unless perhaps a separate value was put on different parts of the estate, in which case the contract in favor of justice (*) may be considered distinct. At law neither a vendor can, on an entire contract, recover part of the purchase-money, where he cannot make a title to the whole estate sold; nor would a purchaser be suffered in a court of law to say, that he would retain all of which the title was good, and vacate the contract as to the rest: such questions being subjects only for a court of equity(t).

But if the part to which the seller has a title was the purchaser's principal object, or equally his object with the part to which a title cannot be made, and is itself an independent subject, and not likely to be injured by the other part, equity will compel the purchaser to take it at a proportionate price; and in these cases it will be referred to the Master, to inquire, "whether the part to which a title cannot be made, is material to the possession and enjoyment of the rest of the estate(u)."

Thus in a case(x) before Sir Thomas Sewell, a man who had contracted for the purchase of a house and wharf, was compelled to take the house, although he could not obtain the wharf; and it appeared that his object was to carry on his business at the wharf (I); which, Lord Kenyon said, was a determination contrary to all justice and reason(y).

(t) Johnson v. Johnson, 3 Bos. & Pull. 162.

(u) M'Queen v. Farquhar, 11 Ves. jun. 467; Reg. Lib. B. 1804. fol. 1095; Knatchbull v. Grueber, 1 Madd. 153; Bowyer v. Bright, 13 Price, 698.

(x) See 6 Ves. jun. 678; 7 Ves. jun. 270, cited; and see M'Queen v. Farquhar, 11 Ves. jun. 467.

(y) 1 Cox, 274.

(I) This case has been frequently disapproved of, and would not have been so decided at this day. See 1 Esp. Ca. 152; 6 Ves. jun. 679; 13 Ves. jun. 78. 228. 427. In Stewart v. Alliston, 1 Mer. 26, Lord Eldon expressed himself much more strongly against the principle of these cases, than appears by the report.

And in the late case of Drewe v. Hanson(z), which (*)arose upon the sale of an estate, together with the valuable corn and hay tithes of the whole parish, it appeared, that the principal object of the purchaser was the corn tithes, and that half the hay tithe belonged to the vicar, and the other half was commuted for by a payment of 21. per annum, the nature of which did not appear. Upon the facts, as they then appeared, Lord Eldon would not give judgment, but he seemed clearly of opinion that the hay tithe, if not of great extent or of such a nature as to prejudice the corn tithe, was a subject for compensation but otherwise not, as the purchaser would not get the thing which was the principal object of his contract(a).

In a case(b) often cited, where a man had articled for the purchase of an estate tithe-free, but which afterwards appeared to be subject to tithes, Lord Thurlow, it was said, decreed a specific performance, although the purchaser proved, that his object was to buy an estate tithe-free. This, however, to use Lord Eldon's words(c), is a prodigious strong measure in a court of equity to say as a discreet exercise of its jurisdiction, that the contract shall be performed, the defendant swearing and positively proving that he would have had nothing to do with the estate if not tithe-free. But it now appears from the report of the case, published by Mr. Cox, that the estate was subject only to a money-payment of 147.

(z) 6 Ves. jun. 675.

(a) See Vancouver v. Bliss, 11 Ves. jun. 458; Stapylton v. Scott, 13 Ves. jun. 425.

(b) Lord Stanhope's case, 6 Ves. jun. 678, cited; Lowndes v. Lane, 2 Cox, 363; 6 Ves. jun. 676, cited; but see Pincke v. Curteis, cited ibid.; and see Rose v. Calland, 5 Ves. jun. 186; Wallinger v. Hilbert, 1 Mer. 104.

(c) See 6 Ves. jun. 679; and see 17 Ves. jun. 280.

in lieu of tithes(d). And in the case of Ker v. Clobery(*)(e), where the estate was sold before the Master, and the particulars stated, that "the whole of the above lands are only subject to a modus for tithe hay of 21. per annum," Lord Eldon was of opinion, that a purchaser of an estate stated to be tithe-free, or subject to a modus, could not be compelled to take it with a compensation, if the estate is not tithe-free. His Lordship said, that he had so decided in a case from Yorkshire, in which he had told the purchaser, if he would take the estate with a compensation, he must undertake to pay the tithes to the vendor. The question therefore is now at rest(186).

Where an estate is sold tithe-free, the question whether tithe-free is not a question of title but of fact: if the sale was of lands and of tithes, then the matter of tithe would be matter of title(f).

In a late case, upon a sale before a Master, where the particular stated about thirty-three acres to be tithe-free, Lord Eldon held, that the principle laid down in Ker v. Clobery did not apply (g).

