of October, wrote, insisting that he would not complete his purchase. On the 6th of November the bill was filed by the vendor for a specific performance, and for an injunction to restrain the proceedings at law. Lord Rosslyn said, the conduct of parties, inevitable accident, &c. might induce the court to relieve; but it was a different thing to say, that the appointment of a day was to have no effect at all, and that it was not in the power of the parties to contract, that if the agreement was not executed at a particular time, the parties should be at liberty to rescind it. And he therefore considered the contract as at an end.

But where a vendor has proceeded to make out his title, and has not been guilty of gross negligence, equity will assist him, although the title was not deduced at the time ap pointed.

Thus in Fordyce v. Ford (u), the purchase was to be completed on the 30th July, 1793. The abstract was not delivered until the 8th, and the treaty continued until the 25th of September, on which day the deeds were delivered, and every difficulty cleared up; when the purchaser refused to proceed, alleging that he wanted the estate for a residence for the last summer, and insisting he was not bound to go on, on account of the delay. The Master of the Rolls said, the rule certainly was, that where in a contract either party had been guilty of gross negligence, the court would not lend its assistance to the completion of the contract; but in this case he thought there had been no such negligence, and decreed accordingly; adding, that he hoped it would not be gathered from thence, that a man was to enter into a contract, and think he was to have his own time to make out his title.

The rules on this subject apply, as they ought to do, to

(x) 4 Bro. C. C. 494; Rad

cliffe v. Warrington, 13 Ves. Jun. 323.

each

each party. And therefore, where a purchaser permits a long time to elapse, without evincing a fixed marked intention to carry his contract into execution, he will be left to his remedy at law, although he may have paid part of the purchase money. He is not to be suffered to lie by, and speculate on the estate rising in value (x). Nor will he be assisted by equity, where he has made frivolous objections to the title, and trifled, or shown a backwardness to perform his part of the agreement, especially if circumstances are altered (y.) And where the price is unreasonable or inadequate, or the contract is in other respects inequitable, equity will not assist either party, if he has permitted the day appointed for completing the contract to elapse without performing his part of the agreement (≈).

The time, however, is more particularly attended to in sales of reversions; for it is of the essence of justice that such contracts should be executed immediately, and without delay. No man sells a reversion who is not distressed for money; and it is ridiculous to talk of making him a compensation by giving him interest on the purchase-money during the delay (a).

So time is very material where the estate is sold in order to pay off any incumbrance bearing a higher rate of interest

(a) Harrington v. Wheeler, 4 Ves. Jun. 686; Alley v. Des. champs, 13 Vis, Jun. 225.

(y) Ilayes v. Caryll, 1 Bro. P. C. 27; 5 Vin Abr. 538 pl. 18; Spurrier v. Hancock, 4 Ves. Jun, 667; Pope v. Simpson, 5 Ves. Jun. 145; and Coward v. Odingsale, 2 Eq. Ca. Abr 688, pl. 5; and see Green v. Wood, 2 Vern,

632; Bell v. Howard, 9 Mod. 302; and Main v. Melbourn, 4 Ves. Jun. 720

(2) Vide ante, ch, 5; and Whor wood v. Simpson, 2 Vern. 186; Lewis v. Lord Lechmere, 10 Mod. 503.

(a) Newman v. Rogers, 4 Bro. C. C. 391; and see Spurrier v. Hancock, 4 Ves. Jun. 667.

than

than the vendor is entitled to receive, in respect of the chase-money, during the delay (b).

pur

SECTION II.

Of Delays occasioned by the State of the Title.

T may be laid down as a general proposition, that a delay accounted for on the above ground will not prevent a specific performance being decreed, where the time fixed for completing the contract is not material. Thus if an estate was described as in good repair, and it turned out to be in bad repair, and several months may be required to repair it, yet the purchaser cannot resist the contract on the ground of time, unless it could be clearly shewn, that he wanted possession of the house to live in at a given period, by which time the repairs could not be completed (c). So if the estate is in lease, and it was stated that the purchaser would be entitled to possession several months before the lease actually expire, yet he cannot rescind the agreement, unless the personal occupation of the estate was essential to him at the time appointed (d).

