relied on as to details, and others, hired by hira unknown to
the examiner, were uniting in statements and acts likely to
mislead ; and more especially if the misrepresentations ex-
tended also to other matters than the timber on the land,
which were material, and were not attempted nor offered to
be examined.^
24. The vendor is responsible for the misrepresentation of
Ms authorized agent. Thus the purchase of an. estate was
rescinded at the suit of the purchaser, on the ground of
fraudulent misrepresentation ; the contract having been com-
pleted with the knowledge, on the part of the defendant, or
her agent, of a public right of way over the property, and
the plaintiff not knowing, nor having the means of knowing
that fact.2
25. Defendant, being owner of a house, employed an
agent to sell it. The agent described it as free from rates
and taxes, and did not know it to be otherwise ; but it was
in fact liable to certain rates and taxes, as the defendant
knew. On the faith of the agent's description, the plaintiff
bought the house. Held, the plaintiff might maintain an
action on the case for deceit against the defendant ; though
1 Smith V. Babcock, 2 Woodb. & M. ^ Gibson v. D'Bste, 2 You. & Coll.
216. C. C. 542.
29
888 LAW OF VENDORS AND PimCHASEES. [CH. XIX.
it did not appear that the defendant had instructed the agent
to make any representation as to rates or taxes.^
26. A. and B. gave a bond to C, conditioned to convey
certain timber land, provided C. should elect to buy the same
on certain terms within thirty days, or make sale thereof
within the same time ; in which case, only one half of the
excess over a certain price was to be paid to A. and B. C.
did make sale of the land, and A. and B. received one half
of the excess of the price over the stated sum, and made a
deed thereof to the purchaser. Held, C. was the agent of
A. and B. in the sale, and they were bound by his represen-
tations.''
27. Where a sale made by an agent is ratified by his
principals, his representations, made at the time of the sale,
bind them. Thus, a paper was executed by A. as agent
of the defendant to D., giviing D. the refusal of certain
timber lands for a certain time at a certain price. D. subse-
quently sold the land to the plaintiff, and the deed was made
by A. The plaintiff brings an action against A. and his
principals, to set aside the sale, on account of fraudulent
misrepresentations by D. Held, the circumstances created a
legal presumption that D. was acting as agent of A. and his
principals, and that, as A., by his conduct, subsequently
ratified the sale, he and his principals were responsible for
all D.'s misrepresentations made at the sale, whether D.
exceeded his authority or not, inasmuch as they could not
ratify a portion of the transaction and reject the rest,^
28. If a sub-agent receives firom the vendee a part of the
purchase^noney, and pays it over to the principal, taking
land instead of it for his compensation, the principal is liable
(on a rescission of the purchase for fraud) to repay that
part, as well as what he received directly.* (a)
1 Fuller V. Wilson, 3 Ad. & Ell. N. " Doggett v. Emerson, 3 Story, E.
S. 68. 659.
2 Hongh V. Eichardson, 3 8tory, E. * Doggett v. Emerson, 1 Woodb. &
659. M. 195, 206.
(a) The following recent case, founded equally upon mutual mistake and
CH. XIX.] PEATID. 839
29. A sale of lands may be avoided for the misrepresenta-
tion of the vendee as weU as the vendor. Thus, if A. articles
for the purchase of B.'s estate, pretending he bought it for
one, whom B. was desirous to oblige, but in truth bought it
for another, and by that means got the estate at an under-
value ; equity will not decree an execution of these ar-
ticles.^ (a)
1 Phillips V. Bucks, 1 Vem. 227.
actual misrepresentation on the part of the vendor, and at the same time
involving the mutual rights and obligations of principal and agent, may
properly be cited in this connection.
A contract was made by certain parties, that one should sell and the
otber purchase a tract of timber land in Maine, and if, upon an exploration,
it did not contain sixty millions of pine timber, and there was not a stream
running through it, which would, with an ordinary freshet, carry logs from
the tract to the Kennebec Kiver, without difficulty, the agreement should
be void. The parties procured an exploration, and, upon a favorable report
of their agent, purchased the tract, taking a deed, and making the stipulated
payments. It subsequently appeared that there was a gross mistake in the
estimation of the quantity of timber, that the exploration was not made
entirely upon the tract in question, but partly upon an adjacent one, and
that the pine timber did not exceed Jive millions. Upon a bill in equity,
brought by one of the purchasers to rescind the contract, and praying for
general relief: Held, 1. That the original contract must be set aside, as
founded in gross mistake. 2. That the conveyance to the plaintiff must be
rescinded, and the purchase-money restored. 3. That the agent of the
owners, who had effected the sale in his own name, having received the
purchase-money, was primarily liable to repay it; and in his aid, those of
the other defendants for whom he had acted as agent, and who had received
any part thereof, with a full knowledge of all the circumstances, must repay
the proportions thereof respectively received by them.
A mutual agreement having been made between the defendants, upon
the division among them of the notes taken for the purchase-money, accord-
ing to their respective interests, that they would bear their respective pro-
portions of any losses which might arise from inability of the purchasers to
pay the same ; held, the plaintiff could not, in equity, have any benefit
from this agreement, in case he was not able, from the parties directly liable
to him, to obtain back the purchase-money decreed to him. Daniel v.
Mitchell, 1 Story, K. 172.
(a) But if A. in contracting with B. falsely represents himself to be the
agent of C, and thereby obtains better terms, the Court will, notwithstand-
340 LAW OF TENDORS AOT> PTJRCHASBRS. [CH. XIX.
30. Declaration upon a written agreement, by which the
plaintiif agreed to purchase of the defendant his unexpired
term in a farm, and all the crops, &c., alleging that the
defendant had not delivered up possession. One of the pleas
was, that the defendant in his lease covenanted with the
lessor not to assign without his consent ; that the defendant,
being desirous of parting with the farm, applied to the agent
of the lessor, who stated that, if he could iind a successor
eligible as tenant, in the landlord's opinion, after they had
had an opportunity of inquiring and a reference, there would
be no obstacle ; that the agreement was made for the pur-
pose of J. M. becoming occupier of the farm, and the de-
fendant was induced by the plaintiff and J. M. to enter into
the agreement, on the faith and belief that the plaintiff
knew, and the plaintiff, to induce the defendant to enter
into it, represented, that J. M. was a person of respectability,
and eligible, &c., and could give references ; whereas J. M.
was not a person of respectability, and could not give refer-
ences, &c., as the plaintiff well knew. Held, a good, though
informal, plea of fraud; and that the representation was
material to the agreement, and not collateral.^
31. Where the vendee applied to the vendor to purchase a
lot of wild land, and represented to him that it was worth
nothing except for the purposes of a sheep pasture, when
he knew there was a valuable mine on the lot, of the exist-
ence of which the vendor was ignorant ; held, a fraud, which
would avoid the purchase.^
1 Feret W.Hill, 6 Eng.Eep. 261. See ' Iilvingston v. Peru, &c. 2 Paige,
Canham v. Barry, 29 Eng. Law & Eq. 390.
290.
ing, enforce the contract, unless A. knew that such would be the effect of
the misrepresentation. Fellowes v. Lord Gwydyr, 1 Sim. 63. A purchase
of lands from an executor, at a discount of eighteen per cent., the purchaser
knowing that the condition of the estate did not require the sale, is a fraud
in him, though he may know that they do not amount to more than the
executor's interest in the estate ; and, the executor not having paid to the
other legatees their portion of the estate, the purchaser will be compelled to
repay the money to them. Pinckard v. Woods, 8 Gratt. 140.
CH. XIX.] FEAITD. 341
32. An order, giving a party authority to sell and convey
land, fraudulently obtained from a Court, is no better than a
power fraudulently derived from the party whose rights are
injuriously affected by it. It may always be annulled, and
all proceedings under it may be set aside, at his instance,
upon establishing the fraud, at least as to all persons who
were parties or privies to such fraud.'
33. But if the purchaser of land at a sheriff's sale was
innocent, it is immaterial whether there was, or not, fraud
on the part of others.^
34. With regard to the remedy, in case of misrepresenta-
tion by a vendor of real estate ; it has been sometimes held,
(though suqti can hardly be considered as the established
doctrine,) that no action lies against the vendor of real
estate, for false and fraudulent representations respecting
its quality and situation.^ So also, that damages cannot be
recovered for the loss of a good bargain, and that an action
vdll not lie for a deceit, in an executory contract respecting
the sale of lands, unless perhaps in the false affirmation of
title.*
35. But the weight of authority is, that, where represen-
tations are made of the nature and character of property
offered for sale, affecting its value, which turn out to be
false to the knowledge of the party making them ; an action
at law lies for damages for the deceit, and a suit in equity
to set aside the contract.^ Thus a vendor, misrepresenting
the state of the title, will be restrained from enforcing it,
though the sale be with general warranty.^ So the vendee
may go into equity for relief, although there has been no
eviction.'^ So a partial failure of consideration for a note
given in payment for land sold, not arising out of failure of
title, but out of fraudulent misrepresentations respecting the
' Clark V. Underwood, 17 Barb. 202. s Attwood o. Small, 6 Cla. & Pin.
2 Spindler v. Atkinson, 3 Md. 409. 395.
* Sherwood v. Salmon, 2 Day, 128. " Shackelford v. Handley, 1 A. K.
* Fagan v. Newson, 1 Devereux, 20. Mar. 370.
7 English V. Benedict, 25 Miss. 167.
29*
342 LAW OP VENDORS AND PURCHASERS. [CH. XIX.
quantity of timber, may be given in evidence in defence in
a suit upon such note, while it remains in the hands of the
seller, or in the hands of one having no superior rights. And
the buyer may make such defence, though he contracted to
sell a portion of the land, and gives the seller in part pay-
ment a note signed by the second vendee as principal, and
himself as surety.^
36. With regard to the proper evidence of fraud, in con-
tracts for the sale and purchase of lands, it has abeady
been stated, that a written contract must be expounded by
itself, and cannot be diminished or added to by pwrol evi-
dence, except under an allegation of fraud or mistake.'*
37. And this exception has been strictly cons j;ued. Thus
parol evidence is inadmissible, that one of the parties to the
agreement represented, that such agreement would give to
the other party what the agreement distinctly declared he
should not have; the agreement itself being the best evi-
dence of what the parties intended should be the final and
binding contract between them, and nothing being shown to
have been left out of the agreement by fraud or mistake.^
So parol evidence is inadmissible, that a contract for the
sale of land was agreed to be put in writing, but the vendor
fraudulently refused to do so.*
38. But misrepresentation and fraud may always be
shown by parol evidence. Thus the defendant, in a suit
for specific performance, may shojsr in his defence by parol
evidence, that the written contract relied upon does not
correctly and truly express the agreement of the parties, but
that there is some material omission, insertion, or variation,
through mistake, surprise, or fraud.® So where, in a treaty
for the sale of property, the vendor makes material misrepre-
sentations, by which the purchaser, having no knowledge or
means of knowledge in relation thereto, is actually deceived
' Hammatt v. Emerson, 27 Maine, John. 24 ; Watkins v. Stockett, 6 Harr.
308. & John. 435.
2 Blanchard v. Moore, 4 J. J. Marsh. ^ Jarvis v. Palmer, 11 Paige, 650.
471; Wesley v. Thomas, 6 Harr. & * Box u. Stanford, 13 Sm. & M. 93.
5 Best V. Stow, 2 Sandf. 298, 300.
CH. XIX.] FRAUD. 343
to his injury ; equity will rescind the contract, although it
do not itself contain the misrepresentations ; and whether
they be the result of mistake or fraud.^ So parol evidence
has been held admissible, by way of defence, of a warranty
made by the vendor at the time the deed was executed, that
he had a good title to a certain number of acres.^
39. So, where circumstances denote fraud in omitting to
reduce part of an agreement into writing, the whole of it is
open to parol proof. The Court disregards the writing, and
treats the whole transaction as a verbal contract.
40. Bill filed by the lessee of premises, which he held
under a church lease, against persons who had agreed in
writing to purchase his lease. The complainant alleged,
that an implied right of renewal entered into the purchase,
and that the defendants were to take, subject to a burden
upon a part of the premises, of a lease for a year, which
had been granted by the complainant. The buyers omitted
to insert these things in the written agreement, but verbally
recognized them; and they managed to get a renewal in
their own names, through the recommendation of the com-
plainant ; but declined, inasmuch as the old term had in the
mean time expired, to make good their agreement with the
latter, and proceeded to eject the tenant, who was to have
held possession of a part for a year. Complainant prayed
that the parties might pay their purchase-money, and per-
form their contract with him. A general demurrer was in-
terposed, but overruled.^ So an action will lie against the
seller of any interest in an estate, for affirming the rents to
be more than they are, while he is in treaty about the sale,
if the vendee purchases upon the faith of such affirmation ;
though the seller was not then in possession, and the affirm-
ation preceded the sale.* Thus, in an ancient case, the
1 Hough V. Kichardson, 3 Story, E. » Phyfe v. Wardell, 2 Edw. Ch. 47.
659 i Prentiss v. Kuss, 4 SheRl. 30. * Lysney v. Selby, 2 Ld. Kaym.
2 Frederick w. Campbell, 13 Serg. & 1118.
Eawle, 136 ; M'Lelland v. Creswell, lb.
143. (But qu.)
344 LAW OF VENDORS AND PUECHASBKS. [CH. XIX.
defendant, in an action for deceit, sold the plaintiiF a mes-
suage, which he afiirmed was let for £A2 per annum, the
rent being actually only ^632. Held, the action would lie,
the case being not a mere affirmation of a false value,
which is matter of judgment, but a falsity in his own
knowledge. Neither is it the case of a warranty in a thing
apparent ; because the lease may be by parol, or the tenant
unwilling to say what rent he paid.' So, where the vendor
of a public-house made, pending the treaty, certain deceitful
representations respecting the amount of business done in
the house, and the rent received for a part of the premises,
whereby the plaintiff was induced to give a large sum for
them ; held, the latter might maintain an action on the case
for the deceitful representations, although they were not
noticed in the conveyance, or in a written memorandum of
the bargain, drawn up after these representations were made.^
So where the defendant, being about to sell a public-house,
falsely represented to B., who had agreed to purchase it, that
the receipts were .£180 a month ; and B., with the knowl-
edge of the defendant, communicated this representation to
the plaintiff, who became the purchaser instead of B. ; held,
the plaintiff might maintain an action agEunst the de-
fendant.*
41. Parol evidence is inadmissible to reform a written
contract, according to the intention of the parties, upon the
ground of fraud, unless the declaration especially sets forth
the fraud, as a ground for such reformation. But, to insist
upon the legal effect of a written agreement, when an excep-
tion was not inserted, on the expressed understanding of the
parties, that such accepted matter was not embraced in the
agreement ; is such a fraud as will admit parol testimony to
reform the contract* (a)
1 Ekins V. Tresham, Lev. Ft. 1, 102. •' Pilmore v. Hood, 5 Bing. N. C. 97 ;
2 Bobell V. Stevens, 3 Bam. &. Cress. 6 Scott, 827.
623. * Eenshaw v. Gans, 7 Barr, 117.
(a) In addition to the fraud, which consists of positive misrepresentation,
— suggestio falsi — with regard to the property sold ; it is sometimes held,
CH. XIX.] FRAUD. 345
that mere negative concealment — suppressio veri — of facts known by one
party and not known by the other, has the same effect of avoiding the sale.
(See Waters v. Mattingly, 1 Bibb, 244 ; Broderick v. Broderiek, IIP. Wms.
240.) There is no point, however, connected with the sale of either real or
personal property, which has been more prolific of discussion, or upon which
the precise existing rule of law seems to be more unsettled. As has been
already seen, even in case of actual misrepresentation, neither law nor equity
affords aid and relief to a party who is not injured by such misrepresenta-
tion, but by his own negligence in trusting to it, with full knowledge or
means of knowledge of the actual facts of the case. (See Wason v. War-
ing, 15 Eng. Law & Eq. 121.) And the same rule is stiU more decisively
applicable to mere concealment ; which indeed can hardly be said to exist in
the case supposed, because, from a party having notice, nothing is truly con-
cealed. The discussions upon the subject all presuppose knowledge in one
party, and necessary ignorance in the other ; and the confusion arises from
the nice shades of distinction which run through the decided cases, and the
elementary writers, as to the moral rights and duties of vendor or vendee
under such circumstances ; i and also from the conflicting doctrines of the
civil law and the common law ; caveat venditor being the cardinal maxim of
the one, caveat emptor of the other. It may be useful, at the close of the
present chapter, to refer to a few of the leading authorities, some of which
have been already cited in other connections, upon the application of the
latter maxim, generally, to sales of real property. (See Met. Telv. 21, b.)
' It is said, (Story on Sales, § 174 ; see also 1 Story, Eq. §§ 204 et. seq. ; 2 Kent,
481,) " concealment of a fact is never considered as fraudulent, unless there be a
legal or equitable obligation on the part of the person concealing it to divulge it,
growing out of some express or implied trust in the party concealing it. The
omission to comply with a merely honorary or purely moral obligation, does not,
of itself, furnish a sufficient ground to set aside a contract." Obviously, however,
this proposition, which may be called not merely a truth, but almost a truism,
throws little light upon the real point of controversy ; for it furnishes no test of
the existence or non-existence of the "legal or equitable," "merely honorary or
purely moral obligation," referred to.
A distinction is sometimes made between intrinsic and extrinsic circumstances,
which aSect the value of the property sold ; the former appertaining to the nature,
condition, character, quality, or quantity of the property itself; the latter to col-
lateral facts : and the duty of disclosure held to be more binding with respect to
the former than the latter. The distinction, however, does not seem sufficiently
established by English and American authorities, however well settled in the civil
law, to require further notice. It is also sometimes stated, that, while mere
concealment may not give the right to annul an executed contract, by legal' pro-
ceedings instituted on behalf of the party injured; still it may be set up in defence
against a suit in law or equity, upon an executory agreement, brought by the
party who has practised it.
346 LAW OF VBNDOKS AND PDROHASEKS. [CH. XIX.
Upon this subject, it has been truly said (Taylor v. Fleet, 4 Barb. 102,) that
" the vendee must guard himself against the vendor's strong representations
and commendations of the good qualities of the land sold, by personal
examination and inquiry, unless such examination and inquiry are difficult
or are prevented by the artifice of the vendor." This principle has been
held to apply, where the vendor of a house represented it, as a residence
^i for a respectable family; because the vendee might see the house and
judge upon that point for himself. (Magennis v. Fallon, 2 Moll. 461.) So,
where a house was sold, on the north side of the Thames, supposed to be in the
County of Essex, but actually in Kent, a small part of which county was
on the other side of the river ; the purchjiser was told he would be made a
churchwarden of Greenwich, when his object was to be a freeholder of
Essex ; yet he was compelled to complete the purchase. (Shirley v. Davies,
6 Ves. 678. This, however, with some others of like import, has been called
a wild case, — per Hart, L. C. 2 MoU. 688.) So the description of the land,
as " uncommonly rich water meadow," was held to be the mere loose opinion
of the auctioneer or vendor, upon which the purchaser could not be sup-
posed to place any reliance. (Scott v. Hanson, 1 Sim. 13.) So, where a
house without roof or windows is warranted to be in perfect repair ; the
warranty is said not to be binding. (Per Lord Rosslyn, Grant v. Munt,
Coop. 178.) So, where C. gave a certificate that certain lands, which he
had " partially explored," contained, " as far as my knowledge extends," a
certain average of timber, and it appeared that the purchasers, to whom it
was given, had as full means of knowledge as C. ; it was held, that they
were not entitled to place implicit reliance thereon, and make it the basis of
their contract, but that they should have investigated the grounds of the
opinion therein expressed, and the extent of the exploration by C. Hough
V. Richardson, 3 Story, R. 659. But it is said, (1 Sugd. 445,) that, where a
particular description is given of the estate, which turns out to be false, and
the purchaser cannot be proved to have had a distinct knowledge of the
actual state of the subject of the contract, he will be entitled to a compen-
sation. Thus, where the particular described the house sold as in good
repair, and the farm as consisting of arable and marsh land, in a high state
of cultivation, it was held that these were points of which a purchaser might
have an indistinct knowledge; but, if defects became apparent upon a sub-
sequent, careful examination, he was entitled to be compensated.
In Harvey v. Young, (Yelv. 21, a.) the plaintifi" brought an action for
deceit in the sale of a term, which the vendor affirmed to be worth £150,
but which proved to be worth only £100. A distinction was there taken
between mere affirmation and warranty, but no decision seems to have been
made. This distinction was afterwards overruled in Pasley v. Freeman, 3
T. R. 57. The true principle is stated to be, that, where an affirmation is a
mere assertion, and the vendee may judge for himself, as in case of a mere
CH. XIX.] FRATJD. 347
opinion, or where the truth may be known by common prudence, no action
lies. Yelv. (Met.) 21, a. n.
The following cases relate more particularly to mere concealment.
Action by the purchaser against the vendor of a house, for selling him
the house, knowing it had the di-y rot. It appeared that the house was
situated in a clayey soil, and that the floor lay near the ground, whereby
some of the timbers had rotted ; but that the vendor was not aware of these
defects. Lord Kenyon denominated them mere lagaielles ; and remarked,
that, if these small circumstances were to be the foundation of an action,
every house that was sold would produce an action. A broken pane of
glass in a garret window would furnish ground for an action. His Lordship
further remarked, that he had met with something of this kind, and he
never thought himself imposed upon, because now and then some rotten
boards and rotten joists might be found about a house. The plaintiff was
nonsuited. Boulds v. Atkinson, 2 Sugd. 452.
Case for deceit. Declaration that the defendant, being lessee of certain
premises, agreed to sell them to the plaintiff, who agreed to purchase them
of her, for the residue of the (erm, and they were assigned to him accord-
ingly ; that, at the times, &c., the premises were held by a tenant of the
defendant at the rent of £100 a year, but charged with £16 a year for rates
and taxes, which the tenant paid, and was at liberty to deduct out of the
rent; all of which the defendant knew, but the plaintiff did not, as the
defendant also knew ; that the defendant, at the times, &c., deceived the
plaintiff, and fraudulently represented to him that the premises were let at
£100 a year clear of taxes and rates, and concealed from him that the rent
was subject to the said deductions; that the plaintiff was induced by the
representations and conduct of the defendant to take the assignment ; and
that the defendant, by means of the premises, &c., deceived the plaintiff,
and induced him to purchase, &c., at a larger sum than he otherwise would
have paid. Plea, not guilty.
A special verdict stated, that the defendant knew of the above deductions,
which were made by agreement from the rent ; that she desired W., her
attorney, to instruct the plaintiff, an auctioneer, to prepare particulars for
sale of the premises, and referred W. for information to a person having a
lien on the premises, who told W. that the rent was £100 a year ; that W.
asked no question about rates and taxes, assuming that the tenant paid
them, as the practice was in London, where the premises were situate ;
that the defendant did not further interfere ; that W., not knowing that the
defendant paid the rates and taxes, instructed the plaintiff that the premises
were held by a tenant at £100 a year, but never described them to him as
clear of rates and taxes, or authorized him so to represent them ; that the
plaintiff drew up a particular for the sale, stating the premises to be let at
£100 "clear of rates and taxes;" that W. saw the particular, but did not
348
LAW OF VBNDOES AND PURCHASERS. [CH. XIX,
correct it, because he thought it true, and W. thought it the plaintiff's duty
to inquire into the outgoings, when he was employed to make the particular ;
that the premises were put up to sale and bought in, and the plaintiff then
took them himself, and they were assigned to him ; that neither W. nor the
plaintiff knew of the agreement for a deduction from the rent, till after the
assignment and payment of the purchase-money ; and that, at the times of
such assignment and payment, the plaintiff believed the premises to be let at
£100 clear of rates and taxes. Held, on this finding, it did not appear that
the defendant had been guilty of any actual fraudulent representation or
concealment, or had authorized any ; that if W., as her agent, had been thus
guilty, she would herself have been liable ; but that no such misfeasance
by W. appeared by the verdict ; and therefore the defendant was entitled
to judgment. Wilson v. Fuller, 3 Ad. & Ell. N. S. 68.
But it is said, if a vendor should sell an estate, knowing he had no title,
or that there were incumbrances unknown to the vendee, the sale would be
voidable for fraud. So in case of the sale of a house in a distant town, ,
which the vendor knew to be burnt down, the vendee being ignorant of it.
