
    *Jackson v. Ligon.
    November, 1831.
    Wi3!s “Construction — Case at Bar — Testator, after making- provision for bis wife by his will, devises, that after his wife’s death or marriage, his land shall be sold, and the money arising from the sale equally divided among all his children: widow renounces the will, and dower is assigned her: Held, ex'or has no power to sell during widow's life and widowhood, or to sell part of the subject.
    Specific ¡Performance — Sale of Land — Title—Reference to Commissioner. -Bill in county court, by vendor against vendee, for specific execution of agreement for sale and purchase of land; vendor insisting he has a good title to convey, and vendee that title is defective, and both parties by the pleadings referring the question (which is a question of law on the construction of a will) to the court; and the cause is brought to hearing by consent, neither party asking a reference of the title to a commissioner: Held, in such case, the court ought not to refer the title to a commissioner, nor, if title be defective, to give vendor time to perfect it, but should proceed to decide the question.
    Same — Same—Decree Compelling Vendee to Take De» lecíive Title — Reversal—Case at Bar. — County court, m such case, though the title is. in truth, defective, without reference of the title, decrees specific execution; vendee appeals to superiour court of chancery: Held, the chancellor ought to review the decree of the county court, upon the actual state of case at time of the decree there: and as the decree was erroneous in compelling vendee to take defective title, to reverse it, and dismiss vendor’s bill; and he ought not to open the proceedings, refer the title, give the vendor time to perfect it, and in case lie succeeded in doing so. decree specific execution.
    Same — Same—Time Hade of the Essence of Contract by Acts of Parties — Effect.  — In the case of an execu-tory agreement, though the time appointed for performance may not be made (originally, by the terms of contract) of the essence thereof, yet it may be made material by the conduct of parties or circumstances afterwards; and, if so made material, the party in default is not entitled to demand .specific execution against the other.
    Same — Same—RSghi of Vendee to Perfect Title. — If, in an agreement for sale and purchase of land, vendee is apprised that vendor’s title is defective, and agreement stipulates that vendor shall convey to vendee, a good and lawful right by a given day: at appointed day, vendor insists that his title is perfect, though in truth it is defective; upon which vendee, having received possession under the contract, abandons the possession, and refuses to proceed with the purchase: upon a bill for specific execution, by vendor against, vendee, Held, vendee’s previous knowledge of defects in the title, is no reason for compelling him. to take such title as vendor can convey, that being defective.
    Same — Same—Titie to Part of Land Defective.— Upon bill for specific execution of agreement for sale and purchase of a tract of 686 acres of land for cultivation, vendor’s title to 209 acres of tract is defective: this is separated from the residue by a public road, and all the improvements are on the residue, in which vendor has a perfect title: Held, vendee shall not be compelled to take the residue.
    This was a bill exhibited by Ligón against Jackson, in the county court of Prince EJdward in chancery, for specific Execution of articles of agreement between the parties, executed the 12th November 1822, whereby Ligón covenanted to sell to Jackson, a tract of land in that county, containing by estimation 686 acres, but the quantity.was to be ascertained by actual survey : for which Jackson covenanted to pay Ligón IS dollars per acre, in four equal instalments, the first on the 1st January 1823, the second on the 1st May 1824, the third on the 1st September 1825, and the last on the 1st January 1827, and to give bond, with good and sufficient surety, for the payment of each of the instalments. And Ligón covenanted to give Jackson full and complete possession on the 25th December 1822, and meantime to allow him the privilege of preparing or using the land for crops, so that he should not interfere with Ligon’s crop of tobacco then in the tobacco houses, or with any other property of Ligón then on the land. And Ligón bound himself to make Jackson a good and lawful right to the land, on or before the 1st January 182-3, at which time the first payment was to be made.
    In the interval between the date of the articles and the 25th December following, Jackson sowed a crop of wheat on the land, and full possession was given him on the 25th December 1822, according to the covenant. The parties met on the 1st January 1823, for the purpose of executing the articles; when Jackson requested that the business should be postponed for a few days, alleging (according to the account given by one witness) as his only reason for the request, that, as he had not been apprised of the exact quantity, of the land, he was not then prepared with his bonds with surety for the deferred payments, but (according to two other witnesses) he suggested also, the same doubt about the title, which he afterwards specially objected, and which he then said it was necessary to examine; and, as those doubts arose out of the provisions of Owen Haskins’s will, under which part of the land was claimed, he required Ligón to produce the will. Ligón assented to the postponement; and the parties agreed to meet again on *the Saturday following. They both attended at the day and place appointed; Jackson prepared to make the first payment, and to give his bonds with surety for the deferred payments, and tendering them, if Ligón should make him a good and clear title; and Ligón prepared with a deed duly executed by him, conveying the land to Jackson in fee, with several warranty. Ligón tendered this deed to Jackson, and he shewed him the will of Owen Haskins under whose executor he claimed a large portion of the land, but Jackson refused to accept Ligon’s deed, alleging specific objections to Ligon’á title to that portion of the land claimed under Haskins’s executor, requiring that the title should be cleared of those objections, and declaring that unless the defects or doubts of the title were removed, he would not proceed with the purchase. Ligón denied that there was'any defect in the title, and insisted, that his deed with warranty was a full and just execution of the articles on his part, and that nothing more could be required of him. Upon this, the parties separated, without executing the contract. And, a. few weeks afterwards, Jackson abandoned the land, and the contract.
    In January 1824, Ligón exhibited his bill in the county court in chancery, wherein, after setting forth the articles of agreement, and Jackson’s refusal to proceed with the purchase, he proceeded to state his title to the land: that the whole tract was found, by survey, to contain 698 acres; 489 acres of which, he held under a conveyance from his father, and as to that the title was indisputable; and as to the residue of the tract, 209 acres, he claimed two thirds thereof under a sale and conveyance with general warranty, made to him by Thomas Haskins, executor of Owen Haskins, in virtue of a power to sell vested in him by his testator’s will; and the other third thereof he claimed under a contract made between him and Albert Haskins, one of the devisees of the testator Owen Haskins, who was entitled to this third; to which contract, he said, Thomas Haskins, the executor, had given his assent, and which *Ligon had completely executed on his part, but Albert, though of full age, had died without making him a conveyance. He exhibited Owen Haskins’s will, and the conveyance made to him by Thomas Haskins the executor, but he did not exhibit the contract between him and Albert Haskins. He then alleged, that, at the time of the contract between him and Jackson, Jackson was exactly informed of the state of the title; that the title was, in fact, such a good and lawful title, that Jackson could never be disturbed in the enjoyment of the subject; that his conveyance with general warranty, tendered to Jackson in January 1823 (which he also exhibited) was such a good and lawful right to the land, as he was bound to make, and Jackson bound to accept, by the articles of the 12th November 1822, and that he was not bound to do any thing more on his part, to entitle himself to demand performance of the contract on Jackson’s part. And he prayed‘a decree for specific execution.
    Jackson, in his answer, admitted that Ligon’s title to the 489 acres, which he claimed under the conveyance from his father, was perfect: but as to the 209 acres, whereof Ligón claimed two thirds under the sale and conveyance of the executor of Owen Haskins, and the other third under the contract between him and Albert Haskins, he objected, that the executor had no authority under his testator’s will, to make such sale and conveyance, so that Ligón had no title whatever to the two thirds he claimed under him; and that, as to the other third thereof, which he claimed under Albert, he had, by his own shewing, only an equitable title. He acknowledged, that he was present at the sale made by the executor, which was a public one, and was apprised that the executor professed to make the sale in execution of a power vested in him by his testator’s will; and his confidence in the executor’s judgment was such that he did not doubt he had the power; but he never was informed of the actual provisions of the will, until after his contract with Eigon was made. He said, that he expressly stipulated *that Eigon should make him a good and lawful right on the day appointed; and relying on that covenant, he took possession of the land, as stated in the bill, and prepared himself to execute the contract on his part, in good faith; but, finding that Jfigon had no good title to so large a portion of the land, and yet refused to take any steps to perfect the title, insisted that his title was already perfect, and that his own conveyance with warranty, was a full compliance with his covenant to make a good and lawful right to the land, and declared he would do nothing more, he, therefore, immediately declined to complete the purchase and abandoned the contract, and as promptly as he could abandoned also the possession of the land. He referred to the terms of the covenant, whereby Eigon bound himself to make him a good and lawful right to the land on or before 1st January 1823, when the first payment was to be made by him; and insisted, that Eigon was absolutely bound to perfect the title in himself, and to convey a clear title to him, at or before the time appointed, and that his failure to do so absolved him, the purchaser, from all obligation to complete the purchase.
    The controversy, then, turned upon the state of the title of the 209 acres.
    This was parcel of a tract of 438 acres, whereof Owen Haskins died seized in fee in January 1808, having by his last will and testament devised and bequeathed as follows: “It is my will and desire, that all my just debts shall be paid by my executor; and that the following slaves (naming three men) .shall be sold on twelve months credit, and the money arising from the sale thereof shall be laid out in young female slaves, for the benefit of my wife and children. It is my will &c. that all the money due me, after my debts are paid, shall be laid out by my executor in any manner he may think best for the benefit of my wife and children. It is my will &c. that my estate shall be kept together for the support of my wife and children, and as my children come of age or marry, they shall receive their proportionable K'part of my personal estate, reserving one third part for the support of my wife, and at her death or marriage to be equally divided among all my children, to them and their heirs forever. It is my will &c. that my executor shall be at liberty to put such improvements on my land, as he in his discretion shall think proper, for the accommodation of my wife and children, and shall be at liberty to buy stock of any kind, and exchange or barter it, in any manner he may think best. It is my will <%c. that, after my wife’s death or marriage, my land shall be sold, and the money arising from the sale be equally divided among all my children.” And the testator appointed Thomas Haskins his executor, who took upon himself the executorship.
