Jackson v. Edwards, deed showing a purchase of an outstanding claim or right, and thereby make a title to the lots sold, which did not exist at the time of the master's sale; and II. That if the complainants were permitted to make a title which did not exist at the time of the purchase, the master ought to take testimony (which was accordingly offered to be given,) showing a depreciation which had taken place in the value of the lots since the same were struck off to the purchaser : which objections the master reported he overruled as not embraced within the order of reference, and therefore not within his power to hear. To this report both parties excepted the complainant excepted, because the master had not reported that the title was sufficient without the deed or appointment of Mrs. Edwards; and the purchaser excepted, because the master had not reported that a good title. would not pass under the proceedings in the suit, or otherwise, and because he overruled the additional objections made on the hearing, and refused to receive testimony in support of the second objection. The case was heard before the vice chancellor on the 28th February, 1838, on the master's report in respect to the title, and the exceptions to the report, on which occasion was offered and read subject to objection, an affidavit of the purchaser, that he purchased the lots struck off to him with a view to a resale; that about 1st May, 1837, could he have given a good title, he could have obtained for the lots $6600; that from about 1st June, 1837, the lots have been gradually and extensively depreciating in value, and that since 1st October, 1837, they have not been worth more than $4500, and on the 24th May, 1838, the vice chancellor denied the motion to compel the purchaser to take the title and complete his purchase; he holding that the exception which related to the inchoate rights of dower of the femes covert was well taken, although they were parties to the record, in conformity to a former decision made by him. in 1 Edward's Ch. R. 565. From this decretal order, there was an appeal to the CHANCELLOR, who, on the 29th March, 1839, affirmed the order of the vice chancellor, but on a different ground from that taken by him. The chancellor Jackson v. Edwards. held, that a sale under a judgment or decree in a partition suit bars or extinguishes the contingent right or interest of the wife of a tenant in common, where she is made a party to the suit with her husband, and that, whether she be an infant or adult; but he further held, that such great delay had occurred in perfecting the title, that the purchaser ought not to be compelled to complete the purchase, and, for the latter reason, affirmed the order appealed from. See the opinion of the chancellor, 7 Paige, 386. From the decree of affirmance, the complainants below appealed to this court. Besides the appeal in this cause, there were four other appeals resting upon precisely the same grounds. It is necessary, to the full understanding of the points made by counsel on the argument and the opinions delivered in this court, that it should be further stated, that the parties to the suit in partition derived their title, either by devise or descent, since 1830, and that the marriage between David S. Jackson and his wife Sarah took place subsequent to the commencement of the suit in partition. The case was argued in this court, by W. Silliman, for the appellants. C. O'Connor, for the respondents. Points made and argued by the counsel for the appellants: I. The vice chancellor erred in deciding that the inchoate rights of dower of married women cannot be sold by proceedings under the statute for the partition of lands; because, 1. The decision is in direct hostility to the plain and explicit terms of the statute, 2 R. S. 251, § 62, 2d ed. which provides that " such conveyances" as therein specified" shall be a bar both in law and equity against all persons interested in such premises in any way who shall have been named as parties in said proceedings," and § 89, p. 254, which provides that "the final decision," &c. "shall be binding and conclusive on all parties named in the said proceedings," &c. 2. The inconveniences which would result from such a doctrine forbid a judicial repeal of the statute. Jackson v. Edwards. Establish that doctrine, and in the present case no partition could be made until six years hence, when the wife of D. S. Jackson will arrive at the age of twenty-one, and be competent to release her inchoate right of dower; and if at that time she should capriciously refuse, the tenants in common must delay the partition until the death of herself or her husband shall destroy this inchoate right of dower. 3. This doctrine of the vice chancellor is an entire novelty, with the exception of his own decision in the case of Mathews v. Mathews, 1 Edw. Ch. R. 565. None of the doctrines laid down in this case entitle it intrinsically to any respect; (see 2 R. S. 454, as respects the right to partition within three years after the testator's death ;) and as respects the legality of selling the inchoate rights of dower under proceedings in partition, it is at variance with the decision of Chancellor Walworth, in this case and in the case of Williamson v. Parish, 3 Paige, 653. II. The chancellor, on appeal, overruled this doctrine of the vice chancellor, but sustained his decision on the ground of the complainant's delay in perfecting the title. If such delays as the chancellor supposes did in fact exist, they furnish no ground for the discharge of the purchaser; because, 1. There is no precedent for discharging purchasers on such a ground, nor has the chancellor cited or been able to find any such precedent. In the multiplicity of causes of this sort which have been brought before the courts, if the law were as the chancellor supposes, some single precedent bearing some analogy to this case would doubtless have been found. 