vendee chooses to take as much as he can have, he has a right to that, and an abatement (t).

Therefore in a case where the estate was sold for 21 years, and represented as held under a church lease, usually renewed every seven years, and it appeared that the seller was only entitled for life to part; the purchaser filed a bill for a specific performance with a reduction. The seller in sisted that the purchaser might have an option to put an end to the contract, but that he (the seller) ought not to be compelled to take less than the stipulated price. The decree, however, was for a specific performance, with a reduction of the purchase-money, the interest of the seller being less valuable than it had been represented to the purchaser (u). Lord Eldon has since observed, that the consequence of this decision was, that if the lives should endure beyond the period of twenty-one years, the purchaser would have the premises as well as the compensation. In that respect the case was new, and deserved great consideration. The Lord Chancellor added, that in a conversation which he had with the Master of the Rolls, they inclined to think it might be right upon this reasoning, that the estate was purchased subject to a contingency affecting its immediate value; he could not carry it to market, he could do nothing with it that would make it absolute property in him as if he had an absolute term of twenty-one years; but as the compensation might be aggravated enormously, beyond the actual value, so it might be much too small, and the court would throw the chances together. The only other course was to adopt the principle of indemnity, either by taking security or laying hold of part of the purchase-money, with

(1) Per Lord Eldon, 10 Ves. Jun. 31, 516. The same doctrine was laid down by his Lordship in Wood v. Griffith, 12 Feb. 1818;

and see 2 Ves. Jun. 439, acc.per Lord Rosslyn.

(u) Dale v. Lister, 16 Ves. Jan. 7, cited.

a view to compensation if the case should arise, and that was open to this difficulty, that the property held subject to the question of indemnity remains unsaleable, unmarketable, and of infinitely less value than it would otherwise be.

In a later case (x), upon a sale of leasehold for lives, the representation by the seller was held to amount to this: that the lessee thereof upon lives, under a church lease, granted the lease in question, with covenants, binding his real and personal representatives to procure renewals to make the complete term sold. It appeared, however, that the covenant to renew was limited, and not binding to the extent mentioned, the estate being in settlement, and the covenants not general. The purchaser filed a bill for a specific performance, with an allowance. In effect the difference was between a covenant by the lessor binding all his assets real and personal; and a covenant which only bound that property which the lessor might permit to go from him to his son, who would be entitled to the property under the settlement. Lord Eldon felt great doubt whether that could be made the subject of a valuation. The purchaser, however, only desired an indemnity upon a real estate, or by part of the purchase-money to be kept in court; the sellers receiving the dividends. The Lord Chancellor decreed a specific performance, and directed an enquiry what was the difference between the value of the interest actually sold, and that represented, and such difference to be deducted from the purchase-money; and if the master should find that he was unable to ascertain such difference in value, or if the purchaser should choose to take the title with a sufficient indemnity, he might, and the decree was affirmed upon a rehearing.

But the general rule, independently of special circum

(x) Milligan v. Cooke, 16 Ves. Jun. 1.

stances,

stances, is, that the court can neither compel a purchaser to take an indemnity nor a vendor to give it (y).

Although a purchaser may in most cases insist upon taking the interest which the vendor can give him, yet it seems that equity will not decree an under-lease on an agreement to assign, though it appear that the assignment cannot be made without a forfeiture; for the defendant, in agreeing to assign, might intend to discharge himself from covenants to which he would continue liable by the under-lease (x). This is, however, a defence which a vendor can seldom set up against a purchaser's claim, where the purchaser chooses to accept an underlease; for an assignee of a lease almost invariably covenants to indemnify his vendor from the rent and covenants in the lease, and from these covenants he cannot of course. discharge himself by an assignment, any more than by an under lease.

So it has been determined by Lord Redesdale, that where, at the time of the contract, the purchaser is fully aware that the vendor cannot execute the agreement, and, consequently, cannot enforce the performance of it; there the agreement must be presumed to have been executed under a mistake, and the purchaser cannot insist upon a performance as to the interest to which the vendor may be actually entitled (a).

And in a case where a tenant for life, with a power of leasing for 21 years at a rack-rent, agreed to execute a lease for 21 years, and a further lease for 21 years at any time during his life, consequently to execute a lease for 21 years,

(y) 1 Ves. and Beam. 225 ; vide post, ch. 7.

(z) Anon. E. T. 1790, Fonbl. n. (r) to 1 Trea. Eq. 211, 2d. edit. see Mason v. Corder, 2 Marsh.

$ 2

332.

(a) Lawrenson v. Butler, 1 Scho, and Lef, 13; see Mortlock v. Buller, 10 Ves. Jun. 292,

whatever

whatever might be the increased value of the property at the time the lease should be granted; Lord Redesdale considered it a contract to act in fraud of the power, and that the lessee was not intitled to a specific performance. To obviate this objection the lessee offered to take a renewed lease for 21 years, if the lessor should so long live; but Lord Redesdale thought that this was one of those cases where the plaintiff had no right thus to qualify the contract he insisted upon: there was nothing in the case to shew that satisfaction in the form of damages was not an adequate remedy for him. If he had been put into a situation from which he could not extricate himself, the defendant might be called on to make the best title in his power, but nothing could be more mischievous than to permit a person who knows that another has only a limited power, to enter into a contract with that other person, which, if executed, would be a fraud on the power, and when that was objected to, to say, "I will take the best you can give me." A court of equity ought to say, to persons coming before it in such a way, "make the best of your case with a jury." (b)

It should be observed that there was another point in the above cause, and the decree was pronounced after considerable doubts. It seems difficult to reconcile the opinion expressed by Lord Redesdale with the current of authorities. It was not a necessary consequence of the contract that the lease agreed to be granted would be a fraud on the power, and the purchaser was willing to take the interest which the seller was enabled to grant without risk to himself or injury to the remainder-men.

If in a case of this nature, the purchaser, on the faith of the agreement, put himself in a situation from which he cannot extricate himself, and is therefore willing to forego a part of his agreement, that is a circumstance to induce a

(b) Harnet v. Yeilding, 2 Scho, and Lef. 549, vide supra, p. 189.

court

court of equity to give relief. Thus in a case before Lord Thurlow, the incumbent of a living had, with full knowledge of the title, contracted with the tenant in tail, in remainder after a life estate, for the purchase of the advowson, and on the faith of that agreement had built a much better house than he would otherwise have done; the tenant for life would not join in suffering a recovery, and conscquently a good title could not be made. Lord Thurlow held, that as the purchaser had, upon the faith of the contract, built a good house on the glebe, he ought to have the utmost the vendor could give him; and therefore directed the vendor to convey a base fee, by levying a fine with a covenant to suffer a recovery whenever he should be enabled to do so by the death of the tenant for life (c).

If the vendor has granted a lease of the estate which is void by force of a statute, the court will not, on the request of the purchaser, consider the lease as valid, and allow him a compensation in respect of it (d).

SECTION II.

Of Defects in the Quality of the Estate.

IN N most cases on this head the rule "caveat emptor'> applies, and therefore, although there be defects in the estate, yet, if they are patent, the purchaser can have no relief (e).

Thus, where a meadow was sold without any notice of a footway round it, and also one across it, which of course