thing to say the appointment of a day was to have no effect at all, and that it was not in the power of the parties to contract, that if the agreement was not executed at a particular time, the parties should be at liberty to rescind it.

And in the late case of Seton v. Slade(k), Lord Eldon said, he inclined much to think, notwithstanding what was said in Gregson v. Riddle, that time may be made the essence of the contract(239).

The case under consideration has been assimilated to a mortgage, where, although the parties may have expressly stipulated, that if the money be not paid at a particular time, the mortgagor shall be foreclosed, yet equity will permit him to redeem, in the same manner as if no such stipulation had been entered into. There does not appear to be any analogy between the cases. In a mortgage such a declaration is inserted by the mortgagee for his own advantage; but as the land is merely a security for the debt, equity rightly considers that a mortgagee ought only to require his principal and interest, and not to obtain (*) the estate itself, by taking advantage of the necessities of the mortgagor. Once a mortgage and always a mortgage, has therefore become a maxim; and under this axiom equity is indeed administered; the parties being put in possession of their respective rights without detriment to each other. The same reasoning seems to apply to relief against a penalty. But in an agreement for sale of an estate, where it is expressly declared that the contract shall be void if a title cannot be made by a stated time, the parties themselves have mutually fixed upon a time; the bona fides of such a transaction seems to be a bar to

(k) 7 Ves. jun. 265; and see Lewis v. Lord Lechmere, 10 Mod. 503. See also 3 Ves. jun. 693; 12 Ves. jun. 333; 13 Ves. jun. 289 ; 2 Mer. 140; Levy v. Lindo, 3 Mer. 81; Ward v. Jeffery, 4 Price, 294.

(239) Soe Benedict v. Lynch, 1 Johns. Ch. Rep. 374.

the interference of a court of equity; and if the contract be vacated by virtue of the agreement, the parties will still be in the possession of their respective rights. We may therefore, perhaps, venture to assert, that if it clearly appear to be the intention of the parties to an agreement, that time shall be deemed of the essence of the contract, it must be so considered in equity(). In the late case of Hudson v. Bartram(m), the Vice-Chancellor (Sir John Leach) said, that the principle was admitted now that time may be made of the essence of the contract. Why are not parties to insert such a stipulation in their contract? It is difficult to understand how the doubt arose, but it is now at an end; and in the later case of Williams v. Edwards, where it was stipulated by the contract that if the counsel of the purchaser should be of opinion that a marketable title could not be made by the time thereby appointed for the completion of the purchase, the agreement should be void, and delivered up to be cancelled. The counsel of the purchaser was of opinion that the seller was only tenant for life of certain shares of the estate, and a bill filed by the purchaser for a specfic performance, (*) with a compensation, was dismissed with costs(n).

It remains to observe, that where no time is limited for the performance of the agreement, the cases considered under the first division in this chapter will assist the student in forming a judgment in what instances equity will assist a party who has been guilty of latches, although every case of this nature must in a great measure depend upon its own particular circumstances. The cases classed under the second division apply, however, with greater

(1) See Appendix, No. 6.

(m) 12 Dec. 1818, MS.; S. C. 3 Madd. 440; and see Boehm v. Wood, 1 Jac. & Walk. 419.

(*) Williams v. Edwards, 2 Sim. 78.

force to cases where no time is limited than to those where a day is fixed, for in the former cases, the Court has not to struggle against an express stipulation of the parties.

A case came before the Lords Commissioners in 1792(0), where no time was limited for performing the agreement. The plaintiff was one of two devisees in trust to sell, and pay debts, and had alone sold the estate(Ì), and entered into articles with the defendant. The co-trustee afterwards refused to join; and there was a mortgagee who refused to be paid off. Neither of these circumstances was disclosed to the purchaser, and upon this delay in the title he proceeded to bring his action against the vendor for a breach of the agreement. The plaintiff brought his bill to compel a specific performance, and to have the co-trustee join; and the mortgage redeemed, and to stay the action. The defendant suffered an injunction to go against him for want of an answer; and having afterwards answered, a motion was made to dissolve the injunction; and the (*) cause shown by the plaintiff was, the possibility of making a good title by this very suit. The Court held the purchaser bound, and continued the injunction.

