according to the decree; in a question between his heir and devisee it was determined, that the estate did not pass by a general devise in his will, which was made prior to the payment of the money (y). It will be observed, that in this case, neither of the parties was bound at the time the bill was filed; and if the purchaser. had not paid the money, his bill would have been dismissed, and, in that event, no contract would ever have existed. It was therefore clear, that the inception of the contract was upon payment of the money, and the will, therefore, having been made before the contract, could not affect the estate.

But if an estate directed to be bought, but not actually contracted for, is not, or cannot be bought, yet the money must be laid out in other lands for the benefit of the devisee (). And where a testator intends that the devisee of the contracted estate shall have another estate of equal va lue in case a good title cannot be made to the one contracted for, an express declaration to that effect should be inserted in the will.

By this time we must have observed, that the foregoing rules, as to the conversion of the estate, apply to those cases only where a court of equity will decree a specific performance; for if equity will not interfere, and the vendee be left to his remedy at law, the rules of law, and not those of equity, must then prevail, and consequently neither the vendor nor his heir would be considered as a trustee for the purchaser, but would only be subject to an action for breach of contract.

(y) Gaskarth v. Lord Lowther, 12 Ves. Jan, 107.

(2) Whittaker v. Whittaker, 4

Bro. C. C. 31; and see 2 Atk. 369; Broome v. Monck, 10 Ves. Jun. 597. Vide supra.

SECT.

SECTION.II.

THE

Of Specific Performance.

HE preceding observations lead us to inquire, in what cases a court of equity will decree a specific performance; which, for the purposes of this work, may be comprised under two heads. First, with respect to the vendor. Secondly, with respect to the agreement itself.

I. First, then, if a man, seised in fee simple, or pur autre vie (a), contract for the sale of his estate, and die before the conveyance is executed, his heir at law will be decreed to perform the agreement in specie, although he covenanted for himself only, and not for his heirs (b).

But, if the heir at law be an infant, it appears by some authorities (c) that he will not be deemed a trustee for the purchaser within the 7th Ann, c. 19; because, it is said, the Act does not extend to trusts raised by the construction of equity, and consequently no conveyance can be obtained until the infant attains twenty-one.-On examination of the authorities, it will, however, appear, that the provisions of the Act have been extended to a much more objectionable case, and that this construction owes its origin rather to inadvertence than principle.

(a) Stevens v. Baily, 2 Freem. 199, cited; Nels. Cha. Rep. 106. reported; see Anon.2 Freem.155.

(b) Gell v.Vermedum, 2 Freem. 199.

(c) See Ex parte Vernon, 2 P. Wms 549; Sikes v. Lister, 5 Vin.

Abr. 541, pl. 28; Goodwin v. Lis. ter, 3 P. Wms. 387; S. C. MS.; Hawkins v. Obeen, 2 Ves. 559; Fearne's Posthuma, 236 ; Jerdon v. Foster, 1 Sand, on Uses, 283 cited, 3d edit.

In a modern case, in which this point arose (d), a man devised his estate, and afterwards contracted for the sale of it, but died before the contract was carried into execution, leaving an infant heir at law; and, according to the report, Lord Thurlow, upon consideration, declared the infant was a trustee within the Act of Ann, and directed him to convey to the purchaser, the will of the vendor not having been proved and established against the heir at law; which, it appears from the original papers in the cause, was owing to the inattention of the solicitor who attended the execution of the commission.

This case, as reported, is a direct authority that an infant heir at law, who by construction of equity is a trustee for a purchaser, is also a trustee within the statute of Ann. The decision being of great importance, and the accuracy of the book in which it is reported being very questionable, I traced the cause in the register's book, and have been favoured with a perusal of the original papers in the suit. In the copy of the decree in this case, and in the decree as entered in the register's book, it is observable, that no notice is taken of the infant; but it merely contains the usual direction," that all proper parties, as the master shall direct, do join in conveying, &c." It appears, however, by the register's book, that upon motion the decree was varied, by omitting the direction, that Smith, as heir at law, should convey, and that all all other necessary parties should also convey, and by inserting the usual direction, "that all necessary and proper parties, as the master shall direct, do convey:" which proves that the decree is correctly stated in Dickens.

