sented) (f), the Purchaser is entitled, if he chooses, to abide by the Purchase, and to have such difference deducted from his purchase-money (g) by way of compensation, (h) nor can the Vendor refuse (i): and if the Master on a reference to him is unable to ascertain the difference in value, but the Purchaser is content to take such Interest as can be conveyed, to him, with such Indemnity, as under all the circumstances the Master shall think just and reasonable, a Decree to that effect will be made. If, for instance, a Man agrees to sell an Estate in Fee, and he has only a Term, he may be compelled to convey that Term (k). So, if there is a considerable part of the Land purchased to which no Title can be made, the Vendor may be compelled to convey so much of the Land to which there is a good Title; unless, perhaps, where there would in consequence be a very great deterioration to the remaining property (1).

It is true, therefore, generally, though not universally (m), that a Purchaser may insist on compensation, if he undertakes on his part to do what the Court shall order (n); but the Vendor cannot, it seems, (except where the Party gets, substantially, that for which he contracts) (o), insist upon the Pur

(f) Hill v. Buckley, 17 Ves. 401. Barker v Damer, Dom. Proc. 7th April 1731.

(g) Milligan v. Cooke, 16 Ves. 1; and see what is said in Seaman v. Vawdry, 16 Ves. 290, and 390.

(h) See Halsey and Grant, 13 Ves. 77. Grant v. Munt, Coop. 173.

(i) Mortlock v. Buller, 10 Ves. 316; but see the case as to an agreement to assign a

lease, mentioned in 1 Fonbl. 212; and what is said 1 Ves. & Bea. 225.

(k) See Wood v. Griffiths, 1 Wils. C. C. 44.

(1) See Western v. Russell, 3 Ves. & Bea. 192.

(m) Paton v. Rogers, 1 Ves. & Bea. p. 353. (n) Ibid.

(0) See Calcraft v. Roebuck, 1 Ves. Jun. 221. Drewe and Corp, 9 Ves. 368. Halsey and

chaser's taking a compensation. If, therefore, a Purchaser agrees to buy a Freehold Estate, he cannot be compelled to accept one that is Leasehold (p). If a Contract be for a House and a Wharf, the Wharf being the principal inducement to the Purchase, a Purchaser will not, it seems, be obliged to take the House only (q). And so if Land be represented as Freehold, with Leasehold adjoining, and is found to be Leasehold only (r), or part of the purchased Estate, though small in proportion to the whole Estate, is essential to the Purchase (s), the Purchase would not be enforced.

If the printed Particulars of Sale contain a wilful mis-description of the Property, the Purchaser cannot be compelled to take a compensation (t).

A Purchaser is not compellable to take an Indemnity against a Judgment amounting to half of the purchase-money (u).

A Lessee, who described his Interest as fifty years, the residue of a Term, free from Encumbrances, but

Grant, 13 Ves. 78; and see Horniblow v. Shirley, ibid. 81. Dyer and Hargrave, 10 Ves. 507. M Queen v. Furquhar, 11 Ves. 467. Alley and Deschamps, 13 Ves. 228. Poole v. Shergold, 1 Cox, 273.

(p) Fordyce v. Ford, 4 Bro. C. C. 497. Drewe v. Corp, 9 Ves. 368. Halsey v. Grant, 13 Ves. 78.

(9) That was Lord Erskine's opinion in Stapylton and Scott, 13 Ves. 427, contrary to Sir Thos. Sewel's decision, mentioned in Seton v. Slade, 7 Ves. 270; and see what is there said by Lord Eldon, and the case as

to tithe, there mentioned, since reported in 1 Cox, 59, and Poole against Shergold, 2 Bro. C. C. 118. S. C. 1 Cox, 273; see also Halsey and Grant, 13 Ves. p. 78; but see Drewe and Han son, 6 Ves. 675.

(r) Fordyce and Ford, 4 Bro. C. C. 498; and see Drewe, y. Corp, 9 Ves. 368, and Alley and Deschamps, 13 Ves. 228.

(s) Knatchbull v. Grueber, 1 Madd. Rep. 153, confirmed on appeal, 3 Meriv. p. 124.

(t) See Stewart v. Alliston, 1 Meriv. 26. Duke of Norfolk v. Worthy, 1 Campb. 337.

(u) Wood v Bernal, 19Ves.220

who in fact had only three years of an old Term, and a reversionary term from another Lessor, and old encumbrances not shown to be discharged, could not, it was determined, enforce a specific performance (x).

A Purchaser has been held not to be entitled to an abatement for a deficiency in the quantity of acres sold, where the Particular described the Estate as containing by estimation, so many acres, "be the same more or less (y).”

