that which his ancestor was not bound to purchase, and perhaps never would have purchased. (s)

§ 197. In a case where, after a suit had been instituted by a vendor against a purchaser, and a reference of title and report in favor of it had been made, the purchaser died, the court, on the application of his real and personal representatives, ordered the plaintiff to revive, or, in default thereof, that his bill should stand dismissed. (t)

§ 198. Where a person who has agreed to take a lease dies, the executors admitting assets may be compelled to take a lease, the covenants being so qualified as that the executors shall be no further liable thereon than they would have been on the covenants which ought to have been entered into by their testator. (u)

§ 199. The maxim actio personalis moritur cum personá has no reference to legal proceedings arising from contract. But an exception to the devolution of the liability to perform contracts by the death of one of the parties, arises in all cases in which the personal skill or taste of one of the contracting parties is required; for in such cases the death of that party discharges the contract, and exempts his personal representatives from liability for the breach of contract occasioned by non-performance after his decease (v)— an exception obviously grounded on the same principle as the non-assignability of such contracts, hereafter considered. (w) On this principle it has been decided that, if an author contract to complete a work, and die before doing so, his executors will be dischargnd from the contract; (x) or, if a master contract to teach an apprentice, and die before the expiration of the term, his representatives will be equally excused. (y) And in one case a contract to build a lighthouse was, from the skill and science involved in its performance, held to be a personal contract. (z) This principle would, of course, apply as much in actions for specific performance as in actions for damages.

(8) Broome v. Monck, 10 Ves., 597; Buck master v. Harrop, 13 id, 471, 472; Savage v. Carroll, 1 Ball & B, 265, 281; Garnett v. Acton, 28 Beav., 333; Collier v. Jenkins, You 295. Consider Ingle v. Richards (No. 1), 28 Beav., 361, 364.

(t) Norton v White, 2 De G. M. & G., 678. (u) Phillips v. Everard, 5 Sim., 102; Stephens v. Hotham, 1 K. & J., 571. See, also, Page v. Broom, 3 Beav., 36. Distinguish Blosse v. Prendergast (13 Ir. Ch. R., 373),

where the lease had been executed by the lessor, but not by the lessce, before the latter's death.

(v) Per Lord Wensleydale in Siboni v. Kukman, 1 M. & W., 423. (w) See infra, § 203.

() Marshall v. Broadhurst, 1 Tyrw., 349; S. C., 1 Crompt. & Jer, 405

(y) Baxter v. Burfield, 2 Str, 1266.

(z) Per Patteson, J., in Wentworth v. Cock, 10 A. & E., 45.

CHAPTER IV.

OF AN ASSIGNMENT OF THE CONTRACT OR OF THE PROPERTY.

§ 200. As a general rule, the benefit of a contract may be assigned in equity, and the assign can enforce specific performance of it, making his assignor a party. (a)' Thus,

(a) Of course, if a new contract has been come to between the assignee and the person who originally contracted with the assignor,

the assignor is not a necessary party to an
action brought on the new contract.

1 Where a contract has been assigned, the assignee cannot be compelled to perform; there is no contract between the vendor and the assignee. It makes no difference that payments have been made by the assignee The vendor must enforce the agreement against the original vendee. Corbus v. Tweed, 69 Ill., 205. In Hanna v. Wilson, 3 Dratt., 293, it was held that the assignee att an might maintain an action for specific performance against the vendor, provided the assignor was made a party. Where the assignment is absolute, and the assignor has no equitable interest, he need not be made a party. Brace v. Harrington, 2 Atk., 238; Trecothick_v. Austin, 4 Mason, 41; Whitney v. McKinney, 7 John. Ch., 144; Miller v. Bear, 3 Paige's Ch., 467; Colenick v. Hooper, 3 Ind, 316; Miller v. Whittier, 32 Me., 203; Currier v. Howard, 14 Gray, 511. The assignee of one of several obligees, in a bond for the conveyance of real property, commenced an action and subsequently acquired the interest of all the obligees in the bond. Such action was no bar to a subsequent action for specific performance, where the same parties were interested concerning the same property. Knott v. Stevens, 3 Oregon, 235. Where the original parties to a contract would be entitled to a decree of specific performance, all parties who claim under them have their rights, always provided that no equities intervene. Hays v. Hall, 4 Porter, 374; McMorris v. Crawford, 15 Ala., 271; Ewins v. Gordon, 49 N. H., 444. A. sold land to B., and reserved a right of way. B. executed a bond to A., agreeing to make the passage-way on demand, after a given time. The land was afterwards sold to C., subject to the reservation. B. and C. were requested to make the passage-way, and neglected to do so. Held, that the bond was a personal obligation, and that B., having sold the land, could not be compelled to specifically perform. Smith v. Kelley, 56 Me., 64. A lease was assigned, which had in it a covenant for renewal. Held, that the assignee could maintain an action for renewal, as against the covenantor. Robinson v. Perry, 21 Ga., 183. The assignee of a chattel received the legal title, subsequent to the making of a contract respecting the same property, which did not pass the legal nor the equitable title. Held, that a court of equity will not decree specific performance against the assignee, notwithstanding he acquired with notice. Maulden v. Armistead, 18 Ala., 500. As to the power of an assignee of a chose in action to sue at law in Massachusetts, see Walker v. Brooks, 125 Mass., 241.