    The testator’s widow renounced the provision made for her by the will, real and personal, and claimed her dower of the real, and thirds of the personal, estate of her deceased husband.
    The testator left at his death, six children, all infants; Mary, Catharine, Albert, Edward, Henry and Erancis. Mary and Catharine died infants, unmarried and intestate, their mother and four brothers them surviving.
    Albert attained to full age ; and exhibited his bill in the county court of Prince Edward, against the widow and the executor of his father, and his three brothers, who were still infants; setting forth his father’s will, and the widow’s renunciation of the provisions thereby made for her; and praying, that the widow’s dower of the testator’s lands might first be assigned her, and then partition made thereof among himself and bis three infant brothers. To this bill, the widow and executor filed their answers, and an answer was put in for the infant defendants by a next friend; no guardian ad litem was assigned them. The court made an interlocutory decree, appointing commissioners to assign the widow her dower, and to make partition among the four brothers. At this stage of that proceeding, Albert, the plaintiff therein, died without issue and intestate. And then Eigon (Jackson’s vendor) exhibited his bill, in the same *court, against the same parties defendants, referring to Albert Haskins’s bill, and the proceedings thereupon; stating Albert’s deatn ; alleging that Albert, before his death, had transferred his whole interest in his father’s land to him, as well what he derived from his father, as what he derived from his two deceased sisters, Mary and Catharine; that these having derived their shares of the land from their father, and died in infancy, their shares descended to their four brothers, to the exclusion of their mother; that, therefore, Albert, and Eigon claiming under him, was entitled to one fourth of the land, subject to the widow’s dower; praying, that he might be substituted in Albert’s place, and that the widow’s dower might be assigned her, and partition made between him and the three infant brothers of Albert. To this bill also the widow and executor of the testator Owen Haskins, and the three infant defendants, Edward, Henry and Francis Haskins, not by guardian, but by next friend, put in an answer, admitting the allegations of the bill, and assenting to the decree therein prayed for. Upon the strength of this admission in the answer, without any proof whatever of the alleged transfer by Albert of his share to Eigon, the county court at July term 1822, made an interlocutory decree, appointing commissioners to assign the widow her dower, and to make partition among the other parties according to the prayer of the bill. In October 1822, the commissioners, in pursuance of this decree, assigned 146 acres of the testator Owen Haskins’s land to the widow for her dower, and allotted 86 acres to Edward Haskins in severalty, and the residue, 209 acres, to Henry and Francis Haskins, and Eigon claiming Albert’s share, jointly. The commissioners having made a report of this division of the land, the court, at July term 1823, made a final decree, confirming the report and establishing the division, and directing the same commissioners to convey Albert’s one undivided third of the 209 acres to Ligón, without giving the infant parties any day, after their-attainment to full age, to shew cause against the decree.
    *And this was the precise state of Ligon’s title to Albert Haskins’s third of this parcel of 209 acres of land, at the time this suit of Ligón against Jackson was heard in the county court, and of the decree of that court in the same. The commissioners appointed to convey it to Ligón, had made no such conveyance.
    As to the other undivided two thirds of the 209 acres, which belonged to Henry and Francis Haskins, which Ligón claimed under the sale and conveyance of Owen Has-kins’s executor, it appeared, that the executor made the sale and conveyance thereof to Ligón in October 1822, while Henry and James Haskins were still infants, in virtue of the provision contained in his testator’s will, which directed that, “after his wife’s death or marriage, his land should be sold, and the money arising from the sale be equallj' divided among all his children,” notwithstanding^the testator’s widow was still living, and'still remained unmarried. And she was still living, in widowhood, at the time of the hearing of Ligon’s suit against Jackson, and of the decree of the county court therein. So that the sufficiency of Ligon’s, title to these two thirds of the 209 acres, depended on the question, whether the testator Owen Haskins’s will gave his executor power to sell his lands, after his widow had renounced the provision made for her by the will, but before her death or marriage.
    The evidence as to the precise time when Jackson abandoned the possession of the land, was vague. A witness examined for Ligón, deposed, that Jackson, after sowing a crop of wheat, received full possession on the 24th December 1822, and that he abandoned the possession within a few weeks afterwards.
    It was doubtful also, upon the proofs in the cause, whether or no Jackson was apprised of or s'uspected the defects in the title, at the time of his contract with Li-gón. It was proved, that the sale by the executor of Haskins, was made at public auction, in October 1822; that the executor stated publicly, that he was selling as executor under his testator’s *will, for the benefit of his two infant children Henry and Francis, and that he would give a deed with a special warranty, and his own bond with surety, that the title should be made good, when the infants attained to full age, and that Jackson was present, and the witnesses supposed must have heard this; he was a bidder at the sale. On the other hand, it was proved, that, at the time of the treaty and contract between Jackson and Ligón, Jackson told Ligón he knew nothing about the title, and told the person who wrote the articles, to write such a contract as would bind Ligón to convey him a good title, and bind him to pay the purchase money. The deed of Haskins’s executor to Ligón contained a covenant of general warranty; but no bond with surety, that the title should be made good when the infant owners attained to full age, was given by or demanded of him.
    The cause was pending in the county court, from January 1823 till July term 1826, when it was brought on for hearing by consent of ■ the parties, upon the state of the case as above detailed, neither party asking or proposing a reference of the title. The county court decreed a specific execution of the articles; that Jackson should accept Ligon’s deed with general warranty for the whole tract of 698 acres, which had been tendered to him in January 1823, and pay the purchase money* according to the articles.
    From this decree Jackson appealed to the superiour court of chancery of Richmond. And before the cause was heard in that court, viz. in November 1827, Ligón filed the following deeds:
    1. A deed, dated the 9th February 1826, executed by Henry Haskins (now of full age) to Ligón, releasing and confirming to him all his right in the land sold him by his father’s executor.
    2. A deed, dated the 26th December 1826, executed by the commissioners appointed by the decree of the county court, of July 1823, in Ligon’s suit against the widow, executor and infant sons of the testator Owen Haskins, in pursuance *of that decree, conveying to Ligón, Albert’s third of the 209 acres of land; and along with this deed, Albert’s covenant to sell Ligón this property, and the receipt of Albert’s administrator for the purchase money.
    3. A deed, dated the 19th December 1826,' purporting to be executed by Catharine Haskins, the widow of the testator Owen Haskins and mother of all his children, and all the persons who could possibly have any interest, as heirs of that testator, or of his children, or any of them,- — reciting the sales made to Ligón by Albert Haskins, and by the executor of Owen Haskins, that the testator’s sons Edward and Henry attained to full age and then died, having both by their wills devised their whole estates to their mother Catharine, and that his daughters, Mary and Catharine, and his son Francis, died infants, — and conveying, releasing and confirming, to Ligón, all the right, title and interest, of the grantors in the 209 acres of land.
    The cause was not heard in the court of chancery, till June term 1828, when the chancellor, without affirming or reversing the decree of the county court, referred Ligon’s title to a commissioner, with directions to report the state of it, and whether Ligón had made, or could make, a clear title to the whole, or any part, of the land; if only part, what part; if his title was defective as to any part, wnether that was essential to the beneficial enjoyment of the part of which he had conveyed or could convey a good title; and if he had a good title to the whole to convey, at what time he acquired the title.
    The commissioner reported, that Ligon’s title to the 489 acres he derived from his father, was perfect, and never had been doubted; and, as to the 209 acres, he referred to the three deeds filed since the cause had been pending in the court of chancery, and reported, that they conveyed, released and confirmed, to Ligón, a perfect title in this parcel of the land, except as to about one seventh of Francis Haskins’s one third thereof, which, it seemed to the commissioner probable, though not certain, belonged to three persons, who *were entitled to shares as his heirs at law, and who had not joined in the general deed of the 19th December 1826. And he reported, that the parcel of 209 acres, was separated by a public road from the 489 acres, and all the buildings on the whole tract were upon the latter parcel: that, upon the question whether the former was essential to the beneficial enjoyment of the latter part, the affidavits of many persons had been laid before him (which he returned with the report) and these were very variant and conflicting: that his own opinion was, that, though the parcel of 209 acres was a convenient appendage to, it was not essential to the beneficial enjoyment of, the 489 acres.
    The chancellor, upon the final hearing, in April 1830, was of opinion, that at the time of the decree of the county court, Ligon’s title was defective, and that court erred in decreeing specific execution without having first referred the title to a commissioner, to be examined and stated; and, therefore, he reversed that decree with costs. But he was also of opinion, that Ligon’s title was now perfect, and that if the county court had perceived the defect of the title when the cause was heard there, and had proceeded regularly, and made a reference of the title, Ligón could have perfected the title there, as he had done here; and, therefore, proceeding to make such decree as the county court ought to have pronounced, if it had proceeded regularly, and the same results that now appeared had appeared there, he decreed a specific execution; adjudging that Jackson should pay the whole purchase money with interest; and, in case of his failure to pay it within four months, ordering a sale of the land to be made by the marshal, and the proceeds to be brought into court to be applied by future order to the satisfaction of the debt. From this decree Jackson appealed to this court.
    The cause was argued by Johnson and Leigh, for the appellant, and by the attorney general, Taylor and Stanard, for the appellee. There were five points made and discussed at the bar.
    *1. Whether the time appointed by the articles of November 1822, for the conveyance by the vendor to the vendee of a good and lawful right to the land, was of the essence of the contract? or was made material by the circumstances of the transaction, and the conduct of the parties? For if it was, and if the vendor had not then a clear and perfect title, no matter whether or at what time he afterwards got the title in, he was not entitled to specific execution.
