Death of vendor who sold under a power.

(z) lie Carpenter, Kay, 418; Be Colling, 32 Ch. D. 333.

(a) Re Cuming, L. R. 5 Ch. 72: Re Pagani, 1892, 1 Ch. 236.

(b) Above, pp. 505, 529, 530. (e) The question whether the vendor contracted to sell in exercise of the power depends upon his intention. It is not necessary that the contract should refer to the power. Where the vendor had no estate in the land, it will be presumed that he contracted to sell in exercise of his power; but where he had an estate in the land as well as the power, it is it question of construction whether he contracted to sell in exercise of the right of alienation annexed to his estate or of the power: see Blake v. Marnell, 2 Ball & Beat. 35; Sug.Pow. 20lsq.,289,343 sq., 8th ed.; Farwell on Powers, 266, 2nd ed.; above, pp. 532, 533.

Entitled to the lauds in default of appointment. Thus, if the power of appointment were exercisable by deed only, and the contract for sale were made by unsealed writing, and the vendor died before conveyance, equity would supply the defect in favour of the purchaser, and would oblige the persons entitled in default of appointment to carry out the contract(d). But in order that a contract to exercise a power over land may be so binding on those entitled in default of appointment, it must be valid from the beginning; and it appears that a parol contract, followed by part performance by the purchaser, is not so enforceable against them (e), unless, with knowledge of the parol contract, they lie by and allow him to lay out money on the estate (f). Every contract for the sale of settled land made by a tenant for life or any person having the powers of a tenant for life under the Settled Land Act, 1882 (g), is binding on, and enures for the benefit of, the settled land, and is enforceable against and by every successor in title for the time being of the tenant for life, and may be carried into effect by any such successor, but so that it may be varied or rescinded by any such successor in the like case and manner, if any, as if it had been made by himself. And by the Settled Land Act, 1890 (h), a tenant for life may make any conveyance which is necessary or proper for giving effect to a contract entered into by a predecessor in title, and which, if made by such predecessor, would have been valid as against his successors in title. Thns enactment appears to be applicable, not only where the contract was made in exercise of some power conferred by the Contracts for the sale of settled land under the Settled Land Acts.

Sic.)

(d) Coventry v. Coventry, 1 Str. . Mortlock v. Buller, 10 Ves.

292, 316; Shannon v. Bradstreet, 1Sch. & Lef. 52; Sug. Pow. 552 563, 8th ed.: Re Dykes, L. R. 7 Eq. 337, 342.

(e) Blore v. Sutton, 3 Mer. 237 Morgan v Milman, 3 De G. M. &

G. 24, 33

(f)Stiles v,Cowper,3 Atk. 692;

Shannon v. Bradstreet, 1 Boh. v.v Lef. 52 72, 73.

(g) Stat. 45 & 46 Vict. c. 38, ss . 31 (1), (2) ,58.

(h) Stat. 53 & 54 Vict c. 69, s. 6

Settled Land Acts, but in all other eases where the contract binds the contractor's successors in estate; for example, where one seised of lands in fee has sold them, and died pending completion, having devised the lands to another for life with remainder over. But in these circumstances, if the vendor died after the commencement of the Land Transfer Act, 1897 (i), the purchaser could not safely take a conveyance from the tenant for life under the will, except where the real estate sold was not affected by this Act, as in the case of copyholds (k), for the effect of the Act is to prevent any legal estate from passing to the devisees, and in equity the devise, if made prior to the sale, would be revoked thereby (l).

If the vendor die pending completion, the proper persons to be sued by the purchaser for the specific performance of the contract are the vendor's executors or administrators, as being his general representatives in respect of his contractual liabilities and being the persons entitled to receive the purchase money; but the vendor's heir or devisee, who would have been entitled to the land if it had not been sold, was formerly and, it appears, is still a necessary party to the action, as having an interest in disputing the validity of the contract (m). The vendor's legal personal representatives are the proper persons to be sued for breach of the contract at law (n).

Devolution of the burthen of the contract on the vendor's death.

We have seen (o) that when a man enters into a contract, which is valid and specifically enforceable, for the purchase of land, the land is in equity his land as from the date of the contract. If therefore he die pending the completion of the contract, the benefit of his rights under the contract passes to the persons who become entitled to that particular part of his lands, which is represented by the property purchased. If this were freehold estate of inheritance, the beneficial interest therein passed formerly to his heir, if he died intestate in respect thereof, and otherwise to his specific or general devisee (p); and in the hands of such heir or devisee would be real assets for payment of his debts (q). Under the Land Transfer Act, 1897 (r), freehold estate of inheritance contracted to be purchased appears to pass, on the purchaser's death pending completion, to his executors or administrators, upon trust, subject to the payment of his funeral and testamentary expenses and debts, for his heir or devisee. If the property purchased were a legal estate of inheritance in copyholds, the purchaser's interest devolves upon his customary heir or devisee; and it does not appear that his executors or administrators take any estate therein under the Land Transfer Act, 1897: but the personal representatives take the purchaser's estate where he bought an equitable estate only in copyholds (s). In either case the lands would be real assets for payment of the purchaser's debts (t). If Leaseholds were purchased, they pass of course to the purchaser's executors or administrators as part of his personal estate. The persons so becoming entitled, on the purchaser's death, to the land which he has contracted to purchase, are the proper persons to sue for the specific performance of the contract by the vendor: but the purchaser's legal personal representatives should be made parties to such an action, if brought by his heir or devisee, as they are liable to the vendor for payment of the purchase money and have an interest in disputing the contract (u). The proper persons to sue, after the purchaser's death, for damages at law for breach of the contract are his legal personal representatives (x); and any damages so recovered appear to form part of the purchaser's personal estate.