reasoning applies to some extent to the constructive trusteeship of a vendor. The contract to sell is, in equity, a [ *39 ] disposition of the estate and a parting with his right and dominion over it. Therefore to suppose him intentionally to devise, for purposes of his own, that which he cannot so dispose of, is open, in some measure, to the same objections as apply to the case of a naked trustee. There is, however, this distinction between the two cases; that the one never had more than the legal estate; the other at one time had both the legal and equitable ownership, and may have it again, if, owing to a defect of title or any other cause, the agreement should ultimately fail of being carried into effect. And, it is further to be observed, that though, for most purposes, the purchaser is, in equity, considered to be the owner of the estate, yet there are material qualifications to that proposition.(k) Thus, before payment of the purchase-money, he may be restrained from cutting timber;(1) he is not entitled to the possession unless stipulated for,the vendor has a right to retain the estate in the mean time, liable to account if the purchase be completed, but not otherwise. The ownership of the purchaser is inchoate and imperfect, it is in the course of passing to him, but it has not yet passed. Pending the suit for specific performance, very delicate questions may arise as to the equity of enforcing the contract; and, supposing these to be got over, it is settled that the vendor may complete the title while under investigation in the master's office and until the title is complete the purchaser is [ *40 ] not bound. Supposing, therefore, the vendor to make his will, pending these negotiations, by which he disposes of all his real estate, at a time when the estate contracted to be sold may be thrown back upon his hands, it would be a difficult thing to say that all the interest he had in this estate did not pass. It is obvious that until the completion of the contract he has an interest in this estate,-why then should not this interest pass in a devise affecting to dispose of all his real estate? This is a very different case from that of "a naked trustee without a remnant of property in the estate;" and the reason against supposing a trust estate to pass by the will, arising from the apparent fraud of such a disposition, clearly does not apply to a vendor who has an actual interest in the land until the completion of the contract, and who may, in fact, become again the complete owner in case that contract should not be completed.

Accordingly, in the late case of Wall v. Bright,(m) where a person had contracted to sell his estate, and afterwards before it was conveyed, before the purchase-money was wholly paid,(n) or the period arrived for the payment of the rest, while the purchaser was paying interest for it, and when the possession had not been given up, the vendor made his will, devising all his real estate to trustees to sell, Sir J. Leach, V. C., held, that the estate contracted to be sold passed [ *41 ] under this devise, and, consequently, that the devisees in trust were competent to convey the legal estate to the purchaser.

Perhaps it is not too much to say, that the doctrine in this case goes the length of establishing, that where a vendor makes a will, disposing

(k) Rawlins v. Burgis, 2 Ves. & ea. 387.

(1) Paine v. Meller, 6 Ves. 349.

(m) 1 Jac. & Walk. 499.

(n) That is, part being paid, and a considerable part, 9,000%. out of 10,000%, remaining

due.

of all his real estate, after having entered into such a contract, such interest as he had in the estate contracted to be sold passes to the devisees,, unless there be something in the terms of the devise which clearly shows the testator's intention to exempt that estate from the operation of his will.(0)

The benefit of the contract will descend upon the heir-at-law of the purchaser, or the personal representative of the vendor, although the election to complete the contract rest only with one of the parties. This was decided by Lord Kenyon in Lawes v. Bennett; that case, according to a note of Lord Eldon's, was as follows:-"A person named Witterwronge, in 1758, demised to Douglas for seven years, with a covenant, that if after the 29th September, 1761, and before the 29th September, 1765, Douglas should choose to purchase the inheritance for 3,000l. Witterwronge would convey accordingly. Witterwronge died in 1763, no election having been then made by Douglas; and left all his real estate to John Bennett, and all his personal estate to Bennett and his sister, equally as tenants in common. In 1765, before the 29th September, [ *42 ] Waller, who had purchased the lease and the benefit of the agreement from Douglas, called upon Bennett, the devisee of the real estate, to convey upon payment of £3,000. The bill was filled in 1781, by Lawes, the husband of Bennett's sister, against the personal representative of Bennett, the brother, claiming a moiety of the £3,000 and interest; and Lord Kenyon made the decree accordingly, observing that though Witterwronge could not have compelled Douglas to purchase, the money was at the time of the election, declared to be considered as the personal estate of the testator, and did not belong to the devisee of the real estate." Lord Eldon, though he does not appear to have entirely approved of this decision, (p) nevertheless he followed it in Townley v. Bedwell, (q) which was exactly the same in specie, saying, that "where there is a decision exactly in point, it is better to follow it;" holding that until the option was declared, the rents belonging to the heir-at-law of the vendor, but afterwards to the purchaser, who from that time must be charged with interest, which money and interest were personal estate of the testator, and went to his personal representative.

