In ascertaining what was due, on the mortgage of a house and the appurtenances, to a mortgagee who had taken possession, the Master had allowed him the costs of some improvements which he had made. The building being in a very dilapidated condition, he had rebuilt the kitchen, pantry, &c.; and he had the house double-roofed, instead of being, as it was before, only single-roofed. The mortgagee had been charged with an occupation rent; and that rent had been estimated with reference to the increased value of the premises caused by the new erections.

The mortgagor excepted to the report, on the ground, that he ought not to be charged with the sums expended on the premises by the mortgagee.

Mr. Heald and Mr. Roupell appeared in support of the report.

Mr. Treslove appeared in support of the exception.

For the exception it was contended, that a mortgagee had no right to increase the amount of the charge on the property, by expending money upon it without the sanction of the mortgagor. If the property began to fall into a state of dilapidation, which was likely to diminish its value so much that it would not be an adequate security for his money, his remedy was by foreclosure, and not by laying out money in what the mortgagee might conceive to be repairs or improvements, but which the mortgagor might not choose to have made.

For the report it was contended, that the improvements appeared by the finding of the Master to have been substantial and proper, and a mortgagee was justifiable in acting as a provident owner would have

VOL. III. CII.

to

done. Nothing would be more injurious mortgagors, than that a mortgagee should be unable, with safety to himself, to expend money in maintaining the premises in good repair.

Vice Chancellor.-This mortgagee has not made new buildings for new purposes; he has only erected new buildings on the site of the old, and for the same purposes as were served by them. The new buildings are merely substitutions for those which were too ruinous to be any longer useful. The exception must be over-ruled.

The Master had charged the mortgagee with an occupation rent, not from the time when he recovered possession of the premises, but only from the time when the repairs had been completed.

An exception was taken to the report, on the ground that the occupation rent ought to have been calculated from the date when the mortgagee entered into possession. The mortgagor, it was said, was here charged with interest, during a time when the mortgagee was in possession of the property, and yet was charged with no rent. Was the mortgagee to be allowed, first to occupy the premises gratis, and then to charge interest?

On the other hand, it was answered, that the finding of the Master showed, that, at the time when the mortgagee recovered possession, the premises were in so ruinous a state, that no rent could have been gotten for them; and a mortgagee could not be charged with rent for that which appeared to be, in truth, of no annual value.

The Vice Chancellor was of this opinion, and over-ruled the exception.

his own use the proceeds of the bills for 5,000l., which were put into his hands, however the affairs, to which he was to devote his labours, might turn out. The bills for the remaining 5,000l. were deposited with trustees, who were to deliver them to the defendant, or return them to the plaintiff, according as the exertions of Mr. Bozon, in the transactions above referred to, had one result or another.

Mr. Bozon had not performed the services; and the time, within which they were to be performed, had elapsed. The default took place in the month of August.

The plaintiff, therefore, filed his bill, stating these facts in detail, and praying an injunction to restrain Bozon from negotiating the bills which were in his hands.

Upon a certificate of the bill filed, and an affidavit verifying the allegations, a motion for the injunction was made ex parte.

Mr. Rose appeared for the motion, and submitted that these bills were in the hands of Bozon entirely without consideration, and that irreparable mischief would be sustained if he was allowed to negotiate them, so as to pass them into the hands of boná fide holders.

Vice Chancellor.-Such applications ought not to be listened to readily. When is the Court justified in restraining the use of property by the person who is prima facie owner of it? Originally, the only case in which the Court interfered was that of irreparable mischief. It is necessary to grant an injunction ex parte wherever irreparable mischief may be done and is threatened. I regret that the Court has ever departed from the plain application of that clear principle.