2 Story, Eq. 226-27, §§ 208-9 ; Arnott v. Biscoe, 1 Ves. 95 ; Pillage v. Ar-
mitage, 12 Ves. 78.
Bill for specific performance by a vendor. Defence, that he represented
it as clearing a net value of £90 per annum, and gave no notice of the
necessary repair of a wall to protect the estate from the Thames, which
would be an outgoing of £50 per annum. Upon the ground that this fact
had been industriously concealed, the bill was dismissed, but without costs.
Shirley v. Stratton, 1 Bro. 440.
So where the vendor of a house, knowing a defect in a main wall, plas-
tered it up and papered it over; held, he was liable to the purchaser.
4 Taun. 785.
Concealment may be practised by the vendee as well as the vendor. In
such case it has been held, that, if one, knowing the existence of a mine
upon the land of another who is ignorant of it, purchase the land for a
price which the land would be worth without the mine ; the vendor is still
bound. Fox v. Maokreth, 2 Bro. 420. Although it has been doubted
whether a Court of Equity would enforce specific performance in favor of
the purchaser. 2 Kent, 490 ; Parker v. Grant, 1 Johns. Ch. 630. And
Lord Eldon remarks, (Turner v. Harvey, Jac. ,178,) that, although the
vendee, in the case supposed, is not bound to give the information where
no inquiry is made, still a very little will affect the application of the prin-
ciple, and it will not be allowed to operate, if a single word is dropped tend-
ing to mislead the vendor. See Pidcock v. Bishop, 3 B. & C. 605.
CH. XX.] INCAPACITY, ETC. 349
CHAPTER XX.
IMPLIED OS CONSTRUCTIVE FRAUD. — INCAPACITY, INADEQUACY OP
CONSIDERATION, ETC.
1 . Constructive fraud.
2. Mental inability.
6. Drunkenness.
10. Inadequacy of consideration.
16. Excess of consideration.
1. A coNTKACT for the sale and purchase of real property
may be avoided, not only by actual but by constructive fraud,
consisting for the most part in the personal incapacity of
one of the parties, or in some circumstance of the case,
which renders it harsh or inequitable to enforce the contract.
It will be seen, that this class of objections, though compre-
hending those which in name and form are various, has still
a common character running through the whole, and re-
quiring that they should be considered together. Thus
inadequacy of consideration will often defeat the sale, when
combined with some personal disability, although of itself it
might not produ^ that result. And the same may be said
of contracts made with heirs, or with those holding a confi-
dential relation to the other contracting party. (Chaps. 21-2.)
Constructive frauds are defined to be " such acts or contracts
as, although not originating in any actual evil design or
contrivance to perpetrate a positive fraud or injury upon
other persons, are yet, by their tendency to deceive or mis-
lead other persons, or to violate private or public confidence,
or to impair or injure the public interests, deemed equally
reprehensible with positive fraud, and, therefore, are prohib-
ited by law, as within the same reason and mischief as acts
and contracts done mala animo.^
1 1 Story, Eq. § 258.
30
350 LAW OF VENDORS AND PUKCHASBRS. [CH. XX.
2. With respect to mental inability, (a) as a ground for
avoiding a sale or purchase of real estate, the law enumer-
ates four classes of persons as non compotes mentis. 1, an
idiot or natural fool ; 2, one who was of good and sound
memory, but by the visitation of God has lost it; 3, a
lunatic, one who has lucid intervals, being sometimes of
good and sound memory, sometimes not ; 4, a non compos
by his own act, such as a drunkard.'
3. Mental incapacity must of course be affirmatively and
distinctly proved, in order to avoid a sale. Thus, that the
intellectual capacity of one of the parties to a contract is
below that of the average of mankind, does not alone fur-
nish suflScient ground for setting aside the contract.^ So a
contract is not invalid, if made by a man in the habit of
buying and selling, and transacting his own business, merely
because he was illiterate, unless he has been grossly deceived
or fraudulently imposed on.^ But those, who from imbecility
of mind are incapable of taking care of themselves, are
under the special protection of the law ; and a contract en-
tered into by one of weak understanding, more especially if
superinduced, by undue influence or misrepresentation, wiU,
upon application of the deceived party, be set aside by a
Court of Equity.* So a stipulation procured by one party
from the other, while his mind was indfyabte of rational
volition, either by reason of unsoundness, or of illegal and
unjust constraint, ought to be dissolved by a Court of Equity,
as wanting the assent of the party, unless ratified and con-
firmed while the mind was sound and free to act.^
4. A contract for the sale of land, made by one who had
been adjudged a limatic, is absolutely void, and no action
1 Beverley's case, 4 Co. 124 ; Co. Lit. * Craddock v. Cabiuess, 1 Swan, 474.
247 a. s Taylor v. Patrick, 1 Bibb, 168 ;
3 Mann v. Betterly, 21 Verm. 326. Entherford v. Ruff, 4 Desaus. 350.
s Rodman w. Zilley, 1 Saxton(N. J.)
Ch. 320.
(a) As to the ancient maxim of the law, that " no man shall be permitted
to stultify himself," see 1 Pars, on Contr. 310, and note, and authorities.
CH. XX.] INCAPACITY, ETC. 351
can be maintained to enforce it ; nor can the committee, to
whom the care of his estate has been intrusted, by any act
of his, make such a contract good.^ But, although sales at
a great undervalue, from one that was afterwards a lunatic,
were set aside, the conveyances were decreed to stand a
security for what was really paid.^ And, where a bill is filed
to set aside a purchase made by a lunatic, and, upon the
report of the clerk and master, it appears that the price was
not grossly extravagant, and that the lunatic has it not in
his power to make compensation if the contract should be
set aside ; the bill will be dismissed.^
5. The plaintiff contracted for the purchase of an estate
from the defendant and paid a deposit, on the terms that,
unless he objected to the title within a certain time, it should
be considered as accepted. No objection was made by him
to the title. The plaintiff, at the time of the contract and
of the payment of the deposit, was a lunatic, incapable of
understanding the meaning of a contract, or of managing
his affairs, and derived no benefit from the contract; but
these facts were unknown to the defendant, who made the
contract with him fairly and bond fide, believing him capable
of understanding its meaning. Held, the plaintiff was not
entitled to recover the deposit*
6. Another form of mental incapacity is drwnkenness. As
a principle of criminal law, subject perhaps to occasional
exceptions or qualifications, drunkenness is held to be no
excuse or justificatidn for crime ; and indeed is sometimes
said rather to aggravate than extenuate an offence against
law. Upon the same principle, drunkenness is regarded as,
in general, a less substantial ground for avoiding contracts,
than any form of mental imbecility, not the result of the
party's own act. Still, however, equity will relieve against
1 Fitzhugh V. Wilcox, 12 Barb. 235. " Addison v. Dawson, 2 Vern. 678.
See Donald u. Morton, 1 Mass. 543; = Carr w. HoUiday, 5 Ired. Eq. 167.
White V. Palmer, 4 lb. 147 ; Leonard v. * Beavan v. M'Donnell, 24 Eng. Law-
Leonard, 14 Pick. 280 ; Gaugmere, 14 & Eq. 484.
Penn. 417 ; M'Creight v. Aiken, 1
Price, 156.
352 LAW OF VENDORS AND PTIROHASBRS. [CH. XX.
contracts made by a person when drunk, if procured by any
fraud or imposition, or even without this accompaniment, in
case of excessive drunkenness, where the party is utterly
deprived of the use of his reason and understanding. So
also, where he has been drawn into drink by some contriv-
ance or management. In other cases, the parties wiU be
left to their rights and liabilities at law? (a) (s. 9.)
7. More especially, if, when a man is so drunk as to
render him an easy prey to the fraudulent designs of another,
an unfair advantage is taken of his situation to procure
from him an umreasonahle bargain, equity will rescind the
contract, not on the ground of his drunkenness, but of the
fraud.2 So a contract may be avoided by the legal repre-
sentatives of a party, on the ground of his having been
drunk when it was made, though such drunkenness was not
occasioned by the procurement of the other party .^
8. A. and B., tenants in common of a lot of land, con-
tracted separately with C. to convey to him all their interest
therein, on the payment to each of them of $300. The
money being paid, possession was delivered to C, who,
after the death of A. and B., filed a bill in chancery against
D., their heir, for specific performance. D. by her answer
1 Beverley's case, 4 Co. 124; 3 Bac. 2 Dev. & Bat. 221 ; Ford w. Hitchcock,
Abr. Idiots, &c. A. ; Johnson <;. Medli- 8 Ohio, 214; Conant v. Jackson, 16
cott, 3 P. Wms. 130; Cook v. Clay- Verm. 335; Prentice v. Achorn, 2
worth, 13 Ves. 12; Cory v. Cory, I Paige, 30.
Ves. 19 ; Pitt v. Smith, 3 Camp. 33 ; ^ Calloway v. Witherspoon, 5 Ired.
Dorr V. Munsell, 13 Johns. 430; Sey- Eq. 128.
mour V. Delancy, 3 Cow. 445 ; Barrett v. ' Wiggllsworth v. Steers, 1 Hen. &
Buxton, 2 Aik. 167; Morrison v. M'Leod, Munf. 70.
(a) " Where the party, when he enters into the contract, is in such a
state of drunkenness as not to know what he is doing, and particularly
when it appears that is known to the other party, the contract is void alto-
gether, and he cannot be compelled to perform it. A person who takes an
obligation from another under such circumstances is guilty of actual fraud.
The modern decisions have qualified the old doctrine, that a man shall not
be allowed to allege his own lunacy or intoxication, and total drunkenness is
now held to be a defence." Per Parke, B., Gore v. Gibson, 13 M. & W.
623.
CH. XX.] INCAPACITY, ETC. 353
alleged, that both A. and B. were in habits of intemperance,
and almost constantly in a state of intoxication ; that the
contract was made by them when in a state of intoxication,
or when they were incapable of transacting business, at a
price greatly below its value, &c. Decreed, that D. convey
to C. one undivided part of the lot ; but, as to the contract
of B., on account of the satisfactory proof of his imbecility,
it ought riot to be enforced ; and that C. deliver to D., or
permit her to take or enjoy, the other undivided parts of
the lot, without her refunding the consideration paid by C.
toB.i
9. But where, in a suit for the specific performance of an
agreement, the principal defence set up was incapacity at the
time of executing it, on the ground of intoxication ; the Court
held, that it could not assist in getting rid of the agreement,
on the mere ground of intoxication, no fraud being alleged ;
but decreed a specific performance with costs.^ So it is
held, that intoxication of a contracting party is no ground
for setting aside the contract, where it was not induced by
the other party, unless it is habitual, so as to derange the
mind, or subject it to frequent fits of derangement, or is so
great as to deprive the party of his reason.^ So, that the
vendee's being intoxicated at the time, and not in a situation
to judge correctly, or act with prudence, wiU not avail him
to avoid the contract, unless he can show that it was pro-
cured by the contrivance of the vendor, or that an unfair or
improper advantage was taken of his situation.* (s. 6.)
10. We have already had occasion (Chap. 3,) to consider
the subject of consideration, as an element in the sale of real
property, necessary to the validity of this, as of other con-
tracts. It now becomes necessary — assuming some consid-
eration to exist — ^to consider its amount, either by way of
1 Keinicker v. Smith, 2 Har. & John. " Hutchinson v. Brown, 1 Clarke,
421. 408.
2 Shaw V. Thackray, 23 Eng. Law & * Kodman v. Lillev, 1 Saxt. 320.
Eq. 18.
30*
354 LAW OF VENDORS AND PURCHASERS. [CH. XX.
deficiency or excess, as affecting the validity of the con-
tract, (a)
11. Inadequacy of consideration, though not, in general,
of itself a sufficient ground for avoiding a contract, is, when
gross, strong evidence of frcmd^ and may be so great as* to
form a ground for cancelling the contract.^ Thus, although
mere inadequacy of consideration furnishes no sufficient
ground for the interference of a Court of Equity to set aside
a contract ; inadequacy of consideration, united with such
a degree of weakness and imbecility of intellect, as would
justify the inference that such weakness had been taken
advantage of, will afford sufficient ground for this inter-
ference.^ More especially an agreement made for a consid-
eration grossly inadequate, by one of great imbecility of
mind, with another whose position in relation to him con-
ferred undue influence and control over him, will be set
aside.* So suspicion of fraud, coupled with gross inad-
1 Lowther v. Lowther, 13 Ves. 95 ; = Mann v. Betterly, 21 "Verm. 326.
Coles V. Trecothick, 9 Ves. 234. * Cook v. Cole, 2 Halst. Cli. K. 522.
2 Stillwell V. Wilkins, Jae. 282.
(a) In remarking upon the subject of mistake, (Chap. 18,) we briefly re-
ferred to the kindred point of surprise, as invalidating a sale of real property.
Perhaps surprise may be considered to have a more direct bearing upon the
price or consideration than any other part of the transaction ; and the
following remarks of an approved writer may therefore properly be cited
in this connection : " Cases of surprise and sudden action, without due de-
liberation, may properly be referred to the same head of fraud and impo-
sition. An undue advantage is taken of the party, under circumstances
which mislead, confuse, or disturb the just result of his judgment, and thus
expose him to be the victim of the artful, the importunate, and the cunning.
It is not every surprise which will avoid a deed duly made. Nor is it fitting,
for it would occasion great uncertainty; and it would be impossible to fix
what is meant by surprise ; for a man may be said to be surprised in every
action which is not done wjth so much discretion as it ought to be. The
surprise here intended, must be accompanied vrith fraud and circumvention ;
or, at least, by such circumstances as demonstrate that the party had no
opportunity to use suitable deliberation, or that there was some influence or
management to mislead him." 1 Story, Eq. § 251 ; 1 Fonb. Eq. B. 1, ch. 2,
§8.
CH. XX.] INCAPACITY, ETC. 365
equacy of price, and the pressure of pecuniary embarrass-
ment, is sufficient ground to rescind a sale;^ as where the
complainant, who was in embarrassed circumstances, his
property being levied on, and about to be sold under execu-
tion, sold his farm to the defendant, received part of the
price in cash, and for the residue accepted a deed of land in
another State, which he had never seen, and which was not
worth more than one half of the estimated amount.^ So a
contract will be set aside in equity for inadequacy of con-
sideration, where there is inequality in the condition of the
parties.^ So, where an unconscientious advantage is taken
by the vendee of the improvidence and distress of the vendor ;
inadequacy of price, whether so gross as to be per se proof
of fraud or not, wiU in equity avoid even an executed con-
tract.* So inadequacy of price alone, when the vendor did
not understand the contract, or was induced to make it to
escape oppression, will vitiate the sale, whether these facts
appear from the inadequacy itself or otherwise.^
12. A sale of land at a halfpenny for every square yard,
which the vendee knew not to be one fourth part of the
value, was held fraudulent and void in equiby.^ So the
purchase of an estate of a tenant for life, who was outlawed
and absconded, was set aside in favor of creditors, being
made at an undervalue, and pending the prosecution at law
against him, and with notice thereof.^ So relief was given
against a sale, where the purchaser knew that the vendors,
the assignees of a bankrupt, were ignorant of a circum-
stance considerably increasing the value.^ So where, on a
bill to set aside a purchase, the answer of the defendants,
the devisees of the purchaser, admitted great inadequacy of
price, and stated their ignorance as to other circumstances
of fraud alleged ; a receiver was appointed.^
1 Lester v. Mahan, 25 Ala. 445. " Deane v. Eastron, 1 Anstr. 64.
^ Ibid. 7 Heme v. Meers, 1 Vern. 465.
' George v. Richardson, Gilmer, 231. ' Turner v. Hax'vey, Jac. 169.
* M'Kinney a. Pinchard, 2 Leigh, ^ Stillwell v. Wilkins, Jcic. 280. See
149. Maddeford v. Austurick, 1 Sim. 89.
5 Cruise v. Christopher, 5 Dana, 182.
356 LAW OF VENDORS AND PURCHASERS. [OH. XX.
13. It may be gathered from the general current of au-
thorities upon this subject, that, although a Court of Equity
may refuse to enforce an agreement for inadequacy of con-
sideration, yet the inadequacy must be so great, 'gross, and
palpable as to be evidence, perhaps even conclusive evi-
dence, of fraud, or some unconscientious advantage ; and,
in settling this point, the condition and circumstances of
the estate at the time of sale are to be the criterion.^ So it
is held that relief wiU be granted in equity, only where the
inadequacy is so extreme as to satisfy the Court, that there
must have been imposition or oppression? There must have
been unreasonableness, inequality, and hardship; as where the
price amounted to but one half the value of the estate.^
Weakness and indiscretion are said not to be sufficient, nor
even a hard and unconscionable bargain, to set aside the
sale, unless fraud or undue means have been used.* The
bargain must be such, it is said, " that it must be impossible
to state it to a man^f common sense, without producing an
exclamation at the inequality of it." ^ So it is held, that,
unless the inadequacy is so great as to shock the moral sense
of an indifferent mem, the contract being entered into delib-
erately and fair in aU its parts, such inadequacy is not an
objection to its being executed.^ (a)
1 Fripp V. Tripp, Rice, Eq. 84 ; Os- ^ Seymour v. Delancey, 6 Johns. Ch.
good V. Tranklin, 2 Johns. Ch. 1 ; .222.
Western w. Russell, 3 Ves. & B. 187; * 1 Sugd. 367-8. See 2 Story, Eq.
Judge V. Wilkins, 19 Ala. 765 ; White f 23.5.
V. Flora, 2 Tenn. 426 ; January v. Mar- ' Per Ld. Thurlow, .Gwynne v. Hea-
tin, 1 Bibb, 586. ton, 1 Bro. I.
2 Undeihill v. Horwood, 10 Ves. 209; ' Seymour v. Delancey, 3 Cow. 445.
14 Ves. 28.
(a) The following remarks of an English Judge may, perhaps, be consid-
ered as expressing the general doctrine, both of law and equity, upon this
subject : " The law will not assist a man who is capable of taking care of
his own interest, except in cases where he has been imposed upon by deceit)
against which ordinary prudence could not protect him. If a person of
ordinary understanding, on whom no fraud has been practised, makes an
imprudent bargain, no court of justice can release him from it. Inadequacy
of consideration is not a substantial ground for setting aside a conveyance of
CH. XX.] INCAPACITY, ETC. 357
14. Thus it -was held, that an agreement for the sale and
assignment of a present interest in a considerable property
should not be set aside on the ground of mere inadequacy
of price, where there had been no fraud, concealment, or
misrepresentation, where the parties were adults, and the
vendors knew as much of the property and its situation and
value as the purchaser.^ So, where a transaction of many
years standing was sought to be set aside on the ground
of inadequacy of consideration, the relation bet-\llfeen the
parties, and the incapacity of the vendor ; relief was refused,
neither of the grounds having been sufficiently made out.^
So, although a bill for specific performance of a purchase by
auction was dismissed by Lord Rosslyn with costs, merely
as being a bad bargain, from inadequacy of value ; upon a
1 Gregor v. Duncan, 2 Desaus. 636. ^ Evans v. Brown, Wight, 102.
property ; indeed, from the fluctuation in prices, owing principally to the
gambling spirit of speculation that unhappily now prevails, it would be diffi-
cult to determine what is an inadequate price for any thing that is sold ; at
the time of the sale, the buyer probably calculates on a rise on the value of
the article bought, of which he would have the advantage ; he must not
therefore complain if his speculations are disappointed, and he becomes a
loser instead of a gainer by his bargain. But those, who from imbecility of
mind are incapable of taking care of themselves, are under the special pro-
tection of the law. If this conveyance could be impeached on the ground
of the imbecility of Fitzsimmons only, a suiScient case has not been made
out to render it invalid ; for the imbecility must be such as would justify the
jury, under a commission of lunacy, in putting his property and person
under the protection of the Chancellor ; but a degree of weakness of intel-
lect, far below that which would justify such a proceeding, coupled with
other circumstances, to show that the weakness, such as it was, had been
taken advantage of, will be sufficient to set aside any important deed." Per
Lord Wynford, Blachford v. Christian, 1 Knapp, 77.
So it is said, if a person will enter into a hard bargain with his eyes open,
equity will not relieve him upon this footing only. Willis v. Jernegan, 2
Atk. 251. And, with reference to this point of inadequacy, "If Courts of
Equity were to unravel all these transactions, they would throw every
thing into confusion, and set afloat the contracts of mankind." Per Eyre,
Ch. B., Griffith v. Spratley, 1 Cox, 383.
358 LAW OF VENDORS AND PUECHASERS. [CH. XX.
rehearing, Lord Eldon was of opinion that this was not a
sufficient ground for refusing specific performance of a pur-
chase by auction, without something more, as fraud or
surprise, &c.'
15. It is to be observed, that a sale may sometimes be
attended by circumstances, which will constitute a good de-
fence against a bill in equity for specific performance, while
at the same time they would not furnish sufficient ground
for resiihding the contract. Thus, although mere inade-
quacy of price is not sufficient ground for setting aside a
sale, unless the inadequacy be so gross as to be, of itself,
evidence of fraud; stiU 'it may be a sufficient ground for
refusing to enforce specific performance of the sale.^ It is
said, Courts of Equity seldom interfere to set aside contracts
of sale, on the ground of inadequacy of price. They leave
the parties to their legal remedies. But when called on to
enforce a contract, they examine into the consideration to
be given, its fairness and equality, and all the circumstances
connected with it ; and if any thing manifestly inequitable
appear in that part of the transaction, they will never lend
their power to carry the contract into execution.^ So the
principle is laid down, that an unexecuted sale of land will
not be enforced in equity, if it seems unconscionable. But,
after it has been executed, a chancellor will not interfere, by
declaring it void for that reason alone, except in the case of
an heir expectant.* So the Court refused to decree specific
performance of a sale, where the inadequacy of price was
very great, though there was no direct fraud or imposition ;
the seller being a young man, just of age, ignorant of the
real value of the land, and having acted somewhat precipi-
tately, on being urged.^ So it is held, that, although mere
inadequacy of price is not a sufficient ground for equity to
refuse its assistance ; yet, if an unreasonable contract be not
1 White V. Damon, 7 Ves. 30. (See ■■■ Eodman v. LUley, 1 Saxt. 320.
a criticism upon this case, in Seymour * Davidson v. Little, 22 Penn. 245.
13. Delancey, 6 Johns. Ch. 222.) * Clitherall v. Ogilyie, 1 Desaus.
2 Osgood V. Franklin, 2 Johns. Ch. 1, 250.
23.
CH. XX.] INOAPAOITY, ETC. 359
performed according to its letter, equity will not interfere ;
and this whether it was unreasonable when made, or be-
comes so afterwards, through fault of the plaintiff; as where
a very great change occurs in the value of the property,
through the vendor's fault.^
16. While a vendor may be prejudiced and claim relief by
reason of inadequacy of consideration, the vendee, on the
other hand, may seek redress on account of excess in the
price paid or agreed to be paid. Upon this subject it is
held, that excess of price over value, if the contract be free
from imposition, is not of itself sufficient to prevent a decree
for specific performance ; but is an ingredient which, associ-
ated with others, will contribute to prevent the interference
of a Court of Equity .^ (a) Thus, where a written agree-
ment is entered into for the purchase of an estate at a price
far beyond its value, but without any circumstances of fraud
or surprise, the Court will not decree a specific performance
of such a contract ; but, on the other hand, will not rescind
it.^ But where a person deeply in debt, in order to obtain a
loan of money, agreed to purchase a tract of land at more
than double its value, and give a mortgage upon other
property to secure the loan, and part of the purchase-money,
the vendor having notice of the purchaser's necessities ; held,
equity would rescind the contract.* [b)
1 Garnett v. Macon, 6 Call, 308. » Day v. Newman, 2 Cox, 77.
2 Cathcart v. Robinson, 5 Peters, 264. * Hough v. Hunt, 2 Ham. 502.
(a) In case of an attempt by a grantee to avoid the conveyance as uncon-
scionable, from the excess of the consideration, or because there was a gross
mistake of all the parties with respect to the condition and value of the estate,
it was said, the difference must be such as would " shock all men of common
intelligence at first blush, and be itself a proof of fraud or management on
the part of the grantors." Per Parker, C. J., Allen, 15 Mass. 65.
