QUESTIONS RELATING TO TIME IN CASES OF SPECIFIC PERFORMANCE.

Second Paper.1

ENGLISH CASES OF THE PERIOD OF LORD ELDON.

In the few cases of the eighteenth century which discuss the effect of delay on the part of the plaintiff in seeking specific performance, we found that there appeared to be the underlying assumption that one must be diligent in asserting his rights in equity. The first cases of the nineteenth century relate to this branch of our subject;3 they are Hertford v. Bore and Guest v. Homfray. The contrast between them is instructive. In the first case the vendor and the vendee of land entered into extended ne

'The First Paper dealing with the English cases of the eighteenth century will be found in 50 A. L. R. (O. S.), 639.

'50 A. L. R. (O. S.), 649.

The other branches are: Those which discuss the amount of time which, in the contract sought to be enforced, the plaintiff had to fulfill his promises, and those which deal with the consequences of an admitted default in respect to time. See 50 A. L. R. (O. S.), 639.

5 Ves. 718, 1801.

'5 Ves. 818, 1801.

gotiations in respect to the title. The vendee remaining unsatisfied with the title, the vendor wrote to him asking him to say positively whether he would take the title or not. The vendor also said that if the vendee did not act he, the vendor, would have to file a bill against him. The vendee returned no answer to this letter. The vendor did not bring his bill for fourteen months. Lord Loughborough sets aside the defence of laches, remarking that "one can easily imagine circumstances might have happened that would have made it peevish to have done it immediately." In the second case,

the vendor's solicitor informed the vendee that no better title could be made than the one exhibited. The vendee at once gave notice that he repudiated the contract. The vendor, without notice to the vendee, took steps to remove his objections to the title, and in slightly less than a year submitted another abstract. The vendee refused to go on, and the vendor brought his bill. Arden, in sustaining the defendant's objection on the score of delay, takes the position that the plaintiff, on being notified that the defendant considered the contract at an end, should have promptly brought his bill or told the defendant that he would shortly remove the objections to the title. The contrast between these cases indicates a tendency to require more prompt action on the part of the plaintiff in bringing his bill if he has received definite notice of the other party's intention to avoid the contract if he can, than is required when the negotiations concerning execution have ceased without any positive stand having been taken by either party. The remaining cases of the period under discussion, belonging to this class, serve merely to emphasize this distinction and illustrate what the court considers a fatal lack of diligence on the part of a plaintiff in bringing his bill.

•P. 720.

'P. 823.

The other English and Irish cases, in the first quarter of the nineteenth century, are: Moroe v. Blake, 1 B. & Bat. 63, 1808 (The vendor, after bringing his bill and being dispossessed of the land, waited nineteen years before pressing his suit. The plaintiff alleged poverty as an excuse. The bill was dismissed); Wright v. Howard, 1 Sim. & Stu, 190, 1823. (Fourteen years had elapsed between the contract, which was for

The other cases we shall discuss deal with the meaning of clauses relating to the time of fulfillment of the contract. Lord Eldon in Paine v. Meller, the first case involving time coming before him, followed the thought first expressed by Wilson in Pincle v. Curteis;10 that, in a contract for the sale of land, the vendee waived any right he might have had to refuse to take the land after the time fixed in the contract for a conveyance, by continued discussion of the title after the day had passed.11

It will be remembered that one of the questions which the eighteenth century cases left unsettled was, whether it was possible for two persons contracting for the sale of land to provide that if a good title could not be made out by a particular day the contract was to be at an end, Lord Loughborough holding that there was no reason why this should not be done, while Thurlow seems to have denied the right of the parties to make the termination of the contract depend on such a circumstance.12 In the case just mentioned, Paine v. Meller, Lord Eldon intimates that as a day had been fixed for the completion of the sale, and the vendor was not ready with a good conveyance on this

the sale of land for mill purposes, and the argument. The delay seems to have been due partly to the plaintiff, but principally to the death of one of the parties and the rules of the court. Vice-Chancellor Leach dismissed the bill); Heaphy v. Hill, 2 Sim. & Stu. 29, 1824. (Vendee gave notice of repudiation. Vendor waited nearly two years before bringing bill. Bill dismissed without comment.)

'6 Ves. 349, 1801.

10

4 Bro. C. C. 329, 1793, 332; supra, 50 A. L. R. (O. S.), 645. "The same idea appears again in Seton v. Slade, 7 Ves. 264, 1802, 271, 277; Wood v. Bernal, 19 Ves. 220, 1812; Levy v. Lindo, 3 Merv. 81, 1817,841. These were all cases decided by Lord Eldon. In the first he regarded the fact that the defendant was willing to receive and examine an abstract of title within five days of the alleged time for completion, which abstract was not returned before the time, as conclusive evidence of waiver. In Hudson v. Bartram, 3 Mad. 440, 1818, Vice-Chancellor Leach drew the same inference from the fact, that the defendant, when the assignee of a lease did not pay on the day promised, not only failed to take steps to dispossess him, but sent him the landlord's bill for rent.

