But if an estate is sold as copyhold, and represented as equal in value to freehold, it seems that the vendor will be compelled to perform the contract, although the estate (*)prove to be actually freehold (q). If, however, the contract for the sale of a supposed copyhold, stipulate that the sale shall be void if any part is freehold, the subject must be proved as described; and the circumstance of the seller himself, after the first contract, selling the estate to another as copyhold, is not conclusive evidence against him(r).

So it is said, that a purchaser of an existing lease is not bound to take a new lease instead of the old one, because the purchaser would become an original lessee, instead of an assignee; and might therefore be subject to burdens, to which he would not have been liable in the latter character(s).

It need hardly be observed, that if the estate be sold as in possession, the purchaser cannot be compelled to take it if it is subject to a lease for life(t), or indeed any lease.

If a vendee proceed in the treaty for purchase after he is acquainted with the nature of the tenure, and do not object to it, he will be bound to complete his contract, and cannot claim any compensation on account of the difference in value.

Thus, where an estate was sold as freehold, with a leasehold adjoining (u), and it turned out on examination

(q) Twining v. Morrice, 2 Bro. C. C. 326; and see Browne r. Fenton, sup. p. 3.

(r) Daniels v. Davison, 16 Ves. jun. 249.

(s) Mason v. Corder, 2 Marsh. 332.

(t) Collier v. Jenkins, 1 You. 295.

(u) Fordyce v. Ford, 4 Bro. C. C. 494; and see 6 Ves. jun. 670; 10 Ves. jun. 508; Burnell v. Brown, 1 Jac. & Walk. 168.

sidered as an authority, except on the ground of the price being unreasonable, for equity will in ordinary cases grant the vendor time to procure the fee. See infra, ch. 8.

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that sixty-two acres were leasehold, and only eight freehold; yet, as the purchaser proceeded in the treaty after he was in possession of this fact, and did not object to the nature of the property, he was held to have waved the objection.

(*) And if a purchaser do object to the tenure, yet, if he proceed in the treaty, it seems that he will be compelled to take the estate, on being allowed a compensation(x).

In the case of Wirdman v. Kent(y), upon a bill filed by vendors for a specific performance, it appeared that part of the lands sold to the purchaser had been previously sold to one Pavey; a specific performance was however decreed, and, as to the lands terriered to the defendant, but which had been sold to Pavey, that the plaintiffs should procure Pavey to release them to the defendant, or convey a like quantity of land of equal value to the defendant.

The particular circumstances of this case do not appear in the report; but it must be presumed, that the land sold to Pavey was not the object of the purchaser; and that other land in the neighborhood, of equal value, would suit him as well. Indeed, in one report of this case(z), it is said, that the grievances complained of were disregarded as frivolous.

To guard against the rules established by the foregoing decisions, an express declaration should be inserted in all agreements for purchase of estates, that if a title cannot be made to the whole estate, the purchaser shall not be bound to perform the contract pro tanto; and a similar provision should be made where an estate is bought free from tithes, or with any other collateral benefit, which the purchaser may wish to secure.

(x) See Calcraft v. Roebuck, 1 Ves. jun. 221.

(y) 1 Bro. C. C. 140.

(z) 2 Dick. 594.

There may be some rights in an estate not disclosed, which, although in themselves of small value, are incapable of compensation; for example, a right of sporting reserved over the estate, and not disclosed to the purchaser; for it would not perhaps be possible to estimate (*)what difference in value such a reservation made(a); and such a right would break in too much upon the enjoyment and ownership of a purchaser, to enable equity with propriety to compel him to take the estate with a compensation.

II. Having considered in what cases a vendor may compel a performance pro tanto of an agreement, which he is unable wholly to perform; we may now inquire in what instances a purchaser may insist upon a part performance of an agreement, which the vendor cannot execute in toto.

