evidence is, in these cases, admissible either in the life-time, or after the decease of the trustee but unless there are corroborating circumstances, as a writing under the trustee's hand, stating the application of the money, or the inability of the trustee to make the purchase with other funds (d), mere parol evidence of declaration supposed to be made by the purchaser will be received with great caution (1).

3. Where a trustee or agent is bound by the trust to lay out the money in land, if he lay it out accordingly, it will be presumed to have been done in execution of the trust (e).

4. And where an executor of a mortgagee for a term of years purchased the equity of redemption in fee for a small sum in his own name, and for his own benefit, he was held to be a trustee of the fee for the benefit of his testator's estate (ƒ).

5. But if a trustee has considered himself entitled to the trustmoney for his own benefit, no presumption can be raised in opposition to this fact, that he intended any lands he may have bought with the trust-money to be subject to the trust (g).

6. Here we may introduce a case, where a man, on his marriage, contracted to assure all such personal estate as he should, during the joint lives of him and his wife, be possessed of, upon certain trusts. He purchased a real estate, for which he paid partly out of his own monies, and partly out of monies borrowed on his personal security. It was insisted, that the real estate was bound by the trusts: but Lord Eldon determined, that it belonged to the **heir, but charged for the benefit of the persons claiming under the trust, with the purchase-money paid by the husband out of his own funds and lasting improvements on the estate; and also with the money borrowed, which he in his life-time paid off out of his personal estate, and the estate was held the primary fund for payment of the money borrowed. In this case it will be seen that the application of the settled fund was clearly traced, for all the husband's personal estate was bound by the settlement; and the only

(d) See Lench v. Lench, 10 Ves. jun. 511; Wilson v. Foreman, 2 Dick. 593, as corrected by the Master of the Rolls, 10 Ves. jun. 519; and see Anon. Sel. Cha. Ca. 57.

(e) See the cases in Sect. 4, infra; and see Manningford v. Toleman, 1 Coll. 670.

(f) Fosbrooke v. Balguy, 1 Myl. & Kee. 226; the marginal abstract does not appear to be correct.

(g) Perry v. Phelips, 4 Ves. Jun. 108; 17 Ves. jun. 173; and see Cox v. Paxton, 17 Ves. jun. 329; Savage v. Carrol, 1 Ball & Beatty, 265.

(1) See Perry v. Phelips, 1 Sumner's Vesey jr., 256, in note (6), of Mr. Hovenden.

question was, whether the cestui que trust should have the estate, or the trust-fund laid out in the purchase of it (h).

(h) Lewis v. Madocks, 8 Ves. jun. 150; 17 Ves. jun. 48. See Denton v.

Davies, 18 Ves. 499; Neasom v. Clarkson, 4 Hare, 97.

SECTION IV.

OF THE PERFORMANCE OF A COVENANT TO PURCHASE AND
SETTLE AN ESTATE.

1. Purchase by person who has agreed to purchase and settle lands, a performance;

2. Although purchase only partial; 3. Or trustees were to buy ;

4. Or consent required.

6. Where descended lands go in performance of covenant.

7. What estates will satisfy the covenant. 9. Value how to be taken.

10. Where covenant is a lien.

11. Where a covenant to settle is confined to an existing contract to purchase.

1. WHERE a man covenants to purchase and settle, or, having no real estate, to convey and settle lands, and afterwards accordingly purchases lands of equal or greater value, but neglects to settle them, they will be held to have been purchased with an intent to perform the covenant, and will accordingly go in performance of it (a), and the heir must give up the estate, although he is not the person entitled to the benefit of the covenant (b).

2. It is even a general rule in equity, that where a man cove nants to do an act, and he does that which may pro tanto be *converted to a completion of the covenant, he shall be presumed to have done it with such intention (c) (1). Therefore, where the covenantor has purchased lands, but not of sufficient amount to wholly perform the covenant, yet they shall go in performance of

(a) Wilcocks v. Wilcocks, 2 Vern. 558; Deacon v. Smith, 3 Atk. 323; see and consider Wellesley v. Wellesley, 4 Myl. & Cra. 561.

(1) See 2 Story Eq. Jur. §1210.

9.

(b) Garthshore v. Chalie, 10 Ves. jun.

(c) See Sowden v. Sowden, Cox's n. 3 P. Wms. 228.

it as far as they will extend (d). It may not be possible to lay out all the money in one purchase; but that is not a sufficient reason why the estates actually purchased should descend to the heir at law for his own benefit, to the entire ruin, perhaps, of the rest of the family.

3. The like principle has been extended to a case where the covenantor was to pay the money to trustees, to be by them laid out in the purchase of estates (e).

4. It is not material in these cases, that the purchase was to be made with the consent of persons whose consent was never even applied for (f), or within a limited time, and the purchase was not made till after the expiration of the time appointed (g). Nor is it important that there was a subsisting mortgage on the estate, upon which the covenantor took up money from another person in order to enable him to complete the purchase (h). And it will not vary the case, that the covenantor had an option to settle a rentcharge instead of the lands themselves, unless he have shown an intention to avail himself of his right to elect (i).

5. The rule applies equally where a man is under an obligation to lay out money in land, although not bound by covenant or agreement, as where he is directed by an Act of Parliament to make the investment (k).

