(8.) Purchaser's remedy in Equity if he buy his own estate - or if lands are omitted from conveyance - and as to further assurance in Equity and by Statute.

If it appear that the estate belonged to the purchaser, he can, in Equity, recover his purchase-money, although there was no fraud on the part of the vendor, and although the purchaser might have discovered his right from the abstract of title (r).

And it has been held (s), that a purchaser who, without any fault on the part of the vendor, buys an estate which in fact has no existence, (e. g., a remainder expectant on an estate tail which has been barred,) can obtain relief in Equity; but the case seems to be considered by Sir E. Sugden as of doubtful authority (l).

If lands shown to a purchaser are excepted in the conveyance under a name by which he did not know them, he can claim them in Equity; and by getting in an outstanding legal estate may hold them, even as against a subsequent purchaser for valuable consideration and without notice (u); and he could, doubtless, enforce a conveyance of them, as against the vendor, or volunteers: he has also, it would appear, the same rights as respects lands accidentally omitted from the conveyance, if shown to him as part of his purchase (w), or if he can prove an agreement for their purchase sufficient within the Statute of Frauds (x): and, as a general rule, where the conveyance is executed for the purpose of giving effect to and executing the agreement, and by fraud, accident, or mistake, it gives to the purchaser less than he is entitled to under the agreement, he may call upon the Court to rectify the defective conveyance, and give him all that the agreement comprehended; but where the original agreement is of doubtful construction, and the conveyance is definite and unequivocal, it is not easy to avoid the conclusion that the latter may be the best evidence of the actual agreement (y). So, also, he may in Equity, under the covenant for further assurance, require the vendor to perfect a defective title, even by conveying any interest in the estate which he may have subsequently acquired for valuable consideration (z); and the right seems to exist independently of such a covenant (a); and may be enforced against the vendor's representatives, and parties claiming under him for valuable consideration with notice (b); and the rule seems to be the same even when he has no estate in the land at the date of the conveyance: it was, however, decided in an old case (c), that such an equity could not be enforced against the heir, but there seems to be no good ground for such a distinction, and it has been judicially disapproved of by Sir E. Sugden (d).

Purchaser buying his own estate, relieved in Equity.

Whether so if he buy estate which has no existence.

Purchaser may claim in Equity-lands shown to him, or accidentally omitted.

(p) Cator v. Lord Pembroke, 1 Bro. C. C. 301.

(q) Sug. 687.

(r) Bingham v. Bingham, 1 Ves.126

(s) Hitchcock v. Giddings, 4 Pr. 135.

(t) See Sug. 272.

May require vendor to convey sub sequently acquired interests.

(u) Oxwick v. Brockett, 1 Eq. Ca. Abr. 355.

(w) See Cass v. Waterhomse, Prec. Ch. 29.

(x) S. C.; and see Nelson v. Nelson, Nels. Ch. R. 7, which, however, was a case between principal and agent.

(y) Per V. C, Wigram, Humphries v. Home, 3 Ha. 277, 278.

If the purchaser's bill in such a case is dismissed, and purchase-money has been paid by him into Court, and not invested, he must pay interest upon it to the vendor, although it has been unproductive, S. C.

(z) Taylor v. Debar, 1 Ch. Ca. 274.

(a) See 3 Sim. 116; Seabourne v. Powel, 2 Vern. 11.

In Noel v. Bewley (e), a man conveyed his contingent remainder in fee by way of mortgage, and covenanted for further assurance; and the remainder having been destroyed by his mother, the tenant for life, (who was also the reversioner in fee,) he was held liable in Equity to perfect the security out of an interest in the estate which he took under her will: so, where a man who was supposed to have a reversion in fee, but in fact had no estate in the land, executed what purported to be a conveyance of the same for valuable consideration, he was held liable, under his covenant for further assurance, to convey the estate on its subsequently coming to him as heir at law (f): the cases seem, as observed by Sir E. Sugden, C. (g), "to establish this, that if a man sells an estate, and the title is afterwards defeated, but subsequently he acquires the same lands under another title, there is an equity arising out of the contract to fasten it upon the new title:" but, in applying this rule, the word estate must be strictly construed, for evidently no such equity could exist where the contract had been for the purchase professedly of a contingent interest at a price fixed with a view to the contingency.

It seems probable that the purchaser could come into Equity for further assurance, even if the conveyance were by a mere expectant heir professedly selling the estate in the lifetime of his ancestor (h).

Although the sale were of a mere ex(b) Jennings v. Blincorne, 2 Vern. 609. pectancy semble.

(c) Morse v. Faulkner, 1 Anst. 11.

(d) See 1 Dru. & W. 159.

(e) 3 Sim. 103.

(f) Smith v. Baker, 1 Y. & C. C. C. 223.

(g) See Jones v. Kearney, 1 Dru. & W. 159.

A conveyance by lease and release, containing no precise recital of the vendor's seisin, but only a recital that he is "legally or equitably entitled to the property," cannot operate by way of estoppel so as to pass the after-acquired legal estate (i).

Where a voidable estate has, either before or after the passing of the 3 & 4 Will. IV. c. 74, been created by a tenant in tail in favour of a purchaser for valuable consideration, any subsequent assurance under the Act, (other than a lease not requiring enrolment,) whatever may be its object or the extent of estate intended to be thereby created, confirms the previous voidable estate to the extent to which the tenant in tail alone, or the tenant in tail with the consent of the protector, (if there be one, and he consent to such subsequent assurance,) could confirm the same under the Act: but this is not to affect any purchaser for valuable consideration, to whom such subsequent assurance may be made without express notice of the previous voidable estate (k); so, before the Act, a Fine by a tenant in tail confirmed his previous voidable conveyance (l).

No estoppel by doubtful recital.

Voidable estate created by tenant in tail; confirmation of by subsequent assurance.

(h) See Sug. 1023; 1 Fonb. on Eq. b. i. ch. 4, s. 2; Wethered v. Wethered, 2 Sim. 183; Harwood v. Tooke, 2 Sim. 192; but see Carleton v. Leighton, 3 Mer. 667; Jones v. Roe, 3 Durn. & E. 93; an equitable charge upon an expected legacy was recently supported in Bennett v. Cooper, 9 Beav. 252.

(i) Right v. Bucknell, 2 B. & Ad. 278; and see Sug. 1018, 1023; and Lloyd v. Lloyd, 4 Dru. & W. 354; sed aliter, if there be a particular recital of title, Bensley v. Burdon, 2 Sim. & St. 519; on appeal, 8 L. J., Ch. 85; this case is said to be overruled by Right v. Bucknell, see 4 Dru. & W. 369, sed qu.

(k) 3 & 4 Will. IV. c. 74, s. 38: and see as to bankruptcy of a tenant in tail who has created a voidable estate, sect. 62 of Act; and see as to confirmation of the voidable estates of purchasers under the bankruptcy of a tenant in tail, sects. 60, 61, and 65 of Act; and 12 & 13 Vict. c. 106, sect. 208.

(l) Lloyd v. Lloyd, 4 Dru. & W. 354.