I have not been able to learn whether Lord Thurlow altered his opinion, or upon what ground the decree was varied; but it seems to have been occasioned by the impossibility of obtaining a conveyance from the heir at law,

(d) Smith v. Hibbard, 2 Dick. 780.

who

who went to the East Indies very young, and had not been since heard of. The conveyance was not executed till many years after the decree, when the heir at law, if he was alive, must have been between 30 and 40 years of age; but he was supposed to be dead, and another person joined in the conveyance, as the heir at law of the vendor. The presumption, therefore, is, that Lord Thurlow continued of the same opinion, but varied the decree, for the convenience of the parties and it is to be hoped that his Lordship's decision will be followed in future cases. For notwithstanding Lord Talbot's doubt (e), it has been decided, that an infant may convey under the statute of Ann, in pursuance of a decree of the court (f); and it is a simple act of legislation to declare, as Lord King is reported to have done, that he would in the case before him, hold the statute to apply to constructive trusts, but that he never would do so in future (g). If the court were, in cases of this nature, to require a bill to be filed, the interests of the infant would be before the court, and could be taken care of. If, on the contrary, Lord Thurlow's decision be not attended to, the most serious inconvenience must frequently ensue, inasmuch as the chaser would be at liberty to rescind the contract. (I).

(e) Goodwin v. Lister, 3 P.

Wms. 387; S. C. MS.

(ƒ) Oneby v. Price, Fearne's

pur

Pos. 239; and Hawkins v. Obeen, 2 Ves. 559.

(g) See Goodwin v. Lister.

(I) Ex parte Knight. Lady Teynham v. Head, 21 January, 1799, Chan. Two daughters devisees in fee. The estate was sold under a decree for payment of testator's specialty debts. The surviving daughter, and two sons, coheirs in gavelkind of the other, were made conveying parties in the conveyance to the purchaser. One son died without having executed the conveyance, leaving an infant heir, who was decreed to be a trustee for the purchaser, and conveyed accordingly.

An

An agreement by a man seised in tail is, of course, binding on himself, but it cannot be enforced against the issue in tail, if no fine or recovery was levied or suffered, although the ancestor covenanted for that purpose (h), and received part, or even the whole of the purchase-money, and a decree was made against him to levy a fine, or suffer a recovery; and he died in contempt, and in prison, for not obeying the decree (i) the ground of which determinations is, that the issue in tail claim per formam doni, from the creator or author of the estate tail; and therefore, though in the power of tenant in tail by a particular conveyance, that not being done, the court cannot take away the right they derive, not from the tenant in tail, but from the author of the estate tail (k).

A distinction has, however, been taken, where the ancestor is only equitable tenant in tail; and the court will in that case, it is said, relieve against the issue (7), because equitable estates tail are mere creatures of the court, and not within the statute de donis; and there certainly seems ground to contend that the court would compel a specific performance against equitable issue in tail, where a decree has been made in the ancestor's life-time. But as late authorities (m) have settled that an equitable estate tail in free

(h) Cavendish v. Worsley, Hob. 203; Ross v. Ross, 1 Cha. Ca. 171; Sayle v. Freeland, 2 Ventr. 350; Jenkyns v. Keymes, 1 Lev. 237; which have overruled the dictum in Hill v. Carr, 1 Cha. Ca, 294.

(i) Powell, v. Powell, Prec. Cha. 278; Weal v. Lower, 2 Vern. 306. cited; Sangon v. Williams, Gilb. Eq. Rep. 104, cited; and see 1 Ves. 224.

(k) See 2 Ves. 634.

(1) Norcliffe v. Worsley, 1 Cha. Ca. 234; Sayle v. Freeland, 2 Ventr. 350; and see 1 Pow. Contr. 126.

(m) Legate v. Sewell, 1 P. Wms. 91; Harvey v. Parker, 10 Vin. Abr. 266, pl. 6, affirmed in Dom. Proc.; Kirkham v. Smith, Ambl. 318; Radford v. Wilson, 3 Atk. 815; Boteler v. Allington, 1 Bro. C. C. 72; Burnaby v. Griffin, 3 Ves. Jun. 266 ; and see Fletcher v. Tollet, 5 Ves, Jun. 13.

hold