4. As to the agreement, how affected by parol evidence, p. 451.
Parol evidence inadmissible to vary contract, 451-how far admissible to explain,
451, to 453.
5. Production of agreement, when compelled, p. 453.
6. Grounds of defence at Law, the agreement being admitted, p. 454.
Original invalidity of contract, 454—or subsequent waiver, ib.— -or release, 455—or
satisfaction, ib.-or Statute of Limitations, ib.
7. Action, when restrained in Equity, p. 455.
8. General matters relating to the action, p. 456.
Particulars of claim, 456-time is at Law essential, ib.-equitable objections to
title, a defence, 457.
AS TO SPECIFIC PERFORMANCE.
1. Matters relating to the jurisdiction generally, p. 458.
Specific performance, the only remedy in Equity, 458, 459-Court of Bankruptey
cannot enforce, semble, 459-on what principle decreed, ib.-vendor may sue
for purchase-money in Equity, why, 459, 460-existence of remedy by manda-
mus, whether a bar, 460-plaintiff cannot proceed at once at Law and in
Equity, ib.-Specific performance, when decreed, although contract may vest
estate in purchaser, 460, 461.
2. By whom specific performance will be enforced, p. 461.
At suit of purchaser or his representatives in interest, 461-or of vendor or his re-
presentatives in interest, ib.
3. Against whom specific performance will be enforced, p. 462.
Against vendor and parties claiming under him by subsequent title (except pur-
chasers without notice, 462—or under prior title, which he might have displaced
by conveyance, ib.-contract for sale of married woman's estate, 463-of her
chattels real, 464-whether she may adopt husband's contract, ib.-vendor's
contract not enforced against parties claiming under prior absolute title, ib.-
purchaser's contract enforced against himself and his representatives, 464, 465—
against separate estate of married woman, 465.
4. As to the parties to the suit, p. 465.
Parties to contract, in general, sole necessary parties to suit, 465-purchaser can-
not join, as co-defendants, receiver or steward, ib.—or parties claiming adverse
interests prior to the contract, 465, 466-person interested in contract and bound
to convey not a necessary party to vendor's bill, 466—persons having adverse,
inconsistent, or no rights, cannot join vendor as co-plaintiffs, ib.-but may be
defendants (semble,) 467-purchaser of one lot, when a necessary party to sue
in respect of another lot, ib.-agent, or auctioneer, when to be a party, 467,
468-death of vendor, who then may sue, and who are proper parties, 468-to
purchaser's suit, 469-alienation of vendor's interest by act inter vivos, who are
proper parties, ib.-death of purchaser, who then may sue, and who are proper
parties, 469, 470-to vendor's suit, 470-alienation of purchaser's interest by
act inter vivos, who are proper parties, ib.
Suit may be commenced by bill or claim, 470-form of bill, 471-need not allege
signature, &c., ib.-letters, how to be referred to, ib.-inferences of law, whether
to be stated, ib.-waiver relied on should be alleged, ib.—and facts supporting
it stated, 471, 472—prayer for general relief, what to be obtained under, 472.
6. As to proceeding by claim under the Orders of April, 1850, p. 473.
Ordinary claim, 473-special claim, ib.-writ of summons, ib.-who to be named
defendant, 473, 474-showing cause, ib.-hearing, and order thereon, ib.--effects
of order, ib.-Court at hearing may direct bill to be filed, ib.-form of order,
475-plaintiff may proceed by bill; when, ib.—extra costs occasioned by bill,
ib.-in what cases orders apply, ib.
7. As to how the plaintiff's case may be sustained in the absence of a written agree-
ment,-fraud, part-performance, admission by defendant of parol agreement, parol
variation of written agreement, p. 476.
Written agreement dispensed with, 476-on the ground of, 1st, fraud, 477—
2nd, part performance, what acts of, sufficient, 477—or insufficient, 478-expen-
diture by tenant, 479-verbal notice and retention of possession by tenant, held
to be a sufficient declaration of option to purchase, 480-case of mere acquies-
cence in heavy expenditure and no agreement, ib.—plaintiff, how far bound to
show precise terms of contract, 481-immaterial terms, though stated, need not
be proved, ib.-material terms must ultimately be clearly shown, ib.—act by
defendant, merely to his own prejudice, no part performance, 482—nor does part
performance as to one lot affect another lot, ib.-sales by auction and in bank-
ruptcy are within the statute, ib.—3rd, admission of agreement, and statute not
insisted on, ib.—purchaser cannot in general enforce specific performance of
written contract with parol variation, 483-subsequent parol variation enforcible
only if part performed, ib.
8. As to grounds of defence negativing plaintiff's right to specific performance, ex-
cept with a variation of the original written agreement; viz., fraud, mistake, mis-
representation, unfulfilled promise, parol variation, &c., p. 484.
1st, Fraud, or mistake, affecting the terms of the agreement, 484-2ndly, fraud,
mistake, or surprise, inducing defendant to enter into agreement, misapprehend-
ing its effect, 484, 485-mere suspicion of fraud insufficient, ib.-3rdly, misre-
presentation or unfulfilled promise, inducing defendant to enter into agreement,
knowing its terms and effect, 485, 486—parol addition, when admissible, 487—
stipulation omitted by consent, no defence, 488-4th, subsequent parol variation
part performed, ib.
