1827.

HORLOCK

10.

PRIESTLEY and Wife.

Interest on their Mortgage was regularly paid, they might not think it necessary to take that precaution. They had an inchoate legal Title, which they might complete whenever they pleased; and, in this case, Equity must follow the Law; and it has been decided that they had priority at Law.

26th and 28th

November.

WILLIAMS v. EDWARDS.

Vendor and Pur- THE Defendant was the surviving Assignee of one

chaser. Specific Performance. Costs.

One of the terms of an

Agreement was that the Contract should be

void if the Pur

Abraham Stephens Racster, a Bankrupt. In November
1824 he agreed to sell to the Plaintiff certain Real
Estates, late the Property of the Bankrupt. The
Articles of the Agreement were dated the 12th of
November 1824, and were as follows:

"The said John Edwards doth agree to sell, and the chaser's Counsel said Francis Williams doth agree to purchase, at the sum of 3,305 l., to be paid subject to the Agreement and as hereinafter mentioned, two undivided Third Parts or Shares absolutely, and the Life-interest of the said Bankrupt of in or to the remaining One-third Part or Share of and in all that Copyhold Messuage, or Tenement, Buildings, Farm and Lands, called or known by the name of Cobhouse, in the Parish of Wickenford, in the County of Worcester, and containing by admeasurement 86 A. 3R. 30 P., little more or less; and also of a Compensation, and in the Two-third Parts or Shares in Fee-simple,

should be of opinion that a marketable Title could not be made by a certain time. The Counsel being of that opinion, a Bill by the Purchaser for a Specific Performance, with

was dismissed

with Costs; and an application, afterwards made by the Plaintiff, that his Deposit might be set-off against the Defendant's Costs, and the surplus (if any) paid to him, was refused with Costs.

and the Life-interest of the said Bankrupt of and in the
remaining One-third Part or Share of and in all those
Freehold Tenements and Blacksmith's shop, and pieces
or parcels of Land, containing together 19 A. 3 R. 32 P.,
little more or less, called Boxleys, also situate in the
said Parish of Wickenford. The said John Edwards
engages that the said Copyhold Premises are full lived,
and to furnish, within one calendar month from the
date hereof, a satisfactory Abstract of a marketable
Title to the said Premises; and, upon receiving the
Purchase-money on or before the 2d day of February
then next ensuing, will execute, and cause all proper
Parties to join in and execute proper Conveyances of
the said Copyhold and Freehold Premises, and to sur-
render the said Copyhold Premises unto the said Francis
Williams and his Heirs, or as he shall direct, free from
Incumbrances, except Land Tax, Chief Rent, and the
Rents, Suits and Services due and payable for the said
Copyhold Premises; and, on the execution of which
Conveyances and Surrenders as aforesaid, the said
Francis Williams will pay, unto the said John Edwards
and the Parties entitled thereto, the said Purchase-money
of 3,3051., subject as after-mentioned; and shall there-
upon
be entitled to the Rents and Profits of the said Pre-
mises from the said 2d day of February, up to which time
all outgoings shall be paid by the said John Edwards.
Errors in the description of the Premises shall not vacate
this Agreement, but a reasonable abatement or equi-
valent be made or given, as the case may require. The
said Francis Williams shall pay the expense of his own
Conveyances, and the fines and the fees for his admis-
sion to the said Copyhold Premises; but the said John
Edwards is to be at the expense of surrendering the
same. If the Surrender and Conveyance of the Pre-

1827.

WILLIAMS

0.

EDWARDS.

1827.

WILLIAMS

v.

EDWARDS.

mises be not perfected on the said 2d day of February, the said Francis Williams shall pay Interest for his Purchase-money, after the rate of 41. per Cent per An num, from the time of his being entitled to the Rents and Profits. If the Counsel of the said Francis Williams shall be of opinion that a marketable Title cannot be made by the time hereby appointed for the completion of the said Purchase, this Agreement shall be void and delivered up to be cancelled. This Agreement shall not be affected by any accidental damage which may happen to the said Premises, between the date hereof and the time limited for the completion of the Purchase; but the benefit of any then subsisting Policy of Insurance shall, in such case, belong to the said Francis Williams. The said John Edwards will not from henceforth grant or contract for any Leases of the said Premises without the consent in writing of the said Francis Williams. The delivery and production of Title Deeds, and the expenses of Conveyances, and of attested Copies, should be made and paid by the respective Parties, according to the established practice in similar Cases."

Shortly after the execution of these Articles, the Plaintiff paid to the Defendant a deposit of 100 l. in part of the Purchase-money. The Abstract of the Defendant's Title having been submitted to Counsel, the Plaintiff was advised that the Defendant could make out a good Title to the Fee-simple of Two-thirds only of the Freehold part of the Property, and that he was seised of the remaining Third, and the whole of the Copyhold part, for the Life of the Bankrupt only. The Bill prayed for a specific performance of the Agreement; and that, if it should appear that the Defendant had

power to convey part of the Property to the Plaintiff, for the Life of the Bankrupt only, he might be decreed to convey the same accordingly; and that an abatement might be made, to the Plaintiff, out of his Purchasemoney. The Defendant, in his Answer, admitted that his Title was defective as before mentioned; and submitted that, under the Agreement, he was not bound to make, to the Plaintiff, any allowance out of the Purchase-money in respect of the defect, and that the Agreement was, under the circumstances, void and ought to be delivered up to be cancelled pursuant to the terms thereof.

Mr. Heald and Mr. Girdlestone, for the Plaintiff, contended that the Defendant was bound to perform the Agreement as far as he was able, and to make an allowance, to the Plaintiff, in respect of his deficiency of Interest in Two-thirds of the Copyhold Premises: and they cited Mortlock v. Buller (a), and Wood v. Griffith (b).

Mr. Treslove and Mr. Stinton, for the Defendant, cited Hudson v. Bartram (c), and said that it was one of the terms of the Agreement that, if the Counsel of the Defendant should be of opinion that a marketable Title could not be made to the Property, by the time appointed for the completion of the Purchase, the Agreement should be void; that time was here. made of the essence of the Contract; that the Purchaser's Counsel was of opinion that a marketable Title could not be made, and that, therefore, the Vendor was entitled

to say that the Contract was at an end; and that there was no Evidence to show that the Vendor had waived the benefit of the stipulation.

The VICE-CHANCELLOR :—

In this Case I wished to consider thè terms of the Agreement before I came to any decision on the subject.

It appears to me that the doctrine relied on by the Plaintiff's Counsel, is not directly applicable to the Case in question; because the position which my Lord Eldon lays down in the Case of Mortlock v. Buller, is a position adopted in a variety of cases, and is a position applicable to all Contracts of a general nature, where the Parties themselves have not entered into a specific Agreement as to some event or other which should determine the Contract. Now, in this Case, the Parties have expressly stipulated, in the first place, that Errors in the description of the Premises should not vacate the Agreement, but that a reasonable Abatement or Equivalent should be given or taken, as the case may require and then they stipulate that, if the Counsel of Francis Williams, who was to be the Purchaser, should be of opinion that a marketable Title could not be made by the time appointed for the completion of the Purchase, the Agreement should be void, and delivered up to be cancelled.

The Agreement was made on the 12th November 1824; and this particular Clause in the Agreement I must take to be the Ccntract both of the Vendor and the Purchaser. They might both think that it would be equally to their interest that the Agreement should