    The appellant’s counsel thought, that, in the case of a purchase of land in this country for cultivation, where the purchaser covenants to pay the purchase money in several and distant instalments, and stipulates that a good title shall be assured to him at an early day before he shall part with any of the purchase money, the time, in general, was highly material, and ought to be regarded as of the essence of the contract: that, in such a case, while the credit enhanced the price of the subject, the purchaser always reckoned on the profits, to be derived from his own labour and capital applied to the cultivation of the land, as a fund to aid him in making the deferred payments; but, unless he should be assured of the title at the time stipulated, he could neither safely make any improvements, nor certainly know whether the profits would be his own to dispose of; for if evicted, he would have to account to the true owner for the profits, while the owner would not be bound to make him any compensation for his improvements, nor would he be entitled to recover, on the usual covenants for assurance of title, the value of the improvements from the vendor: that, thus, the failure of the vendor to make a perfect title at the time stipulated, disappointed the purchaser, in very material respects, of the benefit of his purchase: therefore, that the case of such a purchase here, was different from the common case of purchase of lands in England' — lands already improved to the utmost and yielding a certain rent; it was, in principle, like the case of a purchase of a house for a residence, and other cases where the contract is made with a *specific view, in which the time appointed for the conveyance of a clear title is regarded as of the essence of the contract, on the ground that the failure of the vendor to perfect the title, defeats the purpose of the purchase. But, however this might be in the general case, they said the circumstances of this particular case,- and the conduct of the parties, made the time appointed for the performance of the vendor’s covenant to convey, unquestionably material. The vendee expressly stipulated, that the vendor should make him a good and lawful right on the 1st January 1823, when the first payment was to be made; the time was extended to the Saturday following, by mutual consent; the vendor then tendered his own deed with warranty, and upon the vendee making specific objections to the title, he insisted that the title was good, and neither offered to take measures to perfect it, nor in fact took any: he left the vendee no alternative but to take a title, doubtful at least if not plainly defective, or to decline to proceed with the purchase. The vendee did immediately decline to proceed, and shortly after abandoned the possession; yet the vendor acquiesced for a year without insisting on the contract; for his suit was not brought till January 1824. They cited the opinion of C. J. Marshall in Garnett v. Macon, p. 15, 53, 4; Lloyd v. Collett, 4 Bro. C. C. 469, 4 Ves. 689, in notis ; Harrington v. Wheeler, 4 Ves. 686; Guest v. Homfray, 5 Ves. 818.
    The appellee’s counsel said the case of Garnett v. Macon alone sufficed to refute the suggestion, that there was a peculiarity, in respect of the question whether time was of the essence of the contract, in a sale of lands in this country for cultivation ; that case was like this, and though it was held that a changeof circumstances rendered the time material, yet time was not held to be of the essence of the contract. Time may indeed, be made essential, but only *by plain agreement to that effect; Sugd. Law Vend. ch. 8, 'i 2, p. 284-292; Append. No. VI, p. 6. But, so far from there being any thing of that kind in this contract, the provision, that partial possession should be immediately permitted to the vendee, and full possession given to him, before the time appointed for the conveyance of the title, shewed, conclusively, that time was neither of the essence of the contract, nor originally deemed by the parties at all material. And the vendee held the possession till after the time for the conveyance of the title had' passed by; and that was a waiver of all objections founded on the failure of the vendor to make a good title at the precise time appointed. Therefore, they said, this case was to be added to the numerous cases, in which a vendor has been held entitled to specific execution, if he can make the title at the time of the decree. They cited Sugd. ch. 8, l 2, p. 282, 3, where the cases are collected ; and they referred, particularly, to Langford v. Pitt, 2 P. Wms. 630; Wynn v. Morgan, 7 Ves. 202; Coffin v. Cooper, 14 Ves. 205; Levy v. Lindo, 3 Meriv. 80; Boehm v. Wood, 1 Jac. & Walk. 419; Hepburn v. Auld, 5 Cranch, 262, 275; Hepburn v. Dunlop, 1 Wheat. 179; Brazier v. Gratz, 6 Wheat. 528, 533.
    II. Whether, in fact, Jackson had knowledge of the alleged defects of the title, at the time the contract was made? and supposing he had, what influence that circumstance would have on the construction' of the contract? and how far such notice, coupled with the fact of possession taken by him, would bind him to proceed with the purchase, notwithstanding the defects of the title?
    As to the point of fact, both parties appealed to the evidence. Supposing Jackson had full knowledge of the defects of the title, the appellant’s counsel said, it could not bind him to take a bad or doubtful title; and it rather served to account for and explain the stipulation he insisted upon, that a good and lawful right should be made to him at the ^precise day when he was to make the first payment. The appellee’s counsel said, it was apparent, that if Jackson was apprised of the defects of the title, he must have known that they could not be removed at so early a day; and they cited Sugd. ch. 8, § 2, p. 286, 7; Pincke v. Curteis, 4 Bro. C. C. 329; Seton v. Slade, 7 Ves. 265; Syme v. Johnston, 3 Call, 558.
    III. The appellant’s counsel insisted, that it was quite clear, that, at the date of the articles, at the date appointed for the conveyance of the title, and at the date of the decree of the county court, Ligón, the vendor, had no title to 209 acres of land. As to the third of that parcel, he claimed only an equitable title, and that upon the strength of a decree palpably erroneous, and subject to be set aside by the infant parties whenever they attained to full age. And as to the other two thirds, claimed under the executor of Owen Haskins, they said, the will of that testator gave the executor a mere naked power to sell, after the death or marriage of the wife, and gave alt the children an interest in the profits till one of those events should happen, and gave' them unequal interests. The wife’s renunciation of the provisions made for her by the will, entitled her- to dower, but only disturbed the testator’s disposition of 'his property pro tanto. The power to sell could never arise so long as the wife was living and remaining in widowhood.
    The counsel for the appellee said, that, when the wife renounced the provision made for her by the will, the reason that induced the testator to postpone the sale till her death or marriage, ceased; but the purpose for which he authorized the sale remained, and that purpose required the sale to be presently made. This was not a naked power, but a power coupled with an interest, or (which is the same thing) with a trust. Osgood v. Franklin, 2 Johns. Ch. Rep. 20, 21, 14 Johns. Rep. 553, 4 S. C. Such powers ought to be expounded liberally, so as to accomplish the intention and purpose for which they are given. Jackson v. Veeder, 11 Johns. Rep. 169; Roberts v. Stanton, 2 Munf. 129. *A power to sell after the death of a tenant for life, may be executed during the life. Harg. Co. Litt. 113a, note 2; Sugd. on Powers, 272; Uvedale v. Uvedale, 3 Atk. 117; Sutherland v. Northmore, 1 Dick. 56.
    IV. And then, the question was — supposing this a case, in which the vendor was entitled to specific execution, if he could make a good title at the time of the decree, and supposing the decree of the county court erroneous, because he was then unable to convey such a title — what ought the court of chancery to have done, on the first hearing of the cause there, upon the appeal from .the decree of the county court? Ought it to have reversed that decree, merely because the county court had not referred the title to a commissioner, and then to have retained the cause, referred the title, and made its final decree upon the commissioner’s report shewing the title perfected since the decree of the county court? or, to have reversed that decree in omnibus, and dismissed the bill ?
    The counsel for the appellant maintained, that the latter was the only decree that could properly be made. They said, the doctrine that a vendor is entitled to specific execution, if he enable himself to convey a perfect title at the time of the decree, must have relation to the time of the decree of the court to which he resorts for relief, not to the time of a final decree in an appellate court, to which the cause may eventually be carried, by appeal from a decree which he himself has asked and obtained. The error of the county court consisted simply in decreeing specific execution when the plaintiff was no wise entitled to it, and when the defendant was entitled to a dismission of the bill. There was no error, not the least irregularity, in the omission to refer the title to a commissioner: 1. because the cause was brought to hearing by consent, and neither party asked a reference of the title. 2. Because the plaintiff, without having, taken, without offering to take, any steps to perfect the title, or pretending that he could or would make a better title, relied upon the title he already had as a good one, *such as the defendant was bound to take; •which the defendant denied; and both parties joined in submitting the dry question to the court, as to the sufficiency of the title in the then actual state of it. Rose v. Calland, 5 Ves. 186; Omerod v. Hardman, Id. 722. 3. Because there was no certainty, that the title could be perfected in any reasonable time: that depended on the infant owners living to attain to full age, and then confirming the title, or, if they should die in iuxancy, leaving no infant heirs entitled to share the inheritance (a very uncommon case under our sj'stem of descents) but only heirs of full age, competent and willing to confirm the title. Nothing could exceed the hardship of keeping the purchaser in such suspense. In this respect, the case was like Mackreth’s part of the case of Whittaker v. Whittaker, 4 Bro. C. C. 31.
    The appellee’s counsel contended, that wherever a case is made by the pleadings, in which a vendor will be entitled to specific execution of the contract of sale, if he shall be able to make the title at the time of the decree, it is the duty of the court to refer the title to a commissioner, in order to ascertain whether the vendor can make a good title, or has the means of compelling others to do it, and to give him the opportunity to perfect the title, unless such reference be waived, unequivocally and without fraud or surprise; Jenkins v. Hiles, 6 Ves. 646. And this, though the questions ripon the title, are mere questions of law; Marlow v. Smith, 2 P. Wms. 198; Cooper v. Denne, 1 Ves. Jr. 565; Abel v. Heathcote, 2 Ves. Jr. 98; 4 Bro. C. C. 278; Roake v. Kidd, 5 Ves. 647. As to the question, whether an appellate court may direct a reference of the title, when the inferiour court has improperly neglected to do so, they said the case of Omerod v. Hardman, cited for the appellant for another purpose, was decisive on this point; for there, though it was not thought proper to refer the title, yet the question as to the reference was entertained in an appellate court. And this court upon an appeal from a decree of the "‘court of chancery, has directed a reference of the title; Beverley v. Lawson, 3 Munf. 317.
    V. The last point was, whether admitting that the plaintiff’ was not entitled to specific execution of the contract as to the 209 acres, he was entitled to specific execution as to the other parcel of 489, as to which it was agreed on all hands he had, from the beginning, an undoubted title? The authorities cited upon this point were, Sugd. Law Vend. ch. 6, p. 209-214, and the cases there cited, particularly Poole v. Shergold, 2 Bro. C. C. 118; Thompson v. Jackson, 3 Rand. 508.
    