Who should join in action?] Where a contract has been assigned, all the assignees, through whose hands it has passed, should be joined in an action for specific performance. Estill v. Clay, 2 A. K. Marsh., 497; Allison v. Shilling, 27 Tex., 450.

Assignee in bankruptcy, when a party.] The vendor of land executed a bond for title, but did not receive the whole of the purchase money, and afterwards became bankrupt. Held, that his assignee in bankruptcy was a proper party

for example, where there was a contract for a lease, which contained nothing to show that it was made with the assignor (who had become insolvent) from any personal motive, and the assign was solvent, the contract was enforced in favor of the assign. (b)

(b) Crosbie v. Tooke, 1 My. & K., 431; Morgan v. Rhodes, id.. 435 But see Dowell v. Dew, 1 Y. & C. C. C, 345, where Knight Bruce, V. C., refused to grant specific performance of a contract for a lease to an assignee,

Similarly, where there is

except upon the terms of the assignor entering into the covenants of the lease This decision was affirmed by Lord Lyndhurst, 12 L. J. Ch., 158. See infrá, § 205.

defendant, and must be so made in an action for specific performance of the contract to convey. Lampson v. Rouse, 65 N. C., 34.

Where property is sold under a decree.] Where property is sold under a valid decree, the purchaser of a vendor's title stands in his shoes, and may maintain an action for specific performance against the vendor. He may file a bill to sell the premises in default of payment, and may discharge himself from the vendee's equities. The vendee, however, has no right to a decree of sale against the vendor for the purpose of paying the unpaid purchase money. Fitzhugh v. Smith, 62 Ill., 486 After execution against the vendee, see Tomlinson v. Blackburn, 2 Ired. Eq., 509.

Assignee's liability with notice; rule.] A party having entered into an agreement for the sale of property, and afterwards assigns the same, or contracts to do so to a person having notice of the original contract. Held, that the assignee would be liable to perform it at the suit of the purchaser. All parties claiming any interest in the land, obtained after the date of the contract sought to be specifically enforced with notice, are necessary parties to the action to compel conveyance. Hersey v. Gillett, 18 Beav., 174; Foss v. Haynes, 31 Me., 81; Lanerty v. Moore, 33 N. Y., 658; New Barbadoes Bridge Co. v. Vreeland, 4 N. J. Eq. (3 Green), 157; Morris v. Hoyt, 11 Mich., 9; Seager v Burns, 4 Minn., 141; Stone v. Buckner, 12 Smed. & Marsh, 73; Scarborough v. Arrant, 25 Texas, 129; Fullerton v. McCurdy, 4 Lans. (N. Y.), 132. Notice to an agent is notice to the principal. Bryant v. Booze, 55 Ga., 438. As to liability with notice, see Bird v. Hall, 30 Mich., 374.

Deed held as escrow.] A. held a deed as an escrow, and refused to deliver it. Held, that he was a proper party in an act for specific performance of the instrument. Davis v. Henry, 4 W. Va., 571.

Equitable title; action by holder.] The holder of an equitable interest in land contracted to convey an interest in the same subject to the approval of the owner, but with his knowledge. The purchaser, at great expense, improved the value of the property. Held, that the contract would be enforced, subject to the rights of the holder of the legal title for a sum due him. Booders v. Murphy, 78 Ill., 81.

1 1 A., being the owner of a tract of land supposed to contain minerals, on the 21st of January, 1839, by a written instrument granted liberty to B. to dig a mine on such land, and to carry away any mineral which he might dig thereon within one year; and B., on the 11th of May, 1839, by a writing signed by him on the back of such instrument, assigned to C. all his interest, right and privilege in the land therein mentioned, with the appurtenances, and all the benefit and advantages derivable from such instrument; after which B. brought a bill in chancery against A. for specific performance of the agreement. Held, 1st, that the agreement was not of a fiduciary character, or in the nature of a personal confidence, so as to be incapable of assignment; nor, 2d, was the interest of B. of that uncertain and contingent kind, that it could not on that account be transferred; and consequently that B. having parted with all his interest in the subject of the bill, it ought for that reason to be dismissed. Gaston v. Plum, 14 Conn., 344. The captain of a steamboat, as such, entered into a contract for carrying the mails on board the boat, and afterwards, freely and fairly, assigned it to the owners of the boat, by an instrument under his hand

nothing personal in the contract or the motives to it, a person who has appeared as agent may afterwards disclose himself as a principal, and enforce the contract in his own name (c) And where A. contracted for an estate from B., A. having previously agreed with C. to sell the estate to him, and B. resisted performance on this amongst other grounds; the price being adequate, and B. not suggesting that he had ever refused, or was unwilling, or would have objected to treat with C., or might have obtained better terms from him, had he known the real circumstances of the case, specific performance was granted at the suit of A. and C.(d)

§ 201. An assign of a contract by way of mortgage may enforce his security by means of specific performance. Thus, in a case decided by Lord Hatherley (then Wood, V. C.), where A. had agreed to sell certain property to B., and then had mortgaged his interest under this contract to (c) Fellowes v. Lord Gwydyr, 1 R. & My., (d) Nelthorpe v. Holgate, 1 Coll, 203.

