Page:The English Reports v1 1900.pdf/1293

event happens. For instance: a testator, as in this case, devises a leasehold for years to one for life, who has no children, with remainder to his first and other sous in tail male; remainder to another for life, with the like remainders to his first and other sons in tail male; with several remainders over. If the second tenant for life has a son born, before the first tenant for life has a son, the remainder in tail limited to that son will vest; and all the subsequent remainders which were good as possibilities, while the contingency of a nearer heir's coming in esse was in suspense, are ipso facto from that moment determined. And though such tenant in tail should die an infant the next day after his birth, yet the ownership of the term must vest, and his administrator must take it, subject only to be defeated by the birth of a son of the first tenant for life, who will still be prior to such intestate infant in the order of limitation. That the instances here proposed, exactly corresponded with the circumstances of the present case, and might be supported by legal reasoning and accurate authorities. That such being the nature of the right under Duke John's will, a specific performance of the agreement ought to have been decreed. The purchasor was fully informed of the nature of the right: the parties entitled to dispute the question stood before the court, claiming under the same instrument with the vendors; all of them expressly submitting that question to the judgment of the court, and particularly the respondent Lord Vane; without suggesting either by their answers in the cause, or by the argument of their counsel at the bar, the remotest possibility of prejudice to themselves, from a declaration to be made by the court, upon the matter of right so litigated.

[214] But it was said, that Lord Vane and the Earl of Darlington, whose rights, supposing they have any, cannot take effect in possession during the life of the respondent the Duke, are not liable nor can be called upon to do any particular act to affirm the title of the purchasor; and therefore the court of Chancery could not determine, or take cognizance of their rights in the life-time of the Duke, merely for the sake of quieting questions between the appellants and the purchasor.

To this objection it was answered, 1st, That the court having jurisdiction to give relief on the subject matter of the agreement, might declare rights, and determine all questions, legal or equitable, incident to that relief, as between the parties to the contract. Where a purchasor brings his bill upon the agreement, the court may decree a performance against the vendor; where the vendor brings his bill, the court may decree against the purchasor; even though strangers, whether parties or not parties to the suit, may appear to have some claims by title paramount that of the vendor, depending on prior entails, and different conveyances. If the facts are intricate or doubtful, the court refers it to a Master in the first instance, to see whether a good title can be made; and upon his report, the cause comes on afterwards for judgment: and many precedents may he found, where purchasors have been decreed to accept titles, and yet the outstanding claims of others have not been determined, so as to conclude and bind them. In case the question of title happens to be a single question of law or equity, depending upon the construction of a deed or will, which is as ripe for the judgment of the court upon the pleadings, as it can be after a reference to the Master; the court will take cognizance originally, and determine it between the parties; and if this jurisdiction was not exercised, not only many agreements for purchases, but many trusts affecting real estates for the payment of debts, in which the rights of many persons are involved, would be long suspended, or totally defeated. But, 2d, This case stood peculiarly clear of every difficulty in the way of the relief prayed. Not only the submission of all the parties, but the clearness of the question, and the impossibility of future prejudice to the rights of the respondents, or of any general inconvenience in respect of the precedent, supported and authorized that relief and if such difficulties should prevail, no agreement for the sale of a contingent right, could ever be allowed in equity. Suppose Mr. Pelham's eldest son, the first tenant in tail, or absolute owner of the leaseholds who came into being, had lived to the age of 21, and contracted debts; no sale could have been made for the payment of those debts, though the expediency had been ever so great; nor could they have been valued or included in the administration of his assets, till it had been seen whether he would survive the death of the Duke of Newcastle without issue male, even though his creditors had contracted to sell his contingent right in those [215] leaseholds. And the case was exactly the same, as it now concerned the assets of those who represented him.

It was further objected, that the question of right in this case was entirely legal;