him of an estate, and afterwards conveyed it to C., who, at the time of the conveyance, had notice of P.'s contract, on a bill filed by P. against S. and C. for the enforcement of the contract between S. and P., Wigram, V. C., decreed specific performance of that contract, ordered all necessary parties to convey the estate to P., and gave the plaintiff costs against both S. and C.(7).

§ 186. Again, a stranger to the contract may so mix himself up with it by setting up a claim to some benefit resulting from it, as to render himself liable to be made a party to proceedings for the enforcement of the contract; as, for instance, by claiming to be interested in the purchase-money under an arrangement antecedent to the contract. (m)

§ 187. In some cases where a portion of the relief claimed might affect the person in actual possession of the property, that person may properly be made a party to an action for the specific performance of the contract; as, for instance, where the purchasers, a railway company, being in possession of the land contracted to be purchased leased it to another railway company, who opened and worked a railway over it, and the unpaid vendors filed their bill against both companies for performance of the contract, declaration of the vendors' lien, and the appointment of a receiver. (n) "Ordinarily," said Stuart, V. C., (o) "a person not being a party to the contract ought not to be brought before the court. But it is otherwise where possession is sought by the bill, and the person in possession will be affected by the decree. Therefore the South Western Company (the lessees) have been properly brought here."

§ 188. Lastly, there are provisions in the rules by which the present practice of the court is regulated, (p) and in the land transfer act, 1875, (2) by virtue of which strangers to the contract may, in certain cases, be brought into the position of defendants to an action for enforcing its specific performance.

(1) Potter v. Sanders, 6 Ha., 1; cf. Daniels v. Davison, 17 Ves, 433; Holmes v. Powell, 8 D. M & G., 572; and distinguish Lenty v. Hillas, 2 De G. & J., 110; Fenwick v. Buf. man, L. R 9 Eq., 165.

(m) West Midland Railway Co, v. Nixon, 1 H. & M., 176 Consider Muston v. Bradshaw, 15 Sim., 192, where the interest claimed was created subsequently to the contract, and cf.

CHAPTER III.

OF THE DEATH OF A PARTY TO THE CONTRACT.

§ 189. The general rule, that parties to the contract must alone be parties to the action, is further modified by certain circumstances, one of which, namely, the death of a party to the contract, will now be considered. By this circumstance, with the exception to be mentioned hereafter, (a) the obligation to perform, and the right to call for the performance of, the contract devolve on the representatives of the party dying.

§ 190. If the vendor of real estate die before completion, the contract may be enforced either by the purchaser, (b)' or by the personal representative of the vendor ; (c)' but in both cases the heir(d) or devisee(e) must be a party,' as having an

(a) See infra, § 199.

(b) Hinton v. Hinton, 2 Ves. Sen., 631; Barker v. Hill, 2 Rep. in Ch., 218.

(c) Baden v. Countess of Pembroke, 2 Vern., 212.

(d) Roberts v. Marchant, 1 Ha., 547; SC 1 Ph., 370; Lacon v. Mertins, 3 Atk., 1; Hoddel v. Pugh, 33 Beav., 489 (costs); cf. Longinotto v. Morss, 26 L. T., 828 (lease).

(e) Galton v. Emuss, 1 Coll., 243; Hale v. Bushill, 35 Beav., 343; Purser v. Darby, 4 K. & J., 41 (costs). See, too, London and SouthWestern Railway Co. v. Bridger, 12 W. R., 948. As to the cestuis que trust of real estate devised in trust, see 15 and 16 Vict., ch. 86, § 42, r. 9; Ord. XVI, rr. 7, 11.*

Where an objection is taken at the hearing, to the omission of a party as cestui que trust, by the defendant, he must show clearly the existence of the interest at the commencement of the suit; and the court is not bound to take notice of any interest in the subject of the suit, acquired by purchase since the suit was commenced. Cook v. Mancius, 5 John. Ch., 59.

