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

A contract for the sale of land is not discharged either by an act of bankruptcy committed or by a receiving order or an adjudication of bankruptcy made pending completion by or against either party thereto (/); but after a receiving order has been made against either party, the other has no remedy against the property or person of the debtor in respect of any liability of the debtor which is provable in bankruptcy, and cannot commence any action or other legal proceedings to enforce such liability, unless with the leave of the Court, and on such terms as the Court may impose (m). And after the presentation of a bankruptcy petition against either party to the contract the Court may stay any action, execution, or other legal process then pending against him (n). When a receiving order has been made against either party to the contract, the other may prove under the bankruptcy proceedings in respect of the debtor's liability on any contract made by him, so far as such liability consists in the obligation to pay money or money's worth on breach of the agreement, or is capable of resulting in the payment of money or money's worth (o). And an order of discharge under the Bankruptcy Act, 1883 (p), or a composition or scheme of arrangement accepted and approved by the Court under the Bankruptcy Act, 1890 (q), will release the bankrupt or debtor from all liabilities provable in bankruptcy, with certain exceptions not material to be here stated. The vendor's liability on the contract at law seems to be provable in his bankruptcy, for it is reducible to the obligation to pay money damages on breach of the contract (r): but his liability in equity to perform the contract specifically depends on different considerations, and does not appear to be so provable (s). The purchaser's liability on the contract, whether at law or in equity, seems almost entirely to consist in his obligation to pay the price (t), and to be provable in his bankruptcy accordingly.

Bankruptcy of either party to the contract.

(g) Broome v. Monck, 10 Ves. 597; Collier v. Jenkins, Younge, 295.

(h) Above, p. 542; Re Cockcroft, 24 Ch. D. 94, 100, 101.

(i) But if the contract were under seal, and bound the purchaser's heirs, his heirs or devisees might be sued thereon at law: 2 Dart, V. & P. 957, 5th ed.; 1084, 6th ed.; 998, 7th ed.; see above, p. 223; Wms. Conv. Stat. 234, 235.

(k) Townsend v. Champernowne, 9 Price, 130; above, pp. 528, n. (t), 529, n. (u), 531, n. (m), 540; Rawlins on Specific Performance, 83, 84.

(l) Brooke v. Hewitt, 3 Ves. 253, 255; Sug. V. & P. 175; 1 Dart, V. & P. 253, 5th ed.; 291, 6th ed.; 294, 7th ed.

(m) Stat. 46 & 47 Vict. c. 62, ss. 9, 168: see Re Guedalla, 1905, 2 Ch. 331.

(n) Sect. 10.

(o) Sect. 37; see Hardyv. Fother-gill, 13 App. Cas. 351. '

(p) Star. 46 & 47 Vict, c. 52, s. 30.

(q) Stat. 63 & 54 Vict. c. 71. s. 3 (12); Flint v. Barnard, 22 Q. B. D. 90; Seaton v. Deer hurst, 1895, 1 Q. B. 853: Levy v. Stogdon, 1898, 1 Ch. 478, 483, 484, affirmed, 1S99, 1 Ch. 5.

(r) Above, p. 36; Levy v. Stogdon, 1898, 1 Ch. 178, 483, 484. affirmed, 1899, 1 Ch. 5.

(s) See the cases cited in (z), p. 546, (d), p. 547, below; Levy v. Stogdon, ubi sup.; Re Reis, L904, 2 K. B. 769, 777. 781, 787, affirmed, nom. Cloughv. Samuel, 1905, A. C. 442; above p. 37.

W

If the vendor be adjudged bankrupt pending completion, his rights under the contract vest, as part of his property, in the trustee in his bankruptcy (u); and his estate in the land sold also vests in the trustee, unless, it appears, the contract had been executed by payment of the whole of the purchase money before the act of bankruptcy, so that the vendor had become a bare trustee for the purchaser (x). It has, however, been held, where leaseholds had been sold and the price paid but no conveyance executed, that the vendor was possessed of the legal estate in the term not only as trustee for the purchaser, but also for his own use in virtue of his lien on the property by way of indemnity against the rent and covenants of the lease, and that for this reason his estate passed on his subsequent bankruptcy to the trustee therein (y). But the trustee in the bankrupt takes the vendor's estate in the land sold subject to the purchaser's equities therein under the contract (z); and if he cannot, or does not, disclaim the land sold under his power to disclaim onerous property (a), he cannot disclaim the contract for sale, where Bankruptcy of the vendor.

(t) Above, pp. 34, 35; and see Re Taylor, 1910, 1 K. B. 562.

(u) Stat. 46 & 47 Vict. c. 52, ss. 20, 44, 50 (5), 168; Expte. Rab-bidge, 8 Ch. D. 367.

(x) See S. C, 8 Ch. D. 371; Re Taylor, 1910, 1 K. B. 562; above, p. 529. It does not appear that the vendor could be treated as holding the land sold on trust for the purchaser, so that it would not pass to his trustee in bankruptcy, merely by reason of the acceptance of the title: see cases cited in note (d), below, p. 547.

(y) St. Thomas's Hospital Governors v. Richardson, 1910, 1 K. B. 271.

(z) Expte. Holthamen, L. R. 9 Ch. 722, 726; Expte. Rahbidge, 8 Ch. D. 367, 370, 371; Re Taylor, 1910, 1 K. B. 562; see above, pp. 504 sq., 528.

(a) Star. 46 & 47 Vict. c. 52, s. 55, amended by 53 & 54 Vict, c. 71, s. 13, empowering the trustee in bankruptcy within twelve months after the first appointment of a trustee, or where the property shall not have come to the knowledge of the trustee within one month after such appointment, within twelve months after he first became aware thereof, or in either case within such extended it contains no more than the usual reciprocal duties of vendor and purchaser (b), as an unprofitable contract (c); but the specific performance of the agreement may be enforced against him by the purchaser (d). If the vendor should have bound himself by the contract to lay out money on the property sold prior to completion, his trustee in bankruptcy might, it is thought, be at liberty to disclaim the contract if it would be unprofitable, and so free himself from the obligation of incurring the expense: but even this disclaimer would not affect the purchaser's equitable interest in the land (e). And if the trustee in bankruptcy were entitled to disclaim, and should disclaim, the property sold as being onerous, as he might in the case of leaseholds, the purchaser's equitable interest therein would be equally unaffected (e), and the purchaser might apply to the Court for an order vesting the estate in him (f).