nant by the lessor binding all his assets real and personal, and a covenant which only bound that property which (*)the lessor might permit to go from him to his son, who would be entitled to the property under the settlement. Lord Eldon felt great doubt whether that could be made the subject of a valuation. The purchaser, however, only desired an indemnity upon a real estate; or by part of the purchase-money to be kept in Court, the sellers receiving the dividends. The Lord Chancellor decreed a specific performance, and directed an inquiry what was the difference between the value of the interest actually sold, and that represented, and such difference to be deducted from the purchase-money; and if the Master should find that he was unable to ascertain such difference in value, or if the purchaser should choose to take the title with a sufficient indemnity, he might, and the decree was affirmed upon a rehearing.

But the general rule, independently of special circumstances, is, that the Court can neither compel a purchaser to take an indemnity nor a vendor to give it(i)(190).

Although a purchaser may in most cases insist upon taking the interest which the vendor can give him, yet it seems that equity will not decree an under-lease on an agreement to assign, though it appear that the assignment cannot be made without a forfeiture; for the defendant, in agreeing to assign, might intend to discharge himself from covenants to which he would continue liable by the under-lease(k). This is, however, a defence which a

(i) 1 Ves. & Beam. 255; vide post, ch. 7; Paton v. Brebner, 1 Bligh, 66.

(k) Anon. E. T. 1790; Fonbl. n. (r), to 1 Trea. Eq. 211, 2 edit. See Mason v. Corder, 2 Marsh. 332.

(190) See Hapburn v. Auld, 5 Cranch, 262. See also the opinion of SPENCER, J. in Waters v. Travis, 9 Johns. Rep. 464, 465. See also, Chinn v. Heale, 1 Munf. 63. M'Connell's Heirs v. Dunlap's

Dev. Hardin, 41.

vendor can seldom set up against a purchaser's claim, where the purchaser chooses to accept an under-lease ; for an assignee of a lease almost invariably covenants to indemnify his vendor from the rent and covenants in the (*)lease, and from these covenants he cannot of course discharge himself by an assignment, any more than by an under-lease.

So it has been determined by Lord Redesdale, that where, at the time of the contract, the purchaser is fully aware that the vendor cannot execute the agreement, and, consequently, cannot enforce the performance of it; there the agreement must be presumed to have been executed under a mistake, and the purchaser cannot insist upon a performance as to the interest to which the vendor may be actually entitled().

And in a case where a tenant for life, with a power of leasing for twenty-one years at a rack-rent, agreed to execute a lease for twenty-one years, and a further lease for twenty-one years at any time during his life, consequently to execute a lease for twenty-one years, whatever might be the increased value of the property at the time the lease should be granted; Lord Redesdale considered it a contract to act in fraud of the power, and that the lessee was not entitled to a specific performance. To obviate this objection, the lessee offered to take a renewed lease for twenty-one years, if the lessor should so long live; but Lord Redesdale thought that this was one of those cases where the plaintiff had no right thus to qualify the contract he insisted upon there was nothing in the case to show that satisfaction in the form of damages was not an adequate remedy for him. If he had been put into a situation from which he could not extricate himself, the defendant might be called on to make the best title in his power, but nothing could be

(1) Lawrenson v. Butler, 1 Scho. & Lef. 13; see Mortlock v. Buller, 19 Ves. jun. 292.

more mischievous than to permit a person who knows (*) that another has only a limited power, to enter into a contract with that other person, which, if executed, would be a fraud on the power, and when that was objected to, to say, "I will take the best you can give me." A court of equity ought to say, to persons coming before it in such a way, "make the best of your case with a jury"(m)(191).

It should be observed that there was another point in the above cause, and the decree was pronounced after considerable doubts. It seems difficult to reconcile the opinion expressed by Lord Redesdale with the current of authorities. It was not a necessary consequence of the contract that the lease agreed to be granted would be a fraud on the power, and the purchaser was willing to take the interest which the seller was enabled to grant without risk to himself or injury to the remainder-men.

If in a case of this nature, the purchaser, on the faith of the agreement, put himself in a situation from which he cannot extricate himself, and is therefore willing to forego a part of his agreement, that is a circumstance to induce a court of equity to give relief. Thus, in a case before Lord Thurlow, the incumbent of a living had, with full knowledge of the title, contracted with the tenant in tail, in remainder after a life estate, for the purchase of the advowson, and on the faith of that agreement had built a much better house than he would otherwise have done; the tenant for life would not join in suffering a recovery, and consequently a good title could not be made. Lord Thurlow held, that as the purchaser had, upon the faith of the contract, built a good house on the glebe, he ought to have the utmost the vendor could give him; and therefore directed the vendor to

(m) Harnet v. Yielding, 2 Scho. & Lef. 549; vide supra, p. 209. (191) See Graham v. Hendren, 5 Munf. 183.

