COMMON LAW 253
II. The cases in which the questions of Performance arise fall into classes :
(i) Where there is a covenant to purchase and settle lands, and a purchase is in fact made.
(ii) Where there is a covenant to leave personality to an individual and the covenanter dies intestate and the property thereby comes in fact to that individual.
III. Cases arising under the First Class
(i) Illus, already given.
Points to be noted.
(i) Where the lands purchased are of less value than, the lands covenanted for, they will be considered as purchased in part performance of the contract.
(ii) Where the covenant points to a future purchase of lands, lands of which the covenantor is already ceased at the time of the covenant, are not to be taken in part performance.
(iii) Property of a different nature from that covenanted to be purchased by the covenantor, is not subject to the doctrine of Performance.
IV. Cases that fall under the second class
(i) Covenant is to leave certain money.
A covenanted previously to his marriage to leave to his wife £620. He married and died intestate. His wife’s share under the intestacy was less than £ 620.
The wife sued for the performance of the covenant. The question was, having received £ 620 on intestacy, was it not a performance of the covenant. It was held that it was, so that the widow could not claim her share on intestacy and £ 620 over and above as a debt under the covenant.
(2) In this case, the covenant was wholly performed. But even if the amount received was less than the amount due under the covenant, the doctrine of performance would apply and the convenant would have been held to be performed pro tanto.
(3) Two points to be noted :
(i) Where the covenantor’s death occurs at or before the time when the obligation accrues, there is performance.