A purchaser is never -compelled -to pay up the purchase money and to aecept a -doubtful title ; he is not required to do so, although the iullest indemnity by way of general warranty be tendered.
Upon the opening of the argument it seemed dear that, on the case agreed, the questions growing out-of i.he construction of Mrs. Paulcon’s will were worthy of serious consideration, and that the validity oí the title, which the plaintiff offers to make to the defendant, based upon the «¡vumption that his intestate was seized of an absolute fee simple estate, is a question that cannot be considered as free of doubt. So it was evident that “ the right could not be administered,” unless the heirs-at-law of the intestate, and also all of the perrons who may be embraced by the supposed contingent limitation, or contingent power of appointment, or contingent declaration of trust (which it may be termed), interested in the construction of the will of Mrs. Faulcon, were made parties to the proceeding. Under the old mode of procedure, the plaintiff* would have taken judgment at law upon the two sale notes, whereupon the defendant would have filed his original bill in equity for a specific performance of the contract, if the vendor could make a good title. Otherwise, for its .-rescission, and in the meantime, for an injunction against an execution on the judgment at law, a reference, as of course, to enquire into tlie title, report the vendor cannot make a perfect title, -decretal order, allowing the vendor six months in which to perfect his title by procuring releases, confirmation, <fec. Final -decree, “ the contract is rescinded, &c., &c.”
Under the O. O. P., all of these proceedings are had in one ' Court, and the legal conclusions from the facts set out in the case-agreed must grow out of the equitable counter-claim set up by the defendant, which is, in plain English. “ he don’t *184want to pay his money unless he gets a good title to the land; but is willing to pay up provided he gets a good title.”
The facts set out in the case agreed do not put it in the power of the Court “to administer the right,” for an adjudication of the question' of title, as between the plaintiff and defendant, will not conclude the question in regard to the persons setting up claim under the will of Mrs. Eaulcon. Under the old mode of procedure, the result would have been a rescission of the contract of sale; but in C. C. P., sec. 61, “ the right can be administered ” under the power to make any person a party, who is a necessary party to a complete determination of the question involved in the controversy. To this end the persons above referred to are necessary parties, in order to make the judgment conclusive in respect to all of the parties having an interest or claim in respect to the subject of controversy. One of the recommendations of the new Code is, that it supplies this desideratum in the old mode of procedure, and enables the Court m one action to settle the whole question and put an end to the litigation.
The,case will be remanded, to the end that new parties may be made, and the costs of this appeal will abide the result of • the action.
It may be observed, that this case furnishes an illustration of the truth, that a knowledge of the old mode of procedure is necessary to a thorough understanding of C. C. L\, and will explain why, applicants for licenses are required to study Chitty, Stephens, and Adams on equity. C. C. P. cannot be understood and practically applied without a knowledge of the old mode of procedure.
Per Curiam. Cause remanded.