rine of caveat emptor applies. The vendee takes at his peril, and he must pay the agreed price even though he gets no title, where there is no proof of fraud, mistake, or concealment of material facts. Burns v. Hamilton, 33 Ala., 210; Garrett v. Lynch, 45 Ala., 204.

Real property conveyed without warranty. In such a case, where there has been no concealment of material facts, and no fraud, no part of the purchase money can be recovered back either at law or in equity, in a case where the title proves defective. Botsford v. Williams, 75 Ill., 132. The vendee of real property was fully informed of the nature of the title which he purchased. In an action to recover the purchase money, it was held, that he could not wait the determination of an action of eviction against him. Boisblanc v. Markey, 21 La. An., 21.

CHAPTER XX.

OF DEFAULT ON PART OF THE PLAINTIFF.

§ 903. With regard to the matters to be done by the plaintiff according to the terms of the contract, it is, from obvious principles of justice, incumbent on him, when he seeks the performance of the contract, to show, first that he has performed, or been ready and willing to perform, the terms of the contract on his part to be then performed ;(a) and secondly, that he is ready and willing to do all matters and things on his part thereafter to be done; and a default on his part in either of these respects furnishes a ground upon which the action may be resisted. (b)' We will first consider cases of default in respect of terms of the contract which ought to have been already performed.'

(a) 2 Fq. Cas. Abr.. 33. See, also, the language of Lord Hardwicke and Gilbert C. B., cited infra, §§ 925-927; and cf. Ghillis v. McGhee, 13 Ir Ch. R., 48.

(b) See infra, § 915; Walker v. Jeffreys, 1 Ha., 341.

McNeil v. Magee, 5 Mason, 244; Longworth v. Taylor, 1 McLean, 395; Colson v. Thompson, 2 Wheat., 336; Watts v. Waddle, 6 Pet., 389; Vail v. Nelson, 4 Rand., 478; Bates v. Wheeler, 1 Scam., 54; Stewart v. Raymond Rail Road Co., 7 S. & M., 568; Wood v. Perry, 1 Barb. Sup. Ct. R., 114; Secrest v. McKenna, 1 Strobh's Eq., 356; Richardson v. Linney, 7 B. Monr., 571; Taylor v. McCardle, 9 S. & M., 230. A party seeking a specific performance cannot be excused from proper diligence, on the part of the defendant. Longworth v. Taylor, 1 McLean, 395; Doyle v. Teas, 4 Scam., 202. And a subsequent offer to fulfill his part of the agreement, by a party who has failed to perform at the time stipulated, will not justify the granting of a decree of specific performance. Unless performance can be shown, or the benefit of performance secured to the defendant, specific performance will not be decreed in favor of a vendee, even if possession has been given and improvements made by him. Simmons v. Hill, 4 Har. & M'Hen., 252. This principle, that a plaintiff must perform the essential parts of his contract, is fully carried out, at law, in cases concerning deeds. Fuller v. Hubbard, 6 Cowen, 13; Fuller v. Williams. 7 id., 63; Newcomb v. Bracket, 16 Mass., 161, Eames v. Savage, 14 id., 425; Eveleth v. Scribner, 3 Fairf., 24.

He must do equity, who asks equity.] "There are few cases in which a court of equity will insist on the maxim that he who asks equity must do equity, with more vigor, than in those for specific performance." Eastman v. Plumer, 46 N. H., 464 See also Tripp v. Cook, 26 Wend., 143, 160; Bruen v. Hone, 2 Barb., 536; Linden v. Hepburn, 3 Sandf., 668; Williams v. Fitzhugh, 33 N. Y., 444, 452; Wheeler v. Tanner, 39 N. Y., 481, 502, 505; Abernathey v. Church of the Puritans, 3 Daly, 1. The rule is well settled that where a party asks the specific performance of a contract, he must first show, either that he has performed, or has offered and is willing to perform all that his contract can at any time call for; it will be a defence to his action to show that he has made

1. The performance of past acts.

§ 904. Of what terms must the plaintiff show the performance? The answer is that he must show performance of (1) the express and essential terms of the contract,

