enforced (d); and if the terms of an Agreement are to be ascertained by an Award, and are so ascertained, a Court of Equity will enforce the Agreement if any thing is to be done in specie; as Estates to be conveyed, &c. (e); but if no Arbitration Bond has been executed (f), or if there is not a valid Award, as agreed upon, the Court will not specifically perform the Agreement, unless there has been acquiescence under the invalid Award; or the Agreement, evidenced by the Award, has been in part performed(g); but where the Award has not been partly performed, a specific performance has been refused (h). If there is a want of certainty in the terms of the Agreement, it will not be decreed (i); as, where a Tenant in Tail, with power to make a Jointure, articled, in consideration of Marriage, to make a Jointure, without saying out of what Lands, or to what amount, and the Wife died, and her Executrix filed a Bill for an account of the Profits of the Lands articled to be settled, the Bill was dismissed (k). So where a Man, in consideration of Marriage, promises by letter to pay his Daughter a Fortune, without reducing it to any certainty, a Court of Equity cannot carry it into a specific execution (1). (d) Emery v. Wase, 5 Ves. 846. Milnes v. Gery, 14 Ves. 407. Wilkes v. Davis 3 Meriv. 509. (e) As to this see Hall v. Hardy, 3 P. Wms. 189. (f) Wilkes v. Davis, 3 Meriv. 509. (g) Blundell v. Brettargh, 17 Ves. 232. Many other Cases have this point; and see Norton v. Mascall, 2 Vern. 24. (h) Bishop and Webster, 1 Eq. Abr. 51. S. C. Precedents in Ch. 223; and 2 Vern. 444. (i) Lindsay v. Lynch, 2 Sch. & Lefr. 7. Harnett v. Yelding, 2 Sch. & Lefr. 555 (k) Elliot v. Hele, 1 Vern. 406. (l) Hall and Butler, Gilb. Rep. Lex. Prætoria, MS. 1. Eq. Abr. 20. been decided on the same principle-the want of certainty in the Agreement (m). But the Court will, if it can, execute an uncertain Agreement, by reducing it to a certainty (n); and where a thing is to be done, but no time fixed, the Court has, in some cases, decreed a performance in a reasonable time (o). Though the subject matter of an Agreement in order to be enforced must be clearly defined, yet in Agreements between parties many things not particularized are understood as agreed upon. If, for instance, a Man covenants to sell a Fee-simple Estate, free from encumbrances, and says no more, this Covenant alone, entitles the purchaser to proper Covenants. It is well settled what are the proper Covenants, where the Vendor was himself a Purchaser for a valuable consideration, or where he acquired the Property by descent, or by purchase. A Person agreeing to sell an Estate in fee-simple must covenant that he is seised, and has power to convey in fee ;for quiet enjoyment;-that the Estate is free from encumbrances ;-and for further assurance: and if the Vendor purchased the Estate for a valuable consideration, and obtained proper covenants for the Title, he must deliver, or covenant to produce, his Title Deeds, and covenant against his own acts only. If the Vendor's Title is by Descent, Devise, or other (m) See Bromley v. Jefferies, 2 Vern. 415, and Emery and Wase, 5 Ves. 849. Brodie v. St. Paul, 1 Ves. jun. 326, and what is said in Lindsay v. Lynch, 2 (n) See Allen and Harding, 2 Eq. Ca. Abr. 17. pl. 6. (0) Southwell v. Adby, Hil. 6 Geo. 2. 1732. MS. contra, wise as a Purchaser not for a valuable consideration, the Vendor must covenant, not only for himself, but against the acts of the last Purchaser; or at least, of the Person immediately preceding him (p). And if there should have been an immediate Heir, supposed to be dead, it is reasonable the Covenants should extend to his acts; but if the Sale takes place under such circumstances, that it was not known whether there was an intermediate Heir, and the consideration Money is reduced in proportion to the doubt upon the Title in that respect, there is no need of a Covenant against the acts of such Heir (g). Where an Estate is agreed to be sold for the