attorneygeneral v day march see price v Hathaway mad g Horrocks v rigby Ch d  bank v small Ch d the court refuse to effectuate a order confirm the master  report for lie out money in land for a charity where the nature of a devise on  which it be find make a open to evade the statute of mortmain in contract if a  tenant in tail persist in refuse to execute and die the court will not decree  the succeed tenant in tail to perform it for such a one take paramount per  form gift though specific performance may have be agree against original party  hold as tenant in common yet where a alteration prevent a decree as to one  moiety the court will not direct a performance as to the other the contract be  entire and a execution of half of it inadequate to the prime object John  elbridge be likely to die make a conveyance of a real estate for benefit of a  charity ten day afterward he make a will by which he give pound the exact  vesey senior er p value of to at land to the same charity and pound to the  same and give the estate to air elbridge wife of Thomas elbridge and to Mr  Wolner as tenant in common after his death a bill be bring for a general  account and for direction of the court for the settlement of John Elbridges  estate under his will and a decree for that purpose the court direct the  master to receive a scheme for carry it into execution the foundation of part  of which be to consider in what way the money shall be lie out and a perpetual  fund create for maintenance of the charity the master report a scheme for lie  out pound in the purchase of these land and the pound in other land convenient  for building the charity school the case be set down for the charity to be  hear on the matter reserve and the court make a decretal order confirm the  master report that the scheme shall be approve of and the other matter therein  carry into execution none of all which be oppose but acquiesce under by Thomas  elbridge and his wife who survive he after her death the present information  be bring on behalf of the charity together with mrs Hort administratrix of the  personal estate of mrs elbridge to have this purchase carry into execution by  the aid of this court against the devisee of the heir at law of mrs elbridge  and against the infant son of Mr Wolner who be now dead have settle the estate  on himself in tail two general question be make first whether the party be  entitle to carry this purchase into execution by the aid of a court of equity  second whether the benefit of carry it into execution in respect of the  purchase money shall go to the plaintiff the administratrix or to the  defendant devisee of the heir at law of mrs elbridge vesey senior for  defendant the specific execution of agreement here be not ex debit justice it  be discretionary and therefore if objection arise thereto from circumstance of  hardship though not strict weigh in law or equity the court ought not to do it  such agreement must be final and no room for repentance the party be not bind  to his by any act for then there will be some declaration in write that the  estate shall be sell whereas it rest single on the nonopposition to these  order but the whole fate of the mortmain act depend on this as the carry this  into execution be contrary to the express provision or at least the general  intent of the Geo c since which no land or money to be vest in land can be  give to a charity or land to be sell and turn into money because of the  possibility of its be keep some time in land as be determine in James v Lord  Weymouth Ambl but where a election be give to lie out money in land or the  fund for a charity it may be decree to be lie out in that which be not void as  have be determine by your lordship by the proviso in the act the legislature  mean only that if the money be actual pay and the agreement complete the  accident of the party death shall not hurt it but not to conclude a incomplete  agreement as this be the money not be pay still all the other restriction will  take place on this proviso so that it must be seal and deliver by deed indent  and enrol c but step all this out of the case and that at the time of bring  the bill it be possible there be circumstance now render it impossible for by  the death of Mr Wolner one of the tenant in common with who the contract for  purchase be make it can be carry entire into execution therefore it can in  part the transaction be joint they can therefore come into equity single out a  divide moiety the court can in this case make any election for the infant  which be only do where there be a absolute necessity but if the infant die  under age there be remainder in tail who sure be not bind by this agreement  for plaintiff the method of carry it into execution be that the contract party  shall be esteem in nature of a trustee and then his devise can vary the right  the statute do not absolute prohibit any vest of money in land for a charity  much have be lie out in mortgage and yet that will come within the word of the  act as in the statute of king William of papist who can take a mortgage note  but the law be afterward alter by Geo c there be no such rule that if a  contract can be carry into execution in toto it can in part one jointtenant  indeed will not be bind by the contract of the other the right of survivor be  prior nor will the court carry it into execution in part but otherwise of  tenant in common who must sever in every action and their contract be two  distinct grant and if one of they be disable by any subsequent act it vesey  senior may be vesey senior er p execute as to a moiety this once be money when  the party themselves be bind and nothing have since happen by death of Wolner  to change it Lord chancellor this case involve several material point some of  they new and if there be not some clear and decisive in this case I shall take  time to consider of the judgement I be to give I will say nothing particular  of the second question be mere consequential to the determination of the first  for there be no case where the representative of the personal estate be  entitle to claim the money arise by sale of the land as personal estate except  where one or other of the contract party in the purchase be entitle to carry  it into execution in a court of equity for where the court hold it ought not  to be execute there be no conversion on real into personal in consideration of  the court upon