ORDER

Trevelyan, J. - In this case I have to consider whether a good title can be made to a certain house which has been sold in pursuance of a mortgage decree.

2. The matter was in accordance with the rules of the Court referred in the first instance to the Registrar, who has reported that a good title cannot be made out to the property.

3. Counsel on both sides have cited oases to me as to what sort of title the Court can force on an unwilling purchaser.

4. The result of recent cases on this subject is laid down with precision in the last edition of Fry on Specific Performance, p. 388. On examining the title I will refer afterwards to what is there laid down. The abstract of title started with the mortgage, which recited that the mortgagor was possessed of, or otherwise well and sufficiently entitled to, the house and premises.

5. On investigation the purchaser discovered a deed of the 11th of March 1858, made between the mortgagor and his, brother Earn Chunder Doss and referring to this and other properties. This deed recites that one Jogul Kishore Doss, who was the paternal grandfather of these brothers, purchased in his lifetime (in the name of and appropriated for the sole purpose of the worship of a deity called "Muddun Mohunjee" established by him) two houses, one of which is the house in question.

6. The first question I have to decide is whether there was any endowment prior to the deed of 1858; the second question is whether the deed of 1858 created an endowment; and the third question is whether, if on the materials before me I come to the conclusion that there has been no endowment, there are circumstances in the title such as to prevent me forcing this title upon an unwilling purchaser. I think the case of Alexander v. Mills L.R. 6 ch. 131 shows that I must come to a conclusion on the first two questions. There Lord Justice James says: "As a general and almost universal rule the Court is bound as much between vendor and purchaser as in every other case to ascertain and determine, as it best may, what the law is, and to take that to be the law which it has so ascertained and determined."

7. As to the first question I have come to the conclusion that there is no evidence from which I can be satisfied that there was an endowment prior to the deed of 1858. Much reliance is placed upon an extract from the Collector's register,, showing that on the 22nd of May 1802 a pottah was granted to the idol; that Jogul Kishore, the alleged dedicator, was described as shebait of the idol; and that in 1853 Earn Chunder and Nobin Chunder, the parties to the deed of 1858 and grandsons of Jogul Kishore, were described as shebaits. There is no evidence of the terms of the alleged dedication, and except the recital in the deed of 1858 which is in vague terms, there is nothing to show that the profits of the houses were appropriated to the use of the idol The fact that the house was purchased in the name of the idol, and that the purchaser was described in the Collector's books as the shebait, proves nothing. I cannot be satisfied that there was an endowment until I know what the terms of the endowment were. In the case of Brojo Soonduree Debia v. Ranee Luchmee Koonwaree 15 B.L.R. 176 note : 20 W.R. 95 there was a conveyance to the idol and the shebait, but there was no evidence of the objects of the alleged endowment.

8. It is true that it is difficult to prove the terms of an old endowment, but there is no definite evidence as to what took place before 1858, from which I could infer the terms of the endowment. There is no doubt that the deed of 1858 is inconsistent with the alleged anterior endowment, and that since 1858 the parties have acted on the deed of that year.

9. I think I must bold that prior to the deed of 1858 there was no endowment. In this conclusion I agree with the Registrar. Does the deed of 1858 create an endowment? The first paragraph of the deed recites the partition of the moveable property of the two brothers. The second