A different doctrine has been adopted in equity, founded on the fiction that whatever is agreed to be done shall be considered as actually done. So if there is an agreement to purchase, it is equivalent to an actual purchase in contemplation of equity; and the purchaser must bear any loss which may happen to the estate between the agreement and the conveyance. The courts, however, cannot recognize the fiction in equity, by which a purchase and an agreement to purchase are held to be similar and indeed identical. They have held where the contract was entire the vendor cannot recover or retain part of the purchase-money where he cannot convey or make good a title to the whole estate sold.

"The good sense and equity of the law is," as Chancellor Kent remarks, "that if the defect of title, whether of lands or chattels, be so great as to render the thing sold unfit for the use intended, and not within the inducement to the purchase, the purchaser ought not to be held to the contract, but be left at liberty to rescind it altogether. But if the defects were not so great as to rescind the contract entirely, there might be a just abatement of price."

When the owner of a lot of land with buildings upon it agrees to convey it at a future day on payment of the purchase-money by the purchaser, and before payment and conveyance the buildings are destroyed by fire without the fault of either party, the loss must fall upon the vendor; and if the buildings formed a material part of the value of the premises the vendee cannot be compelled to take a deed of the land alone and pay the purchase-money; and if he paid it he may recover it back.

Story, in his work on Contracts, at page 1076, says: "But in contracts from the nature of which it is apparent that the parties contracted on the basis of the continued existence of a given person or thing, a condition is implied that if the performance become impossible from the perishing of the person or thing, that shall excuse such performance."

Pomeroy, in his work on Specific Performance, at section 322, states that "The effect of events occurring after the point of time which fixes the interest of the parties is

wholly different from that of prior events. At that period, although the contract is executory in form and is treated as wholly executory at law, the equitable beneficial estate in the subject-matter passes to the purchaser, and he becomes, in contemplation of equity, the real owner. He, therefore, takes the benefits of all subsequent improvements, increases, gains, rises in value, and other advantages happening to the property. On the other hand, the subject-matter is at his risk and he must bear all the losses, total or partial, from fire or other accidental causes, or from trespassers and all depreciations in value and other disadvantages, res perit domoni."

A tenant does not occupy the position of a purchaser under a contract for sale, or come within the same rule. Neither does a contractor who has undertaken to furnish the material and construct a house on the land of another, where the same has been destroyed by fire before the house was finished and delivered. If you go to a wagon-maker and order a carriage made, he cannot recover the contract price until he delivers the carriage. The fact that it was burned or destroyed when partially built is his loss, not yours.

Parties entered into a partnership agreement, by which one contributed real estate at an estimated value, which was carried into the firm's stock account to his credit, he still retaining the legal title and reserving the right to withdraw the property upon the dissolution of the firm. Subsequently the buildings were destroyed by fire, but were rebuilt with new and more expensive structures by the firm. It was held that he could not thereafter withdraw the property; that the fire had rendered it impossible to perform the conditions of the contract; that the loss fell upon the partnership, and it having reconstructed the buildings, that they were new and different from those existing at the time the contract was made, and that he did not have the right to withdraw them.

A defendant agreed to sell to the plaintiff several hundred bales of cotton at a price agreed upon. A portion had been delivered, but the remaining bales were accidentally destroyed by fire without fault or negligence of the defendant.

Subsequently cotton rose in value, and the plaintiff claimed the right to recover the increase in value on the bales destroyed. It was held that the cotton did not vest in the vendee at the time it was destroyed by fire; that thereafter delivery was impossible, and that the plaintiff was not entitled to recover.

In another case the plaintiff had contracted to sell the defendants 119 bales of cotton. The cotton was to be weighed and samples taken and compared with the original before delivery, and the plaintiff delivered to the defendants an order upon the warehouse where the cotton was stored for the same, and the defendants indorsed upon the order a direction to re-store for them and delivered it to the warehouseman. On the next day 70 bales of the cotton were weighed and samples taken; that night 42 of the bales, together with those not weighed, were destroyed by fire. It was held that there was no delivery and acceptance so as to pass the title; that the compliance which was to precede delivery was not complete until the samples taken out had been compared with the original samples; that a destruction of the cotton without fault of the plaintiff relieved him from an action for damages for non-performance.