Newton v. Swazey, 8 N. H., 9; Glaze v. Drayton, 1 Dessau., 109; S. P., Wilkinson v. Wilkinson, 1 id., 201.

A. sold a tract of land to B., a conveyance to be made on the payment of the second installment. A. became insane before the time arrived on which he was to convey, and died, leaving a widow and infant heirs, and a deed was made under order of the court. On a bill filed by the administrator and heirs of A. for specific execution, it was held, that the complainants not having conveyed was no objection to the bill; and that B. having had the use of the land, must pay interest on the purchase money, which could not be avoided by a tender to the wife, on condition of making title, in the absence and derangement of A. Boyce v. Prickett, 6 Dana, 231.

3 Where a vendor of lands holds notes for the purchase money, and assigns the notes, he transfers thereby his lien on the land to the assignee. The heirs of the assignor are necessary parties to a bill by the assignee to subject the equity of the vendee to satisfaction of the judgment on the notes; and where they were not made parties, time will be allowed to bring them before the court. Edwards v. Bohanan, 2 Dana, 97; Steele v. Steele, 4 J. J. Marsh., 231. In Lansdale v. Cox, 7 J. J. Marsh., 391, A. and B. being sureties in a bond, A. was obliged to pay the whole amount, and (the principle being insolvent)

interest in disputing the contract;' and it makes no difference that the legal estate is outstanding in a trustee. (f) As

(ƒ) Roberts v. Marchant, 1 Ha, 547; 1 Ph., 370. Distinguish Fowler v. Lightburne, 11 Ir. Ch. R., 495, 500.

brought this suit against the administrator and heirs of B. Held, that the heirs and devisees of two deceased children of B. should have been made parties. See Triplet v. Hill, 7 J. J. Marsh., 432. In Kenny v. Collins, 4 Litt., 289, A. brought his bill against B., alleging a purchase of land by C. from D., and a receipt of a bond from D. for the title; that C. sold the land to E., taking E.'s bond for the price, which bond was assigned to the complainant-that E. had died without having disposed of the land; and that B. intermeddling with E.'s estate, had become executor in his own wrong and had fraudulently obtained a deed of the land in his own name. The bill asserted a lien on the land, and prayed for a sale. Held, that A. was entitled to the benefit of C.'s lien on the land, but that the heirs of E. were necessary parties to the suit, and that the bill should be dismissed without prejudice. Carr v. Callaghan, 3 Litt., 365; Berry v. Berry, 3 Monr., 368. The widow and heirs of a deceased person sold lands of the estate, gave a bond for title, and took notes for the purchase money, in the name of the widow only. Held, that the heirs were necessary parties to a bill by the widow to compel payment of the purchase money, and that a sale of the land, under a decree in a suit by the widow alone, would not pass the title. Alexander v. Perry, 4 Humph., 391. In Lee v. Marshall, 2 Monr., 30, it is decided that all the devisees must be made parties to a bill to enjoin executors from selling land belonging to the testator's estate. But the heirs of a devisor, who has devised lands to other persons, are not necessary parties to a suit for the land, under adverse claims. Meriwether v. Hite, 2 A. K. Marsh., 181. And in Georgia, the lands of a deceased debtor are liable in equity for the payment of his debts, without making the heirs a party to the suit. Telfair v. Ral, 2 Cranch, 407. In New York, where a debt is specifically charged by the will of the testator upon certain real estate, such real estate is the primary fund for the payment of such debts, and the heirs at law are not necessary parties to the suit. Smith v. Wyckoff, 11 Paige, 49.

