It seems by no means clear whether, even in the extreme case of A. contracting to sell the estate of B., A. would not be entitled to specific performance, if by procuring a conveyance from B., he were able to make a good title on the reference; unless, indeed, the purchaser has, on discovering the defect, immediately repudiated the contract (g). In fact, in such cases the material question seems to be, whether the purchaser has, on discovering that the estate is not bound, at once refused on his part to be bound, or has continued to negotiate upon the footing of the contract being still valid and subsisting (//). At any rate, if a purchaser intends to rely on the objection that the vendor has only a limited interest, he must do so at once, and cannot avail himself of it, after he has required the concurrence of persons who can complete the title, or after the vendor lias brought his action (i). In an action at Law for damages, it is clear that, at any rate before the Judicature Acts, A. contracting to sell B.'s estate could not have recovered damages against the purchaser for refusing to complete, unless he could show that at the date fixed for completion he could have made out a good title (k).

Where vendor, having no title, contracts to sell.

(d) Lord Stourton v. Meers, cited 2 P. W. 630 ; Wynn v. Morgan, (1802) 7 Ves. 202 ; Coffin v. Cooper, (1807) 14 Ves. 205 ; Salisbury v. Hatcher, (1842) 2 T. & C. C. C. 54.

(e) Murrell v. Goodyear, (1859) 1 D. F. & J. 432.

(f) Bryant v. Bartiinyham, (1890) 44 Ch. D. 218, 223 ; 59 L. J. Ch. 63G; Me Thompson and Holt, (1890) 44 Ch. D. 492 ; 59 L. J. Ch. 651 ; Re Head's Trustees and Macdonald, (1890) 45 Ch. D. 310, 317 ; 59 L. J.

Ch. 604.

(g) See Mortlock v. Bullcr, (1S04) 10 Ves. 315; Boehm v. Wood, (1820) 1 J. & W. 422; and see Salisbury v. Hatcher, sup.; Ellis v. Rogers, (1885) 29 Ch. D. at p. 672; Bellamy v. Debenham, 1891, 1 Ch. 412; 60 L. J. Ch. 166.

(h) Eyston v. Simmonds and Salisbury v. Hatcher, sup. ; and see Weston v. Savage, (1879) 10 Ch. D. 736 ; 48 L. J. Ch. 239 ; Re Head's Trustees and Maedonald, (1890) 45 Ch. D. 310; 59 L. J. Ch. 604.

Several cases, however, afford an illustration of the exercise by the Court of its discretionary jurisdiction to refuse specific performance, where the purchaser has, on discovering the defect in the vendor's title, forthwith repudiated the contract. Thus, where the contract was for a yearly tenancy, with an option of taking a lease for twenty-one years, and the tenant, on finding that the landlord could only grant a lease for twenty years and a quarter, repudiated the contract, it was held that the landlord, who, before the cause was heard, but not till after he had filed his bill for specific performance, was in a position to grant the stipulated lease, could not enforce the contract, which was void for want of mutuality (I). So, where A. contracted to sell to B. an agreement for a lease from C. to A., which was at the date of the contract voidable at the option of C, and B., on discovering this fact, at once repudiated the contract, an action by A. for specific performance by B. of the contract was dismissed (m).

Where the purchaser, on discovering the defect, repudiates.

(i) Boggart v. Scott, (1830) 1 R, & M. 296 ; Murrell v. Goodyear, sup. ; Wylson v. Dunn, (1887) 34 Ch. D. 569, 577 ; 56 L. J. Ch. 855.

(k) Noble v. Edwardes, (1877) 5 Ch. D. 378.

(l) Forrer v. Nash, (1865) 35 Beav. 167.

(m) Brewer v. Broadwood, (1882) 22 Ch. D. 105 ; 52 L. J. Ch. 136; Wylson v. Dunn, (1887) 34 Ch. D. 569 ; 56 L. J. Ch. 855. In Adams v. Broke, (1842) 1 T. & C. C. C. 627, 630, where trustees with a power of sale exerciseable with the consent of the tenant for life, entered into a contract, and filed a bill for specific performance, hut did not procure the requisite consent until after the commencement of the suit, Knight-Bruce, V.-C, expressed a doubt whether the bill should not be dismissed. But this doubt is at variance with the general rule that it is sufficient for the vendor to make out a title at the hearing or on the reference ; see Ellis v. Bogers, (1885) 29 Ch. D. 661, where the C. A., though not expressly deciding the point, intimated that a purchaser of a lease could not resist specific performance, person with whom the lessor originally contracted, and who has assigned the contract to the plaintiff. The question whether the lessor is himself entitled to the covenants of the party with whom he originally contracted, as of a persona designata, would seem to be one of construction of the original contract; and, in the absence of an expression of intention to that effect, it is conceived that he would not be so entitled (r).

"Where the contract itself depends on the performance of a condition precedent, the party to fulfil the condition cannot obtain specific performance without showing that he has fulfilled it. Thus, where a lessee offered to surrender his lease, and to take a fresh lease to a nominee, or to a company which he intended to form, and his offer was accepted ; hut the lessor afterwards refused to grant the lease ; it was held that the lessee could not obtain specific performance, as he had not fulfilled the precedent condition of appointing a nominee or forming a company (n).

Contract dependent on condition precedent.

But the purchaser may, by his contract, preclude himself from objecting that the consent of a specified person is necessary, or that the sale is a breach of trust; thus, e.g., where trustees for sale, who had no power of leasing, granted leases which materially lessened the value of the property, and then expressly sold the estate, subject to the unauthorized leases - the want of authority being plainly disclosed- the title was forced upon the purchaser (o).

Purchaser, when precluded from taking the objection.

The existence of a heavy incumbrance on the estate, and the mental incapacity of the incumbrancer, being matters of conveyance and not of title (p), are no conclusive defence to a vendor's suit (q).