83.

and seal. Held, that the assignment was valid, and that the captain was estopped from denying that the contract was assignable. Roorback v. North River Steamboat Co., 6 John. Ch., 469 The purchaser at a master's sale may assign his bid before the execution of the master's deed; and on application by the assignee, the court will direct a conveyance immediately to him. Proctor v. Farnan, 5 Paige, 614. In New York, any estate in personal property, and a mere possibility when coupled with an interest in real estate, has always been assignable. Lawrence v. Bayard, 7 Paige, 70. So may an assignee of an assignee of a copartner in a joint purchase and sale of lands, sustain a bill in equity against the other copartners; and the agent of the partnership to compel a discovery of the quantity purchased and sold, and for an account and distribution of the proceeds. Pendleton v. Hambersie, 4 Cranch, 73. In McKee v. Hoover, 1 Monroe, 32, it is held that a contract by one person to serve another for a certain length of time, imposes on him an obligation of servitude, and such contract may be assigned so as to transfer the term. But perhaps the case is somewhat at variance with other opinions. See Davenport v. Gentry, 9 B. Monr., 427. The right to reclaim usury is assignable in equity. Breckenridge v. Churchill, 3 J. J. Marsh., 11. The claim to a legacy is strictly an equitable claim, and the whole interest therein may be passed by the legatee by an assignment. King v. Berry, 2 Green's Ch., 44. Entries of land are assignable in Kentucky; but not in Virginia, though warrants and surveys may be so passed. Hart v. Benton, 4 Bibb, 420, and 3 id., 534. In Alabama, a widow may assign her interest in her husband's estate, and such assignment is sufficient, in equity, to pass such interest to the assignees. Powell v. Powell, 10 Ala, 900. An order drawn by a legatee for value, on the executor for the amount of his legacy, payable out of the fund provided by the testator for that purpose, is an equitable assignment of the legacy. Anderson v. De Soer, 6 Gratt., 363. And in Nimmo v. Davis, 7 Texas, 26, it is said that all contingent and executory interests may be assigned in equity, and will be enforced if made for a valuable consideration; and all contingent estates of inheritance as well as springing and executory uses and possibilities, coupled with an interest, if the person to take is certain, are transmissible by descent, devisable and assignable. But it has been said that a contract is only assignable when the entire interest therein can pass by the assignment, both legal and equitable. White v. Buck, 7 B. Monr.,

C., and C. had assigned his mortgage to D., it was held that D. (submortgagee) might maintain a bill against the purchaser B. for the performance of the original contract between him A.(e)

§ 202. The assignability of contracts in equity is, however, subject to some exceptions and limitations, which, for the most part, fall under one or other of the following classes, viz.: (1) where the contract is personal; (2) where the contract contains a provision against assignment; and (3) where the assignment is illegal or contrary to public policy.

§ 203. (1) It is an obvious principle, that where the learning, skill, solvency, or any personal quality of one of the parties to the contract is a material ingredient in it, then the contract can be performed by him alone. It may be a matter of indifference to A. whether B. or C. be the purchaser of the stock or paid-up shares he is selling; but it is a matter of great moment whether a distinguished artist, or his nominee, paint a picture for which A. may have agreed to pay a certain sum. Accordingly, in the case of contracts of the latter kind, it is not competent to a person, who has appeared as agent for a principal on whose personal qualities reliance has been placed, to show himself to be the principal and to sue in his own name;(ƒ) in respect of such contracts bankruptcy confers no claim on the trustee ;(g) and the benefit of such contracts is incapable of being assigned. (h)

§ 204. Thus, where a contract established a personal relation between an author and his publisher, it was held that it was incapable of assignment. (i) So where a coachbuilder contracted with A. to supply him with a chariot for five years, and within that period the coachbuilder assigned the contract to a third person, it was held that A. had a right to have the benefit of the judgment and taste of the coachbuilder to the end of the term, and consequently that an action brought by the coachbuilder and his assign against

(e) Browne v. London Necropolis Co., 6 W. R., 188. In this case, however, specific performance was, on another ground, refused. (f) Per Alderson, B., in Rayner v. Grote, 15 M. & W., 365. See supra, § 199.

(g) Per Lord Abinger, C. B., in Gibson v. Carruthers, 8 M. & W., 343. Cf. Drake v.

Mayor of Exeter, 1 Eq. Cas. Abr., 53 (and the notes to Hovenden's edition of Freeman, vol. 2, p. 153); also Vandenanker v. Desbrough, 2 Vern., 96; Moyses v. Little, id., 194.

(h) Distinguish Jalabert v. Duke of Chandos, 1 Eden, 372 (keepership of walks). (i) Stevens v. Benning, 1 K. & J., 168.