1 Lacon v. Meetins, 3 Atk., 1; Galson v. Emuss, 1 Coll. C. C., 243; Rutherford v. Green, 2 Ired. Ch., 121; Jacobs v. Locke, id., 286; Craig v. Johnson, 3 J. J. Marsh., 592; Glaze v. Drayton, 1 Dessau.'s Eq., 109; Morgan v. Morgan, 2 Wheat., 290; Buck v. Buck, 11 Paige Ch., 170; Robinson v. McDonald, 11 Tex., 385; Burger v. Potter, 32 Ill., 66; Moore v. Murrah, 40 Ala., 573; Newton v. Swazey, 8 N. H., 9; S. C., 9 id., 385; to the contrary, see Shannon v. Taylor, 16 Tex, 412. The object of making the heirs or devisees parties, being to divest them of the legal title which immediately vests in them upon the death of their ancestor, and which they were bound to convey to the vendee in a proper case. Mitchell v. Shell, 49 Miss., 118. New York State provides, by statute, that the "supreme court or county court shall have power to decree and compel a specific performance by any infant heir, or other person, of any contract or agreement made by any party who may die before the performance thereof; on the petition of the executors or administrators of the estate of the deceased, or of a person or persons interested in such contract, bargain or agreement, see N. Y. Rev. Stat. (6th ed.), p. 200, § 113. Where the executors have power to sell, or there are devisees, the heir need not be made a party unless there is reasonable ground to deny the validity of the will. Spier v. Robinson, 9 How. Pr., 325; West Hickory Mining Ass. v. Reed, 80 Pa. Stat., 38. In Iowa the statute makes the executor or administrator a proper party to an action to enforce specific performance of the contract of a deceased vendor, still it does not make him a necessary party. Rev. Stat. of Iowa, SS 2460, 2461; Judd v. Morely, 30 Iowa, 423. A bill was brough to compel specific performance of an agreement to assign, by one of the distributees of an estate, of all his interest in the undivided assets in the administrator's hands. Held, that all the distributees are necessary parties. Bogan v. Camp, 30 Ala., 276. All the co-heirs of a deceased vendor should join in a bill for specific performance of a contract for the mutual sale of land. Where one of the parties has died, his death should be proved, excusing the omission of not making him a party to the bill. Morgan v. Morgan, 2 Wheat., 290.

a purchaser has no right to insist on having the will proved against the heir, he is not a necessary party where there are devisees of the estate in question. (g)

§ 191. Formerly, where the heir was an infant, a difficulty arose ;(h) but this has been overcome by the seventh section of the trustee act, 1850, by virtue of which, where an infant is seized or possessed of any lands upon any trust, it is lawful for the court to make an order, vesting such lands in such person or persons in such manner and for such estate as the court shall direct;(i) and under the thirtieth section of the same act, the court is enabled, where it decrees specific performance of a contract concerning any lands, to declare that any of the parties to the action are trustees of the lands or any part of them.(j) It has been held under these sections that where the contract is merely executory, the court cannot, on petition only, declare the heir of the vendor a trustee for the purchaser, (k) but that it can do so where, during the vendor's life, the contract has been executed by payment of the purchase-money and the execution of a formal covenant to surrender. (7)

§ 192. Where the vendor leaves a widow, who, but for the contract, would be entitled to freebench, the contract may be enforced against her, and she must be a party;(m) and the same practice must be pursued in cases of dower of widows married since the 1st of January, 1834.(n)'

1

§ 193. Where a binding contract has been made by a vendor who subsequently dies, it would seem that, if the executors decline to enforce the performance, or to compel

(9) Harris v Ingledew, 3 P Wms., 91; Cotton v. Wilson, id., 190; Wakeman v. Countess of Rutland, 8 Ves., 233; Morrison v Arnold, 19 id., 670; Beales v. Lord Rokeby, 2 Mad., 227.

(h) Bullock v. Bullock, 1 J. & W., 603. (i) Re Howard, 5 De G. & Sm., 435.

(j) As to the costs of the infant heir, see Barker v. Venables, 13 WR, 803. (k) Re Carpenter, Kay, 418. (1) Re Cuming, L. R. 5 Ch., 72. (m Hinton v Hinton, 2 Ves. Sen, 631, 638; Brown v. Raindle, 3 Ves., 256. (n) 3 and 4 Wm. IV, ch. 105.

