1 Rose v. Cunynghame, 11 Ves. 550.

• Buckmaster v. Harrop, 7 Ves. 341.

• Whittaker v. Whittaker, 4 Bro. C. C. 31.

tract has been entered into for the sale of land, the vendor becomes a trustee of the land for the purchaser, and the purchaser a trustee of the money for the vendor. So that if the purchaser die before the contract is completed, he may devise the estate contracted for; or if he make no will, his heir at lawmay call for a conveyance of the estate to himself, and for the purchase-money to be paid to him out of the personalty: on the other hand, if the vendor die, his executors, or other personal representatives, may require the estate to be sold, and the produce applied, pursuant to the disposition of the personal estate, if he have made a will, or distributed among his next of kin, if he have not made one. In order, however, to constitute such conversion, there must have been a valid contr act, such as could have been enforced in equity at the death of the party whose heir, or personal representative, claims the benefit of it. And, therefore, where1, a purchaser made his will after the contract, in pursuance of which, he, after the date of his will, took a conveyance; yet it was held that the estate did not pass, in consequence of the contract not sufficiently evidencing the terms, and, therefore, not capable of being enforced in equity.

5. Contract enforced at the Suit of the Representatives of Vendor and Purchaser, when.]—When, therefore, the heir at law of a deceased purchaser, files his bill for a specific performance of the contract, the question is, whether at the death of the purchaser, a contract existed, by which he was bound, and which he could be compelled to perform; for it is that circumstance alone which gives the heir at law a right to call upon the executor to apply the personal estate in the completion of the purchase. It is perfectly immaterial that the vendor is ready and willing, and that the executors do not object to perform the contract, if the personal representative can shew that the vendor has no right to call for its performance 2. The same principle is equally applicable to the devisee, as to the heir at law, of the purchaser; and, consequently, if the vendor could not have enforced the contract as against the devisor,-whether this arise from delay, coupled with other circumstances which would have been a bar to a bill for specific performance against the purchaser at the period of his death3, or from the incompetency of the vendor to make a good title, or any of the other causes, which would prevent a court of equity from enforcing it,—the devisee is not entitled to have the benefit of the contract, and has no claim

upon

the

personal estate, either for the purchase-money, or to have another estate purchased, or to have the purchase completed notwithstanding a defect of title. It is clear that the right of the personal representatives of the vendor, to have the contract of sale completed, depends on exactly the same considerations; and that, if the purchaser could not at the time of the vendor's decease have enforced the contract against him, they will not be entitled to a sale.

W. 403.

Pritchard v. Ovey, 1 Jac. & Daniels v. Davison, 16

3. Some general Results of the Contract.]-The effect of a valid contract being, then, to convert the property, and to render the purchaser the owner of the land in equity, it follows that if the estate sustain any prejudice between the date of the contract and that of the conveyance, he must bear the loss, and that if any benefit accrue, he will be entitled to it. If the purchaser were in the occupation of the land, as tenant at will, at the date of the contract, the equitable ownership thereby acquired determines the tenancy 2; if he was possessed of a term, that term immediately becomes attendant upon the inheritance3; and if the purchaser had, previously to the date of the contract, made his will, disposing of all his personal estate, the contract, as to this term, operates as an implied revocation, and the legatees will not be entitled to it. And the relation of vendor and vendee, when ac- Ib. quired by conveyance of the inheritance, puts an end to the covenants, though ever so large and general, which existed between them as lessor and lessee 5.

The vendor, being then a trustee for the purchaser till the completion of the purchase by actual conveyance, if he die before it is completed, his heir at law becomes a trustee for the same purpose; or if, after the contract, he make his will, devising all his real estate to trustees, they hold the legal estate for the benefit of the purchaser 6.

SECT. 5.-OPTION TO PURCHASE.

1. Effect of an Option to purchase, | 2. Options to purchase strictly construed, 582.

581.

3

Ves. 252.

Capel v. Girdler, 9 Ves. 509

5 Paton v. Breb

ner, 1 Bligh, 69.

Wall v. Bright,

1 Jac. & Walk. 499.

1. Effect of an Option to purchase.]-The benefit of the contract will descend upon the heir-at-law of the purchaser, or the personal representative of the vendor, although the election to complete the contract rest only with one of the parties. This

was decided by Lord Kenyon in Lawes v. Bennett; that case, 1 14 Ves. 596. according to a note of Lord Eldon's1, was as follows:-“ A, de

Ib.

