pointment, or anything else that would enable him to convey a fee simple free of all charges and incumbrances whatsoever, it would act upon that opinion as incontrovertibly right. The old course used to be, when a party was dissatisfied with the judgment of the court, to compel him either to do as the court required, or appeal to the House of Lords; not that, that opinion was decisive, but it gave a sanction to the title, which would probably operate to the security of the purchaser. And I believe that the first case in which the rule was departed from was that of Shapland v. Smith, and that the last case that went to the House of Lords, was one in which Mr. Morris, a King's Counsel, was plaintiff. The court since that time has almost gone the length of saying, that unless it was confident that if it had £95,000 (7) to lay out on such an occasion, it would not hesitate to trust its own money on the title, it will not compel a purchaser to take it."

One or two passages in these statements are clearly erroneous, for it is manifest from what has been already observed, that the practice did not change *in Lord Thurlow's time, but long previously. It may also be reasonably questioned whether, as suggested [ *16 ] by his Lordship, it was ever a common practice for the court to decide upon the title, and leave the purchaser to his remedy by appeal to the House of Lords, and the illustration which he has resorted to, does not help out his view of the case, because when it is "once ascertained that the vendor is tenant in tail, or tenant for life, with an absolute power of appointment, or any thing else which would enable him to convey the fee simple," there seems to be an end of all doubt as to the title, and therefore if there were an appeal it must have been on some other point than a question of title.(i) It seems also to be a fair deduction from the observations of Lord Eldon, which have been cited, that he had not formed a very clear conception of the reasons on which the doctrine of doubtful titles was founded; for if he had, it is scarcely conceivable that he should not have made some allusion to them, the topic being manifestly a favourite, and one on which he was *fond of recalling the *17 ] recollections of a former period. And so far from thinking it was in any degree dependent on the peculiar nature of equity jurisdiction, he simply appears to have regarded the change as in part arbitrary, and in part growing out of an increasing anxiety in the court to protect the purchaser.

In Biscoe v. Perkins,(k) Lord Eldon followed the old practice as above stated. The objection to the title in that case arose out of the question, "whether trustees to preserve contingent remainders joining in a recovery with the tenant for life and the first tenant in tail after he had attained twenty-one was a breach of trust," for if so the title was bad. Lord Eldon, although he considered the point not to be quite

(1) The amount of the purchase-money in the case then before the court. See Stuart v. The Marquis of Bute, 11 Ves. 666.

(i) It is difficult to understand the meaning of the expressions made use of by Lord Eldon, in Jervoise v. the Duke of Northumberland, to the effect that even the judgment of the House of Lords was not decisive, as to the question of title, but only gave a "sanction" to it, such as "would probably operate to the security of the purchaser," (1 Jac. & Walk. 568;) and in Vancouver v. Bliss," they appealed and had not a title absolutely, indefeasible, but as good a warranty as could be procured." (11 Ves. 465.)

(k) 1 Ves. & Bea. 485.

clear, refused to let the purchaser off, adding, "I shall compel him to take the title unless he will reverse my opinion; that was formerly the course, instead of letting off a purchaser upon a doubtful title; and the purchaser then went to the House of Lords."()

At common law, doubtful titles are unknown; there every title must be good or bad. In an *action by a vendor to recover [ *18 ] damages for breach of contract, it is no defence for the purchaser to throw a mere cloud on the title; unless he can show a clear defect, he cannot resist the action on this ground. The reason of this distinction between the practice of a court of equity and of law, may be easily collected from what has been already stated, for all defects must arise, either on a matter of fact or of law, as to both of which a court of common law, has jurisdiction to decide conclusively. Hence the imperfect jurisdiction, which has led to the doctrine of doubtful titles in equity, does not exist in a court of law. Cases indeed there are, extending from the time of Lord Kenyon to our own in which judges at common law are reported to have adopted the principles and the language of courts of equity on this subject,―refusing on the one hand to sustain the vendor's action for damages for breach of contract, and on the other permitting the purchaser to recover back his deposit,-in cases where a doubt could be thrown upon the title. (m) In all these cases, however, it is not going too far to say, that the courts have miscarried, *the judge [ *19 ] there having no discretion to shelter himself under a

doubt as to the law, but being bound by his oath, and by the very nature

(1) Ibid. 493. This point is now settled, it having been recently decided that it is no objection to a title, that it is founded on the destruction of contingent remainders. (Hasker v. Sutton, 2 Sim. & Stu. 513.)

(m) The following is a short precis of the cases previous to Curling v. Shuttleworth, (cited p. 20:)

Hartley v. Pehall (Peake's N. P. C. 178) was an action by the vendor to recover damages for breach of the contract: the purchaser resisted on the ground of a defective title, the question being, whether a certain covenant was or was not valid? Lord Kenyon refused to decide the point, saying "that be thought this a question of some nicety, but whether it was or not he thought it equally a defence to the action. When a man buys any commodity he expects to have a clear undisputable title, and not such a one as may be questionable at least in a court of law. No man is obliged to buy a law suit."