[Third Persons—Rights and Liabilities.]

As a general rule, a contract cannot be enforced except by a party to the contract; and either of two contracting persons can sue the other, if the other is guilty of a breach or does not perform the obligations of the contract. But a third person-who is not a party to the contract-cannot do so. That rule, however, is subject to this exception: if the contract, although in form it is with A, is intended to secure a benefit to B, so that B is entitled to say he has a beneficial right as cestui que trust under the contract, then B would in a court of equity be allowed to insist upon and enforce the contract.

Whoever purchases an estate from the owner, knowing it to be in possession of tenants, is bound to inquire into the estates those tenants have. It has been determined that a

purchaser being told particular parts of the estate were in possession of a tenant, without any information as to the latter's interest, and taking it for granted that it was only from year to year, was bound by a lease that tenant had, which was a surprise upon him.

It has been held that, where a vendor, in a written contract under seal, had conveyed the land to a third person in possession of the premises under a contract with the vendee in disregard of the rights of the vendee, the vendee had a right to a specific performance of the vendor's contract by such third person holding the title.

If equity can allow a defendant to substitute his quitclaim deed for the warranty that the complainant demands the record title of the premises, which is the guide of purchasers, it will not show the complete and perfect chain of warranties which dispenses with extrinsic evidence to the buyer that the title is good. There can be no hurt to the defendant in executing the deed required by the complainant, unless there is something wrong in the title; and, if there is, the contract to which he has become a party cannot be fulfilled without such a deed.

A covenant in a deed against offensive trades and business while regarded as a several covenant of the grantee, made to and with the grantor, is nevertheless a covenant running with the land, and as such is binding upon the heir of the covenantor, and any subsequent purchaser under him, as assignee of the land; for the covenant follows the land, and becomes obligatory upon those who succeed to the same land, whether by descent or purchase.

A coal yard being opened in a residential section of New York City contrary to the restrictive covenants running with the land, the court disposing of a demurrer and commenting on the case, in part, said:

"The allegation in the bill on this subject, though it is a little poetical, cannot be considered a mere poetic fiction, as it is sworn to by the complainant and is admitted by the demurrer. He there states that large quantities of volatile and offensive dust and smut from the coal rise in the air, and

are diffused by the wind into the premises of the neighboring inhabitants. And in spite of their care, such coal-dust and smut not only settle upon their walks and their grass-plots, but also on their fragrant plants and flowers, 'beclouding the brightness and beauty which a beneficent Creator has given to make them pleasant to the eye, and cheering to the heart of man.' But what must be still more offensive to the ladies of the neighborhood, 'this filthy coal-dust settles upon their door-steps, thresholds, and windows, and enters into their dwellings, and into their carpets, their cups, their kneadingtroughs, their beds, their bosoms, and their lungs; discoloring their linen and their otherwise stainless raiment and robes of beauty and comfort, defacing their furniture, and blackening, besmearing and injuring every object of utility, of beauty and of taste.' Making all due allowance for the coloring which the pleader has given to this naturally dark picture, it is perfectly certain that this keeping of a coal-yard upon any of these lots is a business offensive to the neighboring inhabitants, according to the spirit and intent of the restrictive covenants."

Where part of the remaining property of the original vendor has been sold to another person, who must be considered to have bought the benefit of the former purchaser's covenant, and more especially when the subsequent purchaser has entered into a similar covenant on his own part, he must have done this in consideration of those benefits, and even whether he actually knew or was ignorant that a restrictive covenant was in fact inserted in the other purchase deeds, because he must be taken to have bought all the rights connected with his portion of the land.

Generally, when a right or privilege is reserved, the purpose intended to be accomplished by it is stated in the conveyance or can be gathered from a plan referred to therein, or from the situation of the property with reference to other land of the grantor. All parties then take with notice of the right reserved and the burden or easement imposed.

As a general rule in equity proceedings, all persons materially interested must be made parties either plaintiff or