which that right of the executor depend for if not effectual  convert into money it must be consider accord to its original nature as real  and the heir at law must have the benefit whether there be anysuch conversion  depend on there be a effectual agreement bind on all party so as under all the  circumstance it ought to be carry into execution upon this general principle  of equity that what be contract for valuable consideration to be do will by  the court be consider as do all the consequence arise as if it have be so and  as if a conveyance have be make of the land at the time to the vendee but if  the circumstance be such that it can now or ought not to be carry into  execution though once it may these consequence can follow for the court must  consider it as land and the money as the party own who be to be the purchaser  the first question depend on two consideration first whether all that pass in  the life of Thomas elbridge and his widow amount to a bind agreement on those  party for sale of the land the second suppose it so whether the court ought  now to carry it into execution because of the intervene circumstance as to the  first I think it do amount to such a agreement and that if Thomas elbridge or  his wife be now before the court brown Ves sen and no change in Wolners moiety  the court ought to have execute it notwithstanding the statute of fraud for  though that statute have provide that no agreement for the purchase of land  shall be good unless sign by the party to be bind thereby or some person vesey  senior authorize by he yet on all the question on that statute in this court  the end and purport of make it have be consider videlicet to prevent fraud and  perjury so that any agreement in which there be no danger of either the court  have consider as out of the statute upon which there have be many case as in a  bill by purchaser of land against the vendor to carry into execution the  agreement though not in write nor so state by the bill the vendor put in a  answer admit the agreement as state in the bill it take it entire out of the  mischief and there be no danger of perjury the court will decree it then if  the vendor shall die upon a bill of revivor against his heir I shall not doubt  to decree it although I know no case of it the principle go throughout and  equal bind the representative then there be other case well know take out of  the statute not so much on the principle of no danger of perjury as that the  statute be not intend to create or protect fraud as where agreement have be  carry partly into execution although a controversy may be afterward between  the party as to the term yet if make out satisfactory to the court it will be  decree though variety of evidence may be in the case in order that one side  may not take advantage of the statute to be guilty of fraud the court will  hold his conscience bind thereby but the present be a judicial sale of the  estate which take it entire out of the statute the order of the court be not  interlocutory but make part of the decree as it always be on the matter  reserve though make at another day and it include as well the carry the  purchase into execution as the establishment of the charity amount to a decree  for the conveyance of the estate on one side and payment of the money on the  other who may be prosecute for a contempt in not obey that order and it be  strong than the common ease of purchaser before the master who be certain out  of the statute nor shall I doubt the carry into execution against the  representative a purchase by a bidder before the master without subscribe  after confirmation of the master report vide supplement p and ex part minor  Ves that he be the best purchaser the judgement of the court take it out of  the statute but even in common case this question may arise as if the  authority of a agent who subscribe for the bidder not be admit can be prove  yet if the master vesey senior er p report can be confirm it shall be carry  into execution unless some fraud for this be all exclusive of any defence that  may still be set up on the other side but the material consideration be the  next whether as circumstance now stand consider the event and alteration of  right thereby the court ought to carry it into execution the general rule  certain be that this be discretionary in the court but will not hold in the  present for that be general in case where there may be a election of two  remedy by come here for a specific vesey senior performance or by action at  law whereas here there can be no remedy at law all arise under the act of this  court from that order amount to a decree so that if this court do not carry it  into execution it can be at all yet whether other remedy or not if there be  strong and material objection against it the court ought not to do it as to  the first objection I can say this be strict contrary to the provision of the  Geo call the mortmain act the first clause of which be intend to relate to  gift or conveyance to a charity by way of donation and it be plain that the  legislature do not intend absolute to forbid all kind of purchase of land for  the benefit of a charity but have ut they under some restriction the proviso  be insert in the house of lord upon mention of the case of the charity of  queen whether bounty which can not otherwise have go on as the method of  execute it be that the money arise of that fund be lie out in purchase of real  estate for the augmentation of poor vicarages another consideration be that  this be not intend to prevent the execution of charity already establish in  several of which the fund be vest in trustee with intent to lie out in land  particular doctor Ratcliff charity but to leave they open restrain the  increase of such donation in going to be that it shall not be in the power of  any person or of a court of equity to direct subsequent gift of money to a  charity to be pay out in land for if that be their meaning they may as well  have reject the whole bill as the consequence will be that a person may leave  pound to his executor who may bring a bill in equity pray a decree for lie it  out in land yet in this very clause relate to purchase it may be consider how  far they be take out of the statute the meaning be that where such purchase be  make they shall not be leave precarious in point of time so that though the  party shall happen to die within the twelve or six