Carey v Stafford in the exchequer hill Geo a voluntary conveyance of land not  the property of the grantor establish against he as a agreement to convey land  of equal value the plaintiff be the defendant servant at S per annum which be  prove in the cause to be pay and during her service the defendant procure a  deed to be draw by a attorney whereby land of t per annum be settle for life  with usual covenant to repair and for quiet enjoyment with a reservation of a  pepper corn rend and there be a receipt endorse for S as the consideration  money but blank be leave for the name of the party the defendant afterward  fill up the blank with his own name as the grantor and the plaintiff name as  the grantee but it appear after all to be a fiction and that there be no such  land as be describe in the deed and it be prove in the cause that when the  plaintiff come to demand where the land be the defendant swanston er p laugh d  at her and say they be in frown whereupon the plaintiff bring her bill to be  relieve and to compel the defendant to convey land for the same estate and to  the same value for the defendant it be urge that it appear that the plaintiff  be a mere volunteer she ought not to have the aid of a court of equity that  she do not come to be relieve against a fraud by which he be deprive of any  thing but to force the defendant to give her what he never intend that it be  turpis causan and not to be favour in equity some proof be then read to show a  criminal conversation between the plaintiff and the defendant but not full I  curian of opinion that the plaintiff ought to have relief and that it shall go  to the deputy to see a good conveyance make to the plaintiff of defendant land  to the same value and to take a account of the rend and profit from the date  of this fraudulent deed as if such land have be real convey by it and per  Gilbert chief baron this be not within the case of volunteer for here be  nothing at all give and therefore no remedy can be at law but in the case of a  volunteer where something be convey damage may be recover at law on the  covenant and therefore equity will not interpose hale baron if the  consideration do arise ex ugly causan yet it be good in equity where there be  no creditor c and court of equity in such case will decree performance and  that as a punishment for the party and the man in this case be more criminal  for it must be suppose the solicitation first come from he from Mr Cox ms  Morse v falconer swanston n er report date Morse v falconer in the exchequer  that April see west v Bernee Russ my Jones v Kearney dr war short report I  Anstr two effect of a agreement to sell land not then the property of the  vendor but which afterward become his Thomas gyles on the that of October die  a bachelor intestate seize in fee of two several copyhold estate in great  Coxwell and little Coxwell and leave two nephew Thomas Robinson and William  Robinson child of his sister and also William Robinson who be a common soldier  the son of Richard Robinson the second nephew of the intestate and brother of  to say Thomas Robinson and William Robinson who die in his uncle lifetime  Thomas Robinson the old nephew and the heir at law of the intestate have go to  reside in Ireland upward of forty year before the death of his uncle and  Richard be then dead William the three nephew take out administration to his  uncle and also enter into possession of the copyhold premise in April William  the soldier have then late arrive in England go to great Coxwell accompany by  his uncle William and claim title to the copyhold estate allege that hehad be  late in Ireland where he have be assure of the death of his uncle Thomas about  two year before without issue and William the uncle allege the same thing and  give up the possession of the copyhold premise to William the soldier as heir  at law of the intestate William the soldier declare his intention to sell the  premise immediate and send for the steward of the manor who live thirty mile  off to take his admission and his surrender to the purchaser when the steward  come William the soldier send for two or three person to a public house at  Coxwell and about nine oh clock in the evening put up the premise to auction  Richard Morse and another person bid for they and at the three bid Richard  Morse be declare the purchaser Richard Morse be accord admit to part of the  copyhold premise and the other part be by his direction surrender to the use  of William Morse his son Richard Morse pay the purchase money to William the  soldier and the court fee he afterward lie out a considerable sum of money in  repair the premise and die in it afterward appear that Thomas Robinson the  uncle in fact survive the intestate and be live at the time of the sale to  Morse so that William the soldier have not then any title whatever to the  premise but Thomas Robinson afterward Viz in die without issue and upon his  death the premise descend upon swanston er p William the soldier No act be do  by William the soldier after the death of his uncle Thomas to confirm the  surrender or sale to the morse and William the soldier die in leave John  falconer mary shade Hannah ware and Ann Robinson his heir at law in easter  action of ejectment be bring by John falconer James shade and mary his wife  Samuel ware and Hannah his wife and Ann Robinson against Ann Morse who claim  her free bench in the part surrender to Richard Morse and William Morse to  recover possession of these premise on the ground that nothing pass by the  surrender of William the soldier and that the copyhold premise therefore  descend on the lessors of the plaintiff as his heir at law a case be reserve  for the opinion of the court of king bench and after great consideration  