tracted for, specific performance will be decreed against him at the suit of the
vendor, but he will be allowed compensation for the difference in value be-
tween what he will get and what he contracted for. " Equity," says Lord
Erskine, "does not permit the forms of law to be made ^instruments r^-r,-,
of injustice; and will interpose against parties attempting to avail
themselves of the rigid rule of law for unconscientious purposes. Where,
therefore, advantage is taken of a circumstance, that does not admit a strict
performance of the contract, if the failure is not substantial, equity will
interfere. If, for instance, the contract is for a term of ninety-nine years in
SPECIFIC PERFORMANCE.
68
^T^d it appears that the vendor has only ninety-eight or ninety-seven
vears ne must be nonsuited in an action : but equity will not so deal with
him -'and if the other party can have the substantial benefit of his contract,
that'slight difference being of no importance to him, equity will interfere.
Thus was introduced the principle of compensation, now so well established—
a principle which I have no disposition to shake : " Bahey v. Grant, 13 Ves.
77; see also Guest v. Homfray, 5 Ves. 818; MorOock v. Buller, 10 Yes.
306; and see Yignolles v. Bowen, 12 Ir. Eq. Rep. 194.
But if the failure to perform the contract is substantial, and such as does
not admit of compensation, as where the vendor contracts to sell a term of
sixteen years, whereas he had only a term of six years, not only will equity
refuse to interfere in favor of the vendor, but will even assist the purchaser
in recovering his deposit, See Long v. Fletcher, 2 Eq. Ca. Ab. 5, pi. 4 ; and
Spunner v. Walsh, 11 Ir. Eq. Rep. 597.
A purchaser cannot be compelled to take aa underlease instead of an origi-
nal lease. See Madeley v. Booth, 2 De G. & Sm. 718. There messuages de-
scribed in a particular of sale as held for the residue of a term of ninety-nine
years, from the 24th of June, 1833, but not as being held by an original
lease, were sold subject to conditions that the purchaser should not be entitled
to call for the lessor's title, and that any error or mis-statement of the term of
years should not vitiate the sale, but should be the subject of compensation,
under a provision for arbitration, authorizing the arbitrator of either party to
proceed in certain events ex parte. The title proved to be an ?</mA rh cue, for
a term less by three days than the term of ninety-nine years granted by the
original lease. The vendor filed a bill to enforce specific performance, with
compensation to an amount which had been assessed, in conformity with the
conditions, by one arbitrator, nominated by the vendor, the purchaser having
taken no part in the arbitration. Sir J. L. Knight Bruce, V. C, dismissed
the bill with costs. " I cannot," observed his Honor, " consider a title under
this underlease to be substantially the same thing as an assignment of the
original term in the property : among the inconveniences incident to an un-
r*i -n derlease, as distinguished from an assignment of the original term, *it
'-is sufficient to mention, that if the under-tenant were to tender the
rent to the head landlord, he would not be bound to accept that tender. There
is no privity of contract, in fact or in law, between the head landlord and the
under-tenant."
It has, however, never been decided that if a person having a clear title as
lessee for eighty years, makes another lease for sixty years, and then the un-
derlessee sells' a by auction the underlease for sixty years simply describing
it as a lease, and subject to a condition of sale, that the lessor's title is not to
be inquired into, and the lessor's title is perfectly good, but is not freehold,
but only a term of years, this alone would be a reason for resisting specific
performance : per Wood, V. C, in Darlington v. Hamilton, Kay, 558.
A purchaser however will not be bound to accept land of a different tenure
from that which he contracted for (as leasehold instead of freehold,) although
SETONV. SLADE. 69
the leaseholds may be held for so long a terra as to make them nearly equal
in value to freeholds; for although, when a party ge'ts substantially that for
which he contracts, any small difference may be remedied by compensation,
that will not be the case where it extends to the whole estate. See Drewe v.
Corp, 9 Ves. 368; 1 S. & S. 201, n.j Wright v. Howard, 1 S. & S. 190;
Barton v. Lord Doicncs, 1 Flan. & K. 505.
