§ 215. It must be added that, even where a concluded contract would be assignable, the benefit of an offer cannot, it seems, be transferred by the person to whom it is made to a third person. "In case of an offer by A. to sell to B., an acceptance of the offer by C. can establish no contract with A., there being no privity." (h)

§ 216. The assign of a contract may, as has been shown, sue on it; (i) but he cannot, by notice to the other party to the contract, deprive him of the right to complete it with the original contractor, or make him responsible for any loss which may result to the assign from the completion of the contract with his assignor.(j)

§ 217. Questions may of course arise as to the extent of the contract to the benefit of which the assign is entitled. Thus, where a lease was agreed to be granted to A. of an hotel near a station, and it was further agreed that A. should have the occupation of the refreshment rooms, the question arose whether the assign of the lease granted to A. was entitled to sue for the occupation of the refreshment rooms. It was held in the affirmative.(k)

§ 218. Where a contract has been entered into for the sale of property, and that property is afterwards aliened or assigned, or contracted to be aliened or assigned, and the alienee or assign has notice of the original contract, he is liable to its performance at the suit of the purchaser.' "If," said Lord St. Leonards, (7) "the contract is a binding it can be enforced against any party in whom is vested

(h) Meynell v. Surtees, 3 Sm. & Gif., 101, 117; Boulton v. Jones, 2 H. & N., 564.

(i) Cf. Birmingham Canal Co. v. Cartwright, 11 Ch. D., 421 (covenant to give right of preemption).

() McCreight v. Foster, L. R. 5 Ch., 604;

affirmed s. n. Shaw v. Foster, L. R. 5 H. L., 321; Crabtree v. Poole, id. 12 Eq., 13.

(k) Flanagan v. Great Western Railway Co., L. R. 7 Eq., 116. (1) In Saunders v. Cramer, 3 Dr. & War.,

99.

Mylne, 35; Stephens v. Bagwell, 15 Ves., 139. It may be laid down as a general rule, that, where an equitable interest is assigned, in order to give the assignee a locus standi in judicio in a court of equity, the party assigning such a right must have either a substantial possession, or some capability of personal enjoyment in the thing assigned. Prosser v. Edwards, 1 Younge & Col., 481. 1 Langdon v. Woolfolk, 2 B. Mon., 105; Castle v. Wilkinson, L. R., 5 Ch., 536; Caldwell v. Carrington, 9 Pet., 86; Hoagland v Latourett, 1 Green Ch., 254; Glover v. Fisher, 11 Ill., 666; Wright v. Dame, 22 Pick., 55; Clark v. Flint, 22 id., 321; Baldwin v. Lowe, 22 Iowa, 367; Snowman v. Hareford, 57 Me., 397; Walker v. Cox, 25 Ind., 257; Patten v. Moore, 32 N. H., 382, Fullerton v. McCurdy, 4 Lans., 132; Stone v. Buckner, 12 Lon. & Marsh., 73; Morris v. Hoyt, 11 Mich., 9; see Davis v. Henry, 4 W. Va., 571; Powell v. Young, 45 Md., 414.

the legal and beneficial interest in the property." "If," said Lord Rosslyn, (m) "he is purchaser with notice, he is liable to the same equity, stands in his place, and is bound to do that which the person he represents would be bound to do by the decree." This principle has been acted on in numerous cases.(n)

§ 219. In particular the principle applies to unregistered contracts relating to land in register counties. Such contracts may be enforced against subsequent purchasers who may have obtained conveyances which they have registered, if they have notice of such prior contracts. (0)

§ 220. Where a person having a prior title gets in the subsequent estate which is affected by the contract, and has notice, he cannot protect himself from the performance of the contract by his elder title; thus, where an equitable mortgagor entered into a contract for a lease, and then the mortgagee, whose mortgage was prior to the contract, bought the estate with notice, he was held bound to specifically perform the contract ;(p) and again where A., having only the equity of redemption, agreed to sell to B., and subsequently both A. and his mortgagee conveyed to C., who had notice of A.'s contract with B., it was held that B. might enforce specific performance against C.(q)'