judgement be give for the lessors of the plaintiff Goodtitle v Morse t r Ann  Morse and William Morse then file the present bill against falconer shade and  wife ware and wife and Ann Robinson pray that they may be decree to make a  surrender to the plaintiff respective of the several part of the copyhold  premise which be surrender to Richard Morse and William Morse by William  Robinson the soldier and that they may be quiet in the possession thereof and  that the defendant may be restrain by injunction from proceed to extension  upon the judgement in ejectment partridge and Cox for the plaintiff it be now  settle by the judgement of the court of king bench that the plaintiff have not  a legal title to the premise in question they therefore come to a court of  equity in the character of fair purchaser for a valuable consideration to have  that legal title make good to they by the heir at law of the vendor this be  the common case of a purchaser come to have a agreement specifical perform or  a defective conveyance supply and it be a species of relief which court of  equity be in the constant habit of give either against the vendor himself or  any claim as heir or volunteer under he whether the agreement for the sale  remain whole unexecuted or be defective execute and whether the vendor have  good title to the premise at the time of the sale or whether such title accrue  to he afterward and although the case at law turn upon the difference between  freehold and copyhold premise yet it be evident that no distinction of that  sort can arise here for the claim of the plaintiff be to have a good legal  title make to they by all necessary mean and indeed most of the case on  defective conveyance arise on copyhold in wiseman v roper Rep in Charles the  defendant be only presumptive heir to his brother and agree to settle certain  land to the use of the marriage with in one month after his brother death  there the objection be take that at the time of this agreement the defendant  have no interest whatever in the land but as they afterward descend upon he he  be decree to perform his agreement in Barker v hill Rep in Charles the heir of  the vendor be decree to surrender the copyhold premise to a purchaser so in  Patteson v Thompson Rep tempt finch the heir of the mortgagor be decree to  surrender the copyhold to the mortgagee in Martin v Seamore can in Charles the  bill be by mortgagee of copyhold the surrender have be defective and it be  particular argue in that case that as the plaintiff will have be clear entitle  to relief upon a bare agreement he ought not to be in a worse place by have a  surrender though defective in Clayton v the duke of Newcastle can in Charles I  the heir sell in the lifetime of the ancestor and receive the money and when  the land descend upon he he be decree to convey which case seem very like the  present in tailor v Wheeler vern a surrender of copyhold by way of mortgage  not present within due time be make good in favour of the mortgagee against  the assignee under a commission of bankrupt against the mortgagor that the  court will decree the performance of a agreement although the vendor have no  title until after the agreement appear by the constant form of the reference  to the master in all case of specific performance videlicet to inquire whether  the vendor can make a good title to the premise he can at the time of the  agreement make such title this be settle upon great consideration in the case  of Langford v Pitt p W Wynn v Morgan Ves and the master of the roll there  mention a remarkable case of Lord Stourton v sir t mere where a act of  parliament be necessary to make good the title and yet the court ultimate  execute the agreement swanston er p Lord chief baron I have great doubt about  the equity upon which the bill proceed and if I find it necessary in this case  to lie down any general rule upon the subject I shall think the case deserve  great consideration it be true that when a man have a good title agree to sell  to another this court consider such a agreement as a lie upon the land and  will upon that ground decree the heir or any volunteer under the vendor to  make good such agreement it be also true that when a man not have a title at  the time agree to sell and afterward such title accrue to he the court bind  the conscience of the vendor himself and compel he to make good the title at  any future period I when he can which be the case of Clayton v duke of  Newcastle but in this case the surrender not have any title whatever to the  premise at the time of the surrender his agreement will not raise a lie upon  the land and although the present plaintiff may have be relieve if they have  file their bill against he in his lifetime that be after his title have accrue  yet it do not follow that therefore they can be relieve against his heir  neither the land itself or the conscience of the present defendant be bind by  this act of William the surrender and I be not aware that on a bill file for a  specific performance against the heir of a person who sell without have any  title at the time of the bargain the court have refer it to the master to  inquire whether the vendor have any title to the premise at the time of his  death but real I do not think it necessary to go into the general question  upon this occasion this be not the sort of sale that it become t S court to  take notice of a common soldier go down to a country alehouse and late at  night callstogether two or three people and offer to sell his estate and then  two person bid for it and the affair be all over the transaction be not  serious enough for this court to interfere in and the party must take their  course at law the bill be dismiss without cost from Mr Cox note Lord  Colchesters ms