payment of Debts, and no surplus remains, the Court will not require the Heir to covenant any further than for his own acts (r); and the rule is the same in such case as to a Devisee; but if a Sale be decreed, and after such Sale a considerable surplus comes to the Heir at Law or Devisee, the Heir has been directed to covenant that neither he, nor the immediate ancestor under whom he claims, and, in the case of a Devisee, that neither he nor his Devisor, have done any act to encumber (s). Where there is simply an Agreement for a Lease for a certain number of years, and no more, this (p) Vid. Church and Brown, 15 Ves. 263, in note by Mr. Vesey. Loydv. Griffith, 3 Atk. 267. 2 Bos. & Pull. 22; and see Sudg. Vend. and Purch. 368, &c. and p. 457, &c. 4th Ed. see also 14 Ves. 239. (9) Vid. Pickett and Loggon 14 Ves. 239. (r) Loyd v. Griffith, 3 Atk. 207. (s) Ibid. 268. entitles a Party to the usual Covenants (t); and it seems now fully established, though there are Cases to the contrary (u), that an Agreement for a Lease, with usual Covenants, does not include a Covenant against Alienation without license (a). If the Agreement were, to grant a farm Lease, with the usual and customary covenants of the neighbourhood, what such usual and customary Covenants are, might be made the subject of inquiry before the Master (y). In an Agreement between Landlord and Tenant, the word clear is construed clear of all Outgoings, Encumbrances, and extraordinary Charges, not according to the custom of the Country, as Tithes, Poor-rates, and Church-rates, which are natural charges on the Tenant (z). He who takes the Assignment of a Term is bound to give a Covenant of Indemnity to the Assignor against the payment of the Rents, and the performance of the Covenants: and there is no distinction between the cases of an Assignment by the original Lessee and by an Assignee of that original Lessee (a) As Powers of selling, exchanging, and investing in new Purchases, are usual in Settlements, so if there be a clause in Marriage Articles for all usual Powers, (t) Church v. Browne, 15 Ves. 258. (u) Vere and Lovedon, 12 Ves. 179. Jones v. Jones, 12 Ves. 186, following Folkingham v. Croft, 3 Anstr. 700. Morgan v. Slaughter, 1 Esp. N. P. C. 8. (x) Church v. Browne, 15 Ves. 258, and Browne v. Ra ban, 15 Ves. 528, following Henderson v. Hay, 3 Bro. C. C. 632. (y) Boardman v. Mostyn, 6 Ves. 471. (z) Lord Tyrconnel v. Duke of Ancaster, Ambl. 240. (a) Staines v. Morris, 1 Ves. & Bea. 8. Wilkins v. Fry, i Meriv. 244. those Powers must be introduced into the Settlement (b). Of all objections to a specific performance, the want of a Title is that which is most frequently urged by a Defendant. A Purchaser is not obliged to take an equitable Title (c) unless where Estates are sold under a Decree, before a Master (d); but has a right to insist upon having a clear legal Title, commencing at least sixty years anterior to the time of his purchase; and sometimes for a longer period, where there are Remainders after existing Estates-Tail (e). If objections are made to a Title, the Chancellor may be called upon to decide whether a good legal Title can be made; but as this is a pure question of Law, if any doubt arises, it is usually referred for the opinion of a Court of Law, the most authoritative Forum on such points. The Equity Reports abound with decisions on objections made to Titles; but the consideration of such of them as relate merely to questions of Law is not within the design of this Work. In treating of this subject here, it will be confined to such questions as can arise only in Courts of Equity. If there be a difference in value between the real Interest of the Vendor, and the Interest represented as proposed for Sale, (though innocently misrepre (b) Peake v. Penlington, 2 Ves. & Bea. 311. (c) Cooper v. Denne, 4 Bro. C. C. 80. S. C. 1 Ves. Jun. 565. (d) Sugd. Vend. and Purch. 271; and see Chandler and Beard, 1 Dick. 392, there (e) Sudg. Vend. &c. p. 259. &c. 4th Edit. |