Nor will a purchaser, unless forced to do so by the conditions (Price v.
MaeavXay, 2 De Gr. Mac. &Gr. 339,) be compelled to take copyhold instead of
freehold, because the party buying might particularly wish for a freehold
estate : Twining v. Morrice, 2 Bro. C. C. 33 ; Hicks v. Philips, Prec. Ch. 575.
"Where a person contracts to purchase an estate as copyhold, he will not be
compelled to take it if it turns out to be partly freehold : Ayles v. Cox, 16
Beav. 23. It seems, however, that specific performance could not be success-
fully resisted if an estate, represented as copyhold, equal in value to freehold,
should turn out to be freehold, {Twining v. Morrice, 2 Bro. C. G. 320;) un-
less there be an express stipulation that the contract should be void if it
should appear that any part of the estate was freehold : Daniels v. Davison,
16 Ves. 249.
In Prendergast v. Eyre, 2 Hogan, 81, a person having contracted for the
purchase of an estate in fee simple, subject to a perpetual rent-charge, it was
held, that he could not be compelled to take a perpetual rent-charge upon the
estate, which as it turned out, was the only interest which the vendor had.
Objections to tenure may be waived by the conduct of the purchaser; as
by his proceeding with the treaty for the purchase, after becoming acquainted
with the nature of the tenure : Fordyce v. *Ford, 4 Bro. C. C. 494; r *i = p-i
BurneU v. Brown, 1 J. & W. 108 ; Martin v. Cotter, 3 J. & L. 496. L - 1
But if he object to the tenure, although he be compelled to fulfil his contract,
he will be entitled to compensation : Calcraft v. Roebuck, 1 Ves. jun. 221.
A purchaser of the entirety will not be compelled to take an undivided
share of an estate, (Attorney-General v. Day, 1 Ves. 218; Roffey v. Shatt-
er oss, 4 Madd. 227; Dally v. Pullen, 3 Sim. 29 j ( 'a sa major v. Strode, 2
My. & K. 720 ;) nor will a purchaser be compelled to take a remainder expect-
ant upon the determination of a previous life interest, instead of an estate in
possession, (Collier v. Jenkins, You. 2! 15 ; Nelthorpe v. Holgate, 1 Coll. 203 ;)
nor an estate which is subject to a right of sporting, not mentioued in the par-
ticulars of sale; but he may waive the objection, as by taking possession
after notice of it, (Burnett v. Brown, 1 J. & W. 108 ;) nor will a purchaser
be compelled to take an estate if it be subject to an undisclosed right of dig-
ging for mines, (Barton v. Lord Doicnes, 1 Flan. & Kel. 505 ; Seaman v.
Vuudrey, 10 A'es. 390;) nor if it be a mere sheep-walk and not a freehold,
(Vancouvre v. Bliss, 11 Ves. 458;) nor if it be liable to the repairs of a
chancel, (Hornillow v. Shirley, 13 Ves. 81, cited as Fortellow v. Shirley,
2 Swanst. 223 ;) but it seems, that if there are undisclosed quit-rents and
rent-charges, — at any rate, if they are of small amount — specifie performance
with compensation will be decreed, (Esdaile v. Stephenson, 1 S. & S. 122 ;
70 SPECIFIC PERFORMANCE.
Bowles v. Waller, 1 Hayes, 441 ; Prendergast v. Eyre, 2 Hog. 94 j Portman
v. M?? 1 Russ. & My. 696.) So also, if lands sold as tithe-free, turn out to
be liable to a rent-charge in lieu of tithes, it will be a subject for compensa-
tion : Eowland v. Norn's, 1 Cox, 59. If quit-rents be sold, a mistake in
their amount is immaterial, and compensation will be allowed, (Cuthbert v.
Baker, cited Sugd. V. & P. 354, 11th edit.; Reg. Lib. A. 1790, fol. 442 ;)
although the objection would be fatal at law: Johnson v. Johnson, 3 B. & P.
162.