In June last, an arrangement was entered into, in consequence of which the plaintiff deposited the bills with Bozon, upon certain conditions. Bozon, it is said, has not rendered the services which he agreed to perform, and therefore he has no interest in the bills. Granting all that, is there the least reason why this Court should interfere without hearing Bozon? This alleged breach of the engagement was committed in August; the bill, complaining of that breach, is not filed till December, and the injunction is applied for ex parte, at a time, when, if it should work injustice, a month

Specific performance Occupation.

Abandonment

There being a parole agreement for the purchase of a farm and farm-house, the possession of the farm by the purchaser will be held an act of part performance, sufficient to authorize the Court to execute the contract, even though the house should have been occupied adversely to him.

Great delay in the completion of a contract is no defence to a purchaser who has himself been accessary to that delay.

Where a contract of purchase is made, and delay is occasioned by the purchaser, and during that delay the legal estate descends to an infant heir, the purchaser cannot avail himself of that difficulty in the title to protect himself from specific performance.

Quære, whether the descent of the legal estate to an infant heir, after the contract, will prevent the Court from decreeing specific performance, where there has been no improper delay on the part of the purchaser?

George Green, being in embarrassed circumstances, and an execution having been sued out against him by John Turner, for the sum of 1,400l., entered into an arrangement, by which he was to assign all his estate and effects to trustees, for the benefit of his creditors. Turner, who was the principal creditor, acceded to this arrangement, on condition of having 1,0487., part of his debt, secured to him by the joint bond of Green and of the trustees. For the residue of his demand, he was to rank pari passu with the other creditors.

At that time, George Green's property consisted, among other things, of an undivided moiety of a copyhold farm or messuage, to which, subject to the free bench of his mother, Mary Green, he was entitled in fee simple.

In pursuance of the arrangement entered into with the creditors, an indenture of assignment, bearing date the 20th of June, 1814, was executed, between George Green of the first part; his mother, Mary Green, of the second part; divers of George Green's creditors of the third part; and George King, Thomas Reeves, and Joseph Murrell of the fourth part. By that indenture, George Green assigned all his property to the trustees, and he and his mother covenanted that he would immediately procure himself to be admitted tenant of the undivided moiety of the copyhold farm and messuage, according to the custom of the manor, and that immediately thereafter they would surrender the same to the use of the trustees, their heirs, and assigns. These trustees were to hold the copyhold premises, as well as the other property, upon trust, to sell the same. Out of the money arising from such sale, they were to pay, first, the expenses of executing the trust; secondly, the sum of 1,048., which was to be secured by bond to John Turner, with interest thereon; thirdly, the sum of 700l. to Mary Green, as a consideration for her joining in the sale and surrender; and fourthly, to divide the surplus proportionably among all the creditors who should sign the deed within three months.

Previously to the execution of this indenture, Green and the three trustees executed a joint and several bond to Turner, for 1,0481.

The bill was filed by the trustees, King, Reeves, and Murrell, against John Turner. It stated, that, in October, 1814, they contracted with Turner for the sale to him of the undivided moiety of the copyhold estate, in consideration of his giving up and cancelling the bond for the sum of 1,0487. and the interest thereof, and paying unto them the further sum of 1,000l. for the farm, including the timber, underwoods, and dressing, and paying the additional sum of 60%. for the hay upon the premises; that, in pursuance and part performance of the agreement, John Turner, at or about

Michaelmas, 1814, entered upon and took possession of the estate and hay upon the premises, and he continued in possession until Michaelmas, 1819; that, after that time, the same had been in the occupation of some persons who had accounted, or were liable to account to him for the rents and profits thereof; and that John Turner had not delivered up the bond or paid the residue of the purchase money for the premises. George Green, it was alleged, never was admitted to the copyhold estate. He died in 1819, having by his will (in which he referred to his covenant to surrender the premises, and mentioned that 7007., part of the purchase money, was to be secured to him, of which the interest was to be paid to his mother during her life) devised the copyhold to Salter and his heirs, upon trust to carry his covenant into effect, and to accept the security for the said sum of 7007., which he disposed of along with the residue of his personal estate upon certain trusts.

