This point has (6) Where the doubt raised rests not on proof or presumption, but on a suspicion of mala fides. given rise to some diversity of opinion. Smith, (y) the title depended on a deed of grant of chattels, containing a stipulation for the grantor's continuing conditionally in possession; and Leach, V. C., without deciding whether such a deed was in itself fraudulent and an act of bankruptcy, declined to force the title on the purchaser, on the ground that its validity depended on its being made upon good consideration and bona fide, and that these were circumstances, the existence of which the purchaser had no adequate means of ascertaining. "My opinion, therefore, is," said the vice-chancellor, "that a court of equity ought not to compel this purchaser to accept this title; because assuming the deed not to be fraudulent ex facie, it still may be avoided by circumstances extrinsic, which it is neither in the power of the purchasers or of this court to reach."(z) (y) Buck, Bankr. C, 368. (z)-P. 380. See, also, Boswell v. Mendham, 6 Mad., 373. Ind, 66; Carpenter v. Bailey, 17 Ind., 244; Pomeroy v. Drury, 14 Barb., 424; Fletcher v. Button, 4 N Y., 400; Story v. Conger, 36 N. Y., 673; Swan v. Drury. 22 Pick., 488; Gilchrist v. Bine, 1 Den. & Bart. Eq, 346: Little v. Paddleford, 13 N. Y., 167; Watts v. Waddle, 1 M'Lean, 200; Lawrence v. Dole, 11 Vt., 549; Greenwood v. Ligon, 10 Sm. & Marsh., 615; Dodd v. Seymour, 21 Conn., 480; Pugh v. Chesseldine, 11 Ohio. 109; Hunter v. O'Neil, 12 Ala., 37; Freemaster v. May, 13 Sm. & Marsh., 275; Cunningham v. Sharp, 11 Humph, 120; Dearth v. Williamson, 2 Searg. & Rawle, 498; Cowell v. Hamilton, 10 Watts, 415; Christian v. Cabell, 22 Gratt., 82; Tarwater v. Davis, 2 Eng. Ark., 153; Toll Bridge Co. v. Vreeland, 3 Green Ch., 132 Contra. Parker v. Parmlee, 20 John., 132, where it was held, that a covenant to convey by a good warranty deed of conveyance" refers to the instrument, and not to the title, and is satisfied by the execution of a warranty deed. See, also, Gazeley v. Price, 16 John., 267; Barrow v. Bispham, 6 Halsh., 119; Brown v. Covilland, 6 Cal, 566; Tinney v. Ashley, 15 Pick, 552; Hill v. Hobert, 16 Me., 164. In Delavan v. Duncan, 49 N. Y, 487, the court says that Gazeley v. Price, and Parker v. Parmlee, were both overruled by the Court of Appeals (the highest court in New York) in Burwell v. Jackson, supra. "In this case it was distinctly held that a covenant to give a good and sufficient conveyance of land would be performed only by giving a deed that would vest in the grantee an unincumbered title to the premises." Brown v. Gannon, 14 John, 276 is an instructive case as explaining the words "the title to be a good and sufficient deed." In Vermont it has been held that where the grantor covenanted to give a good and warranty deed," that this language did not refer to the title, but did refer to the instrument, and that the contract was not broken by the inability of the vendee to convey free of incubrance. Joslyn v. Taylor, 33 Vt., 470; Preston v. Whitcomb, 11 Vt., 47. The title on investigation to be satisfactory"] Where this language was used in a written contract for the sale of land, and the vendee gave notice that he was not satisfied with the title Held, that an agreement on the part of the vendee to perfect the title did not make the case one for specific performance. Taylor v. Williams, 45 Mo., 80; see, however, Lord v. Stephens, 1 Y. & C. Ex., 222. § 872. This dictum seems to allow no room to the presumption of bona fides, and to make the possibility of fraud in extrinsic facts a sufficient objection to the title: accordingly, it has not been accepted in all its generality. It "must not," said Alderson B. of this dictum, "be pushed to the farthest extent which the words will possibly bear;"(a) and, accordingly, that judge held good a title under a deed which extrinsic evidence might have shown to be invalid, as comprising all the property of the grantor, or as made to give a fraudulent preference to some creditors over others, or as made in contemplation of bankruptcy, because there was no ground apparent for making any of these objections to it. (b) § 873. In Green v. Pulsford(c) the vendor claimed under an appointment made by a husband and wife to their eldest daughter, under a settlement gave them successive lifeestates, with remainder to their children as they should appoint, and in default of appointment between such children; and the parents had incumbered their life interests, and, shortly after the appointment, they and their daughter executed a mortgage: these were circumstances which might create in every one's mind a suspicion that the appointment was a fraud on the settlement, and that was strengthened by a notice from a younger son to the purchaser not to complete, and that the appointment was such a fraud; but inasmuch as the notice alleged no facts, and gave no information not apparent on the abstract, and was not followed up by any proceedings, the court considered that the title was not open to any sufficient doubt, and forced it on the purchaser. In an earlier case, where there were somewhat. similar grounds for suspecting the bona fides of an appointment, Lord Eldon pursued the same course, and enforced specific performance. (d) § 874. In another