Where a Bill is filed for the specific performance of a Contract for the purchase of Real Estate, the Defendant, in ordinary cases, may, if he chooses, have a Reference to the Master, to see if a good Title can be made; and the Court never acts upon the fact, that a satisfactory Abstract of the Title was delivered, unless the Party has clearly bound himself to accept the Title upon the Abstract (2), as by taking possession for a considerable time, and making no objection to the same (a). But the circumstance of an Abstract being shown to a Purchaser, previous to the filing of a Bill for a specific performance, in which the defect of Title appears, does not bind the Purchaser (b). Though the Party cannot state any objection to the Title as it appears in the Abstract, yet he may insist on a reference; and the reason seems to be, that by the ordinary Decree in these cases the other Party is compelled to produce all the deeds, papers, &c. in his custody or power; from

(x) White v. Foljambe, 11 Ves. 337.

(y) Winch v. Winchester, 1 Ves. & Bea. 375.

(z) Jenkins v. Hiles, 6 Ves.646. (a) Fleetwood v. Green, 15

Ves. 594. Margravine of Anspach v. Noel. 1 Madd. Rep. 310; and see Fludyer v. Cocker, 12 Ves. 27.

(b) Stapylton v. Scott, 16 Ves. 274.

which, reasonable and solid objections to the Title may be furnished, which would never have fallen under the view of the Purchaser unless the Court wrung from the conscience of the Vendor that sort of information which a Purchaser could by no other méans acquire Inquiries and Examinations also may be directed, by which the Title may be sifted in a way in which it never could upon a mere Abstract, authenticated as the Vendor thought proper (c).

A Defendant, however, against whom a specific performance is prayed, may by his Answer wave his right to have a Reference, and call upon the Court to decide upon his objections to the Title; but in such case the Answer must be unequivocal, and the Defendant must not be drawn into it by surprise or fraud, and want of full information, and its propriety not rendered disputable by any subsequent discovery (d). And this course seems highly reasonable; for if it clearly appears to the Court, upon the Pleadings and the Evidence, that there are irremovable objections to the Title, it would be an unnecessary expense to direct a Reference to the Master (e).

"I have heard it said," says Sir Thomas Clarke, "a Title purchased under a Court of Equity must be, like Cæsar's Wife, even without any suspicion (ƒ);" and, certainly, the Court will always pause where doubts raised upon a Title are reasonable and fair, and will not compel a Purchaser to take property,

(c) 6 Ves. 653.

(d) Jenkins v. Hiles, 6 Ves. 653, 655. Balfour v. Welland, 16 Ves. 151.

(e) See Omerod v. Hardman, 5 Ves. 731.

(f) Sedgewick v. Hargrave, 2 Ves. 57

not marketable (g). Many Cases established it as a Rule, (impugned, indeed, in a very recent Case) (h), that though in the Judgment of the Court the better opinion is that a Title can be made, yet if there is a considerable, a rational, doubt, the Court has not attached so much credit to its own opinion as to compel a Purchaser to take the Title, but leaves the Parties to Law; and this, whether the doubt arises as to the quantity of the Estate of which the Seller is possessed, or upon a legal (i) objection. Nor will a Case for the opinion of a Court of Law be directed without the Purchaser's consent (k); and if after a Certificate of the Court of King's Bench the Chancellor retains a doubt, a Purchaser will not be compelled to take the Title (1), but may require another Case, directed to another Court (m). If at Law the Title appears doubtful, the Court will not relieve (n).

Where the objection has been respecting the legitimacy of a Party, the Court has said there are many cases in which a Jury will collect the fact of legitimacy from circumstances, in which it might be attended with so much reasonable doubt, that the Court would not compel a Purchaser to take it merely because there was a verdict (0).

(g) See Marlow and Smith, 2 P. Wms. p. 201; and Lord Braybroke v. Inskip, 8 Ves. 428.

(h) See Biscoe v. Perkins, 1 Ves. & Bea. 492, 3.

(i) Stapylton v. Scott, 16 Ves. 274; and see Rose v. Calland, 5 Ves. 188, 189, and Cooper v. Denne, 1 Ves. Jun. 565, and Wheate and Hall, 17 Ves. 80.

(k) Roake v. Kidd, 5 Ves. 647.

(1) Sheffield v. Lord Mul grave, 2 Ves. Jun. 529.

(m) Trent v, Hanning, 10 Ves. 500.

(n) See Hartley v. Peahall Peake, N. P. 130, and see Wilde v. Fort, 4 Taunt. 334

(0) See Lord Braybroke v. Inskip, 8 Ves. 428.