Although the vendor cannot make a good title to a small portion of the
estate, if compensation can be made for the deficiency, in consequence of
such portion not being material to the possession and enjoyment of the estate,
specific performance will be decreed: JP Queen v. Farquhar, 11 Ves. 467 j
Knatchhidl v. Grueber, 1 Madd. 153; Bowyer v. Bright, 13 Price, 698.
This doctrine was carried to a great extent in former times. Sir Thomas
Sewell, M. R., in Shirley v. Davis, cited in the principal case, went so far as
to compel a man who had contracted for a house and wharf to take the house
alone, although it appeared that he wanted the wharf for the purpose of carry-
ing on his *business. This case has, however, been strongly disap-
t* 457 ] proved of. See 1 Cox, 61, 62; 6 Ves. 679; 13 Ves. 78, 228, 4_'T ;
Stewart v. Allison, 1 Mer. 26. And it may be considered as settled that
where a good title cannot be made to a portion of the estate contracted to be
sold, if it be material to the possession and enjoyment of the rest, specific
performance will be refused. Thus, in Peers v. Lambn-t, 7 Beav. 546, A.
contracted to sell a wharf on the banks of the river Thames, with a jetty.
The jetty turned out to be liable to be removed by the Corporation of London,
if they thought fit. Lord Langdale, M. R., he.ld, that the jetty was essential
to the beneficial occupation and enjoyment of the premises contracted to be
sold, and that a specific performance could not be decreed. And see Sha
ton v. Sutcliffe, 1 De G. & S. 609 ; Perkins v. Ede, 16 Beav. 193.
In the case of Stewart v. The Marquis of Conyngham, 1 Ir. Ch. Rep. 53 ! ,
the particulars of sale stated that the timber on the estate would be included
in the purchase. The title was not made out to the timber in a small portion
of the lands. There being no misrepresentation, the Court directed an in-
quiry as to whether the timber on that portion of the estate was material to
its possession and enjoyment. See also Magennis v. Fallon, 2 Moll. 590.
There is no case of the sale of two distinct estates for one entire sum, in
which the Court has undertaken, upon a failure of the title as to one estate,
to decompose the sum, and fix a standard for adjusting the relative value of
the two estates, which would bind the purchaser without regard to his views
or estimate of relative value : Prendergast v. Eyre, 2 Hogan, 89 ; but it seems,
that if an estate is sold by auction, and a good title cannot be made to some
of the lots, a specific performance will be decreed as to the lots to which a
good title can be made, if they are not complicated with the others. Thus,
in Poole v. Shergold, 2 Bro. C. C. 118; 1 Cox, 273; a good title could not
be made to two of the lots. Lord Kenyon, M. R., said, that he must take it
S E T N V. SLADE.
for granted, that the two lots were not so complicated with the other lots as
to entitle the purchaser to resist the whole. But his Lordship added : — " If
a purchase was made of a mausion-house in one lot, and farms, &c, in others,
and no title could be made to the lot containing the mansion-house, it would
be a ground to rescind the whole contract." See also Lewin v. Guest, 1 Russ.
325; Ilarwood v. Bland, 1 Flan. & Kel. 540; Casamajor v. Strode, 2 My.
& K. 72-1. The same rule seems to prevail at law: Gibson v. Spurrier,
Peake's Add. Cas. 49 ; Dykes v. Blake, 4 Bing. N. C. 463; but see Cham-
bers v. Griffiths, 1 Esp. Ca. 149. *As to waiver of objections, see *..~q-.
Calcraft v. Roebuck, 1 Ves. jun. 221. t 4o <-J
Where the vendor, having a title to an estate, misrepresents the acreage,
whether the estate be sold at so much the acre, (Sir Gloudesley Shovel v.
