breach of trust in making the proposed sale, they will be answerable to the plaintiff for the damage sustained(k).

Where a man sells an estate for an annuity, without any agreement being made respecting the security to be given for it, he is entitled to have it secured, not only upon the estate, but also by the bond of the purchaser, and a judgment to be entered up against him(). In Ker v. Clobery(m), which came before the Court upon a petition between the heir and executor, it appeared that the (*)equity of redemption was sold to the mortgagee for the mortgage-money, and a life-annuity to be paid to the seller and his wife, and the survivor of them, but nothing was said as to the mode in which the annuity was to be secured. It was held to be a purchase of the equity of redemption, subject to the annuity, which ought to be charged on the estate. It was an interest reserved by the seller out of the estate.

A purchaser of an estate subject to incumbrances must indemnify the vendor against them, although he did not expressly engage to do so.

Thus a purchaser of a leasehold estate must covenant with the vendor to indemnify him against the rents and covenants in the lease, although he is not required to do so by the agreement for sale(n).

So, although a purchaser of an equity of redemption enter into no obligation with the party from whom he purchases, to indemnify him from the mortgage-money, yet equity, if he receives the possession, and has the profits, would, independently of contract, raise upon his conscience an obligation to indemnify the vendor against the personal obligation to pay the mortgage-money; for hav

(k) Pechell v. Fowler, 2 Anstr. 550.

(1) Remington v. Deverall, 2 Anstr. 550.

(m) V. C. 27 Mar. 1819, MS.

(n) Pember v. Mathers, 1 Bro. C. C. 52, et supra, p. 38.

ing become owner of the estate, he must be supposed to intend to indemnify the vendor against the mortgage(o).

And if a purchaser who has not obtained a conveyance sell to another, the second purchaser is, without entering into a covenant, bound to indemnify him against any costs incurred in proceedings for his benefit(p).

If a seller agree to give a real security as an indemnity to a purchaser upon his accepting the title, he will be compelled specifically to perform it, although he has not (*)sufficient real estate, and offers a sufficient security upon personal estate. (q).

It seems that where a mortgagor has agreed to convey his equity of redemption to the mortgagee, the proceedings in an ejectment by the mortgagee cannot be stopped under the 7 Geo. 2, c. 20, for the effect of it would be to strip the mortgagee of his legal title, which might let in a posterior equitable right to the prejudice of the mortgagee, though he should thereafter obtain a decree for the performance of the agreement(r). But the relief will be granted to the mortgagor, where the mortgagee has not taken any steps to complete his contract for the purchase of the equity of redemption (s.)

A purchaser of an estate let to a tenant from year to year may, without a new contract, or any act corresponding to attornment, recover the rent; and nothing would be a good defence in an action brought for it but the fact that he did not know of the sale, and had paid his rent before to his lessor(t). So, if the estate is in lease, the purchas

(o) See 7 Ves. jun. 337, per Lord Eldon; see Crafts v. Tritton, 8 Taunt. 365; 2 Moo. 411, S. C.

(p) Per Lord Eldon, in Wood v. Griffith, 12 Feb. 1818, MS.

(q) Walker.v. Barnes, 3 Madd. 247.

(r) Goodtitle v. Pope, 7 Term Rep. 185.

(8) Skinner v. Stacy, 1 Wils. 80.

(t) See 1 Vern. & Scriv. 289; Birch v. Wright, 1 Term Rep. 378. See Lumley v. Reisbeck, 15 East, 99.

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(*252)

er is entitled to the benefit of covenants entered into by the lessee with the vendor(u), and may recover for a breach of the covenants before his time, if he is seized of the reversion during the continuance of the term(x); and he may, after notice to the tenant of the conveyance, distrain for rent in arrear(y), whether the estate be freehold or leasehold (I).

(u) See post, ch. 13, sect. 1, n. (1). (x) Davis's case, M. T. 42 Geo. III. 529, 2d edit.

Woodfall's Land. and Ten.

(y) See Moss v. Gallimore, Dougl. 259; Pope v. Biggs, 9 Barn. & Cress. 245; 4 Man. & R. 193, S. C.

(I) It was recently proposed to deprive all middle-men, even in England, of the right to distrain for rent in arrear. Thus, suppose a building lease to be granted by John to James for ninety-nine years, at 101. a year; James builds a valuable house, and underlets to Joseph, for forty years, at 100l. a year; and Joseph underlets to Jacob, for thirty years, at 120l. a year; it is manifest that James has the greatest interest in the property; and, as the law now appears to stand, he can distrain for his rent, notwithstanding the last underlease. This right was proposed to be taken from him, but the measure was dropped.