(2) Its implied and essential terms, and

(3) All representations made at the time of the contract on the faith of which it was entered into: but that he need not show performance of

(4) Non-essential terms,

(5) The terms of a collateral contract, or

(6) Terms of which the defendant has prevented or waived the performance.

default in a matter of serious importance. More v. Skidmore, 6 Litt., 453; Greenup v. Strong, 1 Bibb., 590; Stewart v. Raymond, 15 Miss., 568; Hoen v. Simmons, 1 Col., 119; McKinney v. Watts, 3 A. K. Marsh, 268; West v. Case, 3 Ind., 301; Stevenson v. Dunlap, 7 T. B. Monr., 134; Hepburn v. Auld, 5 Cranch, 262; Stone v. Buckner, 12 Sm. & Marsh, 73; Snodgrass v. Wolf, 11 W. Va, 158; Clay v. Turner, 3 Bibb., 52; Boone v. Missouri Iron Co., 17 How., 340; Vennum v. Babcock, 13 Iowa, 194; Ganatson v. Vanboon, 3 Iowa, 128; Bearden v. Wood, 1 A. K. Marsh, 450; Logan v. McChord, 2 A. K. Marsh, 224; Rogers v. Sanders, 16 Me., 92; Tyler v. McCardle, 17 Miss., 230; Earl v. Halsey, 14 N. J. Eq., 332; Thorp v. Pettit, 16 N. J. Eq., 488; Colson v. Thompson, 2 Wheat., 336; Slaughter v. Hains, 1 Ind., 138; Satterfield v. Keller, 14 La. An., 606; Wilson v. Brumfield, 8 Blackf., 146; Watts v. Waddle, 6 Pet., 384; Bryan v. Read, 1 Den. & Batt. Eq., 78; Reed v. Nor, 6 Greg. 283; Hooner v. Calhoun, 16 Gratt., 109; Jordan v. Denton, 23 Ark., 304; Scott v. Shepherd, 3 Gilman, 83; King v. Knapp, 59 N. Y., 762; Jones v. Roberts, 6 Call, 187; Cox v. Boyd, 38 Ill., 42; Hanney v. Banks, 1 Rand, 408; Frakfort Turnpike Co. v. Churchill, 6 Mour., 427; Kitchen v. Coffyn, 4 Ind., 504; Board of Supervisors v. Hennelemry, 41 Ill., 179; Huldeman v. Chambers, 19 Texas, 1; Furbush v. White, 25 Me., 219: Jones v. Alley, 4 Greene, Iowa, 181; O'Brien v. Pertz, 48 Md., 562; Marburgh v. Cole, 49 Md., 402.

Executory contract to sell land, relation of the parties.] In substance the same relation exists between the vendor and vendee in an executory contract for the sale and purchase of real estate, as exists between mortgagee and mortgagor. The same general rules govern both cases. The legal title to the estate in both cases, is held as a security for the debt; the owner of the equitable title receives it, when the debt is paid. Ellis v. Hussey, 66 N. C., 501; Jones v. Boyd, 80 id., 258.

Two acts to be done at the same time] Where this is the case, neither party can maintain an action against the other, unless he alleges performance, or an offer to perform. Brasswell v. Pope, 80 N. C., 57.

Equity does not always require an exact performance.] Equity will seek to do exact justice between the parties, and a party may sometimes be excused from a literal fulfillment of his contract, where the failure does not relate to matters of substance. Davis v. Hone, 2 Sch. & Lef., 347; Counter v. McPherson, 5 Moo. P. C. C., 83, 108; Oram v. Merrill, 27 Iowa, 476.

Omission by mutual consent of a part of the contract] Where a particular stipulation in the contract, which does not materially affect the rights or interests of the parties, has been omitted by mutual consent; this will not deprive a party of his right to a decree for specific performance, when he has otherwise fully performed. Portland R. R. Co. v. Grand Trunk R. R. Co., 63 Me., 90.

Lastly it will be necessary to consider

(7) Terms, the performance of which has become impossible without the plaintiff's fault or default.

§ 905. (1) As to the express terms nothing more need now be said. The only important point will be considered when we come to the difference between essential and non-essential terms.