Bogan, 2 Eq. Ca. Ab. 688, pi. 4,) or not {Hill v. Buckley, 17 Ves. 394,) the
purchaser will be entitled to compensation for a deficiency. Where lands are
described as " of or about" a certain acreage, or a certain acreage " be the
same more or less," it seems, that if the lands have been actually conveyed,
the purchaser will not be entitled to an abatement, though they should turn
out to be considerably less, (Twyford v. Wareup, Rep. t. Finch, 310; Anon.,
2 Freem. Ch. Bep. 106; Lord Townshend v. Stangroom, 6 Ves. 328;) but
that, where an agreement in which the acreage has been so described, has not
been carried out by a conveyance, the purchaser will be entitled to an abate-
ment for a deficiency, unless it be trifling, (Hill v. Buckley, 17 Ves. 394 ;
Portman v. Mill, 2 Buss. 570; Day v. Fynn, Owen, 133;) but see Winch v.
Winchester, 1 V. & B. 375, where lands were described as containing by esti-
mation forty-one acres, be the same more or less, and it turned out that they
were five acres and a fraction less than that quantity. Sir W. Grant, M. 1!.,
held the purchaser not entitled to an abatement out of the purchase-money.
If, however, the vendor knew the true quantity, he would not, by the use
of such phrases, be protected from the obligation of making a deficiency good :
Winch v. WincJiesU r, 1 V. & B. 377 ; The Duke of Norfolk v. Worthy, 1 Camp.
Ca. 337.
It seems, the Court will not infer, from the intimate acquaintance of the
purchaser with the estate, ( Winch v. Winchester, 1 V. & B. 975,) or even from
the fact of his being the occupier of it, that he was acquainted with its exact
admeasurement, so as to disentitle him to an abatement. Thus, in King v.
Wilson, 6 Beav. 124, a tenant in possession purchased the property, which
was represented to be forty-six feet in depth; it turned out to be thirty-three
only : it was held, by Lord Langdale, M. R., that he was entitled to an abate-
ment. If lands are purchased with the usual condition for compensation for
misdescription, although the purchaser could enforce the contract on payment
of compensation, if the lands turned out to be of much greater extent than
they were described as being, the vendor, who was in fault by the misdescrip-
tion, could not compel the purchaser to complete, on payment of a propor-
tionately larger sum : Price v. North, 2 Y. & C. Exch. Ca. 620.
2nd. Where the Purchaser seeks Specif c Per fo nuance. ~\ — It may be laid
72 SPECIFIC PERFORMANCE.
down as a general rule subject, *however, to same few exceptions, that
[*459] a purchaser ma y, if he choose, compel a vendor who has cm, traded to
sell a larger interest in an estate than he has, to convey to him such interest as
he is entitled to, with compensation. "If," observes Lord Eldon, "a man
having partial interests in an estate, chooses to enter into a contract, repre-
senting it and agreeing to sell it, as his own, it is not competent to him after-
wards to say, though he has valuable interests, he has not the entirety, and
therefore the purchaser shall not have the benefit of his contract. For the
purpose of this jurisdiction, the person contracting under those 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 to an abatement, and the
Court will not hear the objection by the vendor, that the purchaser cannot
have the whole :" Mortlock v. Butter, 10 Ves. 315 ; see also Lord l'»J i n, /broke' s
case, 1 S. & L. 19, n. («) ; Nelthorpe v. Ilohjate, 1 Coll. 203 ; Barrett v.
Ring, 2 Sm. & Gr. 43 ; Wilson v. Williams, 3 Jur. N. S. 810. Thus, although,
as before observed, a person purchasing the entirety, cannot, upon a failure
to make a title to the whole, be compelled to take a part only of the estate,
a purchaser may, in general, if he wishes it, elect to take what he can get,
with compensation, (Attorney- General v. Bay, 1 Yes. 2 is ; and see 1 V. &
B. 353; Western v. Russell, 3 V. & B. 187 ;) unless it be expres.dv stipulated
that the agreement should, in such event, be void, ( Williams v. Edwards, 2
Sim. 78;) but in Whateley v. Slade, 4 Sim. 126, where a person being en-
titled to nine-sixteenths of an estate, agreed, by mistake, to sell the entirety,