(J) Cases often occur, In which there is a combination of circumstances,
any one of which would tend to invalidate the sale, though not of itself
sufficient to produce that effect ; but which, when united, constitute a con-
structive fraud, that renders the contract voidable. Thus specific perform-
ance of an agreement was refused, on the ground of the want of specific
360 LAW OP VENDORS AND PUKOHASERS. [CH. XX.
mutuality, of laches, misapprehensions in the party or parties of its nature
and efifect, inequality, improvidence, and other circumstances appearing in
the case. Hamilton v. Grant, 3 Dow. 33. HSo specific performance was
refused of a contract improvidently entered into by ignorant persons. Mar-
tin V. Mitchell, 2 Jac. & Walk. 413. But specific performance was decreed
in favor of a purchaser, though no solicitor acted for the vendor ; and
though the contract was executed under circumstances which might easily
have led to fraud, the vendor being considerably in liquor ; no fraud being
proved in the vendee or his agent. Lightfoot v. Heron, 3 You. & Coll. 586.
CH. XXI.] SALE OF BIXPECTANCIES. 361
CHAPTEE XXL
SALE OP EXPECTANCIES.
1. Having in the last chapter spoken of implied or con-
structive fraud, as affecting the validity of a sale, and more
especially of that particular fraud which consists in inade-
quacy of consideration ; we proceed to arfother class of con-
tracts, which the law holds to be invalid, by reason of the
individual position or character of one, or the mutual rela-
tion of both, of the contracting parties. Under this head
are included, in the first place, sales made by the holders
of expectant interests, including remainder-men, reversioners,
and heirs, but most especially the parties last named, which,
in the common course of things, also involve inadequacy of
consideration ; and, in the second place, sales made by or in
behalf of persons beneficially interested in the property sold,
to those charged with some confidential relation with refer-
ence to such property. In the former case, the validity of
the sale is affected by the absolute character or position of
the vendor ; in the latter by his relative position in respect
to the vendee.
2. Mr. Sugden says,' " in treating of inadequacy of price,
we must be careful to distinguish the cases of reversionary
interests, the rules respecting which, especially where an heir
is the vendor, depend upon principles applicable only to
themselves, and not easily definable. The heir of a family
dealing for an expectancy in that family, is distinguished
from ordinary cases, and an unconscionable bargain made
with him, is not only to be looked upon as oppressive in the
particular instance, and therefore avoided, but as pernicious
1 1 Vend. & P. 369.
31
362 LAW OF VENDORS AND PURCHASERS. [CH. XXI.
in principle, and therefore repressed. There are two powerful
reasons why sales of reversions by heirs should be discoun-
tenanced ; the one, that it opens a door to taking undue
advantage of an heir being in distressed and necessitous
circumstances, which may, perhaps, be deemed a private
reason ; the other is founded on public policy, in order to
prevent an heir from shaking off his father's authority, and
feeding his extravagances by disposing of the family estate."
3. Upon the same subject. Judge Story remarks : " Relief
has been constantly granted in equity, in what are called
catching bargains, with heirs, and, in modern times, rever-
sioners and expectants, in the life of their parents or other
ancestors, or during the continuance of prior particular
estates. Many, and indeed most of the cases, have been
compounded of all or every species of fraud; there being
sometimes proof of actual fraud, which is always decisive.
There is always fraud presumed or inferred from the circum-
stances o^ conditions of the parties contracting ; weakness
on one side, usury on the other, or extortion or advantage
taken of that weakness. Generally, there has been deceit
upon third persons ; the father or other ancestor has been
kept in the dark, and thereby misled and seduced to leave his
estate, not to his heir or family, but to a set of artful persons,
who have divided the spoil beforehand. The doctrine is
founded in part upon the policy of maintaining parental and
quasi parental authority, and preventing the waste of family
estates, as weU as of guarding distress and improvidence
against calculating rapacity. Equity treats parties in this
situation almost like infcmts, incapable of contracting ; and,
although formerly undue advantage must be shown to have
been taken, it now requires the pmrchaser to make good the
bargain, that is, not merely to show the absence of fraud,
but payment of a full consideration. The Court will relieve
upon the general principle of mischief to the public without
requiring any particular evidence of imposition, unless the
contract is shown to be above all exception. Years do not
seem to make much difference in the case of expectant heirs,
CH. XXI.] SALE OF EXPECTANCIES. 863
since the aim of the rule is principally to prevent imposition
upon ancestors. And the same rule applies, it seems, to
reversioners and remainder-men, if necessitous, distressed,
and embarrassed.'
4. The doctrine upon this subject, involving other transac-
tions with heirs besides agreements for the sale of their
expectant interests, has been stated by the Supreme Court
in Massachusetts, as follows : When an heir gives a bond,
on receiving a sum of money, to pay a larger sum, exceeding
legal interest, upon the death of his ancestor, if the heir
shall be then living ; if there is only a reasonable indemnity
for the hazard, it may be enforced at law. But, if his neces-
sities are taken advantage of, he is relieved as against an
unconscionable bargain, on payment of principal and interest.
Soj when one having a reversion or remainder contracts to
sell it, on becoming possession, for money paid at the time
of the bargain, a similar rule is adopted. Here there may
' be a computation of the risk, as involved in the continuance
of the preceding estate ; and the bargain, like that before
mentioned, may be relieved against, if unconscionable. If
the reversion or remainder be actually conveyed, equity
alone can give relief, unless there were absolute fi:aud. But
a contract made by an heir to convey on the death of his
ancestor, living the heir, a certain undivided part of what
shall come to the heir by descent, distribution, or devise, is
a fraud upon the ancestor, productive of public mischief,
and moreover, in the nature of a wager, without furnishing
any means of computing the risks, &c., as to the amount
of the property and the value of the inheritance, and is
therefore void both in law and equity.^
5. The query has been suggested, whether every vendor of
an expectant interest is not to be regarded in equity as a
yovmg heir, dealing for his expectancy. But it is stated to
be clear, that very anxious protection is extended by equity
1 1 Story, Eq. 327, 333. v. Smith, 9 How. 5.5 ; Hallett v. Collins,
2 Per Parsons, C. J., Boynton v. 10, 174.
Hubbard, 7 Mass. 1 1 9, 122. See Wheeler
364 LAW OP VENDORS AND PURCHASERS. [CH. XXI.
to all persons selling expectant interests, whether they stand
in the relation of expectant heirs or not, and trivial circum-
stances, added to inadequacy of price, are sufficient to set
aside such sales.^ Chancellor Desaussure says : " There is
a distinction made between the cases of young heirs selling
expectancies, and of others which I am not disposed to
support. It is said, that the former are watched with more
jealousy, and more easily set aside than others, on principles
of public policy. This was certainly true at first ; but the
eminent men who have sat in chancery, have gradually
applied the great principles of equity on which relief is
granted to every case where the dexterity of intelligent men
■■ had obtained bargains at an erroneous and unconscientious
disproportion, from the ignorance, the weakness, or the ne-
cessities of others, whether young heirs or not." ^
6. Protection is said to be afforded in equity to an ex-
pectant heir or other reversioner, dealing for his expectancy,
as approaching to an incapacity to contract ; as in case of a
very advantageous purchase, though without fraud, which
would afford no ground for relief between persons standing
precisely equal ; and at fortiori in case of an vmconscionable
bargain.^ So, in order to support a bill in equity by a pur-
chaser for specific performance, where the party contracting
to sell was an expectant heir, the plaintiff must show ade-
quacy of consideration in limine. Whether, in case of failure
to do so, the bill will be dismissed with or without costs,
depends on the circumstances of each case.* So the pur-
chase of a reversion from an heir, in the life of his father, at
an under-value, was set aside, though, if the heir had died
before his father, the purchaser would have lost all his
money.^ So, whether the heirship be presumptive or ap-
pa/rent, it is held not to be an interest or possibility capable
' M'Kinney v. Pinckard, 2 Leigh, v. DeFaria, 17 Ves. 20 ; Bemy v. Pitt,
149. 2 Vern. 14.
2 Butler V. Haskell, 4 Desaus. 687. * Ryle v. Brown, 13 Price, 758 ;
3 Peacock v. Evans, 16 Ves. 512; Bawtree v. Watson, 3 My. & K. 339.
Ryle V. Brown, 13 Price, 758 ; Bawtree See Bernal v. Donegal, 3 Dow. 133.
u. Watson, 3 My. & K. 339 ; Gowland ' Nott v. HiU, 1 Vern. 167.
CH. XX!..] SALE OP EXPECTANCIES. 365
of being made the subject of contract.^ So, if an heir sells
his reversion, in the life of his father, at an under-value, the
Court will not, in favor of such purchaser, decree a specific
•performance of a covenant for further assurance.^ So a sale
by an heir apparent of interests in possession and reversion
was set aside, the consideration being inadequate, and ad-
vantage having been taken of the vendor's embarrassments.'
7. The plaintiff, having a remainder in tail, and being
distressed, conveyed two manors of the yearly value of
j6300, expectant on an estate for life in his uncle, for the
sum of £300, to the defendant, his heirs and assigns, from
and after the decease of the uncle without issue male. The
plaintiff brings a bUl to be relieved against this bargain as
unconscionable ; and the defendant files a cross bUl for
specific performance. Lord Hardwicke held it a void con-
veyance, even in point of law ; for, as the plaintiff had a
remainder in tail only, he could not dispose of the inheri-
tance. Therefore, the cross bUl was dismissed, and the con-
veyance set aside as a catching bargain against a necessitous
heir.*
8. A reversioner for life of a leasehold estate sold it, the
purchaser obtaining only the opinion of an actuary as to its
value, without taking any steps to ascertain its market value
in reference to locality. Upon a suit by the vendor, the sale
was set aside for inadequacy of price, the defendant not
showing that he gave the fair market value.*
9. The rule under consideration being founded chiefly
upon the ground that such contract is a fraud on the ances-
tor ; it has been held that a covenant, by an heir expectant,
that he will convey the estate which shall come to him by
descent or otherMdse, is valid, if made with the consent of
the ancestor, and for a sufficient consideration, and without
advantage being taken of the covenantor. Thus, upon an
1 Carleton v. Leighton, 3 Mer. 667. * Barnardiston v. Lingood, 2 Atk.
See Coles v. Trecothick, 9 Ves. 234. 134.
2 Johnson v. Nott, 1 Vem. 271. ' Edwards v. Burt, 15 Eng. Law &
3 Portmore v. Taylor, 4 Sim. 182; Eq.434.
Gowland v. DeEaria, 17 Ves. 20.
31*
366 LAW OF VENBOBS AND PURCHASERS. [CH. XXI.
action of covenant broken, it appeared that the defendant
executed a deed, "in consideration of $1,400 paid me by"
(the plaintiffs) " my brothers, as well as for the purpose of
enabling my father (E. F.) to settle his estate, as far as. may-
be, during his lifetime, among his children and heirs at law;"
proceeding to convey all present and future interest in the
father's estate, and to covenant that the grantor will claim,
&c., no part thereof, and on demand will execute to the
plaintiffs any instrument necessary to carry this deed into
effect. It appeared that the deed was made with the knowl-
edge and consent of the father. Held, though nothing
passed by the deed in the father's lifetime, there being then
nothing to grant, yet the covenant to make further assur-
ances might be valid, if made on good consideration, with-
out oppression or advantage taken, and with the father's
knowledge and consent. Parker, C. J., says : " In such case,
there is no fraud upon him (the father) nor imposition upon
the heir who covenants, and no injury to the public, which
are the grounds on which such contracts are set aside in
chancery. * Here a fuU and adequate consideration was paid
to the defendant, who was desirous of receiving that portion
of his father's estate, which in the course of law would fall
to him. With thi^he goes abroad to enter upoii business,
with a money capital. The father, acquiescing in his wishes,
assents to the purchase made by two other sons, thinking
this the best mode of providing for the wants of the son
who is to leave the paternal roof and seek his fortune else-
where. There seems to be nothing against good policy in
this, and it is not opposed by any case that has been
cited."!
10. So a release by an heir apparent of his expectancy,
with a covenant that neither he nor those claiming under
him wiU ever claim any right in the same, is, if made fairly
and with the consent of the ancestor, a bar to the releasor's
claim thereto by descent or devise, after his ancestor's death.
1 Fitch V. Fitch, 8 Pick. 480, 483.
CH. XXI.] SALE OE EXPECTANCIES. 367
And such covenant runa with the land, and protects the
heirs and assigns of the covenantee. So a release of " all
the right, title, or interest," which the releasor " has, or may
have, in or unto the estate of his father, whether the same
may fall to him by wiU or heirship," includes future rights to
be acquired by the releasor ; and a covenant never to make
claim to " the premises," is a covenant never to make claim
to the estate of the father. More especially, where such
deed was made after the wiQ, by virtue of what is termed
by the Court " a family arrangement," to which the grantor,
his brother, (the grantee,) and their father were parties ; and
it was left to referees to decide what should be paid by the
grantee to the grantor ; and the award was made, a note
given for the sum awarded, and afterwards paid ; the trans-
action was held not to be invalid.^ (a)
11. In cases of this nature, the general rule is, to grant
relief on payment of principal, interest, and costs, the pur-
chaser being considered as a mortgagee. But, in general,
his bill to establish the purchase will be dismissed with costs,
except of depositions used by the other party .^ Thus -the
grant of a reversionary rent-charge, after the death of the
plaintiff's father (who was old and infirm) upon unreason-
able terms, was set aside, but to remain as security for the
money really advanced, and costs to be paid as in redeeming
a mortgage.^
12. Lapse of time may be a bar to relief. Thus a ten-
ant for life, who was also devisee in trust io remainder
for the children of the testator, with a power of appointment
by will amongst them, purchased and obtained, from the
objects of the power, a release of their reversion at an under-
value, and devised the estate to her son in fee, charged wfth
1 Trull u. Eastman, 3 Met. 121. Ace. 2 Peacock v. Evans, 16 Ves. 512.
Edwards v. Burt, 15 Eng. L. & Eq. 434. ' Gwynne v. Heaton, 1 Bro. C. C. 1.
(a) It seems there is the same exception to the rule, where the party is
a reversioner, &c., and the bargain is known and not objected to by the
prior tenant. King v. Hamlet, 2 My. & K. 473-4.
368 LAW OP VENDOES AND PURCHASERS. [CH. XXI.
debts and legacies. The son took possession and paid oflF
the legacies and charges. Fourteen years and a half after
the death of the tenant for life, and seventeen years after
the purchase of the reversion, the assignee of one of the
vendors, an object of the power who had become insolvent,
filed his bill to set aside the sale. Held, the lapse of time
was a bar, notwithstanding the poverty of the cestui que
trust.^
13. But a reversionary grant from a person in the situation
of an expectant heir, though made thirty-four years, and con-
firmed by a subsequent deed, was set aside ; being obtained
by fraud and imposition, the party confirming being ignorant
of his rights, and the length of time satisfactorily accounted
for. The same principle applies where a party, though
apprised of his rights, is compelled to accede to the terms
from distress and poverty, occasioned by the party procuring
the confirmation.^
14. Transactions of this nature may undoubtedly be con-
firmed by express ratification, as well as delay, on the part of
the- injured party. But, where grants in reversion were ob-
tained by an agent and trustee from his employers and
cestuis que trusts, by fraud and misrepresentation ; and after-
wards assigned for valuable consideration to a purchaser
having notice of the facts and the nature of the title ; the
conveyances' were set aside, it being considered that the
fiduciary relations stiU existed, the grantor being ignorant of
his rights, and the circumstances showing a continuation of
the fraud and not a confirmation.^ (a)
1 Eoberts v. Tunstall, 4 Hare, 257. " Dunbar v. Tredennick, 2 Ball &
2 Boche V. O'Brien, 1 Ball & Bea. Bea. 304.
3^0.
(a) Protection has been extended to an heir even against the act of his
ancestor. Thus if a father, possessed of an advowson, which he apparently
designed for his son, be prevailed on, when in an infirm state of mind, to
enter into articles for the sale of it ; equity will not compel specific perform-
ance, although there is no imposition or fraud imputable to the purchaser.
Bell V. Howard, 9 Mod. 302,
CH. xxn.]
TRUST, ETC
369
CHAPTER XXII.
CONSTRTJCTIVB FRAUD. — TRUST, ETC.
1 . General principle of confidential re-
lations.
6. Agents.
10. Trustees.
16. Attorneys, solicitors, &c.
24. Executors, guardians, &c.
26. Miscellaneous trusts ; and excep-
tions and limitations to the general rule.
37. Remedies.
1. It reinaains to consider another kind of implied or con-
structive fravd, which invalidates a sale of real property;
to wit, the fraud arising from the mutual, confidential rela-
tion of the contracting parties ; making their interests iden-
tical, and rendering it both adverse to public policy and
dangerous to the rights of one of the parties, to sanction
any transaction that places them in an opposing or hostile
attitude with reference to each other. This class of persons
is said^ to comprise agents, arbitrators, attorneys, assignees
of bankrupts, auctioneers, commissioners, creditors or others
confidentially employed in reference to a bankrupt's estate,
trustees, and mortgagees in trust for sale,
2. The general principle upon the subject is thus stated
by a late elementary writer : " It may be regarded as a pre-
vailing principle of the law, that an agent must not put
himself, during his agency, in a position which is adverse to
that of his principal. For even if the honesty of the agent
is unquestioned, and if his impartiality between his own
interest and his principal's might be relied upon, yet the
principal has in fact bargained for the exercise of all the
skill, ability, and industry of the agent, and he is entitled to
demand the exertion of all this in his own favor. This
principle is recognized to some extent at law ; but most
' Chiton Contr.301.
370 LAW OF VENDORS AND PURCHASERS. [CH. XXn.
cases of this, kind come before Courts of Equity. At one
time, it was understood to be necessary to show that a
trustee had taken undue advantage of his position, in order
to set aside a purchase by him of that which he was a
trustee to sell. But this is not so now. At present, the rule
in equity appears to be, that any act by an agent with
respect to the subject-matter of the agency injurious to his
principal, may be avoided by the principal. If an agent to
sell become the purchaser, or if an agent to buy be himself
the seller, a Court of Chancery, upon the timely application
■of the principal, will presume that the transaction was inju-
rious, and will not permit the agent to contradict this pre-
sumption ; unless, indeed, he can show that the principal,
when furnished with aU the knowledge he himself possessed,
gave him previous authority to be such buyer or seUer, or
afterwards assented to such purchase or sale." ^
3. The principle is held to be more decisively applicable,
where breach of trust is combined with other causes for
avoiding the sale.
4. BUI to set aside a sale. The plaintiff, tenant for life of
the premises, under a marriage settlement, without impeach-
ment of waste, having become involved in debt and greatly
embarrassed, in May, 1801, conveyed all his estate, &c., in
the premises to trustees, for the purpose of sale (subject to
a rent charge of ^6150 per annum, reserved to himself,) for
the benefit of sucM' of his creditors as should execute the
deed. Immediately afterwards, he went to reside in the Isle
of Man, for the manifest and avowed purpose of personal
protection from his still unsatisfied creditors. The trustees
thereupon employed a land surveyor, for the purpose of
measuring and valuing the plaintiff's interest in the premises,
preparatory to putting them up for sale. The surveyor was
assisted throughout by his son; the defendant, who had very
recently been his father's partner in the business, himself
also a land surveyor and auctioneer, and had great share
1 1 Pare, on Cojitr. 74-5.
CH. XXII.] TRUST, ETC. 371
in making the valuation, by measuring and mapping the
estate, &c. The result of that valuation (completed in De-
cember, 1801,) was an estimate, stating the annual value to
be £232 3s. 5d. On the 6th of February following, the
estate was put up to sale by auction, and the defendant
employed as auctioneer. The estate not being then sold, as
no one had offered any bid, the defendant, on the next day,
proposed to the trustees to purchase it himself for ^£500.
They immediately acceded to the proposal, and let the de-
fendant into possession on the 15th of April, but did not
require of him to pay the purchase-money till the 5th of
March, 1803, when the conveyance to him was executed,
and they then received it without taking or requiring inter-
est. That conveyance was soon afterwards executed by the
plaintiff, who came from the Isle of Man for that purpose,
upon receiving a letter from one of the trustees, informing
him that if he did not execute the deed the annuity of £150
would be no longer paid. At the time of sale there was a
quantity of valuable timber on the estate, said to be worth
from £300 to £700, which had not been taken into the
above estimate. Bill to set aside the purchase, as made by
a person of skill in business, employed confidentially to value
and sell the estate for the vendor's advantage ; for knowl-
edge in consequence acquired by him, fraudulent abuse of
trust, inadequacy of price, and duress and coercion. Upon
these several grounds taken in connection, and some of
which, it was said by the Court, would of themselves have
been sufficient ground for its action, the sale was set aside.
Lapse of time was held to be no bar, in consideration of
the plaintiff's having been, from poverty and embarrass-
ments, non compos sui.^
5. So, where a conveyance of an estate, obtained upon a
pretended purchase from an aged amd illiterate man, by a
person who stood towards him in a confidential position, was
set aside ; the Court, being of the opinion that there was in
' Olirer v. Court, 8 Price, 127.
372 LAW OP VENDORS AND PURCHASERS. [CH. XXH.
fact no purchase, refused to give the defendant a decree for
an account of moneys paid by or owing to him, which he
alleged (but failed to prove) was the consideration agreed
upon for such purchase and conveyance.^
6. The confidential relations, which are understood to be
violated by transactions of the nature now under considera-
tion, are those of agency and trust. These are to some
extent identical ; aU agents being in a certain sense trustees ;
and aU trustees, agents. It has been said, however, that
" the rule is applied not so much to those who act as ser-
vants, or instruments for some particular things, as to persons
whose employment is rather a trust than a mere service." ^
But agents, from the very nature of their employment stand-
ing in a confidential capacity, are clearly subject to the
rule, (a) Thus, the defendant, being tenant of a manor, and
being employed by the plaintiff, and having agreed, to pur-
chase it for him, purchased it in his own name. He after-
wards let the plaintiff into the purchase by a mutual deed,
which, however, omitted many things comprised in the pur-
chase deed. Upon a bill for relief against such omissions,
decree for the plaintiff.^
7. Decree setting aside a purchase by an agent from his
1 Wilkinson w. Powkes, 15 Eng. Law ^ 1 Pars, on Contr. 75.
& Eq. 163. ^ Nelson u. Nelson, Nels. Cha. Eep. 7.
(a) It is said, the principal bargains for the exercise of the disinterested
skill, diligence, and zeal of the agent, for his own exclusive benefit. Story
on Agency, § 246. See Smith's Merc. L. 93. So also, it may be correctly
said, with reference to Christian morals, that no man can faithfully serve
two masters, whose interests are in conflict. lb. § 210. And the doctrine,
though chiefly applied in equity, seems to be equally well settled at law.
Taylor v. Salmon, 2 Mees. & Cr. 139.
Upon this ground it has been even held, that a memorandum made and
signed by a seller, at the request of the purchaser, will not bind the latter,
as a memorandum within the Statute of Frauds. Wright v. Dannah, 2
Camp. 203. Upon the same ground, an agent, who discovers a defect in his
principal's title to lands, cannot misuse it to acquire a title for himself, but
will be held a trustee for his principal. Ringo v. Binns, 10 Pet. 269.
CH. XXII.] TRUST, ETC. 373
principal. A reconveyance, and the usual accounts of rents
and purchase-money were directed, making allowance for
substantial repairs and lasting improvements. The defend-
ant having sold and conveyed part of the property, pendente
lite, and died before the accounts were completed ; a supple-
mental bin was filed against the purchasers, and the heir
and personal representatives of the defendant, 'charging that
the purchasers, in case of eviction, claimed compensation
out of his estate ; and the conveyances pendente lite were
set aside. Held, the purchasers were entitled in this suit, as
against their co-defendants, the personal representatives of
the original defendant, to an order for repayment of their
purchase-money, and, as against the plaintiff, to an allow-
ance for substantial repairs and lasting improvements, but
to no greater relief. Also, that the heir and personal repre-
sentatives were proper parties.^
8. An agent employed to seU estates took them for him-
self, under color of a fictitious purchase, and sold a part.
He also fraudulently prevailed on his principal to execute a
lease at a losing rent. After his death, an inquiry was
directed, to ascertain the real value, according to which his
estate was to be charged ; the principal having an option to
take what remained unsold ; and the agent's estate was
charged with the loss arising from the lease.^
9. Four persons agree to purchase of the State a tract of
land, give their joint note for the consideration, and take a
writing from the agent of the State to make a deed on de-
mand ; they also authorize one of their number, in writing,,
to take a deed of the same, and sell it for the whole, each
being entitled to the extent of one fourth by their private
agreement. Held, that one has an interest in the whole as
agent, besides his interest as principal in one fourth. And, if
he gets a deed from the State for one eighth, running directly
to a purchaser of one eighth, instead of one to himself, and
' Treveljan v. White, 1 Beav. 588. '' Hardwicke fc. Vernon, 4 Vcs. 411 ;
• 14 Ves. 504.