month yet the person who  pay the money shouldnot lose his purchase or be put to risk the recovery of it  back as there may not be asset or stock may fall but then the money must be  actual pay in which case I doubt whether the other restriction exclusive of  the limitation in point of time in life of the party will take place on this  proviso and be rather of a different opinion for sometime the money be pay on  article before a perfect conveyance and then it will be sufficient take out of  the act notwithstanding the circumstance of deed indent and enrol be not  comply with the intention of the act be comply with by the actual payment and  conversion make of one kind of estate into another but in the present case the  money have not be pay but suppose this doubtful consider whetherit will not be  contrary to the true intent and principle of the act have this vesey senior  matter be full enter into at the make that order as it be now I think I shall  not have make it but it pass sub silence then the party agree and the  objection not be lie before the court there be something in this case which  may lie a great open to evade the act although John elbridge may not have  intend any such fraud but if such precedent be mad I it will be follow by a  person who know if he die within year after the conveyance the act will make  it void give the exact value thereof in money the same way and their the one  to be lie out in purchase of the other the testator intent make it worse and  create a reason against it this though mention as a barbarous act be quite  otherwise far from be a prohibition of charitable foundation it only restrain  this method leave the disposition of personal property thereto free the  particular view of the legislature be two first to prevent the lock up land  and real property from be alien which be make the title of the act Geo c vide  Durour v motteux postea the second to prevent person in their last moment from  be impose on to give away their real estate from their family the present case  do not relate to the latter view although that be a very wise one for by that  mean in time of popery the clergy get almost half the real property of the  kingdom into their hand and indeed I wonder they do not get the rest as people  think they thereby purchase heaven but it be so far from be charity vesey  senior er p or piety that it be rather a monument of impiety and of the vanity  of the founder as to the other view it be of the last consequence to a trade  kingdom to which the lock up of land be a great discouragement this indeed  have not so much relation to the statute of mortmain as be think which have  another view videlicet of service of the crown and therefore the reason  produce this act be more like the political reason relate to the statute of  Westminster of intails then it will be inconsistent with that view of the  legislature if this court shall decree this order make on the master report  which will not have be make have it then be full consider to be carry into  execution in the purchase of land as it will be attend with all the bad  consequence of such a devise of land which such a charity be create de to make  new the better rule be to hold it to be lie out in some personal property for  which the fund be convenient afford common a better and ready income than land  and it be worth observe how early law be make to prevent the mischief of  mortmain videlicet about the three century by one of the first Christian  emperor but upon the next objection there be reason why it can be do suppose  the rest out of the case as thing now stand it can be execute entire and then  not at all for upon Wolners death his part be go over to his issue in tail a  infant against vesey senior who the court can decree it as it be admit the  court can not if he be of full age because it have be determine that on a bill  to carry into execution a contract for the purchase of land in the life of  tenant in tail the court will decree he to execute it and to suffer a recovery  but if he will not choose to lie all his life in prison as Mr Savil do the  court can carry it into execution against the issue in fail claim paramount  per form gift it be admit that if the bill be on the other side by the present  defendant or survive tenant in common for a execution as to a moiety the court  will not execute it against the purchaser because it be different from what be  contract for as his meaning may be to have the entire estate and the court  pretend to decree in specie only which the decree half will not be on the  other band if on the death of one of the tenant in common who contract for a  sale of the estate the purchaser bring a bill against the survivor desire to  take a moiety of the estate only the interest in the moiety be divide by the  interest in the estate I shall think I though I give no absolute opinion as to  that in the case of a common person he may have a conveyance of a moiety from  the survivor although the contract can be execute against the heir of the  other but this be not the case of a private person but of a charity for which  the court must judge and will not decree the money to be lie out in the  purchase of a undivided moiety of a estate oblige the charity to become tenant  in common with a private person whereas the reason for lie it out be to have  it entire nor be any estate so inconvenient or entangle as this which will not  be for the benefit of the charity beside the information be to carry this  scheme into execution which will not be do by such a decree as to the question  between the representative of the real and personal estate it be but a  consequence of the other point and as this can be carry into execution or  consider as do the plaintiff Hort have no right but the heir at law must have  it as land but there be another way of attain this videlicet by a private act  of parliament enable the infant to convey for there have be several case where  if clear for the benefit of the infant act of parliament have be make for  carry the contract of the ancestor into execution which will deliver I from  all my difficulty as the party will then have the opinion of the legislature  upon both point and if they have any such think it shall stand over otherwise  the bill shall be dismiss without cost even against the infant who it be  proper to bring before the court Reg lib a fol the bill be dismiss without  cost r l