In this case it appears from the Registrar's book, that the purchaser insisted on his purchase, and that the injunction should be dissolved; which was certainly a very important feature in the cause. It was not the case of a man merely seeking to recover his deposit. It must, however, be repeated, that it is impossible to lay down any general rule applicable to cases where no time is appointed for performing the agreement. Indeed, throughout this chapter, it has been found impossible to treat the subject of it in an elementary manner.

(0) Tyrer v. Artingstall, Newl. Contr. 236. See the case in Reg. Lib. B. 1792, fo. 28, nom. Tyrer v. Bailey.

(I) The estate was sold by auction with the concurrence of the other The plaintiff, however, alone signed the agreement.

trustee.

(*)CHAPTER IX.

OF THE ABSTRACT AND CONVEYANCE: THE ASSIGNMENTS OF TERMS, ATTESTED COPIES AND COVENANTS FOR TITLE, TO WHICH A PURCHASER IS ENTITLED: OF SEARCHING FOR INCUMBRANCES:

RESPECT OF INCUMBRANCES.

AND OF RELIEF IN

10001

SECTION I.

Of the Abstract and Conveyance.

THE vendor must at his own expense furnish the purchaser with an abstract of his muniments(I), and deduce a clear title to the estate. The abstract ought to mention every incumbrance whatever affecting the estate, and should, therefore, contain an account of every judgment by which it is affected(a); but equity considers it complete whenever it appears, that upon certain acts done, the legal and equitable estates will be in the purchaser ; which may be long before the title can be completed(b). Although the estate is sold free from incumbrances, and the abstract shows an amount of incumbrance exceeding

(a) Richards v. Barton, 1 Esp. Ca. 268.

(b) See 8 Ves. jun. 436; and 1 Jac. & Walk. 421.

(I) Formerly the title-deeds themselves were delivered to the purchaser, and his solicitor prepared the abstract at his expense; and the abstract was compared with the title deeds by the counsel before whom it was laid. See Temple v. Brown, 6 Taunt. 60.

the purchase-money, yet it must be considered that the seller can make a good title(c). This rule is properly (*) confined to cases where the seller, and persons who are trustees for him, can make a title; for if the concurrence of a stranger is necessary, and he is not bound to join, the abstract cannot be deemed perfect until it shows that he has given perfection to the title(d).

The abstract is delivered for the following purposes: 1st, That the purchaser may see whether the title is such as he will accept. He has also a right to it after he has taken an opinion, in order to take another opinion in case he is not satisfied with that, and for the purpose of taking further objections, and of further considering the title. He must have it too for another purpose, to assist him in preparing his conveyance, that he may see who must be made parties, what form of conveyance is expedient, what parcels are to be inserted, and the like(e). As to the general property in the abstract, it is hard to say who may have it; while the contract is open, it is neither in the vendor nor in the vendee absolutely; but if the sale goes on, it is the property of the vendee; if the sale is broken off, it is the property of the vendor. In the mean time the vendee has a temporary property, and a right to keep it, even if the title be rejected, until the dispute be finally settled, for his own justification, in order to show on what ground he did reject the title(f). If the purchase go off, not only is the abstract to be returned, but no copy to be kept, lest it should be used for a mischievous purpose(g); and although the purchaser pays for the opi

(c) Townsend v. Champernown, 1 You. & Jerv. 449.

(d) Lewin v. Guest, 1 Russ. 325.

(e) See 2 Taunt. 276, per Mansfield, C. J.

(f) 2 Taunt. 278, per Chambre, J.

(g) 2 Taunt. 277, per Lawrence, J.