32
374 LAW OF VENDORS AND PURCHASERS. [CH. XXII.
then from himself to the purchaser, he is answerable for the
whole consideration received, on the sale being rescinded.
But if, after the sale, he divided the whole of it between the
other three owners, concluding to keep as his own share the
other one fourth of the land, having sold in all to various
persons three fourths of it ; the other three are responsible to
refund, in aid'of him, the one third each received.'
10. The most numerous class of ca,ses, falling under this
general head, is that of trusts, technically so called ; where
one party is not merely employed by another to perform an
act in relation to property for him, but is entrusted with the
property itself. Under these circumstahces, as has been
stated, it is the general rule, that a trustee shall not be
allowed to purchase the trust property for his own benefit ;
either directly or through an agent. He who undertakes to
act for another, in any matter, shall not in the same matter
act for himself, and make the business an object of interest.
Although the cestui que trust be of .age, the transaction
morally fair and honest, a higher price paid by the trustee
than any one else would give, the estate taken at an ap-
praisement or in the name of a third person ; it has been
held that the transaction may be set aside by the cestui.
The trustee purchases subject to that equity?
11. We have already had occasion to notice (Chap. 9,
s. 17,) the exception from the Statute of Frauds of that class
of cases, in which one person purchases real estate for the
benefit of another, and under a verbal agreement that the
latter shall have the benefit of the purchase. These are for
the most part sales on execution, where some friend of the
execution debtor interposes to purchase the property for his
use. The violation of the agreement in such case comes
under the present head of constructive fraud, {a)
1 Doggett V. Emerson, 1 Woodb. & Ringgold v. Ringgold, 1 Harr. & G.
M. 195, 206. 11; Whichcote v. Lawrence, 3 Ves.
2 eampbell v. Walker, 5 Ves. 680 ; 740.
(a) An agreement of this nature may also avoid the sale, subject, how-
ever, to an equitable claim for actual outlays. Thus a sherifiPs sale was
CH. XXII.] TRUST, ETC. 375
12. And the principle is extended to other analogous trans-
actions, the effect of which is to injure a debtor, though not
by violating any trust, to which he is in terms a party.
Thus the land of A. was advertised for sale on an execution
in favor of B. C, who had purchased the land, without
knowing of the judgment and execution, agreed with B. who
attended the sale, that, if he would not bid against him, he
would pay B- the amount of his execution, and give him his
note for the further sum of |150, and B. acceded, and de-
sisted from bidding. Action on the note against C, by an
indorsee, who took it after it became due, with notice. Held,
the consideration might be inquired into; and, being uncon-
scientious, and against public policy, the note was void.^
13. So, where a judgment and execution, which had been
fully paid and satisfied, were kept on foot by the assignees
of the judgment, fraudulently, for the purpose of speculating
on the property of the debtor, of which the defendants, as-
signees or owners of such property, became purchasers at a
sheriff's sale ; they were decreed to execute a release of all
their title and interest so acquired, to the owner of the lands
thus fraudulently sold in execution, to deliver up possession,
and to pay the rents and profits, and damages for any waste
committed, with aU costs, &c.^
14. Bill in equity. The plaintiff haying purchased at
auction from D. a lot of land, on his failure to comply with
the terms of the sale, D. entered and took possession, but,
on application by the plaintiff, was enjoined in equity from
I Jones V. Caswell, 3 Johns. Cas. 29. '^ Troup v. Wood, 4 Johns. Ch. 228.
made to one who purchased at the instance of the debtor, and conveyed to
a trustee for the benefit of the debtor's family. The mother of the debtor's
■wife advanced money towards the purchase, which went to the payment of
his debts. - The trustee afterwards paid out money in discharge of a mort-
gage, to which the land was subject when sold, and neither of them was
accessory to the fraud. Held, the sale, under the circumstances, should be
set aside, but the money thus advanced should be refunded, and the land
stand as security for the payment. McMeekin v. Edmund, 1 Hill, Ch. 288.
376 LAW OF VEJ[DORS AND PURCHASBKS. [OH. XXII,
making a sale thereof. A new arrangement was then made,
by which D. placed a warranty deed in the hands of P. in
escrow, agreeing that it should be surrendered to the plaintiff
on a certain day, provided he had complied with certain
terms of payment, the plaintiff making a deposit of $1,000
as forfeit money. The plaintiff then proceeded to build on
the land, but, failing in his means, was unable to comply
with his agreement. D. then threatened to sell the premises,
and the plaintiff filed a second bill in equity to restrain the
sale, and an injunction was granted, and an interlocutory
decree passed, that, if he should perform his agreement be-
fore a certain time, the injunction should stand continued,
otherwise be dismissed. He failed to perform his agreement,
and the bill was accordingly dismissed. Between the decree
and the dismissal of the bill, the plaintiff, having expended
large sums on the building, and exhausted his resources,
applied to E., one of the defendants, for aid to raise money,
in order to complete the building and discharge the debts ;
and it was arranged between them, that an absolute convey-
ance should be made by D. to E., which was done. On the
same day the plaintiff executed a release of all inxerest to
E. to complete the title, excluding in terms " aU claims and
demands made by, through, or on account of the plaintiff,
and also excepting any claims or demands arising out of
any contract made by or with the plaintiff," and admitting
that he had no legal or equitable right in the same. B. then
assumed the ostensible ownership, but the plaintiff was em-
ployed in superintending the erection of the building, pro-
cured securities to assist in raising funds, and also had
work done on his own account. E. afterwards sold the
premises to K., another defendant. The bill alleges that, at
the time of making the conveyance to E., although there
was no writing to such effect, it was understood between E.
and the plaintiff, that the premises were to be held by E. in
trust, for the benefit of the plaintiff ; and that the conveyance
was made absolute, solely for the purpose of freeing the
premises from all claims by or through the plaintiff, and that
OH. XXn.] TRUST, ETC. 377
E. was only to receive a remuneration for his services and
indemnification for his expenses, and then to reconvey to
the plaintiff; and also that K. was not a bond fide purchaser
without notice. Held, 1. That the circumstances showed
no sufficient motives on the part of the plaintiff to make an
absolute and unrestricted conveyance, but that they were
perfectly consistent with the parol trust set up.
2d. That the former decree, not being a dismissal upon
the merits, was not an absolute bar to a future suit.
3d. That the release by the plaintiff, though absolute in
its terms, was indispensable to guard the property against
his creditors, and induce capitalists to advance funds, and
therefore was not inconsistent with a parol trust; and that
the evidence was irreconcilable with any other supposition,
than that B. was acting throughout as the agent of the
plaintiff.
4th. That if E., knowing that the plaintiff only intended
that he should act as agent, did, nevertheless, intend to act
for his own benefit solely, the concealment of such a design
from the plaintiff was a fraud in equity.
5th. That this wag a case of parol trust, resulting from
agency, and resting upon honorary obligations, and as such
equity would enforce it.
6th. That it was not within the Statute of Frauds, be-
cause, 1st. A resulting trust as to the plaintiff, and a trust
as to E. merely for his liabilities, compensation, and expen-
ditures. 2d. A case of agency. 3d. Of constructive fraud.
4th. Of part-performance.
7th. That K. was not proved to be a bond fide purchaser
without notice, even if he had no notice of the actual state
of the title and claim of the plaintiff, having sufficient notice
of the claim and controversy to be put upon inquiry.
8th. That although the plaintiff may never have been able
to discharge the incumbrances and remunerate the defendant
as agreed, equity would not therefore decree that his rights
were extinguished, though it might on this ground fore-
32*
378 LAW OF VENDORS AND PTIE,CHASBRS. [CH. XXII.
close his rights and order a sale, on application by the de-
fendant.'
15. A., having an equitable interest in land, of which he
was in possession, and which was about to be sold at a
judicial sale, agreed by parol with B., that he, B., should
purchase it for the benefit of A.'s wife and children. B.
stated the agreement to several persons, and his statements
were calculated to stifle competition among bidders, and
actually did prevent one person from attending the sale and
bidding. B. purchased the land at about half its value, and
then refused to comply with his agreement. Held, that B.'s
conduct was fraudulent, and he was not allowed to retain
the land.2 (a)
16. Upon similar principles' of policy, no attorney shall
purchase the property involved in a litigation of which he
has the management.^ (b) Thus counsel consulted respecting
a title cannot buy in an outstanding adverse claim, and set
it up against the client.* So a solicitor, who purchases from
his client, is bound to prove that he paid that price for the
property which, in the exercise of his professional duty, he
would have advised his client to accept, from a third person.^
So, in order to render valid such purchase by a solicitor from
his client, the former must show that he gave his client all
the reasonable advice against himself, which his office would
have required against a third person ; varying, however, ac-
1 Jenkins v. Eldredge, 3 Story, R. * Hackenbury v. Carlisle, 5 W. & S.
181. 348.
2 Kinard v. Hiers, 3 Rich. Eq. 423. j 6 Champion v. Rigby, 1 Russ. & My.
3 Hall V. Hallet, 1 Cox, 134. 539.
(a) It is deemed unnecessary to cite more of the numerous cases to be
found in the books, which establish, recognize, or illustrate the general
principle stated in the text, that a trustee cannot purchase the trust prop-
erty. Some of those which point out exceptions, qualifications, or peculiar
applications of the rule, will be briefly referred to in a subsequent part of
this chapter.
(6) As to the signification of the terms " undue influence," as applied to
transactions between solicitor and client, see Casborne v. Barsham, 2 Beav-
76.
CH. XXII.] TRUST, ETC. 379
cording to the subject of the purchase, the relative situation
of the parties, and the equality of the footing upon which
they stand in reference to the subject. But, if the relation
does not exist in hdc re, the rule with regard to the onus of
proof may no longer be applicable.^
i7. An attorney, consulted by a vendor respecting the
sale, himself became the purchaser at auction. Held, a bill
brought by him for specific performance should be dismissed,
with costs.^ So an agreement entered into between an
attorney and his client, for the purchase by the attorney, at
an under price, of estates to which the client had a good
title, but of which he was not in possession, was set aside
for fraud and maintenance.^
18. Agreement for a reversionary lease, obtained by an
attorney from the son of his employer, who was remainder-
man in a settlement, under which his father, who had granted
the existing lease, was tenant for life. BiU for specific per-
formance dismissed. A., under a settlement executed in
1716, was tenant for life, with power to lease for any term
not exceeding thirty-one years, remainder to his first and
other sons successively in tail male. ' In 1745, A. granted to
B., who was then acting as his attorney, a lease of lands,
comprising two hundred acres of good land, Irish plantation
measure, for three lives or thirty-one years, whichever should
last the longest. C. was the only son of A, In 1749, C,
by a writing indorsed upon that part of the lease of 1745
which was in the possession of B., in consideration of £20,
agreed to ratify that lease, and, on the expiration of the
term, to grant a renewal for a further term of (blank) lives.
The agreement was not indorsed on the counterpart of the
lease, and was not registered till June, 1760. In May, 1760,
A. died, leaving C, who by deed, in 1760, settled the lands
in trust for himself for life ; remainder to his two daughters
as tenants in common. The respondent became entitled to
1 Edward v. Meyrick, 2 Hare, 60. ' Jones v. Thomas, 2 You. & Coll.
2 Salmon v. Cutts, 5 Eng. Law. & 498.
Eq. 93.
380 LAW OF VENDORS AND PURCHASERS. [CH. XXH.
one moiety of the lands,' as the only son of one of the
daughters, and, at a sale under a decree in chancery in
1814, purchased the other moiety. At the time of sale, it
was mentioned that the lands were sold subject to the lease
of 1745. B. died in 1780, leaving D., who was the last sur-
viving life in the lease of 1745, and held the lands under the
lease till his death, which took place in 1817. The appel-
lants claimed as devisees of D. In 1820 the appellants filed
a bill in chancery, stating the facts above mentioned, and
praying specific performance of the agreement to grant a
renewal of the lease. Held, they were not entitled to such
relief.'
19. On a contract for the sale of part of an estate, the
purchaser requiring a fine for the purpose of removing ad-
mitted defects in the title, the vendor employed an attorney,
who was his relation, and had been professionally employed
by him on previous occasions, to levy the fine and complete
the contract. The attorney advised the levying of a fine of
the whole of the vendor's estate, without telling him the
effect of it ; such fine was accordingly levied, and the vendor
died without declaring its uses, and without republishing
his will, previously made, by which he had devised the
whole estate to his wife, who survived him. After the ven-
dor's death, the attorney claimed the estate as his heir at
law, alleging that the will was revoked by the fine, and
brought actions of ejectment to recover possession thereof.
The widow filed a bill in chancery for relief , and, on an
issue directed by that Court, a jury found that the attorney
fraudulently concealed what effect the fine would have upon
a devise. The Court of Chancery, upon that verdict, decreed
the attorney to be a trustee for the devisee. The House of
Lords, affirming that decree, held, further, that the attorney's
alleged ignorance of the effect of the fine, and his omission
to inquire whether the conusor his client had made such a
1 Blakeney v. Bagott, 3 Bligh, N. S. 237. See Twistleton v. Griffith, 1 P.
"Wms. 310.
CH. XXII.] TRTISTj ETC. 381
will, constituted such professional ignorance and neglect, as
would make him in a Court of Equity, independent of the
ground of fraud, a trustee.^
20. In 1824, A. was appointed the solicitor for B. and also
employed as an agent, for the purpose of repurchasing or
redeeming certain annuities, which had been granted by B.
In 1825, A., at his own suggestion, was appointed the irre-
vocable land agent and receiver of B., in order to induce
certain of the annuitants to make reductions in their claims ;
and A., from that period until May, 1838, furnished various
accounts, as such agent and solicitor, which accounts were,
from time to time, settled and signed as between the parties.
In 1830, A., while still in the employment of B., took an
assignment of one of the annuities for his own benefit, hav-
ing paid a less sum than that which had been agreed upon
by the deed for its repurchase. In 1838, A. obtained a loan
of £12,000 for B., B.'s son, C, joining in the security. This
loan was made at five and a half per cent, per annum, and
the deed contained mutual covenants, binding the lender on
the one hand not to call in, and the borrower on the other
hot to pay off, the loan for five years. In 1838, and contem-
poraneously with the other mortgage, A. obtained a mort-
gage of the equity of redemption, to secure £6,250 at six
per cent, per annum. This deed contained no clause re-
straining A. from calling in the money. It also appeared,
that a portion of this sum was intended to secure untaxed
costs already incurred, as well as costs to be incurred. In
1839, the original bill in these causes was filed by A., pray-
ing a foreclosure of his mortgage of 1838, and for liberty to
redeem the prior mortgages. In 1840, B. and C. filed a
cross bin, impeaching the mortgage and the two accounts,
upon foot of which the balance for which it was given was
struck, and also praying to be declared entitled to the benefit
of the purchase made by A. in 1830, Held, the prior mort-
gagees declining to be redeemed, that the original bill should
1 Bulkley v. Wilford, 2 Cla. & Fin. 102.
382 LAW OP VENDORS AND PURCHASERS. [CH. XXII.
stand dismissed, as against them, with costs, and that the
original bill would also have been dismissed as against B.
and C, were it not for the accounts prayed by the cross bill.
Held, also, that A. was a trustee for B. for the repurchase of
the annuities, and that B. was entitled to the benefit of such
purchase.^ *
21. The general rule has been held applicable to a sale on
execution, at auction. Thus land was sold on execution,
and the plaintiff directed his attorney to bid it off. The
attorney admitted he had done so; and said the deed would
be made to the plaintiff, and that he had made a temporary
sale, to save the expense of advertising, and would receipt
the execution when paid. The sale was made on a stormy
day, and only the ofBcer and the attorney attended. The
attorney purchased the land, and afterwards conveyed to
one having notice of the facts. .The land was worth $2,000,
but only $80 due on the execution. Held, the judgment
debtor might redeem, on payment of the latter sum and
interest, the amount paid by the attorney or second pur-
chaser to discharge incumbrances, and the cost of improve-
ments made by the latter.^ So, where an attorney employed
to collect or foreclose a mortgage, took a conveyance to him-
self of the equity, instead of foreclosing ; held, the estate
was subject to the trust in the hands of his heirs, and that
they were bound to reconvey, on payment of the sum paid
for the equity, and of the trustee's claim for his services,
together with the value of improvements made by them-
selves before notice of the trust.^ So, beneficial contracts
and conveyances, obtained by an attorney from his client,
during their relation as such, and connected with the subject
of the suit, being also liable to the charge of champerty;
were decreed to stand as a security only for what was ac-
tually due, and purchases by- the attorney were declared a
trust. S6 a subsequent deed, not a separate, independent,
1 Lawless v. Mansfield, 1 Dru. & » Giddings w. Eastman, 5 Paige, 561.
•^ar. S57. See Davinaey v. Morris, 8 Watts, 314.
2 Howell V. Baker, 4 Johns. Ch. 118.
CH. XXn.] TKUST, ETC. " 383
voluntary transaction, but under the same pressure, and
called for under the covenant for further assurance, was held
no confirmation.^ ,
22. It is held, however, that an attorney may contract
with his client, provided no advantage be taken of this re-
lation. If he be employed to sell, and choose to deal for
the estate, he must withdraw from the connection, or put
himself completely at arm's length, and show, if the contract
be questioned, that he has given the same advice for the
benefit of his client, as he would have done if the sale had
been to a third party. If employed as a general land agent,
he is bound, if he purchases any of the estates, to communi-
cate to his principal all the knowledge, acquired by him as
agent, of ^ the real value of the estate. But mere attorney-
ship does not prevent his entering into a valid contract with
his client.^ So, after g. delay of eighteen years, a bill filed
by a client against his solicitor, to avoid a purchase, was
dismissed.^
23. Purchase of a reversionary interest by an attorney
from his client, which proved in the event advantageous, but
made without fraud or any representation ; the proposal
coming from the client, no confidence being reposed, and
both being ignorant of the value. The bill charges fraud
and misrepresentation, confidence, and knowledge on one
side, with ignorance on the other, but omits the only incor-
rect circumstance, that the receipt was taken as for money
paid, though the real consideration was by deduction from
a bill of costs, not then of that amount. Bill dismissed,
without costs.*
24. The same principle is often applied to purchases
made by parties, who are charged with trusts in relation to
the estates of deceased persons, {a) Thus, a purchase by the
1 Gibson v. Jeyes, 6 Ves. 266. ^ Champion u. Rigby, 1 Euss. &
2 Cave V. Allen, 2 Dow. 289. See Myl. 539.
Edward v. Meyrick, 2 Hare, 60. * Montesquieu v. Sandys, 18 Ves.302.
(o) It is said, that, if heirs elect to set aside purchases made by executors,
384 ■ LAW OF VENDORS AND PURCHASERS. [CH. XXn.
general agent of heirs, of the land of their ancestor, from the
vendee at a tax sale, instead of redeeming the land, enures
to the benefit of the heirs.' So, where executors, having
authority to sell, sold with the intent of repurchasing ; held,
the sale was voidable.^ So, in case of a devise of land
mortgaged, with a direction to the executors to redeem;
though having assets, they took an assignment of the mort-
gage. Held, they took in trust for the devisee.-'' So, where
an administrator purchases land, sold upon a judgment in
favor of his intestate ; he takes it in trust.* So, if an ex-
ecutor purchase the land of his testator at sheriff's sale,
■ recede from his purchase, and the land be resold ; he is
chargeable for the highest price.^ So, where an executor
purchases land, and takes a conveyance to the estate, this is
primd facie a declaration of trust, and the land will be sub-
ject to division among the heirs.^ ,So a purchase by an
executor, at an Orphan's Court sale for payment of debts, is
voidable by the devisee or heir, even though the devisee did
not interfere in procuring such order, but the petition was
presented, the bond given, and the sale made, by another
executor.'^ So, where one of two executors, empowered to
1 Myers, 2 Barr, 463. Darcus v. Crump, 6 E. Mon. 363 ;
2 Den V. M'Knight, 6 Halst. 385. Painter v. Henderson, 7 Barr, 48.
" Jenison v. Hapgood, 7 Pick. 1. ^ Guierw. Kelly, 2 Bin. 294.
* Fellows V. Fellows, 4 Cow. 682. See ^ Garrett v. Garrett, 1 Strobh. Eq. 96.
7 Beeson u.Beeson, 9 Barr, 279.
administrators or guardians, at their own sale, they must go into a Court of
Equity. Worthy v. Johnson, 8 Geo. 236.
The general principle is applied to other transactions of similar effect, as
well as direct purchases. Thus an action was brought against A., an ad-
ministrator, for his own benefit, but in the name of B. A. suffered a judg-
ment to be rendered against him, and, in the levy of the execution upon
the intestate's estate, acted both as defendant and agent of B. Held, the
proceedings were collusive and illegal, and the levy void against a subse-
quent execution in favor of C. Goddard v. DivoU, 1 Met. 413.
Upon the same ground, one to whom a legacy is given, coupled with a
trust, is chargeable with the latter, and cannot legally deal with the cestui
que trust. McCants v. Bee, l.McC. Cha. 383.
CH. XXII.] TRUST, ETC. 385
sell real estate, sells to the other, who has resigned his trust,
he being an heir and devisee, and trustee for others, the
former cannot maintain a bill in equity for specific perform-
ance of such contract.^ It is said,^ " We cannot sustain
upon principles of sound policy contracts of a character like
the present. For although we have no reason to doubt that
this individual transaction is fair in its motives, and bene-
ficial perhaps to the other children of the testator ; still to
affirm it would sanction the principle, that an executor may
bargain with his coexecutor for the estate of the testator or
a part of it, and then, by the resignation of him who is to
have the estate, a conveyance can be made to him by the
other ; and this, where, as a trustee, he is still in privity
with the estate. And though conveyances to trustees may
be examined in a Court of Equity, and set aside, as it re-
gards heirs or cestuis que trust, still the conveyance would be
voidable only in the first instance, and a title might perhaps
be passed to strangers purchasing without notice." But it
has been held, that, where land is sold under a testamentary
power by trustees, an executor, not one of the trustees, may
purchase.^
25. The same principle has been applied to guardians.
Thus a guardian sold his ward's land by auction, himself
being the auctioneer, and employing an agent to bid on his
account. A question arising, whether the bid of the agent
or a higher one by another person was the last before the
hammer was down ; the guardian decided in favor of the
former. The conditions provided that the buyer should take
the land at an estimated quEtritity, unless he elected at the
sale to have it measured. , The agent did not so elect, but
the guardian had the land measured, and it fell below the
estimate. The guardian afterwards sold the land at an
advance, but in his account charged himself only with the
price determined by the measurement. Held, he was bound
' Shelton v. Homer, 5 Met. 462. » Cudburry v. Duval, 10 Barr, 26.5.
2 Ibid. 458, per Hubbard, J.
33
386 LAW OE VENDORS AND PURCHASEKS. [CH. XXII.
to account for the sum for which he resold ; and, although
there was evidence tending to show a rescinding of the
second sale, the deed not being on record, but within the
power of the guardian, but the grantee still remaining in
possession ; still the guardian could not claim another sale,
to determine the amount which he should account for.^ But
he was allowed the sum paid to his agent for his services in
purchasing the land.^
26. Upon the general grounds, relating to agency and trust,
which have been considered in this chapter, it may be added,
by way of miscellaneous examples, that, if the property pur-
chased by a trustee is a lease, and he renews it in his own
name, the renewal is for the cestui's benefit. So, if a trustee
buys in an incumbrance upon the estate, he can hold it only as
security for the sum paid by him, with interest.^ So where
one of several remainder-men purchased the particular estate
avowedly for all ; held, a trust for the others.* So the rule
applies to public trusts ; as where a member of the legisla-
ture sought to obtain a title from the land-office, after the
claimant had petitioned for confirmation oi his right.^ And
it has been adopted in church as well as state. Thus, where
a rector was authorized, with consent of the bishop, to raise
money by an annuity for the rectory house ; and the bishop
advanced the money, and obtained a grant of the annuity
charged on the living; held, the proceeding was wholly
void.^ (a)
1 Hayward v. Ellis, 13 Pick. 272. Tanner v. Elworthy, 4 Beav. 487 ;
2 Ibid. Webb v. Sugar, 2 Y. & Coll. 247.
" EUick V. riexney, 4 Bro. 161 ; * Anderson «. Bacon, 1 Mar. 51.
