If a Vendor, upon the Title being objected to, offers to let off the Purchaser, but he still adheres to the Purchase, the Purchaser must pay the Costs if the Title is determined to be good (x). If the Purchaser takes an unfounded objection he pays the Costs, but if the objection taken be fair and substantial, he does not pay Costs, though the objection does not prevail (y). It may be proper to observe, in conclusion of this fruitful subject of Equity, that if the Purchaser does not pay the purchase-money at the time fixed he will be chargeable with Interest; and as he must bear any loss, so likewise will he be entitled to any profits that arise from the Estate (z). So, in general, if a Purchaser is let into Possession and perception of the Rents and Profits of the purchased Estates, he must pay Interest for his Purchase-money (a); but it is not universally so (b); there may be a case where he shall not pay Interest, notwithstanding he has the Rents and Profits; as, where there are objections to the Title, and the Purchase-money lies unproductive, and the Vendor has notice of that circumstance, and afterwards the Title is made good, the Vendee will be entitled to the Estate and the Rents and Profits, and the Vendor to the Purchase-money only, without Interest (c). And though, generally, a Purchaser cannot be called upon for his Money until

(x) Holloway v. Fell, 31 Jan. 1818, before V. C. Leach. (y) Aislabie v. Rice, 3 Madd. Rep. 256.

(z) Davy v. Barber, 2 Atk. 490.

(a) See Fludyer v. Cocker,

12 Ves. 25. Blount v. Blount, 3 Atk. 637.

(b) See Blount v. Blount, 3 Atk. 637.

(c) See on this subject Powell v. Martyr, 8 Ves. 146.

he has a Title, yet where he is let into Possession, upon a mutual apprehension that the Title could be immediately made good, he cannot, unless by express Contract, retain the Possession, without, at least, paying Interest for the Purchase-money (d).

Where the Vendee has created unnecessary difficulties in respect of the Conveyance to him, he will be ordered to pay Interest from the time he ought to have executed the Conveyance (e).

When Interest is payable, it is usually at four per Cent. (f), but upon one occasion five per Cent. was given (g).

Money paid in as earnest at the Sale of an Estate, in whatever manner laid out, is a payment for so much of the Purchase-money (h). If laid out without opposition from the Seller, it must be presumed to be with his assent. If laid out under the authority of the Court, it will be binding on both (i).

If a Vendee, who has not completed his Purchase for want of a Title, deposits his Purchase-money, in the Purchase of Stock, and gives notice of such deposit to the Vendor, this will have the effect of stopping Interest; but the Vendee runs all the hazard of the rise and fall of the Funds; nor, in case of a rise, can the Vendor claim the benefit (k).

(d) Gibson v. Clarke, 1 Ves. & Bea. 502.

(e) Blount v. Blount, 3 Atk. 637.

(f) Child v. Lord Abingdon, 1 Ves. jun. 94. Calcraft v. Roebuck, 1 Ves. jun. 221; and see Sugd. Vend. and Purch. 404, 4th Edition, and cases cited in note; and see Acland v. Gaisford, 2 Madd. Rep. 31.

(g) Waldron v. Forrester, Exch. 30 June 1807, particularly mentioned Sugd. Vend. and Purch. 429, 5th Edit.

(h) Doyley against Powis, 2 Bro. C. C. 33.

(i) Poole against Rudd, 3 Bro. C. C. 49.

(k) Roberts v. Massey, 13 Ves. 561. Acland v. Gaisford, 2 Madd. Rep. 31.

Where a Trust is raised by Deed or Will for the payment of Debts and Legacies generally (1), and the Rule is the same where there is a general charge, and afterwards a specific disposition (m), a Purchaser or Mortgagee of Real Estate is not obliged to see to the application of his Money, as he is where there is a Schedule, or particularizing, of the Debts (n); unless there be any collusion between the Purchaser and the Trustee or Executor (o). If more Land is sold than is sufficient to pay the Debts, that will not prejudice a Purchaser (p). But though a general charge does not oblige a Purchaser before a Suit to see to the application of the Money, yet after a Suit commenced for an Account by the Heir against the Executor (q), the Purchaser has been held bound to see to the application (r). And where Lands are vested in Trustees by Act of Parliament, to be mortgaged for a particular purpose, it is incumbent on the Mortgagee to see the Money applied accordingly (s).

