It may here be mentioned, that there are some cases in which it is a rule of the Court not to make any decree whatever till certain preliminary inquiries have been made; this rule is invariably acted upon in suits for the specific performance of contracts, and the Court will not permit the question, whether a good title can be made or not, to be argued before it, in the first instance, even though the objections to the title are stated and the questions arising upon them are properly raised by the pleadings. The principles upon which this practice was founded are clearly laid down by Lord Eldon, in Jenkins v. Hiles,1 and are apparently applicable to the present day.

It may be noticed here, that the terms in which the direction for a reference, as to the title of a vendor, is framed, are not to inquire whether he could make a good title at the time of entering into the contract, but whether he can, i. e. at the time of the reference, make a good title; 2 and, under such reference, it has been held, that if the vendor can show a good title, at any time before the certificate, it will entitle him to a decree;3 and, even after

feigned issue, for the purpose of ascertaining any material fact in the case, has been held to be a final decree. See Travis v. Waters, 12 John. 500.

16 Ves. 646; Gaston v. Frankum, 2 De G. & Sm. 561.

2

Langford v. Pitt, 2 P. Wms. 630. But see Richmond v. Gray, 3 Allen, 25. Mortlock v. Buller, 10 Ves. 292, 315; Hepburn v. Dunlap, 1 Wheat. 179. A Court of Equity will not decree the specific performance of an agreement of sale, and oblige the purchaser to accept a title, which the vendor cannot make out to be clearly good and free from incumbrance. Butler v. O'Hear, 1 Desaus. 282; Lewis v. Herndon, 3 Litt. 358; Kelley v. Bradford, 3 Bibb. 317; Seymour v. Delancey, 1 Hopk. 436; Young v. Lillard, 1 Marsh. 482; Morgan v. Morgan, 2 Wheat. 290, 299; Reed v. Noe, 9 Yerger, 283; Watts v. Waddle, 6 Peters, 389; 1 Sugden, V. & P. (7th Am. ed.) 505 et seq., and notes; Gans v. Renshaw, 2 Barr. 34.

"A Court of Equity will not now compel a purchaser to accept a title, which is so doubtful that it may expose him to litigation, though the Court may believe it to be good." Chapman J., in Richmond v. Gray, 3 Allen, 27; Park v. Johnson, 7 Allen, 383. See Fry on Contr. § 573 et seq.; Pyrke v. Waddingham, 10 Hare, 1. A purchaser cannot be compelled to take land, which is involved in doubt or dispute as to boundary. Voorhees v. De Meyer, 3 Sandf. Ch. 614.

It it sufficient, however, if the vendor is able to make out a good title before decree pronounced, although he had not a good title when the contract was made. Hepburn v. Auld, 5 Cranch, 262, 275; Finley v. Lynch, 3 Bibb, 566; Tyree v. Williams, 3 Bibb, 366; Seymour v. Delancey, 3 Cowen, 445; Pierce v. Nichols, 1 Paige, 244; Colton v. Ward, 3 Monroe, 304, 313; Baldwin v. Salter, 8 Paige, 473; Dutch Church, &c. v. Mott, 7 Paige, 78. Unless the vendee has objected to a completion of the purchase, seasonably, after discovering the want of title

the certificate, if the vendor can satisfy the Court that he can make a good title, by clearing up the objections, the Court will make a decree in his favor.1

It is to be observed, that the question, whether a vendor was or was not able to make a good title, at the time of the reference, is a very material one with reference to costs, though not with reference to the decree for a specific performance,2 the rule of the Court being, that a vendor is not entitled to costs, except from the time when his title is reported complete; and that, up to that time, he must pay costs himself. In consequence of this rule, the Court adopted the practice, at the same time that it inquires into the vendor's title, to direct the Master, in case he should be of opinion that a good title can be made, to inquire and state to the Court, when it was first shown that it could be made. The

in his vendor. Richmond v. Gray, 8 Allen, 29, 30, 31; Wynn v. Morgan, 7 Vesey, 202; Hoggart v. Scott, 1 Russ. & My. 293; Hepburn v. Auld, 5 Cranch, 189. When there is any doubt or difficulty about the title, it is usually referred to a Master to be examined and reported on. Pierce v. Nichols, 1 Paige, 246; M'Comb v. Wright, 4 John. Ch. 659, 670. But Equity will not relieve a purchaser who had a full knowledge of the defect in the title; Craddock v. Shirley, 3 Marsh. 288; or if his conduct has amounted to a waiver of the objection. Roach v. Rutherford, 4 Desaus. 126. See Ramsey v. Brailsford, 2 Desaus. 590, 591; Barrett v. Gaines, 8 Ala. 373.