2. The precedents and the whole current of authority are all the other way, shewing the law always to have been otherwise. And the courts have gone so far, as upon a bill filed by a vender to compel a specific performance by a purchaser of his agreement to purchase land, when it appeared at the hearing of the cause that there was a defect of title which might probably be removed by the vendor's filing a bill and prosecuting a suit in chancery against another party, the court has stayed a decision until the result of such proceedings could be known. See Sugden on Vendors, Jackson v. Edwards. 268 to 278. In most cases not tainted with fraud, liberal time has been allowed to vendors to perfect their title, even after a master's report against it, if it appeared probable that in reasonable time the title could be perfected. Lapse of time is not, in general, a valid objection to decreeing specific performance. Waters v. Travis, on appeal, 9 Johns. R. 450, in which case the lapse of time was fourteen years, during which the purchaser had been urged for payment. Pierce v. Nichols, 1 Paige, 244. Seymour v. Delancy, 3 Cowen, 445. Dunham v. Minard, 4 Paige, 441. The court have often compelled a purchaser to take a part of the thing purchased, or something different from that purchased, with compensation for the residue when the seller could not give a good title to the whole. King v. Bardeau, 6 Johns. Ch. R. 38, and the cases there cited. Sugd. on Vend. 198 to 206. Winne v. Reynolds, 6 Paige, 407. III. Bloodgood alone, of all the purchasers, complains that he purchased on speculation, and that the value of his purchase has depreciated by a change of times. If there is any thing in this objection, it does not apply to any other of the purchasers who have made no such allegation. This objection of Bloodgood has no validity, for this, among other reasons, that he waited until after the title was pefected for another change of times, whereby he might realize a profit; and after the title was perfected, finding the speculation would be unprofitable, he made his affidavit in order to get rid of it. This affidavit was sworn on the 12th of February, 1838, until which day he chose to wait for a profit on his speculation, although the master reported a perfect title on the 8th of January, 1838. IV. The order referring the objections to title to the master bears date on the 17th day of April, 1837. If Mr. Bloodgood or the other purchasers had suffered any loss in respect to contemplated speculations or otherwise, before this time, they should have shown their loss on the application for this order, and should have resisted the order; and if improperly made against them, should have appealed. By acquiescing in the order, they waived all previous de Jackson v. Edwards. lays, if any existed on the part of the complainants, of which they might have taken the advantage. V. Delays which may happen pending a reference of title, have never been deemed sufficient to discharge the purchaser; they should never have such an effect, where, as in this case, all parties have consented to or acquiesced in them. By the 101st rule of the court of chancery, either party is allowed to expedite a reference before a masterthe purchasers should have done so, and should have obtained his report and applied to be discharged from their purchases, if they desired expedition. But so long as they chose to let the matter rest there, the complainants were at liberty to busy themselves in removing any fancied objections to the title. VI. The objections to title specified in the stipulations of all the purchasers, (except Bloodgood,) which stipulations were the foundation of the orders of reference, relate exclusively to the effect of the infancy of some of the parties, and those objections only were referred, although the purchasers did, without any right, present other objections to the master. Bloodgood's case differed from those of others, only in that his objection to title was presented verbally, and theirs by written stipulation. VII. It was not necessary to make the children of Mrs. Edwards parties to the partition suit-and the title of the purchasers was perfect without her deed, because, 1. The contingent interest of the children of Mrs. Edwards is in "such child or children or other issue" of Mrs. E. as may be living at the time of her death. The children or issue who may take under this clause are perhaps not yet begotten, and therefore could not be made parties. 2. The statute gives Mrs. Edwards a fee (as respects purchasers) under such a conveyance to her as that in question. 3. The answer of Mrs. Edwards, consenting to a sale, &c. her consent signed with her own hand to the draft of the decree for partition, and the decree of the court and sale made thereupon, is a sufficient execution of her power of appointment, to take away any contingent interest of her children. Carter v. Carter, Mose. 365. Fortescue v. Gregor, 5 Ves. VOL. XXII. 64 See |