11 Russ & 3 Sim. 29. for a reference to the Master, to see if he could make a good title, insisting that the devisees were trustees for him, to which the purchaser objected. The reference was granted, the court saying, that it should have great difficulty, after a decree, in allowing the plaintiff to bring new parties before the court; but, as time had been allowed to get an act of Parliament, the court thought itself bound to grant a reference. If the Master was of opinion that the devisees were trustees for the vendor, he would report in favor of the title; but, if he was of opinion that a suit was necessary to try their rights, he would report against it. The rule established by these authorities seems to be this, that, if the vendor can before the decree on further directions complete the title, or shew at the hearing on further directions that he is then in a situation to perfect it, without the necessity of resorting to a new suit, the court will allow him to do so, and not let the purchaser off. So, where the sale is under the decree of the court, in which case the question does not come on upon further directions, but upon a special motion subsequent to the Master's report, which would be analogous to the hearing on further directions; it seems in general that, although the Master have reported against the title; yet if the vendor under the decree be in a situation to make it good before the purchaser brings on his motion to be discharged from the purchase, the court will refer it back to the Master to review his report. In order, however, to entitle the vendor to this favour, his conduct must be characterized by perfect good faith; for if he have been guilty of any misrepresentation or concealment, as to the state of the title, or vexatious or needless delay in perfecting it, he will not be entitled to such indulgence; but, in the case of a suit for specific performance, his bill will be dismissed; and in the case of a sale under a decree of the court, the purchaser will be discharged from his purchase, notwithstanding the vendor may in the meantime have put himself in a situation to perfect, or even have actually perfected his title. The latter branch of the proposition is illustrated by the recent case of Dalby v. Pullen1. There, Sir Robert Wigram having been My. 296; S. C. declared the purchaser of certain lots, it appeared on the abstract being delivered to him, that part of the property which he had bought was derived from J. C., and that it had been conveyed to him subsequently to the date of his will; so that it would not pass to N. C., his devisee, under the trusts of whose will the sales in question were ordered by the court. Sir Robert Wigram, therefore, required proof that N. C. was the heir of J. C. Statements were made by the solicitor of the plaintiffs, which appeared to be satisfactory, and some other objections to the title having been removed, the report of Sir Robert being the purchaser was confirmed, and the purchase-money paid into court. Before any conveyance was executed, Sir Robert Wigram was informed, by persons who were not parties to the suit, that N. C. was not the heir of J. C. Search was accordingly made, and it was soon ascertained that N. C. was not the heir at law, but that there was living an heir of an elder brother deceased, who now claimed to be entitled to the after-purchased lands. In this state of circumstances an order was made referring back the title to the Master; he reported against it, and to his report exceptions were taken. Pending the exceptions, the heir-at-law executed a release and conveyance of all his interest. Shortly afterwards the exceptions were argued and over-ruled, and as soon as they were disposed of, two motions were made; one by the purchaser to be discharged from his purchase, and the other by the plaintiffs, that it might be referred back to the Master to review his report, and inquire whether the vendors could now shew a good title. There were further affidavits, the effect of which, on the whole, went to shew that the plaintiff's solicitor had been guilty of some degree of concealment of his knowledge as to the heir-at-law of John Carter and on these affidavits the Vice-Chancellor granted Sir R. Wigram's motion, and refused the other with costs1. 13 Sim. 29. From this order there was an appeal to the Lord Chancellor. There were two questions: first, whether all the parties to the suit were to be bound by the conduct of Mr. Street, the plaintiff's solicitor; and Lord Lyndhurst was clearly of opinion "that with reference to the purchase and sale, he must be considered to be acting for all the parties in the cause," and that, to decide that he was not, and on such a ground to hold the purchaser to his contract, might lead to the greatest hardship and injustice as respected the purchaser; and the court being of opinion upon the affidavits that Mr. Street had discovered that Mr. Nicholas was not the heir at law during the discussion as to the title, proceeded thus: "Now, Mr. Street, having represented in the first instance that N. C. was the heir at law of his brother John, and having during the progress of the discussion on the other points, discovered, that, in that respect he was mistaken, and that another per son was the heir at law, it was his duty, in fair and honest dealing, to have communicated that circumstance to the purchaser; and he not having communicated that circumstance to the purchaser, and the purchaser having, after the other objections to the title had been cleared up, discovered it by accident, in consequence of a communication from another quarter, and this court having determined upon exceptions to the Master's report, that it constituted a good objection to the title; it appears to me quite impossible, that the parties in this suit, if they are bound by the acts of Mr. Street, have any equity to come into this court to say that a further reference should be directed to the Master for the purpose of ascertaining whether a good title can or not be now shewn; for it is quite obvious, that, if this discovery had not been made, the vendors would have forced the purchasers to have taken the title such as it was, knowing that defect to have existed in it, which has since been discovered. Under these circumstances it is quite impossible that the purchaser can be held to his contract; the application made on the part of the vendors must be dismissed with costs." SECT. 20.-PAYMENT OF PURCHASE-MONEY INTO COURT. 