There are many cases where Courts of Equity have, upon their own opinion, compelled an unwilling purchaser, to accept a title depending on questions of great nicety. 1 Sugden V. & P. (7th Am. ed.) 516 et seq., and notes; Scott v. Nixon, 3 Dru. & War 388; Kirkwood v. Lloyd, 12 Irish Eq. 585.

In the case of Scott v. Nixon, ubi supra, Lord Chancellor Sugden compelled an unwilling purchaser to take a title depending upon parol evidence of possession. under the English Statute of Limitations. See further on the subject of enforcing specific performance in cases of doubtful and defective titles, Tomlin v. M'Chord, 5 J. J. Marsh. 136; Beale v. Seiveley, 8 Leigh, 658; Bryan v. Reed, 1 Dev. & Bat. Eq. 86; Watts v. Waddle, 1 M'Lean, 200; Cooper v. Denne, 4 Bro. C. C. (Perkins's ed.) 87, 88, and notes; Roake v. Kidd, 5 Sumner's Ves. 647, Perkins's note (a); Omerod v. Hardman, ib. 722, note; Garnett v. Macon, 6 Call, 308; Reed v. Noe, 9 Yerger, 283; 1 Sugden V. & P. (7th Am. ed.) 505 et seq., and

notes.

1 Paton v. Rogers, Mad. & Geld. 256.

Seton v. Slade, 7 Ves. 279.

Harford v. Purrier, 1 Mad. 532; Wynn v. Morgan, 7 Ves. 202; Wilson v. Allen, 1 J. & W. 623.

• Seton on Decrees, 209. If the plaintiff in a bill in equity for specific performance of an agreement for an exchange of lands cannot give the title mentioned in the agreement, the bill may be dismissed, although the objection is not

abolition of the Master's office may have slightly varied the form, but this practice continues in substance.1

It is to be recollected,2 that it is a fundamental principle of Courts of Equity to make as complete a decision upon all the points embraced in a cause, as the nature of the case will admit, so as to preclude, not only all further litigation between the same parties, but the possibility of the same parties being at any future period disturbed or harassed, by other parties claiming the same matter, as well as of any danger that may exist of injustice being done to other parties who are not before the Court in the present proceedings.3

By the original practice the Court, in all cases relating to the distribution of the estate of an intestate, before it made any decree affecting the estate, or even ordered an account of it to be taken, directed a Master of the Court to inquire who were the next of kin of the intestate, at the time of his decease, and whether any of them were living or dead, and, if dead, who were their personal representatives.

An inquiry of this nature was always directed in cases in which any part of the property in question in the cause devolved upon the next of kin, whether it were upon a total, or upon a partial or constructive intestacy.

The same course was generally pursued in other cases in which there was a fund distributable amongst persons constituting a particular class, consisting of numerous individuals, as in the case of a bequest to the cousins of a testator; in such cases, as well as in that of intestacy, the Court, before it directed any steps to be taken, either towards a distribution, or for ascertaining the amount of the fund, satisfied itself, by a previous reference to the Master, stated in the answer or taken until a hearing before a Master to whom the case has been referred to settle a proper conveyance. Park v. Johnson, 7 Allen,

378.

1 For a modern form of decree, see Seton, 239.

In order to prevent delay and unnecessary expense, the Court has adopted the practice in suits of this nature, where the title of the vendor only is in dispute, of directing references to be made to the Master, to inquire into the vendor's title, upon motion, either before or after answer. See post, "Interlocutory Applications."