(m) In Taylor v. Stibbert, 2 Ves. Jun., 437. (n) Jackson's Case, 5 Vin. Abr., 543, pl. 3; Howard v Hopkins, 2 Atk, 371; Ford v. Compton, 2 Bro. C. C., 32, and Belt's n.. 2; Jalabert v. Duke of Chandos, 1 Eden, 372; Brooke v. Hewitt, 3 Ves., 253; Knollys v. Alcock, 5 id., 648; Meux v. Maltby, 2 Sw., 277; Spence v Hogg (before Shadwell, V. C., and Lord Cottenham), 1 Coll, 225; Dowell v. Dew, 1 Y. & C. C. C., 345; affirmed 12 L. J. Ch., 158; Crofton v. Ormsby, 2 Sch. & Lef, 583; Potter v. Sanders, 6 Ha., 1; Hersey v. Giblett, 18 Beav., 174; Shaw v. Thackray, 1

Sm. & G., 537; Goodwin v. Fielding, 4 De G. M. & G., 90; Waldron v. Jacob, I. R. 5 Eq. 181; Reilly v. Garnett, id. 7 Eq., 1, and supra, § 184. See, too, Dyas v. Cruise, 2 Jon. & L., 460 (where a contract for a lease was enforced against a provisional assignee in insolvency); and as to the last mentioned case, cf. infra, § 225.

(0) Per James, L. J., in Greaves v. Tofield, 14 Ch. D., 572.

(p) Smith v. Phillips, 1 Ke., 694; Mumford v. Stohwasser, L. R. 18 Eq., 556.

(9) Lightfoot v. Heron, 3 Y. & C. Ex., 586.

1 "It is well settled," says Chancellor Kent, in Champion v. Brown, 6 John., 402,"that if A. enters into a contract to sell land to B., and afterwards refuses to perform his contract, and sells the land to C. for a valuable consideration, B. may, by bill, compel the purchaser to convey to him, provided he be chargeable in the notice, at the time of his purchase of B.'s equitable title under the agreement." And it was there further said, that the "rule that affects the purchaser is just as plain as that which would entitle the vendee to a specific performance against the vendor. If he be a purchaser, with notice, he is liable to the same equity, stands in his place, and is bound to do that which the person he represents would be bound to do by the decree. The purchaser from the vendor takes the estate subject to the charge, and so, I apprehend, does a purchaser from the vendee, and he is equally responsible in respect to the estate. The vendor cannot make him personally liable for the purchase money, but the estate is liable; and if he be a purchaser with notice, it is the same thing whether the estate had or had not been actually conveyed by the vendor." See

§ 221. This principle of notice, under somewhat peculiar circumstances, was applied by Lord Eldon in the case of Mortlock v. Buller;(r) there the plaintiff alleged that a contract had been entered into by trustees of a marriage-settle

(r) 10 Ves., 292, 315.