      
       WHIs — Construction.—Under a power given the executor to sell the real estate of his testator after the death or marriage of the testator's widow, who renounced the will and dower as assigned her, such executor has no power to sell the land during her life or widowhood. For this proposition the principal case is cited and followed in Raper v. Sanders, 21 Gratt. 73.
    
    
      
       Sale of Land — Title—Reference to Commissioner. - Where the facts are all before the court, and the objection to the title to land purchased is a question of law, it is unnecessary to refer the title to a commissioner. Goddinv. Vaughn, If Gratt. 128, citing Jackson v. Ligón, 3 Leigh 161, 180 (see also, note). The principal case is also cited in Hudson v. Max Meadows, L. & I. Co., 97 Va. 317. 38 S. E. Rep. 586.
    
    
      
       Same — Specific Performance — Defect in Title. — In Newberry v. French, 98 Va. 484, 86 S. E. .Rep. 519, it is said: “It is well settled that a purchaser of land, at a private sale, will not be required to pay his purchase money and take in exchange therefor a defective or even doubtful title, and especially is this true where, as in the case at bar, he has contracted for a good and sufficient deed, which undertaking is not confined to the form of the deed, but includes a good title. Garnett v. Macon, 6 Call 309, 36?: Jackson, c. Ligón, 3 Leigh 174: Christian v. Cabell, 22 Gratt. 82; Hendricks v. Gillespie, 25 Gratt. 181; (hark v. Hutzler, 96 Va. 73, 30 S. E. Rep. 469: and Matney v. Ratliff, 96 Va. 381, 31 S. E. Rep. 512.” See also, citing the principal case, Max Meadows, U & I. Go. v. Brady, 92 Va. 84, 22 S. JE. Rep. 845.
      And in Oreighv. Boggs, 19 W. Va. 252. citing the principal case, it is said that the rule governing courts of equity and suits for specific performance of a contract for sale of land is, that if the purchaser can get substantially what he contracted for. the agreement will generally be enforced at the suit of the vendor. To the same effect see, citing the principal case, foot-note to McKee v. Barley, 11 Gratt. 310.
      Also in Butcher v. Peterson, 26 W. Va. 450, citing the principal case, it is said, when a purchaser has notice of a defect or encumbrance and requires from the vendor a warranty, the presumption of law is that the covenant was expressly taken against such known defect or encumbrance.
      Courts do not sit to overthrow the agreement of parties but to carry them into effect where they are legal and equitable and reasonable. Rader v. Neal, 13 W. Va. 388.
    
