(m) If the vendor was, in the first instance, guilty of an unfair concealment required to take it (oo)l A decree may be granted where there is an incumbrance, as of dower, founded upon a proper deduction for the value of the wife's interest.(op) And if the seller knew of incumbrances which the buyer did not know, the decree may require the seller to remove such incumbrances as he can, and to allow, in diminution of the price, for what he cannot, (oq)

1 A purchaser will not he compelled to accept the title of cestuis que trust, who made the agreement to sell, until it is perfected by a conveyance from the trustee, whose only duty remaining is to convey to them the legal title. Read v. Power, 12 R I. 16. See the discussion of this case in 17 Am. Law Reg. n. s 561. - K.

It is for the buyer to object to the sufficiency of title. The seller cannot object unless the buyer demands warranty; for, if the buyer is willing to take the land with the best title he can get, and with it the risk of ouster, he should have it (n) So if the seller can make good title to a part of the land, and to that only, the buyer may insist upon having that part, unless the seller is in no fault whatever, and would be materially injured by a severance of the lani(o) And if there be some deficiency in the quantity of the land, if it be trifling and causes no material diminution in the value of the remainder, the buyer may be of the defect, a subsequent removal of it will not entitle him to relief. Dalby v. Pullen, I Russ. & M. 296. It has been held, that after an agreement for the sale of land has been performed by the execution of a conveyance by the vendor, who at the time had no title or right to convey, such vendor cannot, upon afterwards obtaining the title, insist on the vendee's acceptance of a new conveyance , nor will the court enjoin the vendee from prosecuting an action upon the covenants in the original deed instituted before the vendor's acquisition and tender of a good title. Tucker v. Clarke, 2 Sandf. Ch. 96. And see Davis v. Symonds, 1 Cox, C. C. 403.

(n) Milligan v. Cooke, 16 Ves. 1; Mes-taer v. Gillespie, 11 id 640: Jones v. Belt, 2 Gill, 106; Laverty v. Moore, 33 N. Y. 658. Where a vendor, being defendant in the suit, excepted to a report of the Master finding in favor of his title, the exception was overruled by Sir John Romily, M. R., who declared it to be without precedent, and wrong in substance as well as form. Bradley a Mun-ton, 15 Beav. 460 21 Eng. L. & Eq. 555. In Luckett v. Williamson, 31 Mo. 54, it is said, that where the vendor has not the complete title, the vendee may insist on having all that the vendor can convey, with compensation for the difference.

(o) Western v. Russell, 3 Ves. & B 192, Hill v. Buckley, 17 Ves. 394 • Jacobs v. Locke, 2 Ired. Eq. 286. In a case where it was contended that an intended lessee could not have a specific performance of the agreement to lease, on the ground that the intended lessor had not such an interest in the whole property as would have enabled him on his part to have obtained a specific execution of the contract, and that therefore. there was a want of mutuality, it was answered. "The doctrine of this court, which is commonly expressed by saying, 'contracts must be mutual,' has no application to a case like this.' A vendor cannot make a purchaser take an estate with a bad title, but the purchaser may compel the vendor to give him the estate with such title as he has." Sutherland v Briggs, 1 Hare, 34, per Wigam, V. C. Where one of two tenants in common in fee of a colliery, contracted with the plaintiff for a lease of the entirety, the court refused to compel him to execute a lease of his moiety only. Price v. Griffith, 1 De G, M. & G. 80, 8 Eng. L. & Eq. 72. "Cases may be conceived," said Knight Bruce, L. J , in that case (id. 84), "where a person who has contracted to convey more than it is In his power to convey, ought to be decreed to convey what he can, either with or without com. pensation to the vendee, for such part of the subject-matter of the contract as the vendor is unable to convey. But a lease of an undivided moiety of a colliery is a very different thing from a lease of a whole colliery; and in this case there is no evidence of improper conduct or misrepresentation, or of the defendant Griffith having held himself out as capable of contracting for the whole, or, in fact, any other circumstance constituting a ground for a decree as to one undivided share alone.' As to the considerations which impose greater caution upon courts in this country, in adjudging partial performance, where the inability of the vendor to give a good title to land prevents complete performance, see remarks of Sel den, J., in Mills v Voorhees, 20 N. V. (6 Smith) 412.

When a vendor has kept a purchaser out of possession of land, equity seeks to put the parties in the condition in which they would be if the contract had been duly executed, and does this by holding the vendor as trustee of the land for the buyer, and accountable for rents and profits, and the purchaser as trustee of the price for the vendor, and accountable for interest. But this rule is qualified and accommodated to the circumstances and requirements of any case, (or)

*A somewhat different question arises, or if it be the same it has a different aspect when the parties have themselves agreed upon a time at which the title must be good, and shown to be so, and have made this time a part of the contract, (p) If that time has elapsed, there can be no specific performance of the contract (q)2 and if the plaintiff asks for further time, and also for a purchase after this further time, he may be said to ask that the court should make a new bargain, and not to seek the enforcement of the bargain he had made for

(oo) Dewolf v. Pratt, 42 III. 198.

(op) Troutman o. Gowing, 16 la. 415.

(oq) Jerome v, Scndder, 2 Rob. 169.

(or) Worrall r.Munn, 38 N. Y. 137.