The same doctrine was recognised and acted upon in Wilde v. Fort, 4 Taunt. 341, where also it was held that the purchaser was entitled to recover his deposit, because it was doubtful whether a person under whom the vendors claimed was liable to account to the crown, and whether on the construction of a deed 30 years old, the wife of a party to that deed was barred of her dower; it was also held that the latter objection was not answered by evidence at the trial that the wife hath died previously to the contract of purchase, for though the title of the dowress had accrued 30 years back, it was not clear that it had then ceased.

So in Elliot v. Edwards, (3 Bos. & Pull. 181,) where a person having sold certain leasehold premises to B, and in the assignment was a proviso that B should not assign over till the whole of the purchase-money was paid, and B and C covenanted for themselves, their executors, administrators, and assigns, to pay the money. Before the money was paid, the premises were sold by the sheriff to D under an execution : D paid a deposit, and covenanted to pay the residue of the purchase-money on having good a title; it was held that the nonpayment of the purchase-money by B was a good objection to the title, and that D might recover his deposit in an action for money had and received. The principal question was, whether the covenant of B and C was merely a covenant in gross not running with the land, which was strongly insisted on behalf of the defendant, the auctioneer, or whether it created an equitable lien. Lord Alvanley, C. J., without giving any decided opinion, thought that it did create an equitable lien; and at all events he was of opinion that this was. a reasonable objection, and that the purchaser was therefore entitled to recover his deposit.

of *his authority, to determine all matters of law which are incident to the proper settlement of the question between [ *20 ] the litigating parties.

The true doctrine on this subject is stated by Sir V. Gibbs, C. J., in Romilly v. James, (n) where this learned Judge thus expresses himself:"It is said the plaintiff will have made out his claim to recover back his deposit if a cloud is cast upon the title. That is not so in a court of law; he must stand by the judgment of the court, as they find the title to be, whether good or bad; and if it be good in the judgment of a court of law, he cannot recover back his deposit. If he had gone into a court of equity, it might have been otherwise. I know a court of equity often says, this is a title which, though we think it available, is not one which we will compel an unwilling purchaser to take; but that distinction is not known in a court of law."

It would hardly seem to be necessary further to dwell on this point as respects the practice of courts of law, had it not been that the law, notwithstanding the very clear and forcible manner in which it is here laid down, was entirely misapprehended so recently as the case of Curling v. Shuttleworth.(o) This was an action by a purchaser to recover the deposit on the sale of a policy of insurance, under a power given to a mortgagee, and the purchaser objected to complete, on the ground of a doubt, whether the power under which the sale was effected,

*had not been extinguished or suspended by some subsequent [ *21 ]

dealings with the policy? It is plain that the only question the court had to consider was, whether the power was or was not extinguished or suspended, and so determine whether the vendor had or had not a good title? this plain and obvious course was not however adopted, the purchaser being allowed to recover his deposit, on the ground of there being so much doubt on the title, that he ought not to be compelled to accept it. Tindal, C. J., is reported to have said, "That where upon a sale there is such doubt upon the vendor's title as to render it probable the purchaser's right may become a matter of investigation, the court will not compel him to complete the purchase. Here, according to the conditions of sale, the policy was to be sold under a power. The vendors, therefore, should have shown an unquestionable power, for there are no means of calculating the compensation to be allowed in case of any mistake. Supposing the power to have been only suspended, there may be a candid doubt how far that suspension may be considered to operate in a court of equity; and if there be a reasonable degree of doubt, this court will not expect the purchaser to proceed." Mr. Justice Parke concurred in the same opinion, declaring that they "ought not to drive parties into a court of equity," (p) and Justice Burrough added, *“if there be reasonable doubt as to a title, we cannot compel a party to take it."

[ *22 ]

These opinions, obviously arising out of an imperfect, if not erroneous, view of the distinct and peculiar character of the jurisdiction at law and in equity, were soon corrected; for in Boyman v. Gutch, (q) which fol

(n) 6 Tauut. 274; 1 Marsh. 592.

(0) 3 J. B. Moo. 368. 6 Bing. 121.

(p) Quære, how the decision of a point of law could have the effect of driving the parties into a court of equity?

(q) 7 Bing. 379.

