Death of the vendor.

Devolution of the vendor's estate.

(r) Baden v. Pembroke, 2 Vern. 213; Owen v. Davies, 1 Ves. sen. 82; Hinton v. Hint on, 2 Ves. sen. 631, 633; Taylor v. Stibbert, 2 Ves. jun. 437, 439; Brooke v. Hewitt, 3 Ves. jun. 253; Sug. V. &P. 175, 208; 1 Dart, V. & P. 255, 995, 996, 5th ed.; 291, 1114, 1115, 6th ed.; 296, 1029, 1030, 7th ed.; Fry, Sp. Perf. Sec. 211, 212, 241, 274, 275, 3rd ed.; Pearce v. Bastable's Trustee, 1901, 2 Ch. 122.

(s) Daniels v. Davison, 16 Ves.

249, 17 Ves. 433; Potter v. Sanders, 6 Hare, 1; 2 Dart, V. & P. 823, 824, 996, 5th ed.; 927, 928, 1115, 6th ed.; 836, 837, 1030, 7th ed.

(t) Baden v. Pembroke, 2 Vern. 212; Eaton v. Sanxter, 6 Sim. 517; Roberts v. Marchant, 1 Ph. 370; Hoddel v. Pugh, 33 Beav. 489; Sug. V. & P. 177; 1 Dart, V. & P. 256, 1008, 5th ed.; 293, 1130, 6th ed.; 296, 1029, 7th ed.; Fry, Sp. Perf. Sec. 212, 3rd ed.

Freeholds in fee.

(u) The heir or devisee was a necessary party to a suit for spe-cific performance of the contract, both on this account and as having an interest in disputing the contract: see previous note.

(x) See Wall v. Bright, 1 .J & W. 494; Lysaght v. Edwards, 2 Ch. D. 499, 510 - 513: 1 Jarm.

Wills, 693, 703-706, 4th ed.; 647, 654 657, 5th ed.

(y) Lysaght v. Edwards, 2 Ch. D. 499.

(z) Stat. 38 & 39 Vict. c. 87, s. 48 replacing 37 & 38 Vict, c. 78, s. 5 (above, p. 220), and repealed by 44 & 45 Vict. c. 41, s. 30.

W

(a) Morgan v. Swansea Urban, etc. Authority, 9 Ch. D. 582; Re Cunningham and Frayling, 1891, 2 Ch. 567; see Re Cuming, L. R. 5 Ch. 72.

(b) Stat. 44 & 45 Vict. c. 41, s. 30; above, p. 221.

(c) Re Cuming, L. R. 5 Ch. 72.

(d) See Lysaght v. Edwards, 2 Ch. D. 499; Re Pagani, 1892, 1 Ch. 236.

(e) Stat. 44 & 45 Vict, c. 41. a. 4, applying only in cases of death after the 31st December, 1881, and providing that a conveyance made thereunder shall not affect the beneficial rights of any person claiming under any testamentary disposition, or as heir or next of kin of a testator or intestate.

(f) Above, p. 216.

(g) Above, p. 11.

(h)Above, pp. 1 i - 14.

See i Key & Elph. Prec. Conv. 544, n... 4th ed.: 534, 535 and notes, 8th ed.

Stat. 60 & 61 Vict. c. 65, s. 1 (1); above, pp. 228, 229. (l) Above, p. 530.

It appears, however, that the vendor's heir or devisee should still be made a party to any action for specific performance of the contract, as having an interest in disputing the contract: above, pp. 528, n. (t,529, n. (u): Rawlins, Sp. Perf. 83

34 (2)

If the vendor were seised of the property sold for an estate tail, it appears that his estate therein still passes, on his death pending completion and without having barred the entail, to the heir in tail (n), or if there be no such heir, to the reversioner or remainderman. And the contract is not enforceable against these persons (o), notwithstanding that the vendor in his lifetime could have made a good title by barring the entail (p), and might have been decreed to perform the contract specifically (q). But if the vendor, being a tenant in tail only, had entered into an absolute contract for sale of the fee simple, his death without having barred the entail causes a breach of the contract to show a good title, and for this his executors are liable in damages at law. If the tenant in tail should have contracted to sell the entailed lauds in exercise of the power of sale given to him by the Settled Land Act, 1882 {>•), and died pending completion, the contract would be enforceable against all persons entitled to the lands after his death under the settlement by virtue of which he held the same (s). Such a contract is quite different from a contract to exercise the power of disposition annexed by law to the ownership of his estate. In the one case the purchase money is intended to be paid, not to the vendor, but to trustees or into Court in trust for the persons entitled under the settlement (t), and it is not intended to bar the entail: in the other, the vendor proposes to bar the entail and to take the purchase money for himself (u). It appears that an open contract to sell the fee made by a tenant in tail would be referable to the power of disposition annexed to his ownership of the estate (x), as the purchase money would be payable to himself. If the property sold were copyhold held for a customary estate in fee and the vendor had been admitted tenant, his estate will not pass, on his death pending completion, to his executors or administrators, either under sect. 30 of the Conveyancing Act of 1881 (y), or under the Land Transfer Act, 1897 (z), but will go to his customary heir or devisee, according as he died intestate or testate in respect thereof, pur-suant to the old law formerly affecting freeholds ((a). If the property sold were copyhold, in which the vendor bad an equitable estate in fee or of which he was an unadmitted surrenderee in fee, it appears that, on his death before completion, his estate would pass to his executors or administrators if he were then a trustee thereof within the meaning of sect. 30 of the Convey-ancing Act of 1881 (b); and if not, it would appear to pass to them under the Land Transfer Act, 1897 (c). The 4th section of the Conveyancing Act of 1881 (d) relates only to the case of the sale of the fee simple or other freehold interest descendible to the heirs general, and does not therefore apply in the case of the sale of an estate of inheritance, whether legal or equitable, in any copyhold hereditaments. If the property sold were leaseholds for years, the vendor's estate therein would in any case pass, on his death before completion, to his executors or administrators at common law (e).

Estate tail.

Sale by tenant in tail under the Settled Land Acts.

(n) Above, p. '234.

(o) Stat. 3 & 4 Will. IV. c. 74, s. 40; Sug. V. & P. 427; '2 Dart, V. & P. 998, 5th ed.; 1117, 6th ed.; 1032, 7th ed. As to the old law, see A.-G. v. Day, 1 Ves. 218, 224: Frank v. Mainwaring, 2 Beav. 115, 126.