Marriage of cither party to the contract.

(d) To every person not so detained and not found a lunatic by inquisition, with regard to whom it is proved to the satisfaction of the Judge in lunacy that such person is through mental infirmity arising from disease or age incapable of managing bis affairs see Re Browne, 1894, 3 Ch. 412; Re Spurling, 1909, 1 Ch. 199);

(e) To every person as to whom it is proved to the satisfaction of the Judge in lunacy that he is of unsound mind and incapable of managing his affairs, and that his property does not exceed 2,000/. in value, or that the annual income thereof does not exceed 100/.:

(f) To every person as to whom the Judge is satisfied that he is or has been a Criminal lunatic, and continues to he insane and in confinement.

(r) Sect. 116(2)

(s) Stat. 53 Vict, c. 5. s. 124, as amended by 54 & 55 Vict. c. 65, s. 27 (1).

Above, pp. 536

(n) Stat. 53 Vict. c. 5, s. 135; see Re Cuming, L. R.

Re Pagani, 1892. 1 Ch. 236. (x)As to the effect of marriage on a woman's legal capacity at common law, see below, Chap. XVI.: Wms. Real Prop. 306 sq., 21st ed.; Wins. Pers. Prop. 488, 16th ed.

(y) Stat. 45 & 46 Vict. c. 75, ss. l (1), 2,24.

(z) Sects. 1 (2), 12, 24.

(a) Sect. 13; and see sect. 19: Jay v. Robinson, 25 Q. B. D. 467; Robimon v. Lynes, 1894, 2 Q. B. 577.

(b) Sect. 14.

(c) Sect. 15; see Beck: v. Pierce, 23 Q. B. D. 316

(d) Sects. 1 (1), 2; Re Drum-mond & Davie's Contract, 1891, 1 Ch. 524.

(e) Be Harkness & Allsopp's Contract, 1896. 2 Ch. 358; see below, Chap. XVI.

(f) Stat. 7 Edw. VII. c. 18, s. 1 (1); see below, Chap. XVI.

If, pending completion, either party to the contract have judgment of death or penal servitude pronounced or recorded against him in England, Wales or Ireland, upon any charge of treason or felony, he cannot, so long as he remains a convict, bring any action on the contract either at law or in equity, or alienate any property (n); but all his property, including his interest in the contract or in the land sold, vests in the person appointed to be his administrator, who may sue or be sued on the contract, and has such powers of dealing with the convict's property as will enable him to complete the contract (o). Outlawry, which remains theoretically possible in criminal proceedings, would, if incurred by a party to the contract pending completion, involve his incapacity to enforce the contract and would raise obstacles to the completion in the forfeiture to the Crown of the profits of his real estate and of his goods and chattels (p). If, pending completion, either party to the contract become an alien enemy (q), he cannot enforce the contract whilst he remains so (r); unless indeed he be resident in this country under the King's protection.

Conviction of treason or felony.

(g) Above, p. 529.

(k) See Re Brooke & Fremilin's Contract 1898, I Ch. 647; above, pp. 505, 506.

(i Above, p. 529.

(k) Stat. 56 & 57 Vict. o. 53, s. 16, replacing 37 & 38 Vict.

C. 78, s. 6; sec Re Howgote and Osborn's Contract, 1902, 1 Ch. 451: below, C'hap. XVI.

(l) 1 Dart, V. & P. 329, 6th ed.; 373, 6th ed; 367, 7th ed. See above, pp. 135, 136.

36 (2)

Outlawry Party becoming an alien enemy.

We will now consider the effect of the assignment by either party to the contract of the land sold or of his beneficial interest in the contract. With regard to the assignment by the vendor of the land sold, this land being in equity the property of the purchaser as from the date of the contract for sale, the vendor is not entitled to make any disposition thereof pending the completion of the contract to any other person or otherwise in derogation or to the prejudice of the purchaser's rights under the contract (s); any such disposition by the vendor of the land sold constitutes a breach of the contract, for which the purchaser may at once sue him at law, without making any offer to complete the contract or other formality (t), and the vendor may, as we have seen (u), be restrained by injunction from so parting with his estate in the land. If, however, the vendor do make any such alienation of the land sold, cither for a legal estate to a volunteer, with or without notice of the contract for sale, or to a purchaser with notice of the contract (r), or for an equitable estate only to any person (x), the alienee takes subject to the purchaser's equities under the contract, may be joined as a party to an action for its specific performance, and may be ordered to convey his interest in the land to the purchaser in order to complete the sale (y). But if, upon such an alienation by the vendor, the alienee acquire a legal estate in the land sold for valuable consideration actually paid or executed in good faith without notice of the contract for the sale, he is entitled to hold this estate free from all equities of the purchaser, who has no remedy but to sue the vendor for compensation for his loss (z) . And the alienee, taking in good faith and for the like valuable consideration is entitled to the same priority over the purchaser, not only where he has acquired the legal estate, but also where he has, before receiving notice of the contract for sale, acquired the best right to call for the legal estate. For instance, if A. were seised of lands in fee on trust for 13., and 13. contracted to sell the lands to C, and. pending completion of that contract and without notice thereof, the same lands were sold by B. to D., and the sale to D were completed by payment of the purchase money, and the execution by A., at B.'s request, of an express declaration of trust in D.'s favour, it appears that C. would have no better equity than D. to insist on possession of the laud (a). But it is to be observed that the protection obtained against the purchaser's prior equity by a subsequent alienee acquiring in good faith, for value and without notice, the legal estate or the best right to call for it, does not extend beyond the interest actually acquired for valuable consideration paid or executed before any notice of such equity has been received. If the vendor, pending completion, dispose of the land sold to a stranger for any valuable consideration which is wholly or in part executory, the alienee, though he has obtained the legal estate in good faith and without notice of the sale, cannot, if he afterwards receive notice thereof, safely perform for the vendor's use any part of the consideration then remaining unexecuted. Thus, if the vendor, pending completion of the original sale, re-sell the land and convey the legal estate therein to another without receiving payment of the whole price, the second purchaser is protected against the first purchaser's prior equity as regards so much of his purchase money as he has paid before receiving notice of the first sale, and is entitled to hold his legal estate as security for the amount so paid. But after he has received such notice he cannot safely pay the rest of his purchase money; for he will not be entitled to set up his contract of sale as specifically enforceable against the first purchaser, and, as between himself and the vendor, that contract will be rescinded and he will be discharged from all further performance of his obligations thereunder (b). If the vendor, pending completion of the contract, convey an equitable estate in the land sold for valuable consideration to some third person, the alienee cannot, after receiving notice of the contract for sale, protect himself against the purchaser's claim by taking a conveyance of the legal estate from the vendor, or from an express trustee thereof for the vendor (c). But otherwise the alienee is entitled to tack his own equitable interest to the legal estate if he can obtain it without any breach of trust on the part of the conveying party, so that if the legal estate in the property be outstanding in a mortgagee the alienee, on taking a transfer of the mortgage, even after receiving notice of the sale, can exclude the purchaser's rights (d).