§ 906. (2) The performance must extend to such of the implied terms as are essential. Thus where an intended lessor agreed to finish a house for an intended lessee, who was to do the repairs during the intended term, the court held that in such a contract was implied an undertaking to deliver it in complete tenantable repair proper for houses of the character demised: and this undertaking not having been, in the judgment of the court, performed, the intended lessor's bill for specific performance was dismissed with costs. (c) The case might probably have been determined as one rather of construction than of the implication of terms, i. e., that to finish a house means to finish so that the house shall be in proper repair.

§ 907. (3) Performance must be shown of representations of future acts made at the time of the contract on the faith of which the contract was entered into. These representations(d) need not amount to a guarantee, nor in case of non-performance give a right to an action either for damages or for cancellation of the contract: but yet, if made and not performed, they are a defense to an action for specific performance. (e)

§ 908. Thus where a vendor at a sale represented that he would make improvements in the access to the property sold, and failed to do so, the court refused specifically to perform his contract;(ƒ) and the same was the decision of the court in a case where the vendor by his agent represented that a church should be erected in the immediate neighborhood of the building ground which was the subject of the contract, and that he would complete certain streets, and the purchase was made on the faith of these represen

(c) Tildesey v. Clarkson, 30 Beav., 419; cf. Oxford v. Provand, L, R.2 P. C., 156. Distinguish Chappell v. Gregory, 34 Beav., 250.

(d) As to what representations will in equi

ty be considered as part of the contract, see supra § 624 et seq.

(e) Lamare v. Dixon, L. R. 6 H. L., 422. (f) Beaumont v. Dukes, Jac., 414.

tations, which the plaintiff, however, never carried into effect.(g)

§ 909. We may here briefly inquire into how far maps or plans of the property, exhibited by the vendor at the time of entering into contract, form representations of the kind we are now considering. (h)

§ 910. Where the parties have matured their agreement into a contract, and that contract is silent on the subject of such map or plan, the court will not from such exhibition infer a contract. (i) This applies alike to private contracts and to special Acts of Parliament, so that notices given, and plans and sections deposited, are not to be used in construing an act afterwards, except so far as they are referred to and thus incorporated in the act of Parliament itself. (7) But where they are so referred to and incorporated, effect must be given to them according to the terms of the act.(k)

§ 911. Where the map thus exhibited delineates the intended division of the property by new roads, the vendor may not afterwards divide the land in a manner so different as to attract a population entirely different from that which would have been produced by the execution of the plan proposed by the map.(7)

§ 912. But though the exhibition of a map may bind to this extent, it will not oblige to an exact performance of the scheme it embodies. Thus where a plan was referred to in the contract, and used as a description of the part of the property in question, and on this plan the measurement and width of the street were marked, but there was nothing in the contract which distinctly pointed out that part of the plan as binding the parties, Lord Langdale, M. R., held that it did not form part of the contract, so as to entitle one party to relief against an encroachment on the width of the street. (m)

§ 913. In another case the particulars referred generally

(g) Myers v. Watson, 1 Sim. N. S, 523. (h) Cf. Glave v. Harding, 27 L. J. Ex., 286, as to the effect of plans on (alleged) implied grants of easements.

(i) Feoffees of Heriot's Hospital v. Gibson, 2 Dow, 301; Squire v. Campbell, 1 My. & Cr., 459. Cf. and distinguish Nene Valley Drainage Commissioners v. Dunkley, 4 Ch. D., 1, where the plan was held to be incorporated with (though not referred to in) the contract. (j) North British Railway Co. v. Tod, 12

Cl. & Fin., 722; Beardmer v. London and
North-Western Railway Co., 1 Mac. & G.,

112.

(k) Att-Gen. v. Tewksbury and Malvern Railway Co., 1 De G J. & S., 423; Little v. Newport, Abergavenney, and Hereford Railway Co., 12 C. B., 752.

(1) Peacock v. Penson, 11 Beav., 355, 361. (m) Nurse v Lord Seymour, 13 Beav., 254. Distinguish Roberts v. Karr, 1 Taunt., 495;. Espley v. Wilkes, L. R. 7 Ex, 298.