Sir L. Shadwell, V. C, was of opinion that a specific performance could not
be decreed as to the nine-sixteenths, with an abatement out of the purchase-
money, especially as another person had a lien on the estate for a debt, which
would nearly exhaust the whole purchase-money. And see Mate v. Topham,
19 Beav. 576.
In Bale v. Lister, cited 1G Ves. 7, a bill was filed against the vendor for
the specific performance of an agreement for the sale of leaseholds held under
the Dean and Chapter of Norwich, to which the defendant represented him-
self to be absolutely entitled. As to twenty-four acres, part of the lease-
holds, he was not absolutely entitled; the same were in effect limited to him
for life, with remainder to his sons and daughters in tail. To this part the
vendor could not make a good title beyond his own life ; he admitted that
the plaintiff might put an end to the contract, but insisted that he, the
vendor, ought not to be compelled to take less than the stipulated price.
However, specific performance, with a reduction of the purchase-money,
*was decreed. But see Lord Eldon's remarks in Milligan v. Cooke,
L J 16 Yes. 1, on this decision. See also Hanbury v. Lichfield, 2 My.
& K. 629; Male v. McKenzie, 1 Kee. 474; Graham v. Oliver, 3 Beav. 124.
Where it turns out that land is subject to a right to dig for mines, although
that would effectually bar the vendor from insisting upon his contract, the
purchaser might demand specific performance, with compensation : Seaman
SETON V. SLADE. 73
v. Vaudrey, 16 Ves. 390 ; see also Peacock v. Penson, 11 Bcav. 355 ; Painter
v. Newly, 11 Hare, 26.
Where the purchaser, at the time of the contract, knows of the limited
interest of the vendor, he will not be able to insist upon a conveyance of
such interest, with compensation : Lawrenson v. Butler, 1 S. & L. 13 ; and
see Mortlock v. Butter, 10 Ves. 292 ; GoUyer v. Clay, 7 Beav. 189. In Har-
nett v. Yielding, 2 S. & L. 549, a tenant for life, with power to make leases
for twenty-one years, at the best improved rent, contracted to execute a lease
for twenty-one years, and a further lease for twenty-one years, during his life ;
consequently, to execute a further lease for twenty-one years, whatever might
be the increased value of the property at the time such further lease was
granted. Lord Redesdale held the contract a fraud upon the power, and
that the lessee was not entitled to specific performance. To obviate this
difficulty, the lessee offered to take a lease for twenty-one years, &c, if the
defendant should so long live; but Lord Redesdale dismissed the bill, ob-
serving, that nothing could be more mischievous than to permit a person
who knows that another has only a limited power, to enter into a contract
with that other person, which, if executed, would be a fraud on the power,
and when that is objected to, to say, " I will take the best you can give me."
A court of equity ought to say to persons coming before it in such a way,
" Make the best of your case before a jury."
Courts of equity will not, on behalf of a purchaser, compel a partial per-
formance of the contract, which is unreasonable, or would be prejudicial to
persons interested in the property, but not parties to the contract. Thus, in
Thomas v. Dering, 1 Kee. 729, a person who was tenant for life without im-
peachment of waste, with remainder to his sons in tail, contracted to sell the
fee, which it turned out he had no power to do, and the purchaser thereupon
required him to convey his life estate and his reversion in fee, subject to the
estate tail; but Lord Langdale, M. K., refused specific performance, upon the
ground, principally, that it would be unreasonable, and prejudicial to persons
interested in the property, but not parties to the contract. See also Graham
v. Oliver, 3 Beav. 124.
*Nor will partial performance be decreed if there has been misrep- pini-i
resentation on the part of the purchaser, even although he is satisfied
with a performance of the contract subject to any outstanding interests, with-
out compensation : Clermont v. Tashurg, 1 J. & W. 112.