The case of Johnson v. Legard, here cited, does not seem thoroughly to establish this exception. The case came before the lord chancellor, on appeal, and judgment affirmed. The creditors of a vendor had filed a bill against the executors and heir of the vendor and the purchaser for specific performance. Limitations in a marriage settlement of the property in question to the brothers of the settler and their issue were held to be merely voluntary; but, under the circumstances of the case, it was decided that a purchaser could not be compelled to take the estate depending on the validity of those limitations. On the ground, therefore, that a good title could not be furnished, the bill was dismissed; but not, however, as has been inferred, solely for that reason; but also because the agreement for purchase was suspicious, "and it being doubtful whether the creditors could file such a bill."

the purchaser to do so, an action may be brought for the purpose of executing the contract by the creditors of the deceased vendor against the executors and heir of the vendor and the purchaser.(o)'

§ 194. In a case(p) where executors of a vendor of leaseholds to a railway company filed their bill for specific performance, alleging (truly) that they had not proved the will, but before the hearing of an interlocutory motion to restrain the company from continuing in possession, the probate had been obtained, it was held that the defendants could not resist the motion on the ground of the bill being demurrable.

§ 195. If the purchaser die before completion, the contract may be enforced either by or against the vendor or the heir or devisee of the purchaser; the personal representative being a party as having an interest in disputing the contract, and as being the hand to pay the purchase-money ;(2) and the heir or devisee of the purchaser being a party as being the person entitled to have the estate conveyed to him, and to insist on a proper inquiry into the title.(¿`)"

§ 196. The heir or devisee has no right to insist on the completion of a purchase, except where the contract is such as might have been enforced against his ancestor or testator; for otherwise he would be able to take the purchase-money from the personal estate, in order to purchase for himself

(0) See Johnson v. Legard, T. & R., 281; 1 Mad. Ch., 369.

(p) Newton v. Metropolitan Railway Co., 1 Dr. & Sm., 583.

(g) Buckmaster v. Harrop, 7 Ves., 341; S. C., 13 id., 456, where the residuary legatees

were made parties; and see Holt v. Holt, 2 Vern., 322; Bradeld v. Scriven, 22 W. R., 202 (decree against executor with costs).

(r) Townsend v. Champernowne, 9 Pri., 130.

1 This is undoubtedly the rule (Champion v. Brown, 6 John. Ch., 398), except where the agreement is for a purchase out of the personal estate. In this case the agreement must have been binding upon the parties contracting, so that the property was converted, in equity, before death. 2 Story's Eq. Jur., 790. Buckmaster v. Harrop, 7 Ves., 311; Broome v. Monck, 10 id., 597. This proceeds on the principle that, in equity, money agreed to be laid out in land, is considered as land, and land agreed to be turned into money, as money. Stevenson v. Tandle, 3 Hayw., 109; 2 Story's Eq. Jur., §§ 790, 791, 1212.

Townsend v. Champernowne, 9 Price, 130; Lord v. Underdunk, 1 Sandf. Ch., 46; Miller v. Henderson, 10 N. J. Eq., 320. As to making heirs of deceased partner parties, see Knott v. Stephens, 3 Oregon, 269. That the heirs, and not the administrator, should file a bill, see House v. Dexter, 9 Mich., 246; Webster v. Tibbitts, 19 Wis., 438. As to making the executors or administrators of a deceased vendee parties, Coke v. Evans, 9 Yerg., 289; Peters v. Jones, 35 Iowa, 512; 1 Danl's Ch. Pr. (4th amend. ed.), 285; Harding v. Handy, 11 Wheat., 104; Downing v. Risley, 15 N. J. Eq., 93; Ashertz's App., 34 Pa St., 375; Jackson v. McCoy, 56 Miss., 78.