not bound to grant a lease until the defendant has built the house, and the defendant binds himself to accept the lease so agreed to be granted. Can, then, the defendant be heard in his own wrong to say, "I will not accept a lease until I have built the house?" That would be an absurd contention, if the plaintiff were willing to waive the building of the house. The plaintiff, however, does not by the bill offer to grant a lease, except at the time and on the terms and conditions mentioned in the agreement. He asks, in the first part of the prayer, that the defendant may be decreed to build the house, and then he asks specific performance of the agreement to accept a lease; and, in the third paragraph of the prayer, which is framed with an especial view to the statute, he asks that the defendant may be ordered to pay to the plaintiff, either in addition to or substitution for any such relief as thereinbefore prayed, such damages and costs as under the circumstances stated the Court may think fit to award to the plaintiff by reason of the non-performance by the defendant of his said. agreement, such damages to be assessed in such manner as the Court shall direct. If, therefore, the Court comes to the conclusion that instead of directing the house to be built, it will in substitution grant him damages, a lease will be directed to be executed, and the defendant be decreed to accept it, the Court making him pay damages for the breach of the other part of the contract. The only question is, whether the Act applies. The words of the section are these: (His Honour read the 2nd section of the Act.) Now, it is perfectly true that I cannot act until I have jurisdiction, and under the existing law, before the passing of this Act, a court of equity had not jurisdiction in respect of a building contract of this description. But it would have had jurisdiction, before the passing of the Act, to compel the defendant to accept a lease on the plaintiff waiving the condition which he for his own. benefit inserted, that he should not be called upon to grant a lease until a certain time. The defendant has agreed to accept a lease when required, and the Court has therefore jurisdiction. The statute would not apply to a case where the object of the agreement was, simply, the building of the house under such conditions and on such terms that it may be assumed the Court could not grant specific performance; and in such a case, a plaintiff could not file a bill to have damages instead of specific performance, because there would be no jurisdiction. But there is a distinct agreement here, not only to build the house but to accept the lease. The Court having therefore acquired jurisdiction, may give damages, either in addition to or in substitu tion for specific performance. The meaning of the statute *can only be, that where the Court has jurisdiction in the suit, it may award damages in substitution for specific performance. The prayer of the bill is not only that the defendant may be decreed to build the house, but that he may be ordered to pay, either in addition to or substitution for the relief before prayed, such damages as the Court may think fit to award. The plaintiff having agreed to grant a lease, if he takes damages will be obliged to grant a lease; and the bill contains what in fact amounts to an offer to grant a lease upon damages being awarded. The defendant cannot aver his own wrong as a reason why the lease should not be taken before the house is built. This is a case, above all others, to which this very beneficial Act should be applied. Here is a person in possession, who has pulled down one house, and remains in pɔssession, and refuses to do that upon which the plaintiff would be bound to grant a lease. The plaintiff says, "I want my house built, or damages for the default; and then I require you to accept a lease." The demurrer must be overruled, with costs. SOAMES v. EDGE. [ *674 ] MITCHELL v. COLLS. (Johnson, 674-679; S. C. 29 L. J. Ch. 403; 6 Jur. N. S. 292; 8 W. R. 208.) COOPER v. CARTWRIGHT. Where a mortgagor contracts to sell the fee simple of the mortgaged On October 25th, 1850, J. Brayford the elder mortgaged the fee of the said lands to Tilsby for 150l., with a power of sale, and on July 28, 1851, created a further charge thereon of 100%. J. Brayford the elder died intestate in 1851, and the equity of redemption in the said lands descended to J. Brayford the younger, subject to a disputed claim for dower by the widow of the intestate. On January 1st, 1852, Brayford (the son) made a further R.R.-VOL. CXXIII. 19 1860. Jan. 30. 1860. March 6, 8, 9. WOOD, V.-C. [ 679 ] [ 680 ] COOPER v. CARTWRIGHT. [ *681 ] mortgage of the fee to Tilsby for 2001., and on May 4th, 1855, created a further charge thereon to Tilsby of 550l. On June 13th, 1857, the lease was assigned to the defendant Cartwright for 12,000l., of which 4,000l. was paid in cash, and 8,000l. was payable by instalments and still remained unpaid. And a reversionary lease in extension of the term was also granted to Cartwright. On October 14th, 1857, Brayford mortgaged the fee to certain persons (subject to Tilsby's mortgages) for 9571. 10s. On January 8th, 1858, Brayford was adjudicated bankrupt. On January 30th, 1858, Tilsby's mortgages were transferred to the plaintiff. In March, 1858, the vendor's lien for 8,000l. upon the lease sold to Cartwright was assigned to a trustee for the plaintiff, and the mortgage for 957l. 10s. was transferred to the plaintiff. In June, 1858, the plaintiff filed a bill for foreclosure *against the assignees of Brayford. Before this suit came to a hearing negotiations were opened which resulted in two agreements, both dated January 14th, 1859. One of them was an agreement between the assignees and Cartwright, whereby the assignees agreed to sell to Cartwright for 2,400l. "the fee simple of the said farm free from incumbrances," but subject to the several leases affecting the same, and to the right to dower (if any) of the widow of John Brayford the elder. The other was an agreement between the plaintiff and Cartwright, reciting the mortgages; that the assignees were entitled to the equity of redemption