Quackenbush v. Leonard, 9 Paige, 334 ; ' ^ O'Neill, 2 Bland. 151.
Waters v. Bailey, 2 Y. & Coll. Ch. 219 ; « Greenlow v. King, 3 Beav. 49. See
Fuller V. Dame, 18 Pick. 472.
(o) In Arnold v. Brown, 24 Pick. 89, it was attempted to avoid a sale of
personal property, on the ground that it was purchased by an attaching
officer, subject to the lien of the attachment ; and that he stood in such a
fiduciary relation to the debtor and the attaching and other creditors, as to
bring the case within the principle of a sale of trust property. But this
principle was held inapplicable to such a case. Morton, J., says, (p. 97,)
CH. XXn.] TRUST, ETC. 387
27. Upon similar grounds, where an administrator, who
was prosecuting a suit in the name of an intestate, prevailed
on one of the next of kin, an aged lady living in his own
family, under the pretence that she was running great risk
by the suit, to release to him all her right in the estate ; held,
he could not be permitted to avail himself of it.'
28. The general rule, which has been considered in this
chapter, being established for the protection of parties who
have entered into a confidential relation with others, (a) it
follows, as a necessary inference, that a purchase made by a
trustee (and the same is true of agents and all other parties
confidentially employed) is not absolutely void, but voidable
' Baxter v. Costin, 1 Busb. Eq. 262.
" The property attached bears very little resemblance to a trust fund, and
the sheriff cannot be considered as sustaining the relation of agent or trustee
in any sense, to the defendant in the attachment. He is the officer of the
law, and as such holds the property attached. It may be considered in the
custody of the law. The debtor is not considered to be under the control
or influence of the officer, nor in any degree incapacitated from acting for
himself, and assisting and (in) maintaining his own rights. There is no such
fiduciary relation between them as to form any obstacle to their contracting
with each other. Their interest is adverse, and there exist the ordinary
securities for fair dealing and equal terms in their negotiations.'' He pro-
ceeds to remark, however, that the relation of these parties is such as to
induce close scrutiny for the purpose of preventing any fraud or oppression,
(a) Upon this ground it has been held, that though, in general, a person
who undertakes to act for another cannot, in the same matter, act for him-
self, it is not universally true that a trustee cannot purchase the trust estate ;
but circumstances may render it necessary, in order to protect the interests
of the cestui que trust. Spindler u. Atkinson, 3 Md. 409. So a trustee
may purchase the trust property from his cestid que trust, who is sui juris, if
there is a distinct bond fide contract, ascertained to be such, after a jealous
and scrupulous examination of all the circumstances, on the part of the
cestui, that the trustee should purchase ; and if there is no fraud or con-
cealment, and no advantage taken by the trustee of information acquired
by him in that character. Bryan v. Duncan, 11 Geo. 67. A trustee may
discharge a prior incumbrance for the benefit of the estate, and reimburse
himself out of the trust property. Qrutchfield v. Haynes, 14 Ala. 49.
388 LAW OF VENDORS AND PUKOHASBES. [CH. XXII.
at the election of the cestui, within a reasonable time. But
if, after notice of the transaction, the latter confirms, or un-
equivocally acquiesces in the sale ; this will be a ratification
both in law and equity.^ (a) Thus a cestui knowing of a
purchase of the trustee, and of his right to avoid it, may-
ratify it, by assenting to the application of the purchase-
money to his use.2
29. By virtue of the same qualification of the general
rule upon this subject, if a trustee, who himself purchases,
make improvements, he will be allowed therefor upon a
resale ordered by the Court. In some cases, the property
will be put up at the original price, in addition to the cost
of the improvements, and, if it will not bring more on the
sale, the original purchase will be allowed to stand.^ So it
has been held, that a bill filed by a cestui que trust, to set
aside a sale at which the trustee became the purchaser, is
demurrable, if it does not contain an offer, or what is equiv-
alent to such offer, to do what is equitable, by the repay-
ment or allowance to the trustee of the amount actually
paid by him.*
30. Upon the filing of a bill in equity to obtain a resale,
it will be referred to a master to settle, whether such resale
would be beneficial to the plaintiff; and, if made, and not
for an increased price, the trustee will be required to com-
plete the purchase.^
31. A trustee for payment of debts purchased the estate
' Prevost V. Gratz, 1 Pet. C. C. 368 ; = Mason v. Martin, 4 Md. 124.
Mason v. Martin, 4 Md. 124, * Gunn v. Brantley, 21 Ala. 633.
" Beeson v. Beeson, 9 Barr, 279. ^ Campbell v. Walker, 5 Ves. 678.
(a) It is said, upon the same principle, " Strangers to the property can-
not call the sale in question. It is an abuse of authority, which may be
taken advantage of by any one whose interest is affected. Hence cestui que
trusts and all for whom the trustee or agent acted, have an option to avoid
the sale and retain the property sold, or to confirm the sale and receive the
consideration, as may be for their interest." Per Morton, J., Litchfield v.
Cudworth, 15 Pick. 31.
CH. XXn.] TRUST, ETC. 389
as agent for his father, both being creditors and partners ;
but the cestui had full knowledge and took the sole manage-
ment of the sale, making surveys, settling the particulars,
prices, &c. Held, the purchase was good.'
32. Upon the same general principle, it is held that neither
remainder-men, strangers, nor parties to the deed, nor those
claiming under them, nor the trustee himself, can avail
themselves of the objection. But the representatives of the
party beneficially interested may avoid such sale.^ (a)
33. Whether a sale at auction falls within the general
prohibition upon this subject, is a point not fully settled.
The weight of authority is that it does.^ Thus it is held,
1 Coles V. Trecothick, 9 Ves. 234. Sandf. Cha. 592; Pitt v. Petway, 12
See Murdock, 2 Bland, 467; Allen o. Ired. 69.
Bryant, 7 Ired. Eq. 276 ; Kennedy v. ^ See Rogers v. Rogers, 1 Hopk. 527 ;
Kennedy, 2 Ala. N. S. 572. Eichelberger v. Bamltz, 1 Yea. 312 ;
2 Thorp V. M'CuUum, 1 Gilm. 614 ; Drayton v. Drayton, 1 Des. 567 ; Hud-
Painter w. Henderson, 7 Barr, 48 ; Weel- son y. Hudson, 5 Munf. 180.
hers, &c. 2, 71 ; Ward v. Smith, 3
(a) The mortgagee or creditor in a trust deed may purchase at the sale
provided for by the deed. But in case of any want of fairness and good
faith, or abus^of his power, he will be regarded as holding the property
only as security for his debt. Lyon v. Jones, 6 Humph. 533.
So a plaintiflf", creditor, or mortgagee, may purchase at a sale made by a
trustee, and the purchase-money, after deducting all commissions, expenses,
and costs, may be discounted from, or applied to, the debt due such pur-
chaser. Murdook's case, 2 Bland, 461, 468.
A cestui que trust may purchase at a sale of the trust estate ; and does
not become a trustee for other parties, without repayment to him of the
purchase-money. Walker v. Brnngard, 13 S. & M. 723.
But one trustee cannot purchase from another. Case v. Abeel, 1 Paige,
393 ; Ringgold v. Einggold, 1 Har. & G. 11. See Giddings v. Eastman, 5
Paige, 561.
But, where one trustee purchases at the sale of another, such sale will
not be wholly void for fraudulent acts of the seller, unless the purchaser is
shown to be connected with them. Beeson v. Beeson, 9 Barr, 279.
Although a trustee cannot become a purchaser of the trust estate, there
is no reason why he should not occupy it, if he accounts for the rents, and to
the amount the Court may consider reasonable. Boot v. Yeomans, 15 Pick.
495. •
•33*
390 LAW OP VENDORS AND PUKCHASERS. [OH. XXH.
that, though a trustee may purchase the property levied on
and sold at a sheriff's sale, at the instance of others, and
will be entitled to reimbursement for his expenditures in the
purchase ; he cannot deprive the cestui of any benefit arising
from such purchase.^ It has been doubted whether the gen-
eral rule applies, where, in case of a trust for creditors, a
majority of them assent, or where the estate is sold under
a decree in chancery, by an open biddihg before the master.
But a sale is not valid merely because it is judicial ; more
especially when made at the instance of the trustee himself.
Nor because it is a public sale. So where, in a sale made
by executors, one of them became a joint purchaser and
afterwards sole owner ; held, the land was still liable to be
taken by creditors, though ratified by the heirs and de-
visees.^
34. As to the time at which a purchase made by the
trustee must be disaffirmed ; it is said, the cestui que trust
" must not lie by to speculate upon events ; " ^ but disaffirm
the sale in reasonable time, according to the circumstances
of the case.*
35. The sale was made under a deed of trust in March,
1847, and the trustee, by his agent, became purchaser of the
land for his own use. The cestui que trust had no notice of
the sale, and it did not appear when she first discovered that
the agent purchased the land for the trustee. In Septem-
ber, 1848, the agent sold and conveyed the land to A., and
in September, 1850, the cestui que trust filed her biU to set
aside the first sale. Held, that this was not an unreasonable
delay ; and, though she might have been present at the last
sale, and made an offer for the land, she would not be con-
sidered as having acquiesced in this sale, unless she was
aware that the trustee had violated his duty in making the
first sale.^ But when a trustee, with the knowledge of his
1 Spindler v. Atkinson, 3 Md. 409. = Ballw. Carew, 13 Pick. 31.
2 Wiggins, 1 Hill's Cha.354 ; Whelp- * Andrews v. Hobson, 23 Ala. 219.
dale V. Cookson, 1 Ves. 9 ; Bruch v. 6 Mason v. Martin, 4 Md. 124.
Lautz, 2 Eawle, 392 ; Campbell v. Penn-
sylvania, Stc. 2 Whart. 53.
CH. XXII.] TRUST, ETC. 391
cestui que trust, makes a conveyance apparently in deroga-
tion of the trust, and undisturbed possession is held, and
improvements made, for fifty years, by the grantee and those
claiming under him, no claim being asserted by the cestui
que trust; it may be presumed that he, for a sufficient con-
sideration, directed, or acquiesced in, the conveyance.^ (a)
36. The sale of trust property to the trustee cannot be
avoided against a bond fide purchaser or mortgagee.^ Thus
a debtor, being in failing circumstances, and owing to five of
his creditors, severally, $7,540, gave them therefor a judgment
bond ; and A., as their attorney, entered up the judgment,
and issued an execution, upon which the real property of
the debtor was advertised for sale. Three of the creditors
attended the sale, in the absence of the other two, and
agreed not to bid against each other, but to employ an agent
to bid in the property, and to divide the profits of the pur-
chase between them in proportion to their respective debts ;
and for this purpose they employed A., who bid in the prop-
erty for $625, which was less than one fifth of its cash
value ; and a few days thereafter he sold the premises for
$3,600, and divided the profits among the three creditors.
Held, the purchase was fraudulent, as against the other
two ; but, being made to a bond fide purchaser, without
notice, that both sales must stand ; and the three creditors
must account to the other two for their shares of the pro-
ceeds, in proportion to their several interests in the judg-
ment.^
37. With regard to the remedy of the cestui que trust, in
case of a purchase by the trustee, it has been held, that it
1 Williams v. First Presbyterian, &c. ^ Robbins v. Bates, 4 Cush. 104.
1 Ohio, 478. ' Hawley v. Cramer, 4 Cow. 718.
(a) In Pennsylvania, a purchase of land by an administrator, at a sale of
the estate of his intestate, if not actually fraudulent, cannot be avoided by
the heirs, unless suit be brought within twenty-one years after the sale, or
within ten years after they come of age, if they were then minors. Mussel-
man V. Eshleman, 10 Barr, 394.
392 LAW OF VENDORS AND PUECHASERS. [CH, XXH.
must be more particularly directed to the property itself than
to the party who has committed the wrong ; it is rather in
rem than in personam. Thus an agent, appointed to sell a
mortgage, represented to his principal that he could get no
more than a certain price for it, which was less than its real
value, and bought it for that price. Held, the remedy of the
principal was not an action for fraud, but a claim to annul
the sale, or for an account for the true value.i
38. On a bill to set aside the sale of an estate, on the
ground of fraud, the plaintiff cannot give evidence of the
relation of attorney and client at the time of the sale, with
a view of raising an inference of fraud ; the fact not being
stated or put in issue by the biU.^
39. A.'s interest in leasehold lands having been set up for
sale on execution, C, his attorney, the real plaintiif in one
of the writs, but not pressing the sale, attended ; and, having
made the largest bid, he was declared the purchaser. He
paid the purchase-money, which was not more than sufficient
to satisfy the writs prior to his own, and the expenses. A.
claimed the benefit of the purchase, alleging that C. bid as
his agent, and purchased in trust for him, which C. denied,
but offered to give up the purchase if A. would pay him the
purchase-money and other demands he had on him. A. was
not then able to raise the money, but after ten years, — during
which C. dealt with the lands as his own, — he filed his bill,
charging that C. bid for and purchased the land as his agent,
in trust for him ; that C. said so at and after the sale in
conversation with Mends of A., and they, on that under-
standing, did not bid ; all of which C; positively denied in
his answer. S., a witness for A., proved conversations be-
tween himself and C, as charged in the bill. Held, 1. That,
a decree, by which the bill was dismissed upon C.'s under-
taking to release A. from all demands ; and a second decree
by which the former was varied, and an issue directed to
'- Thompson u.Hallet, 26 Maine, 141. ^ ■vjriiiiams v. Llewellyn, 2 You. &
Jer. 68.
CH. XXII.] TRUST, ETC. 393
ascertain the value of A.'s interest in the lands at the time
of the sale ; were both erroneous.
2. That an inquiry as to such value was immaterial. The
material question being, whether C. was acting on behalf of
A. in bidding and purchasing, C. might take an issue to try
that question ; but, if he declined, he should be declared a
trustee for A.
3. That A.'s equity was not affected by the lapse of ten
years, there being no acquiescence by A., and C. being aware
of his rights.
4. That, if an attorney is not acting as attorney for his
client on a particular occasion, he may throw off that cha-
racter, and exercise his independent rights.^ (a)
1 Austin V. Chambers, 6 CI. & Fin. 1.
(a) In illustration of the general principle stated in the text, we may
refer to a few miscellaneous cases, some of which are not, strictly speaking,
purchases of real property. In proof of the universality of the rule, it is
said, equity will never permit a trustee to secure his own debtpaot secured
by the trust, by a combination with one claiming adversely to the cestuis.
Irwin 17. Harris, 6 Ired. Eq. 215.
So the reason of the rule is said to be, not that there is, but there may be
fraud. Brothers v. Brothers, 7 Ired. Eq. 150.
The principle is often applied in connection with mortgages purchased or
held by the trustee. Thus a trustee agreed to purchase a farm for the cestui
from the proceeds of trust property. He bought the farm, giving a bond
and mortgage for the price, but refused to pay them, and procured a fore-
closure and sale by the mortgagee at a heavy loss. Held, he was liable for
such loss. Green v. Winter, 1 John. Cha. 27.
Where a bank was bound to pay off and discharge a mortgage, so as to
relieve the property of a third person from sale under a decree o"f fore-
closure, and the cashier attended the sale as agent for the bank, and bid off
the property on his own account ; held, equity would regard him as pur-
chasing for the benefit of the bank, and that the purchase was improper,
and should be set aside. Bank, &c. v. Torrey, 7 Hill, 260.
A trustee sold the property on credit, taking a bond and mortgage back,
and afterwards repurchased part of the property, and gave credit for the
amount on the bond. The sale being rescinded, held, the cestui que trust
might elect to claim the property or the money. Sollee v. Croft, 7 Rich.
Eq. 34.
394 LAW OF VENDORS AND PURCHASERS. [CH. XXH.
So, where a trustee became the owner of land, on which was a mortgage
belonging to the trust estate, cancelled the mortgage on the record, sold one
third of the land, taking back a mortgage for the same amount as the former
one, and executed a declaration of trust, acknowledging that he held it in
trust in lieu of the former one ; but the land included in the latter mortgage
was greatly inadequate security ; on a biU by the cestui, setting forth that
these acts were done without his knowledge or consent, and that the original
bond and mortgage had' never been paid, a decree was made, establishing
these securities as still valid, securing the rights of subsequent bona Jide
mortgagees, and directing a sale of the property, and payment by the
trustee of any deficiency. So, where the holder of a mortgage assigned it
in trust, for the benefit of children, and afterwards accepted a reassignment
of it from the assignee in trust ; held, he was accountable as trustee to the
cestuis. So, where a trustee has borrowed money, and with it purchased
other property, and added it to the trust, and repaid the borrowed money
from the proceeds and profits of the trust property, the property thus pur-
chased belongs to the beneficiary. Wasson v. English, 13 Mis. 176; Butler
V. Hicks, 11 Sm. & M. 78 ; Gilchrist v. Stevenson, 9 Barb. 9 ; Stuart v.
Kissam, 2, 498 ; Whichcote v. Lawrence, 3 Ves. 740.
A testator died insolvent, in 1828, leaving a farm and house, and the
plaintiff", his widow, as his executrix. She arranged with A., a relative, to
buy in the ■■m when sold, and hold it, to be conveyed to her on payment
of the purchase-money, on which she was to pay interest quarterly. In
1834, A. conveyed to one of the defendants, her step-son, who assented to
the above arrangement. The plaintiff" remained in possession till 1842, the
property having greatly increased in value, when the step-son refused to
convey, and conveyed a part to the other defendant. The agreement to
convey was made at or before the sale, and, in consequence of it, the estate
brought $1,000 less than A. paid. The plaintiff" had for some years neglected
to pay the interest and paid none of the principal. The plaintiff" files a bill
in equity to compel specific performance of the agreement to convey to her,
and set aside the conveyance from the step-son. Held, the agreement was
not a mortgage, and did not create a constructive or resulting trust, but was
merely executory ; that, being made by an executrix with her relative, it
was a fraud on heirs and creditors, a breach of trust, and against public
policy, and therefore void against both defendants, the purchaser from the
step-son being a purchaser with notice. Tufts v. Tufts, 3 W. & M. 456.
The general rule stated in the text is held to be applicable only to an
actually existing, not to a past trust, or one with which the purchaser is not
himself connected. It is said, "It would seem to impose an unnecessary
hardship and disability upon him who had been a cestui que trust, to deprive
him of the power of dealing with him who had been the trustee, but who
had discharged himself or been released from his duty as trustee. Such
CH. XXII.] TRUST, ETC. 395
dealing would be good, if fair and honest." Per Putnam, J., Ball v. Carew,
13 Pick. 31-2.
One of two partners, in his own name and with his own funds, purchased
in fee the premises on which the firm, under a lease, was carrying on busi-
ness (after the term limited for the partnership had expired, but before
actual dissolution.) The purchase was not fraudulent, but made without the
knowledge or consent of the copartner, and with notice that he was treating
for a purchase for partnership use, and was not any part of the firm's
ordinary business. Held, the copartner could not claim the premises as
partnership property. Anderson v. Lemon, 4 Sandf 552.
A. mortgages land for security to B., his surety. A. then transfers to C,
a creditor, all his remaining interest in the land, without the knowledge and
not for the account of B., and afterwards transfers such interest to B.
Held, in the absence of fraud, B.'s purchase was not invalid, as made by a
trustee ; that relation having ceased by A.'s transfer to C. Ball v. Carew,
13 Pick. 28.
So a trustee may become a purchaser, at a sale made by virtue of pro-
ceedings prior to his becoming such. Thus the assignees of an insolvent
may purchase lapd sold on execution under a mortgage prior to the assign-
ment. Fisk V. Lacher, 6 W. & S. 18.
The circumstance that the principal or cestui que trust has not relied
upon the party confidentially employed, but upon the judgment of a third
person mutually referred to, has been held to render the transaction valid.
Bill to set aside the lease of a farm granted to a steward by his employer.
It appeared that the lease was for a term longer than was usual on the
estates, and was granted at the solicitation of the steward, on an agreement
made before the subsisting lease had expired, and at a rent lower than was
offered to the steward on behalf of the occupying tenant ; but also that the
rent to be paid had been fixed by a surveyor named for that purpose by the
employer, and on a valuation made in the surveyor's usual manner, and that
th^ offer of a higher rent was known to the employer before he executed
the lease. Bill dismissed, with costs. Selsey v. Rhoades, 2 Sim. & Stu. 41.
The rule does not apply, unless the property purchased really as well as
nominally belongs to the cestui. Thus, if the guardian or trustee for an
infant heir or devisee, the real title being in a third person, buy this title,
this shall not be a trust for the infant. Lesley's case, 2 Freem. 52.
The general principle stated in the text has been applied with strictness
to assignees of bankrupts. Thus the assignees of a bankrupt were removed,
on the ground that one of them had purchased under the commission, for
himself. A resale was directed, and the purchaser to account for a profit
gained by him upon a resale of part. Decreed to be a trustee for the original
vendor as to the sums produced by such second sale. Fox v. Mackreth, 2
Bro. C. C. 400.
396 LAW OF VENDOES AND PURCHASERS. [CH. XXH.
So an assignee, having thus purchased, was held a trustee of the profit
upon a resale ; in the first instance for an equitable moutgagee by possession
of the deeds, although he had deUvered them up on receiving the produce
of the firet sale. Ex parte Morgan, 12 Ves. 6.
So, if an assignee purchase part of the bankrupt's estate, and improve,
the estate must be resold, and put up at the price given by the assignee,
adding the sum laid out in improvements. Hewit, 2 Mont. & Ayr. 477.
A common agent or solicitor in court, employed on behalf of the creditors
of the estate of a bankrupt in Scotland, may be considered in the nature of
a trustee. A purchase, therefore, by him of any part of the bankrupt's
estate may be set aside ; and at all events will be so, if there appear any
circumstances of improper or negligent conduct. York, &c. v. Mackenzie,
8 Bro. P. C. 42.
Where a sole assignee wishes to bid, for the benefit of the estate, he must
be removed, or a quasi co-assignee appointed to protect the estate. Ex parte
Molineux, 2 Mont. & Ayr. 245.
An assignee desirous of purchasing must first obtain the consent of the
creditors, and then petition, and serve the other assignees, and also the
bankrupt, with the petition. Ex parte Bage, 4 Madd. 459 J|
The Court will not confirm such purchase made without leave, because a
meeting of creditors has consented. Ex parte Thwaites, 1 Mont. & A. 323.
The mortgagee of a bankrupt's estate may be allowed, on motion, to bid
for it. Ex parte Marsh, 1 Madd. 148.
And the Court will not rescind such purchase, though made without leave
of Court. Ex parte Ashley, 1 Mont. & Ayr. 82.
So, a mortgagee having bid without leave, an order to bid nunc pro tunc
was made. Ex parte Pedder, 1 Mont. & Ayr. 327.
A mortgagee, with power of sale, himself put up the premises for sale,
and then applied for leave to bid. Held, he could not be permitted, unless
he waived the power, and had the property sold under the order of commis-
sioners. Ex parte Davis, 1 Mont. & Ayr. 89. «
Similar rules have been applied in other cases, analogous to proceedings
in bankruptcy. Thus, where a trustee for sale of lands for payment of debts
pays to the value of the lands, he thereby becomes a purchaser himself.
Lambert v. Bainton, 1 Cha. Ca. 199.
So a purchase under a trust for payment of debts by the trustee, as agent
for his father, both creditors, in partnership, was established under the cir-
cumstances, particularly that the cestui que trust had full information, and
the sole management, making surveys, settling the particulars, fixing the
prices, &c. Coles v. Trecothick, 9 Ves. 234 ; 1 Smith, 233.
W. being indebted to C, agreed by deed to convey his estate to C. Bpon
trust to ^ell the same, and to pay off certain debts of W. due to other per-
sons, and then his own debt, and to pay over the surplus, if any, to W.
CH. XXn.] TRUST, ETC. 397
No conveyance was executed. C, being afterwards in possession, under a
fi. fa. issued on a judgment, upon a warrant of attorney given by W.,
agreed with W.'s agent to purchase the estate. W. ratified the contract,
but subsequently impeached'it as one made by a trustee for his own benefit,
and against the interest of the cestui que trust. Held, that C. was not a
trustee for W., but was a creditor, holding a security for his debt, and that
the contract of sale was valid. Waters v. Groom, 11 Cla. & Fin. 684.
