growth and present condition is to be found in cases of [ *27 ] comparatively modern date, there not being half-a-dozen reported decisions upon the subject previous to the time of Lord Eldon. Whether it would not have been wise to have arrested the progress of such a doctrine,—a doctrine to which must be ascribed a great deal of the difficulties of modern conveyancing, and the difficulty and expense of investigating titles at the present day,-it is now too late to inquire. That no one perceived more clearly, or felt more strongly the various evils resulting from it, than Lord Eldon, is sufficiently manifest from the language he has on various occasions employed with reference to this subject and its collateral branches. (u) Yet with the fullest consciousness of *these evils, he made no attempt to suppress or remove [ *28 ] them; but went on from day to day, condemning the doctrine and lamenting its consequences, while he was strengthening its foundation, and extending in every direction new branches and ramifications of it. One of the first and most obvious results of this doctrine is, the minute and curious accuracy with which it has become necessary to investigate the title to real estate; it being the duty of the conveyancer, when advising upon the validity of a title on the behalf of a purchaser, to see that his client gets a marketable title,—that is to say, a title so free from every difficulty either as to matter of fact or law, that on a re-sale an unwilling purchaser shall be unable to raise any question, which may appear to a judge sitting in equity so doubtful, that a title [ *29 ] involving it ought not to be enforced. The only way for a practical lawyer to meet a doctrine like this, is by stating every objection, however apparently minute, or however unimportant he may deem it, because what may or may not appear to the individual who happens to preside over the court of equity, a "rational doubt," is obviously a thing so very vague and indefinite, that counsel having to advise on title can only discharge their duty by pointing out every objection, however trivial; by directing enquiries on every matter as to which there is the (u) Thus in Vancouver v. Bliss, (11 Ves. 464.) his Lordship thus expresses himself:"It appeared before the master, that this is not an abstract of such a title as this court will compel a purchaser to take. I am sorry to use that expression, recollecting a period when no such words were used; when it was the office of the court to decide, whether the title was good or not; and it was thought better, that the dry rule should prevail, that if the title was good, the purchaser should take it, than that the court should speculate on the point, whether there was more or less difficulty in the title, and say in one case he should take it, in another, he should not. The old course was, that if the parties were afraid of the decision, they appealed; and had, not a title absolutely indefeasible, but as good a warranty as could be procured. The departure from that course has been attended with great mischief. It is scarcely possible to represent the difficulties, that have arisen from it; especially in a period, when persons, under the description of land-jobbers, are going about looking for these things; and persons improvidently enter into contracts with them. Whenever a contract is made for the purchase of land, though no doubt has ever been entertained upon the title, no one thinking of disputing it, if the purchaser has a good bargain, he overlooks these objections; but, if he finds, he cannot sell the estate as well as he wished, or cannot enjoy it to his satisfaction, the first thing is, that the abstract goes to some one for the express purpose of finding out objections; and opinions are given on both sides. I feel great concern for the owners of this sort of property. The consequence is not only the misery arising from the uncertainty, whether that, which they have been enjoying with happiness, and upon which their families are to subsist, is their property; but it is an invitation to all, who fancy they may have an interest in it, to make an attack. There cannot be much doubt therefore, which is the best rule; but the course that now prevails, has been established so long, that I have not authority to alter it." barest probability that some defect might be discovered; by requiring the fullest satisfaction on all matters of legal construction, on which it is possible that two lawyers may think differently; and by calling for legal, or at least satisfactory, evidence, on every material fact, involved in the title for a period of sixty years at least. If, therefore, objections be frequently raised, and enquiries suggested on an Abstract which appear to be unnecessary, it should always be borne in mind that these objections and enquiries are suggested in order that the purchaser may have a marketable title, and if on these points an over-scrupulous degree of caution is sometimes manifested by counsel, this is not altogether to be ascribed to "the doubts" (v) of conveyancers, great Pyrrhonists' though they be, but partly also to those * high tribunals which have permitted trivial doubts to influ- [ *30 ] ence their decisions, and, according as they more or less prevailed, granting, or refusing the interposition of their high authority in the administration of that important branch of their jurisdiction which relates to the enforcing contracts for sale. From what has been stated, it will not be difficult to collect a general notion of what is understood by a marketable title, and by way of general definition, it may now be more particularly observed that in a court of equity "a title is unmarketable, when a fair and reasonable objection appears on the abstract, although the master report for the title, and although the opinion of the court may incline in its favour." What is such a fair and reasonable objection, as will induce the court to pronounce the title unmarketable, is purely a question for its own discretion,—a discretion which, even with the same judge, does not always lead to the same conclusion, as a very cursory review of the cases would abundantly testify, and which therefore when exercised by different judges, it may be reasonably presumed would lead to still greater diversities of decision. What in any given instance shall be enough of difficulty to induce the judge to doubt, will oftentimes depend less on the view he takes of the law than on his intellectual habits and mental constitution; on the state of his temper or the extent of his knowledge. The same *judge at different periods of his life, or in different states of health, and with precisely the same means of [ *31 ] coming to a just conclusion, would arrive at very different determinations. At one period, pregnant with energy he would not suffer his decision to be impeded by minor difficulties; at another time, sinking under the infirmities of age or ill health, he would be content to reach a point where a question could be fairly raised, and there sheltering himself under the rational doubt,' which his own fancy or infirmities had created, would dismiss the suitors from his presence, and release himself from the research and responsibility necessarily incident to a conclusive settlement of the question. (v) "In all cases where conveyancers have their doubts, and