Of the Principles on which Agreements are enforced.

With respect to the jurisdiction exercised by courts of equity, in decreeing specific performance of agreements, it has been justly observed (r) that there is ground for much doubt whether, in their determinations on this subject, they have always considered what was the original foundation of decrees of this nature; and that from habit, rather than on any sound principle, decrees of this kind have been carried to an extent which has tended to injustice. The original foundation of these decrees was

(0) And see Knollys v. Shepherd, 1 Jac. & Walk. 499, cited.

(p) “That case was very much argued, and I do not mean to say that a great deal may not be urged against it." 14 Ves, 596,

(g) 14 Ves. 590.

(~) Per Lord Redesdale, in Harnett v. Yielding, 2 Sch. and Lef. 553.

simply this, that damages at law would not give the party the compensation to which he was entitled; that is to say, would not put him in a situation as beneficial as if the agreement were specifically performed. Hence courts of equity have refused in a variety of cases, to interfere, where, from the nature of the case, the damages at law would be commensurate with the injury sustained: they have refused, for instance, to enforce agreements for the purchase of stock, because it is plainly immaterial to the party, where or from whom the stock is purchased, provided he receives the money that will purchase it. "One man's stock," to use the words of Parker, C. J., " being as good as another man's." *These cases show the principle on which courts of equity [ *44 ] first interfered; but it has also been constantly held that the party who comes into equity for specific performance, must come with perfect propriety of conduct, otherwise he will be left to his remedy at law. He must also show, that in seeking the performance, he does not call upon the other party to do an act which he is not lawfully competent to do; otherwise a consequence would be produced, that quite passes by the object of the court in exercising the jurisdiction, which is to do more complete justice, than can be had at law; for if a party should be decreed to do an act, which he is not fully authorised to do, he would be exposed to a new action for damages at the suit of the person injured by such act. On this ground, if a bill be filed for a specific performance of an agreement by a man who appears to have a bad title, he is not compellable to execute it, unless the party seeking performance, is willing to accept such a title as he can give; and that only in cases where an injury would be sustained by the party plaintiff, in case he were not to get such an execution of the agreement as the defendant can give,-one reason for which is, that it would be not only laying the foundation of an action at law, in which damages may be recovered against the party, but also that it is by possibility injuring a third person, by creating a title, with which he may have to contend.

*When either party to a contract for the sale and purchase [ *45 ] of an estate refuses to complete, the other has two remedies; he may proceed at law for damages for breach of contract, or he may file his bill in equity for the specific performance of it. Which of these modes is to be adopted will depend upon the object sought to be attained; if he want damages he must go into a court of law, if he wish to have his contract performed in specie, he must seek that relief in a court of equity.

It may be proper to consider the question which at one time was a good deal discussed,-whether a court of equity can give damages? The first case, in which the point was expressly raised, is Greenaway v. Adams;(r) the Bill prayed the specific performance of an agreement to assign a leasehold interest in a public house, or in case the defendant could not make a good title, that he might be decreed to refund the deposit with interest, and make satisfaction for the loss sustained by the plaintiff for non-performance of the agreement, and that an issue or a reference to the master might be directed to ascertain what loss the plaintiff has sustained. After this agreement, and pending some nego

(r) 12 Ves. 395.

tiation which arose out of an objection to the title, the defendant parted with the lease, to another person, without notice, and thus rendered himself incapable of performing the contract: the question then rose, whether the plaintiff could have the alternative, *prayed in his bill, [ *46 ] (that is) damages for non-performance. Sir W. Grant, M. R., addressing himself to the question whether damages could be given, says, "That is contended for on the authority of Denton v. Stewart;(s) that case is so shortly stated in any account of it that I have seen, that it is impossible to collect distinctly the principle upon which it was decided. It may be very probably from that defect, that I [ *47 ] have ever entertained any doubt upon the principle of that case. The party injured by the non-performance of a contract, has the choice to resort either to a court of law for damages, or to a court of equity for a specific performance. If the court does not think fit to decree a specific performance, or finds that the contract cannot be specifically performed, either way I should have thought there was equally an end of its jurisdiction; for in the one case, the court does not see reason to exercise the jurisdiction; in the other, the court finds no room for the exercise of it. It seems that the consequence ought to be that the party must seek his remedy at law. However, the case of Denton v. Stewart is a decision in point against that proposition; and the species facti is precisely the same as in this case; for in that the inability of the party to perform the contract grew out of an act done by the party, after the contract had been entered into. In that case how far Lord Kenyon meant the principle to extend, I do not know; but it is clear, he thought, this court ought to give damages; and in my opinion there is no difference in principle, whether the damages are to be assessed by an issue, or a reference to the master; for the question is upon the principle, whether the court can give the party relief in that way. Notwithstanding these doubts, in a case precisely the same as that, I shall yield my doubts to the authority of Lord Kenyon, and will follow the course his Lordship took. Probably, if I had the benefit of seeing the statement and development of the *principle upon which he acted, I should be [ *48 ] perfectly reconciled to it. I give credit to the decision, though so shortly stated, as having proceeded upon a proper principle. Upon the whole, I think myself bound to follow the authority of that