3 Townley v. Bedwell, 14 Ves. 591.

'Pike v. Northwood, 1 Beav. 152.

mised to D. for seven years, with a covenant, that if D. should, within the last four years of the term, choose to purchase the inheritance for 30007. he would convey accordingly. A. died within this period, no election having been then made by D.; and left all his real estate to B., and all his personal estate to B. and his sister, equally as tenants in common. Before the expiration of the four years, W., who had purchased the lease and the benefit of the agreement from D., called upon the devisee of the real estate to convey upon payment of 3000l. The bill was filed in 1781, by the husband of B.'s sister against the personal representative of B., the brother, claiming a moiety of the 3000l. and interest; and Lord Kenyon made the decree accordingly, observ ing, that, though A. could not have compelled D. to purchase, the money was, at the time of the election, declared to be considered as the personal estate of the testator, and did not belong to the devisee of the real estate." Lord Eldon, who does not appear to have entirely approved of this decision, observes, "That case was very much argued; and I do not mean to say that a great deal may not be urged against it2;" yet, nevertheless, he followed it in a case3 which was exactly the same in specie, say ing, that "where there is a decision exactly in point, it is better to follow it;" holding that, until the option was declared, the rents belonged to the heir-at-law of the vendor, but afterwards to the purchaser, who, from that time, must be charged with interest upon his purchase-money, which money and interest were personal estate of the testator, and went to his personal representative.

2. Options to purchase strictly construed.]-In another case, a tenant under a lease for two years, with an option to purchase the premises within that period, suffered the time to elapse, and then filed his bill for specific performance; the lessor insisted that his tenant had not availed himself of the option within the time limited, and that the contract had been abandoned, and proceeded to eject him. On a motion to stay the lessor's ejectment at law, the Master of the Rolls considered, from the subsequent conduct of the parties, that a contract for purchase still existed; but said that he would not grant the injunction, except on terms of the tenant undertaking to pay the rent without prejudice to any question in the cause.

1 Cookson v. Cookson, 8

Where A. and his son entered into a partnership for a term of years, which was carried on upon land, and by the articles it was provided, that, if either partner died or retired during the term, his co-partner might purchase his share at the sum stated to be its value in the last yearly accounts. The term expired, and they afterwards carried on the business until A.'s death, without entering into any new agreement; it was held, that the son's right of pre-emption expired with the term1. Where a testator devised a house " upon trust to permit my Sim. 529. son J., within three months after my decease, to become the purchaser for the same at or for the sum of £- and to sell and absolutely convey the same unto my said son, his heirs and assigns, or as he or they should direct; but should my said son not complete such purchase within three months from my decease," then the trustees were to sell by auction. The son, within two months of his father's death, declared to the trustees his intention to purchase at the sum mentioned; but no part of the purchase-money was paid by him, nor any conveyance executed to him within the three months. It was determined, that he could not enforce his option, inasmuch as the purchase could not be said to be completed where there was no conveyance on one side, and no payment of purchase-money on the other2.

• Dawson v. Dawson, 8 Sim. 346.

SECT. 6.-REMEDY AT LAW FOR BREACH OF CONTRACT.

1. Action for Damages by the Vendor.]-Where the purchaser refuses to complete, the vendor can bring his action for breach of contract; and if he have been guilty of no misconduct and produce a clear title, he will recover such damages as, under the circumstances of the case, he may appear to have sustained. In agreements for purchase, the intention of the parties must in

1 Baxter v. Lewis, For. Exch. Rep. 61.

general be, that the covenants to make a good title, and convey on the one side, and to pay the purchase-money on the other, shall be dependent; they are accordingly always so construed by the courts, in the absence of express stipulation to the contrary. At law, therefore, if either party wish to compel the other to observe the contract, or to recover from him damages for the breach of it, he first makes his part of the agreement precedent; for he cannot proceed against the other without having actually performed the contract, or done all that in him lay towards that purpose. According to the universal practice of the profession, recognised by the courts', the conveyance is, in the absence of express agreement, prepared by and at the expense of the purchaser; but, though this is clearly so settled, yet it is better that the question should not be raised; and accordingly it is always, except through accident or mistake, expressly provided by the agreement, that the conveyance shall be prepared by and at the expense of the purchaser; in which case it is clear, by the terms of the contract, that the vendor may file his bill or bring his action without tendering a conveyance 2: it has been decided even Kemp, 3 East, that where the agreement merely provides that the conveyance shall be at the expense of the purchaser; yet, under such a stipulation, he must also prepare the conveyance3. It follows, therefore, that in ordinary cases of contracts for sale of land, it is the duty of the vendor to make a good title, and execute, or offer to execute, the conveyance; it is the duty of the purchaser to tender a conveyance and the purchase-money. Hence, then, it is not necessary for the vendor, before he brings an action for the purchase-money, to tender a conveyance; it is sufficient that he has executed the conveyance, or offered to execute, unless the purchaser have discharged him from so doing4: so, on the other hand, a purchaser cannot maintain an action for his deposit, or damages otherwise Fielding, 2 H. sustained, without a previous tender of a conveyance and the purchase-money 5, except in the case of a naked refusal to proceed by the vendor.

• Hawkins v.

416.

Price v. Williams, 1 M. &

W. 6.

Jones v. Bar

clay, Doug.

684; Phillips v.

Bl. 123.

1 Esp. 191.

2. Action for Damages by the Purchaser.]-A person contracting to sell an estate undertakes two things,-first, to perform the contract; secondly, to make a good title. He is equally guilty of a breach of his undertaking, by expressly refusing to perform the contract, as by being unable to make a good title, or voluntarily placing himself in a situation which disables him from performing his agreement.