Murray & Winter v. Ballou & Hunt, 1 John. Ch., 566; Heatley v. Finster, 2 id., 158. Assignees take subject to all prior equities between the original parties. Scott v. Shreeve, 12 Wheat., 605; Bacon v. Warner, 1 Root, 349; Johnson v. Pryor, 5 Heyw., 243; Stockton v. Cook, 3 Munf., 68; Eslep v. Walkins, 1 Bland., 486; Mullikin v. Mullikin, id., 538; Gay v. Gay, 10 Paige, 369; Livingston v. Dean, 2 John. Ch., 479; King v. Lindsay, 3 Ired. Ch., 79; Porter v. Breckenridge, Hardin, 21. Thus, the assignee of trust property, with notice of the trust, takes it subject to the trust. Breedlove v. Stump, 3 Yerg., 257. And the assignee of a judgment takes it subject to all the equities existing against it in the hands of the plaintiff therein. Jordan v. Black, 2 Mur., 30. But equities, in order to be available against an assignee, must arise previously to the assignment, or, at least, before notice thereof. Ridgway v. Collins, 3 A. K. Marsh., 410. Therefore, equities arising between the maker and assignee of a note, after the assignment, cannot be enforced against the assignee. Daviess v. Newton, 5 J. J. Marsh., 89. It seems, however, that there is an exception to the doctrine of notice. "There is a peculiarity in the case of a dowress, which operates against her, and, upon this point of notice, is proper to be mentioned. Though notice of the title will protect every other interest in the inheritance, it will not protect her's." Story's Eq. Jur., § 410 (1). Therefore, a purchaser or mortgagor (who is a mortgagor pro tanto), though he has notice of a right of dower attaching upon the estate he is about to purchase, may advance his money, and, taking in a term, may avail himself of it, and thereby utterly defeat the right of dower. Wynn v. Williams, 5 Ves., 134; Mole v. Smith, Jacob's Rep., 497; Maundrell v. Maundrell, 10 Ves., 271; Swannock v. Lifford, Ambl. R., 6; Radner v. Vanderbendy, Show. Parl. Cas., 69. A purchaser without notice is not chargeable; and, therefore, though a purchaser at a public'sale be chargeable with notice, yet a bona fide purchaser, under him, is not affected by his notice. Demarest v. Wynkoop, 3 John., 147; Wallwyn v. Lee, 9 Ves., 24. The rule is not, however, absolutely universal; for it has been broken in upon in two classes of cases. In the first place, it is not allowed in favor of a judgment creditor who has no notice of the plaintiff's equity. This appears to proceed upon the principle that such judgment creditor shall be deemed entitled merely to the same rights that the debtor had, as he comes in under him, and not through him; and upon no new consideration, like a purchaser. Burgh v. Burgh, Rep. Tem. Finch, 28." Story's Eq. Jur., § 410 (1). It has been likewise said that a second exception has been formed in reference to dower, which is, that the rule does not apply in favor of a bona fide purchaser without notice against the claims of a doweress, as such. Williams v. Lambe, 3 Brown's Ch., 264. But this has been considered as an innovation without adequate foundation; and the propriety of the distinction has been much questioned. See Gerrard v. Saunders, 2 Ves., 454. Where A. purchased an estate, with notice of an incumbrance, and then sold it to B, who had no notice, and B. afterwards sold it to C., who had notice, it was held that the estate in the hands of C. was discharged of the incumbrance, notwithstanding the notice of A. and C. And this doctrine has ever since been adhered to, as an indispensable muniment of title. But if the estate becomes revested in the original party, the original equity will reattach to it in his hands. Story's Eq. Jur., § 410. In England, it is well settled that registration of conveyances does not amount to constructive notice to subsequent purchasers. Wyatt v. Barwell, 19 Ves., 435; Jolland v. Stambridge, 3 id., 477. But in America it is uniformly held, that such registration operates as constructive notice to all buyers of any estate, legal or equitable, in the same property. Parkhurst v. Alexander, 1 John. Ch., 394.

ment, who had a power to sell with the consent of the husband and wife; after the bill was filed, the wife died, and the husband's estate for life and remainder in fee were brought together, and the legal power of sale in the trustees was extinguished. But Lord Eldon said that if the purchaser had entered into the contract with the approbation of the husband and wife, as was required by the settlement, the contract bound the estate, and should be made good by those who took interests, if it could not out of the power.

§ 222. This principle is not confined to executory contracts, but applies also to the specific relief given in respect of covenants and other executed contracts, for these may in all cases be enforced against any person into whose hands the property in question may come with notice.

