Want of mutuality.

(k) Above, pp. (',91 - 695.

(i) Mortlock v. Butter, 10 Ves. 292, 312; Harnett v. Yielding, 2 Sch. & Lef. 549, 554; Orel v. Noel, 5 Madd. 438; Wood v. Richardson, 1 Bear. 174, 176, 177; Thompson v. Blackstone, 6 Beav. 170; Rede v. Oakes, 4 De G. J. & S. 505, 512, 513, 515; Willmott v. Barber, 15 Ch. D. 96, 107; Dunn v. Flood, 28 Ch. D. 586, 590; Manchester Ship Canal Co. v. Manchester Racecourse Co., 1900, 2

Ch. 352, 366, 367, 1901, 2 Ch. 37, 51; Corbett v. South Eastern & Chatham Ry. Co.'s Managing Committee, 1905, 2 Ch. 280, 287.

(/,) Fry, Sp. Perf. Sec. 407, 3rd ed.

(l) See note (i), above.

(m) Ord v. Noel, 5 Madd. 438; and consider Dance v. Goldingham, L. R. 8 Ch. 902, 911, 913; and see above, pp. 275 & n. (el), 276.

(n) Consider Selling v. Lumley, 3 De G. & J. 493.

(o) Hamilton v. Grant, 3 Dow, 33, 42; Flight v. Bolland, 4 Russ. 298, 301; Pickering v. Bishop of Ely, 2 Y. & C. C. C. 249, 267.

(p) Above, pp. 797, 798.

(q) Above, pp. 835, 845.

(r) Fry, Sp. Perf. Sec. 460, 463, 3rd ed.

(s) South Eastern Ry. Co. v. Knott, 10 Hare, 122, 125, 126; Hawkes v. Eastern Counties Ru. Co., 1 De G. M. & G. 737, 755, 5 H. L. C. 331, 365.

(t) Above, p. 798 & n. (i).

(u) Above, p. 978.

Contract subject to a condition precedent.

(x) Consider Firth v. Green-wood, 1 Jur. N. S. 8G6.

(y) Above, pp. 729, 744, 767, sor,.

(z) Above, p. 991. (a) Above, pp. 134, 135 & n. [u).

(b) Hawkes v. Eastern Counties My. Co., 1 De G. M. & G. 737, 755, 5 H. L. C. 331, 365.

(c) Fry, Sp. Perf. Sec. 473-476, 3rd ed.

(d) Above, pp. 636, 637. (e) Above, p. 913.

When a man sues for the specific performance of a contract he must show that he has ever been and continues to be ready and willing to perform his part of the agreement (h). Not only, therefore, must he have performed or have been ready and willing to perform all stipulations on his part, which are regarded in equity as essential (i), up to the time of bringing his action, but if he subsequently do any act which precludes him from carrying out his part of the contract, that will afford a defence to his claim; and this defence may be taken by a defendant who has himself broken the contract. Thus, if a purchaser of land make default in carrying out the contract, and the vendor sue to enforce it specifically, it will be a good defence that the vendor has subsequently made some sale or other disposition of the land, which effectually prevents him from completing the contract (j). This would be no defence to a claim by the vendor for damages for the purchaser's breach of contract (j).

The plaintiff's not continuing ready and willing to perform his part of the contract.

It is well established that the Court will not grant or enforce the relief of specific performance of a contract, unless the party seeking this remedy apply promptly, that is, as soon as the nature of the case will permit (k), and diligently prosecute the proceedings, when once his action has been brought (l). No particular time can be specified within which an action for specific performance of a sale of land must necessarily be brought, in order to prevent the defence of laches. Each case will be judged according to its own particular circumstances; and the question is whether proceedings have been commenced within a reasonable time (m). Where one party has taken some objection and declines to complete the contract in the manner proposed by the other, there is of course no necessity for the other to take proceedings, so long as the parties are negotiating with a view to the removal of the objection. But when once such negotiations have been declined or broken off, and the other party has been definitely informed that the objector insists on his objection and claims to repudiate the contract on that account, the other should lose no time in instituting proceedings, if he intend to claim specific performance of the contract {n). Of course, he need not issue a writ or a summons on the very next day; he is no doubt entitled to a reasonable time to obtain advice as to his rights in the matter and to consider such advice when obtained. But he must be prompt both in consulting counsel and in making up his mind. In such circumstances a delay of one year has been held to be fatal (o); and where the nature of the property sold is such as to make time of the essence of the contract (p), as in the case of a sale of a leasehold colliery, even a period of three months and a half has been considered too long (q).