A trustee, who has purchased the trust property and sold it at a profit,
and is compelled by a suit in equity to refund that profit, will not, except
in case of moral fraud, be charged with costs. Baker v. Carter, 1 You. &
Coll. 250.
But, where trustees for sale purchased through a trustee, at an under-
value, though without fraud, and by auction ; and the cestuis were infants,
incapable of discharging the trustees ; the purchase was set aside, with costs.
Sanderson v. Walker, 13 Ves. 601.
The following was a form of decree against a trustee, purchasing at an
alleged undervalue, and making permanent improvements : " It is ordere(l>
that the trustee shall be declared purchaser of the premises at the present
value ; which is not to be less than the price of the original purchase, with
the permanent improvements. But, if the Court shall ultimately decide that
he ought to be allowed the value of the improvements, or any' part thereof,
then so much oj the purchase-money as relates to the improvements is to be
allowed as already paid by him." Williamson v. Seaber, 3 You. & Coll. 71 7.
So a trustee for sale for payment of debts, who purchased, himself, by
taking undue advantage of the confidence reposed in him by the plaintiff,
and, previous to the completion of the contract, sold at a highly advanced
price ; was discharged from the purchase only conditionally, in case the
resale should produce more. 'Ex parte Keynolds, 5 Ves. 707.
398
LAW OP VENDORS AND PTJBCHASERS. [CH. XXni.
CHAPTER XXIII.
NOTICE.
1. General principles as to notice.
4. Express and implied notice.
5. Notice sufficient to demand inquiry.
6. Implied notice, chiefly as arising
from possession under an unrecorded
deed.
10. Notice, to whom given; agents,
solicitors, &c.
13. .By whom.
H. Notice, in cases of lease and ten-
ancy.
22. Lis pendens.
^ 1. Having in the foregoing chapters considered the causes,
by which a contract for the sale and purchase of lands may
be avoided as between the parties themselves ; we proceed
to inquire, under what circumstances a contract binding
upon the parties is valid or void, as to third persons having
an interest in the property bargained for. This question
commonly turns upon the point of notice ; it being the gen-
eral rule of equity, where questions of this nature usually
arise, that a purchaser with notice, or one informed of an
existing contract in reference to the property purchased,
although it have not been actually conveyed ; takes the
property subject to that contract, and wiU be compelled to
execute it. In the English law, the subject of notice has
given rise to very numerous and various questions, and very
subtile distinctions, {a) connected more particularly with
(o) The English Equity Reports abound with cases, which turn upon the
effect of express or implied notiee ; while American oases of this description
are comparatively rare, except as connected with the single point of regis-
tration ; showing that the subject does not require to be exhibited in all its
complicated details, in a practical American treatise. Moreover, a large
proportion even of the American cases relate, not to mere contracts, but to
executed conveyances, which do not fall within the plan of the present work.
The collateral topics of Fraud, Estoppel, Trust, Mortgage, and others equally
CH. xxin.] NOTICE. 899
actual or constructive fraud ; but in the United States these
have become to a great extent unimportant and inapplicable,
by reason of the registration system which universally pre-
vails, and by which the recording of an instrument according
to law is generally deemed an equivalent or substitute for
actual notice, as to .all the world. We propose, therefore,
only to state a few of the leading principles, which seem to
be well established by the weight of. authority, (a)
copious, into all of whicli Notice enters, as a leading element, would lead to
inquiries of great interest, but foreign from the design, and wholly incon-
sistent with the limits, of this book.
(a) The rules as to notice are held to apply only for the protection of
the prior equitable rights of third persons against subsequent purchasers,
claiming adversely ; not to controversies between the vendor and purchaser.
Champhn v. Laytin, 6 Paige, 189.
It is said, " Valid transactions, as between the parties, may be frauduleiit
by reason of- covin, collusion, or confederacy to injure a third person ; for
instance, A. buys an estate from B. and forgets to register his purchase-
deeds ; if C, with express or implied notice of this, buys the estate for a
full price, and gets his deeds registered, this is fraudulent, because he assists
B. to injure A." Per Ld. Mansfield, Worseley v. De Mattos, 1 Burr. 474.
So it was remarked by another eminent Judge : " Taking of a legal estate
after notice of a prior right, makes a person a mala fide purchaser. This is
a species of fraud, and dolus mains itself; for he knew that the first pur-
chaser had the clear right of the estate, and after knowing that, he takes
away the right of another person by getting the legal estate. And this
exactly agrees with the definition of the civil law of dolus mains. Dig. lib. 4,
tit. 3, lex 2. Fraud or mala fides, therefore, is the true ground on which the
Court is governed in cases of notice. Per Ld. Hardwicke, Le Neve v.
Le Neve, 3 Atk. 654.
So it has been said to be mischievous to consider the registry as notice to
all intents. Bushell v. Bushell, 1 Scho. & Lef 103.
Even the familiar maxim, "ignorantia legis neminem excusat," has been dis-
pensed with in reference to registry. Thus a statute was made in Ireland,
that all leases not registered by such a day should be void. The respondent,
who lived in the remotest part of Ireland, not having notice of the Act, did
not register ; whereupon another lease was made to one who had notice of
the first, and registered, and ejectment brought upon it j but the respondent
was relieved. Forbes v. Deniston, 4 Bro. P. C. 189.
Annuity granted out of land? in Middlesex, and without registry. One hav-
400 LAW OP TENDORS AND PTJRCHASBKS. [CH. XXIH.
2. It is held that if A., after agreeing to sell to B., sells
and conveys to C, who, before he purchased, had been told
" that A. had sold the premises to B. ; that B. had purchased
it, and had an article for it ; " C. does not stand in the situa-
tion of a bond fide purchaser without notice, entitled to the
special favor of the Court. Having purchased the title of
A., with notice of at least some claim on the part of B., he
stands in no better situation than A. himself, and must stand
or fall by the merits of the case, as it exists between A. and
B.^ (a) So a parol agreement for a purchase, and possession
delivered, was decreed to be performed against a subsequent
purchaser with notice, who had a conveyance and paid his
money:^
3. A purchaser with notice, from one without notice, is
held a bond fide purchaser.^ So a bond fide purchaser, for
valuable consideration, is protected under the statutes of 13
and 27 Eliz., whether he purchases from a fraudulent grantor
or grantee, and whether the first deed was made to defraud
subsequent creditors or subsequent purchasers.*
4. Notice ia.eitheT- express and actual or implied and con-
structive ; {b) but, it is said, there is no difference between
actual and constructive notice in its consequences ; ^ and the
1 King V. Morford, I Saxt. Ch. 274. » Lowther v. Carlton, 3 Atk. 241.
But see Bradbyn v. Ord, 2 Atk. 241. * Hood v. Fahnestock, 8 Watts, 489.
2 Butcher v. Stapley, 1 Vera. 363. * 2 Sugd. 537.
ing notice of this grant purchases the inheritance. The grantee shall have
his annuity against the purchaser. Chivall v. NichoUs, Stu. 664. See Beatnifif
V. Smith, 1 Eq. Ca. Abr. 357, pi. 11 ; Blades v. Blades, 1 Eq. Ca. Abr. 358,
pi. 12 ; Hine v. Dodd, 2 Atk. 275 ; Le Neve v. Le Neve, 3 Atk. 646 ; Shel-
don V. Cox, Ambl. 624 ; JoUand v. Stainbridge, 3 Ves. 478.
(a) Upon the same principle, where one purchases an estate, pays part
of 'the price, and gives bond to pay the residue, subsequent notice of an
equitable incumbrance before such payment is sufficient. Tourville v. Naish,
8 P. Wms. 307 ; Story v. Windsor, 2 Atk. 630 ; More v. Mayhevr, 1 Cha.
Ca. 34; 2 Freem. 175, pi. 235. So, notice of an incumbrance after pay-
ment, but before a deed is executed. Wigg v. Wigg, 1 Atk. 384.
(6) Express notice of a deed is equivalent to recording. Knotts v. Geiger,
4 Rich. 32 ; Draper v. Bryson, 17 Mis. 71, •
CH. XXni.] NOTICE. 401
terms actual and constructive are said to be indefinite with
reference to notice.^ Actual notice is such as men usually
act upon in the ordinary affairs of life ; not positive andcer-
tain knowledge (in reference to a prior deed) of its exist-
ence, as by seeing it, or being informed of it by the grantor
himself.^
5. But, beyond this, it is held that any notice is sufficient,
which should put a party on inquiry? {a) Information, which
makes it the duty of a party to inquire, and shows where
such an inquiry may be effectual, is notice of al^ facts, which
might be thereby ascertained, after a reasonable time for
making the inquiry.* No purchaser is at liberty to remain
intentionally ignorant of facts relating to his purchase, within
his reach, and then claim protection as an innocent pur-
1 Jordan r. Pollock, 14 G«o. 145. soil, 15 Penn, 343; Smith v. Low, 1
2 Curtis V. Mundy, 3 Met. 405. Atk. 489.
8 Gibbes v. Cobb, 7 Rich. Bq. 54; ' Carre. Hilton, 1 Curt. 390;' Ring-
Rupert ». Mark, 15 111. 540 ; IiTGehee v. gold w. Bryan, 3 Md. Ch. 488 ; Stockett
Gindrat, 20 Ala. 95 ; Sergeant «;. Inger- ». Taylor, 3 Md. Ch. 537.
{o) Where the creditor of a publican in London took from the latter a
l«gal mortgage of copyhold, knowing that the publican was indebted to his
brewers, and also knowing the ordina^p practice in London of publicans'
depositing their leases with their brewers by way of mortgage ; held, such
notice as would have put a prudent man on further inquiry ; and that the
equitable security had priority. Whitbread v. Jordan, 1 You. & Coll. 303.
It is to be observed, that some authorities exact more stringent express
notice than that stated in the text. Thus it is said, to show express notice
the proof must be " clear and unequivocal." Per Wilde, J., M'Mechan v.
Griffing, 3 Pick. 154. "So it is said, " Suspicion of notice, though a strong
suspicion, is not sufficient to justify the Court in breaking in upon an act of
parliament" Per Lord Hardwicke, Hine v. Dodd, 2 Atk. 275 ; 6 Barb. 60.
So it has been held, that notice of an unrecorded deed must be proved be-
yond all reasonable doubt. Rogers ». Wiley, 14 111. 65. So, that it must be
direct and positive or implied, not merely sufficient to put the party on in-
quiry. Nor is a suspicion of notice sufficient. Fort v. Bunch, 6 Barb. 60.
The purchaser said, in a conversation with a third person, about the time
of the purchase, that " he had understood that (his grantor) had fooled
away the lot, and had sold it several times, and did not consider it worth his
trouble to look about it." Held, this conversation did not justify an infer-
ence of notice. Jackson v. Given, 8 Johns. ip7.
34*
402 LAW OF VENDORS AND PURCHASERS. [CH. XXIII.
chaser.' Thus, where a person other than the 'grantor is in
possession, it is the purchaser's duty to inquire into the title,
and the presumption of law is, that upon such inquiry he
ascertains the true state of the title ; unless he makes such
inquiry, a fraudulent intent in making the purchase is pre-
sumed.^ (o) So notice of a judgment against a vendor is
sufficient -to put a purchaser upon further inquiry. Hence, if
instead of a judgment the party has a specific incumbrance
on the property, the purchaser wiQ be bound by it.^ But
notice to a. purchaser of judgments against the vendor,
whose estate is limited to uses to bar dower, does not pre-
vent the purchaser from taking the estate free from the
judgments, under an exercise of the power reserved to the
vendor.* So notice to a purchaser that there is a lease
is notice of its contents.^ So notice of possession by a
tenant is notice of his interest.® So, of his interest, either
as tenant, or further, by an agreement tp purchase.^ So
a purchaser, with notice of the tenant's possession of part
of the estate, has constructive notice of the whole of the
tenant's interest.^ So, although notice to a purchaser in one
transaction will not affect him in an independent subsequent
one ; notice of a deed is notrce of the whole of its contents,
so far as they can affect the transaction in which such notice
is acquired.®
6. The class of cases which has given rise to the most
numerous questions as to notice, is that of implied 6r cm-
1 Jenkins v. Eldredge, 2 Story,_181. ^ Heirn v. Mill, 13 Ves. 114.
2 McLaughlin ». Shepherd, 32 Maine, ' Daniels v. Davison, 16 Ves. 249.
143. 8 Powell^. Dillon,.2 Ball & Beat. 416.
s Taylor v. Baker, Dan. 71. » Hamilton v. Eoyse, 2 Scho. & Lef.
* Eaton V. Sanxter, 6 Sim. 517. 327. i
6 Hall V. Smith, 14 Ves. 426.
(a) But constructive notice of title is not sufficient to postpone the owner
of land to a purchaser having equal notice, because the owner, knowing of
the intended sale, permits it without objection ; unless there be actual notice
of his right, or positive acts inducing the purchase. Paul v. Squibb, 12
Penn. 296.
CH. XXni.] NOTICE. 403
structive notice, usually arising from the occupation and
improvement of the land, by one not having a perfect legal
title. On the general subject of implied notice, involving in
part, however, what has been already suggested with regard
to a certain kind of express notice ; (a) it is held that the
doctrine of constructive notice applies in two cases ; first,
where the party charged has notice that the property in dis-
pute is incumbered, or in some way affected, in which case
he is deemed to have notice of the facts and instruments, to
a knowledge whereof he would have been led by due inquiry
after the fact which he actually knew ; and, secondly, where
the conduct of the party charged evinces that he had a sus-
picion of the truth, and wilfully or fraudulently determined
to avoid receiving actual notice of it.^
7. But, as has been staged, the terms implied notice are
commonly applied to the inference arising from possession of
the land. Our plan does not lead to a statement of the
numerous cases of this class, in which a subsequent recorded
conveyance is relied upon on one side, and a prior unre-
corded conveyance on the other ; the second grantee 15eing
alleged to have implied notice of the former deed, growing
out of the occupation of the. first. The questions arising
fronx a mere sale of the land, not consummated by a con-
veyance, have been comparatively rare ; but the principle
involved is substantially the same ; and indeed a convey-
ance not registered bears a very close analogy to a mere
executory contract, (b) Thus it has been held, that, where a
1 Jones V. Smith, 1 Hare, 43.
(a) Meaning by express notice, that which is expressly communicated,
though not in such a way or from such a source as to be absolute and posi-
tive, in contradistinction to that which is to be inferred from facts and cir-
cumstances. Such is the notice, which is held sufficient to put a party on
inquiry. See Poworth v. Deem, 1 Ed. 351.
(V) The defendant, under the belief that he had the fee-simple in an
estate, subject to a life interest in his mother, who really was the owner in
fee, conveyed all his interest to trustees for the benefit of his creditors, with
404 LAW OE VENDORS AND PUKCHASEES. [CH. XXIII.
parol sale of lands has been made, money paid, and posses-
sion delivered, the contract is good between the parties, but
not against a bond fide purchaser, vsrithout clear evidence of
notice to him, either actual or legal ; that legal notice exists
only where there is a violent presumption of actual notice ; and
that undisturbed possession by the equitable owner has gen-
erally been considered legal notice ; but it must be a clear,
unequivocal possession. Hence, where A. bought by parol
from B. a corner of B.'s tract, paid for it, was put into posses-
sion, and had buildings erected, but at the same time had no
survey of the part, or other admeasurement to reduce it to
certainty, and on B.'s own part there was a forge, dwelling-
house, grist and saw mill, and buildings for the workmen,
which, with A.'s building, might strike the eye as oiie estab-
lishment ; the possession of A. was held not to be legal
notice of his title to a purchaser at sheriff's sale, under a
judgment against B. ; but the equity of such purchaser would
prevail ; particularly if A. gave no actual notice of his title,
when he probably knew of the judgment, execution and
sale.*
8. Under an agreement of exchange between A., who held
lands under a college lease, and B., the owner of an adjoin-
ing estate, B. occupied part of the college lands, and A. had
occupied, along with the residue of the leasehold, part of
B.'s estate. A. having become bankrupt, the coUege- lease-
hold was sold, and was described in the particulars of sale as
"late the residence of A." Held, the purchaser was not to be
considered as having implied notice of the exchange, and
had a right to recover that portion of the leasehold which
was in B.'s occupation.^
. 1 Billington v. Welch, 5 Binn. 129, ^ M.W.e.s v. Langley, 1 Buss. & Myl.
131. 39 ; 2 Ibid. 626.
covenants for title and for farther assurance. Upon her death the fee de-
scended to him. Held, although not a valid conveyance, the transaction
amounted to a contract for sale, which the defendant was in equity com-
pellable to execute. Smith v. Baker, 1 You. & Coll. 223.
CH. XXni.] NOTICE. ' 405
9. In case of an unrecorded prior conveyance, it has been
sometimes held, that the possession of the grantee is tti
itself constructive notice, equivalent to that derived from
registration, (a) But the prevailing doctrine is now other-
wise. Thus it is said,^ " the doctrine in the English law of
constructive notice of the title of the lessee, or party in
the possession, is not favored in the American Courts." So
Judge Story says, " The American Courts seem indisposed
to give effect to this doctrine of constructive notice from
possession, even in its most limited form. The English
cases admonish Courts of Equity in this country, where the
registration of deeds, as matters of title, is universally pro-
vided for, not to enlarge the doctrine of constructive notice,
or to follow aU the English cases on this subject, except with
a cautious attention to their just application to the circum-
stances of our country, and to the structure of our laws." ^
So it is held in Massachusetts, that, although open Etnd
notorious possession and improvement of real estate has
generally been held sufficient constructive notice of a deed ;
yet the evidence must have been such as to render the in-
ference not merely probable, but necessary and unquestion-
able. Thus it was held not to arise, where an owner of
land purchases land adjoining and not separated by a fence,
and principally woodland, repairs the fence, pastures cattle,
and sells trees.^ And it has since been held, as a general
rule, that open and visible possession, cultivation, and the
making of permanent improvements are insufficient notice
1 4 Kent, 179, a. " M'Mechan v. Griffing, 3 Pict. 149.
2 Flagg V. Mann, 2 Sumn. 291, 555, See Butler v, Stevens, 26 Maine, 484.
556. But see Matthews v. Demeiritt,
22 Maine, 312.
(o) In Blinois, a late case so decides. Rupert v. Mark, 15 Illin. 540.
See Mill v. Hill, 22 Eng. L. & Eq. 20.
It has been recently held in Michigan, that, although the possession and
improvements of a purchaser do not constitute actual notice of an unre-
corded deed, within the terms of the statute ; still they make such an
adverse possession, as will render the subsequent conveyance void at com-
mon law. Hubbard v. Smith, 2 Mich. 207.
406
LAW OF VENDORS AND PURCHASERS. [CH. XXHI.
of an unrecorded deed.^ (a) So it has been held in New-
Hampshire, that, in order to have this effect, the possession
must be exclusive and unequivocal — a mixed possession is
not sufficient.^ (b)
10. Notice to one, who purchases or sells for another,
affects the latter.^ (c) So notice to a solicitor is actual
' Pomroy v. Stevens, 11 Met. 244. 1 Eq. Ca. Abr. 330; Maddox v. Mad-
2 Bell V. Twilight, 2 Fost. 500. dox, 1 Ves. 61 ; Sheldon v. Cox, Ambl.
* Merry v. Abney, 1 Cha. Ca. 38 ; 624.
(a) Where a deed is made and recorded, with a defeasance back, which
is not recorded, the continued possession of the grantor is not implied notice
of such defeasance. Hennessey v. Andrews, 6 Cush. 170.
(5) It is held, that even registration is not constructive notice, unless
authorized by law ; as in case of an unacknowledged deed. Johns v. Rear-
don, 3 Md. Ch. 57. Of an unsigned deed ; although the signature be
subsequently registered, *but unseasonably. Shepherd v. Burkhalter, 13
Ge,o. 443. Ace. Dennis v. Loftin, 6 Tex. 489 ; Brown v. Budd, 2 Cart. 442.
See Delane v. Moore, 14 How. U. S. 253. So registry of a defective deed
is void. Pope v. Henry, 24 Verm. 560. In order to maintain a title against
a prior unrecorded deed, the purchaser must prove payment of a valuable
consideration. The recitals in his deed are not evidence of such payment.
Nolen V. Gwynn, 16 Ala. 725. The rule, that a purchaser for valuable
consideration, without notice, is protected by the legal estate, applies where
his title is impeached, not only by some secret act of the vendor or those
under whom he claims, but by the falsehood of a fact of title asserted by the
vendor or those under whom he claims ; provided such title is clothed with
possession, and the falsehood could not have been discovered by reasonable
diligence. Jones v. Powles, 3 Myl. & Kee. 581. .
A defendant, stating by answer a purchase for valuable consideration
■without notice, shall not be compelled to answer further. And equity will
not take the least step against such purchaser, not even to perpetuate testi-
mony against him. Jerrsird v. Saunders, 2 Ves. 454.
Bill by tenant in tail, in possession under a marriage settlement, for dis-
covery and delivery of title-deeds. Plea, mortgage by the tenant for life,
alleging himself to be seised in fee, and in possession of the premises and
deeds as apparent owner. Plea allowed ; upon the rule that equity gives
no assistance against a purchaser for valuable consideration without notice.
Wallwynn v. Lee, 9 Ves. 24. But, if a person will purchase with notice of
another's right, giving a consideration will not avail him. Mead v. Orrery,
3 Atk. 238.
(c) Because otherwise, as is said, a man who bad a mind to get another's
CH. XXin.] NOTICE." 407
notice to the client.^ Thus A., having notice of an incum-
brance, purchases in the name of B., who, however, neither
employed A., nor knew that the purchase was to be made.
A. then agrees that B. shall be the purchaser, and B. accord-
ingly pays the purchase-monoy, without notice of the incum-
brance. Held, that B., by approving the purchase, made A.
his agent, ab initio, and therefore was affected with the
notice to A.'-^ So mere implied notice to an agent binds the
principal.^ But the rule, that a purchaser is in equity charge-
able with constructive notice of the contents of a deed,
which came to the knowledge of his agent in the investiga-
tion of the title, does not apply as between the vendor and
the purchaser ; it applies only as between the purchaser and
third persons having prior equitable rights.* .So A. agrees
to take a lease, but, previous to signing the articles, has
notice that B. has a prior agreement for a lease, and procures
the lease to be granted to his son. Held, this notice affected
the son, and that he should deliver up the possession.^
11. If the same person is agent both for the vendor and
purchaser, or is himself vendor and agent for the purchaser,
whatever notice he may have will affect the purchaser.^
Thus a purchaser, having employed the vendoi;^s agent, who
had notice of an incumbrance, was charged with notice,
though the purchase was made under the sanctiop of the
Court, and an infant was interested in it.^ So, after the com-
' Tanstall v. Trappes, 3 Sim. 301. = Coote v. Mammon, 5 Bro. P. C. 355.
2 Jennings v. Moore, 2 Vern. 609. " Dryden v. Frost, 3 Myl. & Cra. 670 |
' Atty.-Gen. v. Gower, 3 Eq. Gas. Majoribanks v. Hovenden, 6 Ir, Eq.
Abr. 685, pi. 11. ■ 238.
* Champlin v. Laytin, 18 Wend. 407. ' Toulmin v. Steere, 3 Mer. 210.
estate might shut hia own eyes, and employ another to treat for him, who
had notice of a former title, which would be a manifest cheat. Attorney-
General V. Gower, 3 Eq. Ca. Abr. 685, PL 11. Notice to an attorney or
agent is not to be considered as implied or constructive notice merely,
which is properly referable to something that a party or his agent ought, if
reasonable diligence had been used on his behalf, to have acquired a knowl-
edge of, but which possibly neither he nor his agent ever did know or ac-
quire any knowledge of. Lenehan v. M'Cabe, 2 Ired. Eq. 342,
408 LAW OF VENDORS AND PURCHASERS. [OH. XXIH.
mencement of a treaty for the sale of an estate by A., and
the purchase of it by B., A. agreed to give C. a mortgage
as security for an antecedent debt, and notice of the agree-
ment was given to the solicitors of B. The treaty for the
sale afterwards ceased for upwards of five years, during part
of which time the suit of an adverse claimant was pending.