Where any deficiency in certain events arises as to the extent or duration
of an interest in an estate contracted to be sold, not admitting of compensation,
Lord Eldon has laid it down as a general rule, that equity can neither compel
a purchaser to take, nor a vendor to give, an indemnity : Balmanno v. Lum-
ley, 1 V. & B. 225 : Paton v. Brebner, 1 Bligh, 66; Powell v. South Wales
Railway Company, 1 Jur. N. S. 773 ; and see Ridgway v. Gray, 1 Hall &
T. 195 ; 1 Mac. & Gr. 109 ; where the particulars of sale described the pro-
perty purchased, as " let on lease for twenty-one years, to and in the occupa-
tion of B. &, Son;" the fact being, that the property ^'had been demised for
74
SPECIFIC PERFORMANCE.
twenty-one years to T., and had been assigned by him, for the residue of the
term, to B. alone, one of the firm of B. & Son, who were joint occupants
thereof. Lord Cottenham said, that he could not see how the purchaser could
compel the vendor to give compensation in respect of the misdescription, and
that he had no power to compel the purchaser to be satisfied with an indem-
nity. See, however, Mittigan v. Cooke, 16 Ves. 1 ; Campbell v. Hay, 2
Moll. 102.
Where it turns out that the vendor cannot make out a title, the purchaser's
bill for specific performance, will be dismissed, without costs, and he will be
left to his remedy at law : Thomas v. Dering, 1 Kee. 7-!> ; Maiden v. Fyson,
9 Beav. 317. But where the vendor has filed a bill in such a case, he will be
ordered to return his deposit, with interest : Lord Anson v. Hodges, 5 Sim.
227.
Although as a general rule, a purchaser will not be allowed to pay his pur-
chase-money into court, and to enter into the possession of the purchased laud,
until after the acceptance of the title, where, he only asks that his claim to
compensation may be reserved, an order to pay the purchase-money into court
will be made : Man v. RicJcetts, 5 Be Gr. & Sm. 116.
At law an agreement for the sale of
real estate confers a mere right of ac-
tion on the vendee. In equity it does
more, it vests an equitable estate, at-
tended by most, if not all the inci-
dents of actual ownership; Siter's
Appeal, 2 Casey, 178 ; Sutter's Heirs
v. Ling, 1 Id. 466; Richer v. Selin,
8 S. & R. 425, 440; Robb v. Mann,
1 Jones, 300; Russell's Appeal, 3 Har-
ris, 319 ; Bowie v. Berry, 3 Maryland,
359. "Equity," said Duncan, J.,
in Richter v. Selin, "looks upon things
agreed to be done, as actually perform-
ed. Consequently, when a contract is
made for the sale of land, equity con-
siders the vendee as the purchaser of
the estate sold, and the purchaser as
a trustee for the vendor, for the pur-
chase-money. So much is the ven-
dee considered in contemplation of
equity, as actually seised of the es-
tate, that he must bear any loss which
may happen to the estate, between the
agreement -and the conveyance; and
he will be entitled to any benefit which
may accrue to it in the interval; be-
cause, by the contract, he is the owner
of the premises, to every intent and
purpose, in equity." And the prin-
ciples thus laid down, were cited and
followed in Robb v. Mann, 1 Jones,
300, and said to show, that the vendee
must bear the consequences of every
loss, whether by fire or otherwise,
which happens after the completion
of the sale, unless the vendor has been
guilty of negligence or laches, and
thus rendered it more equitable to
throw the injury on him. It follows,
that while a default in the literal ful-
filment of the stipulations of the con-
tract, will deprive the party by whom
it is committed, of all right of recovery
at lawagainst the other, Hill v. Fisher,
34 Maine, 143, it will not have that
SET ON V. SLADE.
75
effect in equity, unless of such a na-
ture as to render it inequitable to en-
force the contract ; because, where
vested estates or interests are in ques-
tion, and we have seen that the inter-
est of the vendee is regarded as vest-
ed, equity will not tolerate a forfeiture,
when the case admits of compensation,
and will permit the gap made by a
breach, to be filled by a subsequent
performance ; Edgerton v. Peckham,
11 Paige, 352; Falls v. Carpenter, 1
Devereux & Bat. Equity, 237, 278 ;
post, note to Sloman v. Waters. And
this rule will, as it seems, be ap-
plicable whenever the vendor has
covenanted to convey, although the
purchaser may not have bound him-
self to take, equity, regarding that