CALVERT V. GODFREY. [*108] having legal claims upon the estate, and they have entered into the deed of arrangement, according to the provisions of which, all the creditors were to be paid, and the annuity of the widow was to be fully satisfied, whether the copyholds were to be sold or not. From the authorities which were referred to in the argument, it is apparent, that if there be jurisdiction to sell, mere irregularities and errors in the proceedings will not invalidate the sale or prevent a good title from being made under the decree; and in this case I have not thought it necessary to consider several alleged errors in the mode of taking the accounts, and calculating the claims on the estate. Such errors, even if proved, would not have availed the petitioner. But if there was no person who had a right to call upon the Court to sell the estate for the satisfaction of a claim, then it is clear, that in substance, as well as in words and form, the sale was ordered only on the ground of its being beneficial to the infant to sell, and I think that this is not within the jurisdiction of the Court. * Now, by the deed of arrangement, the surviving partners were to apply the amount of the intestate's interest in the partnership assets, as far as it would extend, in satisfaction of all his debts, and they engaged, personally, to pay all the debts which could not be so satisfied, and they further engaged personally to satisfy so much of the widow's annuity as the other means contemplated by the deed were insufficient to pay, and in this manner, they provided that neither the creditors (by marshalling), nor the widow, under the covenant, should resort to the real estate intended to be saved for the children, and if this were all, there could be no question but that the sale was asked for and ordered only for the benefit of the children. But then it was part of the argument, that in order to affect the copyhold premises, and to obtain a sale thereof, or the application in manner aforesaid of the rents, and for all the purposes consistent with the arrangement, and more especially as far as might be necessary to effectuate such arrangement, the debts which should be paid by the surviving partners were to be considered, not as discharged, but as kept on foot for their benefit subject to the arrangement, and that they should stand in the place of the creditors whose debts they had paid, or in place of the widow, who, as administratrix, had paid the same, and also in the place of the widow, in respect of monies paid to her on account of her annuity under her marriage settlement. The object of this part of the agreement was not to enforce a legal or equitable right for the payment of the *debt, but, if practicable, to take advantage of the right (which without the agreement would have existed), merely for the purpose of effecting the arrangement, for the benefit of the children which the agreement was intended to secure to them, and even under this clause, the only foundation for an order to sell was, that the sale would be beneficial to the infant. I do not think that this is a case of election, in which the Court having the duty of electing for the infant, can, as the result of the election, direct the real estate to be sold. It was I think justly argued, that if an infant entitled by descent to real estate could have a case of election raised by a proposal to do something for his benefit, no case could arise in which means might not be found to give the Court jurisdiction to sell the estate of an infant. And on the whole, after a consideration of the deed of arrangement, of the form and scope of the pleadings, of the decree and of the report, I think, that the order for the sale of the copyholds was founded solely upon the Master's finding, in conformity with the plain intention of the parties and the real facts of the case, that it would be beneficial to the children that the sale should be made; and looking at the whole arrangement, I think there can be no doubt that the sale would be beneficial to the customary heirs individually. But it appearing that the Court has not jurisdiction to sell the real estates of infants, on the ground that the sale is beneficial to them, I think that the order ought not to have been made, and that a sale under it cannot be enforced. This being my opinion, it is the less material to consider the other objections, but I think I ought to state, that it does not appear to me that the case comes within the provisions of the statute 1 Will. IV. c. 60, and if it did, I think that the purchaser could not have been compelled to wait till an error so material as the declaration of a wrong person being trustee for the purchaser was corrected. On the whole, therefore, and without entering into the particular objections as to the title, I think that the petitioner is entitled to be discharged from her purchase, and to have the stock arising from the investment of the purchase-money paid into Court transferred to her. And it must be referred to the taxing Master to tax her costs, charges, and expenses incurred in respect of the purchase, including CALVERT v. GODFREY. [ *109 ] [110] CALVERT V. GODFREY. the costs of this petition, the money retained by the auctioneer must be repaid to her, and she must give up possession and account for any rent she has received. 1842. Dec. 9, 10, 12. 