made of the estates of such infant heirs or trustees, (as therein were mentioned,) or of lands, tenements, or hereditaments, so devised in settlement, as aforesaid, and also to authorize such sales and mortgages to be made in cases where such tenant for life, or other person having a limited interest, or such first executory devisee, as aforesaid, was an infant;-it was therefore enacted that the said thereinbefore recited provisions of the said act should extend to authorize courts of Equity to direct mortgages, as well as sales, to be made of the estates of such infant heirs or devisees, and also of lands, tenements, or hereditaments, so devised in settlement as aforesaid, and to authorize such sales and mortgages to be made, in cases where such tenant for life, or other person having a limited interest, or such first executory devisee, is an infant.

CHAPTER V.

SPECIFIC PERFORMANCE OF AGREEMENTS.

UPON the well-known maxim, that "equity looks upon things agreed to be done as actually performed," is founded the jurisdiction of the court of Chancery in enforcing the specific performance of agreements: consequently, where a contract has been entered into for the sale of an estate, equity regards the vendor as a trustee for the purchaser of the estate sold, and the purchaser as a trustee for the vendor of the purchase money (a); and it is of no consequence to the completion of the contract, that the vendor or vendee died before the day appointed for completing the contract (b). So if, between the articles for the purchase and the actual conveyance, any accident should happen to the property after the day appointed for the payment of the purchase money, the vendee must bear the loss; but, on the other hand, he will be entitled to any advantage which may arise therefrom (c).

Upon the same principle it has been determined that, although a devise of real estates, to be sold for charitable

(b) Paul v. Wilkins, Toth. 106; Winged v. Lefebury, 2 Eq. Ca. Abr. 32, pl. 43.

(c) White v. Nutt, 1 P. Wms. 61; Pain v. Mellor, 6 Ves. 349.

purposes, is void under the mortmain act, yet, if there be a contract for the sale of the estate at the date of the will, the purchase money will be given to the charity, the act extending only to the devise of real estates (d).

Also, if money be directed to be laid out in the purchase of land, it is considered as land, and has all the incidents of a real estate. It will pass as land by devise (e), although the estate itself be not conveyed to the purchaser until after the execution of his will (ƒ).

If the vendor die before the payment of the money for which the estate was agreed to be sold, it will go to his personal representatives, and form part of his assets, and not to the heir-at-law, who, if the estate be not yet conveyed, will be decreed to perform the agreement in specie, although the vendor covenanted for himself only, and not for his heirs: and the reason is that, as soon as the contract is entered into, the vendor is considered to have changed the land into money, and the purchaser to have changed his money into land (g): but if an agreement be entered into by a tenant in tail for the sale of his estate, although it be binding on himself, yet it cannot be enforced against the issue in tail, unless they are absolutely barred (h); because the issue in tail claim per formam doni from the creator of the estate tail, and, therefore, although it was in the power of the tenant in tail to dock the entail by a particular mode of conveyance (formerly by fine or recovery, but now by inrolment),-that not being done, the

(d) Middleton v. Spicer, 1 Bro. C. C. 201.

(e) Green v. Smith, 1 Atk. 573.

(f) Broom v. Monk, 10 Ves. 597.

(g) Atherley v. Vernon, 10 Mod. 518; Green v. Smith, 1 Atk. 572; Pollexfen v. Moore, 3 Atk. 272; Paul v. Wilkins, Toth. 106.

(h) Cavendish v. Worsley, Hob. 203.

court cannot deprive them of the right they derive, not from the tenant in tail, but from the author of the estate tail (i).

The above example appears to form an exception to the general rule in equity, that what is contracted to be done is to be considered as actually performed; another exception is where, under a mere contract, for the sale of an estate, the purchaser will not be allowed to fell the timber growing thereon before he has paid the purchase money (j).

The principle that, by a contract of purchase, the purchaser becomes in equity the owner of the property, applies only as between the parties to the contract, and cannot be extended so as to affect the interests of third persons: therefore, before the contract is carried into effect, the purchaser cannot, against a stranger to the contract, enforce equities attaching to the property (k). It was upon this ground, also, that lord Eldon, in Mole v. Smith (7), stated-that where a bill is filed for a specific performance, it ought not to be mixed up with a prayer for relief against other persons claiming an interest in the estate.

The object of a court of Equity in decreeing a specific performance of agreements, which are founded in bona fide considerations, is for the sake of giving the party seeking redress a more perfect remedy than was allowed him in a court of common law, in which he could only recover damages for a breach of the contract, and not compel its completion; and this branch of the Chancellor's equitable jurisdiction is, by lord Hardwicke, said to be the most useful one; for a court of Equity interferes on this ground, namely, that the party who has entered into a covenant is, in

(i) V. & P. 184. (j) Crockford v. Alexander, 15 Ves. 138. (k) Tasker v. Small, Myl. & Cr. V. 3. 70. (1) Jac. 490-4.

conscience, bound, not only to make compensation for the breach, where he is unable to perform it, but also actually to perform it when it shall be in his power (m). This, however, extends only to such contracts, the specific performance of which is essential to justice, and where the legal remedy is defective; for if damages for a breach of the covenant be all that justice can require, as in the case of a contract for stock in the public funds, equity will not interpose (n).

When a party is called upon to do an act which he is not lawfully competent to perform, equity will not enforce the agreement, for that would expose him to another action for damages at the suit of the person injured by such act; therefore, if a bill be filed for the specific performance of an agreement made by a man who appears to have a bad title, he is not compelled to execute it unless the party seeking performance be willing to accept of such a title as he can give, and that only where an injury would be sustained by the party plaintiff, in case he were not to get such an execution of the agreement as the defendant can give: "the reason," said lord Redesdale, " among others, I take to be this, not only that it is laying the foundation of an actionat-law, in which damages may be recovered against the party, but also that it is by possibility injuring a third person (o).

Where also, from the circumstances, it is doubtful whether the party meant to contract to the extent that he is sought to be charged, this is another ground in which courts of Equity refused to enforce specific execution of agreements (p).

If, however, a party enter into contract to sell an estate,

(m) Alley v. Deschamps, 13 Ves. 228.

(n) Mitf. Tr. Pl. p. 118, 19.

(0) Harnett v. Yielding, 2 Scho. & Lefr. 554.
(p) Ibid.