A. then died, and B. purchased the estate at a lower price
from his heir and devisee, and mortgaged to D. The same
solicitors were concerned for B., from the commencement of
the treaty untU the final purchase, and for D. in the business
of the mortgage. Held, B. and D. had constructive notice
of the agreement with C, and the estate in their hands was
subject to the lien of C, for the amount agreed to be secured
by the proposed mortgage.^
12. As notice, in order to affect a purchaser himself, should
be confined to the same transaction y-''^ d fortiori notice to aw
agent or counsel, who was employed in the thing by another
person, or in another business, and at another time, is no
notice to his client, who employs him afterwards.^ Thus
where, by a transaction foreign to the business in hand, a
counsel or attorney, employed to look over a title, has notice,
that shall not affect the purchaser.* So, though the agent
acted as attorney for the vendor and vendee.^ Otherwise,
where one transaction is closely followed by, and connected
with, another ; or where it is clear that a previous transac-
tion was present to the mind of a solicitor, when engaged
in the subsequent one.^ So where the former transaction is
so recent, or so closely connected with the latter, that it
must be presumed that the agent remembered itJ
13. To constitute a binding notice, it must- be given by
" Fuller V. Bennett. 2 Hare, 394. Dodd, 2 Atk. 275 ; Ashley v. Baillie, 2
s Warrick v. Warrick, 3 Atk. 290. Vea. 368.
8 Worsley v. Scarborough, 3 Atk. ^ Mountford v. Scott, 3 Mad. 34 ;
392. Turn. & Kuss. 274.
* Lowther v. Carlton, 2 Atk. 241
Preston v. Tubbin, 1 Vem. 286 ; Fitz
gerald v. Fauconberge, Fltzgib. 297
Warrick v. Warrick, 3 Atk. 291 ; Steed Ibid. 342
V. Whitaker, Barnard. 220 ; Hine u.
5 Hargreaves v. Rothwell, 1 Kee. 154.
' Majoribanks v. Hovenden, 6 Ir.
Eq. Rep. 238 ; Lenehan v. McCabe, 2
CH. XXIII,] notice'. 409
one interested in the property, and in the course of the treaty
for the purchase, (a) Vague reports from persons not inter-
ested in the property will not affect the purchaser's con-
science, nor will he be bound by notice in a previous trans-
action which he may have forgotten.^ Thus one person
came to another, who was about to purchase a house, and
told him to take heed how he bought it, for the vendor had
nothing in it, but upon trust for A.; and another person
came to him, and told him it was not so, for the vendor was
seized of the land absolutely. Held, although the first in-
formation was correct, it was not legal notice.^ So land
given to charitable uses was intended to be sold by Act of
Parliament ; and, when the bill was read in Parliament, it
was declared that the land was thus chargeable, and an offer
made otherwise to assure the use. The bill not passing,
the land was afterwards sold to a member who took part in
the debate. Held, not legal notice.^
14. Questions of notice often occur in reference to th^
rights of landlord and tenant, and the purchase of leasehold
interests.
15. General notice to a purchaser, that there are leases, is
notice of all their contents. Thus a purchaser, being told
part of the estate was in possession of a tenant, was held
bound by the lease.* So the possession of a tenant, even of
part of the estate, is notice to a purchaser of the actual
interest he may have, either as tenant, or further, by an
agreement to purchase.^
16. Bill for specific performance. A tenant, being about to
marry, requested his landlord to substitute as cestui que vie
1 2 Sugd. 537-8. » 2 Sngd. 538.
2 Wildgoose v. Weyland, Goulds. * Taylor v. Stibbert, 2 Ves. 437.
147, PI. 67; Comwallis's case, Toth. ^ Daniels v. Davison, 16 Ves. 249;
254. Powell V. Dillon, 2 Ball & B. 416.
(a) It is held, that a notice in the name of nobody is insufficient. Rogers
V. Hoskins, 14 Geo. 166. So it is said, flying reports are many times fables,
and not truth ; and, if admitted for sufficient notice, the inheritance of every
man might easily be slandered. Wildgoose u. Weyland, Goulds, 147, pi. 67.
35 ;
410 LAW OE VENDORS AND PURCHASERS. [CH. XXIII.
in his lease, in place of an old life, the name of the plaintiff,
his intended wife ; which the landlord, by letter, promised to
do ; and, upon the faith of such promise, the marriage was
had, and the premises settled upon the wife. The landlord
being dead, the wife brings this bill against the defendant, a
purchaser from the landlord; who was deemed under the
circumstances to have had notice of the agreeme^nt. Decree
for the plaintiff.1
17. A tenant for life having granted leases for lives under
a power, and bound himself upon the dropping of a life to
grant a new lease, with the same provision for renewal on
the death of any person to be named in any future lease,
and afterwards joined in a sale ; held, though the power
was exceeded, yet, if a life drops in the life of the lessor, the
purchaser, having notice, must specifically perform, by grant-
ing a new lease with the same provision.^
18. The lord of a West-country manor (his tenants re-
fusing to renew) makes a lease of the premises to his
daughter for ninety-nine- years, and afterwards sells the
manor to one who has notice of the lease, but has security
that the daughter, when at age, should surrender. The
daughter was decreed to have the benefit of the lease.^
19. A. made an equitable mortgage to B., and afterwards
agreed to lease to C, who had notice of the prior charge.
A. became bankrupt before the lease was executed, and on
the petition of B. an order in bankruptcy was made, under
which the premises were sold to B., and he retained the
amount of his mortgage out of the purchase-money. Held,
on a bill filed by C. for specific performance of the agreement,
that B., having become the purchaser, and thereby united
his equitable mortgage with the equity of redemption, was
bound to perform the agreement.*
20. An agent may take a lease from his principal, if pre-
pared to prove that full information has been imparted to
1 Crofton V. Ormsby, 2 Scho. & Lef. ^ Jennings v. Selleck, 1 Vern. 467.
583. * Smith v. Phillips, 1 Kee. 694.
2 Taylor v. Stibbert, 2 Ves. 437.
CH. XXin.] NOTICE. 411
the latter, and that the contract has been entered into with
perfect good faith. And the same principle applies to one
who takes an assignment of a lease from the agent of the
lessor, with notice of the agency. If the lease cannot be
upheld by the agent, neither can it be by the purchaser.'
21. Demise by a copyholder for one year, and, at the end
of that term, from year to year, for the term of thirteen years
more, if the lord will give license ; and so as there shall be
no forfeiture, with the usual covenants in a farm lease. The
license not being granted, held, it was a condition precedent,
and there was no lease at law further than from year to
year ; also, that no equity arose from the circumstance, that
the lord purchased his tenant's interest with notice of the
demise, and an express exception of all subsisting leases, or
agreements for leases.^
22. A purchase pendente lite, though without actual notice,
and for valuable consideration, shall be set aside. '■^Pendente
lite nil innovetur." Though this rule of equity is said to
be hard, yet it is in imitation of the common law, where in
a real action, if the defendant alienes pending the writ, the
judgment will overreach the alienation. Thus acts of the
Court, as the commitment of a wardship, and in a cause
depending, are to be taken notice of by every one at his
peril.^ So, an heir at law being as much at liberty to invali-
date the will, as the devisees to establish it ; a suit for that
purpose is to all intents a lis pendens.^ So, in case of a
devise of lands charged with payment of debts ; if the de-
visee sell, pending a suit by creditors for sale and payment
of debts, such alienation is void.^ (a)
1 Molony v. Kernan, 2 Dru. & War. ' Herbert's case, 3 P. Wms. 117.
31. * Garth v. Ward, 2 Atk. 174 ; 3 Bar-
2 Lufkin V. Nunn, 11 Ves. 170. See nard, Rep. Cha. 450.
Doe V. Lufkin, 4 E, 221. » Walker v. Smalwood, Ambl. 676.
(a) Whether a subpoena served, and a bill filed, is a lis pendens against
all persons, qu. The former alone is not. Anon. 1 Vern. 318. But, where
a Kegister Act directed, that no judgment should affect lands, but from the
412 LAW 01" VENDORS AND PTJROHASBRS. [CH. XXIH-
23. It has been held, that a decree is not implied notice to
a purchaser, after the cause is ended ; but it is the pendency
of the suit that creates the notice.^ (a) As it is a transaction
in a sovereign couit of justice, it is supposed all people are
attentive to what passes there.^ So, where the defendant,
having notice of a decree to which he was no party, paid
money contrary to that decree ; ordered, that he should pay
the money over again.^
24. After a decree, the bar to the right of reviving the
suit, which arises from delay, depends altogether on the dis-
^ Worsley v. Scarborough, 3 Atk. ^ Ibid.
392. 8 Harvey v. Montague, 1 Vern.57, 122.
time of registry of such judgment, a purchaser with notice of an unregis-
tered judgment was still held to be bound by it. Tunstall v. Trappes, 3
Sim. 301.
(o) In case of a real purchase pendente lite, the plaintiff is to be held
to strict proof. And, if any flaw at the hearing be on the plaintiff's side,
the Court will not let him amend ; but, if the purchase pendente lite be fraud-
ulent, and to elude the justice of the Court, it ought to be highly discoun-
tenanced. Sorrel v. Carpenter, 2 P. Wms. 482.
A conveyance made pendente lite is not wholly void. The rule merely
means that the conveyance does not vary the rights of the parties to the
suit ; that they are not bound to take notice of the title acquired under it ;
but, with regard to them, the title is to be taken as if it never existed. 2
Story Eq. § 908 ; Hopkins v. M'Laren, 4 Cow. 678.
So it is held, that the effect of the maxim, " pendente lite nihil innovetur,"
is limited to the rights and parties in that suit. It does not absolutely annul
a eonyeyance pendente lite. Therefore a plea in bar to a bill by a purchaser
from the defendant, "with actual notice, was overruled. Metcalfe v. Pulver-
toft, 2 Ves. & Beam. 200.
" The reason of the rule is, that if a transfer of interest pending a suit,
were to be allowed to affect the proceedings, there would be no end to liti-
gation ; for as soon as a new party was brought in, he might transfer to
another, and render it necessary to bring- that other before the Court; so
that a suit might be interminable. But this reason has no application to a
third person, whose interest subsisted before the suit was commenced, and
who might have been made an original party." Per Kent, Ch., Murray v.
Lylburn, 2 Johns. Ch. 441.
The doctrine is said to rest, not upon the presumption of notice, but upon
public policy. Newman v. Chapman, 2 Rand. 93.
CH. XXIII.] NOTICE. 413
cretion of the Court. A bill of revivor may be filed, at any-
time within twenty years after' decree for an account, unless
there has been such a variation of the rights of parties, as
may work positive injury and injustice to other persons.
Parties claiming under a marriage settlement, subsequent to
such decree, are affected with notice, as purchasers pendente
lite, a decree for an account being only a continuance of
the litigation.^
25. A writ of restitution will not be granted, to put into
possession one not a party to the cause, who had been turned
out by an injunction, though he had a legal title ; he having
obtained possession under a grant from the defendant pend-
ing the suit .2
26. A devisee obtains a decree to hold and enjoy against
the heir, who it was supposed had suppressed the will.
Pending this suit, a third person gets an assignment of a
mortgage made by the testator, and then purchases the
equity of redemption of the heir, with notice of the wiU.
The Court would not admit the purchaser to dispute the
decree, nor to try at law, whether the wiU was not cancelled
by the testator.^
27. A purchaser pendente lite, on filing a supplemental
bill, is liable to all the costs from the beginning to the end
of the suit.*
28. In a creditor's suit, the debts and costs were paid by
the sale of one of two devised estates, and the Court directed
the master to settle the proportion which was to be borne by
the other. The devisee of the former was entitled for life
only ; and, he being an ignorant person and a day laborer,
no proceedings were had under this direction for twenty-six
years, at the end of which time the other estate was sold.
The year following the tenant for life died, and his son, the
remainder-man, filed a bill, to charge the purchaser of the
1 Higgins V. Shaw, 2 Dru. & War. ' Finch v. Newnham, 2 Vera. 216.
356. * Anon. 1 Atk. 89.
2 Gaskell v. Durdin, 2 Ball & Beat.
167.
35*
414 LAW OF VENBOES AND PTXRCHASERS. [CH. XXni.
other estate, with the proportion which it ought to have con-
tributed towards the debts and costs. Held, there was no
such lis pendens at the time of purchase, as amounted to
equitable notice of the charge.^
29. A joint-stock company, established by Act of Parlia-
ment, vesting in them all property then belonging to them,
and authorizing them to bring actions in the name of their
treasurer for the time being, having purchased an estate,
pending a suit against the vendors, to compel the specific
performance of an agreement to grant a lease of part ; on a
bill by the vendee against the treasurer and directors, the
plaintiffs were declared entitled to a lease, and the treasurer
was enjoined from disturbing their possession, though the
rest of the proprietors, being very numerous, were not parties ;
but no decree could be made for the execution of a lease.^
30. A decree was made against A. B., setting aside, as
fraudulent, a purchase by an agent from his principal, and a
reconveyance, and the usual accounts of rents and purchase-
money, were directed, in which an allowance was to be
made for substantial repairs and lasting improvements. A.
B. sold and conveyed part of the property, pendente lite, and
died before the accounts were completed. A supplemental
bill was filed against the purchasers, and the heir and per-
sonal representatives of A. B. ; charging that the purchasers,
in case of eviction, claimed compensation out of the estate
of A. B., the conveyances, pendente lite, being set aside.
Held, the purchasers were entitled in this suit, as against
their <!0-defendants, the personal representatives of A. B., to
an order for the rep^ment of their purchase-money ; and, as
against the plainti^to an allowance for substantial repairs
and lasting improvements, but to no greater relief. Held,
also, that the heir and personal representatives were proper
parties.^
31. The rule in question has been held inapplicable, where
a .party has articled to purchase the estate, taken possession,
1 Kinsman v. Kinsman, 1 Euss. & ^ Menx t>. Maltby, 2 Swanst. 181.
Myl. 617. 8 Trevelyan v. White, 1 Beav. 588.
CH. XXIII.] NOTICE. 415
and made improvements, before the commencement of a
suit against the vendor, although the price be paid and the
deed executed pending such suit ; this being a mere fulfil-
ment of a prior contract.' So one holding a deed at the
time of suit commenced may effectually record it after-
wards.^ (a)
1 Parks V. Jackson, 11 Wend. 442; ^ jj-vin v. Smith, 17 Ohio, 226.
ace. Trimble v. Boothby, 14 Ohio, 109.
(a) With regard to the allegations required in case of notice to a pur-
chaser ; a defendant, pleading a purchase for valuable consideration without
notice, must aver, not that he, but that the vendor, was seised as owner or
pretended owner, and was in possession ; which would be satisfied by the
possession of his tenant. Daniels v. Davison, 16 Ves. 249 ; Wallwyn v. Lee,
9 Ves. 24. Where the bill charges particular and special instances of notice
of the plaintiff's title on the defendant, his denial of notice generally is not
sufficient. Eadford v. Wilson, 3 Atk. 315.
416 LAW OF VENDORS AND PUECHASEKS. [CH. XXIV.
CHAPTER XXIV.
REMEDIES OB VENDORS AND PURCHASERS. — LAW AND EQUITY.
GENERAL JURISDICTION OE COURTS OP EQUITY ; COMPENSA-
TION ; rescinding; lien, etc.
1. Having completed our view of the rights and liabilities
of. the respective parties to contracts for the sale and pur-
chase of real estate, we proceed to the remaining topic, of
the remedies by which those rights may be asserted, and
those liabilities enforced. It being a universal proposition,
that, wherever there is a legal right, there is also a legal
remedy ; much that falls with strict propriety under the
present division has been incidentally stated or alluded to
in the preceding chapters. But our plan requires that this
whole branch of the general subject should now be fully
illustrated.
2. From the whole course of this work, it may have been
inferred, that the sale of real property is a prolific subject of
questions and cases in Cowrts of Equity ; {a) very many of
the cases heretofore cited having been settled in those Courts.
(a) A plaintiff, suing at law and in equity at the same time, and for the
same matter, will be compelled to elect in which Court he will proceed.
The reason and object of this rule is, to relieve a defendant from the
" double vexation " of defending himself in two Courts against the same
demand, and to avoid the clashing of jurisdiction, which would result from
a jury finding a verdict one way, and the chancellor deciding another.
Bradford v. Williams, 2 Md. Ch. 1.
A Court of Equity, in settling the rights of parties, will not look beyond
the circumstances of the transac^on in respect to which relief is asked by
one party, and take into consideration other and different transactions, set
up by the other party, as presenting equities on his side. Tripp v. Cook, 26
Wend. 143.
CH. XXIV.] REMEDIES, ETC. — EQUITY. 417
And the statement may be safely hazarded, that no single
subject in the law gives more frequent occasion for the exer-
cise of Chancery jurisdiction, in the various forms of injvnc-
tion, rescission, compensation, and more especially specific
performance, than executory contracts relating to real prop-
erty. Thus it is held, that Chancery has unquestionable
juiisdictioii to decree specific performance of a purchase of
real estate, and compel the vendee to pay the purchase-
money, although the complainant has a remedy at law.^
Such subjects are said to be within the settled and common
jurisdiction of the Court, and, if the jurisdiction attaches,
the Court wiU go on to do complete justice ; although in its
progress it may decree on a matter which was cognizable at
law.2 Thus, where either party has performed a valuable
part of his agreement, and is in no default for performance
of the residue, he is entitled in equity to a specific execution
of the other p^rt of the contract ; more especially where it
is impossible to place him in statu quo? And it is, in gen-
eral, no objection that the vendor's remedy is gon e at law,
by reason of a mortgage on the estate, &c., so<^^phe could
convey a good title at the day fixed upon by thSKntract.*
3. But, on the other hand, equity will not enforce a pur-
chase, where the vendor cannot recover at law, unless he
shows a sufficient excuse for his failure, or that his forfeiture
at law had been waived by the vendee.^ So, when as-
sumpsit will not lie on a breach of promise, equity will not
decree specifically.^ (a)
1 Brown v. HafF, 5 Paige, 235. * Seymour v. Delancey, 3 Cow. 445.
2 Cathcart v. Robinson, 5 Pet. 264, ^ Tevis v. Eichardson, 7 Mon. 656.
278. s Hickman v. Grimes, 1 A. K. Marsh,
3 Hays V. Hall, 4 Port. Eq. 374. 87 ; Smith v. Carney, 1 Litt. 295.
(a) The respective powers of, and remedies in, law and equity, in case of
executed conveyances, with the covenants of title usually contained therein,
have been thus stated.
Chancery does not interfere, by decreeing specific or further performance,
with executed agreements. Thus the plaintiffs, supposing they were seized,
sold and conveyed lands, with covenants of seizin and warranty, to which
418 LAW OF VENBORS AND PtIECHASERS. [CH. XXIV.
4. The doctrine of compensation in Courts of Equity has
abeady been referred to under several titles. (See Chapter*
they had no title. Six years afterwards, on being sued by the grantee, the
defendant, on the covenant of seizin, they purchased the lands, and tendered
a new conveyance, but he refused it. Held, that the Court had no power to
compel him to receive the deed, or to interfere with his action on the cov-
enants. Tucker v. Clarke, 2 Sandf. Ch. 96. ^
When a purchaser is evicted by a title covered by his covenants of war-
ranty, this eviction cannot be called a failure of consideration, nor is it
available as a defence at law, to an action for the price ; because a Court of
Law cannot do complete justice between the parties, by placing them in
siaiu quo. So, where the sale has been executed by acceptance of a con-
veyance, fraud is no defence to an action at law for the price. But, when
a purchaser with warranty is evicted by a title to which his covenants ex-
tend, and the veitdor is insolvent, equity will restrain him from recovering
the purchase-money, to the extent for which he is liable on his covenants.
So fraud committed by the vendor by concealment of an incumbrance
created by himself, whereby the purchaser is afterwards evicted, is relieva-
ble in equity, by restraining the collection of the purchase-money to the
extent ofithe injury, or by an entire rescission of the contract, although the
incumbrar^Bijof record, and the conveyance with warranty against all
incumbran^^^Bn all cases of purchase, there is a trust and confidence
reposed by the purchaser in the vendor, that the estate is not impaired in
value or incumbered by any act done by him ; and, by ofi'ering to sell, he
■^rtually represents it as not incumbered by himself, or, if it is, that he will
free it before the sale is executed. And the cases in which mere conceal-
ment of an incumbrance has been held no ground to rescind the contract,
it being removed before the hearing, are said to rest upon the principle that
no injury has resulted to the purchaser. When an incumbrance has been
concealed, the purchaser may reejuire a prompt removal of it. If not
effected, he is entitled to a rescission, and may abandon the possession,
unless he chooses to retain it as a trust fund, to reimburse himself for
money paid. The effect of retaining possession until a decree for rescis-
sion, will be only to charge the purchaser with interest on the purchase-
money, if the possession is of any value. A covenaftt covering the eviction
will not prevent the purchaser from rescinding for fraud. Nor the circum-
stance, that the incumbrance could have been removed by the payment of
a sum greatly less than that remaining due for the purchase-money. Cnl-
lum V. Branch Bank, 4 Ala. 21.
But it is said to be a well-settled rule of equity, that a grantee, to whom
possession has been delivered under covenants of title and warranty, can
OH. XXIV.] REMEDIES, ETC. — EQUITY, 419
13, 16, 17, 18, 19.) In more immediate connection with the
present topic of remedies, it may again be appropriately
introduced.
5. The rule in equity is, that a vendor cannot, with a
good conscience, coerce the payment of the whole pur-
chase money, when there was fraud in the sale, in selling
what did not belong to the vendor, and leave the vendee to
the uncertain damages of an action at law ; but the vendee
has the right of withholding so much of the purchase-money
as will reimburse him for his loss.' But Chancery does not
entertain jurisdiction of a suit, where the sole object is to
obtain compensation in damages for breach of contract, un-
less the contract is of equitable cognizance merely ; if the
defendant seasonably object by demurrer or answer.^ The
jurisdiction of equity for this purpose is held to be merely
incidental or ancillary to a claim for specific performance ;
even in case of fraud.^ - Upon a claim for damages only, a
Court of Law is said to be the only proper forum. So it is
held, that equity will give damages in lieu of a specific per-
formance, only where it has obtained jurisdiction of the
cause on other grounds. Thus, where the defendant has
power to fulfil his contract when the bill is filed, but from
any cause becomes' unable to do so during the pendency of
the suit ; or where, at the time of making the decree, he can
perform it in part only ; the Court, having had jurisdiction
at first, or having the power to afford partial relief by de-
creeing a specific performance as far as the defendant's
1 Kansom v. Shuler, 8 Ired. Eq. 304. " Newham v. May, 13 Price, 749.
2 Morss !). Elmendorf, 11 Paige, 277.
have no relief against his grantor for a return of purchase-money or secu-
rity on account of a deficiency or failure of title. And if a grantee in
poasessioa has taken no covenants, and the title fails, he wiU be without a
remedy in equity as well as at law, provided the contract were fair and no
fraud. But, if fraud is shown in making the purchase or completing it, and
whether there be covenants of title or not, the purchaser may come into
equity for relief, or to obtain indemnity against eviction, disturbance, or
defect of title. Denston v. Morris, 2 Edw. 37.
420 LAW OF VENDORS AND PUBCHASBRS. [CH. XXIV.
ability extends, can give the plaintiff compensation by way
of damages. It is said, this is as far as the principle ought
to be carried.1 (a) So where it would be difficult to ascer-
tain the amount of injury resulting from breach of contract,
equity will not itself ascertain the damages, nor direct an
issue qucmtum damnificatus?
6. Nor can the complainant entitle himself to such com-
pensation, merely by concealing the fact, in his bill, that the
defendant is not able to perform his contract specifically,
where such fact is known to the complainant at the time of
filing the biU.^
7. Where the vendor never had title, or has conveyed it
subsequently to the sale, the vendee having notice cannot
maintain a biU in equity for mere compensation in damages,
but must resort to his remedy at law. But, where the de-
fendant deprives himself of the power to perform his con-
tract specifically, pending a suit to compel such performance,
the Court will retain the suit, and award damages.*
8. A -contract was so drawn, as legally to entitle a vendee
to a large quantity of surplus land, not known to "the par-
ties ; but the vendee had omitted to make his payments, so
that he had not a strict legal right to a performance. Upon
a bill brought by the vendee for specific performance ; held,
1 Wiswall V. McGown, 2 Barb. 270. « Moras u.Elmendorf, 11 Paige, 277 ;
2 Pratt V. Law, 9 Cranch, 456, 494. Woodcock v. Bennett, 1 Cow. 725.
^ Morss V. Elraendorf, 11 Paige, 277;
Bradley v. Bosley, 1 Barb. Eq. 125.