6. But where a clear intent appears to lay out the entire sum in the future purchase of lands, estates of which the covenantor was seised at the time of the covenant, and which he permitted to descend, cannot go in performance of the agreement, because such clearly could not have been his intention ().

7. And to enure as a performance, the property purchased must be such as will answer the intent of the settlement (m). Therefore, under a covenant to purchase fee-simple lands in possession, estates *in reversion, expectant upon lives will not go in performance (n), unless, perhaps, they fall into possession in the covenantor's life

(d) Lechmere v. Earl of Carlisle, 3 P. Wms. 211; For. 80; MS. App. No. 22, a fuller note of this part of Lord Talbot's judgment; Whorwood v. Whorwood, 1 Ves. 540; Sowden v. Sowden, 3 P. Wms. 228, n.; 1 Bro. C. C. 582. See 4 Ves. jun. 116, 117; 10 Ves. jun. 9, 516; Gardner v. Lord Townshend, Coop. 301.

(e) Sowden v. Sowden, 1 Bro. C. C. 582. [Perkins's ed. notes.]

(g) S. C.; and see 3 Atk. 329.
(h) Deacon v. Smith, 3 Atk. 323.
(i) S. C.

(k) Tubbs v. Broadwood, 2 Russ. & Myl. 487.

(1) Lechmere v. Earl of Carlisle, For. 80, et ubi sup. See Davys v. Howard, 5 Bro. P. C. 552.

(m) See Lewes v. Hill, 1 Ves. 274. (n) Lechmere v. Earl of Carlisle, 3 P. Wms. 211; Deacon v. Smith, 3 Atk. (f) Lechmere v. Earl of Carlisle, ubi 323; Whorwood v. Whorwood, 1 Ves.

time; neither will leaseholds for lives, nor terms of years, even with covenants to purchase the fee, go in performance, as they cannot descend to the heir (o).

8. So a moiety of a house would not be considered a kind of property within a covenant to purchase lands of inheritance: nor would lands, having a different descent, as borough-English lands, which descend to the youngest son, instead of lands descendible to the eldest son, according to the course of the common law (p). Neither will copyhold estates go in part performance of a covenant to purchase freehold lands, where the nature of the tenure would prevent compliance with the terms of the settlement, as where the estate is to be settled on one for life without impeachment of waste (q). But where this circumstance does not occur, copyhold estates may, it should seem, go in part performance of a covenant to purchase real estates (r), although Lord Hardwicke seems to have doubted whether copyhold lands could go in performance, as they are liable to different tenures and to forfeiture (s).

9. Where the purchase was made bona fide with an intent to perform the covenant, the lands must, it is conceived, in most cases be taken at the price for them (t), or at least at their value at that time. This construction, however, is not made to the prejudice of purchasers, for if the covenantor sell the estates, it will be evidence of his intention that they should not be bound by the settlement, and therefore they could not be followed in the hands of the purchaser (u). But it is no objection in these cases that the arrangement will affect specialty creditors, for it is in the power of the owner of the estate to prefer one specialty creditor to another, because none of them have any specific lien on the lands (x).

10. It may be considered as a general rule, although it may not hold universally true, that a covenant to convey and settle lands, will not be a specific lien on the lands of the covenantor, but the covenantee will be a creditor by specialty. In one case, where a man gave a bond, before marriage, to convey sufficient freehold or copyhold estates, to raise 600l. per annum, for his intended wife, *in bar of dower, she was decreed to be a creditor, by specialty of her husband, and to be entitled to be paid the arrears of her

(0) Lechmere v. Earl of Carlisle, ubi

sup.

(p) Pennill v. Hallett, Ambl. 106. (2) S. C.

(r) Wilks v. Wilks, 5 Vin. Abr. 293, fol. 39. Note, the covenant was generally to purchase lands.

(s) Whorwood v. Whorwood, 1 Ves. 540.

(t) Lechmere v. Earl of Carlisle, For. 80. See and consider Pennill v. Hallett, Ambl. 106.

(u) Smith v. Deacon, 3 Atk. 323.
(x) S. C.

annuity out of his personal estate, in a course of administration ; and if the same should not be sufficient, then out of the real estates of which he died seised in fee-simple, and if those should not be sufficient, then out of the real estates in settlement of which he was tenant in tail, provided such deficiencies did not exceed the amount of the dower which she would have been entitled to thereout, in case she had not accepted the annuity for her life, as aforesaid (y). Lord Thurlow, in a subsequent stage of the cause, said, that the Court had charged the real, in aid of the personal, by a very subtle equity, because, if she had not made a contract of forbearance of dower, the entailed estate would have been liable to her dower.

11. A man may of course covenant to settle an estate if the person with whom he has contracted for it can make a good title to it, limiting his responsibility to that contract, and reserving to himself, if a title cannot be made, the right to buy the estate from any other person for his own benefit; and a purchase under that reservation will not give any right, either at law or in equity, to the persons claiming under the settlement (z).

(y) Forster v. Forster, 3d Feb. 1787, MS. See 3 Bro. C. C. 490. Consider

now the operation of the 3 & 4 Will. 4, c. 105, supra, c. 11, s. 1.

(2) Doe v. Rowe, 4 Bing. N. C. 737.

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