66 a

lowed shortly after, which was also an action by the purchaser to recover his deposit, the purchaser objecting that the vendor had no authority to sell the property in question, it was insisted on the behalf of the plaintiff, that it was at all events doubtful, whether he had such authority, and if so, that the court would not compel the purchaser to take a questionable title, and thus incur the hazard of purchasing a law-suit. Curling v. Shuttleworth, was strongly pressed, but in vain, the judges, admonished by a hint from the Court of King's Bench,(r) reverted to the sound practice, and did their duty, by determining the question of law, on which the doubt was raised:-"Whether," said the Chief Justice, court of equity would compel a purchaser to accept such a title is a question, which we are not called upon to determine. All that we profess to determine is, the construction of the deed, which appears to us to negative the allegation above set forth in the declaration." This decision brings back the common law doctrine to its true foundation, and has probably set at rest the class of cases which recognise the [ *23 ] existence of doubtful titles at common law. It is tolerably obvious, that the judges, in these cases, had suffered themselves to be misled by some fancied analogy to the rule in equity;-forgetting, apparently, on the one hand, that on questions of this kind the Lord Chancellor's jurisdiction is merely equitable, and that he has no authority to bind the parties upon a mere point of law; and, on the other, that the court in which they were sitting is the peculiar jurisdiction for such matters; and that they were themselves the depositaries of the law, and the proper and peculiar tribunal for the settlement of all new, litigated, or doubtful questions.

*

Hence then, as it appears that the reason, why doubtful titles are not recognised in courts of law, is because these are the proper and peculiar tribunals for the decision of all legal questions; and as the House of Lords has, in its appellant character, both a legal and equitable jurisdiction; and its decision on all points of law and equity submitted to its consideration are final and conclusive, and to be reversed only by an Act of Parliament, it would seem, that as a judicial tribunal subject to none of the infirmities of the court of chancery, and having all the powers incident to a court of law for binding the rights of parties, it would not be competent for the House of Lords, *to dismiss an appeal from [ *24 ] an order of the court of chancery on a question of title, merely because there was a doubt on the law; but that it ought to determine what the law is, and to affirm the decree or remit the cause accordingly. This, however, seems not to be so, it having been recently held, that where there is a reasonable doubt as to the title, it is competent for the House of Lords to dismiss the appeal.

This was decided in Blosse v. Clanmorris. (s) In that case the point was, Whether a reversion vested in the crown by forfeiture, and not by original grant, could be barred by a recovery? which Lord Eldon put to the House in this form,-"Whether the doctrine of law upon that point could be stated to be so clearly against the crown, that a purchaser ought to be compelled to take an estate with such a title? He said that the

(r) See what was said by Alderson, J., in Boyman v. Gutch, 7 Bing. 390. (s) 3 Bligh, 62.

law, as to estates tail, under the 34th Hen. VIII. was clear and settled, but not so with respect to such a reversion as now was in question; and that he could not advise the House, sitting as a court of equity in appeal, to hold a purchaser to a contract in a case where it could not be stated, as a matter free from doubt, whether the reversion had been barred by the recovery." Lord Redesdale, after adverting to the practice of divesting the reversion of the crown by Act of Parliament, to enable the tenant in tail to make an effectual recovery, as being important evidence

of the state of the law, proceeds thus:-" General opinion [ *25 ]

is certainly against the title. In this case it is not necessary

to come to any precise decision on the point. It is sufficient, on the question now before the House, if the law be doubtful. A purchaser has a right to require a marketable title; and this title, it must be admitted, rests on a point of law, which is at least doubtful."

It must be admitted to be a singular fact, that the highest judicial tribunal in the realm, the supreme court of appeal, the House of Lords, assisted by two Lord Chancellors, with power to call in the twelve judges of England for their opinion, should be unable to decide a simple point of law!

Notwithstanding this decision there is good reason for contending, on the grounds already stated, that the House of Lords ought to know nothing of doubtful titles,—its powers being co-extensive with the jurisdiction both of courts of law and equity. A judge sitting in equity may be excused for acting, on the indolent pretext that the title is doubtful; because if he decide, he decides on a question which is external to the proper business of his court, and his judgment is liable to be reversed by a tribunal to which such business properly belongs. The House of Lords can put in no such plea, because its decision cannot be exposed to such a risk, inasmuch as it finally and conclusively binds the rights of all the parties to the suit,-and constitutes part of the law of the land, till changed by an Act of the whole Legislature. It is therefore submitted, that the case of Blosse v. Clanmorris will not [ *26 ] afford a principle. It may perhaps be reasonably expected that the practice acted on in this case will not continue to prevail, prejudicial as it is to the parties, and derogatory to the wisdom and the authority of that high tribunal. A recurrence to the principles which have been here stated, and a more enlarged and comprehensive consideration of the subject may possibly lead to the re-establishment of a practice more congenial with the spirit of justice, and the due administration of the law.(1)

The doctrine then of marketable titles is purely equitable, and its

(t) That the notion which it has been here attempted to combat, had never entered into the mind of Lord Eldon, till a very late period of his judicial career, and when the peculiar habits of a court of equity may be presumed to have usurped an undue influence over his mind, can hardly be questioned, when we recur to the language he was in the habit of using on this subject. In speaking of the old practice (as he represents it) of the court below relying upon its own opinion, and then if the party was dissatisfied, leaving him either to acquiesce or go up to the House of Lords to have his opinion reversed, he, never for once suggests the possibility of their Lordships doubting upon the law; but seems to take it for granted that they would either affirm the repeal or remit the cause; that is to say, however doubtful the law might be, that they would decide the question submitted to them, either one way or the other.