in the fee; that a foreclosure suit had been commenced; that the lease belonged to Cartwright, subject to the payment of 8,000l. by instalments to the plaintiff ; that Cartwright had agreed to purchase the estate, subject to the lease, from the assignees for 2,400l.; and that there was due to the plaintiff in respect of the aforesaid debts, interest, and costs, 10,000l. and upwards; and it was agreed between Cooper and Cartwright as follows: that Cooper "shall not now call upon or require the said Moses Cartwright or the said assignees to pay any greater sum than the excess of the said. debts, interest, and costs, beyond the sum of 10,000l., and that the said Joseph Cooper shall continue his loan upon the said estate to the extent of 2,000l. principal, and accept payment thereof and of the said debt of 8,000l., as after mentioned; and that such excess as aforesaid shall be forthwith paid by the said Moses Cartwright or the said assignees to the said Joseph Cooper; and that the said Moses Cartwright shall forth with execute and give to the said Joseph Cooper a mortgage of the said estate for further securing the said sum of 8,0001. and the interest thereof, and that such mortgage shall contain. a power of sale after six months' notice, and other usual powers and provisions; and that until the execution thereof the said Joseph Cooper shall, in addition to his present remedies, have the same rights and remedies for securing and obtaining payment of the said 8,000l. and interest as he is now entitled to in respect of his said mortgages; and that the interest of the said Moses Cartwright under his agreement with the said assignees shall also be a security not only for the said 8,000l. and interest, but also for the said loan of 2,000l. and interest, and that the said debts of 8,000l. and 2,000l. shall be treated as one debt of 10,000l. secured on a mortgage in fee of the said estate;" and the agreement went on to specify the times and mode of payment of the said principal of 10,000l. The solicitor of Cartwright, who also acted for the assignees, prepared a draft for carrying out these agreements whereby in consideration of payment by Cartwright, by the direction of the assignees, to the plaintiff of the said moneys due to the plaintiff upon the mortgages of the fee; and in consideration of the payment by Cartwright to the official assignees of the balance of the 2,400l. purchase-money, the plaintiff by the direction of the assignees and on the nomination of Cartwright and the trade assignees-and the bankrupt were made to convey the fee of the said farm, and all the interest of the plaintiff as mortgagee, subject to the leases and to the claim to dower, to a trustee for Cartwright. The plaintiff objected to this draft, on the ground that it would destroy the power of sale in his securities and let in any judgments against Cartwright and any charge which he might have created, and altered the draft by making the plaintiff only a consenting party to the conveyance by the assignees of their equity of redemption, subject to the plaintiff's securities and to the sum of 2,000l. stated to be due thereon, and to the leases and the *claim for dower, the consideration stated being the sum of 400l. paid by Cartwright to the assignees. A correspondence ensued, in the course of which the plaintiff offered at his own cost to give the assignees a release from the mortgage debt; but this was declined. The plaintiff then filed his bill against Cartwright and the assignees for specific performance, offering to execute a release to the assignees, the bankrupt's estate, and the bankrupt himself, if required, of all claims under the mortgages; and praying that he might be declared entitled to the benefit of Cartwright's agreement with COOPER v. CARTWRIGHT. [ *682 ] [*683] COOPER ተ. ᏟᎪᎡᎢ WRIGHT. [ *684] the assignees, and for an account of what was due to him from Cartwright; and that, on payment to the assignees of the balance of 2,400l., less the amount so due, the assignees might execute a conveyance of the equity of redemption to the plaintiff in such form as to keep the mortgages on foot; and that the plaintiff might be declared entitled to hold the same as a security, pursuant to the agreement between him and Cartwright. Mr. Giffard, Q.C., and Mr. Dart, for the plaintiff: It is material for the plaintiff to keep the old mortgages on foot; and the defendants have no interest in resisting the demand. Under an agreement to sell free from incumbrances, the purchaser may insist on having securities kept on foot: Clark v. May (1), Barry v. Harding (2). What makes the case stronger is, that the two contracts are proved to be one transaction. Mr. A. Smith (Sir H. Cairns, Q.C., with him), for the assignees: Our contract with Cartwright was to convey free from *incumbrances. We had a right to make such a contract, and we are ready to perform it, and cannot be called upon to convey the equity of redemption, which we never agreed to do. An ordinary vendor would by such a conveyance leave himself personally liable on his covenant; and though this may not apply so strongly to assignees, the same rule as to the form of conveyance must be followed. Mr. Daniel, Q.C., and Mr. Martindale, for Cartwright, supported the assignees' contention. VICE-CHANCELLOR SIR W. PAGE WOOD: I have looked in vain for any substantial grounds for the contest which the assignees have raised. I am entirely at a loss to find any reason for their resistance to the performance of their contract in the manner in which the plaintiff, as representing Cartwright, desires to have it carried into effect. Cartwright has a substantial interest in having the conveyance in the form prepared by the assignees; but he cannot insist upon what would be in direct contradiction to his own agreement with the plaintiff. The assignees take their stand upon a point of form, and form only. It is clear that at the time of entering into their agreement with Cartwright they were aware that the estate was in mortgage to the plaintiff; that a foreclosure suit was pending; and that an arrangement was (2) 68 R. R. 313 (1 Jo. & Lat. 475). (1) 96 R. R. 128 (16 Beav. 273). |