(8) 17 Ves. 276, n. from a MS. of Sir S. Romilly; but more fully and apparently more accurately reported in 1 Cox, 258. This was a suit for specific performance of an agreement to assign a lease, the defendant afterwards assigned the lease to another person for valuable consideration without notice, and thereby put it out of his power to perform the agreement. Lord Kenyon, M. R., on the ground apparently of the “ defendant having acted so dishonestly," referred it to the Master, "to enquire what damages the plaintiff had sustained by the defendant not performing his agreement, and decreed that the defendant should pay the plaintiff such damages so to be ascertained, with the costs of the suit." "Justice," as was observed by Sir S. Romilly arguendo, “was certainly done by the decree, but it ought to have been forgotten the instant it was pronounced," (17 Ves. 277.) Lord Eldon observes," the defendant had it in his power to perform the agreement, and put it out of his power, pending the suit; this case, if not to be supported upon that distinction, is not according to the principles of the court." Again, in Blore v. Sutton, (3 Mer. 248.) Sir W. Grant, adverting, probably, to the observations of Lord Eldon in Todd v. Gee, cited in the text, says, "the competency of a court of equity to give damages for the non-performance of an agreement, has, notwithstanding the case of Denton v. Stewart, been questioned by very high authorities. In that case, however, the plaintiff was guilty of a fraud in voluntarily disabling himself to perform his agreement, and had an immediate benefit from the breach of it."

case; as having never been over-ruled by any subsequent decision. I shall therefore make precisely the same decree. I think the master just as competent to decide this as a jury. It must consist purely of pecuniary compensation."

In Gwillim v. Stone, (t) the bill was filed to have the agreement delivered up, on the ground of the defective title of the defendant, and that compensation might be made to the plaintiff for the loss he had sustained by the defendant's non-performance of the contract. A doubt being intimated at the bar whether the plaintiff was entitled to have a decree for delivering up the contract, and also an enquiry before the master as to the injury sustained, Sir W. Grant adverting to the preceding cases said, that in those cases the object of the bill was a specific performance; that here the bill was of a different nature, asserting from the first, that the defendant could not make a good title: that it was more proper for an action, and that the equitable relief would be obtained by a decree to deliver up the instrument. Sir S. Romilly, for the plaintiff, accordingly waived the enquiry, and took a decree without prejudice to the action. In considering the case it seems impossible to find in the difference *here taken, any sound principle of distinction from the preceding cases,—for if a decree for relief in the nature of [*49 ] damages be proper, on a bill for specific performance, where the defendant has disabled himself from completing,-equally proper would it seem to be on a bill to have the contract delivered up, on the ground of the defendant's inability to make a title. It seems reasonable, therefore, to conclude, that Sir W. Grant availed himself of this very delicate distinction merely to get out of the precedent established in Denton v. Stewart, from a conviction that the decision in that case could not be supported on any sound principle, and therefore it was not to be followed where the circumstances were not exactly the same.

In Todd v. Gee(u) the bill prayed a specific performance, or if the defendant should be unable to perform it, then satisfaction for the damages sustained by non-performance. Lord Eldon, adverting to the cases which have been mentioned, said, on the hearing of the argument, "My opinion is, that this court ought not, except under very special circumstances, as there may be, upon a bill for the specific performance of a contract, to direct an issue or a reference to the master to ascertain the damages. That is purely at law. It has no resemblance to compensation." And afterwards on giving judgment: " My opinion upon the question is confirmed by reflection. Except in very special cases, "it is not [ *50 ] the course of proceeding in equity to file a bill for specific performance, praying, in the alternative, that if the agreement cannot be performed, the court will direct an issue or an enquiry before the master, with a view to damages. The plaintiff must take that remedy, if he chooses it, at law: generally, I do not say universally, he cannot have it in equity."

In Clinan v. Cooke,(v) the bill was filed for the specific performance of an agreement to grant a lease, and in case it should appear by the defendant's answer that he had put it out of his power to make a lease pursuant to the agreement, that he should be decreed to make compensation. As to the latter part of the prayer, it was stated at the bar that, (u) 17 Ves. 273. (v) 1 Sch. and Lef. 25.

(t) 14 Ves. 128.