case, the purchaser showed that the title was made under a sale by newly appointed trustees to a person who had previously bought the interest of the tenant for life, and who, eighteen months afterwards, made a (a) 4 Y. & C. Ex, 236. (b) Cattell v. Corrall, 4 Y. & C. Ex., 228. (c) 2 Beav.. 71. (d) M Queen v. Farquhar, 11 Ves., 467. See, also, Grove v Bastard, 2 Ph.. 619; S. C, 1 De G. M & G, 69; and Re Huish's Charity, L.. R. 10 Eq. 5. profit on his purchase: but the court held these circumstances immaterial. (e) § 875. Again, a purchaser is not entitled in the absence of circumstances of suspicion to refuse a title made under a will, because the will has not been proved against the heir or he does not join:(f) so that where, during a litigation of thirteen years, no question had been raised impeaching the validity of the will, and a person who had claimed under another will had withdrawn from all contention against the one first mentioned, Lord Hatherley (then Wood. V. C.) compelled the purchaser to take a title under the will. (g)' § 876. Where the court comes to the conclusion that a good title can be made it generally orders the purchaser to pay the costs of the litigation, so as to assure his title and show that the court entertains no doubt upon it. (h) § 877. Recent legislation affords machinery under which, in some cases at least, the person making an adverse claim may be brought into the litigation, and that, which in his absence might have remained doubtful, may receive judicial determination. It seems worthy of consideration whether this principle could not be further extended.' § 878. By the land transfer act, 1875 (38 and 39 Vict., c. 87), s. 93, it is enacted that "where a suit is instituted for the specific performance of a contract relating to registered land or a registered charge, the court having cognizance of such suit may by summons, or by such other mode as it de-ms expedient, cause all or any parties who have registered estates or rights in such land or charge, or have entered up notices, cautions, or inhibitions against the same, to appear in such suit and show cause why such con (e) Alexandr v. Mills, L. R. 6 Ch, 124. (g) M'Culloch v Gregory, 3 K & J., 12. lett, 13 Ch. D., 798; cf. Micholls v. Corbett, 34 Beav., 381, 382: Hood v Lori Barrington, L. R. 6 Eq., 224; Woola v. Hyde, 10 W. R., 34) In Radford v Wills (L. R 7 Ch., 7, 11) the purchaser was "excused" from paying cost. 1 See to this effect, the case of Butler v O'Hear, 1 Dessau., 382. ? But a title may be doubtful, because it depends on a doubtful interpretation of a will, if all parties who may be interested in the estate are not bound by the decree, and therefore will not be forced upon a purchaser. Sohier v. Williams, 1 Curtis' C. C. Rep. 479. Where will presents difficult questions of construction as to title it is matter of discretion with court as to whether it will compel specific performance of a contract for sale of land. Kelso v. Loullard, 85 Ñ. Y., 177. tract should not be specifically performed, and the court may direct that any order made in such suit shall be binding on such parties or any of them."(i) § 879. Again, by the rules of the Supreme Court, where it appears to the court or a judge that a question in the action should be determined, not only as between the plaintiff and defendant, but as between the plaintiff, defendant, and any other person, or between any or either of them, the court or a judge may, on notice being given to such lastmentioned person, make such order as may be proper for having the question so determined.(„j) § 880. In a case where parties stated facts in the form of a special case, and required the opinion of the court whether on these facts a good title was shown, the court declined to consider the question of the title being doubtful: it confined itself to the question asked, whether or no a good title was shown.(k)' (i) See infra, § 1110. (j) Ord. XVI, r. 17. See, too, Rules 17, 21, of the same Order, supra, § 168 (k) Governors for Relief of Poor Widows of Clergymen, etc., v. Sutton, 27 Beav., 651, a case under Sir Geo Turner's Act (13 and 14 Viet, c. 35), 88. 2, 18 the procedure under which has been superseded by that under Ord. XXXIV (see especially rule 7). In a case where the title is suspicious, extrinsic circumstances.] Equity will not decree specific judgment against a purchaser in a case where although there is no proof of fraud, yet there are instances connected with the title which would give a prudent man cause for suspicion, and the good or bad faith of the transaction depends upon extrinsic circumstances. In Hartley v. Smith, Buck's Banks Cas., 36, the vice-chancellor, said. "My opinion, therefore, is, that a court of equity ought not to compel the purchaser to accept this title; because assuming the deed not to be fraudulent ex-facie, it still may be avoided by circumstances extrinsic, which it is neither in the power of the purchaser or of this court to reach.' After possession has been occupied by the rendee.] Both courts of law and equity where the transaction is free from fraud, apply the maxim caveat emptor to contracts of purchase of real as well as of personal property, a purchaser may in general, rely on old deeds, as to location and boundery. Welsh v. Hall, 66 N C., 233. Where the contract