Y. & C. 222; Townsend v. Cham-pernowne, 3 Y. & C. 505, 508; Regent's Canal Co. v. Ware, '23 Beav. 575, 588; Royal Bristol, etc. Bdg. Socy. v. Bomash, 35 Ch. D.390, 397, 398.

(w) Clarke v. Ramuz, 1891, 2 Q. B. 456.

Vendor not bound to improve the property.

(s) See note (t), above, p. 512. Clarke v. Ramuz, L891, 2 Q B. 456.

(z)See note (t) above-, p. 512; Sherwin v. Shakspear, 5 De G. M. &G. 517, 532, 534, .539.

(a) Above, pp. 26, 46.

(b) Above, pp. 49, 50. An absolute trustee would, of course, be entitled to be reimbursed all moneys properly expended in preserving the trust property, and would not be bound to pay for any repairs nut of his own pocket, if he had no trust money in hand available for the purpose: see Bridge. v Brown, 2 Y. & C. C. C. 181, 191, 192; Fazakerley v. Culshaw, 19 W.R. 793; Rw De Teissier's Settled Estates, 1893, 1 Ch. 1.53; Re Montagu, 1897, 2 Ch. 8.

(c) Sherwin v. Shakspear, 5 De G. M. & G. 517. 532, 539.

(d) Above, p. 507.

W

(e) Sherwin v. Shakspear, 5 De G. M. & G. 517, 532; Phillips v. Silvester, L. R. 8 Ch. 173, 176.

(f) Sinks v. Rokeby, 2 Swanst. 222, 226: Minchin v. Nance, 4 Beav. 332.

(g) Foster v. Deacon, 3 Madd. 394, 395.

(h) Acland v. Gaisford, 2 Madd. 28, 32; Wilson v. Clapham, 1 J. &

W. 36, 38; Plews v. Samuel, 1904, 1 Ch. 464.

(i) Sherwin v. Shakspear, 5 De G. M. & G. 517, 537.

(k) Egmont v. Smith, 6 Ch. D. 469; and see Bennett v. Stone, 1902, 1 Ch. 226, 237, affirmed, 1903, 1 Ch. 509.

(l) Raffety v. Schofield, 1897, 1 Ch. 937, 944, 945.

Vendor entitled to retain possession until actual completion.

Vendor's liability to account for the rents.

(m) Above, pp. 26, 46 (n) Above, p. 57. (o) Above, p. 506. (p) See Gedye v. Montrose, 26 Beav. 45.

(q) Above, pp. .')0, GO, 67,

(r) See above, pp. 46, 60, 166, n. (n). 186, n. (l), where it is respectfully maintained that the decision of Parker, J., in Halkett v. Dudley, 1907, l Oh. 590, 606, was erroneous.

(s) Bee M Namara v. Williams, 6 Ves. 143; s Plews. Samuel, 1904, 1 Oh. 464.

(t) Sherwin v. Shakspear, 5 De G M. & G .517: Seton on Judg33(2) but he may in a special case be chargeable with the amount which, but for his wilful default, he might have received, as where he has allowed the rents to fall into arrear (u), or neglected to let the land (x), or has wantonly abandoned the property sold (y).

As we have seen (z), the vendor's beneficial interest in the property sold between the making of the contract for sale and its completion consists, first, in his lien for the price, involving the right to hold possession of the land sold until the whole purchase money be paid; and secondly, in his right to take the ordinary rents and profits for his own use up to the proper time for completion. As to the first of these rights, the vendor is entitled to retain possession until the whole price is paid, unless the contract contain an express or implied stipulation that the purchaser shall have possession on a particular day without making such payment (a). And where the contract provides, as upon a sale by auction under the usual conditions (b), that the balance of the purchase money shall be paid on a particular day, and also that possession shall be taken by the purchaser on that day, it is held that such possession is intended as may be safely taken on the one hand and given on the other, and time is not, as a rule, of the essence of the contract; and as the purchaser is not bound to take possession until he can safely do so, that is, until a good title has been shown and verified, so the vendor cannot be compelled to deliver up possession without receiving payment of the whole price (c). If, however, the contract provide in such manner that time is either expressly or impliedly of the essence of the stipulation, that possession shall be given to the purchaser on a certain day, the purchaser is entitled to take possession on that day without paying the purchase money (d).

The vendor's rights.

Ments, 2237, 6th ed.; Bennett v. Stone, 1902, 1 Ch. 226, affirmed, 1903, 1 Ch. 509.

(u) Wilson v. Clapham, 1 J. & W. 36; and see Plews v. Samuel, 1904, 1 Ch. 464, where rent was in arrear at the time of the sale and on the day fixed for completion, and the vendor was not allowed to appropriate moneys received by him from the tenant after that day (when the purchaser became entitled to the rents) in discharge of the arrears due before that day.

(x) Bennett v. Stone, 1902, 1 Ch. 226, 237.

(y) Phillips v. Silvester, L. R. 8 Ch. 173. In that case there certainly appears to have been such wanton negligence on the vendors' part as justified a decree against them on the footing of wilful default: but Lord Selbome's remarks comparing the position of a vendor retaining possession until completion to that of a mortgagee in possession are directly opposed to the grounds of the decision in Sher-icin v. Shakspear, 5 De G. M. & G. 517. It is submitted that these remarks of Lord Selborne were not necessary to his decision and are not good law, although, in other respects the decision appears to have been right. See 2 Dart, V. & P. 650, 651, 5th ed.; 733 - 735, 6th ed.; 673 - 675, 7th ed.; Royal Bristol, etc. Bldg. Socy. v. Bomash, 35 Ch. D. 390, 397, 398; Clarke v. Ramuz, 1891, 2 Q. B. 456.

(z) Above, p. 506.

(a) Above, p. 515; Lysaght v. Edwards, 2 Ch. D. 499, 506.

(b) Above, pp. 57, 67, 73, 74.

The profits winch the vendor is entitled to take up to the proper time for completion are the ordinary casual profits arising in the course of the proper management of the estate - those which a tenant for life impeachable for waste would be entitled to take as against the remainderman (e). Thus, if the land sold be in hand, the vendor is entitled to gather in the crops in the due and proper course of husbandly, and to dispose of them for his own benefit (f); and if the land be let, he is entitled to receive the rents as they become payable (g). And, usually by express contract (h), but, if not, under the Apportionment Act, 1870 (i), he is entitled to an apportioned part, up to the proper time for completion, of the current rents which will become payable after that time. So the vendor may work mines and quarries open at the time of sale(k.). But he is not otherwise entitled to take any profit or benefit which forms part of the inheritance (l), and if he diminish the value of the inheritance by committing any voluntary waste, as by felling timber or working an unopened mine, the purchaser may claim compensation for the damage; or, if the waste be such as affects a material alteration in the property sold (for example, the felling of ornamental timber), the purchaser may repudiate the contract altogether (m). It appears that if the purchaser sue for specific performance of the contract, he may obtain an injunction restraining the vendor from the commission, pending completion, of any act tending to destroy or depreciate the inheritance of the land sold (n). Thus, on the sale of an advowson, if the church became vacant pending completion, the vendor may be restrained from presenting his own nominee to the living (o). And the vendor may be so restrained from selling the land to another, or from making any disposition of the legal estate therein to the prejudice of the purchaser (p). And on the same principle it would appear that the vendor may be restrained from wasting the property sold pending completion. But if the vendor dispute the fact that any contract for sale was made as alleged by the purchaser, the Court will not grant an injunction restraining the vendor from the exercise of any of his legal rights of ownership, unless the balance of convenience be obviously in favour of such a course (q).