sequently he would be subject to actions for sinking shafts to work the mines; Lord Eldon, after shewing the improbability of any obstruction from the commoners, said, that in case such an action were brought, he should think a farthing quite damages enough; and therefore decreed a performance in specie. This case, like the last, must be considered to have turned on the improbability of the purchaser being disturbed; otherwise it seems to have gone to the utmost verge of the law; for although such trifling damages could only be recovered, yet that would not be ground for a nonsuit, as was decided in the late case of Pindar v. Wadsworth (2). The estate, therefore, would subject the purchaser to litigation, whenever malice or caprice might induce any of the commoners to commence actions against him. So a mere suspicion of fraud, which cannot be made out, will not enable a purchaser to reject the title. This was decided by Lord Eldon in a case where, under an exclusive power of appointment, a father appointed to one son in fee; and then the father and his wife and the son joined in conveying to a purchaser, and the money was expressed to be paid to them all. The title was objected to on the ground of an opinion, by which it appeared, that the father first sold the estate, and then the appointment was devised to make a title, and the purchase deed recited that the contract was made with the father and son. And it was insisted, that if the father derived any benefit from the agreement, or even made a previous stipulation, that his son should join him in a sale, which there appeared the strongest reason to apprehend, it would have been a fradulent execution. But Lord Eldon overruled the objection, as it did not appear that the estate sold for less than its value, or that the son got less than the value of his reversionary interest, but (z) 2 East, 154. merely merely that he, as the owner of the reversion, acceded to the purchase (a). But if any person has a claim upon the estate which he may enforce, a purchaser cannot be compelled to take the estate, however improbable it may be that the right will be exercised. Thus in the case of Drewe v. Corp (b), the vendor was entitled to an absolute term of 4000 years in the estate, and also to a mortgage of the reversion in fee, which was forfeited, but not foreclosed. It was decided, that the purchaser who had contracted for a fee, was not bound to take the term of years. Nor was he compelled to take the title on the ground of the vendor having a forfeited mortgage in fee of the reversion, although it was evidently highly improbable that any one would ever willingly redeem a forfeited mortgage of a dry reversion expectant upon an absolute term of 4000 years, So in a late case (c), where in 1704 the estate was sold with a reservation of salt-works, &c. with a right of entry, and the estate was sold in 1761, and no notice taken of the reservation, and the right had never been exercised: the Master of the Rolls was of opinion that non-user did not in this case raise the inference, that the right was abandoned, and consequently the purchaser was entitled to take the objection, and his honour distinguished this from the case of Lyddal v. Weston (d); first, because it was not alledged that there was no probability of mines, it was rather admitted that there were: secondly, here was the reservation of a right of entry upon the want of which Lord Hardwicke laid stress in that case. In the case before his honour, the purchaser chose to consider this not as an objection to the title, but as a ground for compensation, and it was decreed accordingly. (a) M'Queen v. Farquhar, 11 Ves. Jun. 467; see post, ch. 17; and see Barnwell v. Harris, 1 Taunt. 430. (b) Vide supra, p. 253. (c) Seaman v. Vawdrey, 16 Ves. Jun. 390. (d) Supra, p. 296. Where Where an abstract begins with a recovery to bar an intail, it is usual in practice to call for the deed creating the intail, in order to see that the estate tail and remainders over, if any, were effectually barred (I). But if the deed is lost, and possession has gone with the estates created by the recovery, for a considerable length of time, and the presumption is in favour of the recovery having been duly suffered, the purchaser will be compelled to take the title, although the contents of the deed creating the intail do not actually appear (e). pos Where a vendor is tenant in tail, with reversion to himself in fee, and the reversion has vested in different persons, a common recovery is generally required by a purchaser; because that bars the remainder, while a fine lets it into session, and thereby subjects the whole fee to any incumbrance which before affected the reversion only. But unless some incumbrance appear, or the title to the reversion is not clearly deduced, the court will not compel a vendor to suffer a recovery, on account of the mere probability of the reversion having been incumbered. Thus in a late case (f), upon an exception to the master's report in favour of the title, the objection to the title was, that one Elizabeth Baker ought to join in a recovery; the title being derived from John Paine, who, in 1693, limited the estate to the use of himself for life; remainder, subject (e) Coussmaker v. Sewell, Ch. 4th May, 1791, MS. Appendix, No. 13. (f) Sperling v. Trevor, 7 Ves. Jun. 497. (I) This makes it advisable in deeds to make a tenant to the precipe, or to lead the uses of fines, to recite so much of the instrument under which the tenant in tail claims, as will manifest his power of barring the estate tail and remainders over. to to a term, to uses which never arose; remainder, to his daughters in tail; remainder to himself in fee. Under these limitations Elizabeth, an only daughter, became seised in tail, with the immediate reversion to her father, who made a will, not executed so as to pass real estate, whereby he devised all his estate to his second wife. Upon his death Elizabeth his daughter entered, and levied a fine. She had issue a daughter, Elizabeth, who married William Baker. They had issue one daughter, Elizabeth Baker. From her the estate was purchased under a decree, and by mesne purchases became vested in the plaintiff. The defendant, the purchaser suggested, that the ultimate remainder in fee might have been by deed or will disposed of by John Paine, or by any other person to whom it might have descended; and if the same should have been so disposed of, it could then be barred only by Elizabeth Baker. The Lord Chancellor held a recovery not necessary. It will occur to the learned reader, that, notwithstanding the defendant's suggestion, it was highly improbable that the reversion was disposed of by John Paine in his lifetime, such an interest not being marketable; and as he devised all his estate by his will, there was no ground to presume that he made another will. Upon his death, therefore, the reversion descended to his daughter, who by her fine reduced it into possession, and consequently no incumbrance could afterwards be created upon it, as a reversion distinct from the particular estate. At this day it frequently happens, that in deeds securing debts on real estate, the estate is authorised to be sold without the assent of the owner, in case default is made in payment of the money on the day named. Such a security is far a mortagage, that the owner may at any time before a sale require a reconveyance upon paying the money due; and in consequence of the old rule, that once a mortgage always a mort a mortgage, the owner is in these cases usually required to join in the conveyance, which he is mostly unwilling to do; his object being to prevent a sale. But it has been decided by Lord Eldon, that the objection cannot be sustained, and this decision was made in a case where the deed was in form a regular mortgage with a power of sale, and the mortgagor in his answer stated that he actually resisted the sale as having been made without his consent and at an undervalue (g). This has been followed in many later cases, and is now an established rule (h). It is clear that a woman is barred of her dower both at law and in equity, by a legal term created previously to her right of dower attaching on the estate, of which an assignment has been obtained by a purchaser to attend the inheritance (2). For although she can recover her dower at law it will be with a cesset executio during the term, and equity will not remove the bar. But notwithstanding that a purchaser can obtain an assignment of an outstanding term, which will bar the vendor's wife of her dower, a fine is always required from the vendor and his wife at his expense. Upon the authority of the anonymous case before Lord Eldon, before cited (k), it perhaps might be doubted, whether a court of equity would not enforce a purchaser to accept the title without a fine. It must at the same time be observed, that in that case the vendor could not make the title perfect; whereas in the case under consideration a ven (g) Clay v. Sharpe and others, Ch. Mich. Term. 1802. Lib. Reg. A 1802. fo. 66. Appendix, No. 14. (h) Baker v. Dibbin, Dibbin v. Baker, Exch. April 20, 1812, MS. Corder v. Morgan, 18 Ves. 344. Note Stabback v. Leatt, Coop. 46, which was taken from a hasty (i) Vide infra, ch. 9. dor |