bond, held, that the defendant, under the plea of payment with leave to give special matter in evidence agreeably to the act in that state, might show by parol evidence a misrepresentation on the part of the vendor as to the boundaries of the land; and the execution of such bond was no extinguishment of the fraud. Gibson, J. in delivering the judgment of the Court. "At the trial, the defendant was permitted to prove that while he was treating for the purchase, the plaintiff showed as the boundary, lines which are since found not to be so in fact, and that the lines designated in the conveyance, exclude land which was shown to him as part of the tract. In England such a plea would not be tolerated in a court of law, notwithstanding in Mr. Chitty's Treatise on Pleading, (vol. 2, p. 495), there is a precedent for it; but the better opinion is, that only that sort of fraud which is committed in the execution of the instrument, can be pleaded at law. Here, where equity is a part of the law, fraud is a defence in all cases. But in the conveyance to the defendant, the land is described by metes and bounds; and it is argued that the evidence contradicted the deed, by showing that the land was sold by other boundaries; and it is also contended that the declarations of the grantor having been made before the execution of the deed, were inadmissible, all former stipulations being merged in the act, which is the consummation of the contract. It is generally true, that the execution of a conveyance is the fulfilment of all previous bona fide stipulations, because such stipulations are liable to be varied whilst negotiations are pending, the writing which perpetuates the evidence, is supposed to contain the whole contract. But where a continued misapprehension of material facts has been induced on the part of one, by the misrepresentations of the other, it is obvious that the execution of the writing ought not to extinguish the right of the injured party to show the fraud by which his assent to the contract was obtained. This is a particular head of equitable relief; in affording which it is said a deed cannot be set aside in part for fraud; but that it must be set aside in toto, even though innocent persons are interested under it. In our practice, the defence is considered as resting on the ground of want of consideration as a consequence of the fraud; and the relief is then only commensurate with the actual want of consideration.

But, in general, where a bond is given for the purchase money of land, and, before payment, it is discovered, that there are incumbrances existing, the plaintiff cannot recover, without deducting the amount of the incumbrances, although he has made a conveyance to the defendant with general warranty; but, where the incumbrances, with all the circumstances attending them, are known both by vendor and vendee, and the vendee takes from the vendor à deed, warranting particularly against those in

cumbrances, and gives his bond for the purchase money, it is no defence in an action on the bond, to say, that the incumbrances were still existing. This was settled by the Court, Tilghman, C. J. in Fuhrman v. Loudon, 13 S. & R. 386, which was a case of legacies charged on the land.

In Morris v. Buckley, 11 S. & R. 168, where a scire facias was sued for the purpose of recovering the purchase money of land under a mortgage, which was claimed by another, whose title had been adjudged good as respected the mortgagor; held, that it was sufficient for the defendant to execute a release on receiving payment for the partial failure of title; and that there was no necessity to tender a conveyance.

(*)CHAPTER IV.

OF THE CONSEQUENCES OF THE CONTRACT.

-000

SECTION I.

Of the Rule in Equity, that the Purchaser is entitled to the Estate from the Time of the Contract.

EQUITY looks upon things agreed to be done, as actually performed (a), (I)(114); consequently, when a contract is made for sale of an estate, equity considers the vendor as a trustee for the purchaser of the estate sold(b), and the purchaser as a trustee of the purchase-money for the vendor(c).

Therefore the contract will not be discharged by the bankruptcy of either the vendor(d) or vendee(e), (11).

(a) Francis's Maxims, max. 13; 1 Trea. Eq. chap. 6, sec. 9. See Callaway v. Ward, 1 Ves. 318, cited.

(b) Atcherley v. Vernon, 10 Mod. 518; Davie v. Beardsham, 1 Cha. Ca. 39; and Lady Fohaine's case, cited ibid.; and see 1 Term Rep. 601; and Green v. Smith, 1 Atk. 572.

(c) Green v. Smith, ubi supra; Pollexfen v. Moore, 3 Atk. 272. (d) Orlebar v. Fletcher, 1 P. Wms. 737. The observation in Goodwin v. Lightbody, 1 Dan. 156, appears to be inaccurate.

(e) See 3 Ves. jun. 255; and Bowles v. Rogers, 6 Ves. jun. 95, n. ; Whitworth v. Davis, 1 Ves. & Bea 545.

