and the money paid by the purchaser, who dies without heir, before any conveyance. It was said, if the lord could not claim the estate, and pray a conveyance, the vendor would hold the estate he has been paid for, and keep the money too. Sir Thomas Clarke, in delivering his opinion, said, that he thought the lord could not pray the conveyance; to say he could was begging the question. And as to the vendor's keeping both the estate and the money, it was analogous to what equity does in another case; as where a conveyance is made prematurely, before money paid, the money is considered as a lien on that estate in the hands of the vendee. So where money was paid prematurely, the money would be considered as a lien on the estate in the hands of the vendor, for the personal representatives of the purchaser; which would leave things in statu quo. It may be doubted, however, whether this case, if it should ever arise, would be decided according to Sir Thomas Clarke's opinion. Where a lien is raised for purchase-money under the usual equity (y), in favour of a vendor, it is for a debt really due to him, and equity merely provides a security for it. But in the case under consideration, equity must not simply give a security for an existing debt; it must first raise a debt against the express agreement of the parties. The purchase-money was a debt due to the vendor, which upon principle it would be difficult to make him repay. What power has a court of equity to rescind a legal contract like this? The question might perhaps arise if the vendor was seeking relief in equity, but in this case he must be a defendant. If it should be admitted that the money cannot be recovered, then of course he must retain the estate, also, until some person appear who is by law entitled to require a conveyance of it. (y) Vide infra, ch. 12. CHAP. CHAPTER VI. OF THE PARTIAL EXECUTION OF A CONTRACT, WHERE A VENDOR HAS NOT THE INTEREST WHICH HE PRETENDED TO SELL; AND OF DEFECTS IN THE QUANTITY AND QUALITY OF THE ESTATE. SECTION I. Where the Vendor has not the Interest which he sold. I.WHERE a person sells an interest, and it appears that the interest which he pretended to sell was not the true one; as, for example, if it was for a less number of years than he had contracted to sell, the purchaser may consider the contract at an end, and bring an action for money had and received, to recover any sum of money which he may have paid in part performance of the agreement for the sale: and the vendor offering to make an allowance pro tanto will make no difference; it is sufficient for the plaintiff to say, it is not the interest which I agreed to purchase (a). But in a late case (b) at nisi prius, where the agreement was to sell "the unexpired term of eight years lease and good will," &c., and it appeared, that at the date of the agreement the unexpired term in the lease was only seven years and (a) Farrer v. Nightingal, 2 Esp. Ca. 639; and see Hearn v. Tom. lin, Peake's Ca. 192; Thomson v. Miles, 1 Esp. Ca. 184; Mattock v. Hunt, B. R. 15 Feb. 1806; Hib R 2 bert v. Shee, 1 Campb. Ca. 113; see also Duffell v. Wilson, ib. 401; and see ch. 8, infra. (b) Belworth v. Hapell, 4 Camp. Ca, 140, seven seven months, Lord Ellenborough said, that the parties could not be supposed to have meant that there was the exact term of eight years unexpired, neither more nor less, by a single day. The agreement must therefore receive a reasonable construction, and it seems not unreasonable that the period mentioned in the agreement should be calculated from the last preceding day when the rent was payable, and including therefore the current half year. Any fraud or material misdescription, though unintentional, would vacate the agreement, but the defendant might here have had substantially what he agreed to purchase. So where a house was sold by auction, and no notice was taken of a fee farm rent of 5s. 4d. charged upon that and upon other property, to a very great amount, the purchaser brought an action for breach of the agreement, and Sir Vicary Gibbs for the vendor, the defendant, declined arguing the point (c). But, notwithstanding that the vendor has a different interest to what he pretended to sell, equity will, in some cases, compel the purchaser to take it. Thus, although the estate is charged with trifling incumbrances, which cannot be discharged, yet it seems that under some circumstances, if a satisfactory indemnity can be given against them, equity will compel a specific performance (d), (I). This, however, is evidently a jurisdiction which cannot be too cautiously exercised. In a late case, Lord Eldon said, that he did not apprehend, that the court (c) Turner. Beaurain, Sitt. Guildh. cor. Lord Ellenborough, C.J. 2d June, 1806; and see Barnwell v. Harris, 1 Taunt. 