§ 223. Contracts to devise lands have been enforced against persons claiming them under the party contracting to make the will.(s)'

§ 224. One particular species of assignment of a contract arises in the cases in which a railway or other public company has entered into a contract, and subsequently becomes amalgamated with some other company; for by this process the liability under the contracts of the existing companies

(8) Goylmer v. Paddiston, 2 Ventr., 353; S. C. as Goilmere v. Battison, 1 Vern., 48. And see further, as to contracts to make wills containing particular dispositions, Lord Walpole v. Lord Orford, 3 Ves., 402; Jones v. Martin, 5 id., 266, n.; Fortescue v. Hennah, 19 id., 67; Needham v. Kirkman, 3 B. & Al.,

1

531; Needham v. Smith, 4 Russ., 318; Logan v. Wienholt, 1 Cl. & Fin, 611; Jones v. How, 7 Ha., 267; S. C., 9 C. B., 1; Barkworth v. Young, 4 Drew, 1; Eyre v. Monro, 26 L. J. Ch., 757; 5 W. R., 870; Aldersan v. Maddison, 5 Ex. D., 293.

Agreement to devise property by will.] A court of equity will enforce an agreement binding a person to dispose of his property by will; and the heir at law will be compelled to convey the property according to the terms of the agreement. Such contract is regarded with suspicion, and will not be sustained except upon the strongest evidence that it was founded upon a valuable consideration, and was the deliberate act of the decedent. Logan v. Weirholt, 7 Bligh (N. S.), 1; Rives v. Rives, 3 Dessau.'s Eq., 195; Izard v. Izard, 3 id., 116, note; McClure v. McClure, 1 Pa. Stat., 378; Brinker v. Brinker, 1 id., 53; Logan v. McGinnis, 12 id., 32; Mundseph v. Kilbourn, 4 Md., 459; Wright v. Tinsley. 30 Mo., 389; Gupton v. Gupton, 47 id., 37; Sutton v. Haydon, 62 id., 101; Johnson v. Hubbell, 10 N. J. Eq. (2 Stock,), 332; Finsly v. Parkhurst, 29 Md., 58; Harder v. Harder, 2 Sandf. Ch.. 17; Carsligle v. Flemmings, 1 Harring., 421. In Stafford v. Bartholomew, 2 Carter, 153, a contrary rule is held. See as to the power to devise, Shakespeare v. Markham, 10 Hun, 311; Ogilvie v. Ogilvie, 1 Bradf., 356; Bowen v. Bowen, 2 Bradf., 336; Williams v. Hutchinson, 3 N. Y., 312; Robinson v. Raynor, 28 id., 494; Parsell v. Stryker, 41 id., 480; Lisk v. Shannon, 25 Barb., 433; Cox v. Cox, 26 Gratt., 305; Sprinkle v. Hayworth, 26 id., 384.

is transferred to the new body which arises out of their fusion. (t)

§ 225. It may here be noticed that if a contracting party become a bankrupt or a liquidating debtor, specific performance cannot be enforced against the trustee without his consent. (u)

(t) Stanley v. Chester and Birkenhead Railway Co., 9 Sim, 264; S. C., 3 My. & Cr., 773; Earl of Lindsey v. Great Northern Railway Co, 10 Ha., 664 (where the cases of amalgamation establishing this principle are discussed); Clay v. Rufford, Sim. (N S.), 550; Balfour v. Ernest, 5 C. B. (N. S.), 601; Solvency Mutual Guarantee Co. v. York, 3 H. &

N., 588. Cf. Ernest v. Nicholls, 6 H. L. C., 401, and as to railway companies see 26 and 27 Vict., ch. 92, § 43.

(u) Holloway v. York, 25 W. R., 627 (Jessel, M R.). Cf. Whitworth v. Davis, 1 V. & B., 545; Orlebar v. Fletcher.1 P. Wms. (6th ed.), 738; Kell v. Nokes, 14 W. R., 908; and Dyas v. Cruise, 2 Jon. & L., 460.