is executory, if the vendor has no title the vendee may have a rescission; but if the agreement has been extended, in order that a court of equity may grant relief to the purchaser, or restrain the collection of the purchase money, eviction or fraud must be averred and proved. Patton v. Taylor, 7 How., 133; Campbell v. Medbury, 5 Bissell, 33. The vendee of land in possession, sought to resist the payment of the purchase money, on the ground that his vendor could not make a good title; the paramount title being in a third party. Held, that he must show affirmatively the existence of such paramount title, and that the evidence must be clear and satisfactory. Cantrel v. Mobb, 63 Ga., 193: Sawyer v. Sledge, 55 Ga, 152. Incumbrances existing against real property sold.] Where real property has been sold free from incumbrances, a purchaser need not receive his deed, and pay his money while incumbrances exist against the property. A court of equity will not compel him to rely on the personal responsibility of the vendor, but will suspend the payments of the purchase money until the incumbrances are removed, if this is not done after a reasonable time the contract will be re scinded. Bishop v Newton, 20 Ill., 175; Rindley v. Gray, 6 Ired.'s Eq., 445; Shaw v. Vincent. 64 N. C., 690; Wallace v. McLaughlin, 57 Ill., 53. In Davidson v. Perrine, 22 N. J. Eq., 87, where the vendor filed a bill for specific performance, that the vendee should elect either to accept such a title as the vendor was able to convey, or abandon the contract, and restore the possession Time within which the vendor must be prepared to make a good title] In order that a vendor may be in a position to envoke the aid of equity in enforcing specific performance of a contract of sale of real property, he must show that in good faith, and without unnecessary delay he has performed all the obligations which devolved upon him; or that he is ready and in a position to do so. King v. Hamilton. 4 Pet., 311; Seymour v. Delanc y. 6 Johns., Ch., 222; Grundy v. Ford, Litt. Sel. Cas., 129; Barnett v. Higgins, 4 Dana, 565. A reasonable dilligence must be exercised by the vendee in ascertaining the state of the title. Havens v. Bliss, 26 N. J. Eq., 363. The vendor will not be deprived of his right to enforce the contract specifically, by mere delay, unless it be shown that such delay has been unreasonable and without excuse; and it is out of the power of the court to place the respective parties in the same position they would have occupied had the contract been carried out before. McKay v. Carrington, 1 McLean, 50; Cooper v. Brown, 2 McLean, 495; Suyder v. Spaulding, 57 Ill., 480. It appears to be the well settled rule that the vendor of real estate has a right to a decree of specific performance, in cases where time is not of the essence of the original contract, without showing that the title is actually in him at the time of the conveyance. If he is able to give a good title at the time of the decree, it is usually sufficient. In Layford v Pitt, 2 P. Wms, 629, it was said per curiam, “It is sufficient if the party entering into articles to sell has a good title at the time of the decree; the direction of the court being in all these cases to inquire whether the seller can, not whether he could, make a title at the time of executing the agreement. In the case of Lord Stowton v. Sir Thomas Meers, the Lord Stowton, at the time of the articles for a sale, or even when the decree was pronounced, could not make a title, the reversion in fee being in the crown. And yet the court indulged him with time more than once for the getting in of this title from the crown, which could not be effected without an act of Parliament to be obtained in the following session. However, it was at length procured and Sir Thomas Meers decreed to be the purchaser. Indeed it would be attended with great inconveniences, were decrees to direct an inquiry whether the contractor to sell had, at the time of entering into such contract, a title; for this all encumbrances, and defects must be raked into. Wherefore, it has been thought sufficient to answer the end, if, at the time of the decree or report the seller can make a good title See, also, Hepburn v. Auld, 5 Cranch, 262; Wilson v. Tappan, 6 Ohio, 172; Mays v. Swope, 8 Gratt., 74; Allerton v. Johnson, 3 Sandf. Ch., 72; Dubose v. James, McMullan Eq., 55; Hepburn v. Dunlop, 1 Wheat., 179; Seymour v. Delaney, 3 Conn., 445; Cotton v. Ward, 3 Monr., 305; Westall v. Austin, 5 Ired.'s Eq., 1; Brown v. Haff, 5 Paige's Ch, 235; Luckett v. Williamson, 37 Mo., 388; Moss v. Hanson, 17 Pa. St., 370; Musselman's App., 65 Pa St., 480; Winne v. Reynolds, 6 Paige's Ch., 407; Jenkins v. Fahey, 73 N. Y, 355. In Rutland v Brister, 53 Miss., 683, it was held, that a party could contract to convey land, he having at the time no title either legal or equitable in it; and that his obligation was fulfilled if when the time for performance arrived, he induced the real holder of the title to convey to the vendee. Inability to ob'ain title, good defense] An action was brought for specific performance of a contract to convey land. The vendor was unable to convey by reason of want of title. Held, a good defense, after reasonable efforts to obtain title. Swepson v Johnson, 81 N. C., 449. |