A Purchaser of an Estate under a Decree is not answerable for the mode in which the Estate has been sold by the Court, nor for the disposition which it makes of the Money (t); for a Purchaser

(7) See Co. Lit. 290, b. note 1. s. 12. Jebb v. Abbot, 1 Bro. 186, n. 2. 2d Edit.

(m) 6 Ves. 654, in n.

(n) Ithell v. Beane, 1 Ves. 215. Dunch v. Kent, 1 Vern. 260, 1. Spalding v. Shalmer, 1 Vern. 301. Hardwicke v. Mynd, 1 Anstr. 109. Culpepper v. Aston, 2 Chan. Cas. 223.

(0) Rogers against Skillicorne, Ambl. 189. Lloyd v. Baldwin,

1 Ves, 173.

(p) Spalding v. Shalmer, 1

Vern. 301. Lutwych v. Winford, 2 Bro. C. C. 248.

(9) Culpepper v. Aston, 2 Chan. Cas. 115. 223.

(r) Walker v. Smallwood. Ambl. 677.

(s) Cotterell v. Hampson, 2. Vern. 6.

(t) Curtis v. Price, 12 Ves. 103. Lloyd v. Johnes, 9 Ves. 65. Lutwych against Winford, 2 Bro. Č. C. 248; but see Lloyd v. Baldwyn, 1 Ves. 173,

has a right to presume that the Court has taken the steps necessary to investigate the rights of the Parties, and that it has on that investigation properly decreed a Sale: but he is to see that it is a Decree binding the Parties claiming the Estate; that is, to see that all proper Parties to be bound are before the Court; and he has further to see, that taking the Conveyance he takes a Title that cannot be impeached aliunde. He has no right to call upon the Court to protect him from a Title not in Issue in the Cause, and no way affected by the Decree ; but if he gets a proper Conveyance of the Estate, so that no Person whom the Decree affects can invalidate his Title, then, although the Decree may be erroneous, and afterwards reversed, the Title of the Purchaser will not, it seems, be invalidated (u).

СНАР. VI.

TRUSTS.

We now proceed to the consideration of Trusts, a species of Jurisprudence peculiar to this country (z), and of all others the most fruitful in Cases, and comprehending a great variety of Learning; but the Rules on this subject were in the time of Lord Hardwicke, as he has observed, 66 pretty well ascertained (y)," and have since been still more reduced

(u) Bennett v. Hamill, 2 Sch.

& Lefr. 577, 8.

(x) 1 T. R. 759, in N.

(3) Letter to Lord Kaims, Life of Kaims, 1 Vol. 243.

to certainty by the decisions of the great Men who have succeeded him.

Conveyances to Uses did not commence in the Reign of Henry 4; but Lord Bacon says there were not before this time above six cases relating to Uses, and that it was not till this Reign that a regular system was adopted in regard to Uses (~). Chief Justice Popham says, that before the time of Richard 2, no Act of Parliament, or other Record, nor any Book, nor Writing, make any mention of Uses of Land (a). The vast increase of Feoffments to Uses was occasioned by the disputes between the Houses of York and Lancaster. Persons conveyed their Lands in Trust, to be returned or re-conveyed at the end of the War; and many of these Trustees refusing to re-convey, the party wronged had his relief by subpana in Chancery (b). So great, on this account, was the influx of business at that period, that the equitable authority of the Chancellor has been by many (c), and with great reason, dated from this "About this time, period. says Sir Robert Atkyns, "the Chancellor first began to arrogate to himself this Power (d)." Lambard, however, (a great Antiquarian, and a Master in Chancery,) in his learned treatise, intitled Archeion, observes, he does not remember, that in the Reports of the Common Law there is any frequent mention of the exercise of

(*) Bacon on Uses, p. 17. (a) See Chudleigh's Case, 1 Rep. p. 139.

(6) Vid. Spelm. verbo Cancellarius; History of the Chan.

53, n. a.

66

Gloss. p. 107. Doctor and Student, p. 98. Sir John Davy s Rep. in Pref. Hunt's Argument for Bishops right, p. 144. Hist. of Chancery, 45.

(d) Atkyns's Inquiry, &c.