3 Where a lien creditor brings a bill in behalf of himself and other creditors of the same class, and with similar rights, the decree should provide proper relief for all of them. Trustees of the Wabash and Erie Canal Co. v. Beers, 2 Black (U. S.) 448.

that all the individuals, constituting the class amongst whom the fund was distributable, were parties to the proceeding it also adopted the same course of proceeding, where the property was distributable between one or two or more classes of individuals: thus, where the plaintiffs filed their bill in the character of next of kin, an inquiry has been directed as to whether they did or did not come within that description.1

Such an order was "a preliminary interlocutory order, with a view to inquiry, before the Court could do anything determining the rights of the parties." 2

The first innovation in this practice was made by the 5th Order of May, 1839, which directed, "That in all cases in which it shall appear that certain preliminary accounts and inquiries must be taken and made, before the rights and interests of the parties to the cause can be ascertained, or the question arising therein can be determined, the plaintiff shall be at liberty, at any time after the defendant shall have appeared to the bill, to move the Court on notice, that such inquiries and accounts shall be made and taken, and that an order referring it to the Master to make such inquiries, and take such accounts, shall thereupon be made without prejudice to any question in the cause, if it shall appear to the Court that the same will be beneficial to such (if any) parties to the cause as may not be competent to consent thereto; and that the same is consented to by such (if any) of the defendants as being competent to consent have not put in their answer to the bill; and that the same is consented to by, or is proper to be made upon the statements contained in the answer of such (if any) of the defendants as have answered the bill." 4

1 John v. Jones, ubi supra.

2

* See Horwood v. Schmedes, 12 Ves. 311, 315.

A decree, ordering an account, is not such a final decree or determination of the cause, as will authorize an appeal from it. Berryhill v. M'Kee, 3 Yerger, 157; Perkins v. Fourniquet, 6 Howard (U. S.) 206; Pulham v. Christian, 6 Howard (U. S.) 209. Nor will the ascertainment of the account be evidence in another suit, if the bill has been dismissed on motion of the plaintiff before a final decree. Capell v. Landano, 34 Alabama, 135. See Carter v. Privatt, 3 Jones Eq. (N. C.)

345.

• Where a bill seeks for a decree for an account, and the defendant submits to such a decree, no proof in reference to the matters of account is, in the first instance, required, but such a decree will be entered of course. Dozier v. Sprouse, 1 Jones Eq. (N. C.) 152. The Chancellor must, however, first be satisfied that the plaintiff is entitled to have an account taken. If he is satisfied upon that point, the

This order can be obtained even after the cause is set down for hearing, if the case is in other respects suitable, but it will be refused when the title of the plaintiff to sue is not admitted by the answer,2 or where granting the motion would involve a decision upon some of the points in the cause. It seems, moreover, that such an order cannot be obtained, where some of the defendants are out of the jurisdiction.4

An order of this kind obtained in an administration suit does not contain a direction for the payment of the debts of the testator, and therefore has not the same effect as a decree in entitling the executors to restrain a creditor suing then at Law. But the cause may be brought on for hearing and a decree obtained before the report is made, or a direction may be inserted in the order excluding the creditors who do not come in from the benefit of the order; and then payment of the debts may be at once directed by the original decree.6

A decree for account gives an interest in the suit for many purposes to a defendant, and an order for preliminary accounts has so far the same effect, as that upon the death of a sole plaintiff a defendant has been allowed to file a supplemental bill.7

This order is still in force, and may be acted upon, though of course all future references will be to the Judge himself in champractice is to refer the case to a Master to state the details of the account, and ascertain the balance. But the Chancellor may, if he sees fit, take the account himself. He should, however, refuse an account, if he is satisfied upon the evidence that nothing is due the plaintiff, or that for any cause an account ought not to be decreed. He may arrive at this conclusion by evidence independent of the account. Campbell v. Campbell, 4 Halst. Ch. (N. J.) 743.

It is a universal rule in Equity, that upon a bill for an account, the party against whom the balance is found will be decreed to pay it. Sometimes that order is contained in the original decree for the account. Sometimes, and usually in modern practice, it is not made until the account is taken and the final decree made, but it forms an essential part of the relief upon the bill. Green C. J., in Campbell v. Campbell, 4 Halst. Ch. (N. J.) 740, 741.

1 Strother v. Dutton, 10 Sim. 288.

Topham v. Lightbody, 1 Hare, 289; Wilson v. Applegarth, 10 Sim. 657; Belcher v. Whitmore, 7 Beav. 245; Kinshela v. Lee, 7 Beav. 300.

* Curd v. Curd, 2 Hare, 116; Breeze v. English, ibid. 118; Frost v. Hamilton,

4 Beav. 33; Lee v. Shaw, 10 Sim. 369.

✦ Barrett v. Buck, 2 Hare, 520; Meinertzagen v. Davis, 10 Sim. 289.

Б Teague v. Richards, 11 Sim. 45.

• Trollor v. Walmesley, 7 Beav. 264.