And first, it seems that in every case where an agreement would be in part executed in favor of a vendor, there is much greater reason to afford the aid of the Court at the suit of the purchaser, if he be desirous of taking the part to which a title can be made. And a purchaser may, in some cases, insist upon having the part of an estate to which a title is produced, although the vendor could not compel him to purchase it: it is true, generally, but not universally, that a purchaser may take what he can get, with compensation for what he cannot have(b).

Thus we have seen, that if tenants in common contract for the sale of their estate, and one of them die, the survivors cannot compel the purchaser to take their shares, unless he can obtain the shares of the deceased.

(a) Burnell v. Brown, 1 Jac. & Walk. 168.

But the

(b) 1 Ves. & Beam. 358, per Lord Eldon; Western v. Russell, 3 Ves. & Beam. 187; Wheatley v. Slade, 4 Sim. 126.

converse of this proposition does not hold; for the purchaser may compel the survivors to convey their shares, although the contract cannot be executed against the heir of the deceased (c). So even where a vendor has (*)not a title to a part of the estate, and consequently cannot enforce the acceptance of it, yet the purchaser may elect to take it with the title such as it is(d). But a purchaser has no such right where there is a stipulation that the contract shall be void if the purchaser's counsel is of opinion that a good title cannot be made to the estate(e).

If a man, having partial interests in an estate, chooses to enter into a contract, representing it, and agreeing to sell it, as his own, it is not competent to him afterwards to say, though he has valuable interests, he has not the entirety; and therefore the purchaser shall not have the benefit of the contract. For the person contracting under these circumstances is bound by the assertion in his contract and if the vendee chooses to take as much as he can have, he has a right to that, and an abatement(ƒ).

Therefore in a case where the estate was sold for twenty-one years, and represented as held under a church lease, usually renewed every seven years, and it appeared that the seller was only entitled for life to part; the purchaser filed a bill for a specific performance with a reduction. The seller insisted that the purchaser might have an option to put an end to the contract, but that he (the seller) ought not to be compelled to take less than the stipulated price. The decree, however, was for a specific performance, with a reduction of the purchase-money, the interest of the seller being less valuable than it had been repre

(c) Attorney-general v. Gower, 1 Ves. 218.

(d) Vide infra.

(e) Williams v. Edwards, 2 Sim. 78.

(f) Per Lord Eldon, 10 Ves. jun. 31, 516. The same doctrine was laid down by his Lordship in Wood v. Griffith, 12 Feb. 1818; and sce 2 Ves. jun. 439, acc. per Lord Rosslyn.

sented to the purchaser(g). Lord Eldon has since observed, that the consequence of this decision was, that if the lives should endure beyond the period of twenty-one years, the (*) purchaser would have the premises as well as the compensation. In that respect the case was new, and deserved great consideration. The Lord Chancellor added, that in a conversation which he had with the Master of the Rolls, they inclined to think it might be right upon this reasoning, that the estate was purchased subject to a contingency affecting its immediate value; he could not carry it to market, he could do nothing with it that would make it absolute property in him as if he had an absolute term of twenty-one years; but as the compensation might be aggravated enormously, beyond the actual value, so it might be much too small, and the Court would throw the chances together. The only other course was to adopt the principle of indemnity, either by taking security, or laying hold of part of the purchase-money, with a view to compensation if the case should arise, and that was open to this difficulty, that the property held subject to the question of indemnity remains unsaleable, unmarketable, and of infinitely less value than it would otherwise be.

In a later case(h), upon a sale of leasehold for lives, the representation of the seller was held to amount to this that the lessee thereof upon lives, under a church lease, granted the lease in question, with covenants, binding his real and personal representatives to procure renewals to make the complete term sold. It appeared, however, that the covenant to renew was limited, and not binding to the extent mentioned, the estate being in settlement, and the covenants not general. The purchaser filed a bill for a specific performance, with an allowance. In effect the difference was between a cove

(g) Dale v. Lister, 16 Ves. jun. 7, cited. (h) Milligan v. Cooke, 16 Ves. jun. 1.