shall not have been made or tendered; but that, on the contrary, the purchaser shall be entitled to a conveyance, on payment of the annuity up to the death of the vendor.

In the cases just dismissed, the purchaser, by the death of the vendor, obtained the estate without paying any, or only a nominal consideration for it. Perhaps a case may arise where the vendor having received the purchasemoney, may, by the death of the purchaser, be entitled to retain the estate also, although he may not be his heir. This case was put in the argument of Burgess v. Wheate(n): a purchase, 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(o), in favor 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

(n) 1 Blackst. 123.

(0) Vide infra, ch. 12.

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 defendIf it should be admitted that the money cannot be ant. 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.

It has been decided that a specific performance will be decreed of a contract for sale of a life annuity, although the annuitant be dead before the bill be filed, provided the contract was a continuing one at his death(p). This is the converse of the point decided in Mortimer v. Capper, and that line of cases. The Vice-Chancellor (Sir John Leach) observed, that it may now be considered as (*)the settled law of the court, by the cases of Mortimer v. Capper, and Jackson v. Lever, and the reported dicta of Lord Eldon, especially in the case of Coles v. Trecothick, that if the price of property be an annuity for the life of the vendor, his death before the conveyance will form noobjection to the specific performance of the contract. The vendor agrees to sell for a contingent price, and those who represent him cannot complain that the contingency has turned out unfavorably. The same principle necessarily applies to a case where the life annuity is not the price, but is the subject of the sale. If the annuitant happens to die before the annuity is legally transferred to the purchaser, the death of the annuitant can form no objection to the specific performance of the contract.

(p) Kennedy v. Wenham, 6 Madd. 355.

VOL. I.

44

(*285)

(*)CHAPTER VI.

OF THE PARTIAL EXECUTION OF A CONTRACT, WHERE A VENDOR HAS NOT THE INTEREST WHICH HE PRE

TENED TO SELL; AND OF DEFECTS IN THE QUANTITY AND QUALITY OF THE ESTATE.

10001

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, 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)(181).

(a) Farrer v. Nightingale, 2 Esp. Ca. 639; and see Hearn v. Tomlin, Peake's Ca. 192; Thomson v Miles, 1 Esp. Ca. 184; Mattock v. Hunt, B. R. 15 Feb. 1806; Hibbert v. Shee, 1 Campb. Ca. 113. also Duffel v. Wilson, ib. 401; and see ch. 8, infra.

See

(181) See Weaver v. Bentley, 1 Caines' Rep. 47.; wherein it was held, that the purchaser might maintain assumpsit to recover back the purchase money, although the contract was under seal. See also,

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 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.

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).

And where a particular described the subject of sale to be an annuity of so much, payable out of the tolls of Waterloo Bridge, the Court considered that the purchaser would make some inquiry as to the annuity; but as the Bridge Act did not speak of any power to redeem the annuities to be granted, and the annuity was made subject

(b) Belworth v. Hapell, 4 Camp. Ca. 140.

(c) Turner v. Beaurain, Sitt. Guildh. cor. Lord Ellenborough, C. J. 2d June 1806; and see Barnwell v. Harris, 1 Taunt. 430.

D'Utricht v. Melchor, 1 Dall. 428. Gillet v. Maynard, 5 Johns. Rep. 85. Judson v. Wass, 11 Johns. Rep. 527. Raymond v. Bearnard, 12 Johns. Rep. 274. Pulnam v. Westcot, 19 Johns. Rep. 73. Lyon v. Annable, 4 Conn. Rep. 350. Howes v. Barker, 3 Johns. Rep. 506.

to redemption, it was held that the contract was not binding on the purchaser; and the Court was of opinon, that sellers should be strictly bound to disclose the real nature of the subject of the contract(d).

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(e)(1)(182). 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 could compel the purchaser to take an indemnity, or the vendor to give it(ƒ)(183).

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(g).

(d) Coverley v. Burrell, M. T. 1821. B. R. MS.

(e) Howland v. Norris, 1 Cox, 59; Hasley v. Grant, Horniblow v. Shirley, 13 Ves. jun. 73, 81; see 2 Swanst. 223; and see Barnwell v. Harris, 1 Taunt. 430; see also Hays v. Bailey, stated in ch. 7. post. Wood v. Bernal, 19 Ves. 220.

(f) See 1 Ves. & Beam. 225.

(g) 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. jun. 306; 13 Ves. jun. 77.

(I) Although it seems evident that this equity would be enforced in

a case, for instance, like Turner v. Beaurain, yet the cases referred to are not decisive authorities in favor it.

(182) See King v. Bardeau, 6 Johns. Ch. Rep. 38. Ten Broeck v. Livingston, 1 Johns. Cha. Rep. 357. 363.

.(183) See Boyle v. Rowand, 3 Des. 555.