In a case, where the estate was described as let on a ground-lease at so much per annum, and it turned out that the lease was at rack-rent, Lord Eldon would not support the sale, although there was the usual clause, that errors or mis-statements should not annul the sale(h). So when the house was described as brick built, although

(d) Howland v. Norris, 1 Cox, 59.

(e) 26 Mar. 1814, MS.

(f) Smith v. Lloyd, 2 Swanst. 224, n.

(g) Binks v. Lord Rokeby, E. T. 1818. MS.; S. C. 2 Swanst. 222; and see Smith v. Tolcher, 4 Russ. 302.

(h) Stewart v. Alliston, 1 Mer. 26.

- (186) See Waters v. Travis, 9 Johns. Rep. 450, 465. on appeal. Stoddart v. Smith, 5 Binn. 355. Greenwalt v. Born, 3 Yeates, 6.

in part built of lath and plaster, and there was no party wall; the same result followed(i).

Where the particular described the estate as four hundred and twelve acres, two hundred and twenty-seven of (*) which were tithe-free, paying a very small modus; and it appeared that part of the estate represented to be tithefree was subject to tithes which the owner was willing to sell, Lord Eldon said, that the allegation was, that two hundred and twenty-seven acres "are tithe-free, paying a very small modus," not stating a positive exemption from tithes; and where the contract is to sell an estate tithe-free, the vendor not representing himself to have title to the tithes, without entering into the question, whether the purchaser ought to be compelled to take it if not tithe-free; yet, if he chooses to take it, he cannot compel the vendor to buy the tithes, if there is a positive title to them in pernancy; all he can have is compensation(k)(187).

If a purchaser, with notice of a defect in a title to a part of the estate which is complicated with the rest, or which is the principal object of his contract, take possession of the estate, and prevent the vendor from making a title, he will be compelled to perform the contract, notwithstanding that he insisted upon the objection at the time he entered (1). A deduction from the price will, however, be allowed him, although the situation of the land will not perhaps be taken into consideration.

A purchaser will not be compelled to take an undivided part of the estate contracted for. Therefore, if a man contract with tenants in common for the purchase of their

(i) Powell v. Doubble, MS. supra, p. 42.

(k) Todd v. Gee, 17 Ves. jun. 273; qu. how is the compensation to be estimated? See Ker v. Clobery, supra.

(1) See Calcraft v. Roebuck, 1 Ves. jun. 221.

(187) See Wainwright v. Read, 1 Des. 573.

estate, and one of them die, the survivors cannot compel the purchaser to take their shares, unless he can obtain the share of the deceased.

And in a case where under a decree a person purchased two sevenths of an estate in one lot, and a good title was only made to one seventh, the purchaser was (*)allowed to rescind the contract as to the whole of the lot(m).

Nor will a purchaser be compelled to take a leasehold estate, for however long a term it may be holden, where he has contracted for a freehold (I). Lord Alvanley expressed a clear opinion on this point(n); and it has since been expressly determined by Sir William Grant, in a case(o) where the vendor was entitled to a term of four thousand years, vested in a trustee for him, and also to a mortgage of the reversion in fee expectant upon the term which was vested in himself and forfeited, but not foreclosed. The person claiming under the mortgagor of the reversion refused to release, and thereupon the bill was dismissed.

Neither is a purchaser compellable to accept a copyhold estate in lieu of a freehold (p)(II).

(m) Roffey v. Shallcross, 4 Madd. 227; Dalby v. Pullen, 3 Sim. 29. (n) See 2 Bro. C. C. 497; 1 Ves. jun. 226.

(0) Drewe v. Corp, 9 Ves. jun. 368; Lib. Reg. 1803, fol. 290. The registrar's book appears to have been again referred to for this case, 1 Sim. & Stu. 201, n; and see 13 Ves. jun. 78.

(p) See Twining v. Morrice, 2 Bro. C. C. 326; and Sir Harry Hick v. Phillips, Prec. Cha. 575.

(I) As to making a title by a feoffment, and assigning the term to a trustee, see Saunders v. Lord Annesley, 2 Scho. & Lef. 73. Doe v. Lynes, 3 Barn & Cress. 388; 5 Dowl. & Ryl. 160, S. C.

(II) In the case of Sir Harry Hick v. Phillips, on account of the unreasonable price at which the estate was sold, a specific performance was refused, although the vendor offered to procure an enfranchisement of the copyholds. See 10 Mod. 504. But this case cannot be con