V.

AGREEMENT for the SALE of an INFANT'S ESTATE by PRECEDent V. his MOTHER and UNCLE, and for the ASSIGNMENT to

the PURCHASER of a MORTGAGE on the ESTATE.

day of

SALE OF AN INFANT'S ESTATE.

1. Parties.

2. Recital of seisin of ancestor,

subject to a mort.

gage term;

of death of the infant his ancestor, leaving heir at law;

THIS INDENTURE (a), made the 18-, Between A. B., of, &c. [the uncle], and C. D., of &c. [the mother], widow of G. H., late of, &c., deceased, of the one part; and E. F., of, &c. [purchaser], of the other part: WHEREAS the said G. H. died in the month of intestate, seised in fee simple of the hereditaments hereinafter covenanted to be conveyed, subject to a mortgage thereof for a term of 2000 years to Y. Z., for securing to her £2800 and interest, and leaving his son L. M., now of the age of ten years or thereabouts, his heir at law: AND WHEREAS the said C. D., the mother of the said L. M., is now the administratrix of the estate of the said G. H.: AND WHEREAS the said mortgage debt of £2800 of transfer of and interest, and the securities for the same, have been mortgage; transferred by the said Y. Z. to and are now vested in the said A. B.: AND WHEREAS the said A. B. and C. D. are of opinion that it will be beneficial to the said L. M. that the said hereditaments shall be sold: NOW THIS INDENTURE WITNESSETH, that in consideration of the premises, they the said A. B. and C. D. do for themselves, their heirs, executors, and administrators, and each of them doth for himself and herself, his and her heirs, executors, and administrators (so far as the covenants hereinafter contained are to be performed by them respectively, or by their respective heirs, executors, or administrators, or by the said L. M. or his heirs),

that the sale is considered beneficial to the infant.

3. Witnesseth

mutual cove

nants,

(a) Although in cases where the parties to a contract will enforce Contracts under it in a Court of Equity, a writing not under seal is as valid and seal.

effectual as a deed; yet, where the parties may have to proceed at law for damage, or other relief, the contract should be under seal, in order

to avoid the necessity of having to prove a consideration for it.

SALE OF AN

PRECEDENT V. hereby covenant with the said E. F., his heirs, executors, administrators, and assigns, and the said E. F. INFANT'S ESTATE. doth for himself, his heirs, executors, and administrators (so far as the covenants hereinafter contained are to be performed by him, his heirs, executors, or administrators), covenant with the said A. B. and C. D., their heirs, executors, and administrators, and also (as a separate covenant) with each of them, his and her heirs, executors, and administrators, in manner following (that is to say):

4.-that infant

or his heirs, when
capable, shall
make out title
to, and convey.

5. Parcels.

6. That the assignee of the mortgage term shall assign to purchaser.

7. That purchaser may

1. The said L. M., within six calendar months after he shall attain the age of twenty-one years, or, in case of his death before executing such conveyance as is hereinafter mentioned, the heirs of the said L. M., within six calendar months after he or they shall be capable in law to make and execute a conveyance of freehold hereditaments, and all other necessary parties, shall, at the cost of the said L. M., deduce a good title to, and, at the expense of the said E. F., effectually convey and assure to the said E. F., ALL THAT messuage, dwelling-house, or tenement, &c. [parcels, general words, see infra, CONVEYANCES ON SALES, Vol. I., p. 401 (b),] free from all incumbrances except the said term of 2000 years and the principal money and interest thereby secured.

2. The said A. B. shall, on or before the

day of

this present month of, at the expense of the said C. D. as such administratrix as aforesaid, assign to the said E. F., the said premises for the residue of the said term of 2000 years, subject to such equity of redemption as shall then affect the same, and also the said mortgage debt of £2800.

3. The said E. F. shall, until the said premises shall quietly enjoy till be conveyed to him, or until the said L. M. or his heirs shall refuse or neglect to convey the same to him, be

conveyance or

refusal to convey.

(b) In the case in the text, if the estate clause be employed, it must be in reference to the estate of the infant and his heirs, and not to that of the parties to the agreement.

entitled to, and shall have the possession or receipt of PRECEDENT V. the rents (c) of the same premises.

4. The purchase-money of £6000 shall be paid by the said E. F., and satisfied in the following manner, namely: £2800 shall be paid to the said A. B. on the

day of, upon a transfer by him to the purchaser of the said mortgage debt of £2800, and the securities for the same; £200 shall be paid on the same day to the said A. B. and C. D. for the use and benefit of the said L. M.; and the balance of £2000 to the said L. M., or his heirs, on completion of the purchase; and such balance shall, until payment, carry interest at 4 per cent. per annum, payable half-yearly, on the and day of

day of

to the said A. B. and C. D., or the survivor of them, or the executors or administrators of such survivor, for the use and benefit of the said L. M., the first half-yearly payment of interest to be made on the day of next.

SALE OF AN

INFANT'S ESTATE. 8. Purchasemoney how to be

paid.

not to call in the

mortgage.

5. The purchaser shall not call in the said principal 9. Purchaser sum of £2800, or any part thereof, nor require payment of any interest for the same, or for the said sum of £200 until default shall be made in the performance of some covenant by the said A. B. and C. D. herein before contained.