    
      
       Same — Time of Essence of Contract. — It will not be presumed that time was intended to be of the essence of a contract for the sale of land, from the mere fixing of a day for the delivery of the deed or payment of the purchase price. Smith v. Proffitt, 82 Va. 849, 850, citing the principal case. To the same effect the principal case is cited in Barrett v. McAllis-ter, 33 W. Va. 750, 11 S. E. Rep. 224; Hukill v. Gnfiey, 37 W. Va. 173, 16 S. E. Rep. 560.
      In Abbott v. U’Hommedieu, 10 W. Va. 677 (citing the principal case at page 712) it is held that, ordinarily, time is not considered in courts of equity, of the essence of the contract for the sale of realty, and especially as to the payment of purchase money. There may, perhaps, be circumstances or terms employed which will take the case out of the general rule,
    
    
      
       Same — Specific Performance — Title to Part of Land Defective. — in Hennery. Bitely, 45 Fed. Rep. 334. citing the principal case, it was held that where the deficiency between the actual survey of the land and the amount as described in the agreement was so very great that a conveyance could not be a substantial compliance with the contract and a court of equity cannot decree specific performance pro tanto.
      
      A vendor, in the absence of any stipulation to the contrary, is bound to make a good title free from encumbrance of every description which may embarrass the full and quiet enjoyment of the premises by the purchaser. McAllister v. Harman (Va.), 42 S. E. Rep. 922, citing Garnett v. Macon, 6 Call 308, Fed. Cas. No. 5,245; Jackson v. Ligón, 3 Leigh 161; Hendricks y. Gillespie. 25 Gratt. 193,194; 2 Min. Inst. (4th Ed.) 876.
      In Johnston v. Jarrett, 14 W. Va. 238, it is said: “Where the contract made between the parties compels the vendor to convey the land with covenant of general warranty, and to put the party in possession of the land, a court oi equity will protect the vendee against a defect of title to any part of the land included in the contract, although that defect was known to the purchaser, when the contract was made, unless there has been a waiver by the purchaser of such objection to the title. Jackson v. Ligón. 3 Leigh 361. The parties must be bound by the contract they made, if it was free from fraud and mistake.” See monographic note on “Specific Performance” appended to Hanna v. Wilson, 3 Gratt. 248.
      See the principal case cited in Fidelity Ins., etc., Co. v. Shenandoah Val. R. Co., 32 W. Va. 265, 9 S. E. Rep. 187.
    
    
      
       This was a case decided in the circuit court of the U. States for the district of Virginia. It was reported and published in a pamphlet form by Collins & Co. Richmond. — Note in Original Edition-
    
    
      
       Ingraham’s edi. Philadelphia, 1820.
    
   CARR, J.

This is a bill by a vendor against the vendee, for the specific execution of a contract for the sale of a tract of land. The county court decreed a performance: On appeal to the superiour court, the chancellor, without acting upon the decree, referred the title to a commissioner; upon whose report and other evidence taken in that court, the chancellor on a final hearing reversed the ' decree, as having been entered prematurely, and then decreed a specific execution.

Was the decree of the county court right? It is a principle laid down in many cases in equity, that an unwilling purchaser shall not be compelled to take a title with a cloud upon it; and that principle is assuredly strengthened here, where the party has contracted for a good and lawful right. What was the state of the title at the time of sale? The tract consisted of 698 acres; to 489 acres of which, the vendor had an unquestioned title. To the residue, 209 acres, his title was of a different character: he held two thirds of it, by a deed from the executor of Owen Haskins, who had sold it under the will of his testator; and the other third, by a purchase from Albert Haskins, a son of the testator, of his undivided third part, but for this part he had no conveyance. The validity of his title to the part purchased from the executor, depended on the question, whether the executor had power under the will to sell when he did? *The words of the will are — “It is my will and desire, that after my wife’s death or marriage, my land shall be sold, and the money arising from the sale be equally divided among all my children.” The testator had in a former part of the will, directed that. his estate should be kept together for the support of his wife and children. The wife renounced the will, but was neither dead, nor married; and the children whose shares of the 209 acres the executor sold, were infants. It seems to me too clear for discussion, that the sale of the executor, under these circumstances," was not authorized by the will. Call it a naked power, or a power blended with a trust; construe it strictly or liberally; still you cannot make it a power to sell the land, while the wife was living and unmarried. The title, then, to these two thirds was clearly defective. The title to Albert’s part was equally so: it was at best, nothing but an equity.

But it was insisted, that the vendee, at the time of his purchase, was well acquainted with the nature of the plaintiff’s title, and therefore is bound to take such as he can make. I do not consider the fact of his knowledge sufficiently established: he denies it in his answer; and we hear him calling for a sight of the will, when the deed was tendered to him. However, suppose him to have had this knowledge, I do not think it would oblige him to take a defective title, even on a sale at auction ; it might induce the court to give the vendor time to perfect the title; but, surely, the court would not oblige him to take a defective title, in the teeth of his covenant, by which he stipulated to get, and the vendor bound himself to give, a good and sufficient right, at a short day.

It was contended, that admitting the title to the 209 acres, to be defective, there are still 489 acres, about the title of which there is no dispute, and that the court ought to have executed the contract thus far: and much evidence, pro and con, was taken, as to the importance of these 209 acres to the enjoyment of the tract of land purchased. There are *many cases that say, a trifling deficiency of a few acres in a tract of land, possessing no peculiar value in relation to the general tract, will not prevent the specific ■ execution of a contract, as such deficiency lies in compensation (10 Ves. 306, 14 Ves. 413,.) and this is interfering sufficiently with men’s contracts. X have never seen, and I hope never shall see, a case going so far as is asked here. A man buys a farm of a certain size for cultivation; you deprive him of nearly a third, and insist that he shall take the residue, as a substantial compliance with the contract. This would be truly to make contracts, and not to execute those already made.

At the time, then, of the hearing before the county court, I am clearly of opinion, that the plaintiff had not made out such a case as authorized a decree for specific execution. Ought that court to have dismissed his bill, or to have referred the title to a commissioner, and given further time for perfecting the title? As to further time, no such thing was asked or thought of; no imperfection in his title was admitted by the plaintiff; on the contrary, he insisted by his bill, that his title was perfect, and that the deed which he had tendered, and which he exhibited with his bill and made part of it, was a full compliance with his contract. This was the issue made up by the parties, and submitted to the court; and to try this, they went to hearing by consent. Further time then for improving the title, was wholly out of the question. Ought the court to have sent the case to a commissioner for his report upon the title, before it proceeded to decide upon it? I think clearly not. The whole depended upon a dry point of law, which the court had as directly before.it upon the pleadings and the evidence, as it ever could have it. To have sent the case then to a commissioner would have been to incur a vain and useless expense and delay; and that, when neither party wished it, but both were anxious for an immediate decision of the case in its actual posture. Even in England, where their commissioners are men of learning and professional skill, a ’'’reference would not have been ordered in such a case. This is clear from the cases cited at the bar, of Rose v. Calland and Omerod v. Hardman, where a reference was pressed and refused by the chancellor, —in the first case, saying, “he should create a needless expense by it” — and by Chambre justice, and baron Graham, in the last case, (sitting in the duchy court of Eancaster,) upon the same ground. I conclude, then, that the county court, on the hearing, ought neither to have given further time, nor to have referred the title; but finding it essentially and materially defective, should have-dismissed the bill.