"Lloyd v. Collett, 4 Bro. C. C. 470, 1793, supra 50 A. L. R. 645, 646. Greson v. Riddle, 1783, reported in Seton v. Slade, 7 Ves. 268, supra, 59 A. L. R. (O. S.) 643, 644.

day, the vendee had his choice "to go on with the bargain or to repudiate the contract,"13 thus at the outset apparently taking the position that the parties to a contract for a sale of real property can fix a time for its completion, and also intimating that when the contract provides that the purchase money shall be paid on a particular day, "when a good conveyance will be made," the vendor must be ready with his title on this day if he would put himself in a position to insist on a specific performance.1 This dicta of Eldon's, however, did not remove all doubt as to the correctness of Lord Loughborough's position as opposed to that of Lord Thurlow, for the next year Sir William Grant, in Wynn v. Morgan,15 expressed the opinion "that it would contradict the whole current of authorities," to say that "if the plaintiff cannot make a completely good title at the time the contract ought to have been carried into execution, he never can come for an execution." His idea appears to have been that when a time is fixed for the completion of a contract, in order that the defendant may successfully set up the failure of the plaintiff to complete on time, he must allege and prove that the completion on time was material to him.17

"16

The next and perhaps the leading case of the period in

18 P. 351.

16

For Lord Eldon's subsequent repudiation of this last position, see note 29, infra.

17 Ves. 202, 1802.

16 P. 205.

"The defendant in the case before Sir William Grant, instead of alleging that time was material to him, took the position that as a good title could not have been made on the day provided for completion, the agreement was not reciprocal. To have acceded to this argument the court would have had to have reversed those cases where the plaintiff had had specific performance, though he had not a good title at the time the bill was brought. In none of these cases was the position taken, that the plaintiff had broken a condition precedent by non-fulfillment on a particular day. In the case before the court an exact time of completion was either an element of the contract or it was not. Counsel, by omitting to argue this question, and relying on want of mutuality as a defence, were met by the settled principle referred to, that it was not necessary for the vendor to have a good title at the time he brought his bill. Compare Dyer v. Hargrave, 10 Ves. 505, 1805, 508.

reference to time is one decided by Lord Eldon, Seton v. Slade 18 The opinion considered as a whole tends strongly towards what we may call "a lenient dealing with the element of time," at least in a contract for the sale of real property.19 The opinion begins with the assertion that time is not treated at law as in equity, instancing the case of forfeitures, though with characteristic caution the chancellor refuses to assert, whether, in the case of contracts for purchase, there is a different rule in equity in regard to time than there is at law.20 He mentions a reason for regarding the question of time in such contracts differently in the two courts; namely, that in equity, though not at law, the land from the moment of the contract of purchase is the land of the vendee.21 He also asserts that the cases before Lord Thurlow go upon the fact of the difficulty of making clear titles to estates, which caused the court to regard objections on the score of delay as "frivolous." The paragraph as a whole leaves one with the impression that he sympathizes with both of these positions.22

The chief importance of the case, however, lies in Lord

17 Ves. 264, 1802.

"The facts of the case are of little importance. There was a contract for the sale of an estate, the purchase money to be paid within two months. Lord Eldon held that this did not obligate the vendor to complete the title within that time, though the inference is that the purchaser need not pay until he gets a good title. This was all that was absolutely necessary for the decision. The defendant alleged that subsequent to the contract the parties agreed on an exact day; Lord Eldon did not think so, but, as previously pointed out (note II supra) held, that if they had, by his subsequent conduct the defendant had waived a completion on the day.

"P. 273. In Lloyd v. Collett, as reported in Mr. Vesey's note to Harrington v. Wheeler, 4 Ves. 690, Lord Loughborough, speaking of this subject, takes the position, that: "There is a difficulty to comprehend how the essentials of a contract should be different in equity and at law." Lord Erskine, in speaking of a contract to purchase an annuity, in Radcliffe v. Warrington, 12 Ves. 326, 1806, 333, adopts Lord Eldon's position, that time is treated differently at law than in equity.

P. 274.

"Pp. 274, 275. The warrant for Lord Eldon's assertion in regard to "cases before Lord Thurlow" must be his personal recollection. The assertion cannot, as far as the writer is aware, be gathered from reported cases.