6. If the said L. M., for six calendar months after he shall attain the age of twenty-one years, or, in case of his death before executing such conveyance as aforesaid, if his heirs for six calendar months after they shall be competent to convey the same, shall refuse or neglect to deduce a good title to the said premises, or to convey the same in fee simple in possession to the said E. F., free

10. Provision in case of infant or

his heir refusing to complete the

contract.

(c) An agreement by the guardian of the infant, that the pur- Leases by chaser may have the possession of the estate till a given time, being guardians. less than three years, probably amounts to a demise from the guardian to the purchaser (see supra, Precedent II. n. (c)); it seems that a guardian has authority to make leases of the infant's lands, which will hold good during the minority. (See Bac. Abr. tit. Lease, I. s. 9; Vaughan, 179.) See, however, as to a testamentary guardian, Roe d. Parry v. Hodgson, 2 Wils. 129, 135.

SALE OF AN

PRECEDENT V. from incumbrances except as aforesaid, then the said E. F. shall, at any time thereafter, be entitled to recover INFANT'S ESTATE. and receive from the said L. M., his heirs or assigns, or the personal representative for the time being of the said G. H., the said sum of £2800, so to be paid by the said E. F. to the said A. B. as aforesaid, with interest thereon at the rate of 5 per cent. per annum, from the said day of this present month to the day of payment thereof; and the said A. B. and C. D., their heirs, executors, or administrators, shall immediately on such refusal or neglect, repay to the said E. F. the said sum of £200, so to be paid by the said E. F. as aforesaid, together with interest for the same at the rate aforesaid, from the said day of to the day of repayment thereof; and also shall, at the same time, pay to the said E. F. the further sum of £4000, by way of liquidated damages (d),

Penalty or liqui. dated damages.

(d) Whenever it is the intention of the parties to an agreement, that a party committing a breach of it shall pay an ascertained sum as damages, the agreement should contain an express stipulation, that such sum is to be paid as "liquidated damages." For, otherwise, it seems that the sum to be paid will be considered as a penalty, and the amount of damages will be for the consideration of a jury: Astley v. Weldon, 2 Bos. & Pul. 346; Betts v. Burch, 4 Hurl. & N. 506. It is not, indeed, essential that the words "liquidated damages" should be employed, if the intention of the parties is otherwise clear: Lowe v. Peers, 4 Burr. 2235; Fletcher v. Dyche, 2 T. R. 232; Jones v. Green, 3 Y. & J. 298; Husband v. Grattan, Al. & Na. 389; but, of course, it is always best to express the intention, and not leave it to be implied. When the Court is of opinion that the stipulation is, that the party committing a breach of the agreement shall pay a fixed sum as liquidated damages, it is clear that he cannot have any relief as against a penalty, or recover any additional compensation, but must pay the exact sum: Barton v. Glover, Holt, N. P. 43; Reilly v. Jones, 1 Bing. 302; S. C., 8 J. B. Moore, 244; Lowe v. Peers, Jones v. Green, ubi supra; but it seems doubtful if a clause in an agreement that for every breach a fixed sum shall be paid as liquidated damages prevents the Court from trying the question whether it be a penalty or liquidated damages: Cole v. Sims, Kay, 56, 5 De G. M. & G. 1.

If the statement in the agreement be ambiguous, as that "the penal sum of £-- shall be paid as liquidated damages," the Court will endeavour to collect the real intention of the parties from the

for the non-performance of the covenants by the said PRECEDENT V. A. B. and C. D. hereinbefore contained: IN WITNESS whereof, the parties to these presents have hereunto INFANT'S ESTATE set their hands and seals the day and year first above written.

SALE OF AN

general terms of the instrument: Davies v. Penton, 6 B. & C. 216; S. C., 9 D. & R. 369; Horner v. Graves, 7 Bing. 735, 5 M. & P. 768; Coisdee v. Bolton, 3 Car. & P. 240.

But it seems that a sum cannot be fixed as liquidated damages generally, for the breach of an agreement containing different stipulations of different kinds and consequence: Kemble v. Farren, 6 Bing. 141; S. C., 3 M. & P. 425; Charrington v. Laing, 6 Bing. 242; S. C., 3 M. & P. 587. A separate sum should, in such cases, be fixed as the damages for the breach of each separate stipulation. See further on the subject the notes, infra, to the precedent of an Assignment of Goodwill.

Where no penalty has been named and the purchaser fails to complete his contract, the vendor, or, if he be dead, his personal representative can sue the purchaser, or if he be dead his personal representative or his real representative if the agreement were under seal and the heirs named therein, for damages sustained by the breach of the contract: Dart, 616; but the vendor cannot recover the whole amount of the purchase-money if there has been no conveyance: Iceley v. Grew, 6 N. & M. 467.

Courts of Equity can now under Sir Hugh Cairns' Act, 21 & 22 Vict. c. 27, s. 3, give damages for a breach, as well as decree specific performance of an agreement; but the Act does not apply to cases where a Court of Equity can give no relief except in damages. In such cases the plaintiff's remedy is at law: Soames v. Edge, Johns. 669; Howe v. Hunt, 32 L. J. 36 Ch.