It is equally clear to me, that on the appeal, the chancellor ought to have tried the case upon the record, as it stood before the court below, and to have reversed the decree and dismissed the bill; which having failed to do, I think we should now reverse his decree and dismiss the bill.

CABELE, J., concurred.

BROOKE, J.

The plaintiff put his claim to a specific execution of the contract, on two grounds; 1. on the validity of his title to the 209 acres purchased of the executor of Haskins and of Albert Haskins, his title to the 489 acres not being questioned; and 2. on the defendant’s knowledge of the defect of the title to the 209 acres, supposing it to be defective.

I think there was nothing in the allegation that the defendant was apprised of the defect in the title, if any, at the time he entered into the contract. It is probable enough, that both parties believed that the title to the 209 acres of land was a good title, when the contract was entered into : yet the plaintiff stipulated to make the defendant a good and lawful right to the land: and the defendant’s knowledge of its defects could not affect him, since he did not rely on that knowledge when he made the contract. Stockton v. Cook, 3 Munf. 68. If Jackson was asking for a specific execution *of the contract, the case would be different: proof that he knew of the state of the title when he made the contract, would compel him to take the title, as he understood it at the time; or the court would dismiss his bill; it would not execute the contract in the terms of it. But he is here asking nothing of the court, and insisting on his legal rights under the contract; and there is nothing in his conduct to affect his conscience. If he had purchased the land at the sale made by Haskins’s executor, at which he was a bidder, and had relied on his understanding of the title, and that alone, on a bill for specific execution, he would be compelled to take the title, as it was represented to him by the auctioneer; that is, the title he bargained for. But, in the case before us, however confident he may have been, when he made the contract, that the title was a good one, he was not bound to make an adventuring contract on his knowledge of the title; and he did not do so; on the contrary, he took a contract binding the vendor to make him a good and lawful title.

In this view of the case, there was nothing before the county court, to justify a reference of the title to a commissioner. Its validity depended on a just construction of the will of Owen Haskins, and the authority of his executor to sell the land under it. It was a dry question of law, for the decision of which the report of a commissioner could furnish nothing, and which the court alone was competent to decide.

That the county court erred in its decision is very clear. The sale by the executor was certainly premature. There are cases, in which the power of a trustee to sell, may be executed before the expiration of the time prescribed by the instrument giving the power; as in the case of Uvedale v. Uvedale, where the widow claimed as a creditor. But, in the case before us, the sale cannot be justified by the authority of that case, or any other. The renunciation of the will by the widow, was a release of her interest in the execution of the power, but vras not equivalent to her marriage *or death (the events, on the happening of either of which, the executor was authorized to sell) either in the intention of the testator, or as regarded the interests of the parties, under the power. Some of them were infants; and they entitled to unequal interests in the subject, until one of the events prescribed by the will should happen. The intention of the testator was, in either of those events, the marriage or the death of the widow, the whole, and not a part, of the subject should be sold. The power to sell the whole and divide the money among the children, was a trust, which was not properly executed by selling a part after dower was assigned to the widow. The county court erred, then, in deciding that the title was a good and lawful title. There is nothing in the case to justify its decree, on the ground of a waiver by Jackson, of his title according to the terms of his contract. There is no proof, that, at the time he took possession of the land, he agreed to take any but a good and lawful title according to his written contract. His abandonment of it, in a few weeks after he discovered that the vendor could not make him a title until infants should come of age, nor then, if others also, in whom the title was in part, should dissent and elect to take the land, was evidence to the contrary.

Neither is this a case for compensation. It would be to make a contract for him, to compel him to take -the 489 acres only, at a value not put on it by himself; for he has valued it in connexion with the 209 acres, and not by itself. As to time not being of the essence of the contract, unless expressly made so (which it is not in this case) ; time, nevertheless, may be very material to the justice of the case. Jackson was to pay for the land by instalments, and might reasonably calculate on the profits to assist him in the payments. To continue in possession under a doubtful title (at least) might be ruinous to him: he might pay the instalments, and put improvements on the land, or its value might be enhanced by other causes, and then he might lose all.

*It is the settled rule of this court, not to compel a vendee to j>ay the purchase money until he gets a title. In the state of the case before the county court, the bill ought to have been dismissed. And when the cause came into the court of chancery by appeal, that court ought to have reversed the decree of the county court, and to have rendered such decree as the county court ought to have rendered ; there being no ground on which to retain the cause in that court, laid in the proceedings of the county court. Both decrees ought therefore to be reversed, and the bill dismissed.

TUCKER, P.

In examining this case, I shall begin with the inquiry, what decree the court of chancery ought to have pronounced upon hearing the appeal from the decree of the county court? The practice in such cases is perfectly familiar to the profession. Where the appellate court is of opinion, that the inferiour court has erred, it proceeds not only to reverse its decree, but to make such decree as the court below ought to have made. Thus, its reversal may be absolute and in omnibus, not only annulling what has been done in favour of one party, but entering án absolute decree in favour of the other; or it ma3r be partial and interlocutory, when the court below has proceeded prematurely to adjudicate finally between the parties, without such preliminary inquiries, as appear, upon the face of the record, to have been essential to enable the court to pronounce upon the rights of the parties, with a full understanding of the case. Thus, in the present instance: if the county court ought to have decided, that there was no ground for specific performance, the decree should have been wholly reversed, and the bill dismissed with costs: for this the appellant’s counsel contend. But, if there was enough in the record to shew that, instead of decreeing specific performance, on the one hand, or dismissing the bill on the other, the court should have directed a reference of the title to a commissioner, before it proceeded to pronounce definitivelj' between *the parties, then the court of chancery ought to have reversed the decree, and to have proceeded to direct that reference, which ought to have been directed by the inferiour tribunal. Nor do I think the irregularity of omitting to affirm or reverse the decree, definitively, when the appeal was first heard, is material, provided the chancellor did not, in his subsequent decision, bring matters, introduced into the cause ex post facto, to bear upon the antecedent question of error or no error in the county court. This, indeed, would be altogether erroneous; for, except in a few cases, founded on the practice of the spiritual court, and some others resting on particular statutory provisions, it is a practice unknown to our law, for a superiour court, when reviewing the sentence of an infe-riour, to examine the justice of the former decree, by evidence which was never produced below. We must, therefore, consider the decree of the county court, upon the proofs in the cause at the hearing there.

In that state of the cause, ought the county court to have pronounced the decree it did? If not, ought it to have dismissed the bill? or directed a reference of the title to a commissioner? That the decree of the county court was not justified by the proofs in the cause, was admitted by the chancellor. Blit I go further than he has done, being of opinion, that nothing appeared before the court to justify even a reference of the title, and that the bill of the plaintiff should therefore have been dismissed. This brings us to an examination of the merits of the controversy.

By the contract between the parties, Li-gón contracted to give Jackson possession on the 25th December 1822, and to make him a good and lawful right, on or before the 1st January following. It was not a mere engagement to seal and deliver a conveyance, with the usual covenants of title, which Jackson regarded; the vendor bound himself to make a good and lawful right, and this', by the terms of the contract, was to be accomplished by the 1st January. Whether Jackson knew, or did not know, at the time of the *contract, that the title was defective, is wholly immaterial: if he did not know it, he surely ought not to be compelled to take a defective title that was concealed from him, and which he could not have intended to receive: if he did know it, he provided against it expressly, by the covenant that required a good and lawful right to be made by a given day; and if, in the present case, the pur- . chaser would be concluded from objections to the title, by the fact of his prior knowledge of its defects, it is not perceived what course a buyer is to take who desires to secure himself against known defects. The case of Stockton v. Cook, 3 Munf. 68, very clearly shews the understanding of this court, that a covenant against incum-brances, comprehends known as well as unknown incumbrances, and that the vendee is not precluded by his previous knowledge, from claiming the fulfilment of the covenant. Were it otherwise, it would be impossible for him to provide for his security.