Where time is not material, and the title is bad, but the defect can be cured, if the vendee is unwilling to stay, the vendor should file a bill in equity to enforce the performance of the contract (e); for it is sufficient if the party

(b) Popham v. Eyre, Lofft, 786; and see a case cited in 2 Scho, and Lef. 604.

(c) See Dyer v. Hargrave, 10 Ves. Jun. 505, supra p. 246.

(d) Hall v. Smith, Rolls, 18

Dec. 1807, MS., S. C. 14 Ves. Jun. 426; and see 13 Ves. Jun, 77.

(e) See 6 Ves. Jun. 655; 10 Ves. Jun, 315.

entering

entering into articles to sell has a good title at the time of the decree; the direction of the court being, in all these cases, to enquire whether the seller can, not whether he could, make a title at the time of executing the agree

ment.

This principle was followed in a case of frequent reference (f). And in a late case (g), the vendor, at the time he filed the bill for a specific performance, had only a term of years in the estate, of which he had articled to sell the fee simple, and after the bill was filed, procured the fee by means of an act of parliament; and as the day on which the contract was to be carried into execution was not material, a specific performance was decreed.

The same rule prevails at law, where no time is fixed for completing the contract, and an application for the title has not been made by the purchaser, previously to an action by the vendor for breach of contract. For in Thompson v. Miles (h), a man agreed to sell a term, of which he stated 40 years to be unexpired. It appeared there were only 39, but by an agreement endorsed on the lease, the lessor agreed to add one year to the unexpired term. This agreement was dated after an action brought by the vendor for damages on breach of agreement; and Lord Kenyon ruled, that the vendor having at that time a good title, was sufficient. His Lordship said, that it had been solemnly adjudged, that if a party sells an estate without having title, but before he is called upon to make a conveyance, by a private act of parliament gets such an estate as will enable him to make a title, that is sufficient: that here the plaintiff being enabled to make a title, and the defendant never having applied for it, he should not be allowed to set up against the plaintiff a want (f) Langford v. Pitt, 2 P. (g) Wynn v. Morgan, 7 Ves. Wms. 629; and see Jenkins v. Jun. 202. Hiles, 6 Ves. Jun. 646; Seton v. Slade, 7 Ves, Jun, 263.

(h) 1 Esp. Ca. 184.

of

of title, though the power of making that title was obtained after the action was brought.

But if the vendor cannot verify his abstract at the time appointed, or if he produce a defective title, and the purchaser bring an action for recovery of the deposit, the vendor having a title at the time of the trial will not avail him. Thus in Cornish v. Rowley (2), where a purchaser sought to recover his deposit, it appeared, that the abstract of the title began in the year 1793, and after reciting that the deeds relating to the estate had been lost, stated a fine and nonclaim. Upon enquiry, it was found that the fact of the deeds having been lost was not true. The counsel for the defendant said they were ready to make out a good title. Lord Kenyon said, that the vendor must be prepared to make out a good title on the day when the purchase is to be completed. Indulgence, he was aware, was often given for the purpose of procuring probates of wills, &c. But this indulgence was voluntary on the part of the intended purchaser. It is the duty of the seller to be ready to verify his abstract at the day on which it was agreed that the purchase should be completed. If the seller deliver an abstract, setting forth a defective title, the plaintiff may object to it. No man was ever induced to take a title like the present. A fine and nonclaim are good splices to another title, but they will not do alone. There are many exceptions in the statute in favour of infants, femes covert, &c. As a good title was not made out at the day fixed, he should direct the jury to find a verdict for the deposit, with interest up to that day. And a verdict was found by the jury accordingly.

So in Bartlett v. Tuchin (k), assignees of a bankrupt sold an estate, and no time was fixed for completing the purchase. The purchaser upon a supposed defect of title abandoned

(i) B. R. Midd. Sitt, after M. T. 40 G. III. 1 Selw. N. P. 160.

(k) 1 Marsh, 583.

the