9. As to grounds of defence negativing in toto plaintiff's right to specific performance;
viz., personal incapacity; nature of contract, or fraud, &c. &c. attending its execu-
tion; matters relating to the estate, tille, or consideration; plaintiff's conduct, &c.,
after contract; election of other remedy, p. 488.
1st, Personal incapacity to contract on part of defendant, 489-intoxication, ib.—
personal incapacity on part of plaintiff, how far a defence, ib.—2nd, matters re-
lating to the contract, &c.; illegality, 490-impolicy, ib.-breach of trust, ib.—
improvident contract by agent, 491-hardship, ib.-fraud, mistake, surprise,
misrepresentation, or concealment, 492-fraud of third person, when immate-
rial, 493—want of mutuality of remedy, whether a defence, 493 to 495-nomi-
nal contractor, 496-insertion of penalty no defence, ib.—inabiliiy to recover
damages at Law, how far a defence, ib.—3rd, matters relating to the estate
original defects in, 497-public nuisance, ib.-destruction of estate, 498-4th,
matters relating to the title; want of, considered as a vendor's defence, ib.-
vendor must convey part of estate with abatement, 499 to 501-must convey
partial interest with an abatement, when, 501 to 503-indemnity, 503-vendor's
and purchaser's rights as to abatement, not reciprocal, ib.-purchaser's right to,
how lost, ib.-vendor, how far bound to make good interest contracted for out of
his own higher interest, 504-want of title, where a defence for purchaser de-
clining abatement, 501-where estate is of different tenure, ib.—or is held in a
different manner, ib.—or no title is shown to the same extent of interest as he
contracted for, 404, 405-or no tltle is shown to a material part of estate, 505-
or incumbrances or liabilities exist which would affect its enjoyment, 506-or
matters exist which increase his proposed liability, ib.—or affect the enjoyment
of material part of property, 507-defect in title to one of several lots, ib.-bene-
fit of defence, how lost to purchaser, 508-defects in title which are not a pur-
chaser's defence, ib.-limited instead of unlimited right of common, ib.-small
quit-rents, &c., ib.—tithes, when freedom from tithe was no part of inducement,
508, 509-existence of footway, 509-5th, matters relating to consideration, 510—
inadequacy of, when a vendor's defence, ib.-sale by auction, ib.-sale of unas-
certained interest, 511-consideration uncertain in amount, whether question of
inadequacy thereby excluded, ib.-reversionary interests, 512—failure of con-
tingent consideration, ib.-excess of purchase-money, when a purchaser's de-
fence, ib.-6th, conduct of plaintiff after contract, when a defence, 513-release,
waiver of, or delay to enforce the contract, 514--what delay in filing bill a de-
fence, ib.-conduct of plaintiff, waste of estate, 515-ejectment of purchaser
rightfully in possession, ib.-inability of vendor to perform material stipulation
under contract, 515, 516-election of remedy, action brought and damages re-
covered, 516.
10. As to the proceedings in the suit; viz., payment of purchase-money into Court,
reference of title and proceedings thereon, decree for plaintiff, conveyance, decree
dismissing bill, p. 516.
Purchaser in possession, when ordered to pay purchase-money into Court, 516-
allowed to elect either to pay or vacate possession, 517-quantity of land taken,
when uncertain, no order made, ib.-under special circumstances, receiver ap-
pointed, 517, 518—or occupation-rent set on estate, 518-vendor-plaintiff seek-
ing injunction, when obliged to pay in deposit, ib.-injunction against waste by
purchaser in possession, ib.—against exercise by vendor of his legal rights, ib.
-reference of title, on motion before hearing, 519-unless contract resisted on
grounds other than title, ib.-frivolous defence, 520-objections to title, what
are, ib.-order refused on ground of delay, 521-or waiver of title, ib.—condi-
tional acceptance, ib.—order, subject-matter and form of, ib.-in suit commen-
ced by claim, 522-proceedings on reference, 522, 523-purchaser need not ac-
cept doubtful or merely equitable title, 523-or consent to a case being sent to
Law, ib.-
—as to doubtful titles, 524, 525-pendency of adverse suit, 525-adverse
right not likely to be enforced, 526-outstanding interest, 527-report in favor
of title and no exception, decree for plaintiff unless new matter appears, 528-
exceptions taken; cause should also be set down on further directions, ib.-if
exceptions allowed, a fresh reference will be directed at vendor's request, ib.—
otherwise bill is dismissed, 529-exceptions overruled; purchaser how far pre-
cluded from other objections, ib.-report against title and no exceptions, bill dis-
missed on motion, 530-exceptions taken and allowed; reference back, when
directed, ib.-if no exceptions, decree will be made on hearing, if vendor can
then remove objections, ib.-removal of objections, an answer to purchaser's
motion to be discharged, 531-purchaser's general right to reference of title,
how waived, ib.-purchaser, after great delay, not forced to take clearly bad
title, ib.-decree for specific performance, its form, 532-plaintiff may take a
decree adopting parol variation proved by defendant's agent, ib.-may elect to
take defective title, 533-decree for specific performance no bar to adverse
claims, ib.-plaintiff not allowed to take decree according to that construction
of agreement which he had repudiated, ib.-defendant may take decree with pa-
rol variations of written contract offered by purchaser's bill, 534-parol varia-
tion proved by defendant, no decree for plaintiff, but defendant may take decree
without cross bill, ib.-decree should direct accounts, &c., ib.-decree, in ven-
dor's suit, may direct re-sale, and payment of the deficiency by purchaser, ib.—
as to conveyance being settled by Master, 535-course of proceeding, 536, 537—
conveyance under the Trustee Act, 1850, ib.-under 1 Will. IV. c. 65, in case of
lunatic vendor, ib.-how to be obtained when party refuses to convey, ib.-in-
terest on money refunded on appeal, not generally allowed, 538-decree dismiss-
ing vendor's bill, return of deposit when ordered, ib.