great Pyrrhonists they are." Per Lord Northington, Pelham v. Gregory, 1 Eden, 522. APRIL, 1838-C OF SUITS FOR THE SPECIFIC PERFORMANCE OF AGREEMENTS FOR THE SALE OF LAND. The object of this chapter is to bring together, and ascertain the present state of the law relative to suits for the specific performance of agreements for the sale of land. In doing so, it is proposed, first, to consider the effect of an agreement entered into for the sale of an estate,-second the origin and nature of the equitable jurisdiction for enforcing such agreement, then the mode of pleading such agreement,-the nature of the issues, or questions raised in the suit,-the principles on which they are determined,-the proceedings as to the reference of the title to the Master, on exceptions, and on further directions. SECTION I. Of the effect of an Agreement for the sale of Land. It being a general principle of equity, that what is agreed to be done for valuable consideration shall be considered as done, the consequence is, that after a contract has been entered into for the sale of [ *33 ] 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 be completed, he may devise the estate contracted for, or if he make no will his heir at law may call for a conveyance of the estate to himself, or 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, the contract must be valid, and such as can be enforced in equity at the death of the party whose heir or personal representative claims the benefit of it. And, therefore, in a recent case, (w) where 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. * 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 that alone can [ *34 ] give 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 show that the vendor has no right to call for its performance.(x) (w) Rose v. Cunynghame, 11 Ves. 550. As to the effect of the contract during the interval when the title is in dispute, see Ackland v. Gaisford, 2 Madd. 31. (x) Buckmaster v. Harrop, 7 Ves. 341. The same principle is equally applicable to the devisee, as to the heir-atlaw 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 death,(y) 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 the 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. *The effect of a valid contract being then to convert the [ *35 ] perty, 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.(z) If at the date of the contract the purchaser was in the occupation of the land, as tenant at will, the equitable ownership thereby acquired determines the tenancy; (a) if he was possessed of a term, that term immediately becomes attendant upon the inheritance; (b) 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.(c) And the relation of vendor and vendee when acquired 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.(d) * pro If a man has by will disposed of an estate, which he has contracted for, and afterwards takes a conveyance of the legal estate, it will, according to the recent decisions, depend upon the form of that conveyance, whether it shall, or shall not, operate as a revocation. If he simply clothe himself with the legal estate pursuant to [ *36 ] the terms of the contract, this will be no revocation; if the contract merely stipulate that the lands shall be conveyed to the purchaser in fee, and he takes a conveyance to uses to bar dower, this is a revocation: this point was so decided in Rawlins v. Burgess, (e) where the question is thus argued by Sir Thomas Plumer: "This contract, under which the devisor became equitable owner of the estate, and was to have a good estate in fee simple conveyed to him in the following September, is silent as to the form of the conveyance, except by those general terms. The conveyance, therefore, which this court would have directed must have been of a pure unqualified estate in fee; the contract pointing at nothing else. If the vendor had tendered (y) Whittaker v. Whittaker, 4 Bro. C. C. 31. (z) Paine v. Meller, 6 Ves. 349; Harford v. Purrier, 1 Madd. 532; Revel v. Hussey, 2 B. & B. 280. (a) Daniels v. Davison, 16 Ves. 252. (c) Ibid. (e) 2 Ves. & Bea, 387. (b) Capel v. Girdler, 9 Ves. 509. * this conveyance the purchaser would not have been bound to accept it; but might have objected that the estate was modified in a manner different from his contract. If, then, a conveyance in fee would have been a good execution of the contract, can this be so? Can an estate thus modified by the introduction of a power of appointment to be executed only before two witnesses and a trustee interposed, be represented as the same estate, a mere substitution of the legal for the equitable right, and therefore no revocation, when the very slight alteration of [ *37 ] the devisor's disposing power in Tickner v. Tickner,(ƒ) had that effect? "The argument that the beneficial interest remained the same, would overturn that case. The conclusion must be that there was some object beyond the mere completion of the contract by taking the legal estate; the case, in that respect, resembling Brydyes v. the Duchess of Chandos,(g) and differing from Williams v. Owens. (h) The consequence is that the estate when the purchaser died, was changed, it was no longer the same that he had by the contract; and, consistently with all the authorities, the effect is a revocation." It must be admitted, that the distinction here taken is very fine, and yet, though this decision has not given entire satisfastion, it seems difficult to find any solid reason for impeaching it. In order to avoid the consequence of this doctrine the agreement should always stipulate that the conveyance shall be made to the purchaser in fee, or to such uses as he shall appoint, which would clearly include the case of a conveyance to uses to bar dower. The vendor, it has been seen, is a trustee for the purchaser till the completion of the purchase by actual conveyance; if he die before it be completed his heir-at-law becomes a trustee for the same [ *38 ] purpose; *but if, after the contract, he make his will, dispos ing of all his real estate, a question of great difficulty sometimes arises, whether the legal interest in the estate contracted to be sold, passes to the devisee, or descends upon the heir-at-law. In cases of naked trusts, the rule is now well settled, that under a general devise, a trust or mortgaged estate will not pass, if an intent appear to treat it in a manner inconsistent with the nature of trust property. (2) It would probably have been a very convenient decision to have held that the same rule applied to vendors, as constructive trustees for the purchaser, although it must be admitted that the constructive trusteeship of a vendor, and an actual trusteeship, are, in many respects, materially different. The way of reasoning with respect to a trust estate has been this;that, the party having no beneficial interest, it can hardly be considered his for the purpose of disposition; he, has no right to dispose of it, except by the direction of his cestui que trust, or for the objects for which it was entrusted to him; and, therefore, when he makes a devise inconsistent with the trust, to suppose he meant it to pass, is to suppose that he was taking upon himself an act of injustice, which the court will not presume, and therefore says, that he did not mean to include it, and, consequently, that it descends upon the heir-at-law. The same |