In support of the measure, it was contended, that none but the original essor is entitled to distrain for tent, according to the law of England; and therefore that, in the case which I have put, James would not be affected by the act; because he would not, as the law now stands, be entitled to distrain. The argument, which was managed with great ingenuity, was rested upon the statute of quia emptores, and some passages in Coke upon Littleton. When it is considered, that the right of distress, in the case above supposed, has never been disputed, it will not be matter of surprise, that the attempt to show that the practice is illegal did not succeed. That rent may be distrained for, although fealty is not incident to it, is laid down in Co. Litt. 142, b.; and it seems to be clear, that distress is incident to every rent at common law, where the lessor has a reversion: and that a reversion of a single day is, for this purpose, as operative as a reversion in fee. In the year-book, 14 Edw. III. p. 8. Finchden thought, that if a lessee leased all his estate rendering rent, he could not distrain; he had no reversion. In the 2d Edw. IV. p. 11, the very objection was taken, where the lessor had a reversion; because it was only the reversion of a chattel; but it was held, that he had a right

(*)If a person having a right to an estate, purchase it of another person, being ignorant of his own title, equity (*)will compel the vendor to refund the purchase-money, with interest from the time of bringing the bill, although no fraud appear(z)(161).

(z) Bingham v. Bingham, 1 Ves. 126. See Lansdown v. Lansdown, Mose. 364; Saunders v. Lord Annesley, 2 Scho. & Lef. 101; Leonard v. Leonard, 2 Ball & Beatty, 171.

to distrain. In Brooke's Abridgment, Distress, case 45, and Rents, case 17, it is laid down, on the authority of this case, that if a man lease for twenty years, and the lessee leases over for ten years, rendering rent, there, if he grant the rent over to another man, he cannot distrain; because he has not the reversion of the term, which gives the right to distrain contrary, if he had granted to him the reversion and the rent. Note the diversity. In Wade v. Marsh, Latch, 211, it was held, that the lessor having only a reversion for years, may, by the common law distrain for the rent, by reason of the reversion, which causes privity. These cases appear to be quite decisive. The only difficulty has been to find a case; for the point has not been doubted for centuries. It is to be hoped, therefore, that the right of mesne landlords to distrain for rent will not be violated, on the ground that it depends upon a practice not sanctioned by law, and which ought to be abolished; but if it shall appear, as it is alleged, that the remedy has been the source of great oppression against the tenantry of Ireland, the Legislature will, I confidently hope, extend its protection to so valuable a race of men, as far as may be consistent with a due regard to the rights of landlords: for, as Justice Twisden observed, we must not steal leather to make poor men's shoes.

(161) The case of Lawrence v. Beaubien, 2 Bailey's S. C. R. 623, decided that a mistake of law was a ground of relief from the obligations of a contract, by which one party acquired nothing, and the other neither parted with any right, nor suffered any loss, and which ex aequo et bono ought not to be binding; and it made no difference, that the parties were fully informed of the facts, and the mistake as to the law was reciprocal. But the evidence should show a palpable mistake, and not mere ignorance of the law. The mere compromise, however, of a doubtful right will not be a ground of setting aside the contract. Johnson, J. said it was well remarked in Fletcher v. Tollet, 5 Ves. 14, that ignorance is not mistake.'" In Shotwell v. Murray, 1 J. Ch. 512, (*253) (*254)

So where a person sold a remainder expectant upon an estate-tail, and both parties considered that the remainder was unbarred, and it afterwards appeared that a recovery had been suffered before the contract, the purchaser was relieved against a bond which he had given for the purchase-money, and the seller was compelled to repay the interest which he had received(a). This was a strong decision. The purchaser might have ascertained the fact by search. The Chief Baron laid down some very general propositions. His Lordship said, "that if a person sell an estate, having no interest in it at the time, and takes a bond for securing the payment of the purchasemoney, that is certainly a fraud, although both parties

(a) Hitchcock v. Giddings, 4 Price, 135.

and Lyon v. Richmond, 2 ib. 56, Chancellor Kent seems to have adopted the cases of Bilbie v. Lumley, 2 East, 469 and Brisbane v. Dacres, 5 Taunt. R. 143, as an authority upon the point, but neither of these cases turned upon the precise point. In the first, the mistake was in relation to a collateral matter; and the last was judicium red ditum in invitum. The learned judge after citing Lansdown v. Lansdown, Mosely, 364; Bingham v. Bingham, 1 Ves. Sen. 126; and the dicta of Ch. J. De Grey, 2 Wm. Bl. 825, Lord Mansfield in Bize v. Dickason, 1 Term, 286 in support of his position: then proceeded to the case of Hunt v. Rousmanier, 8 Wheat. R. 215 in which Chief J. Marshall remarks, that "although we do not find the naked principle, that relief may be granted on account of ignorance of the law asserted in the books, we find no case in which it has been decided, that a plain and acknowledged mistake in law is beyond the reach in equity." And in remarking on the case of Lansdown v. Lansdown, he observes, that although objectionable in other respects; "yet, as a case in which relief has been granted on a mistake in law, it cannot be entirely disregarded." And although the case of Hunt v. Rousmanier ultimately turned upon another question, see 1 Pet. 1, it shows very clearly the opinion of that great jurist. See the argument of the learned editor of Pothier, 2 Evans Poth., app. 269. "For myself, I have no hesitation in coming to the conclusion, that contracts, founded on a plain and palpable mistake of the law, from a known state of facts, and capable of proof, ought not to be enforced. O'Neall, J. concurred.