ment of land, whether the covenantor possess any land or not (the words of the covenant in the latter case not extending to land in possession); and the covenantor afterwards purchases an estate, but neglects to make the necessary settlement (a). Here, from the nature of the contract, compared with the act performed, an inference obviously arises, that the purchase was made with a view towards completing the agreement. On the force of this inference a court of equity will supply the circumstance omitted, and will decree the estate purchased to belong to the person entitled under the covenant, and so wholly, or in part, to satisfy his claim(b). The leading authority on this subject is Wilcocks v. Wilcocks(c), which came before Lord Cowper in 1706. There a man, before marriage, covenanted to purchase lands worth 2001. a year, and settle them on his wife for life, for her jointure, remainder to the first and [*]other sons of the marriage, successively, in tail. The husband purchased lands of the stipulated value, but made no settlement. At his death, they descended to his eldest son; and on a suit instituted (a) See 10 Ves. jun. 9; 2 Ves. 568. That a covenant to purchase and settle land, is not a lien upon land of which the party is owner at the time, or which afterwards descends to him, see Forr. 92; also Davys v. Howard, 6 Bro. P. C. by Toml. 370. The same rule, as it is conceived, applies to land taken by devise, or under the limitations of a settlement. Whether a covenant merely to convey and settle, specifically binds an estate then in the seisin of the covenantor, is, in some measure, doubtful; though the better opinion seems to be that it does not. See Roundell v. Breary, 2 Vern. 482; Freemoult v. Dedire, 1 P. Wms. 429; Gardner v. Marquis Townshend, Coop. 301. (b) See 1 Cox, 166; Coop. 303; 10 Ves. 516, 520. (c) 2 Vern. 558. by him for specific performance of the marriage articles out of the personal estate, they were adjudged to go in satisfaction. In this case, the purchased estate devolved, by operation of law, though for a different interest, on the same person, as it would have done by express limitation, had the projected settlement been executed: but authorities are not wanting to show, that though the estate be carried by descent to another than the party claiming under the covenant, the latter notwithstanding will be entitled, and the heir accounted to take as trustee only. Thus, where a covenant was entered into for the purchase and settlement of land on the wife of the covenantor during widowhood, remainder to the first and other sons in tail, in the usual manner, and the husband made the requisite purchase, but suffered the lands to descend to his son; the devisee of the son (he having died shortly after his father) was decreed to settle the estate on the widow for life, remainder over, according to the terms of the agreement(a). And again, where it had been agreed that the settlement should be made upon the widow, for life, remainder to the children equally, the eldest son and heir was directed to convey the land in the manner pointed out by the articles (b). [*]In Tooke v. Hastings (c), it was held, that the same rule which converts the heir at law into a trustee for the parties claiming under a covenant of this nature, applies also to the case of a devisee; though (a) Deacon v. Smith, 3 Atk. 323. See also Lechmere v. Lech et seq. (b) Sowden v. Sowden, 1 Bro. mere, Forr. 80; Attorney-Gene- C. C. 582. ral v. Whorwood, 1 Ves. 534, 540, (c) 2 Vern. 97. how far this position be tenable, where there are assets to satisfy the engagement without resort to the lands purchased, appears open to question (a). The very act of disposing by will is certainly contradictory to the presumption. A covenant to purchase and settle is likewise discharged by a purchase in the name of the object to be provided for; the indication of intent to perform the covenant in this case being still stronger than in the instance of a purchase completed by the covenan tor in the ordinary way (b). It appears also, that the discharge of an encumbrance affecting a family estate, which is afterwards permitted to descend to the person engaged to be provided for, comes within the same principle, and constitutes a case of mixed performance and satisfaction. Such at least seems to be the principle furnished by the decision of the House of Lords in Davys v. Howard (c). In that case, a sum of 7,500l. was vested in trustees, upon trust to lay it out in the purchase of land, and settle the land, when bought, on J. Davys for life, remainder subject to an annuity by way of jointure, to his first and other sons in tail. The trustees did not make a purchase pursuant to the agreement, but allowed Davys to get the money into his hands. After [*]Davys's death, the eldest son made a claim on his personal estate to the amount of the money so received. But it being shown, that Davys had paid off several large encumbrances charged (a) See 3 Atk. 329; 1 Ves. Abr. 293; 2 Eq. Abr. 35. (c) 6 Bro. P. C. by Toml. 370. 274-5. (b) See Wilks v. Wilks, 5 Vin. on a family estate, which descended to the son, exceeding in amount the money he had received of the trustees, their discharge was regarded in the light of a purchase; and it was decreed that the disencumbering of the estate was a satisfaction of the debt due from the father to the trust. Cases of satisfaction, properly speaking, generally exhibit, first, the circumstance of the covenantor possessing land at the time of making the contract, or of his acquiring it afterwards by descent, devise, or settlement; and secondly, that of his suffering the land so possessed, or subsequently acquired, to descend, or of his giving it by will or deed, but without noticing the obligation, to the person for whose provision the covenant engaged. In these cases, no act done positively with a view to fulfil the obligation appearing, the idea of performance is necessarily excluded. But if the estate devised, or permitted to descend, be equivalent in value, and similar in kind to that agreed to be given, the courts will presume that the party intended in this manner to satisfy his engagement (a). From the correspondency indeed of the provisions, it is but reasonable to suppose, that such object was present to the mind and influenced the conduct of the covenantor. [*]As the intention to satisfy a covenant is inferred, in part, from the circumstance of the estate obtained through the disposition or permission of the party (a) Peacock v. Glascock, 1 Cha. Rep. 45; Bridges v. Bere, 2 Eq. Abr. 34, pl. 2; Streatfield v. Streatfield, Forr. 176. See also Wilks v. Wilks, 2 Eq. Abr. 35; being equivalent to that agreed to be settled, if in reality it be less valuable, such intention cannot then be supposed, and the presumption failing a claim may be made to both provisions (a). But in cases partaking of the nature of performance a different rule obtains there the intention being deduced from another circumstance, namely, the single fact of a purchase having been made, the amount in value of the purchase is not adverted to; so that though the land be of less worth than the sum agreed to be laid out, that will not prevent its being taken in part performAnd this is founded in reason. To meet with an estate of nearly the value required may be very difficult, and cannot, at all events, be confidently expected. If therefore an eligible estate, though smaller than what is sought for, offers, it will not be overlooked; and this, until other purchases be made, exhausting the entire fund, will of course be retained in the seisin of the party, so that the whole of the estates purchased may be settled together (b). ance. In like manner, disregard to small and unimportant circumstances, though in points of express requirement, is not sufficient to repel a constructive performance. Should the covenant, for instance, be to purchase [*]with the consent of certain interested parties, a purchase made without such consent will, notwith (a) See 3 P. Wms. 226; Forr. Eq. Abr. 35; Deacon v. Smith, 3 92; 3 Atk. 326. (b) Lechmere v. Lechmere, Forr. 80; 3 P. Wms. 211; Wilks v. Wilks, 5 Vin. Abr. 293; 2 Atk. 323; Lewis v. Hill, 1 Ves. 274; Att.-Gen. v. Whorwood, ib. 540; Hucks v. Hucks, 2 Ves. 568. See also 10 Ves. 9. |