Laches.

(f) See Weeding v. Weeding, 1 J. & H. 424, 425, a case of an option to purchase duly exercised; Fry, Sp. Perf. Sec. 465, 3rd ed.

(g) Above, p. 913.

(h) Fry, Sp. Perf. Sec. 922, 3rd ed.

(i) Above, p. 991.

(j) Hipgrave v. Case, 28 Ch. D.

35G; see above, pp. 975, 976.

(k) Milward v. Thanet, 5 Ves. 720, n.; Each v. Williams, 4 De G. M. & G. 674, 691; Mills v. Haywood, 6 Ch. D. 196, 202; Levy v. Stogdon, 1S98, 1 Ch. 478, 484, affd. 1899, 1 Ch. 5; Frv, Sp. Perf. Sec. 1100 - 1102, 3rd ed.

22(2)

(l) Moore v. Blake, 1 Ball & B. 62, 69.

(m) Huxham v. Llewellyn, 21 W. R. 570, 571.

(n) See Walker v. Jeffreys, 1 Hare, 341, 348; Southcomb v. Bp.. of Exeter, 6 Hare, 213, 219, 220; Parkin v. Thorold, 16 Beav. 59, 73; Lehmann v. Me Arthur, L. R. 3 Ch. 496, 504.

(o) Watson v. Held, 1 Russ. & My. 236; see also Heaphy v. Hill, 2 S. & S. 29; Southcomb v. Bp. of Exeter, 6 Hare, 213; Eads v. Williams, 4 De G. M. & G. 674.

(p) Above, pp. 49, 507.

(q) Glasbrook v. Richardson, 23 W. R. 51; see also Huxham v. Llewellyn, 21 W. R, 570, 766.

As to the doubt fulness of the title as a defence to an action for specific performance, it is established that the Court will not oblige the purchaser to perform specifically a contract for the sale of land, if the title shown by the vendor be such as the Court considers too doubtful to force upon an unwilling purchaser (r). We have seen (s) that it is a condition precedent to the enforcement of a contract for the sale of land that the vendor shall show a good title to the property sold, and that this rule appears to be of equitable origin. On the principle that he who seeks equity must do equity, Courts of Equity would not grant the extraordinary relief of a decree for specific performance against a purchaser of land, unless the vendor proved that he had the right to convey what he had contracted to sell and could show good title for its secure enjoyment by the purchaser (t). On this ground it was established that in every suit for specific performance of a sale of land, whether brought by the vendor (t) or the purchaser (u), it is the purchaser's right (x) to have an inquiry directed, whether a good title can be made to the property sold (y); that is, a good title according to the contract (z). If the Court consider the title to be good, the purchaser must carry out the contract (a), subject of course to his right of appealing from the judge's decision. If it be certified that a good title cannot be made, he is entitled to rescind the contract or to claim damages for its breach (b). But the decision of the Court as to the validity or invalidity of the title is only binding on the parties to the action and those claiming under them (c); and the Courts of Equity have considered that, before a purchaser of land shall be obliged to perform the contract specifically, he shall (subject to the special stipulations contained in the agreement) have such a title as he in his turn will be able to force upon purchasers from him (d). Hence it is that if the Court consider it to be doubtful whether the title attains this standard, the Court will simply decline to enforce the contract specifically (e), without prejudice, as it appears (f), to the vendor's right to retain the deposit or to recover damages for the purchaser's refusal to perform the agreement.