430. (d) Howland v. Norris, 1 Cox, 59; Halsey v. Grant, Horniblew v. Shirley, 13 Ves. Jun. 73, 81; and see Barnwell v. Harris, I Taunt. 430; see also Hays v. Bailey, stated in ch. 7, post. (I) Although it seems evident that this equity would be enforced in a case, for instance, like Turner and Beaurain, yet the cases referred to are not decisive authorities in favour of it, could could compel the purchaser to take an indemnity, or the vendor to give it (e). So, although the vendor may not be entitled to the estate for the number of years which he contracted to sell, yet, if the deficiency were not great, equity would certainly decree a performance of the contract at a proportionable price (ƒ). But if the number of years be considerably less than the vendor pretended to sell, equity, so far from interfering in his favour, will assist the purchaser in recovering any deposit which he may have paid. Thus in Long v. Fletcher (g), A pretending he had a term of 16 years to come, in a house, agreed to sell it to B, and B paid 1007. part of the consideration-money, down. Bentered, but finding that A had only a term of six years in the house, brought his bill to have an account, his money refunded, and the bargain set aside; and accordingly B was decreed to account for the profits, and the consideration-money to be refunded, and B, upon his own account, to have tenant allowances made him. So, if a purchaser contract for what is stated to be an original lease, and it turn out to be an underlease for the whole term, wanting a few days, it should seem that equity would not compel the purchaser to perform the contract. It is impossible, from the nature of the thing, to make any compensation for the reversion outstanding, and yet it may become very valuable; and it is of great importance to a purchaser of a lease not to have any third person stand between him and the owner of the inheritance (h). It frequently happens that a contract for a leasehold estate is not carried into execution at the time appointed, and the (e) See 1 Ves. and Beam. 225. (f) See Guest v. Homfray, 5 Ves, Jun. 818; and see Hanger v. Eyles, 21 Vin. Abr. (A) pl. 1; 2 Eq. Ca. Abr. 689; see also 10 Ves. Jan. 306; 18 Ves, Jun. 77. R 3 (g) 2 Eq. Ca. Abr. 5, pl. 4, (h) Vide infra, where an underlease will be enforced against a vendor under an agreement to assign, div. II. vendor vendor continues in possession. The estate of course daily decreases in value, and a question constantly arises, whether the purchaser shall be compelled to pay the full price originally agreed to be given for the estate, or what arrangement shall be made between the parties. In a late case (i) where this point arose, the late Master of the Rolls said, the reasonable course which he should adopt, was, that for the time elapsed before the execution of the agreement, in consequence of the pendency of the suit, interest should be paid by the purchaser, and a rent should be set upon the premises in respect of the possession of the vendor. This rule at once provides for the interests of both parties, and accords with the maxim of equity, by which that which is agreed to be done, is considered as actually performed. The purchase-money, from the time of the contract, belongs to the vendor, who is entitled to interest on it while it is retained by the purchaser. The estate from the same time belongs to the purchaser, who is entitled to a rent for it while it is occupied by the vendor. In Cuthbert v. Baker (k), the quit rents of a manor were stated in the particulars of sale to be 21. a year, and they amounted to only 30s. a year; but a performance in specie was decreed, and it was referred to the master to ascertain what compensation should be allowed in respect of the deficiency. Where an estate is sold by auction, or before a master, in lots, and the vendor has not a title to all the lots sold, equity will compel the purchaser to take the lots to which a title can be made, if they are not complicated with the rest; and will allow him a compensation pro tanto. (i) Dyer v. Hargrave, 10 Ves. Jun. 505; see and consider King . Wightman, 1 Aust. 80; Fenton v. Browne, 14 Ves. Jun. 144. (k) Reg. Lib. A. 1790, fol. 442. Thus |