The contract, then, having bound the vendor to make a good and lawful right, not with reference, as he supposes, to Jackson’s notions of a good title, but with reference to the well established principles of the law, the next question is, whether a rigorous compliance with this engagement on the appointed day, was essential to Bigon’s right to specific execution? This brings us to the subject of time being of the essence of the contract.

At law, in every case of dependent covenants, time is of the essence of the contract, since the plaintiff cannot recover without shewing performance on his part, or readiness and ability to perform. But, in equity, it is, upon general principles, otherwise. It is the boast of that court, that it looks at the substance of things, and is regardless of forms; that it relieves agai'nst-penalties and forfeitures incommensurate to the injury which the party has done, and where ample compensation can be made will compel his adversary to accept such compensation. On like principles, although a vendor may not have complied in strictness with his contract to convey,' — or the vendee may not have paid his money *precisely at the stipulated time, equity will, nevertheless, upon a proper .case made, enforce the contract, instead of permitting either party to insist on an arbitrary forfeiture of its benefits. Out of the exercise of this jurisdiction has grown the idea, that, in equity, time is not regarded as of the essence of a contract, and a false report of an opinion of lord Hardwicke, in Gibson v. Patterson, 1 Atk. 12, carries it to an extent in no wise justified by reason or later authorities. That parties may, if they please, make time of the essence of their contract, is not clearly admitted, and seems to follow from the unquestioned right of parties to frame their contracts at pleasure, unless, indeed, it can be shewn that this stipulation is against moral right, or positive law. It would seem, then, that the intention of the parties is, in this, as in other cases, to be looked to; and where it is plain that, in default of a strict performance on one part, it was the intention that the contract should cease to be binding on the other, that intention must be carried into effect: for courts do not sit to overthrow the agreements of párties, but to carry them into effect, where they are legal, equitable, and reasonable.

It cannot be denied, however, that the mere appointment of a day for the payment of money, or delivery of a title, has not been regarded as a sufficient indication that time is of the essence of the contract. Seton v. Slade, 7 Ves. 273-5. And, in the case at bar, there appears to me nothing to shew, that the parties so designed it here. There is, indeed, a strong provision to prove the contrary; the provision, namely, that Jackson might proceed to prepare for a crop, and should have possession on the 25th December, only seven days before the day fixed for making a title. On that day, he accordingly took possession, and actually went on the land to reside. Now, if time was of the essence of the contract, the first of January must have decided that it was either good or void; and, in that view, it is scarcely to be conceived, that Jackson would have contracted for the possession on the 25th December, with the risque of being *obliged to relinquish it on the 1st January for want of title, instead of fixing the day of possession to the 1st January, only seven days later, when all suspense would have necessarily terminated.

But though time may not have been of the essence of the contract, yet it maj' have been rendered by the conduct of the vendor or vendee, subsequent to the contract, of the essence of the transaction between the parties. Such, I conceive, has been the case here. Jackson, I have little doubt, supposed that the title from Haskins the executor, and perhaps, that from Albert Haskins, would be good. But when he had, as I suppose, taken counsel of his friend, or of his lawyer, and found that the will conferred no authority on the executor, to sell during Mrs. Haskins’s life and widowhood, he distinctly announced his objection to Bigon, refused to receive the title, and, in a few weeks, renounced the possession. It is said, indeed, that the time of his quitting the premises does not appear; that it might have been months, or a year. But I think we cannot infer that Bigon’s own witness would have used the terms weeks, if the continuance of possession had been for months; nor, indeed, does any man, even in common parlance, ordinarily use the lesser denomination where the use of the greater is appropriate to the fact. I take it, then, that the possession was relinquished within a month; the rejection of the title was distinctly announced, and Jackson returned to his own home. In this, I think, he was fully justified, if he had good reason to be dissatisfied with the title. To have continued the possession would have been to close the door upon his objections. Moreover, if his objection to the title was a valid one, (the want of power in the executor to sell) it was most formidable, since it would have required years, and a fortuitous occurrence of events, ever to make it good. Whether, therefore, time was or was not of the essence of this contract, I think the vendee was justified at this early stage of the transaction, in this prompt, and (as far as we can see) this bona fide rejection of the title, and of the x'purchase. He has not, in the language of the books, “turned round the contract upon frivolous objections.” He has renounced it upon vital and well founded objections, which it would have required years to remove, if indeed they were ever susceptible of removal. After this measure, Ligón is not heard of until the commencement of the suit, just twelve months after the renunciation of the contract by Jackson: he gives no notice to Jackson, that he shall attempt the completion of the title, or the enforcement of the contract; nor does he sue for that purpose until twelve months have elapsed. Neither has he proved, that he also abandoned the property, which, if true, would have been a fact of some importance in estimating his conduct in this affair. The case is thus brought, I think, strongly within the influence of that of Lloyd v. Collett, 4 Bro. C. C. 469; 4 Ves. 689. See also 4 Johns. Ch. Rep. 559. It is not reasonable, that a purchaser, who in proper time has urged his objections to a title, and who on discovering that a good title cannot be made, has at once refused to perform the agreement, should be compelled to abide by it.

In this view of the transaction, it will be perceived, I have assumed as a postulate, that the title in this case was clearly defective, and that there was no reasonable calculation that it could be rendered otherwise. It is, therefore, proper that this question should in its turn be examined, though very cursorily.

The better opinion, upon the authorities cited at the bar, seems to me to be, that a power given to an executor to sell after the determination of a life, cannot be executed during that life. The sacrifice inevitably attendant upon the sales of reversionary interests, renders such a measure always hazardous; and, therefore, it is not fair to presume, where such a power is not given by the testator, that he could have designed it should be exercised by his executor. In this case, however, the widow by renunciation of the will has relieved two thirds of the estate from the incumbrance of her life, and has thus enabled the executor to ^proceed to a sale, which would not be liable to the objections, applying to the sales of reversionary interests. But, while one difficulty is removed, another is substituted of a not less formidable character. The testator directed the whole tract to be sold after his wife’s death or marriage. His wife has claimed her dower; that has been laid off to her. If, as usual, it comprehends the dwelling house, and curtilage, and other improvements on the land, then it is impossible to say, that either the sale already made by the executor has not been injured by this partition, or that the sale of the dower land, after the widow’s death, will not be so affected. It is not only ver3r possible, but highly probable, that the sale of either without the other, would be prejudicial to both; and this is a matter which the heirs of Haskins, at a remote period, might have thought proper to litigate with Ligón, or with Jackson, if he had been the purchaser. It is impossible, I think, (to use the language of the books) that this court should compel Jackson to buy a law suit. Whether the legal title was in the executor or not, whether there was a trust, or an imperative duty or a mere power, the act of the executor in selling under such questionable circumstances, and in selling, moreover, the shares of two out of four heirs, when each had a right that the intirety should be sold for the joint benefit, — was liable to a rigorous scrutiny by the heirs, when they should attain to full age. When this would have been, does not distinctly appear in the record; but, as there were several under age at the time of the contract, it is certain that several years must have intervened, before the youngest would attain his full age, so as to ratify the act of the executor, and to quiet the title of the vendee. Could it be expected, that Jackson was tobe held in suspense during this interval; and encounter, when it was determined, the sheer chance of the children ratifying the transaction? But this is not all. Those children might die before they attained their majority. Their interests might have devolved upon numerous heirs scattered over the country, some perhaps femes covert, and *others infants of more tender years than themselves, whose acquiescence in the premature exercise of his power by the executor, would be the less easily acquired, in the disadvantageous situation in which he was placed. Thus circumstanced, I do not think Jackson was bound to accept a title so defective, and which could not be rendered good for several years, and might never be rendered good. He was not bound to speculate on the possibility of Ligon’s being able to buy out or quiet the claims of the heirs. He was not bound to take an estate, which he must either suffer to remain unimproved, , till the cloud had passed which hung over the title, or which he must improve at imminent hazard. He was not bound to take an estate without a marketable title, since without such title he might be subjected to the heaviest loss. Had he taken it, and found it necessary to sell, the doubt about the title would have rendered it a dead property on his hands; and (as this very decree shews) it might be forced by Ligón himself into the market for sale, with a cloud hanging over it, arising out of his own failure to fulfil his express engagement to make a good and lawful title.