He left Jane Watts Green, an infant, his customary heir.

Salter died in 1820; and his youngest son, who was an infant, was, according to the custom of the manor, his heir.

The bill also charged, that the agreement for the purchase of the copyhold estate had been, on both sides, in part performed; that the plaintiffs had permitted John Turner to take possession of the premises, upon the faith and in pursuance of the agreement; that he took possession thereof accordingly, entered upon the estate and premises, and employed George Green as his bailiff for the cultivation of the farm, suffering him to live in the farm-house, and sending his own son to live with him and assist in the management of the estate.

The bill prayed a specific performance of the contract.

The defendant, by his answer, insisted that George Green had all along been in possession of the house, and had occupied it

adversely to him; that George Green continued in such possession by the permission of Mary Green; that, in 1819, Mary Green took possession of the house and farm, after having given the defendant notice to quit the premises. He complied with this notice, and afterwards paid rent to her for part of the time during which his occupation was continued. Under these

circumstances, he submitted that the agreement was abandoned. He stated that, by the original agreement, the purchase money was to have been paid at Lady-day, 1815; that, before that time arrived, he told one of the trustees, that, if the title was completed, and he was admitted tenant, and had possession of the copyhold, he would be ready with his purchase money on a month's notice: but he admitted, that he had not made any other application to the plaintiff on the subject of the contract. Another circumstance on which he relied was, that, in 1822, Mary Green felled a considerable quantity of timber on the estate, and that the trustees for sale, though they knew of her doing so, took no steps to prevent conduct which was altogether inconsistent with the contract of which performance was now sought.

It appeared, from the evidence, that Mary Green, from the year 1802, or 1803, up to 1819, had lived with Turner as a housekeeper; that Turner occupied the farm after the contract of purchase; that George Green and his family lived in the house; and that a son of Turner also lived there, in order to superintend the management of the farm; that Turner, upon receiving from Mary Green the notice to quit, had abandoned the premises without any permission from the trustees; and that, when Mary Green felled timber, in 1822, he made complaints to them upon the subject.

Mr. Horn and Mr. Pemberton appeared for the plaintiffs.

Mr. Sugden and Mr. Newland appeared for the defendant, Turner.

As objections to a specific performance of the contract, it was urged

1st, That there had not been a sufficient part performance, because the defendant had never been in sole possession of the premises, and George Green had maintained adverse possession of the house against him. 2dly, That the trustees, after so long delay, ought not to enforce the contract now.

3dly, That, in consequence of the doubt as to the right to 700l., part of the purchase money, and the heirs both of George Green and of Salter being infants, a good title could not be made.

Vice Chancellor.-George Green, being entitled in fee to a copyhold messuage and farm, subject to his mother's life interest

therein, and being in insolvent circumstances, makes an arrangement for assigning all his property to the present plaintiffs, as trustees, for the benefit of his creditors; and the mother, Mary Green, is to join in that assignment.

John Turner, who was intimately connected with the family of the Greens, was a creditor of George Green, to the amount of 1,4007. he was therefore interested in the arrangement for the payment of George Green's debts; and he had put an execution into the premises, for the purpose of satisfying his demand. In order to obtain his concurrence to the intended plan, the trustees make the following proposal to him:We, who are trustees, being also creditors, will join, with George Green, in giving you a bond for 1,048/., provided you withdraw your execution, and come in equally under the arrangement with Green and his mother." He accedes to this proposal, and takes the bond.

The mother, in consideration that she had covenanted to join with her son in the surrender of the copyhold, was to receive, out of the proceeds of the sale, 7001. The surplus, which should remain after the payment of the 700l. and 1,048., was to be divided among the creditors, of whom John Turner himself would still be the most considerable. This arrangement is carried into effect by a deed.