(a) Upon a bill for the specific performance of an agreement contained
in a lease, that, at the expiration of the term, the improvements made by
the lessee shall remain the property of the lessor, on making a fair compen-
sation therefor, the Court wiU entertain jurisdiction, though the bill be
purely for compensation and damages, provided a specific performance may
be decreed, and the complainant can have adequate relief only in equity.
The charge for improvements is, in equity, a lien on the property. But the
Court ■will not extend its jurisdiction beyond this claim to a claim for alleged
infringements of the rights of the lessee during his term. Berry v. Van-
winkle, 1 Green, Ch. 269.
OH. XXIV.] REMEDIES, ETC. — EQUITY. 421
performance should be decreed, only on his making additional
compensation, and after deducting so much of the surplus
land as had been sold to another.^
9. A. agreed to sell an estate tithe-free to B. Afterwards,
C, the vicar of L., (in which parish part of the estate was
situate,) filed a biU for tithes against the occupiers of an-
other part of the estate as also being situate in L. A. agreed
that part of the purchase-money should be set apart, as an
indemnity to B. against this claim, which was accordingly
done, and B. paid the remainder of his purchase-money, and
took a conveyance. C. died, and his suit was dismissed for
want of prosecution ; but the indemnity fund was not trans-
ferred to A. One of C.'s successors instituted a fresh suit
for the tithes. Pending these proceedings, it was discovered
that the lands were situate in the parish of S., and titheable
to the rector of S., and, on proof of those facts, the latter
suit was dismissed at the hearing. Held, B. was entitled to
a compensation out of the fund, for the tithes of the land
situate in SL^
10. Where the owner of land, bound by a judgment
against a previous owner, covenants to give him a quit-
claim deed of an undivided share thereof, at a certain day ;
and after the day conveys to another ; on a bill filed by the
covenantee for specific execution. Chancery ought not to
decree damages to the value of the land, without providing
that the covenantee shall first pay or secure a proportional
part of the judgment. In such case, the Court may refer it
to a Master to assess the damages.^
11. A purchaser may claim compensation in equity for
breach of contract to make a good title, and have an issue
to a jury, without first proceeding at law; if the vendor
has conveyed away his property in trust, whereby there
might be difficulty in obtaining satisfaction of a judgment,
and in order to prevent circuity of action ; the vendor, or his
'■ King u. Hamilton, 4 Pet. 311. * Woodcock v. Bennett, I Cow, 711.
2 Crompton v. Melbourne, 5 Sim. 353.
36
422 LAW OF VENDORS AND PURCHASERS. [CH. XXIV.
representative, the trustees, and cestuis que trusts, being
made defendants.^
12. Bill in equity for relief. The defendant, A., purchased
a farm of the plaintiff, for worthless, stock of a company
which he represented to be worth $6,000. Several false
representations were made by A., and also by B., concerned
in the same company, to induce the plaintiff to take the
stock in payment. Decreed, that the sale, should be re-
scinded, the stock and farm each reconveyed, and a Master
appointed, to report the amount of rents and waste, after
deducting permanent improvements, which should be al-
lowed to the plaintiff. But, if neither the land nor the stock
could be reconveyed, the Master to report the damage done
by the misrepresentations, and a decree to be entered against
the defendants for the amount. And, if the land could be
reconveyed, and not the stock, the land to be reconveyed,
and the value, if any thing, of the shares, at the time of the
sale, deducted from the net income, and a decree made for
the balance.^ ^
13. BUI by a vendor for specific performance, with an
allowance to the defendant by way of compensation for a
part of the estate to which the plaintiff is unable to make
a good title. The defendant having taken possession under
the agreement, one of the terms of which was that imme-
diate possession should be given ; and, in the course of sub-
sequent disputes as to the title to this part of the estate,
having been turned out ; held, the vendor, in so turning
him out, had abandoned his right to a specific performance ;
and the bill was dismissed, without going into the question
of the materiality of the defective part.^ (a)
' Sims V. Lewis, 5 Munf. 29. ' KnatchbuU v. Grueber, 3 Mer. 124;
2 Warner .;. Daniels, 1 Woodb. & 1 Madd. 170.
M. 113, 114.
(a) The following rales apply more particularly to executed conveyances
than mere executory contracts, but still tend to illustrate the subject treated
in the text.
A party defrauded in the purchase or sale of property may rescind the
CH. XXIV.] REMEDIES, ETC. — EQUITY. 423
14. We have already had occasion to consider the subject
of the rescinding of sales and purchases of real property.
(Chapters 13, 17, 18, 19, and sequ.) It requires only to be
further stated, in the present connection, as may indeed have
been inferred from the cases already cited, that Courts of
Equity exercise one of their peculiar functions, in wholly or
partially rescinding a sale, for fraud, mistake, or other cause.
contract, placing the parties in statu quo ; or affirm the contract, so far as it
has been executed, and claim compensation. But equity will partially re-
scind the contract, only where no possible injustice will be thereby done.
If a party defrauded is entitled to any relief, and it is necessary for him to
allege and establish the fraud in order to obtain such relief, he may obtain
full relief, without resorting to law ; although, as to a part of the relief
claimed, he had a perfect remedy at law. And where, by the fraud of the
vendee, a part of the price remains unpaid, although the vendor supposed he
had been paid in full, there is no waiver of his equitable lien, and he may
eome into equity in the first instance, to enforce such lien ; and, as an inci-
dent to this right, equity will ascertain the amount. Bradley v. Bosley, 1
Barb. Ch. 125.
The right of a vendee of land, from a part of which he is evicted, to relief
from the vendor, by being discharged from payment of part of the purchase-
money, does not require a rescission of the contract, but rests on the ground
of a partial failure of consideration, of which he may avail himself in equity,
if not at law, and against the assignee of the note or bond given, as well as
the payee. Walker v. Johnson, 13 Ark. 522.
When a vendor sells several tracts of land, with general covenants of
warranty, and afterwards the vendee is evicted from one of the tracts, by a
person holding a paramount title ; he may defeat the recovery of the unpaid
purchase-money, as against the vendor, to the extent of the value of this
tract. Ibid.
Such vendee having, after his eviction, and after the assignment of his
obhgation for the purchase-money, received back from the land-office the
entrance-money paid by his vendor for the land, by way of indemnifying
himself to that extent against the insolvency of the vendor ; held, he did
not thereby waive his defence, as against the assignee, of such partial failure
of consideration. Ibid.
Equity will, in eases of a very peculiar and extraordinary character only,
compel a purchaser to receive a title, in lieu of damages which he may have
recovered against the vendor, for failing to convey. Koyster v. Shackle-
ford, 5 Litt. 229.
424 LAW OF VENDORS AND PURCHASERS. [CH. XXIV.
which would tender its enforcement and execution inequit-
table. Thus, a purchaser had stipulated for a good title, oii
payment oj the purchase-money, but the title was in the
heirs of a third person, who were non-residents. The parties
to a bond, indemnifying the purchaser against a mortgage
upon the land, were also non-residents, and one was insol-
vent, and the other did not prove his ability to respond in
damages. Held, Chancery would afford relief.' So the false
representation of the vendor, as to the existence of a material
fact, constituting an inducement to the contract, and upon
which the vendee did, and had a right to rely, in concluding
the purchase ; entitles the latter to rescind the contract in a
Court of Equity, although the vendor may not have known
that such representation was false.^ [Supra, p. 325.) But'
whether without first abandoning possession, qucere?^ So,
where a vendee, who has paid the purchase-money, and, by
the terms of the bond, has a present right to the title, files
his bill to rescind the contract, and for an account of the pur-
chase money paid, &c. ; the general charge, that the defendant
has no title to the land, that it is incumbered with the dower
of the wife of a previous owner, and that it will be impos-
sible for the defendant to procure a title for many years to
come, makes out at least a. primd facie case of equitable cog-
nizance, and is sufficient to require the defendant to answer.*
15, But equity will not rescind' a contract, where the ven-
dor, although unable to make title, is perfectly solvent, and
has been guilty of no fraud, on the ground that he is a resi-
dent of another State ; if he was such at the time of the con-
tract, and has so continued ever since.^ So, where a vendee
retains possession, equity will not rescind the contract, unless
upon some special ground ; such as the vendor's inability to
make title, coupled with insolvency, or fraud in the sale.^
So, although equity may rescind a conveyance or a contract
therefor, which has been procured by fi:aud, when a proper
' Griggs V. Woodruff, 14 Ala. 9. ■• Read v. Walker, 18 Ala. 323.
■-' Read v. W.ilker, 18 Ala. 323. ' Parks v. Brooks. 16 Ala. 529.
Ibid. « Iliid. ■ •
CH. XXIV.] REMEDIES, ETC. — EQUITY. 425
case for it is presented ; no such relief can be given, where
no conveyance, or written or other legal contract or bargain
fer the conveyance, of any part of the land, by the defendant
to the plaintiff, is proved to have existed at any time.^ (a)
So a purchaser who discovers that a fraud has been prac-
* Woodman v. Freeman, 25 Maine, 531.
(a) In a suit to set aside a conveyance after twenty-seven years, on the
ground of fraud, consisting in the lunacy of the vendor, insufficient consid-
eration, suppression, and coercion on the part of the purchaser, the plaintiff
failed in proving any of the alleged grounds of fraud, but proved lunacy.
Held, the Court would not set aside the conveyance. Price v. Berrington,
7 Eng. L. & Eq. 254.
A., supposing that he had title to a tract of land of which B. had posses-
sion, agreed to sell it to him, and executed a conveyance, with full covenants.
It afterwards appeared, that A. had no title to the tract, and that his deed
conveyed another tract, to which A. had title. Upon discovering the mis-
take, B. offered to return the deed, and to rescind the contract, which A.
refused. Thereupon, B. sued at law, to recover the purchase-money. Held,
he could not recover, and that equity alone could afford relief. Homer v.
Purser, 20 Ala. 573.
A bill for the rescission of a sale alleged, that the vendor sold and con-
veyed to two of the complainants, while the deed, which was made an
exhibit to the bill, conveyed to one of the complainants only. Held, no
material variance, as the defendant could not have been taken by surprise.
Lanier v. Hill, 25 Ala. 554.
A sale is sometimes rescinded by cancelling the security by which it is
effected. But it is held that equity will not decree cancellation of a bond
for conveyance for breach of the conditions, when the parties have an
adequate remedy at law. Shonp i>. Cook, 1 Cart. 135.
A. contracted to sell to C, without authority from B., the owner. After-
wards, B. made a quitclaim deed to C, and gave it to A. as an escrow, with
authority to deliver the deed to C, upon performance of certain conditions.
After this, A. confederated with C, to defraud B. out of his interest ; and
gave the deed to C. without the conditions being fulfilled. Held, equity
would decree the cancellation of the deed, and also that C. restore possession,
accounting for the rents and profits ; but that C, who had purchased an
adverse title, was not bound to surrender it. Also, that C. could not then
claim under the deed from B., by complying with the original contract with
A. ; and that it was too late to ask specific performance of the contract, after
having evaded and repudiated it. Clement v. Evans, 15 111. 92.
36* A
426 LAW OF VENDORS AND PURCHASERS. [CH. XXIV.
tised upon him, or that the other party has, by his conduct,
prevented him from enjoying the fruits of his purchase, must,
to entitle himself to relief in a Court of Equity, immediately
give notice to the vendor that he will no longer be bound by
his contrabt, but will rescind it.' So, where a vendee, dis-
covering a defect in his vendor's title to part of the land,
sues at law on the contract, and recovers judgment for, and
collects, the damages sustained, by reason. of the defect; he
thereby elects to treat the contract as valid, and cannot
afterwards sustain a bill in equity to have it rescinded.^ So,
where a vendee seeks to rescind, for want of title in the
vendor, he must restore to the vendor all he received, and
place him back in his original situation.^ So the Court wiU
not set aside a purchase of a house and lot, on the allegation
of an imperfect or incumbered title, not clearly shown to be
so, after a long possession by the purchaser, and a con^ssion
of judgment for the purchase-money. Such conduct amounts
to a waiver, though the Court might give some relief ulti-
mately, if the title turned out to be really bad. The vendor
having enforced the judgment for his purchase-money, and
bought in the property at a very low rate, but offering to
rescind the sale on payment of the debt ; the Court decreed
accordingly.*
161. Where a vendee seeks by his bill a rescission of the
contract, and an account for purchase-money paid and im-
provements ; an averment, that, in the event of a rescission,
he will lose a considerable portion of the purchase-money,
and of the amount due for improvements, if he is compelled
to abandon all recourse upon the vendor's interest in the
land, and to trust to his personal responsibility and solvency,
shows a sufficient excuse for the retention of possession.^
17. It has been seen, (Chap. 1,) to what extent a pur-
chaser of lands becomes the owner of, or gains a title to
them, before any actual conveyance. It remains to be stated,
' Alexander v. TJtley, 7 Ired. Eq. 242. * Roach v. Rutherford, 4 Desaus. 126.
2 Pettus V. Smith, 4 Rich. Eq. 197. * Read v. Walker, 18 Ala. 323.
'^ Brown v. Witter, 10 Ohio, 142.
CH. XXIV.] REMEDIES, ETC. — EQUITY. 427
in the present connection, as a right or claim recognized
only by Courts of Equity, that such purchaser, by payment
of the purchase-money, has bsen sometimes held to' acquire a
lien upon the estate, corresponding with the lien of a vendor
for the price, after an actual conveyance. Under such cir-
cumstances, the purchase-money is said to have been paid
punctually, prematurely, or by surprise. The lien in question
has been distinctly asserted in some English cases, but in
others doubted or denied, and can hardly be regarded as a
settled rule of American law. {a) The high authority of Sir
Thomas Clarke, M. R., and of Judge Story, may be cited in
its favor, and that of Mr. Sugden against it.^
18. The most frequent and important exercise of Chan-
cery jurisdiction, in reference to the sale and purchase of real
property, namely, that of specific performoMce, will be consid-
ered in the next chapter.
' Burgess u. Wheate, 1 W. Bl. 150; Yoa. & Jer. 264; Ludlow v. Grayall,
2 Story, Eq.s. 1217, n.; Sugd. V. & P. 11 Price, 58; Small v. Attwood, 1
258 ; Payne v. Atterbury, Harrlng. Ch. Younge, 507 ; Cator v. Pembroke, 1
414; Coote, 265; Lowell a. Mutual, Bro. 301 ; Regan u. Walker, 2 Chandl.
&c. 8 Gush. 132; ^tna, &c. v. Tyler, 133.
16 Wend. 385; Oxenham *. Esdaile, 3
(a)* It has been held in Indiana, that a ^ndee of real estate has a lien
thereon for the money paid, if the vendor refuse to convey, even as
against a subsequent purchaser with notice. Shirley u. Shirley, 7 Blackf.
452. So in Kentucky and Alabama, a vendee, whose contract is dissolved)
has a lien on the land for his purchase-money and interest, and the value of
the improvements ; nor should he be compelled to surrender, until they are
paid or secured. Griffith v. Depew, 3 Marsh. 179; Conner u. Banks, 18
Ala. 42.
428 LAW OF VENDORS AND PDRCHASBRS. [CH. XXV.
CHAPTER XXV.
SPECIFIC PERFORMANCE.
1 . Nature and history of the remedy. I 20. And reasonable and equitable-
3. Its peculiar application to con- j fraud, mistake, &c.
tracts relating to real estate.
4. Questions of jurisdiction, in rem
and in personam,
5. Form of "the contract; bond with
penalty.
7. Specific performance, in connec-
tion with other modes of relief.
12. Denial of specific performance,
and rescinding of the sale, compared.
13. Compensation — damages.
14. Contract must be certain.
16. And mutual.
27. But not necessarily beneficial.
28. Public policy.
30. Consideration, inadequate or ex-
cessive.
34. Price fixed by arbitration.
39. Plaintiff must prove performance
of his own contract.
44. Partial failure of title.
45. Statute of Frauds — part-perform-
ance. Defences; pleading ; evidence,
&o.
1. As has been already remarked, the most common exer-
cise of equity jurisdiction, in reference to the sale and pur-
chase of real property, is-in the form of -specific performance ;
whereby one party, instead of recovering damages from the
other for a breach of |pntract to sell or buy, and tnore
especially the former, enforces the actual execution of such
contract, by the penalties with which a Court of Chancery
is armed for dlFecting its decrees. This peculiar jurisdiction
is said to be of very ancient date, if not coeval with the
existence of Courts of Equity.^ It is also said, that, before
the time of Lord Somers, the practice used to be, on bills
for a specific performance, to send the party to law; and, if
he recovered damages, the Court of Chancery entertained
the suit ; otherwise the bill was dismissed. But no such
practice now exists, if indeed it ever really prevailed.^ "^
2. It is said, on the one hand, that specific performance
will sometimes be decreed where no action for damages
would lie, as where, through mere negligence, and without
1 2 Story, Eq. 6. 716. ^ jbid. s. 738.
CH. XXV.] SPECIFIC PERFORMANCE. 429
unfairness, the plaintiff has failed to comply with his own
part of the contract ; ^ and on the other, that it will in some
cases not be decreed, though an action might perhaps lie for
damages, as where the vendor's title is involved in difficulties,
which cannot be removed.^ So it is said, the right of S,
vendor to come into a Court of Equity to enforce a specific
performance is unquestionable. Such subjects are within
the settled and common jurisdiction of the Court. It is
equally well settled, that, if the jurisdiction attaches, the
Court will go on to do complete justice ; although in its
progress it may decree on a matter which was cognizable at
law."
3. The peculiar jurisdiction of Courts of Equity, with
reference to specific performance, over contracts relating to
real property, arises from the fact, that, in case of personal
propeirty, no particular value is generally attached to one
article over others of the same kind, and therefore fuU com-
pensation may be obtained by damages, with the amount ot
which another similar article may at once be purchased ;
while the value of real property in the eyes of the purchaser
may depend upon circumstances of position, neighborhood,
soil, and in general upon considerations of taste or fancy,
for which damages are no compensation.* It is said, " No
subject is more proper for the power of a Court of Chancery
in decreeing specific execution, than a contract for the sale
of real estate ; for what is agreed to be done ought in con-
science to be done. Nor is the remedy at law for damages
complete or adequate ; for the thing contracted for is wanted,
and the value in money may often be an unsatisfactory com-
pensation." 5 Upon these considerations, the general doctrine
is laid down, that, where a contract respecting real property
is in its nature and circumstances unobjectionable, it is as
much a matter of course for Courts of Equity to decree a
' Lennon v. Napper, 2 Sch. & Lef. * See Adderley o. Dixon, 1 Sim. &
684. St. 607.
2 2 Story, Eq. ss. 748-9. » Ensign v. KeKogg, 4 Pick. 1,
8 Cathcart v. Robinson, 5 Pet. 264'.
430 LAW OF VENDORS AND PURCHASERS. [CH. XXV.
specific performance of it, as it is for a Court of Law to give
damages for the breach of it.i
4. With reference to the jurisdiction of the Court^ as de-
termined by the location of the property on the one hand,
8r the residence of the defendant on the other, it is well
settled in Great Britain, that a bill for specific performance
may be maintained, though the land is situated in a foreign
country, if the parties reside within the territorial jurisdiction
of the Court, '^^quitas agit in personam" Thus specific
performance was decreed of a contract, entered into by the
proprietors, respecting the boundaries of the colonies of
Pennsylvania and Maryland. So of an agreement respect-
ing the Isle of Man, and lands in Ireland.^ So, it seems,
a contract made in South Carolina, for land lying in another
State, may be enforced in personam, by one party against
the other.^ And, on the other hand, it has been held, that
specific performance of a contract to convey land in Massa-
chusetts may be decreed against an inhabitant of Connecti-
cut, who has been served with personal notice in Massachu-
setts.*
5. The precise form, in which a contract for the sale of
real property is expressed, is immaterial with reference to
the right of specific performance. Thus, though the con-
tract appears only in the condition of a bond with penalty,
it will be enforced as an agreement, and the party cannot
escape firom specific performance by paying the penalty.^
6. More especially will this rule be adopted, where the
bond is accompanied by another, absolute agreement. Thus
the defendant agreed in writing to convey land to the plain-
tiff' on certain terms, and at the same time, by another
writing, to forfeit a certain sum if he should fail so to con-
vey. Held, the plaintiff was entitled to specific performance
of the former agreement, upon complying with his own
1 2 Story, Eq. 8. 751. * Ramsay v. Brailsford, 2 Desaus.
'•^ Penn v. Baltimore, 1 Ves. 444 ; 582.
Atholu. Derby, 1 Ch. Cas.221 ; Archer * Dooley v. Watson, 1 Gray, 414.
V. Preston, 1 Vern. 711 ^ Logan v. Wienholt, 7 Bligh. 1 |
Ensign v. Kellogg, 4 Pick. I .
CH. XXV.] SPECIFIC PERFORMANCE. 431
contract. Shaw, C. J., says : " The promise of the defend-
ant to pay the plaintiif one hundred dollars, if the defendant
should fail to perform his agreement to convey the land, was
merely a security for the performance of that agreement.
Courts o§ Equity have long since overruled the doctrine
that a bond for the payment of money, conditioned to be
void on the conveyance of land, is to be treated as a mere
agreement to pay money. When the penalty appears to be
intended merely as a security for the performance of the
agreement, the principal object of the parties will be carried
out. The agreement between the parties in this case is
clearly an alternative agreement. It was an absolute agree-
ment to convey real estate, and may be treated in all respects
as such, either in a Com-t of Law or Equity, without regard
to the note."^
7. The question of specific performance often arises in
connection^mth other grounds for equitable interference.
This relief ^Rometimes granted, instead of other equitable
relief which is directly sought ; and, on the other hand, a
prayer for other relief sometimes results in a decree for
specific performance, with such terms and limitations as the
circumstances of the case may require.
8. A bill in equity, praying specific performance of an
agreement to convey land, also alleged that the defendant
purchased the land as his agent and with his money, and
therefore held it in trust for him. Held, the bill was not in-
consistent in its allegations, and might be supported as a bill
for specific performance ; it being a rule of «lity pleading,
that a bill may be framed in alternative form, and facts of a
different nature alleged to support it, if in either alternative
the title to relief will be the same.^
9. The plaintiff, being defendant in an execution, per-
mitted the defendant, the plaintiff in the execution, to buy
certain lands of his at sheriff's sale, upon which the defend-
ant agreed by parol, that the plaintiff might sell the lands, and
1 Dooley v. Watson, I Gray, 414, 416. ^ Gen-ish v. Towne, 3 Gray, 82.
432 LAW OF VENDORS AND PURCHASERS. [OH. XXV.
reap any profit on the sale, after paying the defendant the
sum of $375, due him by the plaintiff; upon which the plain-
tiff sold the land by parol to A. for $650, of which A. was to
pay the defendant $375, and the residue to the plaintiflF. In
pursuance of this agreement, A. paid the defendant the
$375, but faUed to pay the plaintiff the residue, and delivered
him up the land in consequence thereof; upon which the
plaintiff filed his bill against the defendant for a specific per-
formance of his agreement to make title to the land, or else
pay the money received from A. to him. Held, he was not
entitled to specific performance, because the contract was
parol ; nor to recover back the money, which could be recov-
ered only by A., if by any one, the contract being held
invalid.^
10. A. sold land to B. for $2,000, to be paid shortly, in
order to release the land from certain mortgages. B. paid a
part of the purchase-money, and then broi^dit a bill in
equity, alleging that his vendor was insolvent^^s trying to
sell the land to other persons, afld was committing waste.
He obtained a decree, enjoining A. from selling and from
committing waste, and afterwards, having tendered good
notes to the full amount of the purchase-money, and offering
to perform his part of the contract, he brought an amended
bill to compel a specific performance. It appeared that the
mortgagees, to whom B. had tendered good notes to the
amount of their lien, had refused to accept them, and that
the land was sold under a decree of foreclosure, and bought
in by B., whd^aid cash for it, to this amount. Held, that B.
had a right to extinguish the lien in that way, and was
entitled to a decree for specific performance.^
11. Land was sold, to be paid for in instalments, a deed
to be given on payment of the last instalment. The ven-
dees entered and enjoyed possession, the last instalment
was paid to the administrator of the vendor, and the ven-
dees brought an action at law t 
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