It may be said, indeed, that it was impossible for Ligón to obtain the title. Be it so. Then what is the consequence? The answer is plain. As he cannot do what he undertook to do, as he cannot perform his contract, he ought not to expect Jackson to abide by it. He ought to be well satisfied, that there are no worse consequences, from his having contracted to do, what he now finds he cannot do. I have no doubt, that he contracted in good faith ; that he supposed the executor’s conveyance and Albert’s contract were sufficient; and so, very possibly, did Jackson. But the latter did not choose to rest upon this opinion : he bound his vendor to make him, by a given day, a good and lawful right; and that vendor, too confident in his title, undertook accordingly. When he found he could not perform, and that Jackson promptly renounced the contract, he ought not to have hesitated to abandon his pretension to enforce it.

%i the view which I have taken of the title under the executor, I have not thought it necessary to scrutinize narrowly, the character or extent of his power; since, under any aspect, a purchaser under him must inevitably be exposed to the hazard of loss and litigation. It is, however, my opinion, that the executor in this case had but a bare power; that there is nothing from whence a technical trust can be inferred; arid that the legal title descended to the heirs, subject indeed to the provision made for their support during the life and widowhood of the wife, and subject further to be divested by a due execution of the power after her death or marriage. If this be so, then the legal title was not conveyed by the premature exercise of his power by the executor, and all that his deed could pass was a questionable equity; which no purchaser is bound to take.

It is not necessary to point out the other defects of this title, at the time of the decree rendered by the county court. The invalidity of the conveyance of the executor, is itself sufficient to vacate the contract, unless it could be shewn that the vendee, even without this land, would get what he substantially contracted for. Of this, no evidence was before the county court; nor is it reasonably to be inferred, when we find that Jackson himself was a bidder for this very property at the executor’s sale; that Ligón purchased it and sold it as an appendage to his own land, and that, to say the least, others besides Jackson deem the Haskins tract an important appendage to the Ligón tract. Besides this, there is no such allegation in the pleadings, but they stand solely upon the question, whether there has or has not been a compliance with the contract on the part of Ligón.

Upon the whole, I think it clear, that at the time of the decree in the county court, Ligón had not complied, and could not comply, with his contract; and, of course, the bill ought to have been dismissed, unless that court ought either to have referred the title to a commissioner, or have given further time for the completion of the title, neither of these things, in my opinion, ■ought to have been done.

*As to reference of title: This practice, now so well settled in England, ,has not, I believe, prevailed very generally with us. The reason for having a report, is said to be, that the ground upon which the court proceeds, may appear upon the record. And, in England, where titles are complicated by mortgages, terms, family settlements, and outstanding trusts, it is of great importance as well as convenience, that such references should be made. The necessity can more rarely exist with us, where the title is generally more simple and the question of its validity is fairly presented by a few title papers of the simplest form. Ror, as the commissioner’s opinion upon the validity of the title, is liable to exception, and to the revision of the court, it is obvious, that where the question of title is already fairly presented, and a distinct point is offered to the court for its consideration, a reference would only lead to embarrassment and expense, without sub-serving any beneficial end. The english practice will be found, indeed, I think, to coincide with this principle.

There, when a vendor files a bill for a specific performance, stating that he was unable to complete his title at the time fixed, but that he is now ready to do so, if he makes such a case as entitles him to relief in case he can make a good title, the court will refer the title to a master for his report. And, even when the vendor states that he is yet unable, but shews that he will soon be able, to perfect the title, the court, upon a proper case made, will direct the master to report whether a good title can be made at the time of the report', and if so, or if it can even be made at the date of the decree, it may suffice. In these cases, it must be observed, a single naked question is not often presented to the court, but the general question of the validity of the title proposed to be made; and, therefore, a reference is directed, in order that the necessary' abstracts and information may be laid before the court, and the point's of dispute fairly and distinctly pointed out, either by the report, or by exceptions which may be filed to it. So, if the defendant *in answer to the allegation that the plaintiff can now make a good title, asks for a reference, by his answer or by motion, he is peculiarly entitled to it, as the plaintiff is asking relief beyond the law. 6 Ves. 646.

But, I think, there is no invariable rule, even in England, that the court ought never to decide upon the validity of the title, but should send the title to a master. This is established by the cases of Rose v. Calland, and Omerod v. Hardman. The latter is peculiarly strong and appropriate. (By the way, the remarks of the judges, upon the merits of the case, have a strong bearing upon this case.) The bill was filed in the court of chancery of the county palatine of Lancaster, for specific performance by a purchaser. The defendant by his answer took a variety of objections to the plaintiff’s ability to make a good title; all of which, however, grew out of the instrument under which the plaintiff assumed the power to sell the premises. The vice chancellor dismissed the bill, without referring the title. In the argument, this omission is made the substantive objection to the decree of dismission, although the counsel admitted, that if it had incontestibly appeared, that a good title could not have been made, the decree would have been right. Chambre, J., said, “against this decree it is said, that there is an invariable rule that the court ought not to decide.upon the validity of the title, in the first instance, but that the title ought to be sent to the master, and should be taken into consideration by the court upon his report. If there was an inflexible rule of that sort, it would dispose of the case. But if no authority had been cited, I should find it very difficult to accede to that idea, that there should be such inflexible rule: for if it should clearly appear to the court, upon the pleadings and the evidence, that there are objections not to be removed, it would be an idle and unnecessary expense to the parlies, to answer no purpose, to make such a reference. We are, however, relieved from any difficulty from the circumstance of a very recent and decided authority by the lord chancellor,” (meaning Rose v. Calland) K'Baron Graham coincided in this opinion: “What” (he emphatically asks) “is the effect of sending the case to a master, when we see the title can only be good, if the heir and other persons join?” And these opinions seem to be strongly sustained by the lord chancellor, in the case of Jenkins v. Hiles, which was cited for the appellee: he there distinctly intimates, that it is not the practice of the courts to refer the title to a master, where the answer of the defendant offers, “for the decision of the court, one neat dry point upon which his objection rests.” Speaking, moreover, of the case of Omerod v. Hardman, he appears to approve the principle laid down by the judges as to this doctrine of reference, though (if X understand him rightly) he had some doubt of the propriety of its application to that case. He considers the cases of Rose v. Calland, and Omerod v. Hardman, as not within the ordinary rules requiring a reference, being cases where the vendor comes fur specific performance, and the vendee calls for a decision upon the title offered by the vendor, who, instead of shewing by his bill that he can heal defects, puts himself upon the title he has offered, and chooses to abide by that. He saj’s, that admitting the vendor’s right, under the general rule, to clear away difficulties between the hearing and the report, “it would be difficult to say, that there could be no case, in which the plaintiff might not have stated himself so conclusively, that the court should hesitate in the first instance to decide. If I am to state a doubt upon the case in the duchy court, it would be a doubt, whether it could be collected from what was stated by the plaintiff, that, if the title was imperfect, it was stated conclusively, or whether, if stated conclusively, it was doubtful.”

From this view of the cases, I am clearly of opinion, that a reference to a commissioner by the county court, was neither necessary nor proper, as this case appeared in that court; and a fortiori, it could not have been proper to give time to the plaintiff, from month to month, or from year to year, to see whether he could buy out or extinguish the outstanding rights to this property. It is going far enough *to give time, as is sometimes the effect of a reference, to enable the party to get in the title, where he has already a right to the estate, and where the vendee is in possession, as was the case in Beverley v. Lawson, a fact I conceive of the utmost importance in these cases. But, I doubt whether any case can be made, in which it would be proper to give a plaintiff, who seeks a specific performance against a defendant, who has promptly rejected the title as defective, and thrown up the possession, an indefinite time to see, whether he can purchase up the rights of others in the estate, in order to enable him to comply with his engagements after the lapse of years.

Such, in effect, I conceive this case to have been.

Both decrees reversed, and bill dismissed.  