In October, 1814, the following agreement is entered into:-John Turner agrees, by parole, to become the purchaser of the moiety of the copyhold premises, for 2,0487., besides 601. for the hay. Out of this sum, he is to retain the sum of 1,048., due to him on the bond; and he is to be put into possession of the premises. In the same month of October, he enters into the occupation of the farm and lands, but not of the house, of which George Green remained in possession. Turner continues to reside in his own house, where Mary Green, the mother, lived with him as housekeeper; and he employs George Green in the management of the farm, sending one of his own sons to reside with him, and putting into the house, for the use of that son, various articles of furniture.

This manner of occupation continued till February, 1819, when George Green died; after which Turner continued to occupy the

farm as before, leaving the widow of George Green in possession of the house.

A short interval having elapsed, a difference occurred between Turner and Mary Green, and she took up a rather unfriendly disposition towards him. He had agreed to be tenant to her of the other moiety of the premises; and she gave him notice to quit at Michaelmas, 1819. He says, that upon receiving this notice, he communicated it to the trustees; but it appears, that their reply was- -“Do not think of quitting this farm you, as tenant in common, in equity, are entitled to maintain your possession against Mary Green." He does not act upon this advice, but gives up possession of the premises. He never represents, however, to the solicitors of the trustees, that he had abandoned his contract.

In June, 1821, the bill is filed by the trustees, for the specific performance of the

contract.

Against the relief prayed by it, Turner now insists on various grounds of defence. First, he says, that he never had possession of all the premises, for George Green maintained the possession of the farm-house adversely to him. If the fact were of any importance, the conclusive weight of evidence in this case would be, that the possession of George Green was the possession of Turner. George Green was the person who was to manage the farm for the benefit of the defendant, and under his direction: is not the presumption, that the man, who was to manage the farm for him, remained in the house by his express consent? Besides, he sent one of his own sons to live in it with George Green, and put into it the furniture necessary for his personal accommodation. George Green's widow, indeed, in her deposition, says, that Turner several times talked to her husband about quitting the house; that her husband refused to do so; and that, upon one occasion, when Turner wished part of the premises to be occupied by another person, her husband would not give his consent to that being done. These circumstances, however, are evidence, not that George Green's possession was adverse, but that it was a possession by Turner's permission.

But it is, in fact, of no importance, whether George Green did or did not maintain an adverse possession. This is a parole

agreement, which is to be supported on the ground of possession by the purchaser under his contract. Now, if a man purchase by parole a farm and farm-house, and enters into possession of the farm, but not of the house, I cannot presume that his possession is not in part performance. It is, in equity, equal confirmation of the contract, whether he enter upon the lands alone, or upon both lands and house.

The second topic insisted upon is, the delay which has taken place in the completion of the agreement; and this delay, he alleges, was caused by the want of a due surrender on the part of George Green and Mary Green. Is, then, the Court seriously to believe, that this defendant has been retarded by the difficulty of procuring a surrender from his own housekeeper and his own servant? He made no application to the trustees, to take the necessary steps for completing the purchase. The delay was Turner's as well as theirs; and it was a delay for his advantage, for he was in possession both of the property and of the purchase money. The trustees, no doubt, were in some degree culpable, though not to the extent that may be supposed; for, after the payment of the 1,0481. and 700l., there would have been a surplus of about 3007. only; and to a considerable part of that sum, Turner himself would have been entitled, in respect of the unsatisfied portion of his debt. But their negligence in the discharge of their duty is no reason why Turner should be excused from the performance of his engagement, by a delay which he himself promoted, and in which he himself participated, and which was for his own advantage.

Therefore, up to 1819, the delay must be regarded as his own. In that year, he received notice to quit. Did he act, on that occasion, as a person who had abandoned his contract? He applied immediately to the trustees.

Why did he apply to the trustees for protection, if he did not insist on his contract? There is no evidence as to what passed between that time and the filing of the bill in 1821. I should consider that interval as occupied by the negotiation which led to the filing of the bill.

The conduct of the defendant even after the filing of the bill, shows, that he had no