1843. March 13. Rolls Court. Lord LANGDALE, [110] 1843. Feb. 20. Rolls Court. Lord BONSER v. COX. (6 Beav. 110–118; S. C. 13 L. J. Ch. 260; 8 Jur. 387.) [SEE 55 R. R. 113, for the report of this case.] KING v. WILSON. A tenant in possession purchased the property, which was represented to be forty-six feet in depth; it turned out to be thirty-three only: Held, that he was entitled to an abatement. Though time be not of the essence of a contract, it may be made so by notice, where there has been great and improper delay on one side in completing. It may, however, be waived by proceeding in the purchase after the expiration of the time fixed by the notice (1). ON the 20th of July, 1841, the defendant, who was the tenant and occupier of a certain freehold house and premises at Islington, agreed to purchase the same from the plaintiff, and by the terms of the contract, the purchase was to be completed on the 23rd of August, 1841. The particulars stated the property to be forty-six feet in depth, when, in fact, the depth was only thirty-three feet. The abstract was delivered on the 31st of July, and was returned with requisitions and objections on the 10th of August. One of these required proof of the vendor's descent. To meet this, the certificate of the marriage of the vendor's parents was furnished, which showed that they were married on the 21st of March, 1794, and this was accompanied by the certificate of the vendor's baptism on the 1st of June, 1794, but which stated that he was born on the 17th of April, 1794. The draft of a solemn declaration under the Act (5 & 6 Will. IV. c. 62) as to this matter, was also sent. This evidence was not satisfactory to the purchaser, who required either the next brother of the vendor to join in the conveyance, or the bond of indemnity of some responsible person. On the 1st of September, the vendor stated that he had no better evidence to offer, nor any corroborative proof, for both the medical (1) Green v. Sevin (1879) 13 Ch. D. 589, 596, 41 L. T. 724. man and nurse were dead. He declined the proposal of the purchaser and threatened to file a bill. Some further correspondence, which is not material, took place between the parties, and ultimately, on the 18th of September, the purchaser wrote to say, that if the objection as to the insufficiency of the proof of the descent was not removed within a week, he should consider himself no longer bound, and of this he thereby gave formal notice. The vendor afterwards offered to give an indemnity, which proposal the purchaser entertained, but, on the 28th of September, objected to the person proposed, and insisted that he was no longer bound by the contract. On the 15th of November the vendor furnished the solemn declaration of a party present at the marriage, but the purchaser refused to renew the subject, and this bill for the specific performance was in consequence filed on the 27th of November, 1841. The cause now came on for hearing. The plaintiff entered into no evidence in the cause as to his descent, and the defendant insisted that the contract had been put an end to, and also that the abstract furnished did not go back far enough. Mr. Pemberton and Mr. S. P. White, for the plaintiff, asked for a reference to the Master as to the title, and as the defendant had raised an untenable defence that the contract had been rescinded, they argued that the defendant should, at once, be ordered to pay the costs up to the hearing. Mr. Kindersley and Mr. Dunn, contrà, contended that as the plaintiff had failed to comply with the reasonable requisition of the purchaser, within the time limited by the contract and by the notice, the contract had been put an end to. Secondly, that the conduct, default, and laches of the plaintiff had been such, as to disentitle him to any relief in this Court. Thirdly, that if the purchase was to proceed, then, that there having been a great misrepresentation as to the quantity of the land sold, the purchaser was entitled to compensation for the deficiency in quantity. Fourthly, that no special order ought to be made as to the costs up to the hearing, especially as the suit had originated from the default of the plaintiff in furnishing satisfactory evidence as to his descent. R.R.-VOL. LXIII. 3 KING v. WILSON. [125] [126] KING v. WILSON. [ *127 ] Mr. S. P. White, in reply: The defendant is not entitled to any compensation for the erroneous description. He was tenant and in possession of the premises, and well knew what the property was which it was the intention of the plaintiff to sell, and which he intended to purchase. Taylor v. Brown (1), and Hyde v. Dallaway (2), were cited. THE MASTER OF THE ROLLS: The first question in this case is, whether the contract has been put an end to. Now I am clearly of opinion that though time may not be of the essence of a contract, yet where there is great and improper delay on one side, the other party has a right to fix a reasonable time within which the contract is to be completed; that time will then be considered by this Court as having become of the essence of the contract; and in case the party makes default in doing what is right and *proper on his part, within the time so fixed, it will be a reason why this Court will not afterwards interfere in his favour to compel the execution of the contract. The question is whether those circumstances occur in the present case. I cannot help thinking that the conduct of the vendor in this case was not satisfactory with respect to the proof required of his legitimacy. The first certificate stated the marriage to have taken place in March, and the certificate of the baptism, (which is no evidence whatever of the birth) shows the baptism to have taken place in April following. It therefore seems to have been necessary to inquire very minutely into the circumstances, and when the birth really took place. The correspondence is not material, until we come to the 1st of September, 1841. There was then a real objection, and the only mode proposed for removing it, was by tendering the declaration of the mother. I do not think it material that the declaration was sent without signature, and without having gone through the usual formalities, though it was a very good reason for returning it in order that it might be perfected. The parties did not agree upon the mode of removing the objection; the purchaser's solicitor on the 18th of September says, "If this objection is not removed within a week, I shall consider my client no longer bound, and of this I beg to give you formal notice." Now I must say, that under the circumstances, this was rather too short a time, it was not reasonable to require every thing to be done within a week. However that might be, I think that under the circumstances of this (1) 50 R. R. 152 (2 Beav. 180). (2) 55 R. R. 171 (4 Beav. 606). |