(I) A lessee insured his house, the lease expired, and he contracted for a new lease. Then the house was burned, and the office insisted that at the time of burning it was not the plaintiff's house; but Lord Chancellor King, and afterwards the House of Lords, held otherwise. See printed cases, Dom. Proc. 1730.

(II) As to the effect of an extent subsequently to a contract, see Rex v. Snow, 1 Price, 220, cited.

(114) See Craig v. Leslie, 3 Wheat. 578.

(*)But an act of bankruptcy, upon which a commission has not issued, will prevent the execution of the agreement, as neither a buyer nor a seller can be assured that a commission may not issue in due time, in which case he could not retain the estate or money against the assignees (ƒ).

The Bankrupt Act, 6 Geo. 4(g), enacts, that if any bankrupt shall have entered into any agreement for the purchase of any estate or interest in land, the vendor thereof, or any person claiming under him, if the assignees of such bankrupt shall not (upon being thereto required) elect whether they will abide by and execute such agreement, or abandon the same, shall be entitled to apply by petition to the Lord Chancellor, who may thereupon order them to deliver up the said agreement, and the possession of the premises, to the vendor, or person claiming under him, or may make such other order therein as he shall think fit.

The death of the vendor or vendee before the conveyance(h) or surrender(i), or even before the time agreed upon for completing the contract, is in equity immaterial(k).

If the vendor die before payment of the purchasemoney, it will go to his executors, and form part of his assets(); and even if a vendor reserve the purchasemoney, payable as he shall appoint by an instrument,

(f) Lowes v. Lush, Franklin v. Lord Brownlow, 14 Ves. jun. 547,

550.

(g) c. 16, s. 76.

(h) Paul v. Wilkins, Toth. 106.

(i) Barker v. Hill, 2 Cha. Rep. 113.

(k) Winged v. Lefebury, 2 Eq. Ca. Abr. 32, pl. 43; cases cited ante, n. (b).

(1) Sikes v. Lister, 5 Vin. Abr. 541, pl. 28; Baden v. Earl of Pembroke, 2 Vern. 213; Bubb's case, 2 Freem. 38; Smith v. Hibbard, 2 Dick. 712; Foley v. Percival, 4 Bro. C. C. 419; and see Gilb. Lex Praetor. 243.

executed in a particular manner, and afterwards exercise (*)his power, the money will, as between his creditors and appointees, be assets(m).

If the estate is under a contract for sale at the date of the will, a devise of it to be sold for a charity, will not give the purchase-money to the charity, in consequence of the mortmain act, as it is called (n), although this point was in the first instance otherwise decided(o)(115).

A vendee being actually seised of the estate in contemplation of equity, must, as we shall hereafter see, bear any loss which may happen to the estate between the agreement and conveyance, and will be entitled to any benefit which may accrue to it in the interim(p); but if he obtain possession of the estate before he has paid the purchase-money, and begin to cut timber, equity will grant an injunction against him(q).

If the purchaser was tenant at will of the estate, the contract determines the tenancy. And even if he was tenant for a term certain, the agreement determines the relation of landlord and tenant, and in equity, at least, the landlord cannot call for rent(r).

It is a consequence of the same rule, that a purchaser may sell or charge the estate, before the conveyance is executed(s)(116); but a person claiming under him must

(m) Thompson v. Towne, 2 Vern. 319; 466.

(n) Harrison v. Harrison, 1 Russ. and Myl. 71; 1 Taunt. 273. (0) Middleton v. Spicer, 1 Bro. C. C. 201.

(p) See post, ch. 5.

(q) Crockford v. Alexander, 15 Ves. jun. 138. (r) Daniels v. Davison, 16 Ves. jun. 249.

(s) Seton v. Slade, 7 Ves. jun. 265; and see 1 Ves. jun. 352. Wood v. Griffith, 12 Feb. 1818.

Ball & Beat. 522.

Ves. 220; and 6
MS. see post. ; 2

(115) See Baptist Association v. Hart's Exrs. 4 Wheat. 1; and note I. of the appendix to the same volume, on the subject of charitable bequests, where the principal authorities relating to charities are collected. (116) See Barton v. Rushton, 4 Des. 373.