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![handle is hein.slavery/ssactsengr0739 and id is 1 raw text is: HINDMARSH V. SOUTHGATE
it should be referred to the Master, to inquire whether a good title could be made
to the property.
From that decree the Defendants appealed.
Mr. Sugden and Mr. Andrews, in support of the appeal, contended, that, according
to the true construction of the second agreement, the Plaintiff was bound to take
the property, whether a good title could be shewn or not. He had undertaken to
pay the residue of the purchase-money on the 25th of December 1819 ; and the
stipulation was, that, if the title could not be completed on that day, he was to rely
on the vendor's bond. The bankruptcy, which had occurred subsequently, did not
alter the rights of the parties.
Mr. Heald and Mr. Bickersteth, contra. It is absurd to construe this agreement
as a contract to purchase an estate without a title. The intention of the parties was,
that a good title should be shewn ; otherwise, why stipulate for a bond, by which
the vendor was to enter into a special obligation to complete the title ? How can
a title be completed, if the vendor cannot make a good title ? Without a particular
stipulation, the vendor would not be entitled to receive his money, till the conveyance
was made : and the purpose of this agreement was, that [323] he should be paid on
the 25th of December, though the conveyance was not then made ; subject, however,
always to his shewing that he was in a condition to make a title. The purchaser
was to trust to the bond, not as a substitution for the title, but as a means, after the
vendor had shewn that he could make a title, of compelling him to exert diligence
in its formal completion.
Oct. 30. The Lord Chancellor [Lyndhurst]. In this case the argument turned
upon the construction of the agreement of the 5th of June 1819. It was contended
that the residue of the purchase-money was to be paid at the time specified, without
regard to the question, whether or not Willett or his assignees could eventually make
a good title to the premises ; that this was the meaning of the parties, and the true
interpretation of the agreement. I think, however, that the agreement is not to be
so construed. I conceive the meaning of the parties, as collected from the terms of
the contract, to have been, that the money was to be paid on the day named, although
the title might not then be completed; but subject always to this condition, that the
vendor had the power to complete it; and that it was not intended that it should
be paid, if the vendor did not possess such power. The stipulation as to the bond
was merely intended to guard, upon the money being paid, against supineness and
delay in doing that which, it was assumed, the vendor had the means of doing, and
which, by the agreement, I conceive, he engaged to do, viz. to make a good title to
the estate. I think, therefore, that the question as to the title was properly referred
to the Master.
Decree affirmed.
[324] HINDMARSH V. SOUTHGATE. May 7, 12, 1827.
If letters of administration be granted to an infant, under which he receives and
disposes of assets of the intestate, an account cannot be directed in respect of his
receipts during his infancy.
This was a suit by creditors for the administration of the assets of Richard Abbott,
who died intestate in February 1816.
The bill alleged that Mary Ann Abbott, the widow of the intestate, at the sugges-
tion and by the procurement of John Southgate, her father, obtained letters of ad-
ministration to her husband's estate ; that John Southgate, in her name, and under
colour of the letters of administration, carried on the business of a tavern-keeper
in premises which the intestate was in possession of at the time of his death, and
collected a great part of his personal estate ; that the widow and her father disposed
of the stock in trade of the deceased, and of the lease of the premises and had applied
the proceeds to their own use ; that the Plaintiffs had brought actions to recover
the amount of debts due to them from the testator, and had obtained verdicts ;
that John Southgate then procured the letters of administration, which had been
granted to Mary Ann Abbott, to be recalled, on the ground that she was an infant ;
and that he had himself obtained letters of administration to Richard Abbott during
her minority. The prayer was, that John Southgate might account for the assets
3 RUSS. 323.](ViewImageLocal?handle=hein.slavery/ssactsengr0739&div=1&collection=&method=preview&ext=.png&size=3)