Costs, unsuccessful litigant generally pays, 539-cases where general rule is al-
lowed to operate, 540-cases where it is enforced with more than ordinary strin-
gency, 541-cases where it is modified so as to deprive successful litigant of
costs wholly or in part, ib.-cases where, in contravention of general rule, suc-
cessful litigant is made to pay costs, 543-costs, when defendant submits to
plaintiff's demand, 545-when defendant disclaiming is entitled to costs, 546-
possession, how far important, ib.—deposit not set off against costs, 547-costs
of case sent to Law, ib.-costs of action at Law, ib--no interest payable on costs
refunded, 548.
AS TO SALES BY THE COURT OF CHANCERY.
1. As to the time for, conduct of, and manner of the sale, p. 549.
Sale is usually by auction, but may be by private contract, 549-when made in
administration suit, ib.-may be made under 3 & 4 Will. IV. c. 104, in suit by
person claiming under will, 550-in suits commenced by claim, ib.-who may
bid at, ib.—who conducts, 551-Court, executing trust, cannot anticipate time
thereby fixed for sale, ib.-sale may be in town or country, ib.-relative duties
of vendors and purchasers prior to, 552—particulars and conditions; prepara-
tion, allowance, and nature thereof, ib.—payment of deposit, arrangement re-
specting, 553-advertisements, ib.—expenses, ib.—highest bidding by a person
incompetent, or of insufficient means, 553—bidding after estate bought in, 554
-resale of lots remaining unsold, ib.
2. As to the rights and liabilities of the highest bidder after the sale, but before confirma-
tion of the Master's report, and as to opening bidding, p. 554.
Highest bidder not the purchaser until Master's report confirmed; his rights in
the interim, 554-death of, before confirmation, contract cannot be enforced
against representatives without suit, 555-sub-sale at profit before confirmation,
is for the benefit of the estate, ib.-until confirmation, biddings may be opened
on sufficient advance in price, ib.-what advance sufficient, 556-several lots
557-course of proceeding, ib.-deposit required, 558-first purchaser to be paid
interest and costs, ib.-biddings may be re-opened on neglect to pay in deposit.
ib.—resale, ib.—first purchaser discharged by order opening biddings, 559-per-
son opening biddings, if outbid at resale, is prima facie discharged, ib.—when
entitled to costs, ib.-opening biddings in fictitious name, ib.
3. As to confirming the Master's report of the purchase, and as to the purchaser's
rights and liabilities after confirmation, p. 559.
How purchaser can confirm Master's report, 559-after confirmation, he is prima
facie entitled to estate, 560-may move to pay in his purchase-money, or to dis-
charge incumbrances, 561-substitution of purchaser, ib.
4. As to the investigation of the title, payment and application of purchase-money, pos-
session, and preparation and execution of the conveyance, p. 562.
Abstract, and title, 562-costs of reference, ib.-purchase-money may, under spe-
cial circumstances, be paid in without accepting title, 564—as to its application
and distribution, ib.-where the estate is encumbered, 565-if invested at pur-
chaser's request, he takes proceeds of investment, if contract rescinded, 566—is
entitled to possession, when, ib.-on purchase of life interest or life annuity,
567-as to the abstract, &c., ib.-conveyance, when to be settled by Master, ib.
-executor of lessee entitled to indemnity from purchaser of leaseholds, ib.-
purchaser may require concurrence of all necessary parties, 568—who are such,
ib.-party refusing may be ordered to convey, ib.-against whom order will be
made, ib.-party refusing may be declared a trustee, 569.
5. Purchaser's rights after completion, p. 569.
Purchaser, after conveyance executed, may claim deeds, 569—as to attested copies,
570-will be protected against all parties to the suit, ib.-unless Court ex-
ceeded its jurisdiction, ib.-allowed compensation for misdescription of estate,
571.
6. The practice when the purchaser fails to complete, p. 571.
Course to be adopted if purchaser refuse to complete, 571-if supposed to be irre-
sponsible, 572-if supposed to be responsible, ib.-purchaser, whether allowed
to forfeit deposit and abandon contract, 573.
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