(a) Fosbrooke v. Balguy, (1833) 1 M. & K. 226; see Lewin, 11th ed. 202.

(b) Birds v. Askey, (1858) 24 Beav. 618; see now Trustee Act, 1893, 8. 45.

{c) Hughes x. Wells, (1852) 9 Ha. 749.

(d) Re Hallett & Co., 1894, 2 Q. B. 237, 244 ; 63 L. J. Q. B. 573.

Where a man, having expressly agreed (/), or being under a statutory (g) or equitable (h) liability, to purchase and settle, or to find the money for purchasing and settling (i), lands, buys, but neglects to make a settlement, the purchased lands, or an adequate part thereof, will, if of a suitable nature and tenure (k), be taken, in Equity, to have been bought in performance, or, if their entire value is inadequate, in part performance (I), of his agreement or liability (m).

Purchase, when to be considered in performance of covenant to settle land.

Nor will the result be altered by any peculiar terms in the original agreement which do not, in the events which have occurred, go to discharge his general liability; e.g., a stipulation that the purchase shall be made with the approbation of trustees, whose consent he has not applied for (n) ; or within a limited time, which has expired (0) ; or an option reserved to him of making a substitutional arrangement, if he has not made his election (p).

How far the form of the covenant is material.

So, where the agreement was to convey and settle lands, and the covenantor had either no land, or insufficient suitable land to perform the agreement, it has been held that after-purchased land was liable to supply either the entire want or partial deficiency (q) ; but, as a general rule, a covenant to convey and settle lands, which are not expressly defined by the covenant, will not create a specific lien on the lands of the covenantor, except in cases where the lands have been acquired with the intention of satisfying the covenant (r).

After-acquired land may be liable to satisfy the covenant.

(e) Re Hallett's Est., (1880) 13 Ch. D. 696, 709, per Jessel, M. R. ; 49 L. J. Ch. 415.

(f) Beacon v. Smith, (1745) 3 Atk. 323; A.-G. v. Whorwood, (1750) 1 Ves. sen. 534, 540.

(g) Ttibbs v. Broadwood, (1831) 2 R. & M. 487.

(h) Wilson v. Foreman, (1782) cited 10 Ves. 519; Manningford v. Toleman, (1845) 1 Col. 670 ; 14 L. J. Ch. 160.

(i) Sowden v. 8., (1785) 1 Br. C. C. 582; Ex p. Boole, De G. 5S1.

(k) Beacon v. Smith, (1745) 3 Atk. 323; A.-G. v. Whorwood, sup. 541 ;

Pinnell v. Hallett, (1751) Amb. 106; and see inf. p. 982.

(/) Gartshore v. Chalie, (1804) 10 Ves. at p. 9 ; Ex p. Poole, sup. ; Lechmcre v. Earl of Carlisle, (1733) 3 P. W. 211, 228.

(m) Lechmere v. L., (1735) Cas. t. Talbot, 26; Blandy v. Widmore, (1716)

1 P. W. 323 (a), which cases are cited

2 Wh. & Tud. L. C. 7th ed. pp. 399, 407 ; see notes, ib.

(n) Lechmere v. Earl of Carlisle, (1733) 3 P. W. 211, 218.

(0) Exp. Boole, (1847) De G. 581.

(p) Beacon v. Smith, (1745) 3 Atk. 323, 328.

The right of the parties interested under the proposed settlement (s) seems clear as against the legal representatives of the purchaser. Lord Hardwicke held (t) that such right would not prevail as against a sub-purchaser or mortgagee ; as the subsale or mortgage "would have taken off all evidence of intention to bind" the land by the previous agreement; and a beneficial devise of the land would apparently come within the same reasoning. However, in Bankruptcy, V.-C. Knight Bruce held that a subsequent mortgage, though conferring a good title on the mortgagee (who took his security without notice), left the equity of redemption impressed with the trusts of the settlement (u) ; and it appears from the judgment that even the mortgagee's title was considered to depend upon his want of notice.

Who are bound by the equity.

Lord Hardwicke's diction, though cited as law by Lord St. Leonards, is, it is submitted, open to the criticism that it does not distinguish between intention, as existing at the date of the purchase, and intention, as existing at the date of the subsequent sale or mortgage. If the original purchase is unaccompanied by evidence of a contemporaneous contrary intention, Equity, it may be contended, will assume that the purchaser intended then to do that which it was his duty to do, and will not recognize any subsequent alteration of purpose.

Where the land comes within the terms of the agreement, its alleged unsuitability to answer the purposes of the settlement should perhaps be hardly relied on by parties claiming against the settlement. Where, however, the land is of a different nature or tenure from that covenanted to be purchased, no presumption of an intention to perform the covenant can arise (x).

Remarks on

Lord Hardwicke's dictum as to purchasers and mortgagees.

(q) See Weilesley v. W., (1839) 4 M. & C. 561, and cases cited, 580 ; 9L. J. N. S. Ch. 21.

(r) Momington v. Keane, (1858) 2 D. & J. 292, and see comments on Welteley v.W .

(s) The maxim that Equity looks upon that as done which ought to bo done cannot be invoked in favour of volunteers: Me Anstis, (1886) 31 Ch. D. 596.

(t) Deacon v. Smith, (1745) 3 Atk. 323, 327.

(u) Ex p. Poole, (1847) De G. 581.

The expenditure by the covenantor in erecting buildings, etc, upon land already subject to the limitations of the settlement, is not a part fulfilment of his engagement to pay money to the trustees for the purpose of being invested and settled upon trusts corresponding with the uses of the land (y).

Expenditure on settled land, not a satisfaction of covenant to settle money.

An agreement to purchase and settle, where the ultimate limitation in the settlement is to be to the use of the settlor himself in fee, may be enforced not only by his wife and children, but even by his own heir as against his personal representatives, in cases where any of the intermediate uses of the settlement subsist at the death of the settlor (z).

Who may-enforce covenant to settle.

(x) Lechmere v. Earl of Carlisle, (1733) 3 P. W. 211, 227 ; Beacon v. Smith, (1745) 3 Atk. 323 ; Levels v. Sill, (1749) 1 Ves. sen. 274 ; A.-G. v. Whorwood, (1750) ib. 534, 540.

(y) Horlock v. Smith, (1853) 17 Beav. 572; 23 L. J. Ch. 962: see

Wiles v. Gresham, (1854) 2 Dr. 258, 271 ; affd. (1854) 3 Eq. R. 116 ; Robinson v. Sykes, (1856) 2 Jur. N. S. 895 ; 26 L. J. Ch. 782 ; Mathias v. M., (1858) 3 Sm. & G. 552.

(z) Barham v. Lord Clarendon, (1852) 10 Ha. 126; 22 L. J. Ch. 1057.