1. Principles on which Purchase-Mo ney is ordered into Court, 682. 2. Mere Possession does not in general entitle the Vendor to this Relief, 684. 3. Possession sufficient to entitle the Vendor to have the Money brought into Court, when, 684. 4. Purchaser exercising Acts of Ownership must pay in the Money, 684. 5. Purchaser not to pay in the Money where Delay occasioned by the Vendor, 685. 6. Purchaser has the Option to pay in the Purchase-Money or give up Possession, when, 686. 7. Receiver granted, when, 690. 8. Ne exeat Regno granted, when, 692. 9. Immaterial whether Possession be admitted by the Answer, 692. 10. Order to pay the Money into Court not made, in general, before An swer, 692. 1. Principles on which Purchase-Money is ordered into Court.] —Until a very recent period the purchaser was never called on to part with his purchase-money till the vendor was in a situation to make him a conveyance of the estate; and accordingly the conveyance, and the payment of the purchase-money, were always contemporaneous acts. A variety of circumstances combined, towards the termination of the late war, to render it necessary for a Court of equity to interpose, and take the money into its own cus tody in certain cases; although it could not then give the purchaser a conveyance of the estate. The principal cause was the great length of time to which it was possible for an unwilling or dishonest purchaser to protract the suit, and delay the completion of the contract. Purchases were made by land-jobbers, who had not the means of payment till they had resold; parties became purchasers, and afterwards, owing to some sudden change in the value of land or money, became desirous of getting rid of a bargain. fairly entered into; the purchaser got into possession, sometimes with, sometimes without, or even against, the consent of the owner, and, by means of a Chancery suit, frequently kept the owner out of both his estate and the money for a long series of years, a course of proceeding always unjust, and frequently ruinous to the vendor. For the purpose of checking this species of injustice, Lord Eldon introduced the practice of ordering the purchase-money into court, or granting a ne exeat regno, or setting an occupation rent according to the exigency of the case; the object being, on the one hand, to deprive the purchaser of all motive for needless delay, and on the other, to protect the interests of the vendor. The principles on which the court acts in cases of this description, appear to be reducible to these considerations:-That to entitle the vendor to call on the purchaser to pay his money into court, it must be quite clear, that the vendor will be ultimately entitled to a decree; and in such cases the purchase-money is ordered into court on the ground of its being an equitable debt; or it must be apparent, from the situation or conduct of the purchaser, that the money is not secure in his hands, and then the court orders the money to be paid in for safe custody, and to abide the event of the suit. To the former class of cases belong those in which a purchaser in possession has cut timber,-pulled down or made alterations in the buildings, -entered into agreements for sale,or done other acts of ownership, from which the court infers that he has accepted the title. The other class of cases depends on different principles, and gives rise to more varied forms of relief,-because in them the object being to protect the vendor, this may effectually done by other means than ordering in the purchase-money. It is a strong measure to order in the purchase-money, when it is not clear that the sale must be ultimately completed; and therefore the court in such cases will adopt other expedients if they will be equally effective. The justice of 'Clarke v. Elliott, 1 Madd. 608; Morgan v. Shaw, 2 Mer. 140. 1 Madd. 83. 15 Ves. 316. • Blackburn v. Stace, 6 Madd. 69. the case may probably be satisfied by ordering the purchaser to elect between giving up possession and paying in the money,by ordering him to pay an occupation rent, to be fixed by the Master, unless the parties can agree as to its amount,-by appointing a receiver and reserving or not, according to the exigency of the case, whether this shall be at the expense of the vendor or purchaser, or by granting a writ of ne exeat regno, when the vendor is likely to be prejudiced by the purchaser leaving the country, with a view to a permanent residence in foreign parts. 2. Mere Possession does not in general entitle the Vendor to this Relief.]-In general mere possession by the purchaser under the contract, or consistently with it, does not entitle the vendor to have the purchase-money paid into court1; this, as we have seen, not being per se an acceptance of the title. Expressions do, indeed, frequently occur to the effect, that a purchaser cannot retain both the land and his money; as in Smith v. Lloyd2, Sir T. Plumer is reported to say, "The vendor in possession, objecting to the title, must either pay the purchase-money into court, or give up possession," principally, however, on the authority of Clarke v. Wilson3, where similar language is used; but the true principle of the doctrine, was not then very clearly understood, and both these cases appear to have passed off without much discussion. Such expressions must always be considered with reference to the circumstances of each case where they are found; for there are many cases in which the court will leave a purchaser in possession of both the land and the money; as when he enters on the premises under the express terms of the agreement, or by the consent of the vendor, and has not been guilty of any misconduct in delaying the completion of the contract, or in dealing improperly with the estate. 3. Possession sufficient to entitle the Vendor to have the Money brought into Court, when.]-There is, however, a class of cases in which possession alone, independently of improper dealing with the estate, will be sufficient to induce the court to order in the purchase-money. These are-1st, Where the possession has been obtained against the consent of the vendor, or without his privity*. 2ndly, Where the sale is under a decree of the court, and the purchaser takes possession; unless he entered with the express consent of the court, he will be ordered to pay in his money. 4. Purchaser exercising Acts of Ownership must pay in the Money.]-Where the purchaser is in possession and exercising |