OF DEFECTS IN THE QUALITY OF THE ESTATE.

369

(*)convey a base fee, by levying a fine with a covenant to suffer a recovery whenever he should be enabled to do so by the death of the tenant for life(n).

If the vendor has granted a lease of the estate which is void by force of a statute, the Court will not, on the request of the purchaser, consider the lease as valid, and allow him a compensation in respect of it(o).

10000

SECTION II.

Of Defects in the Quality of the Estate.

In most cases on this head, the rule "caveat emptor" applies, and therefore, although there be defects in the estate, yet, if they are patent, the purchaser can have no relief(p)(192).

(n) Lord Bollingbroke's case, cited 1 Scho. & Lef. 19, n. (a). (0) Morris v. Preston, 7 Ves. jun. 547.

(p) See the introductory Chapter; and see Lowndes v. Lane, 2 Cox,

363.

(192) The maxim caveat emptor will not be applied against a purchaser, where there has been fraud or misrepresentation on the part of the vendor. Pringle v. Samuel, 1 Litt. 46. See Sherwood v. Salmon, 5 Day, 439. Consistent with this principle, are the decisions in Bostwick v. Lewis, 1 Day, 33, 250., and in Norton v. Hathaway, 1 Day, 255. note d. These were actions at law. But in Sherwood v. Salmon, 2 Day, 128, which was also an action at law, (See S. C. ut supra) the principle laid down in the text, was fully recognized. The rule caveat emptor does not apply to sales by a master, because he is considered as the agent of the parties. Tunno v. Fludd, 1 M'Cord, 122.

Imposition and fraud upon the purchaser by any wilful misrepresentation or concealment, takes the case out of the general rule, and entitles him to be redressed in equity, in addition to and beyond the cov(*307)

VOL. I.

47

Thus, where a meadow was sold without any notice of a footway round it, and also one across it, which of course lessened its value, Lord Rosslyn decreed a specific performance with costs, as he could not, he said, help the

enants in the deed. The cases of Bumpus v. Platner, 1 J. Ch. R. 213; Abbot v. Allen, 2 ib. 519; Johnson v. Geer, ib. 546; Chesterman v. Gardner, 5 ib. 29; and Governeur v. Elmendorf, ib. 79; are authorities for this: and also for the point, that a grantee, to whom possession has been delivered under covenants of title and warranty, can have no relief in equity against his grantor for a return of purchase-money or security on account of a defect or failure of title: because he has secured himself by covenant; and he has an adequate remedy at law. If he has taken no covenants, and the title fails, he will be without remedy in equity, as well as at law, if the contract were fair and there be no fraud in the case.

The late case of Deniston et al, assignees v. Morris et al, assignees, 2 Edw. Ch. R. 27. was thus: the defendants sold an estate to one Sandford with promises of title and a warranty. The latter entered into possession and made improvements in buildings, &c. and then defendants would only give him a deed with covenants as to their own acts. They represented the title as good; and engaged that they would not transfer the mortgage he was to give for the purchase-money; so that if the title failed the same should be restored. Sandford sold his interest to Dickey; and one Jackson sued Dickey and recovered having a paramount title. Dickey also was obliged to pay the mortgage; the defendants having contrary to their promise transferred it. Dickey failed; and the complainants as his assignees sued this bill alleging that the defendants had funds sufficient in their hands. The Vice Chancellor observed that, "the difficulty in the case is this; that Sandford is not the party complaining of the fraud; nor, indeed has he been injured by it. He sold the property without fraud and without covenants for an adequate consideration. According to the statement of the transaction the vendors became trustees of that part of the purchase-money, which was secured by mortgage. An implied trust, at least, was created of the purchase-money; and such an one as this court is bound to protect and preserve. If then there be a trust fund and trustees of it; for whose benefit does it enure? The title was to be made satisfactory to Sandford and his assigns. A loss resulted in the failure of the title; and this loss has been borne by Dickey; and he or those standing in his place, are the persons entitled to the benefit of it. Consequently, the demur

rers which had been filed were overruled.